text:
    THE GEORGE C. PRENDERGAST CONSTRUCTION COMPANY v. DAVID GOLDSMITH et al., Appellants.
    Division Two,
    February 16, 1918.
    1. SEWER: Park: Liable to Residential Use. In determining whether certain special tax bills are legal, for that a park was not included in the sewer district, the court will take the situation as it finds it and treat the whole park area as a park, although the deed of the park tract to the city required two hundred feet around its outer edges to be leased for residence purposes — a condition that has not been complied with in the forty years since the deed was made.
    2. FINDINGS OF COURT: Immaterial Matter. The findings of the trial court of an immaterial fact does not invalidate its findings of material and relevant facts, provided the facts found are sufficient to support the judgment.
    3. -: Silence as to Material Issue: Fraudulent Conduct of City in Excluding Park from Sewer District. If a special finding of the trial court is silent as to a material point it is to be deemed a finding against the party who has the,burden of proof. If the court made no finding as to whether the city acted fraudulently, oppressively or arbitrarily in not embracing a public park within the sewer district, that must be regarded as a finding on that point against the owners of land in -the district when they are sued on special tax bills issued to pay for the construction of the sewer and which they charge are void because said park was not included in the district, since the burden was on them to establish the fraudulent conduct of the city.
    4. SEWER DISTRICT: Exclusion of Park: Illegal and Arbitrary. The exclusion of a city park from the sewer district will not be held to be arbitrary and illegal on its face, if the amount of water that actually gets into the sewers constructed is negligible.
    5. -: -: -: Natural Drainage. The city in laying out a sewer district has the right to consider the fact that nearly half of a public park front drains away from the street in which the sewer is laid, and that the other half is park grounds which absorb a large portion of the rainfall,. unlike roofs and pavements which discharge all the water into the sewer, and therefore its act in excluding the park- from the sewer district cannot be held to be arbitrary and illegal, as a matter of law.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Affirmed.

      David Goldsmith for appellants.
    (1) Special findings under Section 1972, R. S. 1909, must be responsive to all the issues. Cochran v. Thomas, 131 Mo. 268; Fahy v. Grocer Co., 57 Mo. App. 76; Brant v. Robertson, 16 Mo. 129; Downing v. Bourlier, 21 Mo. 149; Sisson v. Barrett, 2 N. Y. 406; Clark v. Neumann, 56 Neb. 374; Phipps v. Harlan, 53 Cal. 87. (2) The findings of fact should be all the ultimate facts in issue, and not of evidenciary matters. Murdoch v. Finney, 21 Mo. 140; Sutter v. Street, 21 Mo. 157; Allison v. Darton, 24 Mo. 343; Powers v. United States, 119 Fed. 562, 56 C. C. A. 128. (3) The findings of fact made by the trial court in this cause are not responsive to the issues. (4) The findings of law made by the trial court in this cause are indeterminate and erroneous. (5) The finding, upon which the judgment of the trial court is based, relates solely to the motives of the Municipal Assembly of the city of St. Louis, and these motives are immaterial. Dreyfus v. Lonergan, 73 Mo. App. 345; Brown v. Cape Girardeau, 90 Mo. 383; Kansas City v. Hyde, 196 Mo. 507; Soon Hing v. Crowley, 113 U. S. 710; Kerfoot v. Chicago, 195 111. 232; 2 Dillon on Municipal Corporations (5 Ed.), p. 914, note 3; McQuillin on Municipal Corporations, sec. 378, pp. 831, 832; Potter v. McDowell, 31 Mo. 69; Reed v. Pelletier, 28 Mo. 178; Bump on‘Fraudulent Conveyances (4 Ed.), secs. 27, 243, 333 and 375, pp. 24, 282, 368 and 404. . (6) The findings of fact made by the trial court, in connection with the undisputed facts, show conclusively that the ordinances, upon which the special tax bill in suit is based, are arbitrary; and this renders that tax bill invalid. Prior v. Construction Co., 179 Mo. 440; Hernán v. Schulte, 166 Mo. 417; Heman v. Allen, 156 Mo. 550; State ex rel. v. Birch, 186 Mo. 219; Corrigan v. Gage, 68 Mo. 541; St. Louis v. Richardson, 76 Mo. 485; Masters v. Portland, 24 Ore. 161; Hanscom v. Omaha, 11 Neb. 43; Fraser v. Mulaney, 129 Wis. 385; Lawrence v. Grand Rapids, 166 Mich. 134; Trust Co. v. Chicago, 162 111. 509; Copcutt v. Yonkers, 31 N. Y. Supp. 659; Vandeventer v. Long Island City, 139 N. Y. 39; Denver v. Kennedy, 33 Colo. 81; Lenon v. Brodie, 81 Ark. 217; Beck v. Holland, 29 Mont. 234; State ex rel. v. District Court, 95 Minn. 71; Whitney v. Fawcett, Styles Rep., 13.

      A. R. & Howard Taylor for respondent.
    (1) The special tax bill sued on, re-issued, has the prima-facie proof of validity as if originally so issued. Galbraith v. Newton, 45 Mo. App. 312; Yieths v. Planet Co., 64 Mo. App. 207. (2) The special tax bill in suit is prima-facie evidence of the liability of appellants as owners to pay the bill. Charter of St. Louis, art. 6, sec. 25; Woerner’s Revised Code of St. Louis. (3) Under the admissions of the’ answer, the work was done according to contract and accepted by the city. (4) The only issue presented by the answer, then, is, was the passage of the ordinances for the construction of the sewer and for the assessment district the result of fraud, wilful discrimination and intent to oppress the owners of land in the assessment district, by omitting to include Tower Grove Park in the assessment district, and under the rule of decision in this court, there being no evidence or even contention that the plaintiff was in any manner cognizant or privy to said alleged fraudulent action of the city and its officers. Such fact, if true, is no defense to this action. An objection to any evidence under the answer would have been properly sustained. Paving Co. v. Field, 188 Mo. 206; Jaicks v. Merrill, 201 Mo. 110; Warren v. Paving Co., 115 Mo. 580; Bank v. Woesten, 147 , Mo. 483; Improvement Co. v. St. Louis, 257 Mo. 305. (5) In the absence of evidence of fraud, oppression or palpable injustice, the exercise of the discretion confided to the city to pass ordinances establishing sewers and sewer districts is conclusive and not subject to collateral attack. McGee v. Walsh, 249 Mo. 286; Hernán v. Allen, 156 Mo. 543, If there was connection made with this sewer after the sewer was constructed and tax hill issued, it in no manner affects the validity of the tax hill. Hernán v. Schulte, 166 Mo. 417; Prior v. Construction Co., 170 Mo. 451. (6) An inspection of the court’s finding of facts shows that every constituent fact involved in the controversy, as well as the final constitutive facts of the affirmative defense alleged in the answer, were found by the court with painstaking care. The findings of facts find all material facts in controversy relating to the feasibility of the drainage of the area of Tower Grove Park through the sewer in question and do find that it was feasible to drain a considerable part of such area through the sewer, hut the court did not find and plainly could not find, that the whole of such area could he so drained, because the habit of water to seek the lower level is obstinate, and thus the area of at least 300 feet by 300 feet, being much lower than Kings-highway, could not he drained into this sewer. And the court does properly find and was hound under the evidence to find, that the evidence did not show that drainage by way of this sewer was the only or exclusive manner of draining this area of the park. The court, in its finding, passed upon each and every constitutive fact alleged in the answer as a ground for assailing the validity of the assessment as oppressive or fraudulent. This was a full compliance with the statute, the manifest object of which is that such essential facts are to be found in order that the appellate court can determine whether or not the conclusions of law made are warranted by the facts found.
   ROY, C.

This is a suit to enforce the lien of a special tax bill of $1297.60 for the construction of sewers. Plaintiff had judgment for $1394.83, and defendants have appealed'.

The property has a front of 486 feet 1V2 inches on the west side of Kingshighway Boulevard, with a depth of 171 feet, bounded north by Bischoff Avenue and south by Old Manchester Road. About a quarter of a mile south of defendant’s land is Tower Grove Park, fronting west on the east side of-said boulevard, and extending south 1477 feet to Arsenal Street. The entrance to the park is two hundred feet wide, the south side of the entrance being about eight hundred feet from the southwest corner of the park. The park drive from the éntrance runs west about 300 feet before it divides. There is no further showing by the evidence as to the location of the park drives. There are gutters along the park drives, but the evidence does not show any other gutters in the park.

Edwin Jolly, city engineer of .grades and surveys, a witness for defendants, stated that by reason of a depression in the southwest part of the park the surface water of the park flowed north about 600 feet to the north side of the park, and that the middle of such depression is about 200 feet from Kingshighway. Beyond that the park rises to the east. At another place in his testimony he said: “The head of this sag is right here at the south side of the park entrance.” That part of the park north of the entrance and for a distance of 600 feet east has a fall of 18 feet west to Kingshighway. What if any northern slope it has is not shown except that Kingshighway has a very gradual slope to the north along the entire front of the park.

In 1904 the city established Manchester Road Joint Sewer District, and caused a joint sewer about a mile and a half long to be constructed in the northern and lower part of the district. That sewer is nine feet in diameter at its east end and half that diameter at its west end. It is five and a half feet in diameter on Bischoff Avenue where it passes along the north end of defendants’ property. Opposite defendants’ property across the boulevard is “Shaw School,” and east of that are the extensive grounds of the Missouri Botanical Garden. The plat of that joint sewer district is before us, and a rough estimate shows that about eighty acres of the park and about a hundred and twenty-five acres of the Botanical Garden are in that joint district.

