author: BOND, J.

text:
    MABEL L. SMITH v. RESERVE LOAN LIFE INSURANCE COMPANY et al., Appellants.
    Division One,
    March 30, 1916.
    1. TENDER: Draft or Order. A tender of bank notes, checks or drafts or orders for the payment of money, if not objected . to for failure to produce legal tender money, is a legal tender in payment of a private debt.
    2. -: -: Implied Waiver. The creditor, if he objects to a payment in bank notes or such things as represent money in the marts of trade and commerce, should put his refusal on that ground, and if he suppresses his objection at the time the offer is made, he is estopped from subsequently making the objection, if his later insistence thereon would in- . flict a loss or damage upon his debtor who in reliance upon his implied waiver failed to produce the kind of money made - legal tender by law.
    3. -: —<i-: -: Submitting Issue to Jury. The facts stated in the opinion authorized the trial court to submit to the jury the issue of implied waiver of a tender of actual money.
    4, -: Evidence: Telegraph Order: Bankable Paper. Testimony that a telegraph money order, tendered by the company’s' agent to an insurance company in payment of a premium note, is bankable paper in the sense that the banks of the town would put it 'to the credit of the holder and permit him to check out the amount thereof, is competent evidence, where the sufficiency of the tender of such order is the issue in the case.
    5. -: Telegraph Money Order. A telegraph money order • drawn by the cashier of the sendee office of the Postal Telegraph-Cable Company upon its treasurer in New York is equally as satisfactory and trustworthy in the payment of debts as bank drafts or individual checks.

      Appeal from Jackson Circuit Court. — Eon. James EL Slover, Judge.

      Affirmed.

      Guilford A. Deitch, Ed. E. Yates and Perry S.. Bader for appellants.
    (1) The Postal Telegraph-Cable Company “was. bound to deliver to appellant the money,” not its check, nor a draft, nor an order on itself. Robinson v. Tel. Co., 24 Ky. L. Rep. 456; Tel. Co. v. Cougar, 84 Ind. 178. (2) The order drawn by “ C. Fred Knight, Money Transfer Agent,” at Indianapolis, directing the “Treasurer of Money Transfer Department Postal Telegraph-Cable Co.” at New York to “pay to the order of Reserve Loan Life Insurance Comphny $595.40,” was not negotiable, was not. a check or a bankable draft, and it is very doubtful if it had any bankable or negotiable quality unless and until accepted by the treasurer in New York, either in his own name or in such way as to bind the telegraph company., (a) It was not negotiable because it was expressly made payable out of a particular fund; “and charge same to account of Money Transfers.” School Township v. Andress, 56 Ind. 163; McCee v. Larramore, 50 Mo. 427; 1 Daniel on Negotiable Instruments (6 Ed.), sec. 50; Richardson v. Carpenter, 46 N. Y. 664; Hoagland v. Erck, 11 Neb. 580; Hannay v. Trust Co., 187 Fed. 686. (b) It was not a bank draft because it was not drawn by one bank upon another bank, (c) It was not a check because not drawn on a bank. 2 Daniel on Negotiable Instruments (6 Ed.), secs. 1566,1568; Batik v. Bank, 10 Wall. (77 ü.' S.) 647; Hawley v. Jette, 10 Ore. 34. (d) It was not a bill of exchange: Because it was not drawn on the general funds of the Postal Telegraph-Cable Company, but against the money in “Money Transfer Department.” Espy v. Bank, 18 Wall. (85 U. S.) 152; Wood’s Byles on Bills & Notes, sec. 1; Daniel on Negotiable Instruments (6 Ed.), secs. 27, 29'. It was not a bill of exchange of the Postal 'Telegraph-Cable Company because it was not signed by Such company or by any person in its name, and does not purport to be drawn by it or for it. It could not have been enforced against said company, if accepted-by defendant, and resisted by said company. 7 Cyc. 549’ (e); Wood’s Byl^s on Bills & Notes, sec. 1; Daniel on Negotiable Instruments (6 Ed.), secs. 27, 29; Bank y. Hooper, 71 Mass. 567; Crum v. Boyd, 9 Ind. 289; Snow y. Goodrich, 14 Me. 235; Stackpole v. Arnold, 11 Mass. 27, 29; Banking Co. v. Van Antwerp, 51 N. Y. Supp. 812; Pentz v. Stanton, 10 Wend. (N. Y.) 271; 1 Am. & Eng. E-ncy. Law (2 Ed.), 1047 ( 5); Bank v. Anderson, 32 Pac. (Cal.) 168; Preman’s Note, 48 Am. St. '919'; McClellan v. Robe, 93 Ind. 298; Bank v. Steel Co., 155 Ind. 581. The order unless accepted by the. Postal Telegraph-Cable Company, or by its treasurer in New York, or at least by “the Treasurer Money Transfer Department Postal Telegraph-Cable Company, 253 Broadway, New York,” could not have been enforced as a legal demand against said telegraph company. The liability of the drawee on a bill begins with its acceptance. Reilly v. Daly, 159 Pa. St. 611; McGinn v. Bank, 131 Pa. St. 364; Bank y. Bank, 69 Ind. 480; Marriner v. Lumber Co., 113 N. C. 52. (3)-“A bill of exchange is not money in any sense, and is not made a legal tender by any statutory enactment. ’ ’ Ins. Co. v. Clark, 41 Ind. App. 351; Goss v. Bowen, 104 Ind. 209; Boyd v. Olvey, 82 Ind. 298'. (4) Even if the transfer order had been received by defendant it would not have been a payment of the note unless at the time it was accepted there was a positive agreement that it was being accepted as full payment and satisfaction of the debt. Appleton v. Kennon, 19 Mo. 637; Howard v. Jones, 33 Mo. 583; Wiles v. Robinson, 80 Mo. 47; Commisky v. McPike, 20 Mo. App. 66; Holland v. Rongey, 168 Mo. 16; Way v. Caddell, 82 Mo. App. 144. And the same is true even though thé telegraph money order be considered a check or draft. Johnson-Brinkman Corns. Co. v. Bank, 116 Mo. 570; Hall & Robinson v. Railroad, '50 Mo. App. 183; Prewitt v. Brown, 101 Mo. App. 259. A payment other than in money necessarily rests upon an independent agreement. Moore v. Renick, 9-5 Mo. App. 643; Rider v. Culp, 68 Mo. App. 531; Ulsch v. Muller, 143 Mass. 379. The giving and accepting of an order for prior indebtedness will not be regarded as payment thereof unless there be an express agreement between the parties to that effect. Farwell & Co. v. Salpaugh, 32 Iowa, 583; Railroad v. Burns, 61 Neb. 794; Estey v. Birnbaum, 9 S. D. 175; Cliver v. Heil„ 95 Wis. 365. (5) If the order signed by “C. Fred Knight, Money Transfer Agent, ’ ’ is considered the obligation of the Postal Telegraph Company, the drawer and drawee were one and the same person, or a bill drawn by the drawer upon himself (if the “Treasurer of Money Transfer Department” can be considered the company); and such an order is in effect the promissory note of the drawer or telegraph company or of Knight, and defendant was entitled to consider it as a promissory note and nothing more. Railroad v. Davis, 20 Ind. 8; Road Co.'v. Branegan, 40 Ind. 362; Board ■of Commissioners v. Day, 19 Ind. 452; Railroad v. Dillon, 7 Ind. 405; Fairchild v. Railroad, 15 N. Y. 340; Haney v. Beet Sugar Co., 1 Dougl. (Mich.) 197; 1 Daniel on Negotiable Instruments (6 Ed.), sec. 424; 1 Parsons on Bills & Notes, p. 63; Randolph v. Parish, 9 Port. (Ala.) 76; Poydras v. Delmare, 13 La. 98. If defendant was entitled to treat said order as a promissory note, then it was no tender. It was not money, or “that which by common consent is considered and treated as money. ’ ’ One promissory note is not a legal tender in payment of another, unless expressly agreed to he accepted as such. Holland v. Rongey, 168 Mo. 16; Keyser v. Hinkle, 127 Mo. App. 75; Bradway v. Groendyke, 153 Ind. 508; Ins. Co. v. Chappelow, 83 Ind. 429.

