author: BROWN, J.

text:
    THE STATE ex rel. LOUIS W. MORRISON v. CAMILLE J. STANTON.
    In Banc,
    June 7, 1911.
    1. DRAINAGE DISTRICT: Disqualified County Judges: Transfer to Circuit Court. Where two judges of the county court, for statutory reasons, are disqualified to hear and determine the petition for the organization of a proposed drainage district, for that one of them owns land therein and another is a cousin of the owner of land therein, the court has power to transfer to the circuit court the proceedings for organizing the district; and said circuit court has power, after such transfer, to proceed with the organization, the assessment of benefits, and the admeasurement of damages to those whose lands are taken or damaged.
    2. -: -: -: Personal Knowledge of Judges. The action of the county court in organizing drainage districts must be based upon evidence and reports "filed, and not upon the personal knowledge of the judges. Therefore the circuit court is as fully able to understand the evidence and apply the law as is the county court.
    3. -: -: -: Power of Circuit Court. The circuit court to which a proceeding to organize a drainage district has been, for statutory reasons, transferred from the county court, has jurisdiction and power to take all steps and do all things necessary to consummate the drainage that the county court would have had power to do had its judges not been disqualified to act in the premises.
    4. -: -: -: Notice by County Clerk: Makes Landowner Party: Remonstrance. Where the clerk of the county court, after the petition for the organization of the drainage-district had been filed and the engineer and viewers had been appointed and reported, and before the case had been transferred to the circuit court, -gave the notice required by statute, reciting the place of beginning, route and terminus of the proposed ditch, that notice- informed the owner of land within the proposed district that the ditch would pass through his land, and he was made a defendant by said petition and notice the same ás if he had been specifically naméd therein; and the fact that the county court was disqualified to hear and determine the matter of organization, benefits, etc., did not invalidate the notice, or excuse the said landowner from appearing in said court and formally making himself a party to said proceeding by filing a remonstrance, and it was his fault if he did not become an active defendant before the case was transferred to the circuit court.
    5. -: -: " ■ : Election of Special Judge. Therefore, the contention of said landowner that a member of the bar of the circuit court could not have been legally elected to sit as special judge to hear and determine the drainage proceeding, is without merit. The landowner who was notified of the proceeding in the way provided by law, and through his own neglect failed to enter his appearance and file his answer or remonstrance at the proper time, cannot be heard to complain that he was given no opportunity, before the regular judge ordered the election of a special judge, to agree with plaintiffs upon a competent lawyer to sit as special judge and try the cause.
    6. -: Special Judge: Right of Parties to Agree. Where the regular judge of the circuit court is disqualified to sit in the proceeding to organize a special drainage district, being an owner of land therein, he can direct the clerk to hold an election for a special judge. The statute providing that, before such an election is held, parties to an action are to be allowed an opportunity to agree upon a special judge, can apply only when plaintiff and defendant have entered their appearance.
    Prohibition.
    Writ denied.

      R. E. Sprigg for relator.
    (1) The proceedings for the organization of drainage ditches in the county court under article 4, chapter 122, Revised Statutes 1899', is an independent, special statutory proceeding intrusted by the Legislature alone to the county court, as a body of men peculiarly interested in and acquainted with the needs of the locality, and the county court has exclusive authority to incorporate such districts. The statute is complete in itself and the mode of.procedure exclusive. (2) See. 1779', R. S. 1809, now Sec. 4082, R. S. 19Q9‘, has no application to this cause, because the Legislature has seen fit to give the county courts exclusive authority to organize such districts. (3) This is1 manifest from a careful consideration of the whole of-article 4 of chapter 122, where it will be seen that it provides (in sec. 8292) that any person may file his exception to the decision of the county court upon the question of damages for lands taken, and prosecute an appeal to the circuit court, where a trial may be had by jury. If section 1779' be applicable in this case, and the case is certified to the circuit court, “which court shall proceed thereon to a final judgment and determination in like manner as the county court should have done,” as required in said section, then the circuit court has only the authority granted the county court, and jt would be impossible for any of the parties to have the right of appeal given them, to the circuit court, under the provisions of said article 4, and they are hereby deprived not only of a right specifically granted them under the statute, but also of their constitutional right under the State and Federal Constitution, and their property taken without due process of law. (4) There is no authority in law for the election of a special judge in this cause, even if it be conceded that the circuit court has jurisdiction after being certified to it by the county court, because the statute governing such cases specifically provides for the election of a special judge “when the parties to such cause fail to agree.” In this case there was and of necessity could not have been any “parties” before the court, because prior to the organization, only the petitioners were before the court, and hence there was no opposing party as contemplated by the statute to agree with. Sec. 3961, R. S. 1899'.

      I. B. Whitledge, Killian & Bond and James T. Greenwell for respondent.
    (1) The petitioner herein insists that the respondent has no jurisdiction in this cause, because the land for the organization of such districts is an independent statutory proceeding and the mode of procedure is exclusive in the county court. After a careful examination the respondent admits his inability to find any direct authority on this point, but practically the same argument and question was presented in this court in State ex. rel. v. Eiley, 203 Mo. 175, in opposition- to a change of venue from one circuit judge to another judicial district, and the contention disapproved' by this court. It is sufficient answer to such contention and argument to call attention to the mode of procedure provided by the statute. The statute requires that a petition shall be presented to the county court and the court is required to proceed in the hearing of the matter the same as. in all other cases before it; that is to say, to hear the evidence on the subject. The court does not and can not take into consideration their own personal knowledge, but must decide it alone upon the proof. Hence' the peculiar fitness or knowledge of locality, etc., can cut no figure, and it. can not be said that a circuit judge is not as well qualified to pass upon the matter • as the county court — an inferior court. (2) The cause was properly certified to the circuit court. Sec. 4082, E. S. 1909. (a) The order of the county court shows that one of the judges was an owner of land and the other was*a first cousin of the owner of land within thn proposed district. Hence both were disqualified from sitting on the case, and finds the said judges disqualified for interest, (b) The court having judicially declared themselves to be disqualified by reason of interest, their action in so doing is not issuable, and therefore conclusive. State v. Hosmer, 85 Mo. 556. (c) A recital in the record of a court imports absolute verity, and all parties thereto are es-topped from denying its truth. Ex parte Eice, 102 Ala. 671. (3) The election of the special judge was in accordance with the law. Sec. 3961, R. S. 1909'. (a) The circuit judge by order of the court disqualified himself on account of interest, by reason of ownership of land in said proposed district, (b) And the same order shows inferentially a failure to procure another judge, by making no mention of the matter, and ordering the election, (c) The failure of the regular judge to procure another judge in no way affects the right of election of a special judge. State v. Pushon, 133 Mo. 44. (4) The power of the Legislature to provide for the election of temporary judges in civil cases is not open to question. Barnes v. McMullen, 78 Mo. 268; State v. Daniels, 66 Mo. 192; Ex parte Allen, 67 Mo. 533'; Lacy v. Barrett, 75' Mo. 469’. (5) The statute as it now stands and has stood since 1877 authorizes an election when the judge cannot preside for any reason. Barnes v. McMullen, 78 Mo. 266. (6) Petition gives jurisdiction. If that is sufficient, the other proceedings, if not in accordance with the statute, become irregularities of more or less importance according to the extent of the injury resulting therefrom, which irregularities may be waived by the party affected thereby, in which case he cannot thereafter be heard to complain of the same. Hall v. Slaybaugh, 691 Mich. 484; Sec. 8281, R. S. 1899; Laws 1905, p. 190. (7) If the contention of the relator be granted, in that the election of the special judge was irregular because of the want of two parties to the action, and consequently a failure to agree, the relator is estopped and has waived his right to object to the election of said special judge, (a) The only'way provided by law to bring parties into court under article 4, chapter 122, R. S-. 1899, isi by the publication to all parties interested, etc., as required by section 8281 of said act', (b) This notice was duly given, and the relator as well as all other parties interested were in court for all purposes of the law, and it was his duty then and there to file his written remonstrance against the organization of the district, or make Ms objection to the jurisdiction of the special judge. The record shows that he failed to do either.Hence he waived the right to object, and is estopped from disputing jurisdiction at this period of the pro-? ceeding. Campbell v. McFadden, 31 S. W. 436; Schlungger v. State, 113 Ind. 295; In re Hathway, 71 N. T. 238; Rose v. Allison, 41 Ind. 276; Moore’s Executors v. Moore, 5 Ky. L. R. 777; Lillie v. Trentman, 130 Ind. 16'; Moore v. McIntyre, 110 Mich. 237; Erickson v. Cass C'o., 92 N. W. 841; Seudder v. Jones, 32 N. E. 221.
   BROWN, J.

