author: GRAVES, J.

text:
    THE STATE ex rel. R. J. DUNHAM et al., Receivers of Metropolitan Street Railway Company, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    June 25, 1919.
    1. CONFLICT IN OPINIONS: Certiorari to Court of Appeals: Review of Evidence: Demurrer. In determining whether there is a conflict between an opinion of the Court of-Appeals and the last-previous decision of the Supreme Court, the latter court will not upon certiorari go to the bill of exceptions, as printed in the abstract, for the evidentiary facts, but for those facts it will go only to the opinion of the Cburt of Appeals; and if that opinion sets out facts sufficient to carry the case to the jury, the Supreme Court will not further review the evidence as printed in the abstract for the purpose of determining whether a demurrer to the evidence should have been sustained by the trial court. ,
    2. NEGLIGENCE: Death of Husband: Action Under What Statute? A petition which alleges that defendants were operating a street car, which, through the negligence of their servants and agents in charge thereof, struck and killed her husband, and asking for ten thousand dollars as damages, is referable to Section 5425, Revised Statutes 1909.
    3. -: Action Under Section 5425: Character of Negligent Acts: As Affecting Compensation. In an action based on Section 5425, Revised Statutes 1909, brought by a widow to recover damages for the negligent killing of her husband, the jury are not authorized to consider the character of the negligent acts for the purpose of either increasing or decreasing the compensatory damages. Consequently an instruction telling the jury that, in determining the amount of damages they will allow her above the $2000 penalty, they “may take into consideration facts constituting negligence on the part of defendants causing the death,” is erroneous.
    4. -: Character of Negligent Acts: As Affecting Compensation: Under Other Statutes. Under a petition charging simple negligence, whether the cause of action be based upon Section 5425, or Sections 5426 and 5427, Revised Statutes 1909, a consideration of the negligent acts of defendant for the purpose of enhancing compensatory damages, is improper.
    5. -: -: -: Conflict in Opinions. It is true that it was held in Boyd v. Ry. Co., 249 Mo. 110, that the jury, in allowing compensatory damages for defendant’s negligent acts in killing plaintiffs husband, could consider the “facts and circumstances attending the killing,” but it was later ruled in State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 1. e. 656, that where no aggravating circumstances were pleaded an instruction which authorized the jury to consider the character of the negligent acts in allowing compensatory damages broadened the issues and was error; and although that ruling was made in a case based on Sections 5426 and 5427, the principle it announced is applicable to an action based on Section 5425, and therefore an opinion of the Court of Appeals, holding that an instruction authorizing the jury to take into consideration the character of defendant’s negligent acts as an element of compensatory damages, in an action based on Section 5425, wherein the petition charged only plain or ordinary negligence, was not error, is in conflict with said ruling announced in said Coal & Coke Company case.

      Cerliorari.

    Record quashed.

      Clyde Taylor, R. J. Higgins and Charles L. Carr for relators.
    (1) The trial court erred in refusing to give relators’ demurrer to the evidence and the Court of Appeals erred in sustaining the ruling of the trial court refusing to give said demurrer, in so doing refusing to follow the last previous rulings of the Supreme Court, (a) The motorman was not guilty of negligence under the humanitarian doctrine in failing to stop his car after discovering Griggs lying on the track within fifteen feet of the car, nnd at a time when the car was going about eight miles an hour; the motorman having but a little over one second in which to avoid running over Griggs - after discovering him. The humanitarian doctrine does not authorize a court to approve a verdict predicated on a mere guess as to' what can be done in such instant time. Riggs v. Metropolitan St. Ry. Co., 216 Mo. >304; Trigg v. Water, Light & P. Co., 215 Mo. 521; McGee v. Wabash Railway Co., 214 Mo. 53u; Degonia v. Ry. Co., 224 Mo. 564; Burge v. Wabash Railway Co., 244 Mo. 76; Rollison v. Wabash Railway Co., 252 Mo. 535. (b) There was no evidence that Griggs was on the track prior to the time that the motorman discovered him there. The whereabouts of Griggs from the time, he went around the hack of the car from which he alighted until he was seen by the motorman of the next car lying on the track within fifteen feet of the car are not known. The presumption is that he was in the exercise of due care and not on the track. Riggs v. Metropolitan Street Ry. Co., 216 Mo. 304; Degonia v. Railway. Co., 224 Mo. 564; Eckhard v. St. Louis Transit Co., 190 Mo. 593; Powers v. St. Louis Transit Co., 202 Mo. 267. (2) The trial court erred in giving to the jury, over the objection and exception of relators herein, instruction 3, for plaintiff,- and the Court of Appeals erred in sustaining the trial court in its ruling giving said instruction, in so doing refusing to follow the last previous- rulings of the Supreme Court, (a) Said instruction is erroneous under Secs. 5426 and 5427, R. S. 1909, in that it authorized a fixed penalty of $2000 and punitive damages over the sum of $2000 when aggravating circumstances and punitive damages, are not pleaded or proved. State ex rel. Central Coal Co. v. Ellison, 195 S. W. 722. (b) Said instruction is erroneous under Sec. 5425, R. S. 1909, as amended in 1911, Laws 1911, p. 203, in that it authorizes punitive damages as well as compensatory damages over and above the fixed penalty of $2000, and does not limit the recovery over the sum of $2000 to purely compensatory damages. State ex rel. Central Coal Co. v. Ellison, 195 S. W. 722; Boyd v. Missouri Pacific Ry. Co., 249 Mo. 110; Barton v. Chicago & Alton Ry. Co., 176 Mo. App. 14; Johnson v. Ry. Co., 174 Mo. App. 16; Johnson v. Ry. Co., 270 Mo. 418; R. S. 1909, secs. 5425, 5426, 5427.

      J. Stanley Bassett and Cooper, Neel & Wright for respondent.
    (1) The trial court did not -err in overruling the demurrer to the evidence. Scullen v. Railway, 184 Mo. 704; Werner v. Citizens Ry. Co., 81 Mo. 373; Isabel v. Railroad, 60 Mo. 482; Trigg v. Water, L. & P. Co., 215 Mo. 538; Deschner v. Railway Co., 200 Mo. 329; Mtirphy v. Railway Co., 228 Mo. 82; Lyons v. Railway Co., 253 Mo. 157. (2) The court did not err in giving plaintiff’s Instruction Number 3 on the measure of damages. Boyd v.-Railway Co., 249 Mo. 120; Tanner v. Railway Co., 186 Mo. App. 271; Loomis v. Street Railway Co., 188 Mo. App. 205; Kiser v. Railway Co., 188 Mo. App. 179.
   GRAVES, J.

Certiorari to the Kansas City Court of Appeals. There are many things in the abstract which cannot he determined here.

We are asked to review the record of the Court of Appeals in the case of Georgia B. Griggs v. Robert J. Dunham at al., Receivers of the Metropolitan Street Railway Co. There is a dispute as to whether the action is one under Section 5425, Revised Statutes 1909, or under Sections 5426 and 5427 of said statutes. This matter is duly referred to in the opinion of the Court of Appeals. The action nisi was ope for the alleged negligent killing of plaintiff’s husband, Charles C. Griggs. In the circuit court plaintiff hadjudgment for $7000 and this judgment was affirmed by the Court of Appeals. Inasmuch as there is a dispute as to the statute under which the petition was filed, we quote from the petition the following:

“Plaintiff states that on or about the 7th day of December, 1915, her husband, the said Charles C. Griggs was carelessly and negligently run against, upon and over while on Troost Avenue, in Kansas City, Missouri, at or near the junction of Thirty-eighth Street or Manheim Road, by a street car belonging to and being operated by the defendants, Robert J. Dunham and Ford F. Harvey, Receivers of the Metropolitan Street Railway Company, their agents, employees and servants. That defendants, their agents, servants and employees operating said car of defendants at said time and place were guilty of carelessness and negligence in this, to-wit: That they saw, or by the exercise of ordinary and reasonable care conld have seen, said Charles C. Griggs lying on the street car track in a position of imminent peril from.said car in front of said car so operated by the defendants’ employees, agents and sefvants, in an apparently nnconscions condition, a sufficient distance in front of said car to have stopped same, acting with ordinary and reasonable care such as should have been used by persons operating street cars, before they ran said car against, upon and over the body of said Charles C. Griggs* thereby killing him, but that defendants, their agents,- servants and employees, carelessly and negligently failed and neglected to stop said car before running it against, upon and over said Charles C. Griggs.
“Plaintiff further states that as' a result of thus being carelessly and negligently run into, upon and over by the said street car as aforesaid by the defendants, their agents, employees and servants, said Charles C. Griggs, died; -that plaintiff has been damaged by reason of said carelessness and negligence of the defendants, their agents, employees and servants as aforesaid in the sum of ten thousand dollars, for which she asks judgment against the defendants, together with her costs in this behalf expended.”

The things- of vital importance here are (1) conflict between the opinion of the Court of Appeals and our opinions on the admissibility of certain specified evidence, and (2) conflict between the opinions of the Court of Appeals and our opinions upon the giving - of certain instructions, including a demurrer to the evidence. As said, there is much urged that has no place here in a case of this' character, but all such matters can be dealt with in the course of the opinion. . This suffices for an outline of the instant case.

