author: BRACE, C. J. MARSHALL, J.

text:
    SOUTHERN MISSOURI AND ARKANSAS RAILWAY COMPANY et al., Appellants, v. WOODARD, McKINNEY et al.
    In Banc,
    February 26, 1906.
    1. CONDEMNATION: Exceptions: Order Setting Aside Report: Right of Jury Trial: Corporation. The statute does not require a formal order setting aside the report of commissioners in a condemnation proceeding as preliminary to a hearing before a jury. Upon the coming in of the report and the filing of exceptions thereto in due time, after notice, the exceptor has , the constitutional right to have his damages assessed by a jury, and the court has no discretion in the matter. The calling of a jury to assess his damages is such an order as “right and justice require.”

      Held, by Marshall, J., dissenting, first, that the construction heretofore placed on the two different sections of our Constitution, in effect guarantees to a corporation, where its property is sought to he condemned for public use, the right of trial by jury in all cases, whereas when the property of individuals is sought to be condemned his right to a jury trial is subject to prior assessment by a commission of freeholders, and thus a discrimination is by judicial construction made in behalf of corporations; second, that section 4 of article 12 of our Constitution is not inconsistent with or an exception to the general provisions contained in section 21 of article 2, and, if properly construed, corporations are no more entitled to trial by jury than are individuals, in any condemnation case, except where the purpose of the condemnation proceeding is to take away all the property and franchises (that is, its right to exist) of a corporation; third, the doctrine of stare decisis is not as important as the doctrine that all men are equal before the law.
    2. -: Damages; Opinion of Witness: Question. Persons shown to be acquainted with the value or damages to property through which the proposed railroad is to pass, may, in connection with the facts, state their opinion as to such value or damage. And the question propounded in this case is held to be adapted to the facts and to correctly state the basis for an opinion.
    3. -: -: Instruction: Words “If Any.” The fact that the words “if any” used in an instruction in reference to the amount of damages, are not thereafter continuously repeated in other instructions, is no ground for holding that the instructions assumed that the property had been damaged.
    Appeal from Ripley Circuit Court. — Hon. J. L. Fort, Judge.
    Aeeirmed.

      E. FL. Senejf, L. F. Parker and James Orchard for appellants.
    (1) The motion in arrest of judgment should have been sustained. The verdict of the commissioners was never reviewed hy the court; never set aside or affirmed. Under Revised Statutes 1899, section 1268, upon the filing of the report of the commissioners the clerk wherein the same is filed shall notify the party whose property is affected of the filing thereof, and the report of said commissioners may be reviewed by the court iu which the proceedings are had on written exceptions filed by either party in the clerk’s office within ten days after the service of the notice aforesaid, and the court shall make such order therein as right and justice may require, and may order a new appraisement on good cause shown. Such new appraisement shall, at the request of either party, be made by a jury under the supervision of the court, as in an ordinary case of inquiry of damages, etc. So, under that section, it is necessary for the court to review the report of the commissioners and to set the same aside on a proper showing. The finding of the commissioners appointed to appraise land to be condemned for railroad purposes is not conclusive upon the circuit court, but on written exceptions filed by either party the court may examine the evidence, and if the verdict of the commissioners was wrong, may set it aside. Bridge Co. v. Schabacker, 49 Mo. 555. In the case at bar no such inquiry was made and no order of the court was made setting aside the verdict of the commissioners, so the finding of the commissioners is still in force. Bridge Co. v. Ringe, 58 Mo. 491; St. Louis v. Lanigan, 97 Mo. 175; Railroad v. Richardson, 46 Mo. 456; Railroad v. McGrew, 113 Mo. 390. (2) In an action for damages it is not competent for a witness to state the sum-which he thinks is the plaintiff’s damage, because, even if the witness is an expert in the particular subject, he is liable to include in his general estimate elements of damages which the law does not recognize. Sale v. St- Louis, 152 Mo. 615; Hurt v. Railroad, 94 Mo. 255 ; Watkins v. Railroad, 44 Mo. App. 245; Suspensor v. Railroad, 120 Mo. 154. And to allow a witness to give his opinion as to the amount of damages sustained in a given case is, as a general rule, usurping the general province of the jury. Saline v. St. Louis, 152 Mo. 615; Railroad v. Knapp, Stont & Co., 160 Mo. 396; Railroad v. Shoemaker, 160 Mo. 425. (3) The instructions given on the part of the exceptor, C. E. McKinney, are erroneous, for the reason that they assume that the exceptor’s land was damaged by reason of the locating of plaintiff’s road over the same. That was one of the controverted questions before the jury. It was, therefore, an error to give said instructions. Railroad v. Stock Yards Co., 120 Mo. 541; Stone v. Hunt, 94 Mo. 475; Railroad v Knapp, Stout & Co., 160 Mo. 396.

      Jno. M. Atkinson for respondents.
    The first assignment of error by appellants is that the court erred in proceeding .to trial without first setting aside the report of the commissioners, which is not supported by a single authority cited by appellants decided since the adoption of the present Constitution, but on the contrary the assignment of error has been held in a number of cases adverse to appellants’ contention. The latest case cited by appellants, Railroad v. McGrew, 113 Mo. 393, holds the reverse to appellants’ assignment. The exceptions-in the McGrew case prayed for an assessment of damages by a jury (the same as respondent did in this case), which request was refused the railroad company, and the court held, speaking through Judge Maceaklane, that “sec. 4 of art. 12 of the Constitution, and sec. 2738 (now sec. 1268) of the statutes, entitled the corporation, when exercising the delegated right of eminent domain, to demand as a matter of constitutional right that the damages should be assessed by a jury, ’ ’ and stated further that, ‘ ‘ since the trial of the case in the circuit court the disputed question has been decided in several cases by this court, ’ ’ and cited: Railroad v. Town-Site Co., 103 Mo. 451; Railroad v. Miller, 106 Mo. 458; Railroad v. Shambaugh, 106 Mo. 557; Railroad v. Fowler, 113 Mo. 458. The same question is found decided against appellants’ contention in the case of Railroad v. Story, 96 Mo. 611. If the contention of appellants be true, that under the statute the report of the commissioners must first be set aside for cause before a jury is called to assess damages, and the trial court should refuse to set aside such report, then the statute would be in direct conflict with the constitutional right, and of course the statute must fall as was said by the court in the Story case, supra. The trial court below did not confirm the report of the commissioners as to exceptor, and hence it must have considered same set aside, even if such be a valid requirement. If a formal order of the ■ court below setting aside the report of the commissioners be required, the matter was so treated by both appellants and respondents and such a formal requirement was waived and cannot now be urged for' the first time in this court, as the attention of the lower court was not called to the same, either during the trial or in a motion for a new trial or in arrest, and hence we conclude that the first assignment of error is without any merit, and should be ruled against appellants.
   BRACE, C. J.