— This, is an original action in this court to prohibit respondent as special judge of the circuit court of Perry county from exercising jurisdiction of and making further orders in a proceeding instituted by H. K. Spencer and others to- organize Drainage District No. 1 of Perry county, Missouri.

The petition to organize the above named drainage district was originally filed in the county court of Perry county, where all the overflowed lands intended to be' included in the drainage district are situated. Said county court, upon the filing of the petition, appointed a civil engineer and three other persons as viewers to examine the line and route of the proposed ditches, and make a report to the court, as required by section 5580, Revised Statutes 19091. The clerk of said county court also gave notice of the pendency of said petition and'the time when same would be heard, as required by section 5581, Revised Statutes 1909.

Upon proof of publication of the aforesaid notice, and the coming in of the report of the viewers and engineer, the county court approved said report, and made an order organizing the district.

After the proceeding had been thus far advanced in the county court, that court discovered that one of its judges was an owner of land situated within the proposed drainage district, and that another judge of - said court was a first cousin of a landowner of said drainage district. Whereupon, said county court adjug’ed itself disqualified to act in the premises, and entered of record an order setting aside its former order organizing the district and transferred the venue of the proceedings to the circuit court of Perry county under the provisions of section 4082, Revised Statutes 1909.

When the petition and bond of the parties seeking to organize the drainage district were filed in the circuit court, it was found that Hon. Charles A. Killian, judge of said court, was also an' owner of land within said proposed drainage district; whereupon said judge made an order adjudging himself disqualified to- hear the petition, and directed the clerk of said circuit court to hold an election to choose a special judge to hear and determine same and all other matters connected with the drainage of land within the proposed district. This election resulted in the choice of respondent as special judge; who, after taking the oath of office required by law, proceeded to approve the bond tendered by Spencer et. al., petitioners, assumed jurisdiction of the cause, and appointed three viewers and a civil engineer to view and lay out the plans for the proposed drainage district.

Said special judge also ordered and caused to be given notice of the pendency of said petition, as required by section 5581, Revised Statutes 1909.

On the date designated by said notice, said special judge received the report of the viewers and engineer theretofore appointed, and entered a decree organizing the drainage district.

Thereafter, the aforesaid viewers and engineer filed with the special judge their final report, assessing the benefits which the lands in the district would receive by the proposed drainage, together with the estimated damages to said lands from the condemnation of rights of way for ditches through same.

Said special judge (respondent herein) caused notice to be given of such final report, as required by section 5587, Revised Statutes 1909', and after said notice was duly published, the relator filed in said circuit court of Perry county a motion challenging the jurisdiction of respondent to further proceed with said matter of draining the lands within said drainage district, on the followng grounds:

1. That the county court of Perry county possessed no power to transfer to the circuit court the proceeding to organize the proposed drainage district;

2. That respondent was not legally elected special judge to hear and determine the petition of Spencer and others to organize the aforesaid drainage district.

Said motion was overruled; whereupon relator instituted this action against respondent.

OPINION.

I. The contention of relator that although the county court of Perry county is disqualified to hear and determine the petition for the proposed drainage district, yet said court had no power under section 4082', Revised Statutes 19091, to certify said proceedings to the circuit court, for the alleged reason that county courts are given exclusive jurisdiction of proceedings to drain lands, uuder article 4, chapter 41, Revised Statutes 1909', is not supported by the law. C'ounty courts have exclusive jurisdiction of a great number of proceedings'; but that can furnish no reason why such courts may not be ousted of such jurisdiction when for a, statutory reason they are disqualified to hear same.

The policy of our law is that no person shall be forced to try a cause before a judge or court who is personally interested in the property or matter in controversy, or related to one so interested; and when no change of venue is provided for, the statute authorizing' the transfer of the cause to a disinterested tribunal should be liberally construed. [Meddis v. Kenney, 176 Mo. 200, l. c. 208.]

Relator contends that county courts are possessed of peculiar knowledge of the needs for the drainage. of overflowed lands within their respective counties, and therefore, it could not have been the intention of the Legislature to permit the supervision of such matters by circuit courts, which (he alleges) would not be SO' well qualified to. determine issues that may arise in respect to the drainage of such overflowed lands.

Relator’s contention must be overruled for two reasons: (1) The Legislature has authorized circuit courts to incorporate drainage districts and to hear •and determine all controversies that may arise in carrying into effect such drainage enterprises; thus, giving parties desiring to drain overflowed lands the choice of securing such drainage through either the county courts: or circuit courts. (2) The action of county courts in organizing drainage districts must be based upon evidence and reports filed with such county courts and not upon the personal knowledge of the judges of such courts; consequently, no reason can be seen why a circuit court could not understand the evidence and apply the law to a drainage proposition with the same facility as a county court.

Relator will not be deprived of any constitutonal right to ascertain by a jury the damages to- his lands by the condemnation through same of a right of way fo.r the proposed drainage ditch, or any other right which he could have asserted had the proceeding remained in the county court. The circuit court having acquired jurisdiction of the proceeding to drain relator’s: lands and other lands in that locality, will take all the steps and do all matters and things to consummate such drainage which the county court would have possessed power to do. had it not found itself disqualified to act in the premises.

II. The second contention of relator, that respondent was not and conld not have been legally elected to sit as special judge to hear and determine the drainage proceedings, possesses no merit whatever. Before the cause was certified to the circuit court, the clerk of the county court had already given notice of the pendency of the petition, as required by section 5581, Revised Statutes 1909, reciting the place of beginning, route and terminus of the proposed drainage ditch, which notice necessarily informed relator that said ditch would pass through his land; and the fact that the county court was disqualified to hear the proceeding did not invalidate the notice, nor excuse the relator from appearing in said county court and formally making himself a party to said proceeding by filing his remonstrance, as provided by section 5583, Revised Statutes 1909. The notice above mentioned would have been valid even if the clerk of the county court had also been an interested party. [Huff v. Shepard, 58 Mo. 242, l. c. 245.] Relator as an owner of lands through which said ditch will be constructed, was made a defendant by said petition and notice the same as if he had been specifically named therein; and it was his own fault and neglect that he did not become an active defendant before the cause was certified to the circuit court. [Huling v. Kaw Valley Railway & Improvement Company, 130 U. S. 559; Ballard v. Hunter, 204 U. S. 241.]

The further argument of relator that the election of respondent as special judge was illegal and void because the. parties to the action were not given an opportunity to agree upon a special judge, must be disregarded, because the provision of section 3961, Revised Statutes 1909, in respect to allowing the parties to the action to agree on a special judge' to try tbe cause, can only apply when both plaintiff and defendant have entered their appearance. It only requires a mild application of the “rule of reason” to understand that the circuit court should only be required to grant the parties to the action an opportunity to agree upon a special judge when all the parties have entered their appearance.

In a ca.se like the one at bar, when the defendant was duly notified of the proceeding and through his own neglect failed to enter his appearance and file his answer or remonstrance at the time he ought to have filed' same, he cannot be heard to complain that he was not given an opportunity to agree with the plaintiffs upon a competent lawyer to sit as a special judge and try the cause, before the regular judge ordered, the election of a special judge.

It follows that relator herein is possessed of full jurisdiction to hear and determine all matters connected with the proposed drainage district, and that the preliminary writ of prohibition heretofore issued herein should be quashed and that the absolute writ of prohibition applied for should be denied.

It is so ordered.