I. We are asked to review the evidence in the abstract of record filed in the Kansas City Court of Ap-„ peals, and determine from the evidence the question as to whether or not the demurrer to the evidence (in the trial court) should have been sustained. The court of Appeals held that there was a case for the and sustained the trial court in that regard. The opinion sets out facts sufficient to carry the case to the jury. The majority members of this court may disagree upon what shall be considered a part of the opinion of the Court of Appeals, but it is at least settled that we will not go to the bill of exceptions, as printed in the abstract, for the evidenciary facts. For the facts as disclosed by the evidence in the case, we go only to the Court of Appeals opinion. [State ex. rel. Wahl v. Reynolds, 199 S. W. 978.]

For the writer’s individual views on the rule in Wahl’s case, supra, see concurring opinion in State ex. rel. v. Reynolds, 200 S. W. l. c. 1041, and the cases therein cited. It is safe to say (all of our recent rulings considered) that we will go only to the opinion of the Court of Appeals for the facts in evidence. In other words that we will not review the case as one upon appeal here. This rule precludes us from examining the evidence of witnesses to determine de novo, as it were, the question whether there was evidence to take the case to the jury. The Court of Appeals found that there was such evidence (stating the facts shown) and we will go no further.

Counsel for appellant no doubt overlooked our recent rulings in urging upon us an examination of the bill of exceptions, nisi, for the facts. Whilst there has been a division of the court upon the question, this matter is precluded by the latter cases. [State ex rel. v. Ellison, 210 S. W. 881; State ex. rel. v. Ellison, 273 Mo. l. c. 230.] As to what may be said to be included in an opinion of the Court of Appeals, is not discussed in -the later cases.

II. An important question is, as to what statute of the State is the petition of the plaintiff referable. „The Court of Appeals says the cause of action is based upon Section 5425, Revised Statutes 1909, as amended in 1911, Laws 1911, p. 2^3, and in this we think that court is correct. Culling out the immaterial parts, the said section, so far as applicable to this point, reads: “Whenever any. person . . . shall die from any injury resulting or occasioned by the negligence, unskillfulness, or criminal intent of any . . . agent, servant or employee, whilst running, conducting or managing . . . any street, electric or terminal car, or train'of cars . . . the corporation . . in whose employ any such . . . agent, servant, employee . . . shall be at the time such injury is committed . . . shall forfeit and pay as a penalty for every such person . . . the sum of not less than two thousand and not exceeding ten thousand dollars, in the discretion of the jury.”

The allegations of plaintiff’s petition bring the ease squarely under this section. It is charged that defendants were operating the street car which struck the deceased. It is charged that the accident occurred through the negligence of defendants’ servants or employees. It is true that there is a prayer for $10,000, but plaintiff may make proper proof and recover such sum.

It should be noted that this section (5425) refers particularly to the operators of public conveyances, and names specifically the operator of a street car. To my mind, Section 5426, Revised Statutes 1909, was intended to cover cases not specifically provided for by Section 5425. But this is adrift. The allegations of plaintiff’s petition bring her case within the purview of Section 5425, and the Court of Appeals were right in so ruling. The plaintiff belonged to the class specifically provided for by said Section 5425, supra.

III. On the theory that the suit is one under Section 5425, Revised Statutes 1909, we then have the very interesting questions (1) as to the propriety plaintiff’s instruction as to the measure of damages, and (2) the alleged conflict between the ruling of the Court of Appeals and this court. This instruction reads:

“This court instructs the jury that if you find for the plaintiff you shall allow her such a sum, not less than $2000 and not more than $10,000, in the discretion of the jury, and in determining the amount you will allow her you may take into consideration the pecuniary loss, if any, occasioned to the plaintiff by the death of her husband, cmd you may take into consideration facts, if any, constituting ”,negligence, if <a/ny, on the part of the defendants causing the death (if you so find); and in considering the subject of her pecuniary loss, if any, you may consider what would have been the value of her support, if any, from her husband from the time of his death during the time he would probably •have lived and supported her, and you may also consider the additional burden, if any, falling upon her of the support of her minor child by reason of his death.”

We have italicized the clause in the instruction which is urged as being erroneous. By this instruction the jury was told that in considering the amount of damages they would award plaintiff the jury could consider two things (1) the pecuniary loss occasioned to her by the death of her husband, and (2) the facts constituting negligence upon the part of the defendants. The instruction clearly authorized the jury to consider both of these things in fixing the amount of the damages to plaintiff. It is to the second proposition that relator objects. They say that under Section 5425, supra, the pecuniary loss to plaintiff was the only thing which should be considered to raise her damages above the $2000 penalty fixed by the statute. The relator urges that under this statute the facts and circumstances of the negligence were not to be considered to enhance the damages, but should only be considered for the purpose of fixing liability.

• It will be noted from our quotation from the petition that the plaintiff plants her right to recovery upon negligence, and not otherwise. The statute covers in the -disjunctive, “negligence, unskillfulness, or criminal intent” of the agent or employee of the offending corporation. But this plaintiff only invokes the “humanitarian doctrine” of negligence. This is of value in the consideration of the instructions. We have ruled that this statute covers both a penalty and compensatory damages. That the sum of $2000 is the penalty, and the remainder up to the $10,000 limit is compensatory. [Boyd v. Railway Co., 249 Mo. 110; Johnson v. Railway Co., 270 Mo. l. c. 428.] The latter case expressly approves the Boyd case upon this particular question. That the jury had the right to consider the acts of negligence, and the circumstances in evidence tending to show negligence, for the purpose of showing liability both as to the penalty and the compensatory damages, there is no question, and this was in fact submitted to the jury in plaintiff’s instruction number 1. But that is not the question here. This instruction number 3 allowed the jury to consider the acts of negligence and the circumstances tending to show negligence, for the purpose of enhancing damages. We do not think this is proper under this section of the statute, with the petition before us in this case, if indeed it would be proper in any case under such section of the statute. It may be borne in mind that we are not dealing with a case under Section 5426 and 5427 of our Damage Act. Nor are we dealing with a case involving punitive damages. In cases wherein punitive damages are recoverable, such damages must be separately stated (R. S. 1909, sec. 1796) and must be separately found in the verdict (Sec. 1797). Section 5425, the statute under which this action was brought, does not authorize the jury to consider the character of the negligent acts either to increase or diminish the compensatory damages. Nor does this Section 5425 allow the jury to consider “the mitigating and aggravating circumstances attending such wrongful act, neglect or default,” as is allowable in proper actions falling under Sections 5426 and 5427, Revised Statutes 1909.

The statute (Sec. 5425) does not contemplate a consideration of the character of the negligent acts to either increase or diminish plaintiff’s compensatory damages. Any kind of negligence shown authorized the recovery of the penalty of $2000. We have no degrees of negligence in Missouri, so far as the right' to recover for negligence is'concerned. We are confining our remarks to the case in .hand, and to the statute under which it is brought. We have no doubt that the giving of this instruction number. 3 for plaintiff was error. The matter of conflict we consider next.

IY. The Court of Appeals in the opinion says that the instruction is one approved by this court in Boyd v. Ry Co., 249 Mo. 110. It is true that instruction numbered 2 in the Boyd case, supra, is practically like instruction numbered 3 in this case. In effect and meaning they are the same. It is also true’that in paragraph one of that opinion Brown, J., did say:

“Upon a full consideration of this case In Bane we are convinced that it was the intention of the G-eneral Assembly by the Amendment of 1905 to leave the provisions of Section 5425, supra,' penal in their nature, so far as said section fixes the amount of recovery at not less than $2000, but where a plaintiff, as in this ease, seeks to recover under said section a larger sum than $2000, the jury or court in preparing itself to exercise a wise and just discretion should receive evidence of the age, condition of health and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the killing, for which damages are sought to be recovered.”

Just above the quotation, supra, he also used the following language:

“It follows that if this action is based on said Section 5425, Revised Statutes 1909, the admission of the evidence complained of and the giving of plaintiff’s said instruction numbered 2 based on said evidence did not constitute reversible error.” .

Taking the two together it would look like we held that “the facts and circumstances attending the killing” might be considered to enhance the compensatory damages. They could not enhance the penalty, because liability fixed the penalty at $2000, and no evidence could either increase or diminish it. As to the penalty “the facts and circumstances attending the killing” would have no place in an instruction on the measure of damages. The statute measured this portion of the damages, and its measurement is inflexible.

The Court of Appeals says that six of us endorse this Instruction No. 2 in Boyd’s case. This is an error.. The writer hereof, as appears from a separate concurring opinion in Boyd’s case (249 Mo. 1. c. 132), concurred specially. It is true that we are marked as concurring in paragraph one of Judge Brown’s opinion but our opinion does not so show. We concurred only as to the ruling that Section 5425 was penal as to the $2000 and compensatory as to the remainder. We nowhere concurred in the propriety of Instruction No. 2 for plaintiff in that case. Judge Brown in marking the concurrence to his opinion might have so construed our opinion, but the language thereof does not bear such construction.

Since writing the above I have sent for the original files in the case. All opinions therein were filed on March 28, 1913. Judge Brown thus marked (in his own hand writing) his opinion: “Walker and Faris, JJ., and Lamm, G. J., concur in paragraphs one and two and the result; Bond and Graves, JJ., concur in paragraph one and in result; Woodson, J., dissents in opinion filed. John C. Brown, Judge.” It will be noted that he says nothing about my separate concurring opinion, which was filed at the same time. Nor does • he say anything about Faris, J., concurring with me. My opinion thus closes: “Faris, J., concurs, in these views. W. W. Graves, J.”