      Edioard L. Scarritt, Constantine J. Smyth, Ed. F. Smith and W. A. Schalí for respondent.
    (1) There was no error in admission of testimony. Supreme Tent v. Fisher, 90 N. E. (Ind.) 1044; Berth-old v. Reyburn, 37 Mo. 587; Land Co. y. Moody, 198 Fed. 7; Breed y. Hurd, 23 Mass. 356. (2) The burden of proof was on the defendants. Harris y. Insurance Co., 248 Mo. 317; Crenshaw v. Insurance ?Co., 71 Mo. App. 52; 25 Cyc. 925-927; Life Assurance Society v. Cannon, 201 111. 250. (3) The facts show that the insured made a good tender of the amount due upon the premium note with interest, within the time provided in the note. (4) The tender made was sufficient in law. Willcotts v. Ins. Co., 81 Ind. 300; Mathews v. Modern Woodman, 236 Mo. 344; Halsey v. Insurance Co., 258 Mo. 662; Graham v. Ins. Co., 62 Atl. (N. J.) 681; Beatty v. Miller, 94 N. E. (Ind.) 897; Gradle v. Warner, 140 111. 123; Kitchell v. Schneider, 103 N. E. (Ind.) 647; Gunby v. Ingram, 36 L. R. A. (N. S.) 232; Edmonds E. C. Company v. Kilpatrick, 166 Mo. 262; Potter v. Schafer, 209 Mo. 586; Schaeffer v. Coldron, 85 Atl. - 98; Bristol v. Mente, 80 N. Y. S. 52; McGrath v. Gagner, 77 Md. 331; Bonding Co. v. Bruce, 13 Ind. App. 550; Cox v. Hayes, 18 Ind. App. 220; Mahon v. Waters, 60 Mo. 170; McMahn v. Insurance Co., 128 Fed. 388. ,
   OPINION.

I.

BOND, J.

This is a suit on an insurance policy taken out hy Frank H. Smith on November 11,, 1909, in favor of his wife, Mabel L. Smith, the respondent herein, in the sum of $10,000 in the Reserve Loan Life Insurance Company, upon payment of the first annual premium thereon of $732.

On the 11th day of November, 1910, when the second annual premium became due, the said Frank L. Smith was unable to pay the same and applied to the defendant company for an extension of time; to-wit, to the 11th of February, 1911, which extension was granted hy said defendant company, in consideration of which the said Frank L. Smith paid to the defendant company the sum of $108.93 in cash and sent the defendant company one of the coupons mentioned in said policy for $36.60, and executed an extension premium note for $595.40 payable on February 11, 1911, providing that if said note be not paid upon maturity the policy shall be without notice null and void.

On Thursday, February 9, 1911, one Arthur A. Remillard, the brother-in-law of Mrs. Smith, acting for Mr. Smith, tried to pay the premium at the local office of the said company in Philadelphia. Finding the local agent was not authorized to receive money he went to the office of the Postal Telegraph Company and turned over to them $595.40 plus $9 to pay the transfer charges and requested them to transmit the money to the defendant company. At the same time Remillard telegraphed the defendant ;■ to-wit,

“Philadelphia, Pa., Feb. 9,. 1911.
The Reserve Loan Life Insurance Co.,
900 Odd Fellows Bldg.
I this day telegraph you five hundred and ninety-five dollars and forty cents in payment of note given by Frank H. Smith, for premium on policy No. 25684, issued to Frank H. Smith, and due Feb. 11th, this year. Return note and send receipt for premium to Frank H. Smith, Aldan, Delaware Co., Pa.
“Arthur A. Remillard.”

And after sending the telegram, and within the hour, he wrote and took to the post office, stamped and registered the following letter:

“Postal Telegraph-Cable Company,
“Night Lettergram.
“Philadelphia, Pa. Feb. 9-11.
“Reserve Loan Life Insurance Company,
900 Odd Fellows Bldg.,
Indianapolis, Ind.,
“Gentlemen:—
“I sent you today by the Postal Telegraph Co. five hundred and ninety-five dollars and 40 cents ($595.40) in payment of note given by Frank H. Smith for premium on policy No. 25684 said note maturing Feb. 11,1911. I exacted a report from the Postal Company of delivery of the message I sent notifying you I forwarded the money and for what purpose.
“Blindly answer at once and return note and also send receipt for premium to Frank H. Smith, Aldan, Delaware Co., Pa., formerly 1532 Arch St.
“Hoping for a prompt reply, I am respy,
“Arthur A. Remillard,
“Aldan, Delaware Co. Pa.”

The money sent by Remillard had an order of waiver of identification, in which case the Telegraph Company testified they would pay in money if so requested.

The testimony shows that on the 9th and 10th of February, 1911, the Telegraph 'Company notified the defendant company of the arrival of the money to pay the premium, which might be obtained by calling at the office of the Telegraph Company.

Upon the defendant failing: to call at the office of said Telegraph Company, after being so notified, Mr. Knight, the cashier of said Telegraph Company, on the 11th of February, 1911, called personally at the office of the defendant and displayed a draft of the Postal Telegraph Company drawn upon its treasurer in New York for the amount of the extension note, $595.40. Knight presented this draft at the cashier’s window. The space behind the window was occupied by Miss Dickson, who was authorized to receive collections. The conflicting testimony as to what was said and done on this occasion will be stated later.

On the following Monday, February 13, 1911, Knight again went to the office of the defendant company where he saw Mr. Zulick, its vice-president, and delivered the draft or order to him in the presence of Mr. Deitch and Mr. West (the appellant claims Miss Dickson was also present), Mr. Zulick refused to accept the postal order and .testified that he demanded money. Knight testified that the draft or order was returned to him but no demand was made for money.

Mr. Zulick testified that on Saturday at eleven-thirty-nine o’clock he wired Frank H. Smith that he could not send the premium receipt unless the premium note be paid in cash before due, sending the wire over the Western Union.

Mr. Smith was sick at the time the second annual premium fell due, of-which the company was informed.

Evidence was introduced by the defendant of the Indiana law governing legal holidays (February 12, 1911, was Lincoln’s birthday) and claimed that under such law the note would not mature until Tuesday, February 14, 1911.

The case was tried at the May term, 1915,. of the Jackson Circuit Court at Kansas City. A verdict was found in favor of the plaintiff for $9874.83, upon which judgment was rendered. The defendant duly appealed.

II.

The controlling question on this-appeal is whether there was a sufficient tender of payment of the note for a part of the second premium payable on the policy-in suit?

Prior to the legal tender acts of 1862 making United States- treasury notes a legal tender for all debts public or private not payable in a particular kind of coin or commodity, only gold or silver coin of the realm was a legal tender of payment of priyate debts. [30 Cyc. 1212.] But before and after these Congressional enactments a tender of bank notes, checks or drafts or orders for the payment of money (if not objected to for failure to produce legal tender money) would not be invalid because not falling within the description of money made legal tender by the Constitution of the United States and the Federal Statutes. [Williams v. Rorer, 7 Mo. 556; Shipp v. Stacker, 8 Mo. 145; Berthold v. Reyburn, 37 Mo. l. c. 595; Beckham v. Puckett, 88 Mo. App. l. c. 639; Thompson v. St. Charles County, 227 Mo. l. c. 234.]

The reasoning of these cases is that the creditor when offered such representatives of legal tender„money if he is not willing tQ accept them as such, should put his refusal on that ground so that the debtor may have the opportunity to secure the specific money which the law prescribes shall be accepted in payment of any debts express to be payable in dollars. Hence, it is deemed only just tbat tbe holder of sncb an obligation' upon tender of tbe payment thereof in bank notes or sncb things as represent money in tbe marts of trade and commerce, shall state expressly tbe ground of bis rejection in order tbat tbe debtor may comply with tbe technical law requiring a tender of a particular kind of money. Tbe non-observance of this duty necessarily misleads tbe debtor and may inflict a loss which would be avoided if tbe creditor bad stated tbat be objected to tbe form and character of tbe tender. He should therefore be estopped from subsequently urging an. objection which be suppressed at tbe time of tbe offer if bis later insistence thereon would inflict a loss or damage upon a creditor who in reliance on bis implied waiver failed to- produce tbe kind of money made a legal tender by law. This thought has been accurately and pithily stated by Lamm, J., viz., “Who does not speak when be should may not when be would. ’ ’ [Thompson v. St. Charles County, supra.]

