text:
    THE STATE ex rel. METROPOLITAN LIFE INSURANCE COMPANY v. W. D. VANDIVER, Superintendent of Insurance of the State of Missouri.
    In Banc,
    July 9, 1909.
    Mandamus.
    Peremptory writ denied.
   WOODSON, J.

This is another one of the three cases briefed, argued and submitted together with the case of State ex rel. Equitable Life Assurance Society v. Vandiver, Superintendent of Insurance of the State of Missouri. The issues and legal propositions involved in this case are substantially the same as those involved in that, and. the conclusions reached in that case are controlling in this. We are, therefore, of the opinion that a peremptory writ of mandamus should be denied, and it is so ordered.

Vallimt, G. J., Burgess, and Gantt, JJ., concur; Graves, J., dissents in separate opinion in which Fox and Lamm, JJ., concur.

DISSENTING- OPINION.

GRAVES, J.

This case was argued and submitted with the case of State ex rel. Equitable Life Assurance Society of the United States v. Vandiver, Superintendent. Practically the same state of admitted facts is involved. The same questions of law are presented. I dissent from the majority opinion herein, for the reasons fully assigned in my dissenting opinion in the Equitable case, supra.

In this Fox and Lamm, JJ., concur.


source: Caselaw Access Project

author: WOODSON, J. GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA v. W. D. VANDIVER, Superintendent of Insurance of the State of Missouri.
    In Banc,
    July 9, 1909.
    Mandamus.
    Peremptory writ denied.
   WOODSON, J.

This is one of the three cases briefed, argued and submitted together with the case of State ex rel. Equitable Life Assurance Society v. Vandiver, Superintendent of Insurance of the State of Missouri. The issues and legal propositions involved in this case are substantially the same as those involved in that, and the conclusions reached in that case are controlling in this. We are, therefore, of the opinion that a peremptory writ of mandamus should be denied, and it is so ordered.

Valliant, G. J., Burgess, and Gantt, JJ., concur; Graves, J., dissents in separate opinion in which Fox, and Lamm, JJ., concur.

DISSENTING OPINION.

GRAVES, J.

This is one of three cases briefed, argued and submitted together, although separate upon our docket. I have fully covered both the law and the facts in a dissenting opinion in the case of State ex rel. Equitable Life Assurance Society of the United States v. Vandiver, Superintendent. Both law and facts are practically the same in all three cases. What was said in my dissenting opinion in the Equitable case applies to the questions involved in this case. The peremptory writ of mandamus should be awarded.

Fox and Lamm, JJ., concur herein.


author: FOX, J.

text:
    THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, ex rel. JESSE W. SIKES, v. W. W. WILLIAMS.
    In Banc,
    July 9, 1909.
    1. APPOINTMENT: Confirmation at Special Session. The confirmation hy the Senate of an appointment made hy the Governor is not a legislative act, and can therefore be made at a special session of the General Assembly. When that body is lawfully convened for legislative purposes, it has a right to act for administrative purposes, even without mention of such purposes in the Governor’s call for a special session.
    2. -: Term: Beginning and Ending. Where the Legislature by a statute gives the Governor the power to fix the beginning of a term of office, and requires the appointment to be confirmed by the Senate, it necessarily gives him the power to fix the end of the term.
    3. -: -: -: Four Years. Where the act provided that “within thirty days after the passage of this act the Governor, with the advice and consent of the Senate, shall appoint a competent person to serve as factory inspector, who shall hold office for four years from the date of his appointment, or until his successor is appointed and qualified,” and the act went into effect May 17th, the Governor had the right to fix the beginning of the term at M!ay 18th, and that term expired on May 18th four years later, although the appointment was not confirmed by the Senate until the next regular session of the Legislature thereafter.
    4. -: -: -: -: Resignation: New Appointment for Four Years. Where the term was fixed at four years by the Act of 1901, and the Governor fixed the time of its beginning at May 18th, 1901, every term thereafter began on May 18th. And where the Governor in 1905 appointed Hiller for a term ending May 13, 1909, and Hiller thereafter on March 20, 1907, resigned, and relator was on May 6, 1907, appointed for a term ending May 13, 1909, and that appointment was confirmed by the Senate at special session in 1907, relator’s term expired in 1909, and was not by operation of the statute extended for four years from 1907. Nor could the Governor extend relator’s term to four years from August 11, 1907, by a new appointment for four years from that date, under an amendment to the statute in 1907 which created no new office, where the appointment was not confirmed by the Senate at its next session.

      5. -: -: -: -: Beyond End of Term. And the words “until his successor is appointed and qualified” did not extend the first appointee’s term or the term of any subsequent appointee beyond its end on May 18th. The law does not contemplate that there is a new beginning- and ending of the term by each appointment, but the term becomes fixed by the first appointment under the act.
    6. -: -: -: Qualifying: Confirmation by Senate. To qualify for an office, to be filled by the appointment of the Governor, "with the advice and consent of the Senate,” does not include, to begin the term, confirmation by the Senate. The term begins at the time first designated by the Governor as its beginning, and the appointee’s tenure lasts until the appointment is rejected by the Senate, or if confirmed, until the end of the four-year period from the term’s beginning, and then there is a vacancy. It is manifest from the face of the act, which states that “within thirty days after the passage of the act, the Governor shall appoint,” that it was the plain, legislative intention tliat the beginning of the term was not' to be postponed until the next regular session of the General Assembly.
    Quo Warranto.
    Writ op ouster denied and proceeding dismissed.