It is clear from my opinion that I did not concur in all of paragraph one, and I think reasonably certain that Judge Faris did not so concur. However, there is a concurrence of four judges on paragraph one, including Judge Brown, and this suffices to make said paragraph, the law. It does approve the instruction, although the point urged in this ease was not urged, or up for consideration. The Court of Appeals was justified in saying that we had approved, the instruction. So that so far as the Boyd case is concerned, our ruling is in harmony with that of the Court of Appeals. We, in my judgment, were wrong (no doubt because the point was not urged), but we cannot convict the Court of Appeals for following, us, unless we have by later expressions overruled Boyd’s case on the matter here involved.

Y. Whilst it must be said that at least four judges of this court (with the point not raised or urged) have approved of an instruction like plaintiff’s instruction numbered 3, in the instant case, yet in my judgment we have expressed a contrary vieyr in a later case. We refer to State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. l. c. 656. It is true that the action under review in that case was one under Sections 5426 and 5427. The instruction, however, was borrowed bodily from Boyd’s case in 249 Mo. l. c. 120. It is in substance the instruction involved here. In discussing that instruction, we said:

“It must be remembered that this statute is fixing' the liability not only in simple cases of negligence, but in cases of wilful wrongful acts. These sections; 5426 and 5427, Revised Statutes 1909, furnish the basis for wilful wrongs such as unjustifiable assaults. [Cray v. McDonald, 104 Mo. 303.] The clause in this instruction directing the jury to specifically consider the facts constituting the negligence sounds much like authorizing the jury to aggravate the damages if the evidence of negligence would justify. The instruction . with this phrase in it was error for two reasons: (1) there were no aggravating circumstances shown, and, therefore, the instruction was broader than the evidence; and (2) the petition did not plead such a case. So that this, like the first instruction discussed in paragraph one hereof, broadened the issues, and the court violated our rule as expressed in the cases cited, snpra, in holding that such was a proper instruction. Other points made need not be discussed. Prom what is said the record of the Court of Appeals should be quashed, and it is so ordered. ’ ’

This case was called to the attention of the Court of Appeals, hut such court was of the opinion that it was not in point. It is true that the Coal Company case is under a different statute, but there is a principle of law announced in it, which is applicable tos actions under Section 5425, as well as to actions under Sections 5426 and 5427. We said in the Coal Company case, supra, that the very phrase of the instruction criticised in this case, has no place in the instruction, because the pleading did not authorize it. The same is true here. We have purposely set out the pleading. It contains nothing to authorize' the recovery of aggravated damages by reason of the peculiar circumstances of the killing. Such was the situation in the Coal Company case. Upon this point this case and the Coal Company case are identical. It is true that the Court of Appeals says: “The petition states a case and the evidence proves a case 'of the grossest carelessness. The case stated and' proved show that in running over deceased, the motorman was guilty of criminal carelessness.” We have quoted the material portion of the petition in full. We cannot agree to the ruling that the petition charges either “the grossest carelessness” or “criminal carelessness. ’ ’ What the evidence may have shown, we' are precluded from speaking. It is certain that the petition only pleads the ordinary negligence involved in cases having for their basis the humanitarian rule i. e. plain, ordinary negligence. We think this instruction numbered 3 was condemned by this court in the Coal Company case, supra, and such is the last ruling of .this court thereon. The differences in the two statutes do not change the principle upon which it was condemned. The principle is common to cases under both statutes. That common principle is, that under a petition charging simple negligence a consideration of the negligent acts themselves■ for the purpose of enhancing compensatory damages, is improper. Nor do I think approval would have been given to the instruction in Boyd’s case, supra, had the court’s attention been called to the question now urged against it, as it was called to our attention in the Coal Company case, supra. What was uppermost in the mind of the court in Boyd’s case, was that evidence was required to entitle a plaintiff to a sum in excess of»the penalty of $2000. I think there is clear conflict. The instruction is erroneous in that it permits the jury to consider the circumstances of the killing in aggravation of the widow’s compensatory damages.

Other matters of conflict need not be noted'. They may be cared for, if they exist, in a trial anew in the circuit court, where the case will have to go, under our views above expressed.

iThe record and judgment of the Court,of Appeals is, for the reasons above, quashed.

Walker, Faris and Blair, JJ., concur; Bond, C. J., concurs for conformity to our rule as to jurisdiction in such cases; Williams, J., dissents to paragraph 5 and the result; Woodson, J.. not sitting.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    THE STATE ex rel. ST. JOSEPH WATER COMPANY v. LUCIAN J. EASTIN et al., Appellants.
    In Banc,
    June 25, 1919.
    1. ESTOPPEL: Part Payment and Acceptance. If the only plea to a suit for the balance of money alleged to be due under a contract is part payment, and there is no evidence that the payments were accepted or agreed to be accepted, expressly or impliedly, in full of the claim, the acceptance does not constitute estoppel or accord and satisfaction.
    2., BREACH OF CONTRACT: Insufficient Supply: Acceptance: Counterclaim. The defense to relator’s action for a balance due for water furnished defendants’ building by the month that the pressure was not sufficient to carry the water to the upper floors and that therefore there was a breach of the contract,' is pot available, if the water was accepted and there was no counterclaim and the relator contends that the contract did not cover any liability for lack of pressure.
    3. EES AD JUDICATA: New Question: Settled by Implication. A final decision in a former suit between the same parties, but upon a different claim or denmnd, does not constitute estoppel of record. In such circumstances the inquiry must always be as to the question actually litigated and determined in the former action; not what might have been determined. So that a decision in a former suit, wherein the water company sued for water supplied to defendants after July, 1909, and prior to February 23, 1912, that the extension of the city -limits so as to include defendants’ building abrogated' a contract rate and put into force the ordinance rate, was not res acljudicata of a suit for water supplied after February 23, 1912, wherein the question of the constitutionality of the ordinance is raised, nor can it be held that such question was decided by implication, since it was in no wise presented by the pleadings.
    Appeal from Buchanan Circuit Court. — Ron. Thomas B. Allen, Judge.
    Affirmed.

      James W. Boyd for appellants.
    (1) One-vital issue involved in this case was adjudicated long before this suit was brought, and the subject-matter of the suit then became res adjudicata. State ex rel. Buchanan County v. Patton, 271 Mo. 554; State ex rel. v. Mining Co., 262 Mo.. 502; Exposition Driving' Park v. Kansas City, 174 Mo. 438; Turnverein v. Hagerman, 232 Mo. 704; Edmonson v. Carter, 180 Mo. 515; LaRue v. Kempf, 186 Mo. App. 701; Drake v. Mayor of New York, 77 N. Y. 611; So. Minn. Ry. Ext. Co. v. Railroad, 55 Fed. 090; Hirshbach v. Ketchum, 82 N. Y. Supp. 739; Rankin v. City of Big Rapids, 133 Fed. 670; Railway Co. v. Carson, 169 111. 247; State ex rel. St. Joseph Water Co. v. Geig*er, 246 Mo. 74. (a) In the case of State ex rel. Water Company v. Geiger,'246 Mo. 74, it was decided and adjudicated by this court that the extension of the limits of the city made it the duty of the water company to furnish water to the Hospital, in accordance'with the price fixed by the ordinance of said city, (b) The ordinance and the contracts in evidence in that case, were the same as the facts and the ordinances and contracts in this case, (c) The issues decided in that case were identical with the issue in this case, except as to the amount. The amount sued for in- that case was $2186.33, and that sum is included in the amount of $16,279.84, sued for in this case.'(2) When a party sues upon a contract he must show compliance therewith or fail to recover. Koon v. St. Louis' Car Co., 203 Mo. 227. (3) The water c'ompany furnished some water during- the years 1912, 1.913,1914, and 1915, and it was regularly paid therefor, according to its own account, at the rate of six cents per thousand gallons. When said company received and accepted payment, at the rate of six cents per thousand gallons, it knew that six cents was all the Hospital expected to pay, or should pay, ,or could be required to pay. After the water company ceased to supply any water, and after it had received payment at six cents per thousand gallons, and after it accepted such payment, it is now estopped, or should be, from demanding or recovering a further sum.