In 1905 the city established Manchester Road Sewer District Number Three, and provided for the construction of sewers therein. It is for that construction that the taxes herein are sued for. That district Number Three as shown by the plat lies on both sides of the boulevard. On the west side it extends from Arsenal Street to Bischoff Avenue, but on the east side the lands of the park and of the Botanical Garden are left out. All other tracts within about 670 feet of the boulevard and on the east thereof are in the district. Among the district sewers thus constructed is one in the boulevard from Arsenal Street to Bischoff Avenue. It is twenty-five inches in diameter at Arsenal Street, twenty-seven and a half inches in diameter at the park entrance and at the northwest comer of the park. It is four feet two inches in diameter in front of defendants ’ property, and empties into the joint district sewer at Bischoff Avenue. A sewer twenty-five inches in diameter was laid in Old Manchester Road from the sewer in the boulevard west along defendants ’ south boundary. A fountain and a hydrant are in the park near the entrance. Before the construction of the seweF the water from the fountain and hydrant and from the gutters in the park passed through a pipe under the boulevard into a gully on the west side. The water now flows into the sewer near the entrance. The evidence does not show when or by whom that connection was made. Plaintiff testified it was not made when the sewer was laid.

The evidence does not show how much water from • any source enters the sewer from the park. There is a “guard house” near the entrance. It does not appear how large that structure is, nor whether it has sewer connection.

Nearly all the land in said sewer district is subdivided into lots and blocks. Defendants’ property is about two acres in extent, but is not subdivided into lots and blocks.

The park has no connection with said sewers except as shown above. The answer alleges that the west end of the park extending east about a thousand feet is as much benefited by the construction of the sewers as any land in the district, and that it was left out of the district by the city and its officers with the intent on their part that it should not be charged with its proportionate part of the cost of the sewer, and in the intentional disregard on the part of the city of its duties and the rights of the defendants and other owners of property in said district.

The cause was tried without a jury, and the court stated its finding of facts and conclusions of law in writing which included the following:

“That with the exception of an area composing some 300 feet each way, and located at the southwestern corner of Tower Grove Park, the western part of said park for a distance of some 600 feet east of Kings-highway is of an elevation higher than said Kingshighway between Arsenal Street and Magnolia Avenue, and the natural drainage thereof is in the main westwardly towards said Kingshighway, and the court does further find that before the building of the sewer in question surface water and hydrants drained from said part of the park, through drains and gutters, under said street and sidewalk, to a point west of Kingshighway; that whatever drains for surface and hydrant water now exist in said western and northwestern portion of said park lead into that section of the sewer in question, situated in Kingshighway adjoining said park, hut the court is unable to determine from the evidence as to when such connection with said sewer was accomplished, or by whom.
“I do also find that at the time the work in question was performed it was provided by the Revised Ordinances of the City of St. Louis that water draining from roofs of houses should not flow over sidewalks, but should be conducted through pipes to a sewer, if available, and if not, then such water should be conducted through pipes below the sidewalk, and into the open g-utter of the street.
“And the court does not find from the evidence that it is not possible or feasible to drain the surface water now falling upon or collected from that portion of Tower Grove Park, and the reserved strip of 200 feet, which is higher than and inclined towards Kingshighway, from the surface of said land in any other manner than through or by the district sewer constructed in Kings-highway, or that sewage from houses upon said reserved strip, if any there ever be, cannot be disposed of by means other than said sewer.
“Conclusions of Law.
“Finding the facts as aforesaid, the court concludes as a matter of law, that it was within tine powers of the Municipal Assembly, in the passage of ordinances establishing the sewer district wherein the work sued for was performed, to embrace and designate therein only such real estate as, in its judgment, would be benefited thereby, and that the discretion vested in said municipal legislature is not subject to review by this court, unless the powers of said legislature were affirmatively shown to have been exercised fraudulently, oppressively or arbitrarily. [Prior v. Construction Co., 170 Mo. 439; Heman v. Schulte, 166 Mo. l. c. 416; Heman v. Allen, 156 Mo. l. c. 550.] And it is further concluded, as a matter .of law, from the precedent facts, that the mere omission of lands from said district, which might, at one time, he reasonably included in the sewer district in question, or as to which it is reasonable to assume that the same would more conveniently be served by the sewer in .question than any other, does not justify the court in concluding that the Municipal Assembly, in omitting said lands from the sewer district in ques-‘ lion, was actuated by motives of fraud or oppression; or that the prima-facie liability of defendants (Sec. 25, art. 6, Charter of City) established by the certified special tax hill is thereby rebutted and overturned.

We here insert a plat which we have made in order that there may be a clear understanding of the facts as they appear.

There is no showing of any fraud, oppressiveness or arbitrariness on the part of the city except such, if any, as may be drawn from the face of the proceedings in the light of the evidence stated.

I. . The appellants in their briefs say:

‘ ‘ The trial court in its findings, which are conclusive, stated, and the entire evidence shows, that the surface waters from the whole of the western 600 feet of the park, with the exception of about 300 feet square in the extreme southwest corner, and accordingly the surface water from a frontage of about 1170 feet on Kingshighway (the entire frontage being 1470 feet) by a depth of about 600 feet, drained naturally into Kingshighway; that for many years prior to the construction of the district sew- or in question, this surface water was collected by gutters along the driveways in the park, and carried, first, into inlets in Kingshighway, and thence through underground pipes into a ravine on the western side of Kingshighway; and that upon or since the construction of the sewer these drains have been connected with, and the surface waters accordingly drained into, the sewer. The land from which these waters come is shown by the testimony of the city’s own engineer of grades and surveys to have a fall of eighteen feet or more in six hundred, or of nearly one foot in twenty, which is certainly very unusual in the city of St. Louis. The evidence, therefore, warranted the conclusion that the amount of these surface waters was unusually heavy; at all events, it showed that the surface water thus drained included all the surface water from that part of the park. What more was it practically possible to show? How could the amount have been measured?”

We think that statement shows a misunderstanding of the court’s finding of facts and that most if not all of the contentions of appellants here grow out of such misapprehension. The trial court did not make any such broad finding of facts in favor of defendants as they claim. There is no finding, as claimed by appellants, that all the 600 feet of the park except the 300 feet square drains naturally into Kingshighway. The trial court merely found that “the natural drainage thereof is in the main westwardly towards Kingshighway.” Defendants’ witness Jolly proved that for a distance of six or eight hundred feet north and south just inside the park the surface water flows south and not west, and that it, consequently, does not get into Kingshighway.

The trial court does not find that, prior to the construction of the sewer, all the water on the east portion of the park was collected in gutters along the park driveways and carried under Kingshighway into a ravine as claimed by appellant. It only says: ‘ ‘ Surface water and hydrants drained from said part of the park, through drains and gutters, under said street and sidewalk, to a. point west of Kingshighway. ’ ’

Neither does the trial court find that all the surface water of that part of the park is now collected into such gutters and thence discharged into such sewer. It merely says: “Whatever drains for surface water and hydrant water now oxist in said western and northwestern portion of said park lead into that section of the sewer in question. ’ ’

The accompanying plat shows that very little water, comparatively, from the park gets into the gutters along the park drives. It does not appear that any water from the park gets into the sewer except that which passes from such gutters and the hydrant, and the trial court did not find that any water from the park gets into the sewer except that from such gutters and the hydrant. That must he comparatively very little.

We call attention to the fact that a fall of eighteen feet in six hundred is not a fall of one foot in twenty as claimed by appellants, but only of one foot in about thirty-three.

II. The appellants contend that the trial court overlooked one fact conclusively shown by the evidence, namely, that the two hundred feet strip around and within the park is, by the terms of Shaw’s deed to the city, required to he leased for residence purposes. It is sufficient for the purposes of this case, to say that from the beginning in 1868 the city has failed to conform to that part of the provision of the deed. Whether or not it ever will do so does not appear in this case. We take the situation as we find it and treat the whole tract as a park as the city seems to have done.

III. Appellants call attention to their answer which alleges that the officers and representatives of the city omitted the park from the sewer district with the intent that it should thereby escape the payment 0f any portion of the cost of the sewer, and with the intentional disregard on the part of the city of its duties in the matter and of the rights of the defendants and other owners of lots in the district.

Appellants say that the findings of the trial court are not responsive to the issue thus raised by the answer and by the reply thereto.

But in their brief they say: “The finding upon which the judgment of the trial court is based, relates solely to the motives of the Municipal Assembly oí the city of St. Louis, and these motives are immaterial.”

Without deciding the point as to whether such motives are material, we call attention to the fact that the finding of the court on the question of motives' was in direct response to defendants’ answer. The finding of the court as to an immaterial fact does not invalidate the findings, provided the other facts found are sufficient, to support the judgment.

IV. Appellants contend that the trial court made no finding of fact as to whether the city acted fraudulently, oppressively or arbitrarily in the proceeding, and that such failure to find on that point is reversible error. They cite on that point Cochran v. Thomas, 131 Mo. 258, l. c. 268. The court was there speaking, of the effect of a request hy a party for a finding of the facts in accordance with the statute, and said:

“We are of the opinion that under this provision the court is required to find and state in writing, not only every constitutive fact in issue to which his attention is directed, but also separately the conclusions of law thereon in order that exceptions may be taken thereto.”