In tbe case at bar defendant bad actual knowledge two days before tbe note given to it for part of tbe second premium on tbe policy matured; tbat tbe money for tbe full payment thereof bad been telegraphed to Indianapolis where its home office was located, for tbe satisfaction of tbe note and was requested by wire and letter sent from Philadelphia coincidentally with tbe transmission of tbe money to apply tbe same on said note and return receipt thereof. Tbe defendant was also notified by tbe forwarder of tbe money (tbe Postal Telegraph Company) two days before tbe maturity of tbe note tbat it held tbe money order for tbe amount which would be due on tbe maturity of tbe note and was requested in said notice to apply for the same. Getting no reply to this written request tbe forwarding company phoned tbe office of tbe defendant stating it held such order for it and received a phone answer indicating that the matter would he taken up or inr formation given about it. Failing to receive such information the forwarder sent its cashier on the morning of the 11th day of February to the office of the defendant with a draft or order drawn upon the treasurer of the forwarding company for the full amount due on the note. This was displayed to the person at the cashier’s window who did not receive it, excusing herself on the ground that the cashier was not in and that she would refer the matter to a Mr. Woodbury. Her account of the matter is, to-wit, “I was only passing. I just referred him at once to Mr. Woodbury and went back to my desk. Mr. Woodbury came forward and I went to the next counter and back to my desk. ’ ’

The account of this transaction by C. F. Knight, the cashier of the transmitter of the money, was in substance that after unavailing efforts for two days to get definite instructions from defendant as to the money held for it and after repeated notices given, he called in person with a draft in the usual form payable to defendant, upon the New York treasurer and presented the same to the lady occupying the cashier’s window, adding, to-wit, “I told her I was from the Postal Telegraph Company with a money order for the Reserve Loan Life Insurance Company for $505.41 from Arthur A. Remillard, Philadelphia.” That she walked away and then came back. “When she came back she said that the cashier was not in and that he would take it up and let us know,” whereupon he (Knight) returned to his office.

It was shown that this lady had full authority to accept payment of premiums and give receipt therefor. This being the last day upon which the note could be paid according to its terms, Knight, however, appeared with the same draft on the Monday following and handed' it to the vice-president of the defendant company. As to what took place at that interview there is a sharp conflict of testimony. The testimony of the cashier of the Postal Telegraph Company is to the effect that the draft or order which he delivered to-the vice-president was handed hack to him without any objection to the form of the tender and without any request that money should be produced instead. The testimony of the vice-president, corroborated by others whom he called to witness the interview and a notation upon a memorandum, was to the effect that the vice-president refused to accept the order and demanded the production of money. The evidence was undisputed that the vice-president had received notice from the sender of the money two days before the maturity of the note by letter and wire and that he delayed his reply until the lapse of two days, when, only a few minutes before the maturity of the note, he wired the assured that the note must be paid in cash before he would send a receipt or return it. This belated reply was sent over the wire of another company than that which transmitted the money.

These and other facts adduced on the trial presented issues of fact which were submitted to the jury under appropriate instructions. Upon this conflicting evidence their verdict was in favor of the testimony relied upon by the plaintiff to show an implied waiver on the part of the defendant of the production of the money at the times when the draft or order was presented for payment of the note.

The testimony for the plaintiff leads to the conclusion that the verdict of the jury was supported by evidence affording a legitimate basis for the inference that the defendant intended at all times, after it was informed two days in advance of the maturity of the note that the money to pay it had been transmitted by telegraph, to baffle the efforts which might be made to extinguish that obligation and thereby forfeit the policy and thus avoid its liability for the death of the insured whose ill health and impecunious condition the record discloses had been brought to the attention of the defendant.

The anxiety to pay this note is manifest from what was done by Mr. Remillard to that end. He appeared at the office in Philadelphia with the money in his possession and was told that it could not be received there but would have to be sent to the home office in Indianapolis. "Without risking the delay of the mail and uncertainty of his individual check or draft reaching defendant in time, he at once deposited with the Postal Telegraph Company the entire amount which would be due on the note two days thereafter, with directions to wire it, waiving identification, to the order of defendant at Indianapolis and paid $9 for that method of sending the money. This was immediately done, the defendant was promptly notified both by the telegraph company and by the sender, as has been shown and with the result as has been shown.

In view of this testimony there was substantial evidence to support the verdict of the jury; for upon the theory of the evidence relied upon by plaintiff the transaction was one to which the doctrine of implied waiver of the production of money under the authorities hereinbefore cited is strictly applicable.

We conclude, therefore, that there was no error on the part of the trial court in submitting the issue as to the validity of the tender of payment to the jury.

III.

Error is claimed as to the instructions. A careful examination of these shows that they were submitted in accordance with the rules of law governing the validity of payment where there is an implied waiver of the production of the -money itself.

Some complaint is made as to the evidence adduced tending to show that the draft or order presented by the Postal Company of Indianapolis to tbe defendant was bankable in tbe sense that tbe banks of Indianapolis would put it to the credit of a holder and permit him to check out the amount thereof. Plaintiff was entitled to make this proof in order to show the commercial value of the paper tendered on her behalf as the representative of money, and she was further entitled to show that the drawer of the order, the Postal Telegraph Company, kept sufficient funds deposited in a bank in Indianapolis to pay this draft or order.

It seems to us to be a matter of common knowledge that the transmission of money by telegraph through such companies as the Postal Telegraph and the Western Union Telegraph Company has become well established in modern business in the States of this Union and amongst most civilized nations having dealings with the people of this country; and that such a draft or order, considering its use in certain emergencies requiring the rapid transfer of cash, and the immense resources of the two companies who are engaged in affording that business facility to their customers, would be equally as satisfactory and trustworthy as the cashier’s checks of banks or the checks of individuals, and that persons willing to accept these for money would not hesitate to receive the former which has now become a recognized medium of quick exchange of money of such pecuniary value and security that it is accepted by banks on the same basis upon which they receive drafts or cashier’s checks of other banks.

The judgment in this case is free from any reversible error and is affirmed.

All concur.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    BOARD OF EDUCATION OF CITY OF ST. LOUIS v. CITY OF ST. LOUIS et al., Appellants.
    Division One,
    March 30, 1916.
    1. POLICE REGULATION: Water-closets: Conflicting Authority of City and School Board. The Board of Education of the city of St. Louis is not subject to the ordinances and regulations of .the city in respect to the manner of construction of water-closets and vents therefrom in a public school building. Under the statute the Board of Education is specifically “charged with the care bf the public school buildings of said city, and with the responsibility for the ventilation and sanitary condition thereof,” and under the Constitution that statute makes their- authority exclusive.
    2. -: -: -: Presumption of Application to Sovereign: Repeal by implication. Where the sovereignty itself has dealt with the subject of the construction and management of property which is held and used by its agents for the highest governmental purposes, no presumption that laws of the character of the charter of the city of St. Louis and ordinances passed in pursuance thereof are applicable to the sovereign, can prevail, for then the power does not rest upon .presumption, but upon express legislative declarations.
    3. -: -: -: Paramount Authority of Statute. The general charter of the city of St. Louis must yield to the provisions of a law having special application to particular matters and things within the field of its operation; and where there is such a general law, the question of whether the charter and ordinances are impliedly repealed without being mentioned in the general law, is not in the case.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Affirmed.

      William E. Baird for appellants.
    (1) The Board of Education is a public corporation formed for a special and limited purpose; its charter is found in the statutes, which must he construed by the. same rules as are applied to other statutes. Heller v. Stremmel, 52 Mo. 311; State v. Lockett, 54 Mo. App. 202; Peers v. Board, 72 111. 508; Smith v. Proctor, 130 N. Y. 319; McQuillin, Mun. Corp., sec. 114.. (2) The property controlled by the board is not owned by the State or used for governmental purposes; the presumption that the sovereign or the State is not bound by local regulations cannot be indulged. Kansas City v. Pee, 17'4 Mo. App. 510; School Dist. v. Pasadena, 166 Cal. 7; Public Schools v. St: Louis, 26 Mo. 468; Bank v. State, 69 Iowa, 30; Sioux City v. School Dist., 55 Iowa, 150; City, Trustee, v'. Chicago, 207 111. 37; Board v. People, 219 111. 87. (3) The city of St. Louis, by its charter, had and still has plenary power over sewers, drains, sanitation and other local subjects of regulation. Ex parte Smith, 231 Mo. Ill; Cunning Co. v. St. Louis, 235 Mo. 99. (4) No such power has been given the Board of Education; a modification of the city charter will not be implied in the law creating the board. R. S. 1909, secs. 11030-11062; Dillon, Mun. Corp. (5 Ed.), sec. 235; State ex rel. v. Severance, 55 Mo. 386; Wills v. Railroad, 133 Mo. App. 625; E. St. Louis v. Maxwell, 99 111. 443; Wood v. Comrs., 58 Cal. 563; State v. Williams, 80 Tenn. 251.