      John E. Dolman and Vinton Pike for respondent.
    (1) The relator did not guarantee pressure or agree to do anything • more . than to deliver water from its main into respondent’s fixtures. No complaint was made during performance, which was accepted as substantial compliance. The board acknowledge performance by accepting relator’s monthly statements, auditing them and allowing the bills at a six per cent rate — everything all right but the price. This case in this respect does not differ from Waterworks v. Joplin, 177 Mo. 527. See also Water & Light Co. v. Lamar, 140 Mo. 145. (2) This course of action has not been adjudicated heretofore. The thing. in action here is not the same. The former suit was for water supplied prior to February 1,. 1912, and the water sued for in this action was supplied after that date. The validity of relator’s contract has not been decided against it, but has been affirmed by the former decision. Eelator’s right under the contract was conceded in that case, if the ordinance extending’ the city limits were out of the way. The most that can be claimed for the former decision is that the ¿xtension ordinance was a defense to the specific claim made in the former suit. The legal effect of it is that the water sued for in the former case was supplied under the ordinance obligation and not under the contract between relator and the board. The court said so, for it held that the board was not obliged to take that water under the contract, and did take it under the ordinance, by virtue of which relator was obliged to supply that water. The contract was not annulled or. abrogated; an erroneous declaration of law compelled a change of fact as to a specific part of relator’s service. If it be held erroneously that it supplied the water in 1911 and 1912 under the ordinance obligation it cannot follow that water supplied in 1913, 1914 and 1915 in performance of the contract obligation was in legal contemplation supplied under the ordinance obligation. (3) This is not a case where the specific thing sued for has been recovered' or defeated in a former suit. Eelator has not recovered the thing sued for before, or been denied a recovery of the same thing. In such case the effect of the former adjudication is. limited strictly to the very point decided. State ex rel. v. Mining Co., 262 Mo. 502; Cromwell v. Co. of Sac, 94 U. S. 351; La Eue v. Kempf, 186 Mo. App. 72. (4) The petition and writ in this case set forth all the facts which brought before the court the same facts we have now in the present record. They could not have been more formally before the court than we have them now. The defendant instead of relying upon the former decision, which had decided a matter of law merely upon general demurrer, raised the question anew and asked tláat' the court determine the question again, and having got a decision contrary to the former, the question was set at large as the last decision neutralized the first. Chicago v. People, 189 111. 349; Pearce v. Brantum, 16 La. 414; House v. Lockwood, 17 N. T. Supp. 817; Pratt v. Wilcox, 64 Fed. 589; Seymour v. Herbert, 92 Pa. St. 499; Peoples Bank v. Heath, 175 Mass. 131; Negerle v. Ashe, 33 Cal. 74; In re Evans, 42 Utah, 282; Cooley v. Imp. Co., 78 Ore. 384; Simple v. Ware, 42 Cal. 619; Semple v. Wright, 32 Cal. 659; Paskewie v. East, 197 111. App. 1. (5) The petition and writ in this case are not the same as in the former case. Here facts are set forth which show the consideration for the contract was the cost of constructing thé main, a mile in length, outside the then city limits and for the sole use of the Hospital. When the line was extended within the limits the relator might, and was required to place public hydrants every 500 feet, for which it received an annual return of $40 per hydrant. This return it could not have from the line extended outside the limits to the Hospital. The ten-cent rate was'in lieu of that income as well as compensation for water service. Relator had put its funds in the main to be returned to it by the contract rate. The obligation of the contract on its part was to build the main and supply the water, and on the part of the Hospital to pay ten cents per 1000' gallons for water supplied and the construction of the means to supply it. To allow the ordinance to abrogate the contract impaired its obligation, and to compel the relator to use its main in supplying water without the full compensation stipulated was taking its property for a public use without compensation. This question was ignored in the opinion and decision in the former case. In this case this court held the ordinance had no effect upon the contract and expressly held that, if it did have the effect claimed, it would be void as taking away rights secured by the relator by the Constitution. On the present writ this question or matter was decided; in the former case it-' was not decided. Cromwell v. County of Sac, 94 U. S. 351; State ex rel v. Mining Co., 262 Mo. 502; Norman v. Sylvia, 59 Atl. (R. I.) 112; C. B. & Q. v. Cass Co., 101 N. W. (Neb.) 11; Evans v. Birge, 11 Ga. 272. (6) In the former case the court decided tbe relator could not recover on its contract for water supplied in 1911 and 1912, because tbe ordinance abrogated tbe contract, tbe constitutional question not being raised, and hence must have been waived as. to the water then sued for. In this case the constitutional question was raised, and the court holds that the ■ ordinance did impair the obligation of the contract, and was therefore without effect to that extent.
   BLAIR, J.

This is an appeal from a judgment for relator in a proceeding by mandamus to compel appellants to audit, allow and pay a claim for a balance alleged to be due for water furnished during a period of about four years preceding the application for the alternative writ. The facts are stated in State ex rel. v. Eastin, 2'70 Mo. 193, and a restatement of them in detail will not be necessary.

Under a franchise ordinance adopted and accepted in 1900, relator, a public service corporation, agreed to furnish water to large consumers in the City of St. Joseph at the rate of six cents per thousand gallons. State Hospital No. 2, of which appellants are the Board of Managers, was situated outside the limits of the city. In 1905 appellants’ predecessors in office entered into a contract with relator whereby relator agreed to lay certain pipes and furnish water to the Hospital at a rate of ten. cents per thousand gallons. The main was extended and water furnished and paid for at the 1905-contract rate until the city extended its limits in such wise as to bring the Hospital within them.' Thereafter, the Board of Managers refused to pay in excess of the ordinance rate of six cents per thousand gallons.

February 23, 1912, relator instituted a mandamus proceeding in this court to compel payment for a balance then asserted to be due under the private contract rate. The alternative writ was quashed by Court in Banc, November 26, 1912. Additional facts will be stated in the opinion.

Appellants contend that (1) an issue conclusive of this case was adjudicated in the former proceeding, (2) there was no compliance with the contract, (3) and acceptance of payment of six cents per thousand gallons estops relator.

I. It is contended the acceptance of payments equivalent to six cents per thousand gallons furnished estops relator to demand a balance, even though it be conceded the ten-cent contract. was and is in force. Relevant to this, question there is nothing urged save the fact of part payment. There was no plea of accord and satisfaction. There was no evidence the payments were accepted or agreed to be accepted, expressly or impliedly, in full of the claim. In these circumstances the acceptance cannot be held to have constituted either estoppel, accord or satisfaction. [Pollman Coal Co. v. St. Louis, 145 Mo. l. c. 656, et seq.]

II. The next point made is that sufficient pressure was not furnished to carry water to the upper floors of the Hospital; that this was a breach of the contract and precludes recovery for the water actually furnished and received. The only principle advanced in support of this is that relator “ cannot sue on one cause of action and recover on another.” No counterclaim was pleaded. Relator contends the contract did riot cover any liability for lack of pressure. The contract need not be construed. The Hospital accepted the water furnished. The point is ruled against appellants for the reason given in Waterworks Co. v. Joplin, 177 Mo. 1. c. 526 et seq., and cases cited.

III. It is contended that a question vital to the case was decided in State ex rel. v. Geiger, 246 Mo. 74, and that relator is estopped thereby. That was a final decision in a case between the same parties, Up0n a different claim or demand. In these circumstances “the inquiry must always be as to the point or question actually litigated and determined in the original action; not what might have been then litigated or determined.” [Cromwell v. Sac County, 94 U. S. 351, 353; approved in State ex rel. v. Mining Co., 262 Mo. l. c. 501, 502.] While the Mining Company case was a tax suit, the rule in this State is, in such cases, the same as the rule generally applicable, as the opinions in that case and cases cited (l. c. 500) show.

In the Geiger case, supra, the proceeding involved water delivered after July, 1909, and prior to February 23, 1912. Eelator relied upon the same contract here involved, and appellants (here) relied upon the same franchise ordinance. Eelator there contended it was erititled to be paid the 1905-contract rate of ten cents per thous- and gallons. Appellants (respondents there) contended the extension of the city limits abrogated the contract and that' the franchise ordinance rate of six cents applied. The contest was whether the one or the other rate was in force. The court summed up the controversy thus: “If, at the time of instituting this proceeding the contract of 1905 was in force, then the balance claimed by relator was due and it is entitled to the relief prayed for. On the other hand, if the extension of the city limits so as to include the hospital had the legal effect of limiting relator’s charges to the rate provided by the ordinance, then the writ should be denied. ’ ’

The court then held: (1) that in the absence of regulation by competent authority a public service corporation and consumers .may fix rates by contract; (2) that the extension of the city limits, in the absence of special provision to the contrary, extends to the added territory “all ordinances and contracts of a general nature;” (3) that the contract of 1905 was abrogated by the annexation of the hospital grounds; and (4) concluded that the ordinance rate governed.

In the Geiger ease the pleadings did not present and the court did not determine the question of the constitutionality of the ordinance as applied in that case §nd as sought to he applied in this. In a case like this, in which the suit is upon a different demand, it is not to be held that a question was determined by necessary implication which question the pleadings did not present and, under a long and firmly settled rule, is not raised for determination unless it is so presented. The identical question whether a constitutional question is precluded in a second proceeding in circumstances substantially like those in this case has been the subject of adjudication.

In Boyd v. State, 94 U. S. 645, Boyd had been indicted and convicted, under an act passed in 1871, of setting-up and carrying on a lottery without legislative authority. A previous act (1868) was conceded by the State authorities to authorize what Boyd did, if such act was constitutional. Boyd had complied with its terms. In a previous prosecution against Boyd, the State Supreme Court had held the Act of 1868 constituted a contract between the State and those complying with it. In the case then before the Supreme Court of the United States the question of the constitutionality of the Act of 1868 had been, for the first time, raised, and the State Court had held it was unconstitutional and affirmed Boyd’s conviction under the Act of 1871. In the United States Supreme Court the question was presented whether the State was estopped by the holding in the former prosecution. Upon this question the court said (1. c. 648) :

“It is true, that,-in a former case against the same defendant, upon an indictment of a similar kind, for a previous offense of setting up and carrying on a lottery, the Supreme Court of the State held that the statute in question constituted a contract, and that the repealing act was for that reason void. But in that case the only subject before the court was the meaning of the statute — whether its provisions in their terms amounted to a contract which a subsequent enactment could not impair. The constititionality of the act was not drawn in question; that was not denied.
‘ ‘ Courts seldom undertake, in any case, to pass upon the validity of legislation, where the question is not made by the parties. Their habit is to meet questions of that kind when they are raised, but not to anticipate them. Until then, they will construe the acts presented for consideration, define their meaning, and enforce their provisions. The fact that acts may in this way have been often before the court is never deemed a reason for not subsequently considering their validity when that question is presented. Previous adjudications upon. other points do not operate as an estoppel against the parties in new eases, nor conclude the court, upon the constitutionality of the acts, because that point might have been raised and determined in the first instance. So when, in the present case, the point was taken for the first time against the constitutionality of the Act of 1868, the court was not precluded by the previous decisions from freely considering and determining it.”