Appellants overlook the language of the opinion in that ease on page 278, where it is said:

“The statute requires the court, vdien requested by either party, to ‘state in writing the conclusions of facts found separately from the conclusions of law.’ [Sec. 2135, R. S. 1889.] Elliott, in his recent work on Practice (Sec. 975), gives this rule as one, in his opinion, founded upon right principle: ‘If a special finding is silent on a material point it is deemed a finding against the party who has the burden of proof.’ This rule finds support in the decisions of the Supreme Court of Indiana. [Railroad v. Hart, 119 Ind. 280; Bank v. Bolen, 121 Ind. 304.]”

The judgment in that case was accordingly affirmed.

In this case the burden of proof was on defendants as to the point in question, and if the court failed to state its finding on that point it must be regarded as a finding against them.

Y. Appellants contend that, on the face of the record, the action of the city should be held arbitrary and illegal. The foregoing plat shows that one sewer begins at A, runs east to the southwest corner of the Par^ a^ thence north along the park front, and about 400 feet beyond to its confluence with another sewer, with a total length of about 3100 feet and a diameter of only 27]/2 inches at its largest part. The.size of that sewer was increased only once in its eouise along the park front, and that was at a point only about 400 feet from the southwest corner of the park, and defendants’ evidence conclusively shows that no water gets into the sewer from the park within that 400 feet. What is more, it is not shown that the city made any provision for admitting the water from the park into the city sewer, and, so far as that showing goes, the amount of water that actually gets into the sewer from the park is negligible for the purposes of this case.

Another sewer begins at B and runs through a portion of the city where the land on both sides is in lots and blocks, and has streets, pavements and buildings. It runs a distance of about 3600 feet before reaching C, its junction with the first mentioned sewer. It has several short laterals. Its diameter for some distance before and after getting to C is four feet and two inches. Its size was not increased because of its receiving the contents of the first mentioned sewer. It should be noted that while it is only about one-sixth longer than the other sewer its capacity is about three times as great.

The city, in laying out the sewer district, had a right to consider the fact that nearly half the park front drained south and not into Kingshighway and that the other half was park grounds which absorb a large portion of the rainfall, unlike roofs and pavements which discharge all the water into the sewer. It had the right to consider that the park as the dominant tract was under no legal obligation to dispose of its surface water flowing therefrom in its natural direction. These facts were not such as to necessarily control the city in its action, but they were entitled to consideration.

The points above decided, we think, cover substantially all the case as presented by appellants. Judgment of trial court affirmed.

White, G., not sitting.

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

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    THE STATE ex inf. DAVID E. KILLAM, Prosecuting Attorney of Lincoln County, ex rel. T. J. HIGGINBOTHAM et al., Appellants, v. W. Y. COLBERT et al.
    Division Two,
    February 16, 1918.
    1. JURISDICTION: County Court. A county court, when acting in a judicial capacity, acquires jurisdiction only by compliance with the statute which gives it authority to act; and all the facts necessary to confer jurisdiction and make valid its order or judgment must affirmatively appear upon the face of the record.
    2. -: -: Organization of Road District: Change of Boundaries: No Amended Petition. An order of a county court organizing a special road district with different boundaries from those set forth in the petition and notice, so as to exclude a large tract of land, made without an amended petition and without a remonstrance or hearing, is invalid, since the statute (Sec. 10612, Laws 1913, p. 678) requires the district to be incorporated “with the boundaries given in the petition or with such boundaries as may be set forth in an amended petition signed by the owners of a majority of the acres of land affected thereby.”
    3. -: -: -: Recital That Jurisdiction Had Been Acquired. A recital in the order of the county court organizing a special road district that “the court has duly acquired and has jurisdiction of the subject-matter of this cause and of all the persons interested therein and of all the lands located within the boundary of said district” is not conclusive, but is a mere conclusion from the facts before the court. The acquirement of jurisdiction is not sufficient, but all the acts of the court must be within the limits of the jurisdiction so acquired. The court acquires jurisdiction of the subject-matter and of the parties by the filing of a proper petition and the statutory notice; but it exceeds its jurisdiction when, without an amended petition and without notice, it excludes a large tract of land described in the petition and notice and organizes a district with different boundaries.
    4. -: Quo Warranto: Direct Attack. A quo warranto proceeding is a direct attack upon, and the appropriate proceeding by which to attack, the validity of the order of a county court incorporating a special road district.

      5. -: Koad District: Legislative and Judicial Functions. The Legislature has authority to establish and incorporate a special road district for purposes of special improvement and taxation, and to determine, without notice or hearing, what land would be benefited and is to be included in it; but that purely legislative function cannot be delegated or conferred upon a legislative agency. The Legislature can confer upon certain officers, boards, commissions and courts power to carry out in detail the legislative will, to prescribe rules and regulations, to ascertain facts upon which the operation of its statutory will will depend, or to carry through certain prescribed procedure by which to put in force certain statutes in limited districts. Certain of these powers thus conferred upon the agency are administrative and others are judicial, and where the power is judicial it cannot be exercised without .notice and an opportunity to be heard. The act of incorporating a district is judicial, as is the determination of the question of whether ■ the lands to be included will be benefited by the contemplated improvement, and even though the statute says that a district may be organized “of any dimensions that may be deemed advisable” lands cannot be included therein without a judicial inquiry as to benefits.
    6. -: -: -: Boundaries: Departure From Statutory Prescriptions. The authority of the county court to make any change in the proposed boundaries of a special road district that “the public good may require” and authority to organize a district “of any dimensions that may be deemed advisable” do not imply authority to depart from the description in the petition without an amendment or notice. A change of boundaries from those set out in the petition cannot be made without an opportunity to those affected to be heard. The county court cannot incorporate a district without making inquiry as to whether the lands . included in a district will be benefited by the contemplated improvements. The statute requires a notice to the landowner before the district is incorporated, and the incorporation of a district of different boundaries from the one of which the landowners had notice is illegal.
    7. -: -: Benefits. The statutes authorizing the incorporation of a special road district by county courts manifest a legislative intention that the court must determine after notice and an opportunity to landowners to be heard, whether or not lands located within its proposed boundaries will be benefited by the contemplated improvement. In a determination of that question, the court acts judicially, as it does in inquiring into the propriety of any change from boundaries described in the original petition, and in either case the determination must be had before the district is incorporated and the record must affirmatively show jurisdiction according to the statute to do what is done.

      8,.-: -: Irregularity: Changing Boundary of Koad District. An order of the county court organizing a road district with boundaries different from those described in the petition, without notice and an amended petition, whereby a large tract of land was excluded, cannot be separated into valid and invalid parts, but is void as a whole, since all the land in the district is affected by the variance. The exclusion is not a mere irregularity, but involves the court’s jurisdiction, since it is not done according to the method prescribed by the statute.
    9. -: -: -: -: Judicial Act: Mandamus. The county court in changing the boundary of a road district as described in the petition and notice, without an amended petition and notice, did not act ministerially, but judicially, and hence the law will not presume that the order conformed to the petition, and mandamus is not available to compel the court to enter a judgment in conformity to that presumption.
    10. ROAD DISTRICT: Conflicting Statutes. The general power granted to the county court by Section 10611, Laws 1913, p. 678, to organize a district “of any dimensions that may be necessary or advisable” within certain limits, must be construed in connection with Section 10612, which prescribes the method by which that general power is to be carried into effect, and the procedure by which the court may acquire and exercise jurisdiction to make orders affecting specific property. They are not inconsistent.
    Appeal from Lincoln Circuit Court. — Hon. Edgar B. Woolf oik, Judge.
    Reversed and remanded (with directions).'

      David E. Killam, Rufus L. Higginbotham, Sutton & Huston and Hostetter & Haley for appellants.
    (1) The court erred in ruling that the statute permitted thé county court to change the boundaries of the road district as set forth in the original petition, as in .its discretion it might determine to be necessary for the public good, without the filing of any remonstrance or an amended petition; such ruling is opposed to both the express language and spirit of the statute. Sec. 10612, R. S. 1909; Laws 1913, p. 678; Embree v. Road District, 240 U. S. 242, 257 Mo. 593. (2) No reifionstrances having been filed, it was a jurisdictional prerequisite to the right of the county court to change the boundaries of the road district as set forth in the original petition filed, that an amended petition should have been filed signed by the requisite landowners within the district, describing the boundaries as so changed. State ex rel. v. Wiethaupt, 165 Mo. App. 644; State ex rel. v. Wiethaupt, 266 Mo. 313; Bayless v. Gibbs, 251 Mo. 506; State ex rel. v. Heege, 37 Mo. App. 348; State ex rel. v. Seibert, 97 Mo. App. 218; Seafield v. Bohne, 169 Mo. 547; Stutz v. Cameron, 254 Mo. 359; State ex inf. v. Bellflower, 129 Mo. App. 146; 7 Ruling Case Law, sec. 57, p. 1029; Charles v. White, 214 Mo. 206; State ex rel. y. Forest, 177 Mo. App. 252; Davidson v. Schmidt, 256 Mo. 19; State ex rel. v. Campbell, 120 Mo. 402; State ex rel. v. Small, 131 Mo. App. 476; State ex rel. v. McReynolds, 61 Mo. 203.