Válliant', C. J., and Kennish, Ferriss, Woodson, Lamm and Graves, JJ., concur.


source: Caselaw Access Project

author: FERRISS, J. Sherwood, J.,

license: Public Domain

text:
    THE STATE ex rel. ADOLPHUS S. PEPER v. CHARLES W. HOLTCAMP, Judge of Probate Court.
    In Banc,
    June 7, 1911.
    1. NINE-JURY LAW: Constitutional Amendment: Applies to Ail Cases. The constitutional amendment of 1900, providing that “in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict,” must be taken to mean just what it says. The language is clear and no limitation or exception is expressed or implied. It applies to all civil cases wherein there was at the time of its adoption a right to a trial by jury, whether the right was given by common law or by statute.
    2. -:.Trial by Jury: As Heretofore Enjoyed: Common Law Juries. The words of' the Constitution declaring that “the right of trial by jury as heretofore enjoyed, shall remain inviolate” do not apply only to common law juries. “Heretofore” means before and up to tbe time of tbe adoption of the Constitution. They mean that in all cases in which a right to a jury existed prior to that time, it still exists.
    S. -: Constitutional Amendment: Insanity Inquiry In Probate Court. The right of trial by jury in insanity proceedings had existed for at least fifty years prior to the adoption of the present Constitution, and since the adoption of the amendment of 1900 a verdict may be rendered in the probate court by. nine of the twelve jurors therein concurring, adjudging an individual insane.
    4. -: -: Insanity Inquiry: Civil or Criminal: Civil Action. An insanity inquiry is not a criminal case. It involves no question of public wrong. It is a proceeding to protect the private rights of the individual in his property and person. Within the meaning of the words used in the constitutional amendment of 1900, providing that “in the trial by jury of all civil cases in courts of record, three-fourths of the members of the-jury concurring may render a verdict,” it is a civil case. And that must be the ruling whatever may be the distinction between a “civil case” and a “civil action.”
    Certiorari.
    WHIT QUASHED.

      Henderson,, Marshall & Becker for relator.
    (1) The proceedings of the probate court are null and void because the verdict was signed by only ten of the jurors. Sec. 474, R. S'. 1909', provides that inquiries of this character shall be “inquired into by a jury.” This means that the verdict of the jury must be unanimous. Sec. 28, art. 2, of the Constitution allowing a three-fourths verdict of the jury “in all civil eases” has no application to cases of this character. An inquiry into the sanity of a person is not “a civil action.” A civil action is one which has for its object the recovery of private or civil rights or of compensation for their infraction. It means actions in which the plaintiff seeks to redress wrongs, that have been done by the defendant. The term civil action has a distinct and well-defined meaning in the law. 1 Cyc. 732; 1 Am. and Eng. Ency. Law (2 Ed.), 578. (2) No right of trial by jury in any insanity proceeding exists at common law, and none such existed in Missouri until conferred by statute. 24 Cyc. 132; State ex rel. v. Baird, 47 Mo. 301; Kiehne v. Wessell, 53 Mo. App. 660. In England the right of trial by jury has never been an absolute right. Prior to the English lunacy act of 1853 (16' and 17 Viet., chap'. 70, and sec. 8 of the Act of 1862, 25 and 26 Viet., chap. 86) which entitled an alleged lunatic to demand a jury trial, the right of trial by jury in insanity cases did not exist at all. Archibald’s Lunacy (4 Ed.), p. 132, sec. 90. Even under the English lunacy act the judge may refuse the request of the defendant for a jury, if satisfied that the alleged lunatic is not competent to form and express a wish for an inquiry before a jury. Archibald’s Lunacy, sec. 91, p. 133. (3) The constitutional provisions relating to trial by jury (sec. 28, art. 2, and sec. 22, art. 2, Missouri Constitution) do not apply to insanity proceedings', because such proceedings are neither a civil action nor a criminal prosecution. The Iowá Constitution is like the Missouri Constitution in respect to the right of trial by jury being inviolate in civil case®, and in respect to the right of trial by an impartial jury in criminal prosecutions, and it has been held in that State that those constitutional provisions do not entitle a person charged with being insane to the right of trial by jury. In re Breese, 82 Iowa, 573; Black-hawk Co. v. Springer, 58 Iowa, 417; Chavaness v. Priestly, 80 Iowa, 316.

      Biewart, Bryan, Christie <& Williams for respond-. ent.
    (1) In a trial by jury of all “civil” cases in courts of record, three-fourths of the members of the jury concurring, may render a verdict. Const, of Mo., art. 2, sec. 28. (2) This is a “case.” (a) “Whenever any claim or contention takes such form that the judicial power is capable of acting upon it, then it has become a ‘case’ ox ‘controversy.’ ” Smith v. Adams, 130' U.' S. 167. (b) The words “case” or “canse” have a well-settled and defined meaning at law. In Black’s Law Dictionary the word “case” is defined thus: “The primary meaning of ‘case’ or ‘cause,’ when applied to legal proceedings, imports a .state of facts, which furnishes occasion for the exercise of the jurisdiction of a court of justice. In its generic sense the word includes all causes, special or otherwise.” (c). “A ‘case’ is a contested question before a court of justice, a suit or action, a cause, a state of facts involving the question for discussion or decision, especially a cause or suit in court.” Barnett v. County Court, 111 Mo. App. 699; State ex rel. v. Denton, 128 Mo. App. 312. (d) The word “case” has a more extended meaning than the word “action,” and includes all states of fact which furnish grounds for applications for divorce, certiorari, mandamus, habeas, corpus, application for orders for the support of relatives, prohibition, quo warranto, proceedings to disclose the assets of an estate, proceedings to declare persons insane, and all special proceedings of every kind which call for the exercise of the jurisdiction of a court of justice. Carpenter v. Jones, 121 Cal-. 362; Eekerle v. Dood, 9'5 Mo.. App. 385; State ex reh v.. Riley, 203 Mo. 175; State ex rel. v. Denton, 128 Mo. 304'; Haynes v. County Court, 135 Mo. App. 113; Jessup v. Jessup, 7 Ind. App. 873; Aldrich v. Providence,' 15 R. I. 613; In re Reynolds, 20 Fed. 592; Ex parte Milligan, 4 Wall. 2; Gold v. Railway, 19 Yt. 484; Kundolf v. Thulheimer, 12 N. Y. 596. (3) It is also a.“civil case.” (a) In Black’s Law Dictionary “civil case” is defined as follows: “Civil cases, are those which involve disputes or contests between man and man, and which only terminate in the adjustment of the rights of plaintiffs and defendants. They include all cases' which cannot legally, be denominated ‘ criminal cases. ’ ’ ’ State ex rel. v. Riley, 203' Mo. 186.; Adams v. Ashby, 5 Ky. 96; Montee v. Com., 26 Ky. 132; Applegate v. Com., 46 Ky. 12. (b) Insanity involves no wrong, nor does the law impose any punishment for the affliction. A proceeding to adjudge a person insane is in no sense a criminal proceeding. It is not a case in which he is adjudged at fault, and for which there is a forfeiture of liberty or property, but it is only a method by which the public discharges its duties to a citizen. County v. Springer, 58 Iowa 417; Chauvennes v. Priestly, 88 Iowa 320; Jessup v. Jessup’, 7 Ind. App. 573. (4) The Probate Court is a court of record. Sec. 34, art. 6, Const, of Mo.; Redmond v. Railroad, 225' Mo. 721; Macey v Stark, 116 Mo.. 494; Eckerle v. Wood, 95 Mo. App. 386. (5) The above mentioned amendment to the Constitution is self-enforcing-, and such being the case, it necessarily applies to all cases where juries are required in Missouri, whether they be required by common law, by Constitution or by statute. Sharp v. Nat. Biscuit Co., 179 Mo. 553.
   FERRISS, J.

— This is an original proceeding by certiorari to review proceedings in the probate court of the city of St. Louis, wherein the relator was -adjuged insane upon a verdict concurred in by ten of the twelve jurors, the remaining two jurors expressly refusing to concur.