      Jamison & Thomas for informant.
    (1) The Senate of the Forty-fourth General Assembly, in extra session, was empowered to advise and consent to the appointment of relator. T. Action at an extra session may be' taken upon matters presented by the Governor in special message. Const., 1875, art. 4, secs. 9, 55; St. Louis v. Withaus, 16 Mo. App. 247. 2. The confirmation of official appointment by the Senate is not a legislative act and may be done at special session, although not mentioned in proclamation or message. 23 Am. and Eng. Ency. Law (2 Ed.), 346-7; 19 Cong. Rec. 53; People v. Blanding, 63 Cal. 333. (2) Relator took the prescribed oath and qualified. Const. 1875* art. 14, sec. 6; R. S. 1899,. sec. 8844; Hill v. Boyland, 40 Miss. 618. (3) Relator’s term continues until his successor is appointed and qualified. Factory Inspection Statute, Laws 1901, p. 197; Const. 1875, art. 14, see. 5; R. S. 1899, sec. 8847; State ex rel. v. Thompson, 38 Mo. 192; State ex rel. v. Perkins, 139 Mo. 114; State ex inf. v. Lund, 167 Mo. 228; Throop on Public Officers, sec. 323; 23 Am. and Eng. Ency. Law (2 Ed.), 313-14, 415; Badger v. United States, 93 U. S. 599; Meyer v. Culver, 35 Pac. 984; Haley v. Petty, 42 Ark. 392; People v. Edwards, 93 Cal. 153; Shaefer v. Bernero, 11 Mo. App. 562; Knight v. Mersman, 66 Mo. App. 219; State v. Kurtzeborn, 78 Mo. 98; State v. Spitz, 127 Mo. 248. (4) “Appointed” here means selected and designated according to the terms of the statute creating" the office, in the case at bar, — the appointment must be with the advice and consent of the Senate. 23 Am. and Eng. Ency. Law (2 Ed.), 346, 415; State v. Plarrison, 113 Ind. 434; Kimberlin. v. State, 130 Ind. 130; People v. Knight, 116 Cal. 108; Throop on Pub. Officers, sec. 328; People v. Cazenau, 20 Cal. 504; State v. Bryson, 44 Ohio St. 457; Mechem on Pub. Officers, secs. 113, 114; State v. Barbour, 53 Conn. 76; Marbury v. Wilson, 1 Cranch 137; People v. Fitzsimmons, 68 N. T. 514; Watkins v. Watkins, 2 Md. 355; People v. Bissell, 49 Cal. 408; People v. Molyneaux, 4 N. T. 113; Taylor v. Heb-den, 24 Md. 203. (5) Respondent, therefore, not having been appointed “with the advice and consent of the Senate,” cannot claim the office by virtue of the statute creating it. (6) The Governor has power to appoint to fill a vacancy only where an actual vacancy exists. Const. 1875, art. 5, sec. 11. (7) The expiration on May 13, 1909, of the definite term for which. Hiller and relator were appointed, did not create a “vacancy,” since relator was then lawfully holding and performing the duties of the office of Factory Inspector. State ex rel. v. Smith, 152 Mo. 512; State ex rel. v. Dabbs, 182 Mo. 359’; State ex rel. v. Blakemore, 104 Mo. 340; State ex inf. v. Burkhead, 187 Mo. 14: Tredway v. Lusk, 18 Mo. 33; Mechem on Pub. Off., secs. 128, 129, 130, 134 and 397; T-hroop on Pub. Off., sees. 312, 330’, 331, 431, 437, 307 and 308; People v. Crissey, 91 N. Y. 616; People v. Mclver, 68 N. C. 467; Bran-non v. Long, 78 Ya. 352,- State ex rel. v. Harrison, 113 Ind. 434; State v. Howe,. 25 Ohio St. 588; State ex rel. v. Rareshide, 32 La. Ann. 934; People ex rel. v. Lord, 9 Mich. 227.

      Blevins & Jamison for respondent; Charles Mayer of counsel.
    The date of the appointment, first made by the Governor for the office in question, initiated the official term of the appointee and all subsequent appointments necessarily had reference to such initial period. State ex rel. v. Stonestreet, 99 Mo. 373; Attorney-General ex rel. v. Love, 39 N. J. L. 476. (a) When no time is mentioned in the law from which a' term shall commence, it must run from the date of election. State ex rel. v. Constable, 7 Ohio 7; Marshall v. Harwood, 5 Md. 423; Hughes v. Buckingham, 5 S. &■ M. 632; People ex rel. v. McClare, 99 N. Y. 83; Parcel v. State ex rel. Lowery, 110 Ind. 122; State ex rel. v. Spitz, 127 Mo. 252; State ex inf. v. Herring, 208 Mo. 730'. (b) Under the authorities last cited, the official term of C. J. Nordmeyer, who was the first appointee as Factory Inspect- or for the term of four years, expired on May 18, 1905, and not on May 13, 1905. J. C. A. Hiller was then appointed and commissioned by Governor Polk for a term of four years, beginning May 13, 1905, and ending May 13, 1909, but under the authorities supra, his term expired on May 18, 1909. Mr. Hiller resigned the office on May 11, 1907, and the vacancy in the unexpired term of Hiller ended May 18, 1909, and not on May 13, 1909. The pretended appointment of relator by Governor Polk to fill out the unexpired term of Mr. Hiller was void and of no effect. Biddle v. Williard, 10 Ind. 63.
   FOX, J.

This is a contest between Jesse W. Sikes and W. W. Williams as to who is entitled to the office of factory inspector of the State of Missouri.

It is not essential to reproduce the petition filed by’ the Attorney-General, nor the return as made to the preliminary writ issued upon such petition. However, to fully appreciate the vital questions confronting us, it is essential that a brief statement of the facts be made.

The office of factory inspector was created by an act of the General Assembly approved April 17, 1901. [Laws 1901, p. 197.] There was an emergency clause to this act. Section 1 of this act, in so far as is material to this controversy, reads: “That within thirty days after the passage of this act . . . the Governor of the State, with the advice and consent of the Senate, shall appoint a competent person to serve as factory inspector who shall hold office for four years from the date of his appointment or until his successor is appointed and qualified.”

On May 18, 1901, C. J. Nordmeyer was appointed to the office by the then Governor for a term ending May 13, 1905. Nordmeyer held the office until May 19, 1905. Normeyer’s appointment Avas not confirmed by the Senate until the session in 1903. On May 19th, J. C. A. Hiller was appointed for a term ending May 13, 1909, which being after the adjournment of the General Assembly he could not have been confirmed until after January 2, 1907, at which term of the General Assembly his appointment was confirmed. After the adjournment of the General Assembly for 1907, on May 11, 1907, Hiller resigned, which resignation was accepted by the Governor. March 20th, 1907, the Governor issued a call for a special session of the 44th General Assembly of Missouri, to meet on April 9, 1907. Among the purposes assigned in the call was the following:

“Seventh: To consider any other subject that may be submitted by special message, during such session. ’ ’

On May 6, 1907, the Governor sent to the Senate the following communication:

“office of the govern or.
“State of Missouri, City of Jefferson.
May 6th, 1907.
“To the Senate:
“I have the honor to advise that I have this day, by and with the advice and consent of the Senate, appointed Jesse W. Sikes, of the city of St. Louis, to the office of Factory Inspector, vice J. O. A. Hiller, resigned, for a term ending May 13, 1909.
“Respectfully,
“Jos. W. Folk,
‘ ‘ Governor. ’ ’

This appointment was confirmed by the Senate at such extra session. The commission was of date May 11, 1907, and Sikes qualified May 17, 1907. On November 16, 1907, the Governor sent the following:

“Office of the Governor.
“State of Missotori, City of Jefferson.
Nov. 16th, 1907.
“To the Secretary of State,
“Sir: I have the honor to advise that, by virtue of authority in me vested by section 1 of an act of the Forty-fourth General Assembly of the State of Missouri, approved May 9, 1907,1 have, this day, with the advice and consent of the Senate, appointed Jesse W. Sikes of the city of St. Louis to the office of Factory Inspector, to hold for a term of four years from August 11, 1907. Issue accordingly.
“Respectfully,
“Jos. W. Folk,
“Governor.”

On November 18th, a commission was issued to cover this appointment, which commission authorized Mr. Sikes to hold the office for four years from August 11, 1907. Under this commission, Sikes again qualified. On January 6, 1909, this last appointment was sent to the Senate for confirmation and no action was taken thereon. On May 22, 1909, Governor Hadley, as the successor of Governor Polk, commissioned the respondent as factory inspector of the State of Missouri for a “term of four years from May 13th, 1909, effective June 1st, 1909, vice J. W. Sikes,” under which commission respondent in due time qualified, and is now claiming to be the duly appointed and qualified factory inspector of this State, and in pursuance of such claim is undertaking to discharge the duties of such office.