      John L. Burns and Dudley & Williams for respondents.
    (1) The county court had authority to pass upon its own .jurisdiction and the presumption of right action should be indulged as to its action on subjects committed to it by statute. Lingo v. Buford, 112 Mo. 149; Belk v. Hamilton, 130 Mo. 292; In Re Breck, 252 Mo. 327; Connors v. City of St. Joseph, 237 Mo. 612; State ex rel. v. Wilson, 216 Mo. 215, 274; State ex rel. v. Mining Co., 262 Mo. 502; Johnson v. Beazley, 65 Mo. 250; Murphy v. De France, 101 Mo. 151. (2) On the foregoing premises, the respondents take the position: 1st. The county court had jurisdiction of the subject-matter of incorporating this road district. Const. Mo., art. 6, sec. 36; Laws 1913, p. 678, secs. 10611, 10612; Hope v. Blair, 105 Mo. 85; Schuback v. McDonald, 179 Mo. 163; Ellis v. Elkins, 130 Mo. 90. 2nd. The county court acquired jurisdiction over the persons and lands in the district by the filing of the petition and publication of the notice shown in the record in this case. Laws 1913, p. 678, sec. 10612; Zeibold v. Foster, 118 Mo. 354; Bennett v. Hall, 184 Mo. 415; Embree v. Road District, 257 Mo. 593, 240 U. S. 242. 3rd. A proper construction of' the statute, Laws 1913, p. 678, sec. 10612, -imposed upon the county court the duty of protecting the public interests and hence it had power to fix the boundaries with reference to the “public good” independently of the conduct of the non-consenting land owners. Mo. Constitution, art. 6, secs. 1, 36; R. S. 1909, secs, 10463, 10464; Laws 1913, p. 678, secs. 10611, 10612. 4th. The court acted judicially in passing upon the question of its own jurisdiction and incorporating the-district and its judgment is not subject to either collateral or direct attack, except for fraud or mistake in the concoction of the judgment itself. State ex rel. v. Flemming, 158 Mo. 558; State ex rel. v. Mining Co., 262 Mo. 504; State ex rel. v. Woods, 223 Mo. 380; State ex rel. v. Haupt, 181 Mo. App. 18; State ex rel. v. Werthaupt, 150 Mo. App. 60; State ex rel. v. Buermean, 186 Mo. App. 701-2; Kansas City v. Winner, 58 Mo. App. 299; Gray v. BoAvles, 74 Mo. 419; Embree v. Road District, 240 U. S. 242; 23 Cye. 1219, par. 14 A, 2, b; Robbins v. Bouhvare, 190 Mo. 33; Murphy v. De France, 101 Mo. 151. 5th. The statute, Laws 1913, p. 678, sec. 10612, imposes upon the county court the duty of fixing the boundaries with reference to the “public good;” the only limit being that it must not incorporate land not included in the notice without consent of the owners. Hence its action fixing the boundaries is judicial so'that an error or mistake is not a matter affecting the jurisdiction of the court. 7 R. C. L. 1045, sec. 79, note 1; Freeman on Judgments (3 Ed.), see. 135; Friene v. Kirehoff, 176 Mo. 525-531; Hagerman v. Sutton, 91 Mo. 531; Howland v. Railroad, 134 Mo. 479; Hamer v. Cash, 118 Mo. 476; Leonard v. Sparks, 117 Mo. 103.
   WHITE, C.

This proceeding was begun by an information in the nature of a quo waarfanto filed in the circuit court of Lincoln County by the prosecuting attorney of that county, at the relation of twenty-five persons whose names are given, challenging the right of the respondents to exercise the functions of commissioners of a special road district. The respondents filed their return, alleging that they had been duly elected, had qualified and were acting commissioners of the “Silex & Louisville Road District of Lincoln County,” setting out in detail the facts which, as they claimed, showed the organization of such district and their authority to serve as such commissioners.

On the trial of the cause the records of the county court of Lincoln County, relating to the attempted formation of the Silex & Louisville Road District, under Sections 10611 to 10625c, Laws 1913, pages 677 t<5 695, together with the petition and notice in said matter, were offered in evidence.

The petition in the proceeding set out the boundaries of the proposed road district, stating that it included in the aggregate 11360 acres; set out a description of the several tracts of land included in it, with the name of the owner and the number of acres of each tract, and was signed in proper form by thirty-five or forty of such owners. The statutory notice, dated on the day the petition was filed, signed by the clerk of the county court, setting forth the same boundaries as stated in the petition with the same number of acres, 11360, was directed to the several parties named as landowners in the petition. Proof of the proper service of notice also was made.

The order of the county court incorporating the district was made May 17, 1915, being the first term following the filing of the petition and the publication of the notice. It recites, among other things, that the court finds the petition and notice were in due form and the notice duly served, “and that the court has duly acquired and has jurisdiction of the subject-matter of this cause and of all the persons interested therein, and of all the lands located within the boundary of said district.” The order then recites:

“The court further finds from the evidences adduced that the public good requires and makes necessary that the boundaries of the said proposed district as set out in the petition and notice should be changed, but that such changes in the boundaries proposed shall not be so as to embrace any land not included in the notice given by'the clerk of this court; that after such changes in the boundaries are made, the court further finds that such petition is signed and in writing- consented to by the owners of more than a majority of all the acres of land within the district as so changed, and that said district and the boundaries thereof as changed are in all respects suitable and proper, and that said district ought and should properly be incorporated and established by the name, and with the boundaries so changed as aforesaid.”

Then follows a description of the land included within the boundaries of the district as changed, leaving out a large part of the land included within the boundaries set qut in the petition and notice. The land left out in the order is stated by the appellant to be two thousand acres; the respondents claim it is only one thousand two hundred and twenty acres. However, it is unquestioned that it is a large tract, some of it contiguous to the proposed road marked on the plat submitted to the court showing the boundaries of the district and the direction of a road in contemplation from Silex to Louisville.

The record does not show that a remonstrance was filed to the petition nor that the petition was amended so as to conform to the territory embodied in the district covered by the’ order. Recitals in the order indicate that no remonstrance was filed and the petition was not amended. It does not appear , by the record thus introduced nor by other evidence that the parties, the relators, or any of them, were present at the time of the hearing of the matter before the county court, or that there was any hearing other than the consideration of the petition and notice. The authority for the order as shown in its recitals is based upon the petition and the notice in the form in which they were filed and served, as above set forth. The circuit court decided the district was properly incorporated and dismissed the information. From that judgment relators appeal.

I. It is claimed by the relators in this case that the county court was without jurisdiction to incorporate the district with the boundaries changed from those stated in the petition and notice, so as to exclude a large part of the land in contemplation by the petitioners for the forma^on 0£ yie district in the first place.

The statute under which the proceeding was had, Section 10612, Laws 1913, page 678, requires that a petition signed by the owners of a.' majority of the acres of land within the district proposed to be organized, and “setting forth the proposed name of the district and giving the boundaries thereof,” etc., shall be filed in the office of the clerk of the county court thirty days before the beginning of the regular term of said court, and requires the clerk to give notice, setting forth the manner in which the notice is to be given:

“Said notices shall contain the names of at least three signers of said petition and set out the boundaries of the said proposed district, and shall notify all owners of land in said proposed district who may desire to oppose the formation thereof to appear on the first day of such regular term of court and file their written remonstrance thereto.”

The section then provides for the filing of remonstrances in writing, which are required to state the objections of remonstrators to the formation of the district; and, at the term of court following, “the court shall hear such petition and remonstrance, and shall make any change in the boundaries of such proposed district as the public good may require and make necessary, and if after such, changes are made it shall appear to the court that such petition is signed or. in writing consented to by the owners of a majority of all the acres of land within the district as so changed, the court shall make an order incorporating such public road district, and such order shall set out the boundaries. of such district as established.”

The section then directs:

“If no remonstrance shall have been filed, or all remonstrances filed are overruled by the court, the court shall determine whether such petition has been signed by the owners of a majority of the acres of land in the district, and if so, shall make an order incorporating the district with the boundaries given in the petition, or with such boundaries as may be set forth in an amended petition signed by the owners of a majority of the acres of land affected thereby; and such amended petition may be filed at any time before the making of the order establishing a road district, but the boundaries proposed for the district shall not be so changed as to embrace any land not included in the notice given by the clerk unless the owner thereof shall in writing consent thereto, or shall appear-at the hearing,” etc.

Then follow sections of the act which make provision for the appointment and election of commissioners after the incorporation of the district, their organization, the levy of taxes, the issuance of bonds, petitions for road improvements and the hearing of objections and exceptions to such improvement and the apportionment of the tax against the property .of the district, in accordance with its value, and the benefits to be received from the construction of the road according to its distance from the road so constructed, the issuance of tax bills, making of contracts for the construction of the road, etc.

This statute shows that two contingencies are provided for on the hearing of the petition:

First, where remonstrances are filed the court hears the petition and the remonstrances and if the, public good requires it, makes a change in the boundaries of the proposed district and incorporates it with snch change. Evidently the change to be made in such case would be only after all the parties for or against the change might have opportunity to be heard before the court. All parties are notified of the original boundaries of the district as shown in the original petition and notice. It will be noticed that the only action to be taken by the county court under this section, is the formation of the district, and the only question which would come before the court in the first contingency, if the district should' be incorporated, would be whether the boundaries should be as set out in the original petition or changed on consideration of the remonstrances. A remonstrance could not, in any event, cover any other objection than one of these two: Either that the public good did not require the formation of the district at all, or that its formation should include land bounded differently from that stated in the petition. The Legislature doubtless had in mind that When a remonstrance is filed, suggesting a change in the boundaries, every petitioner and everybody who had notice of the proposed formation of the district is constructively notified- of what is on file and what is to be heard and determined by the court. We are not called upon to determine in this case whether the county court would have authority to organize a district in such case with boundaries changed from those set out in the petition, and also different from any contemplated in any remonstrance; that is, a change of which there is no notice on file.