— This is an appeal in a proceeding by a railroad company, under the provisions of article 7, chapter 12, Revised Statutes 1899, to condemn a strip of land for its use through a number of tracts or parcels of land in Ripley county; one of which belonged to C. E. McKinney, the respondent herein, who, upon the coming in of the report of the commissioners assessing his damages at one hundred dollars, after notice, in due time, .filed his written exceptions thereto, in which he asked that the report of the commissioners be set aside, and that his damages be assessed by a jury. Thereupon, in due course, a jury, was impaneled, before whom, the issues were tried and a verdict in his favor rendered, assessing his damages at seven hundred and fifty dollars, from which judgment, in due course, this appeal was taken.

1. By section 1268 of said article 7, it is provided that: “The report of said commissioners may he reviewed by the court in which the proceedings are had, on written exceptions, filed by either party in the clerk’s office, within ten days after the service of the notice aforesaid; and the court shall make such order therein as right and justice may require, and may order a new appraisement, upon good cause shown.”

On the record no formal order appears setting aside the report of the commissioners, and this is assigned as error. There is nothing in this assignment. On filing his exceptions the respondent had the constitutional right to have his damages assessed by a jury, and the court had no discretion in the matter. The calling a jury to assess his damages was such order “as right and justice required.” [Art. 12 sec. 4, Const. 1875; Railroad v. McGrew, 113 Mo. 390; Railroad v. Story, 96 Mo. 611.]

2. It is next contended that the court erred in permitting witnesses for respondent to give their opinion as to the amount of the damages to respondent’s land in answer to the following questions:

“Q. I will ask you, taking into consideration the quantity of land taken for the right of way, which is agreed to he six and one-half acres, the size, shape and disfigurement, if any, of the tracts into which the farm is divided, as its market value may he affected by that division into those sizes, shapes and disfigurements, and the cuts and fills on that tract, if any, and the difficulties, if any, of getting from one side to another by going to a railroad crossing to get over from one side to another, and excluding all elements of damage, if any, that may arise from or he due to smoke or noise from trains passing over the road, or the ringing of hells or sounding of whistles, and scaring, frightening or killing of animals while on the right of way, or danger to the person of the owner, agent, servant, by the crossing of said road; what, in your judgment, would he the depreciation in the market value of the farm on account of six and one-half acres being taken for the right of way, and other inconveniences, taking into consideration all that I have mentioned and excluding all that I have mentioned ?”

It is settled law in this State that persons shown to be acquainted with the value or damages to property may, in connection with the facts, state their opinion as to such value or damages. [Railroad v. Calkins, 90 Mo. 538-543; Railroad v. De Lissa, 103 Mo. 125-130; Railroad v. St. L. Union Stock Yards, 120 Mo. 541-550; Railroad v. Donovan, 149 Mo. 93-102; Railroad v. Shoemaker, 160 Mo. 425.]

The question in this case is but a paraphrase adapted to the facts thereof, of the question in the case last cited, in which it was held that the question correctly stated the basis for an opinion of the witness as to the amount of the damages. There, is nothing in this assignment.

3. The third and last contention of appellant is, that the instructions given for respondent are erroneous in that they assume that his property had been damaged. This is a hypercriticism of the instruction and seems to be based upon the fact that the words, “if any, ’ ’ used in the first instruction, were not thereafter continuously repeated in subsequent instructions. The instructions followed approved precedents— no specific error in them has been pointed out, and there is nothing in this contention.

Finding no error, the judgment of the circuit court will be affirmed.

All concur, except that Marshall, J., does not concur in paragraph 1.

DISSENTING OPINION.

MARSHALL, J.

— I feel constrained to dissent from the first paragraph of the opinion of the majority of the court in this case. I am unwilling to believe that the Constitution of this State intended that where the property of an incorporated company is to be taken by condemnation, a right of trial by jury is guaranteed to the corporation, and that the land of an individual,-, to be taken in the same proceeding, can be taken without the citizen being entitled to a trial by a jury. I am aware that the doctrine stated in the first paragraph of the opinion in this case reiterates the rule heretofore announced in this State in the cases of Railroad v. Story, 96 Mo. 611; Railroad v. Town-Site Co., 103 Mo. 451; Railroad v. Miller, 106 Mo. 458; Railroad v. Shambaugh, 106 Mo. 557; Railroad v. McGrew, 113 Mo. 390; and St. Louis v. Roe, 184 Mo. 324. But in my judgment all of those cases were improperly decided, and they declare a rule of law that produces a special privilege in favor of an incorporated company that is not guaranteed to nor conferred upon a private individual, and I am wholly unable to agree that the framers of the Constitution ever intended to create such a special privilege in favor of corporations. I am further aware of the fact that this court has held that a municipal corporation is not an incorporated company within the meaning of section 4 of article'12 of the Constitution, and that, therefore, where the proceeding is by a municipal corporation against an individual neither the corporation nor the individual is entitled to a trial by jury, thus again discriminating in favor of mere business corporations even as against a political subdivision of the State. [Kansas City v. Vineyard, 128 Mo. 75; Kansas City v. Smart, 128 Mo. 272.]

In my judgment section 4 of article 12 of the Constitution should be construed in connection with section 21 of article 2 of the Constitution, and reading the whole of section 4 of article 12 together, the correct interpretation thereof is, that where the proceeding by eminent domain contemplates condemning the property and franchises of an incorporated company a right of trial by jury is guaranteed, but that where the proceeding is simply to condemn property of an incorporated company then the damages may be assessed either by a board of freeholders or by a jury, as is provided in section 21 of article 2 may be done where the property of an individual is to be taken. Such a construction as this creates no special privilege in ordinary cases in favor of corporations as against individuals and does not produce the incongruity in the law that the decisions hereinbefore referred to have created.

Section 4 of article 12 of the Constitution is as follows: “The exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right. ’ ’

Section 21 of article 2 of the Constitution is as follows: “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken.”

Prior to the adoption of the Constitution of 1875 the only provision of the Constitution in reference to this subject was contained in section 16 of article 1 of the Constitution of 1865, and is as follows: “That no private property ought to he taken or applied to public ¡use without just compensation.” All that is now contained in section 21, following the first sentence thereof, first appeared in the Constitution of 1875. The whole of section 4 of article 12 of the Constitution was a new provision in the Constitution of 1875.