The only question presented to this court is whether a verdict of a jury rendered in an insanity inquiry instituted under section 474, Revised Statutes 1909, must be unanimous, notwithstanding the amendatory clause in section 28, article 2, of our Constitution which provides, that a three-fourths verdict will be sufficient “in a trial by jury in all civil cases.”

It is contended by the relator (a) that the constitutional provision referred to applies only to eases wherein the right to a trial by jury existed at common law, and hence does, not affect an insanity inquiry, wherein the right to a jury trial is given by statute only; (b) that insanity proceedings in the probate court are not civil cases in the sense intended by the Constitution, and' are not, therefore, governed by the three-fourths rule.

I. Section 28, article 2, of our Constitution reads as follows: “The right of trial by. jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men, as may be prescribed by law; and that a two-thirds majority of such number prescribed by law concurring may render a verdict in all civil cases; and that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict. Hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill; Provided, however, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies; but when so assembled such grand jury shall have power to" investigate and return indictments for all character and grades of crime.”

The heavy type indicates the amendment adopted November 6, 1900'. The language of this amendment is clear, and must be taken to mean just what it says. There is no limitation expressed or implied. It applies to all civil eases wherein there was at the time of its adoption a right to a trial by jury, whether the right was given by common law or by statute.

Counsel argues that this section of the Constitution applies only to-the right of trial by jury given by the common law. Why this limitation? The Constitution says “the right of trial by jury as heretofore enjoyed,” etc. .Does the word “heretofore” apply only to common law juries? We think not. “Heretofore” means before and up to the time the Constitution was adopted. So far as insanity proceedings are concerned, this right to a jury trial had existed at •least fifty years before, and up to, the adoption of the present Constitution.

Sherwood, J.,

speaking for this court in State v. Bockstruck, 136 Mo. l. c. 358, says, of the right to a jury trial: “Whatever was the status of that right at the time of the adoption of the Constitution of 1875', was the status referred to in that instrument.” In 6 Am. and Eng. Ency. Law (2 Ed.), 974, it is said: “The right is preserved in substance as it existed at the time of the adoption of the Constitution and in the class of cases to which it was then applicable.”

In Whitehurst v. Coleen, 53 Ill. l. c. 251, the Supreme Court of Illinois, construing the constitutional' provision, “the right of trial by jury shall remain inviolate,” says: “A reasonable construction requires us to hold that the party should be entitled to a jury in all cases in which it was authorized at the time of the adoption of the organic law.”

So the Georgia Supreme Court, in Harper v. Commissioners, 23 Ga. 566, construing the constitutional provision that “trial by jury as'heretofore used in this State shall remain inviolate,” held the party not entitled to a jury because “the case was one of a kind in which, at the time of the adoption of the Constitution, jury trial had not been ‘used’.”

To the same effect is the text in 2 Bish. Crim. Proc., sec. 892.

II. The Constitution, in the article referred to, treats of two classes of cases, criminal and civil, as including all jury cases. In the application of this provision, every jury case is either criminal or civil. This is apparent from the language used. The article provides: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate, but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men.” Then follows a provision applicable to. courts of record, which says that in “all civil eases” three-fourths of the jury may find a verdict; evidently distinguishing civil cases as a class from criminal cases.

An inquiry of insanity is certainly not a criminal case. As between the two general classes, it is a civil case.

The relator in his brief makes a distinction be.tween a “civil ease” and a “civil action.” We can perceive no reason for attempting to change the language of the Constitution. Whether such distinction between “case” and “action” exists is immaterial. We are dealing with ciyil cases.

In State ex rel. v. Riley, 203. Mo. 175, Woodson, J., points out clearly the distinction between civil and criminal cases. He says: “It will be seen from an ex-. animation of these various definitions that the phrases ‘civil case’ and ‘civil suit’ refer to the legal means by which the rights and remedies of ■ private individuals are enforced or protected, in contradistinction to the words ‘criminal cases,’ which refer to public wrongs and their punishment; and that the word ‘case,’ when construed alone, means the facts or state of facts which constitute the rights of the individual, or his cause of action, which the ‘proceeding,’ ‘action’ or ‘suit’ protects or enforces.”

The insanity inquiry involves no question of public wrong. It is a proceeding to protect the private rights of the individual in his property and person. Such proceeding constitutes a civil case, and one within the constitutional amendment providing for a three-fourths verdict.

Accordingly, it is ordered that the writ be quashed.

All concur, except Graves, J., who dissents.


author: KENNISH, J. VALLIANT, C. J.

text:
    THE STATE ex inf. ELLIOTT W. MAJOR ex rel. ROBERT S. RYORS v. RANSOM A. BREUER.
    In Banc,
    June 7, 1911.
    1. COLLECTORS: Eligibility to Election to Other Office. A collector or other receiver of public money is not ineligible to election to another office at the time of his election, simply because he has not at that time made a settlement of and accounted for all public moneys coming into his hands and resigned his office, if prior to the time he qualifies and takes the other office, he fully accounts for the public moneys in his hands, etc.
    2. -: -: Constitution and Statute. The Constitution and statute; in declaring that “no collector or receiver of public money shall be eligible to any office of trust or profit in the State of Missouri under the laws thereof, until he' shall have accounted for and paid over all the public money for which he may be accountable,” do not mean that he is not eligible to be a candidate for nomination at a primary election or that he is not eligible to be elected at a general election to another office unless he has previously accounted for and paid over all public money, etc. He is eligible to1 be nominated and to be elected, but he cannot hold that office and another at- the same time, nor can he be .permitted to take an office to which, he has been elected or appointed so long as he is in default, and that is all this constitutional provision and statute mean.

      Held, by 'Vamjant, C. X, in whose views Xamm, Graves; Ferriss and Brown, JX, concur, that whether the word" “eligible,” used in a statute or the Constitution, in reference to a candidate for a public office, refers to the date of the election or the date of taking possession of the office, depends on the context and on the subject; as used in the constitutional provision in this case, the word refers .to the date the candidate is to take possession of the office.
    3. -: -: Contemporaneous Construction. Contemporaneous ccnstruction, as shown in the unquestioned recognition, ever since the Constitution was adopted, of the eligibility to election to office of incumbents of the offices of treasurer,' collector, sheriffs, etc., is a cogent .reason’for holding that a : - collector or receiver of -public money is not ineligible to election until he has accounted for all public moneys in his hands.
    4. -: - — : Settlement: Irregularity in Details. If the collector accounted in full for all public moneys coming into his hands to the county court and the State officers, who gave him full receipts and acquittances, before he qualified for the office to which he had been” elected, he is not ineligible be-. cause he failed to comply, in immaterial details, with the statute prescribing the manner in which final settlement shall be made.
    5. QUO WARRANTO: At Relation of Private Citizen, Where ncr point is made as to the right of a private relator to be a party to a proceeding in quo warranto instituted by the Attorney-General in the Supreme. Court at his relation, that question will not be determined.
    Quo Warranto.
    Writ op ouster, denied.