This sufficiently indicates the facts concerning the controversy between these two claimants to the office of factory inspector to enable us to present our views upon the legal propositions involved.

OPINION.

I

At the very threshold of the consideration of the legal propositions confronting us it is obvious that the relator, Mr. Sikes, does not base his claim to the office of factory inspector under and by virtue of the last commission issued to him for that office. While the Act of 1907 amended in some minor particulars the Act of 1901, it will not be seriously insisted that it so amended the original act as to create a new office and thus necessitate a new appointment. But even if this contention is made by the relator, the new appointment was never confirmed by the Senate; hence in this controversy manifestly the relator is compelled to rely upon and does rely upon the first appointment as a justification for his claim to the office. But aside from this, one of the contentions of learned counsel for relator is that by reason of the language employed in the Act of 1901, and he receiving his appointment and commission under that act, there was no vacancy to be filled at the time the respondent, Mr. Williams, received his commission. This obviously is a practical concession on the part of relator that he had no rights under and by virtue of the second appointment; hence it follows that whatever rights, if any, to which relator is entitled, must be sought under the first appointment. With this view we shall not undertake in the presentation of our views upon the legal propositions confronting us, to discuss the question of the second appointment and commission for the term of four years.

It is insisted by respondent that the first appointment of the relator, Mr. Sikes, was not confirmed by the Senate. This insistence is doubtless predicated upon the theory that the Senate had no authority to confirm at a special session. We are unwilling to give our assent to this insistence. The confirmation by the Senate of appointments made by the Governor are not legislative acts, and in our opinion can be made as well at a special session as a regular session. Such acts by the Governor concerning appointments are merely administrative and can be confirmed by the Senate whenever that body is in session, and it is immaterial for what purpose the legislative body may have been called in session. In other words, whenever the body is lawfully convened for legislative purposes it has the right to act for administrative purposes, even without mention of such purpose in the call for a. special session. We deem it unnecessary to further discuss this contention, for in our opinion the call by the Governor of the special session was broad enough to cover all emergencies, and fully authorized the Senate to confirm the merely administrative acts by the Governor.

n.

This brings ns to the consideration of the real question, that is, what was the status of relator respecting the office of factory inspector under and by virtue of his first appointment to and commission by the Governor for that office? In other words, what was the force and effect of the appointment and commission?

By the commission the term of relator expired May 13, 1909, or as soon thereafter as his successor was appointed and qualified. This leads us to the inquiry of what is meant by the terms “appointment” and “qualified.” The contentions of relator and respondent upon this proposition may thus be briefly stated: Belator insists that without the confirmation and acquiescence of the Senate there can be no legal appointment made by the Governor to the office of factory inspector. On the other hand the respondent contends that when the term of factory inspector is at an end there was a vacancy, and the Governor had the right to fill it by appointment until such time as the Senate saw fit to confirm or reject the appointment. In other words, to emphasize the insistence of the relator, his contention is that it tabes the joint act of the Governor and the Senate to make the appointment, and without such there is no legal right in any person who has been appointed to the office of factory inspector, after the expiration of a term, to hold the office. This is the overshadowing proposition confronting us, the correct solution of which must be sought by a fair, reasonable and impartial application of the law to the subject.'

It will be observed that the act creating the office of factory inspector designates the length of the term, but does not undertake to fix the date of the beginning or ending thereof. It is important in the treatment of this question that we do not overlook that this is an appointive office and not an elective one.

This leads us to the inquiry as to when did the term of office of factory inspector begin and when did it end. This question was directly in judgment before this court in State ex rel. v. Stonestreet, 99 Mo. 361. We there had under consideration a law which fixed the duration, of the term, but did not designate the beginning of such term nor the expiration thereof, that is to say, no exact date was fixed for the beginning or ending of the term. It necessarily follows- that the power which could fix the beginning of the term must of necessity have the power to designate the end of such term. In other words, if the law-making power designates the length of the term but leaves it to another power to fix the beginning of such term, it necessarily gives the same power which designated the beginning the right to fix the end of such term. Where the law creates an office and prescribes the length of the term, with no date fixed for the beginning or ending of such term, and designates the power which is vested to fill such office by appointment, it necessarily follows that the appointive power has the right to fix not only the commencement of the term, but as well the end thereof. The power to fix one means a power to fix the other, and it is immaterial at which end of the term this power operates. It can say in the first instance that this term shall begin on a certain date and run so long, or it can say this appointment is made under the law with the understanding that it shall end upon a certain date. In either case the power recognized as having the right to designate the beginning and ending of the term has acted.

In the case now in hand there seems to be some controversy between counsel as to the beginning or ending of the term of office now in dispute, one insisting that May 13th was the date fixed, the other May the 18th. Obviously this dispute is immaterial, and for the purposes of this case we shall treat May 13th as the date fixed for the beginning and ending of the term of this office.

When the General Assembly created the office of factory inspector, prescribing the length of the term, but failing to designate the commencement or ending of such term, and investing the Governor with the power of appointment to fill such office, that the Governor had the right to fix the commencement and ending of such term there certainly can be no dispute.

In State ex rel. v. Stonestreet, 99 Mo. 361, heretofore referred to, this proposition is fully discussed and the authorities exhaustively reviewed. It so fully presents the question, and being in harmony with the conclusions we have reached upon this proposition, we trust the length of the quotation will be pardoned. Judge Sherwood, in that case, treating of this proposition, thus announced the rules of law applicable to it:

“Going to the standards of our language we find that a term means ‘the time for which anything lasts; any limited time; the term of life.’ [Webster’s Diet.] And turning to the authorities, they announce that ‘the expression, term of office, uniformly designates a fixed and definite period of time.’ [Anderson’s Law Dict. 1023; People v. Brundage, 78 N. Y. 403, 407; Baker, Governor, v. Kirk, 33 Ind. 517.] So that whether we take the phrase, ‘term of office,’ in its ordinary or popular sense, or in its technical import, it means one and the same thing: ‘A fixed and definite period of time. ’
“Of course, every such period of time, in order to be ‘fixed and definite,’ must have a point of beginning and a point of termination equally fixed and definite. Now, if it can be ascertained when the ‘term of office’ of the first appointee of the Governor under the revision of 1879 began, it would seem not difficult to reach a correct conclusion as to when the terms of office of the successive and subsequent appointees of the Executive began and ended.
“The statute is silent on the point as to the beginning of the first appointee’s term, and the reason for this is most obvious, since, the power of appointment being lodged in the Executive, it belonged to him in fact, if not in law, to determine the ‘time of the inception of the actual official term of such appointee; the duration of that term was already fixed by law. But if the Legislature, being possessed of the power, had fixed the date of the commencement of the first appointee’s official term, it would not be questioned that such initial point, being once made sure and steadfast, would recur at every corresponding period of two years. This must be true, or else the premises from which this conclusion is drawn, sustained as it is by authority, that a ‘term of office uniformly designates a fixed and definite period of time, ’ must be false. As the Legislature did not fix the date when the official term of the first appointee under the new law was to begin, this date was necessarily left to be fixed by the.appointing power; but, when fixed, the determination thus reached must have been as effectual in all its incidents and consequences as if previously made by the Legislature. This also must be true, or else it must be true that the Executive was incapable of fixing such initial point, and that, therefore, it never was -fixed, which is an impossible as well as an absurd, supposition.
“This reasoning leads to this result: That the date of the appointment, first made by the Governor for the office in question, initiated the official term of the first appointee, and that all subsequent appointments necessarily had reference to such initial period, and, so far as lawful, conformed thereto. AttorneyGeneral ex rel. v. Love, 39 N. J. L. 476, is decisive of this point. And the general rule is elsewhere recognized that when no time is mentioned in the law, from which the term shall commence, it must begin to rnn from the date of the election. [State ex rel. v. Constable, 7 Ohio 7; Marshall v. Harwood, 5 Md. 423; Hughes v. Buckingham, 5 S. & M. 632.]
‘ ‘ These last, though election cases, furnish a strong analogous support to the view already expressed, showing, as they do, the urgent necessity felt of having some determinate period at which and from which official terms shall begin. The law favors uniformity, but uniformity cannot be obtained except by the establishment of an inflexible- rule. And the course in the office of the Executive in regard to appointment of the first appointee, the language of his commission, and the language of all subsequent commissions, except that of the relator, fixing the beginning of such' official term at June 18th, biennially, as the period from which to reckon the duration of such term, affords a contemporaneous as well as a continuous, exposition of the meaning of the law and of the intention of its makers, that is not without .value in the present investigation. Such contemporaneous and continuous construction, in the absence of anything of a countervailing character, should be sufficient per se to settle the controversy on the point in hand adversely to relator.
“Under statutory provisions substantially identical with these under discussion, it has been held that the true rule was to construe the word ‘term’ as designating consecutive periods of six years, following each other in- regular order, the one commencing where the other ends, and treating-the incumbent appointed in any such period as the incumbent in the particular term or period to which his appointment relates, his office expiring with the expiration of his term. [People ex rel. v. McClare, 99 N. Y. 83, 93.] The statute there was like section 5838, providing that the appointee should hold for a certain number of years and until his successor should be appointed and qualified, and also like section 5832, providing that in case of vacancy an appointment should occur for the residue of the term.
‘ ‘ The ruling just mentioned is in entire conformity to the authorities and views heretofore cited and expressed as to the date of the commencement and the uniform duration of the successive terms of office of the different and successive appointees under the law now being discussed. And, upon the very face of section 5838 aforesaid, there appears a legislative command that the term of office of each appointee is to last two years ‘from the date of his appointment;’ hut the Legislature was cognizant that appointments might fail to he made at the proper time; that deaths, resignations, failure to accept, qualify, etc., might occur, and so made provision in section 5838 that an appointee should hold office, not only for his official term of two years, hut until his successor should he duly appointed and qualified. And section 5852 exhibits the same marks of legislative solicitude that uniformity should prevail as to the duration of the official term of the inspector; for that section makes special provision, in case of vacancy, that the Governor, upon being informed thereof, ‘shall appoint and commission his successor for the remainder of the term of office as therein provided.’ What term of office? Evidently the term of two years mentioned in section 5838, beginning at the date of the original appointee’s appointment. ’ ’

Obviously there is little to he added to the discussion of the proposition involved in that case, which is equally applicable to the case at bar. Whatever other courts may say upon this proposition, the statute involved in the case last cited and quoted from, which in some of its features is similar to the statute now before us, has been interpreted by this court, and we see no valid, legal reason for departing from such interpretation.

In the case at bar the Act of 1901, as has been repeatedly stated, did not designate the date of the beginning or ending of the term, hut the Governor, who was fully vested with appointing power to fill such office, did fix the date of the ending of the term of the relator. By the designation as made by the Governor of the ending of the term, it follows that relator’s term expired on May 13, 1909, unless there are provisions in the statute which would longer continue such term.

III.

This brings us to the consideration of the statute which would authorize the relator to hold and enjoy the office of factory inspector beyond the end of his term, May 13, 1909. The only provision of law authorizing the relator to hold beyond the designated end of his term, May 13, 1909, are the terms employed in the statute providing that he shall hold “until his successor is appointed and qualified.” While this language recognizes the fact that there might be some delay in the appointment and qualification of a successor, it equally and fully recognizes the right of the Governor to appoint at any time after the term. Upon this proposition it must not he overlooked that the cases treating of this subject recognize a distinction between appointive and elective officers, and when the cases are fully considered and analyzed it Will be found that learned counsel for relator are in error when they say that our later cases are in conflict with State ex rel. v. Stonestreet, supra, and State ex rel. v. Thomas, 102 Mo. 85.

For the purposes of appointment there was a vacancy in this office May 13, 1909. The law does not contemplate that there is a new beginning and ending of the term by each appointment, but the term becomes fixed by the first appointment under the act.

IV.

It is next earnestly insisted by relator that the respondent has never been legally qualified, for the reason that the Senate has not ratified his appointment. This insistence is predicated upon the provision of the statute which reads: “The Governor of the State, with the advice and consent of the Senate, shall appoint,” etc.

It is fundamental that in the construction of statutes the courts should so interpret them as to con-form with the intent of the law-making power that enacted them. Applying this fundamental rule of construction to the contention of the relator upon this proposition, in our opinion, his insistence is not a fair construction of this law, and is directly in conflict with the manifest intention of the law-making power.

The General Assembly provided for the first appointment to be made at a time when the Senate would not be in session. It must have known that the Senate would not be continuously in session, and would not likely be in session at the time when further appointments were made. The law contemplates that such appointments shall be made at the proper time, and that the Senate will act upon the appointment at the next session thereafter. The law does not contemplate that there can be no occupant of the office until both the Governor and Senate have acted. Were that true, in case of the death of an occupant at a time when the Senate was not in session, the business of the office would have to cease until the Senate met. Such was never in the minds of the members of the General Assembly. The very fact that the law itself provided for the first appointment to be made at a time when it was not contemplated that the General Assembly would be in session, is strongly indicative of the legislative intent. We are unwilling to give the statute now under consideration an interpretation which would manifestly conflict with the clear intention of the law-making power and absolutely deprive the Governor of the power to discharge the administrative duties incumbent upon him by reason of such enactment. Laws must be given a reasonable construction, keeping in view the purposes of as well as the circumstances surrounding their enactment. Giving to this law-such a construction, it must be held that the legislative intent was to authorize the Governor to make appointments to this office at such times as vacancies occurred therein, and that the consent of the Senate would he given or refused at the next succeeding meeting of that body. In the meantime, such appointee, after having otherwise qualified under the act, is entitled to the office until such time as the Senate may pass adversely upon his appointment. Should the Senate refuse to confirm, the Governor would then have to appoint another. This at least has been the uniform course pursued by all prior administrations dealing with legislative enactments of this character.