In Railroad v. Miller, 106 Mo. l. c. 460-61, Black, J., in considering those two sections of the Constitution and in reaching the conclusion that under section 21 of article 2 the property of a citizen might be taken and that compensation could he ascertained hy a jury or a board of freeholders, hut that the value of the property of any incorporated company must, under section 4 of' article 12, he ascertained hy a jury, said: 1 ‘ The first of these sections, found in the Bill of Rights, does not guarantee to the property-owner a common law jury trial in the assessment of damages. It simply requires the damages to be assessed either hy a jury or hy a board of not less than three freeholders. But that section is general in its terms and must he taken in connection with section 4 of article 12, which is specific and must control as to all eases coming within its terms. The last-named section, it has been insisted on some occasions, guarantees a jury trial in those cases only where it is sought to condemn the property or franchises of an incorporated company; hut the language quoted does not admit of so narrow and limited construction. A jury is guaranteed in all claims for compensation for property taken in the exercise of the right of eminent domain when any incorporated company shall he interested, either for or against the exercise of such right. It, therefore, matters not whether the incorporated company is interested either for or against the exercise of this right; for in either case either party to the suit is entitled to a jury trial at some stage of the proceedings. This is the plain language of the section, and it is useless to speculate upon the reasons for its insertion in our present Constitution. In those cases where an incorporated company seeks to condemn the property of an individual, and in those cases where it is sought to condemn the property or franchises of a corporation for public use, either party to the proceeding is entitled to a jury to assess the damages. That the statute may, even in such cases, provide for the assessment of the damages by commissioners in the first instance is not questioned or doubted; but either party to the suit is entitled to a jury as a matter of right at some stage of the proceedings. ’ ’

Thus, it will be observed that, without undertaking to ascertain any reason for discriminating in favor of corporations and against individuals, and by changing the conjunctive conjunction “and” in section 4 of article 12 to the disjunctive conjunction “or,” the conclusion was reached which created a special privilege in favor of corporations that is not enjoyed by individuals in condemnation cases. This is the only extended discussion of this question in any of the adjudicated cases — all the other cases simply announce. the conclusion that section 4 of article 12 guarantees to a corporation the right of trial by a jury in condemnation cases without discussing or attempting to discuss the question at all.

The underlying error in Railroad v. Miller, supra, is in changing the conjunctive conjunction “and” to the disjunctive conjunction “or,” and thereby destroying the true meaning of section 4 of article 12. The conclusion reached in that case could only have been reached by this process. When section 4 of article 12 is read in its entirety, its meaning, to my mind, is perfectly plain. It provides: ‘‘ The exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals,” etc. Thus it will appear that the framers of the Constitution were providing for the appropriation by eminent domain of the property and franchises of incorporated companies. In other words, the lawmakers never intended that the franchises of corporations should not be subject to condemnation the same as property of an individual. Undoubtedly the trend of modern authority is that franchises of a corporation constitute property within the meaning of the law, and under this construction it may be that the franchises as well as the property of a corporation would have been subject to condemnation without such an express reservation of power as that contained in the section quoted, and that the provisions of section 21 of article 2 would have been all that was necessary to accomplish that purpose without section 4 of article 12. But there was a time in the law when there was a doubt as to whether franchises of an incorporation could be taken by condemnation, and many respectable authorities held that the franchise of a corporation, that is, its right to exist, constituted a contract between the corporation and the State, which under the Federal Constitution, could not be impaired by any action of the State, whether that action be an attempted repeal of the franchise or by means of condemnation proceedings. It may have been, and probably was, owing to such considerations that the framers of the Constitution of 1875 took the precaution to insert section 4 in article 12. In other words, my construction of section 4 of article 12 is that it is only in cases where the condemnation proceeding contemplates the'taking away of all the property and franchises of an incorporated company that the right of trial by jury is guaranteed. A proceeding with such an object in view might be had either by the State against the corporation or by another corporation, having power of eminent domain, seeking to exercise that right against another corporation, though there are eases which hold that in the latter event one corporation cannot by condemnation destroy the existence or take away the whole of the property and franchises of a previous existing corporation.

I have taken the pains to examine the constitutions of our sister states upon these questions, and I find that provisions similar to section 4 of article 12 down to that part of that section which speaks of the right of trial by jury, in other words, provisions reserving the right to take the property and franchises of incorporated companies the same as that of individuals, are contained in the constitutions of Alabama (art. 1, sec. 24), Idaho (art. 11, sec 8), Kentucky (sec. 195), Nebraska (art. 11, sec. 6), Mississippi (sec. 190), North Dakota (art. 7, sec. 134), Pennsylvania (art. 16, sec. 3), West Virginia (art. 11, sec. 12), and Wyoming (art. 10, sec. 9). In all of those states the right of trial by jury in all condemnation cases, whether the property taken is that of an incorporated company or that of an individual, is guaranteed by other provisions of the constitution, similar to our section 21 of article 2, except so far as that section of our Constitution allows the compensation to be ascertained by a board of freeholders. And this latter provision of our Constitution I have been unable to find in the constitution of any other State in the Union. Thus in all of these states no such discrimination or creation of special privileges in favor of an incorporated company and against a private individual exists. Such a condition exists only in the State of Missouri, and exists only by reason of what I believe to be the erroneous construction that this court has heretofore placed upon section 4 of article 12, in the doing of which it was said: ‘‘ It is useless to speculate upon the reasons for its insertion in our present Constitution.” A little research and a little more careful reflection would have shown that the reasons for the insertion of that provision in our Constitution forbade the construction which this court placed upon that section, and that the creation of the special privileges by such a construction was directly contrary to every principle of government that has ever been an-' nonneed in any of the constitutions of our State.

Section 4 of article 12 of our Constitution was borrowed almost literally from section 14 of article 11 of the Constitution of Illinois of 1870. The Illinois Constitution on this subject reads as follows: “The exercise of the power, and the right of eminent domain, shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity the same as of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.” Thus, it will be observed that section 14 of article 11 of the Constitution of Illinois is almost identical with section 4 of article 12 of our Constitution, the principal difference being that in our Constitution the right of eminent domain is reserved as to corporations that may be hereafter organized, whereas under the Illinois Constitution the literal reading of section 14 seems to confine that right to incorporated companies already organized.

The Constitution of Illinois, section 13 of article 2, is as follows: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of land taken for railroad tracks without consent of the owners thereof shall remain in such owners, subject to the use for which it was taken.”