      Robert B'-urkham for respondent.
    (1) Education is a governmental function. Article 11, Missouri Constitution; Lehew v. Brummell, 103 Mo. 550; Heller v. Stremmel, 52 Mo. 309'; State ex rel. v. St. Louis School Board, 112 Mo. 213. The members of the Board of Education of the city of St. Louis are officers under the State and exercise functions of government. State ex rel. v. Rombauer, 104 Mo. 619; State ex rel. v. Cordon, 231 Mo. 547; Secs. 11030-11062, R. S. 1909. The Board of Education is a public corporation separate and distinct from and entirely independent of the municipality of St. Louis. Waterworks Co. v. School Districts, 23 Mo. App. 241; State ex rel. v. Tracy, 94 Mo. 221; School District No. 7 v. School District of St. Joseph, 184 Mo. 156. (2) School buildings being maintained by the State in the exercise of a governmental function, the presumption arises, at least so far as their internal construction is concerned, that they a,re not subject to municipal regulation or control, (a)- The general principle: Bank v. United States, 86 U. S. 227; 26 Am. & Eng. Ency. of Law, p. 644; 36 Cyc. 1171. (b) The application of the principle to local governmental subdivisions: Cole v. White Co., 32 Ark. 43 ; Whitehead v. Board of Education, 139 Mich. 490'; Cincinnati v. Yolk, 72' Ohio St. 469. (c) The application of the principle to local building regulations. Institution v. Louisville, 123 Ky. 767; Milwaukee v. McGregor, 140 Wis. 35. (3) Regardless of any presumption of independence from municipal control arising from the fact that school buildings are maintained by the State and controlled by State officers, existing legislation clearly indicates that the Board of Education of the city of St. Louis is intrusted with the power to determine what kind of interior plumbing in school buildings is best adapted for its purposes. Charter of the Board of Education of City of St. Louis, Secs. 11030 to 11062, R. S. 1909.
   BROWN, C.

This suit was instituted April 11, 1912, against the defendant city and Stephen IT. Gilmore, its supervisor of plumbing, to obtain an injunction restraining them from interfering with work in course of construction under contract for a new school building in said city to be known as the Horace Mann School. The contract provided for a system of vents from the water-closets known as “a continuous venting system, doing away with all local vents to the fixtures, ’ ’ while a regulation of the Board of Public Improvements of the city of St. Louis provided for a different system, requiring “sewer, soil, waste, and ventilation pipes to be arranged and constructed to admit of a free circulation of air from the fresh air inlet to each fixture trap and through the roof.” The petition charged that the defendants threatened to apply the ordinances and rules of the city, which are fully set out, to this work, and cause the arrest of any and all of plaintiff’s agents, servants, or employees who may go upon the premises under plaintiff’s direction to prosecute said plumbing work, on the charge of violating said ordinances, rules and regulations. There is no question raised as to reasonableness of the ordinances of the city or regulations of its Board of Public Improvements, nor as to whether either system of venting is superior to the other, but the case is presented and discussed upon the broad proposition ’as to whether or not the Board of Education, in this particular, is subject to the ordinances and regulations of the city in this respect. A general demurrer to the petition was overruled, and defendants declining to further plead, final judgment was rendered granting the injunction and the case is here upon the defendants ’ appeal.

Section 26 of article 3 of the charter then in force provided, among other things, that the mayor and assembly shall have power, within the city, by ordinance not inconsistent with the Constitution or any law of this State or of this charter, to do the following things: In clause two, to construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof; in clause twelve, to provide for the safe construction, inspection and repairs of all private and public buildings within the city; and in clause fourteen, to pass all ordinances not inconsistent with the provisions of the charter or the laws of the State as may be expedient in regard to the peace, good government, health and welfare of the city.

It also provides (Sec. 3, art. 4) for a board of public improvements to consist of an elective president and five commissioners with certain prescribed powers, and adds the following provision: Section 42: “The municipal assembly shall provide by ordinance such additional duties of and requirements from the board of public improvements and its several members, as it may deem necessary, and for the appointment by them of such assistants and employees as the demands of the several departments may require!”

It was under these powers and ordinances passed in pursuance of them that the defendant superintendent of plumbing was appointed and the rule relating to the ventilation of water-closets, which the city is now attempting to apply to the Horace Mann School, was made.

When the framers of the present Constitution conferred upon the freeholders of the city the power to make their present charter they provided, with the most careful foresight. (Sec. 23, art. 9) that “such charter and amendments shall always be in harmony with and subject to'the Constitution and laws of Missouri, except only that provision may be made for the graduation of the rate of taxation for city purposes in the portions of the city which are added thereto by the proposed enlargement of its boundaries.”

In the same Constitution, and in pursuance of the uniform policy of the State from the beginning, it was provided (Sec. 1, art. 11) that “a general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the General Assembly” (not the freeholders of the city of St. Louis) “shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years. ” It was in obedience to this constitutional mandate that the Act of 1807 (as amended by the Act of May 28, 1900') under winch, the public Schools of the city of St. Louis have ever- since been operated was enacted. It provided that ‘ ‘ every city in this State now having or which may hereafter have five hundred thousand inhabitants or over, together with the territory now within its limits, or which may in the future be included by any change thereof, shall be and constitute a single school district, shall be a body corporate, and the supervision and government ‘ of public schools and public school property therein shall be vested in a board of twelve members, to be called and known as the ‘Board of Education of . . . ’ ” ,[R. S. 1909, sec. 11030.]

The powers and duties of this hoard were highly specialized in the act, and included the general and supervising control, governing and management of the public schools, and public school property in such city; the power to appoint such officers, agents and employees as it may deem necessary and proper; to make, amend and repeal rules and by-laws for the government, regulation and management of the public schools and school property in such city and exercise generally all powers in the administration of the public school •system therein; and have all the powers of other school districts under the laws of the State except as herein provided. Particularizing further, it provides for the appointment by the Board of Education of a commissioner of school buildings who ‘ ‘ shall be charged with the care of the public school buildings of such city, and with the responsibility for the ventilation, warming, sanitary condition and proper repair thereof,” and “shall prepare, or cause to be prepared, all specifications and drawings required, and shall superintend all the construction and repair of all of such buildings.” [R. S. 1909, sec. 11036.] In the performance of these duties he was required to appoint such assistants as should be authorized by the Board of Education, one of whom"“shall he a trained and educated engineer, qualified to design and construct the heating, lighting, ventilating and sanitary machinery and apparatus connected with the public school buildings.” [R. S. 1909, sec. 11037.]

It will be noted that this act not only gives the Board of Education plenary power with reference to the construction, maintenance and care of the public school buildings of the city, but descends into matters connected with the health and comfort of the pupils including the designing as well as the construction and maintenance of the very appliances which are the subject of this litigation, ventilating and sanitary machinery and apparatus to be installed and maintained for the removal from the building of foul and noxious air necessarily generated in the use of the water-closets.

We have been favored by counsel on both sides with exhaustive and highly interesting briefs and arguments relating to the presumptions which should prevail in determining whether laws of the character of the charter of St. Louis and ordinances passed in pursuance of its terms are applicable to the sovereign, and whether they are repealed by general laws which do not in terms mention them.' We cannot appreciate the application of either of these questions to this case. The first does not rest upon .presumption, fo'r the sovereignty itself has dealt with the subject of the construction and management of the property which is held and used by its agents for the highest governmental purposes, and we have to look no further than its legislative declarations to determine in whom the authority claimed by each of the parties to this proceeding is vested; and as to the second question so ably argued, we have only to look to the converse of the proposition stated by counsel for appellant. The question is not whether a law of general application in the city of St. Louis impliedly repeals any of the provisions of a special act or charter for the government of that community, hut it is whether the general charter yields to the provisions of a law having special application to particular matters and things within the field of its operation. The statement of this question includes its answer.