      Elliott W. Major, Attorney-General, and Silver & Dumm for relator.
    (1) “The patriots who framed the Constitution and the people who adopted it must be understood to have used its. words in their natural sense and to have intended what they said.” Gibbons v. Ogden, 9 Wheat. 188. “That, which the words declare, is the meaning of the instrument, and neither the courts nor the Legislature have a right to add to or to take away from that meaning.” Hills v. Chicago, 60 111. 90; Greeneastle v. Black, 5 Ind. 570; Purdy v. People, 4 Hill (N. Y.) 398; Lake Co. v. Rollins, 130 IT. S. 670’. (2) The words, “ shall be eligible,” refer to the time of the election or appointment. Const. 1875', art. 2, sec. 19. Provisions somewhat similar are found in the Constitutions of 1865 and 1820'. . G. S. 1865, p. 30, sec. 12; R. S. 1855, p. 66, sec. 12. The great weight of authority supports the proposition that the word eligible, as used in the constitutions and statutes concerning elections to office, means the capacity to hold the office at the time of the election, so that the subsequent removal of the disability will not remove the incompetency. Einldea v. Parish, 160' Ala. 230; Searcy v. Grow, 15 Cal. 117; People v. Leonard, 73 Cal. 230; State v. Clarke, 3 Nev. 566; In re Corless, 11 R. I. 638; State v. Moores, 52 Neb. 786; Taylor v. Sullivan, 45 Minn. 309; People v. Purdy, 47 N. Y. Supp. 601; Carroll v. Greene, 148 Ind. 362; B.oane v. Matthews, 75 Miss. 94; Brady v. How, 50 Miss. 607; Com. v. Pyle, 18 Pa. St. 519; Hall v. Ty., 2 Wash. Ty. 147; Springfield v. Butterfield, 98 Me. 155; People v. Purdy, 47 N. T. Supp. 602. Most of the cases hold that the term “eligible” as used in a constitution or statute, means capacity to be chosen, and that therefore the qualification must exist at the time of the election or appointment.’ 29 Cyc., 1376; Black’s Law Dictionary, “Eligible;” Anderson’s Law1 Dictionary, “Eligible.” (3) Meaning of terms “account” and 1 ‘ accountable. ’ ’ Adhering to the rule that the words of a constitution must be understood to have been used in their natural and ordinary sense, the meaning of section 19' of the Bill of Bights isi not difficult to grasp. Its evident meaning and purpose are to preclude a collector of the revenue from his election to another office “until [as it recites] he shall have accounted for and paid over all the public money for which he may be accountable.” Meaning all the public money for which he may be called on to account, i. e., for which he may be “responsible,” “liable for,” or “subject to pay.” Furber v. Cavérly, 42 N. IT. 76. The Constitution, it will be noted, uses the words “accounted” and “accountable;” does not employ the term “defaulter” as is the case in the Nebraska statute. Defaulter has a sinister meaning, implies evil intent. State v. Moores, 52 Neb. 770; State v. Koontz, 12 Mo. App. 511. Nor does the Constitution use the term “in arrears,” which means money unpaid after it is due — overdue. Hollingsworth v. Willis, 64 Miss. 157; Wiggin v. K. of P., 31 Fed. 125. The words “account” o,r “accountable” have a definite meaning, and are words of a different and broader import than either “default” or “in arrears.” Furber v. Caverly, 42 N. H. 76. It is true, the words “in default” appear as “catch words” of the section of the Constitution in controversy, as printed in B. S: 1909, p. 52. These words seem to have been first inserted as “catch words” in R. S. 1889, p. 60. But the existence of such catch words isi unimportant. “Headings and titles inserted by the Legislature are not entitled to consideration.” 2 Sutherland on Stat. Const., sec. 362; Oram v. Oram, 116 N. O. 288 ; Cook v. Assn., 74 Iowa, 749; Logan v. Fidelity Co., 146 Mo. 114.

      J. G. Kiskaddon and A. H. Kiskaddon for respondents.
    (1) The relator claims that at the time respondent was elected circuit judge he was not eligible, and that therefore he could not become eligible to hold the office. It will be noted that the constitutional provision does not expressly say that the person is not eligible to be elected, but that he is not eligible “to any office,” etc. While it is conceded that the mere argument from inconvenience has little weight if ita lex scripta est applies, yet, if for any good reason, the language'of the law is ambiguous, and it can be reconciled with a con-. venient state of affairs, the argument of convenience may be very potent. The relator in his brief at p. 26 cites quite a number of cases which he claims sustain the proposition that an officer must be eligible at the time of his election. In the following of the cases thus cited by relator the law in express terms refers to the eligibility of the officer at the time of his election: Farlea v. Farish, 160 Ala. 230; Taylor v. Sullivan, 45' Minn. 3'09'; Brady v. How, 50 Miss. 626; Hall v. Ty., 2 Wash. Ty. 147; Springfield v. Butterfield, 98 Me. 155. Person not entitled to vote or be voted for unless he has paid his taxes. Roone v. Matthews, 75 Miss. 94. Officer actually in default, i. e., he was an actual defaulter. State v. Moores, 52 Neb. 786. Other cases cited by relator seeming adverse are in fact not, because the mere fact of election gave the person elected an instantaneous title to the office. When the last ballot was east, even before the votes were counted, and the result ascertained he had title to the office. He did not have to wait two months while someone else held the title before the title came to him. In other cases cited by relator the officer was trying to hold at one and 'the same time two incompatible offices. He could not hold both, but had to give up the one he first held, because the acceptance of the second ipso facto vacated, the first. State v. Draper, 45 Mo. 357. In this State an.officer has a constitutional right to> resign, and of course, settle and account before his term expires. Const., sec. 5, art. 14; ■ State v. Bus, 135 Mo. 331; Commonwealth v. Pyle, 18 Pa. St. 521. Cases in point are: State v. Murray, 28 Wis.99; State v. Trumpf, 50 Wis.109; People v. Hamilton, 24 111. App. 612; Privett v. Bickford, 26 Kan. 54; Morgan v. Yance, 4 Bush (Ky.) 329; DeTurk v. Com., 129 Pa. St. 161; Foltz v. Kerlin, 105 Ind. 226; Shuck v. State, 136 Ind. 69; Brown v. Cohen, 122 Ind. 113; State v. Yon Beek, 87 Iowa 578; Demoree v. Scales, 50 Kan. 281; Kirkpatrick v. Brownfield, 97 Ky. 563; Brown v. Golden, 122 Ind. 113; State v. Draper, 45 Mo. 357; State v. Bus, 135 Mo. 330. :
   KENNISH, J.

— This is an original proceeding instituted in this court by the Attorney-General, by filing an' information in the nature of quo warranto, at the relation of Robert S. Ryors, and against the respondent, Ransom A. Breuer.

By stipulation of the parties the issuance of the preliminary writ was waived and respondent voluntarily entered his appearance and filed his return to the information. Relator filed a motion for judgment of ouster notwithstanding the return and an issue of law isi thus presented for decision.

It appears from the facts set forth in the information and return, which are either admitted or not denied, that respondent was the collector of the revenue of Gasconade county for the term ending on the first Monday in March, 1911; that relator was the judge of the thirty-second judicial circuit of this State for the term ending January first, 1911; that while holding the said office of collector, in the year 1910, respondent was regularly nominated and elected to the office of judge of said judicial circuit for a term of six years, commencing on the first day of January, 1911; that on the 19th day of December 1910, the Governor of this State issued to respondent a commission as judge of said circuit for the term of six years ; that on the 20th day of December respondent tendered to the Governor his resignation of the office of collector, to take effect December 29th, 1910; that the Governor accepted his resignation, and appointed as respondent’s successor for the unexpired term of said office of collector, Henry O. Straek, who duly qualified and assumed the duties of the office on the 31st day of December, 1910; that on the said 31st day of December respondent made final settlement as ■ collector with the county court of Gasconade county and accounted for and paid over all public money in his hands, transferred to his successor in office all tax books in his custody and received receipts and a full acquittance therefor; that on the 2d day of January, 1911, respondent qualified1 as judge of said circuit and entered upon the discharge of the duties of the office and so continued in the discharge of such duties until the filing of his return herein. The foregoing is deemed a sufficient statement of the facts necessary to a decision of this ease.

Eelator makes no contention that the respondent was in default in accounting for or paying over all of the public money that came into his hands as collector during his term of office, nor that he failed to surrender and deliver to his succesor all of the tax books in his custody as such officer.

Two ^propositions are advanced by relator as entitling him to the writ of ouster: (1). That respondent was not eligible to be a candidate at tbe primary election, nor eligible to election at tbe general election, as judge of said circuit, because at said time be was bolding tbe office of collector .and bad- not accounted for and paid over all tbe public money for wbicb lie was accountable. (2). That respondent, at tbe time be pretended to qualify and enter upon tbe duties of tbe office of judge of said circuit, was ineligible and disqualified to bold the same, for the reason that he had not accounted for and paid over to the State of. Missouri and the county of Gasconade all sums, on the tax books delivered to him and1 with which he was charged and for which he was accountable thereon and was not finally discharged from all legal liability thereon.