In Philadelphia v. Railway, 142 Pa. 1. c. 493, it was said

“The argument of the company’s counsel now is that, although, in the case referred to, the point does not appear to have been made or decided, yet the constitutionality of the Act of 1872 must be taken to have passed in rein judicatam; that the judgment in that case necessarily involved a decision that the statute imposing the tax was to that extent valid, and, although the cause of action is not the same, the city is estopped of record from re-litigating that question. [Cases relied on by counsel are then cited.]
“Whilst the general rule declared in these authorities is undoubtedly correct, it does not extend to estop a person from setting up the unconstitutionality of a statute, when the cause of action is not the same. The former judgment is absolutely conclusive upon parties, as to the cause of action involved in it, although the statute upon which the proceedings were taken was not constitutional; that judgment can only he impeached collaterally. for fraud or want of jurisdiction. It is a matter of no consequence now that the Act of 1872, upon which judgment was entered for the amount of the tax, was unconstitutional and void; judgment having been entered, and no appeal taken, the subject-matter of the issue in that suit is res judicata. The former judgment, therefore, operates as a bar to any subsequent action founded on the same demands. [Bigelow on Estop. 80-88.] In the case at bar, however, whilst the point in issue may perhaps he the same, the cause of action is different; and, although the verdict) with the judgment thereon, would furnish conclusive evidence of the matters in controversy upon which the verdict was rendered, and operate as a bar to the further litigation thereof, it would not preclude the plaintiff in this suit from asserting the unconstitutionality of the act upon which the previous action proceeded. [Bigelow on Estop. 90-103.]”

The rule has other support: Freeman v. Barnum, 131 Cal. l. c. 389; Bigelow on Estoppel (6 Ed.), pp. 112, 113; Cromwell v. County of Sac, supra.

The principle is sound, applicable and determinative of the question before us.

This disposes of all questions appellants present. The judgment is affirmed.

All concur except Woodson, J., not sitting.


author: WILLIAMS, J.

text:
    THE STATE ex rel. CHARLES S. THOMPSON, Appellant, v. G. B. ARNOLD et al., Composing Board of Election Commissioners of St. Louis.
    In Banc,
    June 25, 1919.
    1. ELECTION: Irregularity. An election irregularity is not fatal to tlie validity of the whole return of the precinct in which it occurred, unless made so by the statute, or unless it is such as probably prevented a free and full expression of the popular will.

      2. -: -; Stolen Registration Book: Verification Lists. The fact that the registration book wds stolen after it had been properly prepared and placed in the hands of the proper officer of the precinct, and that the statute declares that no vote shall be received by the election judges unless the name of the voter appears upon the registration book as a qualified voter, would not alone render invalid the entire return from the precinct. The mere fact that the registration book was not present at the polling place would not change the contents of the book; and where the election officials had in their hands duly authorized “verification lists” of the qualified and registered voters of the precinct, prepared as the statute required, and prepared before the registration book was stolen, and corresponding and agreeing with the registration book, and those “verification lists” were used at the election, and there is no pretense that the names of the persons who voted at such election were not upon the registration book, it cannot be held that the mere fact that the registration book was stolen invalidated the entire return from' said precinct, or that the names of the voters whose votes were received were not on the registration book.-
    Appeal from St. Louis City Circuit Court. — Hon. Benj. J. Klene; Judge.
    Affirmed.

      T. J. Boitue and Thos. J. Rcnve, Jr. for appellant.
    (1) The writ of mandamus will not only require a ministerial officer to proceed to do his duty, hut it also will indicate what his" specific duty is. In this case the specific duty of the Board of Election Commissioners was to refuse to count the votes for the Ninth Precinct of the Nineteenth Ward. State ex rel. Metcalf v. Garesche, 65 Mo. 489; State ex rel. Booth v. Moss, 172 S. W. 1181. (2) The statutory provision, “The vote of no one shall be received by said judges whose name does not appear upon the books of registration as a qualified voter,” is mandatory. Hehl v. Guión, 155 Mo. 82; Nance v. Kearbey, 251 Mo. 383; Horsefall v. School District, 143 Mo. App. 545;. Ledbetter v. Hall, 62 Mo. 424. (3) The return of respondents shows that they knew that the judges of election in the Ninth Precinct of the Nineteenth Ward had no registration hooks and they knew that no one conld vote in the Ninth Precinct of the Nineteenth Ward, consequently they knew that no election was held in the said Ninth Precinct of the Nineteenth Ward, and it was their duty to refuse to canvass and count any votes that the judges of sain precinct returned. (4) There is no statutory provision which permits the judges of election to use a verification list in lieu of the registration books.

      Henry Kortjohn, Jr. for respondents.
    (1) The duty of a canvassing board is purely ministerial, and is confined to easting up the vote certified by the election officers (the judges and clerks of election). Mayo v. Freeland, 101 Mo. 632; State ex rel. Metcalf v. Garesche, 65 Mo. 487; State ex rel. Bland v. Rodman, 43 Mo. 260; State ex ., rel. Atty. Gen. v. Steers, 44 Mo. 227; State ex rel. Atty. Gen. v. Vail, 53 Mo. 112; State ex rel. Ewing v. Townsley, 56 Mo. Ill; State ex rel. Ford v. Trigg, 72 Mo. 365; State ex rel. Hughlett v. Finley, 74 Mo. 216; State ex rel. Steadley v. Stuckey, 78 Mo. 544; State ex rel. Anderson v. Booth, 187 Mo. App. 151. (2) The returns made by the judges and clerks of election, being the genuine and legal returns, and there being nothing to indicate that a change had been made in such returns since signing the same by the judges a.nd clerks, or any fraud in any respect touching such returns, the duty upon the canvassing board was not judicial, but merely ministerial. State ex rel. Metcalf v. Garesche, 65 Mo. 488; R. S. 1909, sec. 6234; State ex rel. Jamison v. Lesueur, 126 Mo. 416. (3) Even if the law permitted the canvassing board, being the respondents in the case at bar, to go behind the official returns of the judges and clerks, the admitted facts from the record in this case show the election in the disputed precincts, as well as in all other precincts, to have been regular, legal, without fraud, and at which only qualified electors voted, and no qualified electors were deprived of their votes. Gass v. Evans, 244 Mo. 343; ■ McCrary on Elections (3 Ed.), 124, par. 190, 191; State ex rel. Reid v. Lebleu, '28 L. R. A. (N. S.) 989. (4) Whether or not a law requiring a certain. course of conduct or thing' to be done in connection with the election laws is mandatory, as distinguished from directory, so that a failure to comply with it vitiates the election, depends upon whether or not the law expressly, in specific terms, invalidates the election on account of such failure, or if on account of such failure the election would have resulted otherwise than if did. Bowers v. Smith, 111 Mo. 61; Miles v. City of Macon, 193 Mo. App. 316; Nance v. Kearbey, 251 Mo. 374; ' Gass vv Evans, 244 Mo. 329; Ledbetter v. Hall, 62 Mo. 422; State ex rel. Miles v. Ellison, 269 Mo. 156; Hehl v. Guión, 155 Mo. 81; McCrary on iftections (3 Ed.)', 124, par. 190, 191. (5) It is admitted that the. name of every qualified voter entitled to vote was contained on the registration books in both of the precincts in question, that they all registered prior to the election, and nobody’s vote was received by the judges whose name did not appear upon the books of registration as a qualified voter. In one precinct the original registration book was used. In the other precinct an exact copy of the names ■ and addresses of voters appearing on the stolen registration books was used. This does not vitiate the election in those precincts. McCrary on Elections (4 Ed.), p. 98, sec. 131; In re Wheelock, 82 Pa. St. 297; Pickett v. Russell, 42 Fla. 134.
   WILLIAMS, J.

This is a mandamus proceeding, originally instituted in the Circuit Court of the City of St. Louis, whereby relator sought to compel the respondents to issue him a certificate of election to the office of Justice of the Peace for the Fifth Justice of the Peace District of the City of St. Louis. Upon a trial in the circuit court judgment went for respondents, and relator duly perfected an appeal.

Relator’s petition in substance alleges that he was, at the .general election held in said district on November 5, 1918, duly elected to the office of Justice of the Peace for the Fifth Justice of the Peace District of St. Louis, by receiving a majority of the votes cast for said office; that a majority of respondents composing said Board of Election Commissioners, although demanded so to do, had refused to issue to him the certificate of election for said office; that relator is remediless through the ordinary process of law, and therefore prays a writ of mandamus compelling the issuance to him by respondents of the said certificate of election.