The second contingency, the one with which we have to deal, is where no remonstrance has been filed or all remonstrances have been overruled by the court; that is, where remonstrances are left entirely out of consideration, with nothing on file for the court to consider in the formation of the district except the petition; then, the statute says:

“The court shall determine whether such petition has been signed by the owners of a majority of the acres of land in the district, and if so, shall make an order incorporating the district with the boundaries given'in the petition or with such boundaries as may be set forth in an amended petition signed by owners of a majority of the acres of land affected thereby; and such amended petition may be filed at any time before the making of the order establishing a road district.”

It is possible that the Legislature had in mind here that the filing of an amended petition setting forth different boundaries from those contained in the original petition would be a change of which all parties interested must take notice.

But the court is not authorized to make “any change” in such case which does not conform to the petition as amended. The district in this case was incorporated with boundaries entirely different from those set out in the petition, and no amended petition was filed.

Those who were notified of the proceeding in the first instance were informed that a certain number of acres, eleven thousand three hundred and sixty, would bear the burden and expense of such roads as might be built. To this no one objected. As the road district was incorporated a large part of this land, in quantity ten or fifteen per cent., the value not being given, was left out, placing an additional burden, not contemplated in the original petition and notice, upon the land remaining in the district. And, so far as the record shows, the change was made when relators had no opportunity to be heard in opposition to it.

It has been held frequently that a county court when acting in a judicial capacity acquires jurisdiction only by strict compliance with a statute which gives it authority to act; and it is a rule that all the facts necessary to confer jurisdiction and make valid an act of the county court must affirmatively appear upon the face of its record.

II. It is argued by respondents that the county court had authority to pass upon the facts showing whether or not it had jurisdiction and having found the facts in favor of its jurisdiction the find- . . . ml . „ j* .c , n , mg is conclusive. This finding oi the court was a mere conclusion from the finding that a proper petition was filed and proper notice served. And it may be conceded that the county court did have jurisdiction of the subject-matter and of the parties interested, authorizing it to incorporate a road district. But, under the authorities, it must not only have acquired jurisdic-' tion, but must act within the limits of the jurisdiction so acquired. If, having jurisdiction of the subject-matter, it proceeded to render a judgment in excess of its jurisdiction, then the judgment is a nullity. It could incorporate a road district defined in the petition and in the notices served, but the road district which it actually ordered incorporated was not that one at all, but another one entirely. It did not conform to the original petition nor to any amended petition, and was in total disregard of the statute under which the court purported to act. If ninety per cent of the land had been left out and the entire burden of constructing the contemplated roads in the district had been cast upon ten per cent of the land, provided it was an amount sufficient to warrant the incorporation of the district, the result would be the same in principle as leaving out ten per cent of the land. .

Respondents cite several cases in support of their position. All these are cases where the facts found by the court to give it jurisdiction are either specifically found in every respect or else there is a finding in general terms from which the specific facts necessary to coin fer jurisdiction are presumed to have been found, and in all the cases cited there^were collateral attacks upon the judgments. A quo warranto proceeding is a direct attack upon, and in fact the appropriate direct proceeding by which to attack the validity of the county court’s order incorporating the district. [State ex rel. v. Wilson, 216 Mo. l. c. 275; State ex inf. v. Fleming, 158 Mo. l. c. 561; State ex rel. v. Mining Co., 262 Mo. l. c. 503.]

In this case the record shows exactly what the county court found in order to confer jurisdiction; that is, that the petition was in due form and the notice regularly served. There was no finding of any facts which would confer jurisdiction to make the change in the boundaries of the district; that is, no finding that there was an amended petition or a hearing on remonstrances. The county court justified its change of the boundaries, not upon the finding of jurisdictional facts, but upon “evidence adduced to show that the public good required it.” Although it had jurisdiction of the cause in the first instance, in exceeding the statutory authority, in going beyond the authority given it by the petition and notice, it exceeded its jurisdiction and rendered the entire proceeding Void. [State ex inf. Rosenberger v. Bellflower, 129 Mo. App. 138; Seafield v. Bohne, 169 Mo. 537, l. c. 547; State ex rel. v. Campbell, 120 Mo. l. c. 402; State ex rel. White v. Small, 131 Mo. App. l. c. 476; State ex rel. Campbell v. Heege, 37 Mo. App. l. c. 348.]

III. Respondents argue at great length that the authority of the county court to make any change “the public good may require,” mentioned in connection with remonstrances, implies the right to depart ^rom the description in the petition with-out amendment. In support of this position they contend that the authority to establish a district is a legislative function, delegated to the couuty court, and therefore a change of boundaries from those set out in the petition could be made without an opportunity for the persons affected to be heard. Doubtless the legislative authority could establish* and incorporate a district for purposes of special improvement and taxation, and determine, without notice or hearing, what land would be benefited and appropriately included in it. That would be a “legislative determination” of that result.

The rule that a purely legislative function, under the constitutional division of powers, cannot be delegated by the lawmaking branch of government, is still adhered to pretty consistently in this State. [See Merchants Exchange v. Knott, 212 Mo. 616, l. c. 641-2, and cases cited there.] It is outside the scope of our inquiry to attempt a survey of the undefined territory occupied by the supposed exceptions to this rule. But a few general observations are pertinent because of the argument advanced. Cases involving the powers of cities are not in point here. Certain limited legislative powers possessed by municipal corporations of a certain class may be referred to the Constitution, art. 9, sec. 17, whether the authority given there be regarded as a direct constitutional grant to cities, or special authority granted the Legislature in providing for the government of cities. It would hardly be appropriate to say that the Legislature, in enacting forms of government for cities, as authorized by the Constitution, delegates its own peculiar functions to such cities. [Pash v. St. Joseph, 257 Mo. 332, l. c. 341; Kansas City v. Mastin, 169 Mo. 80, l. c. 91; Kansas City v. Ward, 134 Mo. 172, l. c. 186.]

The Legislature may confer upon certain officers, boards, commissions and courts, power to carry out in detail the legislative will, to promulgate rules and regulations, to ascertain facts upon which the operation of a statute would depend, or carry through certain prescribed procedure by which to put in force certain statutes in limited districts. [6 R. C. L. 177; 12 C. J. 809.] Such powers sometimes are spoken of by the courts as powers delegated by the legislative authority, when the word is used to designate the purpose to be accomplished rather than the function exercised in accomplishing it. [Merchants Exchange v. Knott, 212 Mo. 616, l. c. 633, 636; State v. Thompson, 160 Mo. 333, l. c. 343-4.] Usually they are designated as administrative or judicial functions “conferred upon” such bodies or powers with which they are “intrusted.” [McGhee v. Walsh, 249 Mo. l. c. 283; State v. Vickens, 186 Mo. 103, l. c. 106; State ex rel. Maggard v. Pond, 93 Mo. 606, l. c. 621; State ex rel. v. Fort, 210 Mo. l. c. 557; State ex rel. v. Glaves, 268 Mo. l. c. 104-5; Meier v. St. Louis, 180 Mo. l. c. 409.]

The law relating to the incorporation of drainage districts in some of its general features is like the statute under consideration here, and drainage district cases are cited by respondents in support of their position. But in those very cases it is held the organization of such districts involves the “right of the Legislature to clothe the constituted courts/ with jurisdiction to inquire of and determine such judicial questions as may arise in the course of the proceeding.” [Elsberry Drainage District v. Harris, 267 Mo. l. c. 150.]

This court said in In re Birmingham Drainage Distrist v. Railroad, 266 Mo. 60: “To accomplish the single purpose of putting in action a drainage district required not only the enactment of a statute fixing the extent, purpose and general powers of the district, which is a purely legislative function, but the appropriation of private property for such purpose and determining the damage therefor by jury trial, which are distinctly judicial functions. Between these lies ‘no man’s land,’ a region of action unclassified by the terms of the Constitution. ’ ’

This “legislative function” is exercised by the Legislature when it enacts the law.

The “appropriate agencies” spoken of further on in this opinion, by which such public corporations are “put into effect,” are invested with administrative and judicial functions.

The sections of the statute under consideration were held constitutional by this court, because the assessments contemplated were “not public taxes within the meaning of the Constitution authorizing the levy and collection of taxes for public or governmental purposes, but are special taxes assessed against the property for the payment for the improvements -. . . which in legal contemplation adds to the value of the property as much or more than the amount of taxes imposed.” [Embree v. Road District, 257 Mo. l. c. 610.]

While authority merely to lay off special taxing-districts may be granted by the Legislature to certain boards, or councils, or other administrative bodies, yet before the land included can be burdened with a special assessment for benefits,, a notice and opportunity to be heard must be accorded the landowners, in order that the Constitution’s “due process of law” may be satisfied. [McGhee v. Walsh, 249 Mo. l. c. 289-94; French v. Barber Asphalt Paving Co., 181 U. S. 324, l. c. 341; Norwood v. Baker, 172 U. S. 269.] “Unless the Legislature decide the question of benefits itself, the landowner has the right to be heard upon that question before his property can be taken” (included in the district). [Fallbrook Irrigation District v. Bradley, 164 U. S. 112, l. c. 175.]