Section 19, article 2, of the Constitution of this State is as follows: “Collectors, Receivers, etc., in Default, Ineligible to Office. That no person who is now or may hereafter become a collector or receiver of public money, or assistant or deputy of such collector or such receiver, shall be eligible to any office of trust or profit in tbe State of Missouri under tbe laws thereof, or of any municipality therein, until be shall have accounted for and paid over all the public money fox which he may be accountable. ”

And section 11446, Revised Statutes, 1909, provides : “No collector or holder of public moneys, or any assistant or deputy of such holder or collector of public moneys, shall be eligible or appointed to any office of trust or profit until he shall have accounted for and paid over all sums fo,r which he may be accountable.”

Upon these constitutional and statutory provisions relator maintains that: ‘ ‘ The great weight of authority supports the proposition that the word eligible, as used in constitutions and statutes, concerning elections to office, means the capacity to hold the office at the time of the election, so that the subsequent removal of the disability will not remove the incompetency.” Many authorities are cited from the other states, but none from this State, as sustaining relator’s contention. Relator concedes that “there are some opposing cases,” and he cites cases from other states holding the opposing doctrine, and continues: “Nor is our contention, supra, in accord with the observation of Judge Wagner in Owens v. Draper, 45 Mo. 355.”

In the Draper Case, decided by this court in 1870', the clause of the Constitution in judgment was the following: “No member of Congress, or person holding any lucrative office under the United States or this State (militia officers, justices of the peace and notaries public excepted), shall he eligible to either house of the General Assembly, or shall remain a member thereof, after having accepted any such office or seat in either house of Congress.” The question there for decision was whether the relator, Owens, who had been elected to the General Assembly of this State while holding the office of circuit judge, was entitled to draw his salary as judge after he had qualified and was discharging his duties as a member of the General Assembly. His term as judge had. not expired and he had not resigned. Speaking for the court, Judge Wagner said: “Under this provision a judge of a court of record is clearly ineligible to a seat in either house of the Legislature whilst he holds the office of judge. The existence of the two offices in the same individual ist incompatible, and is peremptorily prohibited. By the phrase ‘shall not be eligible’ I do not think it was intended to prohibit a person who occupied the position of judge from running for or being elected to the Legislature. But if he should run and be elected, he would have to make his choice of which office he would retain, and his acceptance of one would necessarily operate as a vacation of the other. ’ ’

. The' law as declared in that case is directly applicable and controlling upon the point under consideration in the case before us. It may be conceded and it seems to be the fact that as stated in 29 Cyc. 1376, “Most of -the cases hold that the term ‘eligible’ as used in a constitution or statute means capacity to be chosen, and that therefore the qualification must exist at the time of the election or appointment;” but there is respectable authority to the contrary, including a decision of this court and we think based upon the better reason. Besides, contemporaneous construction, as shown in the unquestioned recognition for forty years of the eligibility to¡ election to office of incumbents of the offices of county collector, county treasurer, state treasurer, sheriff, county clerk, circuit clerk, -and many others that could be named, all collectors or receivers of public money, is a cogent reason for holding against relator’s contention.

The sheriff is a receiver of public money and is required by statute to account therefor, yet the same convention that adopted the section relied upon by relator fixed the term of office of sheriff at two years- and provided that he should be “eligible only four years in any period of six,” thus recognizing his eligibility as a candidate to succeed himself. The term of county treasurer was fixed by law at two years and until the law was amended in 1907 it was provided that: “No person shall be elected to said office of treasurer for more than two successive terms.” [See Sec. 6764, K. S. 1899.] In 1907 when the term of county treasurer was extended to four years, and the incumbent was made ineligible as his own successor, it was incorporated in the amendatory act: ‘ ‘ This section shall not be construed to deprive anyone who is now county treasurer of the right to be re-elected in 1908.” [Sec. 3749, B. S. 1900.] This court has recently held that both county treasurers and sheriffs were eligible as candidates for office, while holding office and before any final accounting or paying over of public money in their hands could be made. [State ex rel. v. Cloud, 212 Mo. 481; State ex rel. v. Dirckx, 211 Mo. 568.] In addition to the foregoing, this court will take judicial notice of the fact that in recent years an incumbent of the office of State Treasurer of this State was elected to the office of Governor and served the term in the latter office; that another State Treásurer was elected to the office of Lieutenant Governor, which office he now holds.

It appears therefore by the above decisions of this court, by legislative enactment and. by the general understanding and practice of the people, that persons holding office as collectors or as receivers of public money, have not been regarded as ineligible to election to office for the sole reason that a final accounting of the public money in their hands had not been made at the time of the election.

It will be noticed that the catch-words of the section of the Constitution are: ‘ ‘ Collectors, receivers etc., in default, ineligible to office.’.’ And the general rule of law upon the subject, as stated in 29 Cyc. 1385, is as follows: “Statutes frequently disqualify for public office those who, having in their possession pub • lie funds, are in default. Such statutes disqualify only those who have been determined by legal authority to be in default, or admit that they are in default, and appear generally to be liberally construed in favor of eligibility to office. Thus ‘default’ is said to mean a willful and corrupt omission to pay over funds.”

The reasonable and salutary interpretation given to the Constitution and statutory provisions under consideration, by this court, is not that those holding the offices mentioned s'hall be treated as in default and denied further political preferment while occupying such office, but rather that the door of the same office for another term, or of another office, shall be barred to them until, and only until, they shall have shown themselves eligible and worthy by a full settlement and payment of all public funds in their hands.

It is next contented by relator that because respondent had not made a final settlement-and accounting in the particular manner provided by law, he was not eligible to qualify for o.r hold1 the office of judge of said circuit.

This point is wholly wanting in merit. The facts fully show, and it is not denied, that respondent accounted for and paid over every cent of public money in his hands and properly turned over all tax books in his custody. The representatives of the county and State made final settlement with him and gave him full receipts and acquittances; they are not now impeaching the settlement; they received all public money and books they were' entitled to and are making no complaint. The failure to comply, in immaterial details, with the statute providing the manner in which final settlement shall be made, a matter purely directory, when no hint of default or official dereliction appears in the record,, cannot be held to deprive a man of a high and honored office to which he was elected by the qualified voters óf the'judicial circuit.

This proceeding is brought upon the information of the Attorney-General at the relation of Robert S. Ryors. While the respondent raises a question as to whether the relator has sufficient interest to maintain the proceeding, no point is made as to the right of a private relator to be a party to a proceeding in quo warranto instituted by the Attorney-General in this court, and that question is not passed upon in this opinion. For the reason given the writ of ouster is denied.

All concur; Valliant, G. J., in a separate opinion.

VALLIANT, C. J.

— The word “eligible” in reference to a candidate for a public office, is not always used by law-writers with the precise point in view that is presented by the learned counsel for the relator hr this case, that is, whether it means eligible at the date of the election or appointment, or a.t the date of taking possession of the office. It may sometimes be used in reference to the one date and sometimes to the other and whether the'reference is to the one or the other depends on the context and on the subject; in view of the context in which the word “eligible” is used' in section 19 of article 2 of the Constitution and of the particular subject to which it relate®, I am satisfied that it refers to the date that the candidate is to take possession of the office.

Therefore I concur in the couclusion that the ouster should be denied.

Lamm, Woodson, Graves, Ferri-ss and Brown, JJ., concur in this opinion.


author: FERRISS, J.

text:
    THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, Appellant, v. CHARLES D. CARLISLE.
    In Banc,
    June 7, 1911.
    1. HAY INSPECTION: Statute: Power to Supervise Inspection. The Board of Railroad and Warehouse Commissioners have no power to enforce hay inspection. Sec. 6832, R. S. 1909, says the hoard “is required to supervise the inspection and the weighing of all hay,” etc., hut power to supervise inspection is not power to inspect.
    2. -■: -: -: Power in Title of An Act Not Sufficient. Where the title of an act is, An Act to Amend Article 3 of Chapter 117 of the Revised Statutes of Missouri of 1899, by adding Two New Sections Thereto, “Providing for the State Inspection of Hay,” and there is no provision in the article amended requiring hay to he inspected, and the new section simply requires the hoard to “supervise the inspection and weighing of all hay,” it cannot he held that the hoard is empowered to enforce hay inspection.