Respondent’s return (caption and signatures omitted) was as follows:

“Now come U. B. Arnold, Charles J. Lammert, Vincent Dempsey and O. E. Buder, composing the Board of Election Commissioners of the City of St. Louis, Missouri, and for return to the alternative writ of mandamus, heretofore issued in this cause, state as follows:
‘ ‘ ‘ That Charles S. Thompson, Andrew Gazzolo, Jr., William J. Blesse and Gabriel Roth were candidates for the office of Justice of the Peace for the Fifth Justice of the Peace District in the City of St. Louis and State of Missouri, at the general election held in said Fifth Justice of the Peace District, on the 5th day of November, 1918, the said Andrew Gazzolo, Jr., and Charles S. Thompson being the Democratic candidates for said office, and William J. Blesse and Gabriel Roth being the Republican candidates for said office, and Louis Hy. Chernow being the Socialistic candidate, the names of said candidates being printed on their respective party tickets voted at said election; that in said district two justices of the peace were to be elected.
£ £ These respondents, for further return, state that in each and all of said respective voting precincts in said Fifth Justice of the Peace District there had been provided two registry books, as required by Clause 9 of Section 6191 and Section 6198, Revised Statutes 1909, arranged alphabetically, according to the surname of each person applying for registration, showing the number and name of the street or avenue on which he resides, his nativity, color, age, occupation, term of residence (indicating the periods by days, months or years stated by the applicant) in precinct, city and State, naturalization, how naturalized, and if the applicant was a foreign-born that ,he had declared his intention to become a citizen of the United States, the court, time and place where such declaration was made, that the applicant is or is not a qualified voter, the date when applicant applied to be registered and the signature or mark of the applicant, witnessed by one of the judges of registration. That besides these registry books there 'was provided by these respondents for each of the precincts in said district, two ‘Verification Lists’ and a printed list, as required by Sections 6202, 6205, Revised Statutes 1909, showing the names and addresses and color of all the voters- open and unerased on each of the respective registry books in said precincts on the 19th day of September, 1918; that said ‘Verification Lists’ .are prepared and executed by the clerks of registration in conformity with Section 6202, aforesaid, by transferring all the names open upon the registers to the left-hand pages of said ‘Verification Lists,’ arranging them according to the streets, avenues, alleys, or courts, beginning with the lowest residence number and placing them numerically, as nearly as possible, from the lowest up to the highest number; that when said ‘Verification Lists’ are correctly compiled the same contain all the names and addresses of registrants contained in the said registry books, of each of said precincts, both original and copy, but do not contain any other information contained in either of said registry books.
“Respondents further state that the clerks in each of the respective precincts in said district were required to canvass their precincts, using the ‘Verification Lists,’ which canvass is made on the day after registration, being on Friday and Saturday, of the seventh week prior to a Presidential election and on Friday of the seventh week prior to any other election. That said canvass is made by the two clerks in each precinct accompanying each other and ascertaining whether the persons upon the registers reside at the places where registered on the day of said canvass. If such canvassers learn that any person upon their ‘Verification Lists.’ does not reside at the place designated therein, they are required to make a check mark ‘X’ opposite such name and notify such registrant, and any other registrant opposite whose name the judges of election on registration day may have placed a check mark ‘X’ indicating that his right to have his name remain on the registers has been challenged, to appear on revision day, on Friday of the fourth week prior to election, to show cause why his name should not be erased from- the registers and to send to such registrant a similar notice by mail not later than ten o’clock of the following Monday; that a revision of the registration by the Board of Registry, consisting of the judges and clerks of election, is required to be held on Friday of the fourth week prior to the election, as provided by Section 6206, Revised Statutes 1909, on which said date •the Board of Registry erases from the registers of each precinct all names of voters to whom notice above mentioned has been given and mailed and who Tail to respond to same; that the last registration day previous to said election on the 5th day of November, 1918, was September 19, 1918; that a canvass of thé registration was made-on the Friday following said registration day and that said registers were revised by the Boards of Registry in said district on the 11th day of October, 1918; that in addition to the canvass made by the clerks, as aforesaid, a police canvass of the printed list of the entire registration after the close of registration on September 19, 1918, of the Ninth and Tenth Precincts' of the Nineteenth Ward, in said Justice of the Peace District, was made subsequent to said revision and prior to said election.
“These respondents further state that transfers of registered voters were made out of and into the precincts comprising said Fifth Justice of the Peace District, up to and including the 30th day of October, 1918, as required by Section 6213, Revised Statutes 1909, and registration of ‘invalids’ and ‘absentees’ in said precincts was permitted on said last mentioned date, as required by. Section 6214, Revised Statutes 1909.
“These respondents further state that in compliance with Section 6216 they caused to be delivered to the respective judges of the respective precincts of said district, at their residence, one of the registers ■ of each respective precinct and the key to the ballot box, and to a judge of the opposite political faith, at his residence, the other of said registers, ballot box, poll books and necessary blanks and stationery and sealed packages of ballots; that after said delivery of said registry books, as aforesaid, and on the day before the election, to-wit, the 4th day of November, 1918, persons unknown to these respondents wrongfully and unlawfully obtained possession of both of the registry books in Precinct 9, Ward 19, and one of the registry books in Precinct 10 of Ward 19, which said precincts are in said district; that said books were made way with or destroyed by said persons and were unavailable for the use of the judges and clerks of election on the 5th day of November, 1918; that upon being advised of the theft of such registers, as aforesaid, the Board of Election Commissioners delivered to the judges of election in said Ninth Precinct of the Nineteenth Ward the ‘Verification Lists’ of said precinct, described as aforesaid, and instructed the judges and clerks of election in said Ninth Precinct tt> conduct the election as best they could by the use of said ‘Verification Lists;’ said judg'es of election were also instructed not to permit any name ‘X’ marked on said ‘Verification Lists’ to be voted by any person; that said judges of election in said Tenth - Precinct of the Nineteenth Ward were instructed by the Board of Election Commissioners to conduct the election with the use of the original registry-hook, which had been delivered to them as aforesaid;. that at the close of said election the judges and clerks made their returns to the Board of Election Commissioners of the election in said precincts, in the same manner and form as the judges and clerks of election in all other precincts of said district and as required by law; that the returns made by said officials of said Ninth and Tenth Precincts are in due form and purport to be the official returns of the election held in said precincts of said district ■ on said 5th day of November, 1918.
“Respondents further state that they received, in due course, the returns of all the judges and clerks of election in each of the precincts comprising said Fifth Justice of the Peace District, and that within eight days after said election said’ Board of Election Commissioners proceeded to canvass and cast up the returns of said election in said district; that in canvassing and counting the votes cast for Justice of the Peace in said Fifth District, Commissioners Arnold and Lammert held that the election in said Ninth and Tenth Precincts of said Nineteenth' Ward was not in conformity with the laws governing said election, and that thé purported returns of the judges and clerks in said two precincts were not legal returns, and that in canvassing and counting the votes for Justice of the Peace in said Fifth District the returns from said two precincts should not be considered; that Commissioners Dempsey and Buder held that the absence of the ^voting registers in said precincts, as aforesaid, did not invalidate the returns from said precincts, and that the same should be canvassed and counted as the legal returns of said precincts, along with all other returns from said Justice of the Peace District, and the result of the election declared thereon; that the returns as made by the judges and clerks of election for the Ninth Precinct of the Nineteenth Ward in said district was as follows:
Andrew Gazzolo, Jr., received...... 25 votes
Wm. J. Blesse received .......... 223 votes
Gabriel Roth received ............ 223 votes
Charles S. Thompson received...... 23 votes
Lonis Hy Chernow received ...... 2 votes
“That the returns as made by the judges and clerks of ■ election for the Tenth Precinct of the Nineteenth Ward in said district was as follows:
Andrew Gazzolo, Jr., received...... 40 votes
Wm. J. Blesse received .......... 219 votes
Gabriel Roth received ............ 222 votes
Charles S. Thompson received ..... 38 votes
Louis Hy Chernow received......... 2 votes
“That the result of the election for Justice of the Peace in said district, excluding the returns of said Ninth and Tenth Precincts of said Nineteenth Ward, as shown by the official returns from all other precincts in
said district, was as follows:
Andrew Gazzolo, Jr............. 2999 votes
Wm. J. Blesse ................... 2621 votes
Gabriel Roth ................... 2571 votes
Relator Charles S. Thompson..... 2829 votes
Louis Hy Chernow ......'........ 47 votes
“That the result of the election for Justice of the Peace in said district, including the returns of said Ninth and Tenth Precincts of said Nineteenth Ward, as shown by the official returns from all of the precincts
in said district, was as follows:
Andrew Gazzolo, Jr.........•..... 3064 votes
Wm. J. Blesse ................... 3063 votes
Gabriel Roth .................... 3016 votes,
Relator Charles S. Thompson .... 2890 votes Louis Hy Chernow .............. 51 votes
“These respondents further state that by reason of the division of opinion among the members of the Board of Election Commissioners, as aforesaid, no certificate of election has been issued to -either relator Charles S. Thompson or William J. Blesse, and that as long as these respondents are divided in opinion as to the legality of the returns in said Ninth and Tenth Precincts of said Nineteenth Ward no certificate of election for Justice of the Peace can he issued to either the relator or said William J. Blesse.
“Wherefore, these respondents, having fully answered and made return to the alternative writ of mandamus heretofore issued by this Honorable Court, do respectfully pray the judgment of this Honorable Court as to the legality of the returns of said Ninth and Tenth Precincts of said Nineteenth Ward and the judgment of this court accordingly.”

Thereupon relator • filed a motion for judgment on the pleadings, and upon the issues thus made trial was had, resulting as above stated.

I. Appellant in his brief refers only to the election returns from the Ninth Precincts of the Nineteenth Ward of the City of St. Louis, and we will therefore limit the discussion to that precinct.

It appears from the pleadings that the votes returned from the Ninth Precinct were sufficient to change .the result of the election. If the votes, as returned from this precinct, are to be counted, the appellant was defeated and therefore the judgment below was proper. If the return from this precinct is to be disregarded, then appellant was elected aid would be entitled to his certificate of election.

From the admitted facts it further appears that on the day preceding the election some person, unknown to respondents, stole the registration books of this precinct, then in the hands of the judges of election, and made way with the same, so that they were not available for use in that precinct on election day.

Section 6216, Revised Statutes 1909, provides that the Election Commissioners of St. Louis (respondents) on the day preceding any election “ shall have delivered to one of said judges at his residence, one of the registers (being a book containing the names of all registered qualified voters) of said precinct, and the key or keys if there be more than one to the ballot box, and to a judge of the opposite political party, at his residence, the other of said registers, the ballot box, poll books, verification lists and necessary blanks and stationery and a sealed package of ballots.” (Parenthesis ours). This statute was complied with by the proper authorities.