The exact question here involved came before the Supreme Court of Florida, in the case of State ex rel. v. Murphy, 32 Fla. 138. The constitutional provisions there were much as they are here. After an exhaustive review of all the authorities, Raney, O. J., reached the same conclusion as herein indicated.

In discussing the time for holding over by the old officer, the Texas Supreme Court, in State v. Cocke, 54 Tex. l. c. 485, aptly says: “The primary object of this provision, that the incumbent is entitled to hold the office until his .successor is elected or qualified, is simply to prevent, on grounds of public necessity, a vacancy in fact in office until the newly elected or appointed officer can have a reasonable time within which to qualify. The right of the officer who thus holds over is by sufferance, rather, than from many intrinsic title to the office.”

To the same effect is the case of Johnson v. Mann, 77 Va. l. c. 271, where it was said: “The provision of. the Constitution mainly, if not solely, relied on by counsel for petitioner, is the twenty-fifth section of the sixth article. It simply provides for the holding over by the incumbent after the expiration of his term, until his successor shall qualify. The plain, unequivocal import of this section of the Constitution is, that when the regular term expires, the office becomes, in the eye of the Constitution, vacant, but with authority to the incumbent, already qualified, to continue by virtue of such previous qualification, made effective for the purpose by the Constitution, to discharge the functions of the office until he is succeeded in the way preferred by the people, as pointed out in the Constitution made by them, and in the laws made in pursuance of that instrument.” See also Prowell v. State (Ala.), 39 So. 164; Kline v. McKelvey (W. Va.), 49 S. E. 896; Fritts v. Kuhl, 51 N. J. L. 191.

We have given expression to our views upon the legal propositions involved in this proceeding, which results in the conclusion that the respondent, W. W. Williams, is the legally qualified factory inspector of this State, and that the writ of ouster sought by this proceeding should be and is hereby denied and the proceeding dismissed.

All concur, except Valliant, G. J., who is absent.


author: GRAVES, J.

text:
    OPAL HUFFT, by Next Friend, JOHN HUFFT, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    July 12, 1909.
    1. NEGLIGENCE: Blocking Frogs: Licensees: “Other Persons.” Where the place of the accident was not a public crossing, but in the private switch yards of the defendant railroad company, and plaintiff, a voluntary pedestrian thereon, was a bare licensee, the defendant owed him no duty, either at common law or under the statute, to keep its switch frogs blocked to prevent injury to him. And there being no such duty, it was not negligence not to block the frogs. The statute (Sec. 1123, R. S. 1899), requiring the blocking of switch frogs' “to prevent, as far as possible, the feet of employees or other persons from being caught therein,” can be invoked only by employees, or other persons necessarily on the tracks to transact business with the company, or other persons who are there by the express invitation or direction of the company, and not by persons who go upon the tracks for their own convenience or pleasure.
    2. -: Humanitarian Doctrine: Seeing Trespasser's Peril. If the person injured is at a place where the railroad company is entitled to a clear track, and for that reason is not required to be on the lookout for persons on the track, then, before the plaintiff can recover, he must show that the injured person was seen to be in a position of peril by the company’s servants in time for them, by the exercise of reasonable care and caution, after such perilous position was seen or known, to have prevented the injury.
    3. -: -: Seeing Expected Pedestrian’s Peril. If the person injured was at a place where the railroad company had no right to expect a clear track, and therefore there was upon its servants .the incumbent duty to be on the lookout for persons on the track, then, if the injured person might have been seen by said servants to be in a perilous position in time for ' them, by the exercise of ordinary care and caution, to have prevented the injury, the company is liable, whether they actually saw him or not.
    4. -: -: Recovery on Theory Not Pleaded. The instructions should be within the scope of the petition. The plaintiff who pleads that defendant was not entitled to expect a clear track at the place of his injury, because of the long and continued user of the track at that place, cannot, there being no such user shown, recover on the theory that he was a pure trespasser.
    5. -: -: Long User: Matter of Law. The court should not -in its instructions assume, as a matter of law, that the evidence discloses such long and continued user by pedestrians of the railroad tracks at the place of the accident as indicates both knowledge of such user and acquiescence therein by defendant, where, at most, the evidence of use by the public is so meagre that it is questionable whether the question of user at the locus should even have been submitted to the jury. And there is a distinction between a day use and a night use.
    6. -: -: Failure to See Stop Signals. If plaintiff was injured at a point where defendant’s engineer had a right to expect a clear track, and he did not know plaintiff was on the track, defendant is not liable for the engineer’s failure to sooner see the stop signals given by the brakeman who did see plaintiff’s peril; and if he saw such signals he was not, if plaintiff was a pure trespasser on the track, required to heed them. And the only way plaintiff, a convenience pedestrian, can show the place was not one where the engineer had a right to expect a clear track, is to show that there had been such long and continued user by the public of the place as to indicate knowledge of the public user and acquiescence therein by defendant.

      Held, by WOODSON, J., that notice to the switchman of plaintiff’s peril was notice to defendant.
    Appeal from Laclede Circuit Court. — Ron. L. B. Woodside, Judge.
    Reversed and remanded.