Thus it is apparent that our section 21 of article 2 was also taken from section 13 of article 2 of the Illinois Constitution, the only change being that under our Constitution the compensation was authorized to be ascertained either by’ a jury or a board of freeholders as the law might prescribe. Under the Illinois Constitution a jury trial is guaranteed in every case, whether the property taken be that of an incorporated company or that of a private citizen, and thus no favored class is built up under the laws of that State. The framers of our Constitution, however, saw fit, in section 21 of article 2, to authorize the compensation to be ascertained either by a jury or a board of freeholders as the law might prescribe. Were it not for the presence of section 4 of article 12 in our Constitution, the provisions of section 21 of article 2 of the Constitution would be adequate and amply sufficient to cover cases of condemnation of property whether it was owned by an incorporated company or by a private citizen, and no discrimination in favor of either would be created. The framers of our Constitution after thus making the changes noted in section 21 of article 2, and allowing the compensation to be assessed by the freeholders as well as by a jury, then borrowed from the Illinois Constitution section 4 of article 12 in reference to condemnation proceedings against incorporated companies or by such companies, and included the right of trial by jury whenever an incorporated company was interested either for or against the proceeding. In other words, copied the Illinois Constitution without noticing, if the construction heretofore put upon it by this court is the correct construction, that in so doing they were creating this discrimination in favor of corporations and against individuals.

In other words, under the Illinois Constitution which does not provide, for the ascertainment of the compensation by a board of freeholders in any case but requires the trial by jury in every casé, there was no such privilege created by- section 14 of article 11 of their Constitution as results from the construction this court- has placed upon section 4 of article 12 and section 21 of article 2 of our Constitution.

Either, therefore, we must say that the framers of our Constitution knowingly intended thus to create a special privilege in favor of corporations that was denied to private individuals, or else the construction I place on section 4 of article 12 must have been the construction intended by the lawmakers, that is, that the right of trial by jury is only guaranteed to. corporations where the purpose of a condemnation proceeding is to take away the property and franchises of the corporation.

In my judgment to say that the framers of our Constitution ever intended to create such a special privilege in favor of incorporated companies is an unjust reflection upon the intelligence of that learned body, composed, as it was, of some of the ablest lawyers in this State, and is in absolute conflict with every other provision of the Constitution, and with the whole spirit, genius and policy of that document. The idea conveyed in the first sentence of section 4 of article 12 is that neither the property nor the franchise of an incorporated company should be beyond the reach of the power of the State by eminent domain, but that all the property and franchises of an incorporated company should be subject to condemnation, “the same as that of individuals.” No intimation is contained therein of any intention to create a special privilege in favor of corporations, but on the contrary the plain purpose of the lawmakers was to place the property and franchises of an incorporated company upon the same level and plane as that of an individual. This was the dominant idea in the minds of the lawmakers, and to say that after having expressed the dominant idea they were so awkward in the use of language and so bungling in the expression of intention as in the next breath to create- a special privilege in favor of incorporated companies that was not enjoyed by or guaranteed to the individual would be to do grievous wrong to the intelligence and honesty of purpose of the framers of our Constitution.

Neither will it do to say that the framers of our Constitution in enacting section 4 of article 12, by providing for the trial by jury therein guaranteed, overlooked the fact that they had so changed section 21 of article 2 of our Constitution from the manner in which it was written in the Constitution of Illinois, from which ours was borrowed, as to permit a board of freeholders, as well as a jury, to ascertain the compensation to be paid for the condemnation of property; and thereby to have intended to create the special privilege herein referred to in Missouri, when no such special privilege can be found in the Constitution or laws either of Illinois, from which these provisions of the Constitution were borrowed, or in any other state in the Union.

One of two things is absolutely true — either the framiers of the Constitution of this State knowingly and purposely created that special privilege in favor of corporations, or else the construction heretofore placed by this court on section 4 of article 12 is not the correct construction nor the meaning of that section that the framers of the Constitution intended to impart. I have no difficulty in reaching the conclusion that the latter is true, for I am unwilling to believe that the former could by any possibility of means be true.

By construing section 4 of article 12 to apply only in cases where the object of the proceeding was to take away all property and franchises of the incorporated company, in which case a trial by jury is guaranteed, and that in all other cases where simply some piece of property belonging to an incorporated company is to be condemned the compensation may be ascertained by either a jury or a board of freeholders as the law directs, pursuant to section 21 of article 2, no such incongruity as that herein pointed out will exist and no such special privilege will be conferred. That this construction is possible is beyond debate or cavil, and that a construction which does not produce such a result is the construction which ought to be adopted is equally beyond question.

Under the construction heretofore placed by this court on section 4 of article 12, if two tracts of land adjoining each other are to be taken for a public purpose, and one of those tracts is owned by an incorporated company, and the other is owned by a private citizen, and both are used for identically the same purposes, for instance, both are used for ordinary business purposes, the unjust spectacle is presented by the laws of this State, as heretofore interpreted, of guaranteeing to the mere business corporation a trial by jury when its property is to be taken and of denying the right of trial by jury to the individual, and permitting the property of the individual to be taken and the compensation to be assessed by a board of freeholders. The human mind is incapable of conjecturing any reason that could have actuated the framers of the Constitution in providing for such inequality before the law. In my judgment they did not do so and never intended to be so understood.

I fully understand and appreciate the importance of the principle underlying the doctrine of stare decisis, but there is another principle of law which is of infinitely more importance than the doctrine of stare decisis, which is the doctrine that all men are equal before the law, and that it is contrary to the spirit and genius of our institutions that special privileges shall be conferred upon any class of the community. In the eye of the law an incorporated company stands upon no better footing than an American citizen. To create a special privilege in its favor is, in my judgment, as violative of our principles and theory of government, as to say that all men with certain colored hair or certain colored eyes or of certain stature should be entitled, when their property shall be taken, to the benefit of trial by jury, but that all other persons in the community who do not answer to that description might have their property taken either by the verdict of a jury or a hoard of freeholders as the law might direct. Unless the construction I place upon these provisions of the Constitution is the correct interpretation of the meaning of the lawmakers, it behooves-the people of the Stateby a constitutional convention or by amendment to the Constitution to change the phraseology of section 4 of article 12 so as' to prevent the possibility by construction of the creation of such a condition and of such special privileges as are hereinbefore pointed out. Where a law or provision of a Constitution is susceptible of two constructions, one of which harmonizes with the spirit and purposes and genius of the whole body of the law and the policy of the government, and the other creates special privileges or a favored class, the former construction should always be adopted. Such is the case here.' No reason has been given or attempted to be given for the construction heretofore placed upon section 4 of article 12, and none can be given. It has only been said, “Ita scripta lex.” I think the law has not been so written, but that it has simply been misconstrued.