Section 6220, Revised Statutes 1909, prescribes the procedure at the polls on election day and among other things provides that “the vote of no one shall be received by said judges whose name does not appear upon the books of registration as a qualified voter.”

Appellant’s position, as we understand it, may be briefly summarized as follows: (1) Absent the books of registration the judges of election could not know whether the voter’s name appeared upon said books and therefore a legal or valid election could not have been and was not, for that reason, held in said precinct; (2) There having been no valid election in said precinct for the reasons given, the returns made by the judges of said precinct were null and void and could not be counted by the respondents in canvassing and casting up the returns of said election.

II. This is not an election contest case, but merely a proceeding by mandamus to compel respondents to issue a certificate of election to the appel|an^ on theory that the legal returns show him to have been elected to the office.

Appellant’s counsel, no doubt keeping in mind the difference between a suit to contest an election and this present proceeding in mandamus, frankly stated in oral argument that if a valid election were held in this precinct on election day then his client’s case must fail.

III. The precise question therefore for determination is: Did the absence of the books of registration on the day of election render the election in this particular precinct void?

After a careful consideration of the matter we have reached the conclusion that this question must be answered in the negative. The well established rule, here applicable, is that an election irregularity is not fatal to the validity of the whole return of the precinct unless made so by the statute on the subject or unless the irregularity is such as “probably prevented a free and full expression of the popular will.” [Bowers v. Smith, 111 Mo. 45, l. c. 61-62; Hehl v. Guion, 155 Mo. 76, l. c. 83; Nance v. Kearbey, 251 Mo. 374, l. c. 383; McCrary on Elections (4 Ed.), p. 171; 9 R. C. L. p. 1093, par. 102; 15 Cyc. 372, 373.]

Applying the foregoing rule to the present case we find no statute which by express terms or by fair implication declares that the absence of the registration boohs would invalidate the return of such precinct. Section 6220, supra, providing that no vote shall be received by the election judges unless the name of the voter appears upon the books of registration as a qualified voter, can certainly not be given such effect.

The mere fact that the books of registration were not present at the polling place, would not change the contents of said books. And where, .as here, the election officials had in their hands (Sec. 6216, R. S. 1909) duly authorized verification lists of the qualified and registered voters of said precinct, which verification lists under the statute (Sec. 6209, R. S. 1909) are required to “correspond and agree” with the books of registration, it appears that little difficulty would be encountered by the judges of election in determining from such official evidence in their possession whether the name of the voter was upon the books of registration. It is not ever contended by appellant in the present proceeding that the names of the persons who voted in said precinct did not appear upon such registration books.

Since the judges of election had-in their possession sufficient evidence by which they could determine this fact the presumption is, nothing to the contrary appearing, that they performed their duty and received the votes of all persons offering to vote whose names appeared upon the books of registration and none other. Under such circumstances a valid election was held in said precinct and the court would not be warranted in treating the return from that precinct as null and void. [Hampton v. Waldrop, 104 N. C. 453; 15 Cyc. 365.]

In this case we are not concerned with the question of whether there may have been some 'illegal votes cast in said precinct. No question of that kind is raised or even suggested in this proceeding, which, as above intimated, is quite proper, since this is not a suit to contest the result of an election. But as above stated, appellant’s success in the present proceeding depends upon his presenting a ground which would strike down the entire return from this precinct on the the&ry that a valid election was not held in said precinct. The grounds presented do not show that the election in that precinct was void.

From the foregoing reasons it follows that the judgment of the circuit court should be affirmed.

It is so ordered.

Walker, Faris, Blair and Graves, JJ., concur; Bond, C. J., concurs in the result; Wood-son, J., absent.


text:
    THE STATE ex rel. JAMES A. WATERWORTH et al. v. A. L. HARTY, Superintendent of Insurance, Appellant.
    In Banc,
    June 25, 1919.
    1. APPEAL: Insurance Bates: Act of 1915. The Act of 1915, Laws 1915, p. 313, provides by Section 15 thereof that certain “orders and directions” of the Superintendent of Insurance “shall be reviewable by a proper action in the courts,” and does not purport to interfere with the existing fight of appeal, and is broad enough to permit to the Superintendent an appeal from the judgment of the circuit court increasing by ten per cent'all existing fire-insurance rates, contrary to his order refusing to make such increases.

      2. INSURANCE RATES: Admission of Validity of Legislation. The institution by insurance companies of a suit to compel the Superintendent of Insurance to permit an increase in all existing fire-insurance rates necessarily involves an assumption on their part of the validity of the legislation regulating said rates.
    3. -: Increase: Legislative in Character. The power to regulate fire-insurance rates, called into existence by the presence of a public interest, falls within the police power of the State, and is purely legislative in character.
    4. -: -: Attitude of Courts. Legislation looks to the future, and changes existing conditions by making a new rule to be applied thereafter; a judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposedly already in existence.
    5. -:-: Power of Court. Under the Constitution the courts have no power to compel the Superintendent to establish a schedule of fire-insurance rates applicable to future policies. The Legislature has power to fix rates, and the extent of judicial interference js protection against unreasonable rates already fixed by it or by some administrative agency to which the power is delegated.
    6. -: Constitutionality of Statute: Admitted. Where the sole purpose of the action is to compel the Superintendent of Insurance to approve proposed increases in fire insurance rates, the point that the statute declaring that existing rates shall not be raised until his approval is obtained, in so far as it attempts to restrict the right of insurance companies to increase their rates, is unconstitutional, is not in the case. The proceeding necessarily assumes the validity of' the requirement that the proposed increases must have his approval.
    Appeal from Cole Circuit Court. — Hon. John G. Slate, Judge.
    Beversed.

      Frank W. McAllister, Attorney-General, and John T. Gose; Assistant Attorney-General, for appellant.
    The State has the absolute power to condition the doing of business in this State by insurance companies or to exclude them at will. Hooper v. California, 155 U. S. 652; New York Life Ins. Co. v. Cravens, 178 U. S. 397; Waters-Pierce v. Oil Co., 177 U. S. 46.

      John S. Leahy and Charles G. Bevelle for respondents.
    (1) Acts of the General Assembly, Laws 1915, p. 313, unlike the laws relating to the Public Service Commission (Laws 1913, p. 556), contains no provision that the official act of the official shall be reviewabie in the Circuit Court “as suits in equity;” nor does it contain any provision providing for an appeal from the decision of the circuit court. Laws 1915, sec. 15, p. 318; Duluth Street Ry. Co. v. Railroad Com.,*161 Wis. 271; Chicago, B. & Q. Ry. Co. v. Public Service Com., 266 Mo. 340. (2) This -legislation must be construed with reference to its principal purpose to provide for. the protection of the public, not only in the matter of the reasonableness of rates, but likewise as regards the continued solvenqy of the insurers. Ins. Co. v. Welch, 49 Okla. 626; Citizens Ins. Co. v. Clay, 197 Fed. 437; State ex rel. Martin v. Howard, 96 Neb. 293; German Alliance Ins. Co. v. Lewis, 233 U. S. 414; State ex rel. Rhodes v. Public Service Com., 270 Mo. 547, 563. (3) The Rating Act of 1915 is constitutional only if it permits reasonable earning's by the insurance companies. Minn. Ry. Co. v. Minn., 186 U. S. 267; Covington v. Sanford, 164 U. S. 592; Railroad Co. v. Minn., 134 U. S. 418, 33 L. Ed. 979; Ball v. Railway Co., 93 Fed. 516; Atty. Geni. v. Road Co., 55 Pa. St. 466; State v. Railway Co., 46 Neb. 682; Western Union Teleg. Co. v. Com., 74 Miss. 80; State ex rel. v. Pub. Service Com., 270 Mo. 579, 583; Nalley v. Home Ins. Co., 250 Mo. 452. -
   BLAIR, J.

This is an appeal from a judgment of the Cole County Circuit Court whereby the State Superintendent of Insurance is commanded to permit to be filed and to approve a ten-per-cent increase on all fire insurance rates in force in Missouri. Relators sue in behalf of one hundred and thirty insurance companies in business in Missouri.