      W. F. Evans and Woodruff £ Mann for appellant.
    (1) Defendant’s instruction in the nature of a demurrer should have been given and the case taken from the jury, (a) Because plaintiff was a trespasser in defendant’s private switchyards. R. S. 1899, sec. 1105; Jackson v. Railroad, 157 Mo. 621. (b) Defendant’s engineer had a right to presume that he had a clear track and that the- yard would be clear of trespassers while he was doing the switching therein, and was not responsible to plaintiff, who was a trespasser, for failure to be on the alert to discover him. Callahan v. Railroad, 71 Mo. 117; Fearons v. Railroad, 180 Mo. 223. (c) Plaintiff being a trespasser, and defendant’s engineer having no occasion to be on the lookout for him, the engineer could not be held to any duty to stop the train and prevent the injury until he saw or actually knew of plaintiff’s perilous position, or, at least, until he actually saw the stop signal given by the brakeman. Fearons v. Railroad, 180 Mo.. 208; Carrier v. Railroad, 175 Mo. 470; Znmalt v. Railroad, 175 Mo. 288; Barker v. Railroad, 98 Mo. 50; Tarnall v. Railroad, 75 Mo. 575; Swigert v. Railroad, 75 Mo. 475; Feebach v. Railroad, 167 Mo. 207. (d) And since plaintiff was a trespasser, it cannot be said that defendant’s engineer owed him any duty to be on the lookout for the stop, signal of the brakeman. Frye v. Railroad, 200 Mo. 407; Barker v. Railroad, 98 Mo. 54; Cooley on Torts, 660. (e) The evidence introduced by plaintiff attempting to show such a user of defendant’s tracks by the footman traveling across the same, showed, at the most, only the use of the same by footmen in sporadic cases; did not locate such use at the place of the accident, and utterly failed to show that such use or pretended use of the tracks was ever within the knowledge or with the acquiesence or consent of the defendant company, and was insufficient to rebut the presumption to which the engineer was entitled of a clear track. Frye v. Railroad, 200 Mo. 401; Eppstein v. Railroad, 197 Mo. 732. (2) Instruction 1, given by the court for the plaintiff, is erroneous and the error is prejudicial and fatal, because it tells the jury that if they find from the evidence defendant’s engineer could by the exercise of reasonable care have seen the signal given by the brakeman in time to stop the train and avert the injury complained of and did not do so, their verdict should be for plaintiff, (a) Said instruction is erroneous because if plaintiff was a trespasser, as is contended by defendant, tbe engineer owed him no duty until be actually saw tbe stop signal and knew of tbe danger. Cases supra, (b) Because tbe right of tbe engineer to rely upon tbe presumption of a clear track must be removed by testimony of plaintiff showing such a user of tbe track at the place of the injury by tbe public, with tbe knowledge of defendant company, as would, under tbe circumstances of this ease, require tbe engineer, as a man of ordinary prudence, to reasonably anticipate 'the presence of some one on tbe track before tbe burden of ordinary care in looking out for bim can be imposed upon the engineer. Eppstein v. Railroad, 197 Mo. 720; Fearons v. Railroad, 180 Mo. 223. (c) Because tbe question as to whether there bad been such a user of tbe tracks by tbe public at tbe place of tbe accident, with tbe knowledge of tbe company, as would rebut tbe presumption of a clear track and require ordinary care in looking out on tbe part of tbe engineer, is not a question of law to be determined by tbe court, as is done by this instruction, but a question of fact to be determined by tbe jury under proper instructions. Tbe said instruction is, therefore, erroneous, because in it the court assumes, as a matter of law, that there' was such a user of tbe track, and invades tbe province of tbe jury, which should have been first required to find from tbe evidence that there bad been such a user before it could find a verdict for plaintiff based upon tbe failure of tbe engineer to use ordinary care. Eppstein v. Railroad, 197 Mo. 734; Morgan v. Railroad, 159 Mo. 270; Ahnefeld v. Railroad, -212 Mo. 300; Fearons v. Railroad, 108 Mo. 208; Everett v. Railroad, 112 S. W. 494; Chamberlain v. Railroad, 133 Mo. 603 ; Lemay v. Railroad, 105 Mo. 367.

      Mayfield, Vernon, Curry S Mayfield for respondent.
    (1) Under the evidence, as submitted, it was proper to submit the case to the jury. The evidence was amply strong and sufficient to pass to the jury, and the doctrine is too well settled for dispute in this State that where there is any evidence tending (however light) to prove the allegations, it is error to take the case from the jury. This case shows wanton negligence. Woods v. Railroad, 188 Mo. 229; Moody v. Deutsch, 85 Mo. 243; Reardon v. Railroad, 114 Mo. 403; Lynch v. Railroad, 208 Mo. 21. Besides, evidence of this kind need not be direct and positive; it may be inferred from the surroundings. Woods v. Railroad, 188 Mo. 229; Riñe v. Railroad, 100 Mo. 228; Lynch v. Railroad, 208 Mo.. 21. (2) Appellant misconstrues the law and the theory of this case. It is clearly under that class of cases supported by the following authorities: Woods v. Railroad, 188 Mo. 229; Brown v. Railroad, 50' Mo. 461; Dunkman v. Railroad, 95 Mo. 245; Fielder v. Railroad, 107 Mo. 652; Reardon v. Railroad, 114 Mo. 404; Chamberlain v. Railroad, 133 Mo. 596; Morgan v. Railroad, 159 Mo. 280'; White v. Railroad, 202 Mo. 562; .Ahnefeld v. Railroad, 212 Mo. 303. (3) Courts should not and do not encourage continued litigation. The verdict was for the right party and should be sustained. Besides, every presumption is in favor of the finding of the lower court. These principles are fundamental.
   GRAVES, J.

This is an action for personal injuries brought by Opal Hufft, a minor fifteen years old at date of accident, by his next friend, John Hufft, to recover of the defendant the sum of $20,000 for injuries alleged to have been received through the negligence of the defendant. The petition is in two counts.

On the night of June 23, 1905, at about 9 o’clock p. m., plaintiff, in company with another boy, was crossing the switchyards of the defendant in the city of Lebanon, Missouri, and caught his right foot in the frog of a switch, and while he was so fastened a backing train, then switching in said yards, ran over plaintiff in such way as to make it necessary to amputate his said right foot and leg.

In the first count of the petition, plaintiff alleges as negligence against the defendant a failure under section 1123, Revised Statutes 1899, to block or fill the switches, frogs and guardrails in its said switch-yard with the best known appliances to prevent the feet of persons from being caught therein.

By the second count, which plaintiff denominates as his “common law action,” he charges as negligence a violation of the said section 1123 in the first count suggested. Then he further charges that after plaintiff’s foot was caught and fastened in said switch and while he was in this perilous situation “the defendant’s agent and servants there and then in charge of said engine and cars, as above described, could and should have, by the exercise of reasonable care and caution on their part, prevented said injury, in that they could and should have discovered this plaintiff in this perilous position in time to have avoided same and could and should have, by the exercise of reasonable care and caution, stopped said engine and cars in time to have avoided injuring the plaintiff.” That such failure was negligence upon the part of defendant.

As a third ground of negligence, it is charged that defendant operated said engine and cars at the time, i. e., nine o’clock p. m., without having a flagman, brakeman or other person on the rear end of said car which was so pushed over the foot and leg of plaintiff.

It is averred in the second count of the petition that at the time plaintiff’s foot was caught he was traveling along said railroad in said switchyards in a path which for many years had been used as a roadway and footpath by travelers by the -forbearance and tacit consent of the defendant.

Defendant’s answer to the first count was (1) a general denial, and (2) a plea of contributory negligence. The answer to the second count was of the same character. Reply in the nature of a general denial.

Before going to the jury, plaintiff elected to stand on the second count of his petition and dismissed the first count thereof. By a verdict of the jury he was awarded damages in the sum of $5,000, upon which judgment was rendered against the defendant, and from which defendant, after unsuccessful motions for new trial and in arrest of judgment, has appealed to this court.

The necessary facts in this case may be stated briefly.as follows:

Defendant’s railway passes through the city of Lebanon, running east and west. One of its freight trains came in from the east, and going west reached Lebanon at about 8:10' in the evening of the date of the accident. This train pulled in on what is known as the passing track, which was the track north of the main track. The conductor thereof went to the station and there obtained information as to what switching was to be done. It also appears that at about that time there was due a regular freight train from Springfield, Missouri, going east. The defendant company maintained at Lebanon a switchyard in which there were eight or ten or more tracks. On the south side of the main track were two tracks, one known as a tank track, and the other as a stock track. The tank track left the main line at the switch which Was fartherest west in this switchyard. From this tank track the stock track branched off. Upon the evening in question the crew in charge of this special freight train, being desirous of taking into this train a certain car of beer, cut' loose its engine, thus leaving its cars standing on the passing track, and ran the engine down from the passing track to the main track and then back through the switch to the tank track and from the tank track to the stock track to get its car. To so do it became necessary to couple onto the engine five cars, and when this was done the engine and cars pulled west from the stock track to. the tank track and thence to the main track and out on to the main track.