It cannot even he claimed that there is a question in this case relating to the intention of the Legislature to apply the Act of 1897 from which we have- quoted, to the schools of the city of St. Louis. By its terms it describes the city of St. Louis as the only community in the State in which it can apply. That it gives to the Board of Education through its lawfully constituted officers the power to design, construct and maintain the very apparatus now in question is not and cannot be denied by any English-speaking person, and the constitutional power of the Legislature to enact it is unquestioned and unquestionable.

We have carefully examined the authorities cited by the appellant and find but one, Pasadena School District v. Pasadena, 166 Cal. 7, which seems to question the view we have taken with reference to the effect we give to the statute giving authority to the Board of Education to supervise and govern public school property within the city, and charging it through its officers possessing special qualifications for that purpose with the responsibility for the ventilating, warming and sanitary condition of such building, and the designing as well as the construction of the machinery and appliances for that purpose. In the California casé the city by ordinances established an elaborate building code providing that only certain classes of buildings should be erected in certain fire districts and for the inspection of plumbing construction and electrical wiring and equipment of buildings, the use of permits and the collection of fees therefor, and making it unlawful to commence the erection of any . building within the city other than those erected by the United States unless plans and specifications are submitted to the building inspect and a permit for the erection thereof first obtained and the fee paid. The school district denied that it was subject to these regulations and an agreed case was submitted to the court to determine it. The court stated, in substance, that the Constitution of the State had invested the city with the powers to make these regulations and that the sole contention of the school district was that it was an independent governmental agency of the State created under a general law which invested its trustees with the control and management of all school property within its limits, and hence insisted that its authority in that respect was not subject to be controlled by the police regulations of a municipality in which a part of the territory of the school district was embraced. The trustees of the school districts were required by statute before building school houses to submit the plans to the superintendent of schools. The court stated that it was not claimed that these code provisions expressly gave any power to the trustees or enjoined upon them the duty of adopting sanitary building regulations, or regulations in the nature of provisions for the public health and comfort and safety in the construction of such buildings, and held that in the general powers mentioned no such power was conferred, and that their power was not different from that possessed by private corporations and other owners of land to control it and plan and erect buildings thereon and sustained the city in its contention that a permit was required. It will be seen that the issue in that case was entirely different from the issue in this.

Here the right to erect a building within the limits of the city is not involved, but only the question as to which of these two contending municipalities is clothed by statute with the right to determine interior sanitary arrangements for the ventilation of its water-closets, so as to promote the health, and comfort of the pnpils and teachers who should he its inmates. We think it is peculiarly appropriate that those charged with the custody and control of the pupils while in the building should also be charged with the protection of their health while engaged in their studies. The Legislature seems to have taken this view of the matter, and has, in our opinion, in unmistakable terms, placed that responsibility upon the board. We therefore affirm the judgment of the circuit court.

Bailey, G., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All of the judges concur.


author: BLAIR, J.

text:
    AUGUSTA E. HASSLER, Appellant, v. MERCANTILE BANK OF LOUISIANA.
    Division One,
    March 30, 1916.
    1. DEED OF TRUST: Validity of Foreclosure Sale: Failure to Name Grantor in Notice. The omission from tie notice of sale under a deed of trust of the name of one of two grantors, all other requirements being met, the grantor whose name was' omitted having previously parted with his equity, the representative of the owner of the entire equity being present at the sale, a fair price being obtained for the property, and the balance of the secured note afterwards being paid, so that the grantor whose name was omitted from the notice is no longer liable directly or indirectly for any sum by reason of his signature on the note secured, does not render the sale void, in spite of the statute (Sec. 2843, R. S. 1909) which requires that “such notice shall set forth . . . the grantors.”
    2. -: -: Proof of Time of Publication. Where the recitals in the trustee’s deed show a compliance with the statutory, requirements and are not contradicted, further proof of the time during which the notice of sale was published is not necessary.

      Appeal from Louisiana Court of Common Pleas.— Hon. B. H. Dyer, Judge.
    AfEIEiMED.

      John W. Matson for appellant.
    (1) The deed of trust, and the note that it secured was given by M. J. Hassler and S. C. Hassler, and under the laws the interest of either of them could have been sold, or, either could have been sued without joining the other one. The failure of the trustee in his notice of sale and his trustee’s deed to mention the name of S. C. Hassler shows failure to foreclose ánd convey that interest. Secs. 2842, 2843, R. S. 1909; Chamberlain v. Trammell, 131 S. W. 227; Fisher v. Simon, 95 Tex. 234; 28 Am. & Eng. Ency. Law (2 Ed.), p. 789; Youker v. Treadwell, 4 N. Y. Supp. 674; Reside v. Peter, 33 Md. 120; 9 Ency. PI. & Prac., p. 166; Thomas v. Loan Co., 79 N. Y. 54; Morgan v. Joy, 121 Mo. 677; Freeman v. Moffitt, 119 Mo. 280. (2) A sale upon foreclosure by advertisement has been held a nullity as to the owner of the premises not notified. St. John v. Bumpsted, 17 ¡B'arb. (N. Y.) 100; Watson v. Spence, 20 Wend. (N. Y.) 2601; Yan Slyke v. Shelden, 9 Barb. (N. Y.) 278. In the equity court the title of the purchaser will not be recognized as valid unless the terms of the power and statutes have been strictly followed. 28 Am. & Eng. Ency. Law, p. 786, and notes.

      David A. Ball and Robert A. May for respondent.
    (1) Is not the plaintiff estopped from setting up any interest, title or claim to this property? She joined in the deed of trust to Tinsley, trustee for the bank. She knew that S. C. Hassler had signed that deed of trust. She knew that S. C. and M. J. Hassler and herself had conveyed all their equity in this property to the Diamond Flour Manufacturing Company; and she knew that the name of S. C. Hassler had been omitted from the notice of sale of this property under said deed of trust, and she attended the sale by and through her husband and agent, and stood by and said not a word. Can she now be heard to question the sale under said deed of trust? Tyler v. Hall, 106 Mo. 313; Brown v. Appleman, 83 Mo. App. 70; Pentz v. Knester, 41 Mo. 447; Barnett v. Smart, 158 Mo. 167. (2) S. C. Hassler not only executed the deed of trust, but after-wards conveyed all his equity in said property to the Diamond Flour Manufacturing Co. So that he had parted with all of his interest and nothing remained for him to convey. So his deed to plaintiff passed no title or interest in the property to plaintiff. (3) The principal object in publishing notice of sale, is not so much to notify the ,grantor or mortgagor, as it is to inform the public generally, so that bidders may be present at the sale and a fair price obtained. 28 Am. & Eng. Ency._ Law, 790; De Jarnette v. De Griverville, 56 Mo. 440. Accordingly, the notice should contain such facts as are reasonably sufficient to apprise the public of the nature of the property to be sold, and of the time, place and terms of sale. 28 Am. & Eng. Jilncy. Law, 791; Powers v. Yienckhoff, 41 Mo. 425; Stephenson v. January, 49 Mo. 465. (4) The notice of sale should, ordinarily, contain the name of the grantor but’the omission may perhaps be cured by reference to the book and page where the instrument is recorded. 28 Am. & Eng. Ency. 792; Baker v. Cunningham, 162 Mo. 134; Morgan v. Joy, 121 Mo. 677. (5) Even if the trustee’s notice of sale were defective, it would be of no avail to plaintiff, unless by petition she had offered to redeem by paying the amount due on the note secured by the deed of trust. Schoenwerk.v. Hoberecht, 117 Mo. 22; Xennedy v. Siemers, 120 Mo, 73; Springfield v. Donovan, 120 Mo. 423. (6) The grantor, S. C. Hassler, in the deed of trust, was not injured by the sale, because he had parted with all interest he had left to the Diamond Flour Manufacturing Co. Appellant knew this and she knew that all the stock, books, etc., had been turned over to the bank, so she is not hurt nor was she in the least deceived or defrauded by the sale. Ohnsorg v. Turner, 13 Mo. App. 541. The trustee in a deed of trust given upon land to secure a debt takes the title. McNutt v. Life Ins. Co., 181 Mo. 94. A purchaser at a void foreclosure sale will, nevertheless, hold under color of title and may, in suit in ejectment brought against him, set up the forfeited mortgage to protect his possession against all except the mortgagee and those claiming under him on a regular foreclosure sale. Jackson v. Magruder, 51 Mo. 55; Russell v. Whitely, 59 Mo. 196 ; Johnson v. Houston, 47 Mo. 227; Wheeler v. Drake, 129 Mo. App. 547. ' (7) It follows that the deed by the acting trustee, although the .sale was not advertised according to law, passed the title to plaintiff. Springfield v. Donovan, 120 Mo. 423; Kennedy v. Siemers, 120' Mo. 73; Fowler v. Carr, 63 Mo. App. 486; Biffle v. Pullman, 125 Mo. 108.
   BLAIR, J.