The petition was filed in the Circuit Court of Cole County. It alleges, among other things, that (1) relators are authorized under the Act of 1915 to make and file with the Insurance. Department of this State rates and charges to he charged by fire insurance companies doing business in Missouri; (2) March 27, 1918, they filed with the Superintendent a schedule of'rates “by which they proposed to increase for the companies respresented by them all fire insurance rates in the State of Missouri to-the extent of ten per cent” above the rates in force, and “requested (a) the approval of the Superintendent of insurance of such increase in rates and (b) his permission to put the increased rates,in force;” (3) that at a time and place designated by the Superintendent,- relators, produced proof “which warranted and made necessary said increase . . . and that it thereupon became the duty of the said Superintendent ... to permit said increase in rates to become effective and operative in Missouri, but that, notwithstanding the premises,” the Superintendent rejected the increase and refused to permit it to. become effective and still so refuses; (4) relators offer to show that during the five years prior to March 27, 1918, the existing rates were inadequate and that the proposed increase is necessary to pay losses, operating expenses, and discharge lawfql obligations; (5) that rates in force are and will be insufficient to cover “legitimate losses and necessary operating expenses” during 1918 and following years, and that unless the proposed increase is permitted the fire companies operating in Missouri must operate at a loss or cease business in the State; (6) that since the war began losses and operating expenses have greatly increased ; that about eighty per cent of losses in Missouri are partial losses; that these are measured by cost of replacement, which cost has greatly increased and represents “approximately twenty per cent of the premium income received” by insurers on Missouri risks under existing rates; that taxes, “Federal, State and municipal,” have increased since the war began to an amount about equal to six per cent of the premium income in Missouri under existing rates; that other expenses have increased proportionately, and that the proposed increase of rates is necessary to enable the' companies to meet legitimate expenses and pay legal obligations; (7) that during the ten years preceding March 27, 1918, the rates in force have been approximately the same as existing rates, and during that period a loss of “many millions of dollars” has been incurred, and that the rates in force are “confiscatory and result in the taking of the property of the insurance companies without due process of law;” (8) that a motion to set aside the Superintendent’s refusal to approve the proposed schedule was filed, and relators offered to adduce convincing proof of the necessity of the proposed increase, but that this motion the Superintendent overruled. This sufficiently epitomizes the allegations of the petition. Its prayer is as follows:

“Whereupon relator prays that in accordance with the laws of the State of Missouri regulating fire insurance rates, this honorable court make an order requiring respondent to certify to this court within five days from the date hereof all books, papers and files relating to or filed in connection with said filing of increased rates and application for approval thereof, together with a copy of his order and finding relating to said proposed increase in rates, and that this honorable court proceed at once to judicially review de novo and in all things the said ruling and. finding of respondent, and that this honorable court hear the evidence and determine the facts as to the truthfulness of the allegations herein contained, and that upon a final hearing this court order and direct said Superintendent of the Insurance Department to permit said James A. Waterworth and said Harold M. Hess to file and publish said proposed rates and schedule of rates and said proposed increase in rates, and that they and the companies which they represent be authorized and permitted to collect in the State of Missouri said increased rates, and for such other and further relief as to the court may seem just.”

The answer admits (1) the filing of the proposed increased rates and affidavits in support thereof; (2) the Superintendent’s refusal to approve the increase; (3) the filing of “a motion to reopen the whole matter,” and (4) the overruling thereof. The answer then denies the remaining allegations and, continuing, avers (1) that appellant’s power to approve or disapprove rate increases is a discretionary one and not subject to control by the courts; (2) that the court had no power or jurisdiction “through a new and independent hearing” in court to control appellant’s action in refusing to approve increased rates after he had heard and acted upon evidence offered; (3) that acquiescence hy insurance companies in appellant’s action on proposals for increased rates is a condition precedent to their doing business in this State, which condition the Legislature has imposed and the courts cannot “in an independent investigation” annul; (4) that appellant has no authority to approve a flat ten-per-cent increase of rates; (5) that within the preceding year a rate increase was approved and sufficient time had not elapsed to authorize the approval of a further increase; (6) that this proceeding is an attempt to compel appellant to act in a particular manner; and (7) that this is an effort to increase insurance rates by action of courts of the State in direct violation of Article III of the Constitution of Missouri.

The matter was referred June 30, 1918. January 6, 1919, the referee filed his report in which he found that the refusal of the Superintendent to grant the increase requested was unreasonable. Exceptions were filed and overruled. The judgment sets out the conclusions of the referee; finds that the action of the Superintendent in refusing to approve the proposed increase was “unreasonable, erroneous and in derogation to the just rights of the petitioners;” sets aside the Superintendent’s order, and adjudges that relators be permitted to file in the Superintendent’s office “the proposed schedule and the said proposed increase of all fire insurance rates in the State of Missouri to the extent of ten' per cent over and above the rates now charged and permitted to he charged by the insurance companies in the State of Missouri, and that said A. L. Harty, Superintendent of Insurance of the State of Missouri, approve such filings and increase of rates so filed by said James A. Waterworth and Harold M. Hess, attorneys-in-fact for said insurance companies as aforesaid, and that said increase of rates he and are effective in the State of Missouri forthwith.” Then follow the allowances and judgment for costs.

I. Respondents suggest that the Act of 1915 (Laws 1915, p. 313) under which this proceeding purports to have’been begun, does not provide for an appeal from the judgment of the circuit court. Section 15 of that ac^ c011laills tfi-e only provision under which it could be argued relators could maihtain this proceeding. That section provides that certain "“orders and directions” of the Superintendent “shall be reviewable by a proper action in the courts,” etc. . The act thus remits complainants to a proper action. The act does not purport to interfere with the existing right of appeal in all actions under the general code and contains no language from which any such restriction could be implied. It does not pretend to furnish any complete system of relief which might exclude appeals not provided in the act. The contention cannot be sustained.

II. The institution of this proceeding under the Act of 1915 (Laws 1915, p. 313) necessarily involves, on the part of respondents (relators in the circuit court), ian assumption of the validity, in principle, of legislation regulating fire insurance rates. The authorities are in general accord upon the question. [German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 189 Fed. 769; Citizens’ Ins. Co. v. Clay, 197 Fed. 435; Ins. Co. of North America v. Welch, 49 Okla. l. c. 624, 625; State ex rel. Martin v. Howard, 96 Neb. l. c. 291, et seq.]

III. Appellant points to many obstacles which he contends intervene between respondents and an affirmance of the judgment in this case. The first question necessary to be decided is whether the courts l'iave power to compel the approval by appellant of new rates for application to future business.

The Act of 1915 makes reasonableness the test of rates. Section 5. (p. 315, Laws 1915) provides that rating records ‘ ‘ shall show the rate which such insurers propose to charge and collect, but any insurer . . ' . or any actuarial bureau shall be permitted to change or lower its rate or rates whenever it sees fit, provided that rates shall not be raised until at least ten days’ notice has been given by the insurance company to the Superintendent of Insurance and his approval obtained (Italics are ours.) Section 15 provides that during the pendency of an action to review an order, no insurer shall charge a'rate in excess of that fixed by the Superintendent. What respondents .seek in this proceeding is a judgment compelling appellant do approve and permit to be put in force new rates constituting a ten-per-cent increase, over existing rates. Article III of the Constitution of this State reads as follows:

“The powers of government shall be divided into three distinct departments’ — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall. exercise any power properly belonging to either of the others, except in the instanced in this Constitution expressly directed or permitted.”

The power to regulate insurance rates arises out of the same considerations Which give origin to the power to regulate other rates, i. e. the business is affected or “clothed” with a public interest. [German Alliance Ins. Co. v. Kansas, supra.] The power to regulate rates, called into existence by the presence of a public interest, falls within the police power of the State and is purely legislative in character. [State ex rel. v. Public Service Comm., 294 S. W. 497; Interstate Com. Comm. v. Railway, 167 U. S. l. c. 499, 500, and cases cited.] It is not contended legislative powers can be delegated to or exercised by the courts. The constitutional provision above set forth expressly prohibits it. It is insisted that this proceeding involves no violation of the constitutional principle. By the statute under which this suit is brought it is explicitly provided, among other things, that “rates shall not be raised” until prescribed notice has been given to the Superintendent “and his approval obtained.” Obviously, the proposed rates are not yet existing and cannot, under the act, become rates at all until the Superintendent’s approval has been secured. The approval of the Superintendent is essential to the transformation of the proposed rates into existing rates. This approval is the final act in the process of making increased fire insurance rates. This final act in the process of rate-making this court is asked to compel the Superintendent to perform. “A judicial inquiry investigates, declares and enforces liabilities as they stand on present, or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is a making of a rule for the future, and, therefore, is an act legislative, not judicial in kind. ’ ’ [Prentis v. Atlantic Coast Line, 211 U. S. l. c. 226 and cases cited; Interstate Com. Comm. v. Railway,, supra.] “The courts are not authorized to revise or change the body of rates imposed by a legislature or commissio.n; they clo not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work,” but may and should restrain the operation of confiscatory rates. [Reagan v. Farmers’ Loan & Trust Co., 154 U. S. l. c. 395.] “The legislature has power to fix rates, and the extent of judicial interference is protection against unreasonable rates.” [Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. l. c. 344; Express Cases, 117 U. S. l. c. 28, 29; Traverse City v. Comm., 168 N. W. l. c. 483; City v. Madison G. & E. Co., 129 Wis. 249.] In Prentis v. Atlantic Coast Line, supra, it was said: “Litigation cannot arise until the moment of legislation is past.” It is clear from the principles announced in the authorities cited that the courts of this State, under our Constitution, are prohibited from participating in the process of establishing .a system or schedule of rates for application to future charges in a business subject to such regulation. Such duties are legislative in character and cannot be conferred upon or usurped by the courts.

It is suggested that so construed the Act of 1915 is unconstitutional, at least in so far as it attempts to restrict the right of insurance companies to increase their rates. This question is not in the case before us. The single purpose of this action is to compel the Superintendent of Insurance to approve the proposed increases. The only possible basis for such a proceeding is the requirement of Section 5 of the Act of 1915, that the increase shall not be effective until it is approved by the Superintendent. This proceeding necessarily assumes the validity of that requirement. If it is invalid, this case has no foundation of any kind. In these circumstances, repondents are not in a position to assail •the constitutionality of the statutory provision upon which they made their way into this court. We are, therefore, not called upon to express an opinion upon this question. ' M

IV.- There are numerous other questions presented by appellant. These cannot be considered. The facts in the record are snch that the powers of the con:rts are not called into action for their consideration or decision.

The judgment is reversed.

Walker, Williams and Graves, JJ., concur; Bond, G. J-, and Baris, J., concur in the result; Woodson, J., Pot- sitting.