From the earliest time it has been held that the act of the county court incorporating a municipal corporation is a judicial act. [Kayser v. Trustees of Bremen, 16 Mo. 88; State ex rel. v. Mining Co 2662 Mo. l. c. 502; State ex inf. v. Fleming, 158 Mo. l. c. 563.] In organizing road districts the county court doubtless exercises certain ministerial functions, but necessarily “judicial questions arise in the course of the proceeding” when the county court passes upon the facts which would give it jurisdiction, when it determines whether or not the petition is properly signed and the notice is duly served. It is a judicial function which the county court must exercise when it determines whether or not the lands included in a district will be benefited by the contemplated improvements. [Fallbrook Irrigation District v. Bradley, 164 U. S. l. c. 169.]

Respondents contend further that the county court may incorporate the district without making any such inquiry as to benefits. They quote the language of Section 10611 that the court may organize a district “of any dimensions that may be deemed advisible,” and the language of Section 10612, relating to making such changes as the public good may require, and argue that the statutes under consideration provide for a determination of that matter later, when the question of specific improvement comes up, and therefore it need not be considered at the formation of the district.

The Embree case (240 U. S. 242) got into the United States Supreme Court on a writ of error because on that very point the constitutionality of the law, under the Fourteenth Amendment to the Federal Constitution, was involved. It was there held that the act was constitutional, because it afforded the landholders an “opportunity to be heard iipon the question whether their lands would be thus benefited.”' This hearing was to be had when the formation of the district was under consideration, for the court (p. 246) calls attention to the notice which the clerk is required to give in order that the landowners might “appear, either collectively or separately, and oppose its formation.” Then the court quotes a part of the order in that case showing a hearing and the formation of the district “with boundaries as stated in said petition” and says, page 247:

“As the district was not established by the 'Legislature but by an exercise of delegated authority, there was no legislative decision that its location, boundaries and needs were such thdt the lands therein would be benefited by its creation and ivhat it was intended to accomplish, and, this being so, it was essential to due process of law that the landowners be accorded an opportunity to be heard upon the question whether their land would be thus benefited.”

The opinion points out (p. 249) that this court (Embree v. Road District, 257 Mo. 593) did not definitely decide just' when the inquiry should be had. The U. S. Court then was considering only the formation of the district and the prerequisite notice; that was the matter before it. That no doubt might arise as to when the consideration of benefits must be had, the court said (p. 248):

“That a-hearing of some kind was contemplated is obvious, and is conceded. But it is insisted that it was not to be directed to the question whether the lands included would be benefited by the creation of the district and what ft was intended to accomplish. If that were so, there would be little purpose in the hearing and no real necessity for it.”

And on page 249:

“We conclude therefore that the statute did provide for according the landowners an opportunity to he heard, when the district was created, upon the question whether their lands would he benefited, and also that the order establishing the district shows that the statute was complied with in that regard.”

Language could not plainer state that in organizing the district the court must determine, after notice and opportunity to landowners to be heard, whether or not lands located within its proposed boundaries would he benefited. [See also French v. Barber Asphalt Paving Co., 181 U. S. l. c. 341.] Of course, it is not meant by this that the county court would definitely assess the benefits which would accrue to the several tracts of land for a road which would he built, — that was left for consideration in subsequent proceedings. But it must he decided by the county court that all the land in the district would be benefited by the formation of a district in an amount approximating the probable burdens. Of. course,the mere laying out of the district, without more, would not benefit anybody’s lands. It is not likely that the county court would ever find the “public good” required such purposeless action. In the very nature of a case when a district is formed it is formed for the purpose of constructing some contemplated road or roads and in such case the county court probably has information as to the location and extent of the road or roads in contemplation when the petition is presented, otherwise how could it determine that the public good required the formation of the district?

The road district law shows the legislative intention to have this inquiry before the district shall be organized. It provides for notice and hearing at that time. There would be “no necessity” for such notice, as suggested in the Embree opinion, and the hearing would he an inconsequential formality, if the determination of that matter were not had at that time.

We conclude that the county court in such proceeding acts judicially in determining whether the land in question in a proposed district is to be benefited, which involves an inquiry as to the propriety of any change of boundaries from those described in the original petition; that this determination must be had before the district is incorporated, and ■ the record must affirmatively show jurisdiction according to the statute to do whatever is done. In this case, in the formation of a district different from the one of which the landowners had notice, the record shows that the statute was not complied with and shows no opportunity for an actual hearing was accorded to the landowners upon such proposed change. There can be no presumption of such hearing, as there might be if the description in the order coincided with that in the petition.

IV. This interpretation of Section 10612 does not render it- inconsistent with the terms of Section 10611, as respondents vigorously assert. The general power granted the county court in Section 10611 to organize districts “of any dimensions that may be deemed necessary or advisable” within certain limits, must be interpreted in connection with the following Section 10612, which prescribes the method whereby those general powers may be carried into effect, and the procedure by which the court may acquire and exercise jurisdiction to make orders affecting specific property.

V. It is claimed also that the county court, having jurisdiction, merely acted irregularly in excluding part the land described in the petition; that the error was merely one of' granting relief no£ warranted by law, and would not involve the jurisdiction. The case is not like one where a court renders judgment for more than the pleadings would warrant; for instance, not like the judgment of the circuit court enforcing a specific lien against property not included in the petition as well as that mentioned in the petition. The judgment would be a nullity as to property not described in the petition, ■ but would be effective as to that described. In that case nobody is hurt. But here the judgment and order cannot be separated in that manner, because all the property in the district is affected by the variance in the order from the petition. The order could not be valid in part if void in part.

In this connection it is argued that the order would not be a nullity, but the district formed would be the one described in the petition; that the law would presume that the order conformed to the petition, and the proper proceeding was to compel the court by a mandamus to enter the judgment in conformity to that presumption. That position ignores the actual finding of the court that a change was necessary and was made, and ignores the judicial character of the act performed. It assumes that the function of the county court in the matter is merely ministerial. The circuit court could not by mandamus compel the county court to exercise its discretion in any particular way. It was confined to the record made, and the record shows on its face that the county court did not make the order which respondents claim must be presumed to have been made. It would be just as appropriate to indulge the presumption contended for if the record were entirely silent or if it showed the petition dismissed.

The judgment is reversed and the cause remanded with directions to the circuit court to enter judgment declaring the action of the county court incorporating the Silex & Louisville Road District of Lincoln County entirely void and ousting the respondents as commissioners of such road district.

Boy, C., concurs.

PER CURIAM. — The foregoing modified opinion by White, C., is adopted as the opinion of the court.

All the judges concur.


author: WILLIAMS, J.

text:
    THE STATE ex rel. MARY F. SHAWHAN, Executrix of Last Will of George H. Shawhan, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    February 2, 1918.
    1. CONFLICT OF OPINIONS: Corporation’s Negotiable Note: Consideration: Ultra Vires: Buying Its Own Stock: Instruction. A stockholder had agreed with a third party to sell him one hundred shares of the stock of a corporation, and said party by written agreement agreed to pay ten thousand dollars therefor by a certain day. On said day the corporation issued its note for $5000 to said stockholder and attached fifty shares of its stock, received from him, to the note as collateral security, and' he wrote an acknowledgment of “full settlement and satisfaction” on his contract with the third party and surrendered it to him. To an action on the note the corporation’s answer, which was not under oath, pleaded no consideration and ultra vires. The trial court instructed the jury to return a verdict for plaintiff if they found that the corporation executed the note upon the consideration that the stockholder released the third party from his written obligation to purchase and pay for the stock. The Court of Appeals held that the plea of no consideration was well pleaded, and that the instruction was error, since the transaction amounted to nothing less than an attempt by the corporation to purchase its own stock. Held, that said act was clearly ultra vires the corporation; and,
    a. The Supreme Court has never ruled that “an inconvenience, loss or injury, or the risk of it to the party promised,” is a sufficient consideration for an ultra vires contract; and, hence, the opinion of the Court of Appeals cannot be quashed for failing to so rule.
    b. Where the instruction authorized plaintiff to recover on a finding of facts which upon their face show the transaction to have been ultra vires the defendant corporation, cases having to do with the rule that new matter, in order to be available as, a’ defense, must be specifically pleaded, have no bearing on the assignment that the opinion of the Court of Appeals holding the instruction bad conflicts with the previous decisions of the Supreme Court, but rather seem to be in harmony with the spirit of previous rulings of said court, which in effect are that one’s recovery cannot be based on grounds which upon their face appear to be illegal.

      c. If the holding of the Court of Appeals that the consideration mentioned in the instruction was not sufficient for the execution of the ultra vires note of the corporation, he permitted to stand because not in conflict with the previous rulings of' the Supreme Court, then it must follow that the question as to whether or not the contract had been fully performed by said stockholder necessarily drops out of the case.
    2. -: Raised By Respondent. While it is unusual for both parties in certiorari to claim that the opinion of the' Court of Appeals should be quashed on the ground of conflict, yet when the Supreme Court once obtains jurisdiction of the case for the purpose of determining matters of conflict there is no reason why all matters of conflict, whether they be suggested by relator or respondent or even by the court’s own discovery, should not be determined.
    3. -: Negotiable Note: Presumption of Consideration: Destruction of Books. The ruling of the Court of Appeals that “the failure of the defendant corporation to produce documentary evidence, which should have been extant and in its possession, to show with precision the nature of the consideration of the note sued on, leaves the evidence on that issue in a state affording support to contradictory inferences, and, therefore, as presenting issues of fact for the jury to determine,” where the corporation destroyed documentary evidence in its hands at the commencement of the litigation, by selling its ledger to a junk dealer and removing certain pages from the “bills payable” book, does not conflict with any previous decision of the Supreme Court, and said court will not rule that the Court of Appeals erred in refusing to rule that, under the circumstances, the presumption that the note was given for a valid consideration, was, as a matter of law, destroyed.
    4. -: Exclusion of Evidence: Ascertainment of Facts. In determining conflicts between the opinion of the Court of Appeals and the previous decisions of the Supreme Court, in a certiorari proceeding, the Supreme Court will not go beyond, said opinion to ascertain, the facts. If nothing is said in' said opinion concerning a certain witness or his competency, the Supreme Court will not rule that said opinion conflicts with its decisions in not ruling that the exclusion of the testimony of said witness was error.
    Certiorari.
    Writ quashed.