This is an appeal from a judgment for' defendant in an action in ejectment, instituted in the Louisiana Court of Common Pleas. In the view we take of the case it is unnecessary to state all the facts in detail, since plaintiff’s case depends upon the question whether a sale under a trust deed was valid or invalid.

Plaintiff’s husband, M. J. Hassler, and his brother, S. C. Hassler, formerly owned the land in suit and executed a deed of trust thereon to secure a $5,000 note they gave to defendant. In this trust deed plaintiff joined with her husband. Subsequently the equity in the property was conveyed to a corporation whose capital stock was almost all owned by plaintiff. A few shares were in her husband’s name and he was president of the concern and plaintiff was its secretary. Default in the payment of the $5000 note was followed by the advertisement and sale of the property in suit under the trust deed,, and at this sale one McCune bought and later conveyed the property to defendant. Plaintiff’s husband and agent, M. J. Hassler, president of the corporation owning the equity, attended the sale. S. C. Hassler, one- of the signatories of the trust deed but who had conveyed his interest in the equity to the • corporation mentioned, is not shown to have been present at the sale. The amount bid by McCune was the full and fair value of the property sold, and this sum was credited on the note secured, leaving an unpaid balance of several hundred dollars. By a subsequent transfer of other property and all the stock of the corporation mentioned, its books and papers, and certain personal property, this unpaid balance was extinguished and the note fully paid. Subsequently certain sales of the property in suit were made under judgments against the corporation obtained in actions begun about the time of the transfer of the corporate stock to defendant, service being had.upon M. J. Hassler as president of the corporation. One of these judgments was upon a claim by plaintiff for an alleged dividend declared some years previously. M. J. Hassler furnished the data for the institution of this suit and then .was served as president of the defendant corporation. The other judgment is also subject to some suspicion. The title acquired under these sales is of no value unless the trustee’s sale is void.

Plaintiff contends the trustee’s sale was and is a nullity because the name of S. O. Hassler, one of the grantors in the deed of trust, was omitted from the notice. Section 2843, Revised Statutes 190-9, requires that: “Such notice shall set forth the date and book and page of the record of such mortgage or deed off trust, the grantors, the time, terms and place of sale, and a description of the property to he sold, and shall be given by advertisement, inserted . . .’3etc.

The question is whether under the section the omission from the notice of sale of the name of one of two grantors renders void the sale, all other requirements being met, the person whose name has been omitted having parted with his equity and the representative •of the owner of the entire equity being present at the sale, a full and fair price being obtained for the property, and the balance of the secured note afterward being paid so that the person whose name was omitted from the notice is no longer liable directly or indirectly for any sum by reason of his signature on the note secured.

Ve have no hesitancy in saying the omission of S. C-. Hassler’s name from the notice in the circumstances in no way affects the validity of the trustee’s .sale and the full title passed thereby to McCune and by his deed now resides in defendant.

The principle necessitating this conclusion was substantially approved in Trust Co. v. Ellis, 258 Mo. l. c. 708 et seq. In that case the trustee’s notice of sale omitted to give the-book and page of the record of the trust deed, and this court held the facts of the case failed to show loss or injury on account of the omission and declared the sale valid.

In this case the owner of the equity, the corporation, was represented at the sale by its president; the public was advised sufficiently, since the book and page •of the record was given and a reference thereto disclosed the deed of trust; full value was bid and paid for the property. S. C. Hassler no longer owned the equity and was in no wise injured by the sale, since he had no equity to protect, and since also the subsequent payment of the balance due on the notes entirely extinguished his obligation. In accordance with the ruling in the case cited, we hold the sale valid. ' We are ■aware there are decisions in other States rigidly holding trustees to exact compliance with statutes as to notice, hut this court has long adhered to the rule announced in the Ellis case and sees no good reason for departing from it.

The trustee’s deed is criticised somewhat, hut an examination of it discloses it contains language apt to convey the entire title. Neither is there any substance in the suggestion that there should have been further evidence of the tipie during which the notice was published. The recitals in the trustee’s deed showed compliance with the statute and were not contradicted. This was sufficient. [Sec. 2858, R. S. 1909.].

The judgment is affirmed.

All concur.


author: RAILEY, C.

text:
    THE STATE ex inf. JAMES S. SIMRALL, Prosecuting Attorney, ex rel. BENJAMIN M. CLEMENTS et al., Appellant, v. GEORGE CLARDY et al.
    Division One,
    March 30, 1916.
    1. CONSOLIDATED SCHOOL DISTRICT: Area: Pleading. No consolidated school district can. he formed unless it contains an area of at least twelve square miles, or has an enumeration of at least two hundred children of school age; and when its directors are called upon collectively, and directly hy the State in a suit in the nature of quo marrmto, to show a right to exist, their answer unless it states one or the other of these necessary statutory requirements, is insufficient.
    2. -: -: -: Assumed at Trial. But if no point was made, either at the trial or in the appellate court, that the answer of the directors, sued hy the State in quo warranto to determine the validity of the organization of an alleged consolidated school district, does not contain an allegation that the district contains an area of at least twelve square miles, and if both plaintiff and defendants proved, conclusively, without objection, that the area of said district is more than twelve square miles, the court will assume on appeal that the answer was amended so as to include such necessary allegation.

      3. -: Filing Papers: Indorsement by Depositary. The petition, notice, plat, proceedings of meeting, etc., required by section 3 of the Consolidated School District Act (Laws' 1913, p. 721) need not be indorsed “filed” in order to be filed with the county clerk and county superintendent. Indorsement on the paper of the fact of filing is not a necessary element of filing, unless the statute specifically so says.
    4. -: Validity of Organization: Recital in Minutes: Manner of Voting. If the minutes of the special meeting to organize a consolidated school district state that the vote was taken by ballot and that a certain number of votes were cast, of which a certain number were for consolidation and a less number against it, the organization will not be held invalid on the sole ground that the minutes do not recite that each voter advanced to the front of the chairman and deposited his ballot in a box provided for that purpose, nor because they do not recite that the tellers announced each ballot aloud. The statute (Sec. 10865, R. S. 1909) does not require the minutes to recite the details of each act constituting the statutory requirements of the meeting.
    Appeal from Clay Circuit Court. — Ron. Frank P. Divelbiss, Judge.
    Affirmed.

      Kenneth McC. DeWeese for appellant.
    (1) The fact that a city, town or other community has become incorporated by performing the conditions and complying with the statutory requirements prescribed by a general law must be proved. 1 Jones on Evidence, sec. 115, p. 550; Hamilton v. Carthage, 24 111. 22-23. Upon a direct proceeding by quo warranto or otherwise to test the validity of the organization of a municipal incorporation, it is necessary to show the manner of the organization under the charter, or that all of its requirements have been complied with. State v. Frost, 103 Tenn. 685; State v. Bilby, 60 Kan. 130; People v. Linden, 107 Cal. 94; Kane & Co. v. School District, 48 Mo. App. 408. (2) If a statute creating a corporation and providing for its proceedings shall require such proceedings to he preserved in a record kept for that purpose, then such record is the only proper evidence of such proceedings and the proceedings of a board of school directors must be shown by their record. Kane & Co. v. School District, 48 Mo. App. 408; State v. Lawrence, 178 Mo. 374. (3) The answer of the defendants did not state facts sufficient to show or constitute any lawful warrant of authority to the defendants, to use or exercise the functions of a board of directors of said consolidated school district.

      Ralph Hughes and Martin E. Lawson for respondents.
    There seems to be no question about the fact of •compliance with the law, but appellant questions the proof of those facts. The errors claimed are based upon the proposition that parol evidence cannot be adduced to show facts which actually transpired at the meeting for the purpose of organizing said district which the clerk did not record in the minutes. It will be observed that the minutes of the meeting of organization are very brief, being in fact but a synopsis of what really transpired at the meeting. It is practically the uniform rule that in such instances parol evi- ■ dence is permissible to explain the record and supply ■omissions therein. Trustees v. "Wimberly, 2 Tex. Civ. App. 404; Morgan v. Wilfley, 71 Iowa, 212 ; Township v. Codding, 42 Kan. 649; Gilmer v. School District,. 136 Pac. 1086; Tucker v. McKay, 131 Mo. App. 728; Nehrling v. Herold Co., 112 Wis. 558; Eailroad v. Douglas County, 103 Wis. 75; Watts v. Levee District, 164 Mo. App. 263.
   RAILEY, C.