For the foregoing reasons I am compelled to dissent from the conclusions announced in the first paragraph of the majority opinion in this case.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    KALBFELL et al. v. WOOD et al.
    In Banc,
    February 26, 1906.
    . 1. PROHIBITION. The writ of prohibition is granted only to prevent usurpation of judicial power.
    2. -r! Election Officers: Primary.. The election commissioners of St. Louis do not exercise judicial powers in selecting judges, clerks and challengers for a primary election from lists submitted to them by a managing committee of the party holding the same. The board of election commissioners is an administrative body, with specific statutory powers and duties.
    3. --: -: -: Rival Committees.. The court will not, by prohibition, undertake to determine which of two factions is the committee of a political party, or direct the flection from a list of party members proposed by one faction and ignore those proposed by the other.
    4. -: -: Coupled With Court. Where prohibition is entertained to prevent the election commissioners from opening ballot boxes, the jurisdiction of the court is obtained by the fact that a court is joined as defendant.
    5. -: Moot Cases: Elections. Courts do not sit for the purpose of determining abstract and speculative questions of law, or laying down rules for the future conduct of individuals in their business, but are confined in their judicial action to real controversies wherein the legal rights of parties are necessarily involved and can be conclusively determined. Where • the provisional writ against election commissioners, directing them to show cause why they should not recognize certain named persons as the committee of a party, and select the judges and clerks for a primary election from lists furnished by them, was made returnable after the primary was held, there is nothing upon which the judgment could operate even if the court should determine whether or not those persons constituted the true committee.
    Prohibition.
    Proceeding dismissed,

      John A. Gilliam and Thomas T. Fauntleroy for plaintiffs; Nathan Frank of counsel.
    (1) The list of judges-, clerks and challengers having been filed August 30,1902, it became an accomplished fact, and no alleged removal on September 1, 1902, of part of the members of the- committee could invalidate the action of August 30th. Burton v. Patton, 47 N. C. 124; People v. Collins, 7 Johns 549; Cotton v. U. S., 29 Ct. Cl. 207; Allen v. Blunt, 3 Story 742; Gear v. Grosvenor, 6 Fish Pat. Cas. 514; In re Ah Lee, 6 Sawyer 410; State v. Forrest, 13 Wash. 268; State v. Jacobs, 17 Ohio 143; Com. of Trenton v. McDaniel, 52 N. C. 107; Swindell v. Warder, 52 N. C. 575; Attorney-General v. Parsell, 99 Mich. 381; Perkins v. Perkins, 24 N. J. L. 409; Venable v. Curd, 39 Tenn. 582; Morton v. Lee, 28 Kan. 286; State v. Carroll, 38 Conn. 449; Ex parte Snyder, 64 Mo. 58; Powers v. Braley, 41 Mo. App. 562. (2) The assumption by the election commissioners of a claim of power to act between the Kalb-fell committee and the Blake committee, and the clear legal right of the- Kalbfell committee gave plaintiffs the right to a writ of prohibition. Young v. Beckham, 72 S. W. 1092; Brown v. Republican County Executive Committee, 68 S. W. 622; State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Ross, 122 Mo. 477; State ex rel. v. Withrow, 133 Mo. 523; State e-x inf. v. Talty, 166 Mo. 529.

      Chas. W. Bates and Wm. F. Woerner for defendants.
    (1) The law (the Primary Election Law of 1901) required the primary election to be held September 16, 1902, as called by the Republican party, and it was then held. This was a month before the court convened so that no case was presented wherein any relief could be granted even if plaintiff were entitled to any. The case was and is a mere moot case and presents mere abstract questions. Under such circumstances courts refuse to entertain jurisdiction or proceed to judgment. State ex rel. Rodman, 43 Mo. 260; State ex rel. v. Finley, 74 Mo. App. 216; State ex rel. v. Police Commissioners, 80 Mo. App. 25; State ex rel. v. Westport, 135 Mo. 133; State ex rel. v. Stewart, 115 Mo. 244; Mills v. Green, 159 U. S. 654; Thomas v. Musical, etc., Union (N. Y.), 8 L. R. A. 178. (2) The members of the Blake committee are necessary parties to this proceeding, and no relief can be granted plaintiffs which injuriously affects the rights claimed by said members unless they are parties. No judgment rendered in a case in which they are not parties would be binding on them. If the rights of plaintiffs are sufficient upon which to maintain this action, surely the rights of the members of the Blake faction or committee are sufficient to require notice to them and opportunity to be heard before their rights are forever taken away, and before they are prevented from performing their official duties to their party. (3) Whether the Blake committee was the Republican City Central Committee of the city of St. Louis is a political question, conclusively determined by the Republican party. The court has no jurisdiction to review the action of that party. State ex rel. v. Lesueur, 103 Mo. 253; State ex rel. v. Crittenden, 164 Mo. 237; Davis v. Hambrick (Ky.), 51 L. R. A. 671; Phelps v. Piper (Neb.), 33 L. R. A. 55; McKane v. Adams, 123 N. Y. 609; Matter of Fairchild, 151 N. Y. 359; Kearns v. Hawley (Penn.), 42 L. R. A. 235; Moody v. Trimble (Ky.), 50 L. R. A. 810; Stephenson v. Board of Election Commissioners (Mich.), 42 L. R. A. 214; White v. Sanderson (Minn.),42 L. R. A. 231; Phillips v. Gallaher (Minn.), 42 L. R. A. 222. So far as we have been able to ascertain, our own courts have always accepted as conclusive on them and on the election officials the action of the political parties when taken in accordance with party usages, customs and practices'. (4) Where the law vests in officials or tribunals, whether executive, legislative or judicial, a discretion, or requires them to exercise judgment, the courts have no jurisdiction to exercise that judgment for them or to control their judgment within the sphere of action marked out for them by the law. The conduct of elections is an executive or administrative function, and the courts cannot undertake it. Supervisors of Elec., 114 Mass. 247; State ex rel. v. Lesueur, 103 Mo. 253; State ex rel. v. Crittenden, 164 Mo. 237. (5) Judicial power is vested by the Constitution of Missouri in courts and not in judges sitting in chambers in vacation. Const., art 6, sec. 1. A judge cannot finally adjudicate the merits of a case. In re Cleveland, 51 N. J. L. 311. So much of Judge Robinson’s order as required the board of election commissioners to select names of judges, clerks and challengers for the Republican primary election to he held September 16,1902, from tlie list of names filed by the Kalbfell committee and prohibited it from selecting the same from the list filed by the Blake committee was a final adjudication of the case, particularly as the court did not convene and could not adjudge the matter until a month after the primary election was required by law to be held. Weaver v. Toney (Ky.), 51 L. R. A. 106. The extent of the power of a judge is to stay action and to preserve the status quo until the court can pass on the matter, and a judge’s order can have no further effect except to serve as process to bring parties into court. State ex rel. v. Rombauer, 104 Mo. 629. In the case at bar the order did not stay the action of the board of election commissioners in the matter of holding the Republican primary election of September 16,1902, until the court could pass upon the matter, but commanded the board to proceed therewith, and in so doing directed what its judgment should be upon the facts and how it should act in finally completing the matter a month before the case could by any possibility get before the court. (6) Prohibition is not the proper remedy for correcting erroneous decision or for instructing inferior courts or tribunals or officials’. Railroad v. Smith, 154 Mo. 316. Prohibition will not lie unless the inferior court tribunal or official to whom it is directed has no jurisdiction to pass upon the matter before it, or unless it has gone beyond its jurisdiction in the determination it makes. State ex rel. v, With-row, 141 Mo. 80; State ex rel. v. Withrow, 108 Mo. 8; Railroad v. Wear, 135 Mo. 230. Prohibition lies only where judicial functions are to be performed. State ex rel. v. Clark, 41 Mo. 49; State ex rel. v. Elkin, 130 Mo. 90. In prohibition the court will confine itself to questions of jurisdiction and cannot go into the merits. State ex rel. v. Henderson, 164 Mo. 360; State ex rel. v. Moehlenkamp, 133 Mo. 137; Wand v. Ryan, 166 Mo. 649. Election commissioners act within their jurisdiction in determining which of two committees is the controlling one when they proceed to select judges, clerks and challengers for primary elections. Such commissioners merely iu this case find as a fact which committee the Republican party establishes or creates. State ex rel. v. Lesueur, 103 Mo. 262; State ex rel. v. Higgins, 76 Mo. App. 327; State ex rel. v. Crittenden, 164 Mo. 237.