      George W. Day and Ulysses S. Weary for relatrix.
    (1) Notwithstanding instruction numbered 5 required the jury to find that Shawhan surrendered Garcel on ’s obligation to him in'the sum of $10,000, in consideration of the note sued on, the judgment of the Court of Appeals reversed the judgment of the trial court because, on such facts, "defendant received no valid consideration for the note.” In thus holding that it is necessary that the maker of a note receive some consideration therefor, the Court of Appeals failed to follow the last previous controlling decision, as well as all former decisions, of this court, on what constitutes a valid consideration for a promissory note, Strode v. Transit Co., 197 Mo. 621; Green v. Higham, 16.1 Mo. 337; St. Louis v. Gas Co., 70 Mo. 116; Carr v. Card, '34 Mo. 517; Marks v. Bank, 8 Mo. 319. (2) The defendant corporation, not having by its answer set up the defense that the note was given in consideration of the discharge of the debt owed Shawhan by Gareelon —an ultra vires act — it waived that defense, and the judgment of t-he Court of Appeals, in effect, holding that it did not waive it, violates the last decision, and all previous controlling decisions, -of this court, that when the illegality does not appear from the contract itself, or from the evidence necessary to prove it, but depends upon extraneous facts, the defense is new matter and must be pleaded in order to be available. Bell v. Warehouse Co., 205 Mo. 492; Kellerher v. Henderson, 203 Mo. 511; McDearmott v. Sedgwick, 140 Mo. 183; Agricultural & Mechanical Assn. v. Delano, 108 Mo. 220; Savings Institution v. Jacoby, 97 Mo. 627; Moore v. Eingo, 82 Mo. 473; Musser v. Adler, 56 Mo. 449; Sybert v. Jones, 19 Mo. 88. (3) The judgment of the Court of Appeals condemning instruction numbered 5 and reversing the case, on account of the giving thereof by the trial court, violates, and conflicts with, the last previous controlling decision of this court, as well as. other prior controlling decisions hereof, that a corporation cannot avail itself of the defense' of ultra vires, when the contract in question has been in good faith fully performed by the other party, and when it will not advance justice, but, on the contrary, will accomplish a legal wrong. St. Louis v. Railway, 248 Mo. 27; Cass County v. Insurance Co., 188 Mo. 16; Bank v. Trust Co., 187 Mo. 526.

      Warner, Dean, McLeod & Langworthy for respondents.
    (1) The instruction held by the Court of Appeals to be erroneous is to the effect that the plaintiff could recover if the jury found that the note of the defendant corporation was given by said corporation to Sliawhan, in satisfaction of a' personal obligation of one Garcelon under a written contract entered into between him and Shawhan. This instruction is exactly contrary to the decisions of this court, and the Court of Appeals therefore properly held that it was erroneous. Hunter v. Garanflo, 246 Mo. 131; State ex rel. v. Hardware Co., 147 Mo. 373; Charcoal Co. v. Lewis, 154 Mo. App. 548; O’Brien v. Transfer Co., 81 Mo. App. 664; Johnston v. Realty Co., 62 Mo App. 160; Carriage Mfg. Co. v. Hilbert, 24 Mo. App. 338. (a) The plaintiff’s contention that the opinion of the Court of Appeals ignores the decisions of this court holding in effect that any injury or inconvenience to the promisee is sufficient consideration for a promissory note, is incorrect. That proposition was not discussed or passed upon by the Courj; of Appeals, and was not involved. The question was whether the instruction permitted recovery on an illegal ground, and under the decisions of this court, it did do so, and was therefore erroneous, (b) Plaintiff’s further criticism of the opinion of the Court of Appeals, that it ignored and is contrary to the decisions of this court holding in effect that where any new matter which is extrinsic to a contract, is relied upon as a defense in a suit upon the contract, such extrinsic matter must be pleaded, will not be supported by an examination of tbe opinion of the Court of Appeals. The instruction found by the Court of appeals to be erroneous does not permit the defendant to avail • itself of a defense not pleaded. On the contrary, it permits the plaintiff to recover for a transaction which this court has repeatedly held to be illegal, and contrary to sound public policy, and it was clearly an improper instruction. (2) That part of the opinion of the Court of Appeals holding that the trial court properly refused to give a directed verdict for the defendant is contrary to the decisions of this court, (a) The Court of Appeals improperly held that where the plaintiff’s case is based entirely upon a presumption, and the defendant’s evidence, which is undisputed, completely rebuts that, presumption, the plaintiff has nevertheless made out a prima-facie ease. Mockowik v. Railroad, 196 Mo. 571; Bragg v. Met. St. Ry., 192 Mo. 354. (b) A directed verdict should have been given for the further reason that the documentary evidence showed conclusively that the note sued on was given either in an attempt by the defendant company to pun-chase its own stock or to satisfy the personal obligation of one Garcelon, both of which are illegal under the decisions of this court. If the note was given in an attempt by the defendant company to purchase its own stock, it was illegal. Hunter v. Garando, 246 Mo. 131; Banking Co. v. Mfg. Co., 168 Mo. 645; Gill v. Balis, 72 Mo. 424. If the note was given in satisfaction of the personal obligation of Garcelon, then under the decisions of this court, it was without valid consideration. Hunter v. Garando, 246 Mo. 131; State ex rel. v. Hardware Co., 146 Mo. 373. (3) The opinion of the Court of Appeals was further contrary to the decisions of this court, in holding that there was no error in excluding the evidence of the witness, Morrin. The defendant offered J. S. Morrin, president of the plaintiff company, as a witness, and the trial court, upon the objection of plaintiff held that he was an incompetent witness, and declined to permit him to testify. The Court of Appeals in holding that “there is no other error in the record but that noted,” held that the trial court properly excluded the evidence of Morrin and thereby failed to follow the decisions of this court with reference to the waiving of the incompetency of a witness. Epstein v. Railway, 250 Mo. 19; State v. Long, 257 Mo. 214. And also failed to follow the recent decision of this court holding that where an agent is engaged in certain transactions for his principal with another person, and that other person subsequently dies, and the transactions are involved in litigation, the agent is not thereby rendered incompetent as a witness. Wagner v. Binder, 187 S. W. 1128.
   WILLIAMS, J.

By this, an original proceeding in certiorari, relatrix, on the ground that it conflicts with our last previous ruling on the subject, seeks to quash an opinion delivered by the Kansas City Court of Appeals in the case of Mary F. Shawhan, Executrix, etc., v. Shawhan Distillery Co., 195 Mo. App. 445.

Facts, here material, and stated in the opinion of the Kansas City Court of Appeals, may be summarized as follows:

Mary F. Shawhan, executrix of the will of her deceased husband, George W. Shawhan, brought suit against the Shawhan Distillery Company, a Missouri corporation, upon a promissory note in the sum of $5000, dated January 31, 1912, due two years after date and payable to the order of said Geo. H. Shawhan. The note contained a collateral agreement pledging fifty shares of the capital stock of said corporation as security.

The answer pleads no consideration, and further that the only consideration for the note was the sale by Shawhan to the defendant corporation of the fifty shares of stock which were pledged as collateral security with the note. The answer was not verified. The reply was a general denial.

Evidence was introduced from which it might be inferred that the note in question was given by the corporation to Shawhan in the purchase by said corporation of a portion of its capital stock from said Shawhan. There was also evidence from which it might be inferred that fbe note in question was executed by the corporation to pay an obligation which one Garcelon had made with said Shawhan, whereby said Garcelon became obligated to purchase from said Shawhan said stock.

On the day before the note was executed said Shawhan indorsed on the written obligation of said Garcelon whereby Garcelon was obligated to purchase such stock, the following indorsement:

“I hereby acknowledge full settlement and satisfaction of the above contract.”

The secretary of the defendant corporation testified that all of the corporation’s “journals and ledgers” had, while this suit was pending below, been sold by defendant to a junk dealer, and it further appeared that the pages in the “bills payable” book or “tickler” of the defendant, which contained entries relating to four or five notes given by defendant to Shawhan on January 31, 1912, had been cut out and destroyed.

The Court of Appeals in effect held that on account of the spoliation by defendant of record evidence in its possession which would have shown the true character of the transaction, the remaining evidence was such that different inferences might arise therefrom and that therefore the evidence produced presented issues of fact for the jury’s determination; that the trial court, for that reason, did not err in refusing to direct a verdict for defendant.

The court in substance instructed the jury that “if the note was given by the defendant corporation, in purchase of its own stock from Geo. H. Shawhaii,” they should find issues for the defendant.