This is an information in the nature

•of quo warranto, exhibited by the prosecuting attorney of Clay County, Missouri, at the relation of Benjamin M. Clements, John Pilger and Philip Klamm as the board of directors of School .District Number Four in Clay County, against George Clardy, Ernest Capps, John Filger, John M. Blevins, James Allen and Lee "Williams, assuming to act as the board of trustees of an alleged consolidated school district styled “Consolidated School District Number One of Clay county, Missouri. ’ ’ Its purpose is to test the validity of the organization of the district under the act of the Legislature approved March 14,1913, entitled, “An Act to provide for the organization of consolidated schools and rural high schools, and to provide State aid for such schools, with an emergency clause.”

The answer denies the usurpation charged and proceeds as follows:

■ “Further answering, these defendants say that heretofore a petition signed by more than twentv-iive qualified voters of the community hereinafter described, was filed with the' county superintendent of public schools of Clay County, Missouri, showing that they desired to form said community into a consolidated school district under the provisions of an act of the Legislature of the 47th General Assembly of Missouri, entitled, ‘An Act to provide for the organization of consolidated schools and rural high schools, and to provide State aid for such schools, with an emergency clause,’ approved March 14, 1913; that on receipt of said petition, the county superintendent of schools visited said community and investigated the needs of the community and determined the exact boundaries of the proposed consolidated district, locating the boundary lines as in his judgment would form the best possible consolidated district, having due regard also to the welfare of adjoining districts; that said county superintendent of schools called a special meeting of all the qualified voters of the proposed consolidated district for considering the question of consolidation, by posting within the proposed district ten notices in ten pub-lie places, stating the place, time and purpose of said meeting, at least fifteen days prior to the date set for said meeting, and also posted within said district fifteen days prior to the date of said special meeting at least five plats of the proposed consolidated district, which plats and notices were posted within thirty days after the filing of said petition; that said special meeting was called to meet at the hall in Linden, Missouri, on April, 20, 191é, at two o’clock P. M., as stated in said notices.
“These defendants further state that the said county superintendent of schools filed a copy of the petition and of the plat aforesaid with the county clerk of Clay County, Missouri, and that he sent and took one of said plats to the said special meeting, which he attended in person, and on the date and at the hour aforesaid, said county superintendent of schools called said meeting to order in person; that at said meeting, John M. Blevins was elected chairman and Ernest Capps was elected secretary of said meeting; that thereupon, the meeting proceeded to vote by. ballot upon the proposition to organize the said consolidated district, those voting for such organization having upon their ballot the words ‘Por Organization,’ and those voting against the organization having on their ballots ‘Against Organization,’ and each person desiring to vote advanced to the front of the chairman and deposited his ballot in the box used for that purpose. "When all present had voted, the chairman appointed two tellers who called, each ballot aloud and the secretary kept a tally and reported to the chairman who announced the result of the vote, and a majority of the votes being cast for organization, the chairman so declared, and declared the Consolidated District No. 1 organized, and called for the next order of business, which was the election of six directors, two of whom were to be elected for three years, two for two years, and two for one year, each director being elected separately and tbe result announced in tbe manner prescribed for organization, and these defendants were, in said manner and in accordance with law, duly elected directors of said Consolidated School District No. 1, they duly qualified and have since then been, and are now, acting as such board of directors; that the chairman and secretary of said special meeting kept a record of the proceedings thereof, which they certified to the county clerk of Clay County, Missouri, in which said entire consolidated school district is located, and the county school superintendent of Clay County, Missouri, filed a copy of the petition and of the plat of said proposed county school district with the county clerk of said Clay County, Missouri.”

The appellants, not challenging the sufficiency of ■ the answer, replied with a .general denial. On the trial the appellant assumed the burden of showing the validity of the organization of the defendant district, and introduced : (1) A copy of a petition for the consolidated district, addressed to James A. Robeson, the superintendent of schools of the county, purporting to be signed by forty-one qualified voters of school districts number '50 and 63 and adjoining districts, notifying bim of their purpose to organize a consolidated school district in accordance with said act, and asking bim to visit the community to investigate its . needs, and to make and post plats and notices of a special school meeting to vote on the organization of such consolidated district. This petition and notice purported to be filed in the office of the superintendent March 17, 1914. (2) A notice of such special meeting to be held at a place therein named, on April 20, 1914, at two o ’clock, P. M., to consider the organization of such district and elect six directors therefor. This was signed by the county superintendent of public schools, and dated April 4, 1914. This was by the superintendent, taken to and laid before the special meeting, as was also the original plat made by him, a copy of which he filed in the office of the county clerk. (3) A plat of the proposed Consolidated School District No. 1, of Clay County, in townships 51 and 52, ranges 32 and 33 in said county. This plat was endorsed: “Filed in my office this 4th day of April, 1914. T. C. Stean, Clerk.” Evidence was introduced showing -that copies of the petition and notice were deposited with the clerk, in his office at the time of the filing of the plat, and had been kept there ever since. (4) Another plat, substantially like the foregoing from the office of the county clerk, who testified that-he made it for his own use. (5) “Minutes of Special'Meeting of Patrons of Proposed Consolidated District,” held at the time and place named in the notice. This was marked: “Filed in my office the 23rd day of April, 1914. T. C. Stean, County Clerk.” It recited, among other things, the adoption of the proposed consolidation by a vote sixtyr two to forty-nine, and the election by ballot of these respondents as directors. (6) A copy of the foregoing minutes with the addition that the meeting was held at two o’clock, P. M. This was certified to be atrae copy of the minutes of the meeting by John M. Blevins, chairman, and Ernest L. Capps, secretary, of the same, and verified by their affidavit made May 18', 1914, before the clerk of the county court, and filed in his office on the following day. (7) A copy of the same similarly certified and verified and filed in the office of the superintendent of public schools on the same day. (8) A copy of .the petition above mentioned, marked: ‘ ‘ Filed in my office this 17th day of March, 1914, James A. Robeson, County Superintendent.” (91) A copy of the above mentioned notice endorsed: “Filed in my office this- 23rd day of April, 1914. James Robeson, County Superintendent of Public schools. ” (10) Copies of plats from the records in the office of the clerk of the county court indicating that all of school district number 50, and parts of 51; 62, 63, 64 and 65, were included in the new consolidated district. All,except two of the forty-one signers of the petition were shown to reside within the limits of the consolidated district, and to be qualified voters at the places of their residences. Mr. Robeson, county superintendent of schools at the time, testified that he posted the ten notices of the special election and five plats of the proposed district In public places within the territory included, on April 4, 1914.' The plat is drawn on a sectional plat of the United States survey of the four townships 51 and 52 ■of ranges 32 and 33 in which the consolidated district is situáted, and shows that it contains an area at least equal to twenty-seven sections.

With reference to the enumeration of the children of the territory included, the following is the only reference we find in the record.

“By the Court: What about the enumeration? It says none should be formed unless they have two hundred children, unless that is admitted.

“By Mr. DeWeese: No.”

Mr. Stean was then recalled and testified:

“Q. Can you get the enumeration showing the number of school children within this consolidated school district?
“By Mr. Hughes: The last enumeration made before the proceedings to form the consolidated district,
“A. It’s made in five first and then one.
“Q. I wish you would get those records, the five that were made just before and the one before.”

There were two small towns in the district, Linden and Gashland, neither of which was incorporated. The directors of the consolidated district met after the election and on the same day, and organized by the election of John M. Blevins, president, George T. Clardy, vice president, and Ernest Capps, secretary, took the oath of office, and proceeded to the transaction ■of their business. The record of this meeting was written on loose sheets of paper and afterward copied in a' book procured for such purpose, and the sheets were lost or destroyed.

Objections were properly made and exceptions saved by the plaintiff with reference to all the questions we shall consider.