      John A. Güliam and Thomas T. Fauntleroy for plaintiffs in reply; Nathan Frank of counsel.
    Prohibition is available to check an illegal use of power by boards, etc., exercising quasi-judicial functions. State ex rel. v. Elkin, 130 Mo. 90; State v. Young, 29 Minn. 523; Brown v. Board (W. Ya.), 32 S. E. 168; Day v. Board, 102 Mass. 310; People v. Amsterdam, 90 Hun 495; School Dist. v. Burris, 84 Mo. App. 654.
   PER CURIAM

— On the 9th day of September, 1902, the plaintiffs, asserting themselves to be members of the Republican City Central Committee of the city of St. Louis, presented their petition to one of the judges of this court in vacation, for a writ of prohibition, to be directed to the members of the board of election commissioners of the city of St. Lonis. The petition in substance stated that the plaintiffs were, on the 30th of August, 1902, and for two years prior thereto, together with other persons named in the petition, duly and legally constituted Republican City Central Committee of the city of St. Louis, which said committee is composed of twenty-eight members, one membér from each ward of said city; that the city of St. Louis is a municipal corporation of over 300,000’ inhabitants, and was such municipal corporation at all the time therein mentioned, and primary elections of political parties therein are governed by the act of the General Assembly of March 13, 1901, known as the “Primary Election Law.” The petition then alleged that there was in the city of St. Louis a political party known as the “Republican party,” and that said political party had more than forty per cent of the qualified voters of said State, who are qualified to vote at elections held therein. It was then alleged that under the rules and customs of the Republican party, the Republican City Central Committee had existed for many years as the governing body of said political party in said city to call and conduct primary elections in said city, and no other organization had any authority to call or conduct such primary elections in said city for such party. That Louis P. Aloe, James McCaffery and John M. Wood, constituted the hoard of election commissioners for said city, duly appointed and qualified under the provisions of said act of March 13, 1901. It is then alleged that on the 13th of August, 1902, the said Republican City Central Committee, at a meeting of its members, legally called and held, ordered a primary election of the Republican party of St. Louis under the provisions of such primary law, to nominate by direct vote, candidates for the various offices to be voted for at the general election to he held on November 4, 1902, and filed said call with the said hoard of election commissioners, on August 16, 1902. It was then alleged that the said Republican City Central Committee, composed of the members named in said petition, filed with said l)oard on the 30th of August, 1902, a. list of the names of legal and Qualified voters members of the Republican party, from which the said election commissioners should select judges, clerks and challengers of elections for said primary election as authorized by the said act of the General Assembly approved March 13, 1901; that after said call had been made for said primary election, and the list of names from which to select judges, clerks and challengers, had been filed with the board of election commissioners, William H. Rudolph and thirteen other members of said Republican City Central Committee, together with William H. Blake, William H. Hahn and six others named therein, conspired to thwart the will and desire of said Republican party in said city, and declared themselves members of the said city central committee, and on September 2, 1902, filed with said board of election commissioners another list of names, from which-they demanded that the said board of election commissioners should select judges, clerks and challengers of election for said primary election to be held on the 16th of September, 1902; that said board of election commissioners claimed that it had jurisdiction to determine as to which of said bodies, that of which plaintiffs composed the majority or that of William H. Rudolph and the other associates with him composed a majority of the Republican City Central Committee, and from which of said lists it would select judges, clerks and challengers, and that unless prevented by a writ of prohibition, the said board of election commissioners would appoint from the list of names of judges, clerks and challengers submitted by William H. Rudolph and his associates, on or about September 2, 1902, judges, clerks and challengers to serve and act at the primary election to be held on said 16th day of September, 1902; that plaintiffs were remediless in the premises by or through ordinary processes or proceedings by law to prevent the said board of election commissioners from exceeding their jurisdiction in claiming the power and authority to pass upon the lists filed for judges, clerks and challengers, and that in assuming to adjudicate between the plaintiffs and said Rudolph and his associates, as to which of said bodies constituted the Republican City Central Committee, the said election eommisioners were encroaching upon the jurisdiction of the circuit court of the city of St. Louis and the Supreme Court of Missouri, and, therefore, the plaintiffs prayed a writ of prohibition directed against said election commissioners to prohibit them from assuming jurisdiction to determine whether plaintiffs or said Rudolph and his associates were members of the Republican City Central Committee, and to prohibit them from appointing any judges, clerks or challengers for the primary election to be held by the Republican party in the city of St. Louis from the lists filed by said Rudolph and his associates and to prevent and prohibit them from appointing said judges and clerks from any lists save that filed by the plaintiffs on August 30,1902.

Upon the presentation of this petition to Honorable Waltour M. Robinson, one of the judges of this court, on the 9th day of September, 1902, a rule to show cause was granted by the said judge, directed to the said election commissioners to appear before him at chambers in Jefferson City, Missouri, on September 12,1902, why the provisional writ of prohibition should not issue against them returnable to the Supreme Court of the State of Missouri, in Bane, on the 14th day of October, 1902, and show cause why a final judgment in prohibition should not be entered prohibiting said election commissioners from in any manner recognizing said Rudolph and his associates as members of the Republican City Central Committee of St. Louis, and prohibiting them from appointing said judges, clerks and challengers from any lists of names save that filed by the plaintiffs with them on August 30, 1902. The provisional order was served on the election commissioners on September 9, 1902.