Instruction number 5 given at the request of plaintiff, is as follows:

“If you shall find and believe from the evidence that at any time prior to the 30th day of January, 1912, George H. Shawhan and F. B. Garcelon, on their own behalf and in good faith, entered into a written contract by the terms of which said Garcelon agreed to purchase for himself from said Shawhan 100 shares of the capital stock of the defendant corporation amounting to the par value of ten thousand dollars, and that said Garcelon had agreed to pay therefor the sum of ten thousand dollars on or before the 30th day of January, 1912; that on said 30th day' of January, 1912, the said George H. Shawhan accepted the note in question in part or in full satisfaction of the agreement so entered into between said Shawhan and said Garcelon, and that in consideration thereof said contract was in fact canceled and satisfied, then your verdict should be for plaintiff. ’ ’

The. jury found the issues for the plaintiff and judgment was entered by the trial court upon that verdict. Thereupon defendant duly appealed to the Kansas City Court of Appeals, which court reversed the judgment and remanded the cause on the ground that said instruction numbered 5 was erroneous.

In discussing said instruction the opinion states:

“This was erroneous and highly prejudicial. We need not pause to consider whether the defense of ultra vires attempted to be pleaded in the answer is well pleaded in law, the answer not being under oath; the defense of no consideration was well pleaded and the facts hypostatized in the instruction bore directly on that issue. On the premise, that defendant gave and Shawhan accepted the note in suit in satisfaction of Garcelon’s obligation to buy shares of defendant’s capital stock, the conclusion must necessarily follow that defendant received no valid consideration for the note and was entitled to a verdict under the plea of no consideration, since a transaction of that character could amount to nothing less than an attempted purchase by defendant of its own stock. For this error the judgment is reversed and the cause remanded.”

I. Relatrix contends that the opinion of the Court of Appeals should be quashed, because the above quoted portion conflicts with the following previous rulings of this court, to-wit:

(a) Green v. Higham, 161 Mo. 333, l. c. 337; Strode v. St. Louis Transit Co., 197 Mo. 616, l. c. 623; City of St. Louis v. St. Louis Gaslight Co., 70 Mo. 69, l. c. 116; Carr v. Card, 34 Mo. 513, l. c. 517; Marks v. Bank of Missouri, 8 Mo. 316, l. c. 319; which cases, in effect, hold that “an inconvenience, loss or injury, or the risk of it to the party promised” is a sufficient consideration for a contract;

(b) McDearmott v. Sedgwick, 140 Mo. 172, l. c. 183; Kelerher and Little v. Henderson, 203 Mo. 498, l. c. 511; Bell v. Warehouse Co., 205 Mo. 475, l. c. 492; St. Louis Agricultural & Mech. Assn. v. Delano, 108 Mo. 217, l. c. 220; German Savings Institution v. Jacoby, 97 Mo. 617, l. c. 627; Musser v. Adler, 86 Mo. 445, l. c. 449; Moore v. Ringo, 82 Mo. 468, l. c. 473; Sybert v. Jones, 19 Mo. 86, l. c. 88; which, in effect, hold that “when the illegality does not appear from the contract itself, or from the evidence necessary to prove it but depends upon extraneous facts, the defense is new matter and must be pleaded in order to be available;” and

(c) First National Bank v. Guardian Trust Co., 187 Mo. 494, l. c. 526; Cass County v. Mercantile Town Mutual Ins. Co., 188 Mo. 1, l. c. 16; City of St. Louis v. Railway Co., 248 Mo. 10, l. c. 27; which, in effect, hold that “a corporation cannot avail itself of the defense of ultra vires when the contract in question has been in good faith fully performed by the other party and when it will not advance justice but on the contrary will accomplish a legal wrong.'”.

These points will be discussed in their order.

Point (a). In the case at bar plaintiff’s instruction five permits a recovery if the jury finds that the corporation executed the note in suit upon the consideration that Shawhan release Garcelon from his written obligation to purchase and pay for this stock. In other words, this instruction told the jury in effect that if it found. Ft]iq §f®k9§4ti«£>$. its note in payment of or the releas%rqf 7flja #gbt of another (an act clearly ultra vires the corporation, Hunter v. Garanflo, 246 Mo. 131, l. c. 134-5) it should find for plaintiff.

Relatrix’s position is that, since Shawhan in consideration of the execution of the note by the corporation agreed to and did release Garcelon from his obligation, such loss or surrender of rights upon the part of Shawhan was a sufficient consideration for the making of the note under the rulings mentioned above, and' that therefore the opinion of the Court of Appeals holding that it was not a sufficient consideration conflicts with said rulings.

Upon a careful reading of the cases cited it does not appear that any of them deal with a situation such as we have here. In none of those cases was it either expressly or impliedly held that “a loss to the party promised” (which loss did not result to the promisor’s benefit) was a sufficient consideration for an ultra vires contract. Nor have we been able to find where we have ever made a ruling on this exact point. ,

In the 29 Am. & Eng. Ency. Law (2 Ed.), page 59, it is said: “Some courts maintain that the ground of a corporation’s liability on ultra vires transactions is the acceptance and retention by it of benefits, and per-. mit the plea of want of power where nothing has passed to the corporation, although the other party has acted to his prejudice in reliance upon the contract. In other words, according to this doctrine the fact of disadvantage to the other party is not a sufficient consideration.” (Italics ours.) We do not quote the above for the purpose of here undertaking to decide as to what is the correct rule in that regard, but merely to show that the case at bar presents a legal question different from the one held in judgment in the cases cited under “Point (a) ” above. So far as our research has been able to discover, said legal question has not been decided to the contrary by this court. We therefore conclude that the alleged conflict does not exist.

Point (5). The cases cited by relatrix under this point have to do with the rule that new matter, to be available as a defense must be specifically pleaded. That rule has no bearing on the situation here. In the case at bar the instruction under review does not permit the defendant to recover on a defense not pleaded, but the instruction authorizes the plaintiff to recover on a finding of facts which upon their face show the transaction to have been ultra vires the corporation. The judgment of the Court of Appeals holding this instruction bad cannot- therefore be said to conflict with the rule announced in the cases under “Point (b)” above, but would seem to be rather in harmony with the spirit pf our previous rulings which in effect hold that a person’s recovery cannot be based upon grounds which upon their face appear to be illegal: [McDearmott v. Sedgwick, 140 Mo. 172, l. c. 182-3]

Point (c). What we have said under “Point (a)” disposes of this point. If the holding of the Court of Appeals (e: g\, that the consideration mentioned in the instruction was not a sufficient consideration for the execution of the note) be permitted to stand because not in conflict with our previous rulings, then it clearly follows that the question as to whether or not the contract had been fully performed by Shawhan necessarily drops out of the case. And that is perhaps the reason why the Court of Appeals did not discuss the principle mentioned under this point.

II. The respondent Shawhan Distillery Company in its brief, however, contends that portions of the opinion of the Court of Appeals, other than the portion above discussed, conflict with certain of our previous rulings and that the opinion should be quashed for that reason.

While it is unusual for both parties in certiorari to claim that the opinion of the Court of Appeals should be quashed on the ground of conflict, yet when this court once gets jurisdiction of the case for the purpose of determining matters of conflict we know of no reason why all matters of conflict, whether they be suggested by relator, respondent or even by the court’s own discovery, should not be determined. In fact we are of the opinion that all questions of conflict which may come to the court’s attention by either source should be determined. We will therefore proceed to review the alleged grounds of conflict urged upon us by the respondent.

Respondent contends that the opinion of the Court of Appeals conflicts with our previous rulings in the following particulars, to-wit:

(1) That the holding, that the trial court did not err in refusing to direct a verdict for defendant, conflicts with the rule announced in Bragg v. Metropolitan Street Railway Co., 192 Mo. 331, l. c. 354, holding “that a mere presumption may not be indulged to establish a fact when there is actual knowledge of the non-existence of the fact.”

(2) That the opinion of the Court of Appeals in holding that there was no error in excluding the evidence of the witness Morrin conflicts with our ruling in the case of Epstein v. Railway Co., 250 Mo. 1, l. c. 19; State v. Long, 257 Mo. 199, l. c. 214; Wagner v. Binder, 187 S. W. 1128. These in their order.

Point (1). Respondent’s contention under this point is that the evidence offered by defendant, as a matter of law, destroyed the presumption that the note was given for a valid consideration, and that therefore the presumption in plaintiff’s favor falling,, her ease likewise falls and a demurrer to the evidence should have been sustained. Whether the rule announced in the case of Bragg v. Railway Co., supra, should be given the effect claimed by counsel or whether such a rule in effect has been announced by this court in other cases, we need not here stop to consider; this, because the evidence offered by defendant was not of such character as to permit the court to say as a matter of law that the presumption above mentioned was thereby dispelled. The opinion of the Court of Appeals states that documentary evidence in the hands of the defendant corporation at the commencement of this litigation which would have left no doubt as to the real facts of the situation was destroyed by either being sold by the defendant to a junk dealer or by the destruction of certain pages in the “bills payable” book of the corporation while in its possession and .under its control.

Upon this point the Court of Appeals reaches the conclusion that “the failure of defendant to produce documentary evidence, which should have been extant and in its possession, to show with precision the nature of the consideration of the note in suit, leaves the evidence on that issue in a state affording support to contradictory inferences and therefore, as presenting issues of fact for the jury to determine. The court did not err in refusing to direct a verdict for defendant.”

Under the above circumstances we are unable to see wherein the opinion conflicts with any previous ruling of this court.

Point (2). Concerning this point it is sufficient to say that nothing is said in the opinion about witness Morrin or his competency as á witness. In determining conflict in these proceedings we will not go beyond the opinion to ascertain the facts. [State ex rel. Wahl v. Reynolds, 272 Mo. 588.]

From what has .been said above it follows that the writ of certiorari issued herein should be quashed. It is so ordered.

Graves, C. J., Walker and Faris, JJ., concur, Bond and Blair, JJ., concur in' the result, Woodson, J., not sitting.