      ■ 3. -: Void Law: Delegation of Legislative Power. The Legislature cannot delegate to the Board of Railroad and Warehouse Commissioners power to determine when and where hay inspection shall be established. The Act of 1905, even if it authorized the board to enforce inspection of hay, would be invalid, since it is made to depend upon another statute which on its face gives to the board power to establish grain inspection at such places as in the opinion of the board is necessary.
    4. -: No Law for Discretionary Places for Grain Inspection: Wrong Word in Statute. The word "inspection” found in Sec. 6775, R. S. 1909, in the clause limiting public warehouses to “all buildings, elevators or warehouses wherever State grain inspection may be established by the State Board of Railroad and Warehouse Commissioners,” was “inspectors” in the Act of 1893, when said section was first enacted, and the word “inspection” was substituted for the word “inspectors” by the Secretary of State in preparing the copy for the printer and the word “inspectors” was printed thereafter in brackets, but the substituted word "inspection” was carried forward into the Revised Statutes of 1899 and 1909. But that did not make it a part of the act, though it changed its meaning. So there has never been given to the board the power to determine the points for either grain or hay inspection. -
    Appeal from Jackson Circuit Court.— Hon.'1 Hermann Brumback, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for appellant; Cowherd & Ingraham and Dunham é Morse of counsel.
    (1) The act of 1907, Laws 1907, p. 285> having been held unconstitutional (Merchants’ Exchange v. Knott, 212 Mo. 616), the prior statutes, which said Act of 1907 purported k> repeal, that is, the Statutes of 1899', art. 3, eh. 117, remained in force. Westport v. McGee, 128 Mo. 162; Copeland v. St. Joe, 126 Mo. 416 ; State v. Thomas, 138 Mo. 95. (2) The statutes upon which the court predicated its ruling in State ex inf. v. Goffee, 192 Mo. 670, are so unlike the act of 1905 (Laws 19051, p. 171) that it does not follow that, because the court held in said Goffee case that grain which did not go into a public warehouse was not subject to the laws of inspection, hay which did not go into a public warehouse was not subject to inspection. This court reached its conclusion in the “Goffee case” from the peculiar reading of the statutes providing for the weighing and inspection of grain, as provided by the • original act making provisions for the inspection of grain (Laws 1800, p. 124; State ex inf. v. Goffee, 192 Mo. 683), and the different amendments of those statutes, which are specifically referred to in the said Goffee case. The prominent feature of these statutes construed in the Goffee ease was the reference to “public warehouses'.” The theory of inspection of public warehouses was, as the court pointed out, so prominent a feature of these statutes, that it inevitably followed that inspection of grain was intended by the Legislature to be provided for only at such public warehouses. But, under the law in question in this case, to-wit, the Act of 1905', no such condition appears. Our contention is that there is manifested by this Act a legislative intent to provide generally and broadly for the inspection of hay, and that there is not, as there was in the statutes construed in the Goffee case, a legislative intent to limit it to hay which went into and out of warehouses. At the time of the passage of this Act of 1905', the State Board of Railroad and Warehouse Commissioners had established inspection at Kansas City. The'petition so stated, and the demurrer, of course, admitted the fact. Consequently the Legislature by this Act designated, in effect, this point (Kansas City) as a positive location for inspection, and, of course, the Legislature had the right to so do.

      Fred A. Boxley for respondent.
    (1) Section 7681a, Laws 1905' (Sec.' 6832, R. S. 19091), is unconstitutional and void. This section clearly authorized the Board of Railroad and Warehouse Commissioners to establish inspection and weighing of hay at any place, at any time, or at no place at no time, just as they desired. Merchants’ Exchange v. Knott, 212 Mo. 616. The inspection and weighing of hay and grain is an exercise of the police power of the State and the Legislature cannot bargain away the police power. Gaslight Co. v. Murphy, 130' Mo. 10, 170 U S. 78. The Legislature cannot delegate its legislative power. State v. Field, 17 Mo. 529; Ruggles v. Collier, 43 Mo. 353; St. Louis v. Clemens, 43 Mo. 395-; Matthews v. Alexandria, 68 Mo. 115; St. Louis v. Packing Co., 141 Mo. 375; Kansas City v. Bacon, 147 Mo. 259’; Neill v. Gates, 152 Mo. 585; Owen v. Baer, 154 Mo. 434; Merchants’ Exchange v. Knott, 212 Mo. 616. (2) Appellant’s petition did not state a cause of action because it did not allege, (and, of course, it could not), that the hay inspected was hay going into or out of a public warehouse. In an effort to dodge the effect, upon the statute under which this section wasi brought, of the decision in the case of Merchants:’ Exchange v. Knott, supra, appellant contends that the act of 1907, p. 285; having been held unconstitutional, the Statutes of 1899, art. 3, ck. 117, remained in force, and that the decision in the Goffee case, 192 Mo. 670, wherein it was held that no grain could be inspected except that going into or out of public warehouses, does not reach and apply to the statute regulating the inspection of hay, because of the difference between the statutes. This position is not tenable. The Act of 1905 requiring inspection of hay is. an outgrowth of the grain inspection law, and standing alone, the hay inspection law would be entirely inoperative. Appellant con- ■ tends that the Law of 18991, upon which the Goffee case was decided, contained a specific .reference to public warehouse®, and that reference was so prominent a feature of the law that the court concluded that the legislative intent was to confine the inspection to grain in public warehouses, and appellant contends that the Act of 1905-, relating to hay inspection,’ contained “a legislative intent to provide generally and broadly for the inspection .of hay, and that there is not, as there was in the statutes construed in the Goffee case, legislative intent to limit it to hay which went into or out of public warehouses.” Appellant stands on thin ice in this contention, because the Act of 1905 was amendatory to the statutes construed in the Goffee case, and became a part of the article on inspection of grain. R. S. 1909', art. 2, p. 2155. The hay inspec-. tion law means nothing unless the grain inspection law is read into it, and reading into it the grain inspection law, we are confronted by two decisions of the Supreme Court of Missouri which have held that grain could not be inspected except in public warehouses. State ex rel. v. Smith, 114 Mo. 180; State ex rel. v. Goffee, 192 Mo. 670.
   FERRISS, J.

— Action by the State, at the information and upon the relation of the Attorney-General, to recover- from the respondent the sum of $5031.50 fees, for inspecting 10>,063- cars of hay in Kansas City, Missouri, consigned to respondent, at the rate of fifty cents a car, the fee established by the rules and regulations of the Railroad and Warehouse Commissioners, pursuant to the Act of the Legislature of 1905 (Laws 1905, p. 171; now Secs. 6832 and 6833, R. S. 1909), as follows:

“Sec. 6832. The board of railroad and warehouse commissioners is required to- supervise the inspection and the weighing of all hay at -points within this State, for storage or sale, where state grain inspection or state hay inspection has been established or may hereafter be established by said commissioners.
“Sec. 6833. The board of railroad and warehouse commissioners are hereby empowered to prescribe such rules and regulations for the enforcement of the provisions of the preceding section as will as nearly as possible conform to the requirements of law now in force regarding the state inspection and weighing of grain, requiring such a bond of inspectors and weighers of hay for the faithful performance of duty as in the judgment of said commissioners is sufficient, and prescribing such fees for inspection and weighing of hay as shall be reasonable. The penalties now provided by this article for a failure to comply with the law regarding state grain inspection shall also apply to hay inspection as: by the- preceding section required. ’ ’

The petition filed by the Attorney-General states:

“Defendant is and was at all dates herein mentioned engaged in the business of buying and selling hay in Kansas City, Missouri, under the name and style of Carlisle Commission Company.
“John W. Knott, Frank A. Wightman and Rube Oglesby are and were at the dates herein mentioned the duly elected and qualified members of the Board of Railroad and Warehouse Commissioners' of the State of Missouri.
“Prior to the passage and approval of the Act of the Legislature (Session Law® 1905', at page 171), said board had designated Kansas City, St. Joseph and Kansas City as places where, grain should be inspected, and for a long time prior thereto it had been the custom and practice of said board to inspect grain by its appointees, in cars, outside of warehouses, as the cars arrived to be delivered to consignees.
“That said board, in pursuance of the powers to them given by the statutes of Missouri in such cases made and provided, formulated and made proper rules and regulations for the inspection of hay and in such rules and regulations fixed the charge for the inspection of hay at Kansas City at the price of fifty cents per car; that said board further, in pursuance of the powers vested in it by the laws of the State of Missouri, appointed a chief inspector, deputy chief inspectors "and the assistant inspectors for the inspection of hay at Kansas City and other points, throughout the State of Missouri, and in pursuance of said rules and regulations formulated by said board, as aforesaid, said inspectors inspected from November, 1905, to and including March, 1909', ten thousand and sixty-three cars of hay consigned to defendant at Kansas City, a particular description of which said cars appears from a schedule hereto annexed, marked Exhibit ‘A’ and made a part hereof..
“The -charges for the inspection of said hay as fixed by said Board of-Railroad and Warehouse Commissioners were and are reasonable, just and legal.
“Payment of said inspection charges has been demanded from defendant by plaintiff, and payment refused.
“Wherefore, plaintiff asks judgment for the sum of five thousand thirty-one dollars and fifty cents, together with interest and costs.”

To this petition respondent demurred on the following grounds:

“First. That this court has no jurisdiction over the subject-matter of this actipn, in that the statutes under which this action is brought are unconstitutional and void as delegating power unto the Board of Railroad and Warehouse Commissioners, contrary to the provisions of section 1,.article 4, Constitution of Missouri.
‘ ‘ Second. That the petition filed herein by plaintiff does not state facts sufficient to constitute a cause of action against defendant.”

The demurrer was sustained, and, after due proceedings, the cause comes here upon the State’s appeal.

Respondent urges two propositions: (1) That section 6832, Revised Statutes 1909, is unconstitutional and void as a delegation of legislative power; (2) that the petition fails to state a cause of action in that it fails to allege that the hay inspected was going into or out of a public warehouse.

The appellant says' nothing upon the contention that the Hay Inspection Act is void.

Upon the contention that the act applies only to hay in public warehouses, the appellant insists that the. Act of 1905 contains “the plain legislative intent, to provide for the inspection of hay generally, without any limitation or qualification whatever.” It is stated in appellant’s brief that the trial court sustained the demurrer on the theory that under the law the inspection is limited to hay going into or out of a public warehouse.

I. The Hay Inspection Act of 1905 was passed as an amendment to the general Grain Inspection Law (Art. 3, chap. 117, R. S. 1899), under the following title: •

“An Act to amend Article 3 of Chapter 117 of the Revised Statutes of Missouri, 1899', by adding two new sections thereto, providing for a state inspection of hay, to be known as section 7681a and 7681b.”

There is no provision in the article amended requiring hay to be inspected. The amendatory Act of 1905 does not, except by inference, require such inspection. The first'section (Sec. 6832, R. S. 1909) provides that the board shall “supervise” the inspection of hay. The second section (Sec. 6833, R. S. Í9091) provides that the board shall make rules and regulations “for the enforcement of the provisions of the preceding section;” that is, rules and regulations for supervising the inspection of hay. It thus appears that while the Legislature attempted to provide for the supervision of hay inspection, it did not require the inspection itself. With reference to the inspection of grain, the law requires, such inspection in the explicit terms of section 6780', Revised Statutes 1909; also, by the explicit terms of section 6828, Revised Statutes 1909, the law requires grain to be weighed.

In the absence of any provision of law requiring hay to be inspected, we must hold that tbe Board of Railroad and Warehouse Commissioners have no power to enforce hay inspection.

II. The petition in this ease alleges that the board had designated Kansas City as a place where grain should be inspected. Section 6832 provides for the supervision of hay inspection at points “where state grain inspection or state hay inspection has been established or may hereafter be established by said commissioners.” In Merchants’ Exchange v. Knott, 212 Mo. 616, we held that the Legislature could not delegate to the Board of Commissioners the power to determine where and when inspection should be established, and, so holding, declared void the Act of 1907 (P. 286, Session Laws 1907), which authorized the board to establish inspection at such points as in the opinion of such board should be necessary. The Act of 1905, under consideration, if it be construed to authorize the board to determine the points where grain or hay shall be inspected, falls within this objection, because it is made to depend upon the opinion of the board whether or not hay shall be liable to inspection at any given point; that is to say, the exercise of the police power of the State in this regard is delegated to the board. Under our ruling in the. Knott Case, this cannot be done, and the act of the Legislature which attempts such delegation of power is void.

.It is interesting and instructive to consider, how this idea of delegating to the commissioners power to determine where inspection shall be established got into the statutes.

The first general law covering grain inspection was passed in-1889. [Art. 3, chap-. 87, R. S-. 1889'.] Section 5607 of that article defines public warehouses as embracing all warehouses, elevators and granaries in which is stored grain in bulk for different owrters. Section 5612 provides that all grain received in public warehouses shall be inspected. By these two sections the law required all public warehouses to have grain inspection. The Law of 1889 provides for the appointment of inspectors, and defines their duties, contemplating such a force of inspectors as might be necessary to make the law effective. In 1898. the Legislature changed the law defining public warehouses by repealing section 5607 of the Revision of 18891 and enacting a new section which limited public warehouses to “all buildings, elevators or warehouses wherever state grain inspectors may be established by the State Board of Railroad and Warehouse Commissioners.” Evidently the object of this change was to protect warehousemen at points where there were no inspectors from prosecution for failing to inspect. Under this amendment, the owner of a public warehouse would not be liable to the law until and unless inspectors should be established at that point. In printing this Act of 1893 in the Session Laws, the Secretary of State apparently conceived the idea that the word “inspectors” was erroneous. He therefore bracketed the word “inspection” as a substitute for “inspectors,” a.s explained.in the memoranda published at the end of such Session Laws. The effect of this change of words was to imply in the board power to determine the points where inspection should be had, whereas the law as passed by the Legislature gave the board power only to establish inspectors at various points where public warehouses existed. Iu preparing- the Revision of 1899, the revisors adopted the bracketed word, and section 7625 of that revision gives the board the apparent power by implication to determine the points for inspection. In 1907 the Legislature, in terms, gave the board this power to determine the points for grain inspection. [Session Laws 1907, p. 286.] That act was held void, as stated above, in the Knott case. Following this decision, the revisors for 1909, on the0 theory that the original law was still in force, in view of the fact that the amendment of 1907' was held to be void, incorporated in the present revision the section as it stood in the Revision of 1899'; so that, asi the law (section 6775) stands, to-day in the present revisions, we have a power implied to exist in the board which was never intended by the Act of 1898, from whence the section is derived, which power we have held could not be delegated to the board. If we disregard the word “inspection,” interpolated and bracketed by the Secretary .of State in the Act of 1898, as we should do, and disregard also' the acts of the revisors of the two subsequent revisions of 1899 and 1900' in adopting the bracketed word in place of the word “inspectors,” as we should do, then, under the law as enacted in 1889, and as it was in fact amended in 1893, the board has been given no power to fix and determine the points of inspection, but grain in all public warehouses, au points where inspectors have been established, is subject to inspection.

Coming back to the hay inspection Act of 1905, it is apparent that the power attempted to be given in section 6832, Revised Statutes 1909, to the board to supervise the inspection of hay is made to depend on the power assumed to belong to the board to determine the points for grain or hay inspection — a power, however, which has never been in fact given to the board, and which the Legislature, as we have decided, could not delegate to the board.

We, therefore, hold the Hay Inspection Act of 1905 void and of no effect. As the above conclusions dispose of the ease, we will not discuss other points, suggested in the briefs.

The judgment is affirmed.

All concur.