To that order the election commissioners on the 12th of September, 1902, made a return in which, after alleging the filing of the two lists by the plaintiff and his associates on the one hand and Rudolph and his associates on the other hand, the said hoard of election commissioners stated that up to that time there had. been no occasion for the said hoard to select the names of judges, clerks and challengers for said primary election, and that said hoard had not yet undertaken to determine what names they would select for judges, clerks and challengers for said primary election; that said hoard had not sufficient knowledge or information, up to that time, upon which to form a judgment as to whether the plaintiffs and their associates or the said Rudolph and his associates constituted the governing and controlling committee of the Republican party of the city of St. Louis, and that said matters were questions of facts to he determined by said hoard when it should undertake to select judges, clerks and challengers in said primary election; that in due time said election commissioners would take up said matter and make due inquiry, and would honestly and faithfully decide said questions upon the evidence before them, and respectfully suggested that neither the Supreme Court nor any judge thereof had jurisdiction to issue the writ of prohibition prayed for by the plaintiffs and thereupon on the said 12th day of September, 1902, Honorable Waltour M. Robinson, one of the judges of the Supreme Court of Missouri, in vacation made an order over his hand and official signature, wherein he commanded the said election commissioners of the city of St. Louis to appear before the Supreme Court of Missouri, in Banc, on Tuesday, the 14th day of October, 1902, to show cause why a final judgment in prohibition should not he entered prohibiting the said board of election commissioners and each of them from recognizing in any manner said Rudolph and his associates as members of the Republican City Central Committee of the city of St. Louis, and from recognizing the lists of judges, clerks and challengers submitted by said Rudolph and his associates on September 2, 1902, and from appointing any judges, clerks and challengers for the said primary election to be held on the 16th day of September, 1902, by the Republican party in the city of St. Louis, from the list filed by said Rudolph and Ms associates, and from appointing said judges, clerks and challengers from any list except that filed by the plaintiffs on August 30, 1902, and the said election commissioners were further commanded “to refrain from any act or recognition of the body claiming to be the Republican City Central Committee of St. Louis of which said William H. Rudolph and his associates composed the majority, until further order of this court.”

Afterwards on the 14th day of October, 1902, two of the said election commissioners, Messrs. Wood and McCaffery, filed in this court their return to the preliminary rule issued as aforesaid by Judge Robinson, in which after admitting they were, together with Louis P. Aloe, the board of election commissioners for the city of St. Louis and that St. Louis was a city of over 300,000 inhabitants, and that there was a Republican party in said city duly organized and having a city central committee and duly authorized under the laws of this State to hold a primary election for the nomination of candidates, under the primary election law approved March 13, 1901, and that a call for a'primary election of the Republican party of the city of St. Louis to be held on the 16th of September, had been issued, alleged that as said board of election commissioners, they prepared a notice of said primary election to be held on September 16,1902, and, as required by law, fixed September 12, 1902, as the last day upon which delegates could be filed in their office for-said primary election, and September 15,1902, as the last day upon which the personnel of any delegate conld be changed. They admit that the plaintiff and his associates claiming to be the managing and controlling committee of said Republican party of the city of St. Louis, filed a list of names with said board of election commissioners, from which said board was requested to select judges, clerks and challengers for said primary election; that after-wards dissensions having arisen in the said Republican City Central Committee, the attention of the Republican State Central Committee was called to the said dissensions and said State Central Committee took cognizance of said charges and after notice to the plaintiffs and each of them, on September 1,1902, removed plaintiffs from their respective positions as members of the Republican City Central Committee, and directed the vacancies to be filled by the remaining members of said Republican City Central Committee; that said committe did organize and elected William H. Blake as chairman and William H. Hahn as secretary, and the said Republican City Central Committee thus recognized rescinded the resolution asking the appointment from the lists of judges and clerks furnished . by the plaintiff and his associates of judges and clerks for said primary election and on the 2nd of September, 1902, filed another list of names from which said board was requested to select judges, clerks and challengers for said primary election, and that said election commissioners felt that it was their duty, and they were bound by the action of the Republican State Central Committee, to recognize the said Rudolph and his associates as-the governing and controlling committee of the Republican party of St. Louis, and thereupon proceeded to select judges, clerks and challengers from the list filed by said Rudolph and his associates, and that the said election commissioners were bound by the action of the said Republican State Central Committee upon this question, which was a political and not a judicial one, and it was respectfully submitted to this court that it had no jurisdiction if the Republican State Central Committee had determined which of said rival, committees claiming to be the controlling committee is such ¡committee, to review said action.

To this return of the election commissioners, a reply was filed by the plaintiffs, in which they challenge the right of the State Central Committee to hear the ■charges against the plaintiffs and remove them from the City Central Committee of the Republican party of St. Louis.

At the request of the parties a special commissioner was appointed on the 24th day of December, 1902, by this court to take and hear the testimony and report the same to this court. Afterwards, in January, 1903, the said commissioner filed a transcript of the evidence taken before him, and in February, 1903, the defendants Wood and McCaffery filed their exceptions to the report of the commissioner.

Thereafter at the request of counsel and by permission of this court, the respective counsel for the plaintiffs and defendants herein filed their briefs in this cause; that of the plaintiffs in reply being filed October 26, 1903, and the cause was argued and submitted October 27, 1903, more than a year after said primary election had been held, and the general election of 1902 had passed into history.

I. From the foregoing statement it is apparent now and was when this cause was argued and submitted that any judgment this court could render could not possibly afford the plaintiffs any relief because the primary election had been held more than a year before the issues were made up in this court, and the cause submitted.

At that time and ever since, our dockets have been crowded with causes in which personal and property rights were involved and which could be and have been affected by our judgments, and'hence we have permitted. these more important and living questions to occupy our time. It is deemed proper, however, to dispose of this matter' and remove it from the docket.

The writ of prohibition under our laws is granted only to prevent usurpation of judicial power.

This court in State ex rel. v. County Court, 41 Mo. 44, held that the writ would not lie to a county court to correct its action when performing a mere administrative function in contradiction to the exercise of its judicial power, and it was held that in the removal of the public buildings of a county the county court acts in an administrative capacity as agent of the county, and prohibition was not the remedy.

In Casey v. Thompson, 42 Mo. 133, it was ruled that a writ of prohibition did not lie to restrain the State Auditor from issuing a distress warrant and the sheriff from executing the same because the duties of the State Auditor were executive and ministerial and not judicial in their nature, although it was earnestly argued that when the Auditor makes a settlement between the State and a collector of the revenue, he exercises judicial functions and in effect pronounces a judgment in striking the balance, upon which he could issue his distress warrant. [Hockaday v. Newsom, 48 Mo. 196.]