Such was the action of the train in question; now as to the action of the plaintiff.

As we take it from the evidence the plaintiff and his companion, Jesse Easley, had been on the north side of the railroad tracks and were desirous to go to a point where they were drilling a well south of the railroad tracks and in the vicinity of the switchfrog whereat plaintiff was afterwards injured, and with this end in view crossed defendant’s railroad tracks and went to said well. At the time they knew that switching was being done by this train in the yards. Plaintiff also knew that switching was continuously being done in these yards in the making up of sundry trains therein. After remaining at the well a short time, plaintiff and his companion concluded to return home. They had observed the engine and cars passing down to the west; to the west of them, as we gather from the meager testimony before us, there was a regular street crossing, but plaintiff and his companion started across the tracks from the well without going to the public crossing. Easley was somewhat in advance of plaintiff and got across the track, when he heard a distressed call from plaintiff. He came back and discovered the plaintiff’s foot was fastened in the switchfrog and according to his testimony he notified a brakeman. That the ear had stopped about forty-three feet from the frog, but was moving backwards at the time. He says the brakeman im-. mediately gave a stop signal to the engineer and ran to the plaintiff; that he undertook to get plaintiff’s foot out of the frog and finding himself unable he loosed plaintiff for a moment and gave a second stop signal to the engineer; that seeing the train still approaching the brakeman came back to plaintiff, took hold of him and removed him from the track as far as possible, and while he was thus holding him one wheel of the rear car passed over plaintiff’s leg severing the foot.

Plaintiff’s individual testimony is substantially to the same effect as that of Easley. These two witnesses were both of the opinion that the car which run over the plaintiff was a loose car and one not attached to the engine. Plaintiff says the loose car Was standing on the track when the train went down, but this is shown to have been an impossibility by all the testimony in the case, and this because the switch-frog whereat plaintiff was injured was the last one to the west in this switchyard and the engine in going to the west with its cars had to pass over this switch-frog. Easley was of the impression that the car was one of a number of cars drawn out by the engine from the stock track and cut off from the train after reaching the main track, thus leaving it unattached to the train. Plaintiff’s witnesses show that there was a brakeman with a lantern on the rear car as the engine and cars passed down the track just before the injury.

For defendant it is shown that this train crew had been advised to keep a lookout for train No. 32, the regular freight train from the west; that the conductor had gone toward the west for the purpose of selecting the cars he had to switch and also to keep a lookout for the east-bound train. Members of the train crew say that they saw nohody aronnd the tracks as they moved these cars down to and upon the main track. One of the brakemen, Blackburn by name, got off of the train to open the switch and signalled the engineer to back. He says that he heard a boy holloa and gave a stop signal and ran to him. That he tried to get his foot out, but couldn’t, and gave another stop signal, and then held the boy in such position as he would' be injured the least possible. The other brakeman testified that he heard Blackburn call “stop” in a distressed tone, and that he gave the stop signal from the top of his car, and then jumped therefrom to go to Blackburn, thinking that Blackburn himself was in trouble; that he called to Blackburn to look out, whereupon Blackburn stepped to one side and he for the first time saw the boy.

By the engineer it was shown that after he received the signal to back up and started to back his train in on the stock track, he was at the same time keeping a lookout for the approaching train from the west, and that to protect his train from said approaching train he lit a fuse and threw it out as a signal to train No. 32. That this took but a few seconds and that thereafter upon looking to the rear he saw a violent stop signal and stopped his train within four or five feet after receiving such signal.

Plaintiff claims that the train was not moving when he got his foot caught and moved slowly at all times. All the evidence shows that it was quite dark and that the plaintiff did not or could not see the engineer or the engineer him. It is quite clear from the evidence that the engineer at no time knew of the danger of plaintiff or anybody else until he received the stop signal. Nor did he know of plaintiff’s perilous position until after the injury.

Plaintiff offered several witnesses, the purpose of whose testimony was to show continuous user by pedestrians of the railroad track as a passage way or footpath. This testimony tends to show that there was considerable travel at different points for a considerable distance, but the evidence is not very definite as to any particular pathway, nor does it disclose clearly whether or not the place where plaintiff was injured was at or about the alleged pathway claimed to have been used by the public. This sufficiently states the testimony.

The court of its own motion gave on behalf of the plaintiff the following instructions:

“1. The court instructs the jury that under the evidence and law in this case, the plaintiff cannot recover on the ground of any defect in the frog in which the plaintiff’s foot was caught.
“If, however, you find from the evidence that, after plaintiff’s foot was caught in the frog, the brakeman of the train in question discovered the fact that his foot was fast in the frog, and signalled the engineer to stop the train, and if, by the exercise of reasonable care, the engineer could have seen such signal and stopped the train in time to avert the injury complained of, and did not do so, then you shall find the issues for the plaintiff.
“2. The court instructs the jury that by ordinary care as used in these instructions, is meant such care as an ordinary, careful and prudent person would exercise under the same and similar circumstances.
“3. The court instructs the jury that if you find the issues for the plaintiff, Opal Hufft, you may, in assessing the damage, take into consideration his age at the time of his injury, if any, the extent of said injury, if any, together with the humiliation he has or may suffer by or on account of the loss of his said limb, if any, together with all the other facts and circumstances in evidence, not to exceed the sum of twenty thousand dollars.”

The court of its own motion gave the following instruction for the defendant:

“1. The court instructs the jury that the defendant’s engineer did not owe plaintiff the sole duty of keeping a lookout for the stop signals when he was backing his engine and cars, but if you find and believe from- the evidence that another train was approaching his train on the same track, then it was also his duty to look out for it; and if you find and believe from the evidence that the engineer was exercising ordinary care to discharge both of said duties, when backing his said train, and- while in exercising both of said duties with ordinary care he stopped his engine and cars as he saw said stop signals, given by the brakeman, or either of them, - then your verdict must be for the defendant.”

The court refused to give instructions numbered 2 and 3, asked by the defendant, which read as follows;

“2. The court instructs the jury that as to the plaintiff, Opal Hufft, the engineer in charge of defendant’s engine that backed the cars over said plaintiff’s foot was not required to be on the lookout for stop signals, and was not required to stop his engine until he actually saw said signals; and if you believe and find from the evidence that as soon as said engineer saw said stop signals he did all he could to stop his engine and cars, and stopped them, your verdict must be for the defendant.
“3. The court instructs the jury that, in backing his train towards the spot where Opal Hufft was caught, it was not the absolute duty of defendant’s engineer to see the stop signal given by the brakemen, or either of them; that said engineer was only required to use ordinary care under all the facts and circumstances' detailed in evidence to see said stop signals, and then to use such ordinary care after he saw said stop signals to stop his engine and cars; you are further instructed that if said engineer while so backing his engine and cars on the main line, saw another train approaching him on the main line, then it was his duty to look ont for and to nse proper care under the circumstances, and the rules of the company, to stop said approaching train, and although you may believe from the evidence that said engineer did not see said stop signals when first given, yet if you believe that the only reason that he did not see them was because his attention during that time was called towards the approaching train, and that as soon as he could withdraw his attention from said approaching train, with safety to said trains, he looked and saw said stop signals and stopped his engine and cars, your verdict must be for the defendant.”