The appellant’s assignment of errors is as follows :

‘ ‘ 1. The answer of defendants did not state facts sufficient to constitute a legal response to the several matters and things set forth in the information and inquired for, or to constitute any lawful warrant of authority to use or exercise the functions of a board of directors of said consolidated school district.
£<2. The court erred in the admission of parol evidence to supply the deficiency of the record.
"3. No sufficient petition was filed with the •county superintendent of schools, as required by section 3 of the Act of March 14,1913.
"4. No sufficient notice of a special meeting was given by the county superintendent of schools.
“5. No sufficient plats of the proposed consolidated district were posted as required by law.
"6. The proceedings of the special meeting, certified by the cháirman and secretary to the county clerk and to the county superintendent of schools, as required by said act, were insufficient.
"7.- The copy of the petition and plat filed in the office of the county clerk were insufficient in law.
"8. The record did not show that the proposed consolidated school district contained an area of at least twelve- square miles. This was undertaken to be supplied by parol evidence.
"9. The evidence did not show that the proposed consolidated school district had an enumeration of at least two hundred children of school age. This was undertaken to be supplied by parol evidence. ’ ’

I. The appellant’s counsel have furnished us with an excellent brief of points and authorities which he evidently believes to he applicable to this case, and considerately, and not without hazard, has entrusted to us the work of finding the facts which fit them in a somewhat obscure record. The public interests involved are such that it has been advanced upon our docket for argument and disposition, and we have given careful consideration to the record to ascertain the real questions upon which the parties .differ. At the outset we are met with the unexplained assertion that the answer is not sufficient to show the right of the respondents, which depends entirely upon the question whether or not the organization of Consolidated School District No. 1, in,Clay County, Missouri, of which they assume to exercise the office of directors and, collectively, to act as a board of directors, is valid; in other words, whether there is such a school district by virtue of the proceedings here called in question. This depends entirely upon the provisions of the act of the General Assembly entitled, “An Act to provide for the organization of consolidated schools and rural high schools, and to provide State aid for such schools, with .an emergency clause,” approved March 14, 1913. [Laws 1913, p, 721.]

II. The statute referred to provides: “No consolidated district shall be formed under the provisions of this act unless it contains an area of at least twelve square miles, or has an enumeration of at least two hundred children of school age;” [Laws 1913, p. 722, sec. 2.] These conditions are evidently jurisdictional. They are not mere requirements relating to the proceedings by which the organization is to be accomplished, but are expressed in terms of prohibition, and relate to the nature and constitution of the thing which may be incorporated, so that if they are not met the incorporation would neces-' sarily be a nullity. In this proceeding the respondents are called upon directly by the State to show their right to exercise, collectively, the duties of the governing body of a quasi-municipal corporation for school purposes. That right depends upon the existence of the office and the existence of the office depends on the existence of the municipality to which it pertains. They must show its existence in return to the challenge of the State, and in doing sp must plead the existence of the facts necessary to its creation. They have failed in their answer to plead the conditions prescribed by the statutory requirements we have stated with respect to area and number of children which it must contain, and their pleading is therefore insufficient. But as appellant assumed the burden of showing that the proposed consolidated district had not been legally established ; and as both plaintiff and defendant proved conclusively, without objection, that the area of said proposed consolidated district contains more than twelve miles square; and as no point was made, either in the trial court, or in this court, respecting this matter ; and as the answer could have been amended at the trial in accordance with the proof aforesaid, we will consider the answer as having been amended so as to set out the area of the proposed consolidated district aforesaid, and dispose of the case as though said amendment had been made. [Darrier v. Darrier, 58 Mo. l. c. 233; Baker v. Railroad, 122 Mo. l. c. 547-8; State ex rel. v. McQiuillin, 246 Mo. l. c. 594.]

III. Section three of the act provides that “when the resident citizens of any community desire to form a consolidated district, a petition signed by at least twenty-five qualified voters of said community shall be filed with the county superintendent of public schools.” It becomes his duty on receipt of this to visit the community, investigate its needs and deter hhe exact boundaries of the proposed district, and make plats thereof. He shall then call a special meeting, giving at least fifteen and not more than thirty days’ notice thereof, by posting ten notices stating the place, time and purpose of such meeting and five plats in public places within the proposed district. The meeting shall commence at two o’clock P. M, It also provides that he shall file a copy of the petition and of the plat with the county clerk and shall take one plat to the special meeting, which “shall be called to order by the county superintendent of schools or some one deputized 'by him to call said meeting to order.” It shall then choose a chairman and secretary and proceed in accordance with section 10865, Revised Statutes 1909. It further provides that “the proceedings of this meeting shall be certified by the chairman and the secretary to the county clerk or clerks and also to the county superintendent or superintendents of schools of all the counties affected.” The superintendent is also required tb file a copy of the petition and plat with the county clerk. The proof was unquestioned that all the papers so required to be filed with the superintendent and clerk of the county court were, in due time, deposited in their several offices and were kept there; but the course of the counsel in introducing and resisting the introduction of the evidence upon the trial indicates the theory of the plaintiff to have been that the fact of filing included an indorsement to that effect upon all the several papers, to constitute a record which would be the sole evidence of the fact; while the proof was made in some instances by the production of the papers by • the proper custodian and parol evidence that they were deposited and kept among the papers of his office.

This is an erroneous view of the question, which is an old one and has long been settled by adjudication, and the dicta of many courts and writers. Even the word “file” is a form of the Latin word which signifies a. thread, and is suggestive of the manner in which those papers and documents not considered of sufficient importance to justify spreading upon the record, were strung for preservation. A distinguished author defines the word “file” as follows: “To file, and filing, mean the act either of the party in bringing the paper and depositing it with the officer, for keeping, or the act of the officer in folding, indorsing and putting up the paper.” [Abbot’s Law Dictionary.] Another distinguished legal lexicographer, Bouvier, under the same title, defines it as follows: “In the sense of a statute requiring the filing of a paper or document it is filed when delivered to and received by the proper officer to be kept on file.” That the statement of the officer upon the document does not constitute a filing is illustrated in Sternberger v. McSween, 14 S. C. 35, 42, where it was held that a paper which was taken to the officer to be filed, and was marked “filed” by the officer, who handed it 'back, and it was taken away, had not been filed.

All these papers had been deposited with the clerk and superintendent, as the case might be, to be kept among the papers of the office, and it was competent, to prove that fact by parol. If the paper was in existence it could be produced by the officer; if not, its loss or destruction while it constituted a record of the proper office, could be proven in the same manner.

IV. One other point which we have been able to glean from the record, consists in a general complaint as to the sufficiency of the minutes of the special meetíng filed in the respective offices of the clerk of the county court and county superintendent of public schools. It is founded upon the requirement of section 10865, Revised Statutes 1909, which governs the proceedings of the special meeting. This requires that the vote on the organization of town and city school districts shall be taken by ballot, “and each person desiring to vote shall advance to the front of the chairman and deposit his ballot in a box to he used for that purpose. When all present shall have voted, the chairman shall appoint two tellers, who shall eall each ballot aloud, and the secretary shall keep a tally and report to the chairman, who shall announce the result.” The minutes in this case speak as follows:

“After stating business of meeting, Chairman ■called for vote by ballot on matter of proposed consolidation. Ballots to contain words, ‘For Consolidation,’ or‘Against Consolidation.’
“Remarks on question before the house called fo.r .and made by Prof. Robeson along lines of general information.
“Balloting resulted as follows: For Consolidation, 62, against Consolidation, 49. Majority for Consolidation, 13. Total vote, 111. Proposition carried.”

The statute does not undertake to say in what form the minutes of the meeting shall be kept or how minutely, if .at all, they shall go into the details constituting each act of the meeting. It is evident that the highest degree of verbal skill cannot he expected from the secretaries of such meetings. We think that the statement that the vote was taken by the chairman by ballot and the result ascertained and declared necessarily includes the details which constitute the taking ■of the vote under the statute. To be sure, the minutes •do not say that each person voting advanced to the front of libe'chairman or that a box was provided for the ballots or that-the chairman appointed two tellers to read the votes aloud to the secretary, who kept a tally and reported the result to the chairman. It is unnecessary to decide that these things are not of such vital consequence that if one or all had been omitted the proceeding would have been void, because they are necessarily included in the general statement contained in the minutes.

Finding no error in the record, we affirm the judgment.

Brown, G., dissents as to result only on the ground that he thinks the. Act of March 14, 1913, requires an enumeration of 200 as a condition of organization under it.

PER CURIAM. — The foregoing opinion of Raiuey, C., is adopted as the opinion of the court.

All of the judges concur.