Has the General Assembly of this State by the “Primary Election Law” of 1901 conferred judicial powers upon the board of election commissioners of the city of St. Louis, within the meaning of the law as to the function of a writ of prohibition, by the provisions in section 15 of said act: ‘ The judges, clerks and challengers who serve at said primary shall be selected by the election commissioners from lists submitted by the managing committee of the party holding'the samel”

We think it is clear by all the analogies of the law and by the weight of decided cases, that such board of election commissioners is an administrative body with specific statutory powers and duties which in no manner trench upon that judicial power which is by the Constitution of this State vested in the courts.

In Thomson v. Tracy, 60 N. Y. l. c. 37, the claim was made that because the defendants were enjoined by a writ of prohibition from acting as executor and executrix in a proceeding against the Surrogate Court and the defendants, they had no right to appeal. The Court of Appeals very aptly defined the scope of a writ of prohibition, and concluded by saying: “A writ of prohibition is to prevent the exercise of a tribunal possessing judicial powers of jurisdiction over matters not within its cognizance, or exceeding its jurisdiction in matters of which it has cognizance. It will not lie to restrain a ministerial act. [Ex parte Braudlacht, 2 Hill 367; People v. Supervisors, 1 Hill 195.]”

In People v. Election Commissioners, 54 Cal. 404, the question here raised was squarely presented and as firmly decided, that a board of election commissioners was not a judicial body, and their action not judicial and was not subject to examination or review by the Supreme Court by a writ of prohibition.

See, also, Spring Valley Water Works v. City of San Francisco, 52 Cal. 111; Maurer v. Mitchell, 53 Cal. 291; State ex rel. Kellogg v. Gary, 33 Wis. 93.

In this last-cited case, an alternative writ of prohibition was quashed after return made, and issue of fact joined, it appearing it was improvidently granted.

The practice has obtained in this court of uniting the election commissioners with the judge of the court in prohibition cases to prevent the opening of the ballot boxes, but it is clear that the jurisdiction in those cases depends upon the proceeding against the court.

A most instructive case is that of Home Ins. Co. v. Flint, 13 Minn. 244. In the course of the opinion the court said: “The compliance with this law is the act threatened and sought to be restrained. If the word is used in the ordinary and legal acceptance, clearly there is nothing judicial in the making of the examination and certificate required. The word ‘judicial’ is defined; (1) Pertaining to courts of justice; as, judicial powers. (2) Practiced in the distribution of justice, as judicial proceedings. (3) Proceeding from a court of justice; as, a judicial determination.....A judicial investigation proceeds after notice, and eventuates in a judgment, wbicb is the final determination of tbe rights of the parties, unless reversed by an appellate tribunal. The necessity of notice in the inception, and the conclusive character of the determination, are perhaps as good a test as any other, as to what proceedings are judicial. In this case it cannot be pretended that notice is required, or that the determination, or certificate, would be conclusive in collateral proceedings. ’ ’

In our opinion, the facts stated in the petition did not authorize the issuance of the provisional order in prohibition and the order was improvidently granted for the reason that the board of election commissioners were in no sense a judicial body and the action sought to be restrained was not a judicial action, and it should now, as was done in State ex rel. Kellogg v. Gary, be quashed. Whether Judge Robinson might have reviewed the action of the election commissioners by mandamus, as provided by section 23 of the act of March 13, 1901, we are not called upon to decide, but we are clear that prohibition did not lie.

II. But there is another ground upon which we think this cause should be dismissed, and it is this: Courts do not sit for the purpose of determining speculative and abstract questions of law, or laying down rules for the future conduct of individuals in their business, but are confined in their judicial action to real controversies wherein the legal rights of parties are necessarily involved and can be conclusively determined. [Thomas v. Musical Mutual Protective Union, 8 L. R. A. 178; Bigelow v. Hartford Bridge Co., 14 Conn. 565.]

In Mills v. Green, 159 U. S. 651, a motion was made in the Supreme Court of the United States to dismiss the appeal on the ground “that there is now no actual controversy involving real and substantial rights between the parties to the record, and no subject-matter upon which the judgment of this court can operate,” and it was sustained upon that ground without considering any other question appearing on the record or discussed by counsel. In that case the whole object of the bill was to secure a right to vote at the election to be held, as the bill alleged, on the third of August, 1895, of delegates to the constitutional convention of South Carolina. Before the appeal was taken that date had passed, and before entry of the appeal in the Supreme Court, the convention had assembled pursuant to the statute by which the convention had been called. The court held that it would take judicial notice of the election of the delegates and the assembling of the convention, as public matters of history, without formal proof. Said the court: ‘ ‘ The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot effect the matter in issue in the case before it. It necessarily follows, that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to' a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence. [Lord v. Veazie, 8 How. 251; California v. Railroad, 149 U. S. 308.] ”

Applying the foregoing principles to the facts of this case, it is and has been apparent since the argument of this cause, that the primary for which plaintiffs claimed the right to name the judges, clerks and challengers, had been held a month before the provisional order in prohibition was returnable to this court. No judgment of this court, if it had jurisdiction by prohibition to so direct, could have availed to have the judges, clerks and challengers named by plaintiffs, inducted into office in time to have held such primary. When this court met on the 14th of October, 1902, the day on which said provisional order was returnable, the primary had been held and the candidates nominated thereat had been certified for their appearance on the ballots. Under the law of this State, there was, not sufficient time to order a new primary and cause the names of the candidates to be certified in time for the November election in 1902. And it is plain no judgment this court could have rendered after the cause was docketed herein, could have given plaintiffs the only relief they asked, to-wit, an injunction against the election commissioners preventing them from recognizing the Blake-Rudolph Committee for the purposes of said primary, which had been held a month before this court convened, nor was it feasible to undo what had been done. It is true that, if a defendant, after notice of the filing of a petition for injunction to restrain 'the building of a house or of a railroad or any other structure, persists in completing the building, the court in which the injunction is pending is not deprived of the authority, whenever in its opinion justice requires it, to deal with the rights of the parties as they stood at the commencement of the suit and compel the defendant to undo what he wrongfully did since that time or answer in damages. [Tucker v. Howard, 128 Mass. 361; Att’y-Gen’l v. Railroad, 4 De G. & Sm. 75; Terhune v. Railroad (9 Stew.), 36 N. J. Eq. 318; Platteville v. Railroad, 43 Wis. 493.]

But obviously this is not that character of case. Here no order or judgment of this court, even if it had jurisdiction in the case, could compel the defendants to undo what had been done and this must have been apparent when the provisional rule was made returnable long after the said primary was to be held, and the nature of the proceeding is such that a judgment for damages cannot be awarded. It is apparent that the provisional rule was improvidently granted, and that there is nothing before us 'but a moot question, and that no opinion or judgment we might render could be of any benefit to the plaintiffs, and accordingly the proceeding is dismissed.

All concur, except Lamm, J., who was not a member of the court when the cause was heard.