The court refused to give several instructions asked for the plaintiff which are not necessary to set out herein.

Points made will be noted in the course of the opinion.

I. The plaintiff attempts to plead three grounds of negligence in the second count of his petition. The first is the violation of section 1123, which statute requires the blocking of switchfrogs, and this for the purpose in the language of the statute “to prevent as far as possible, the feet of employees or other persons from being caught therein.” This question we would not discuss here, in as much as the court nisi did not submit it, but for the reason that it is well to discuss it to get at the real situation of the case. Plaintiff urges that the verdict was for the right party and this will further justify the mention of the question here.

The place of the accident was not a public crossing, but in the private switchyards of defendant. Under no circumstances in evidence could plaintiff be more than a bare licensee. To trespassers and bare licensees the defendant owes no duty to block frogs, either under the statute or at common law. If there he no duty there can he no negligence.

In 23 Am. and Eng. Ency. Law (2 Ed.), 733, the rule is thus stated: “A statute requiring railroad companies to block the frogs and switches in their tracks is intended for the protection of employees, and an omission of this duty is not such negligence in respect to a trespasser as to render a railroad company liable for his death from being run over by a train while his foot was held by an unblocked frog.”

To like effect is Elliott on Railroads, sec. 1258, whereat the author says: “No duty rests upon a railroad company in favor of trespasser's or bare licensees, who use its track as a footway, to keep its switches blocked in its private yard in order to prevent injury to such persons.”

In Minnesota there is a statute in all respects like ours. The relevant portion reads: “In order to guard against accidental injuries to employees and others, every railroad company shall properly adjust, fill, block, and guard all its frogs, switches and guardrails.” [R. S. Minn. 1905, sec. 1993.] In Akers v. Railroad, 58 Minn. 540, the question before us was was before that court. This statute, like ours, originated in the year 1887, although ours was at first invalid and only became valid by re-enactment in 1891. [Wells v. Railroad, 110 Mo. 286; Brannock v. Railroad, 200 Mo. l. c. 567.] In the Akers Case user of the railroad track was shown and Erling, the deceased, lost his life by reason of getting his foot caught in an unblocked frog. The court held that there could be no recovery, because no duty was owing to the deceased from the company.

The same ruling was made by the Texas court in Railroad v. Lee, 34 S. W. l. c. 161. The court there says: “Since the evidence shows without contradiction that the switch was in the private yard of the appellant, it was under no obligation to the deceased or other persons using the track as a footway to construct the track with a view to prevent injury to them. Appellant owed this duty to its employees, hut not to those using its track as a footway, although its servants and agents knew of such, use.”

In Carr v. Railroad, 195 Mo. l. c. 225, this court said: “The courts make a distinction between a person who comes upon a railroad’s premises at the invitation of the railroad company, or for some purpose connected with its business, and a person who goes upon such premises for his own convenience or pleasure. In the one case there is a duty to protect the person thus going upon the property of another from injury, while on his premises, while as to the other, there is no such duty.” See also exhaustive opinion by Elliott, J., in Railroad v. Phillips, 112 Ind. 59.

We are of the opinion that the plaintiff in the case at bar did not fall within the classes entitled to the protection prescribed by the statute. In our judgment this statute can only be invoked by employees, or such other persons who are necessarily upon the railway tracks by reason of business with the company, or at the express invitation or direction of the company. Plaintiff falls within neither of the classes, and as to him the defendant owed him no duty in this regard, and its failure as to him was not negligence.

II. We reach now the second ground of negligence, and this we quote in full from the petition,, for herein lie several close questions in the cabe. The language of the petition is: “Defendant was further negligent in that after plaintiff’s foot was caught and fastened, as above set forth, and while in this perilous condition and imminent danger, defendant’s agents and servants then and there in charge of said engine and cars, as above described, could and should have, by tbe exercise of reasonable care and caution on their part, prevented said injury, in that they could and should have discovered tbis plaintiff in tbis perilous condition in time to have avoided tbe same and could and should have by tbe exercise of reasonable care and caution, stopped said engine and cars in time to avoid injuring tbe plaintiff.”

It must be borne in mind tbat tbe plaintiff bad previously pleaded long and continuous user of tbis portion of tbe track by pedestrians, and was therefore attempting in tbis charge of negligence to bring himself within tbe humanitarian rule. Tbis rule is one well recognized in tbis State, but is one bard to outline in precise terms. We take it, however, tbat we bave squarely fixed at least two classes of cases thereunder and tbe governing law therein. [Hall v. Railroad, 219 Mo. 553; Eppstein v. Railroad, 197 Mo. l. c. 733; Frye v. Railroad, 200 Mo. 377.]

(a) In the first place, if tbe person injured is at a place whereat tbe defendant is entitled to expect a clear track, and for tbat reason is not required to be on tbe lookout for persons on tbe track, then before there can be liability tbe plaintiff must show tbat tbe injured person was seen in a position of peril by defendant’s servants in time for them to bave prevented tbe injury by tbe exercise of reasonable care and caution, after such perilous position was seen and known.

(b) But if tbe person injured was at a place where defendant bad no right to expect a clear track, and therefore there was upon its servants tbe incumbent duty to be on tbe lookout for persons upon tbe track, then if tbe injured person might bave been seen in a perilous position in time to bave prevented tbe injury, by tbe exercise of ordinary care and caution upon tbe part of defendant, its agents and employees, then tbe defendant is liable whether such employees actually saw him or not. And tbis, because it was their duty to have been on the lookout for him and to have seen him.

The plaintiff brings his suit on the theory that he was in a position of peril and at a place whereat the defendant was not entitled to expect a clear track by reason of long and continuous user of .the track at that place by pedestrians. No other theory can be gathered from the wording of this petition. This theory was never submitted to the jury. By instruction numbered 1 given by the court, the question of whether or not the track at the point of injury had been so long and continuously used by the public as a footpath as to indicate knowledge and acquiescence therein by the railway company, is not presented at all. Under the evidence in this record the court could not declare as a matter of law that there had been such user.

We must not overlook the fact that we have distinguished even between a day and night user. [Frye v. Railroad, 200 Mo. l. c. 401.]

It appears thus from the instructions given by the learned trial judge that he was of the impression that user of the track at the point of accident had not been sufficiently shown to entitle the plaintiff to have that question submitted to the jury. There is no plat of the locus in quo in evidence, and the description given by the witnesses as to the portion used by the public is so meager that we are unable to say whether there was sufficient evidence to submit the question or not. A more unsatisfactory record upon the question could not have been designedly prepared. If there was no sufficient user shown, then the plaintiff was a pure trespasser, and at a place where the agents in charge of defendant’s train had a right to expect a clear track, and were under no obligation to be on the lookout for the plaintiff. And further if there was no such user shown, the plaintiff has been permitted to recover upon a theory not pleaded in Ms petition. He does not charge that defendant’s negligence consisted in knowing that he was in a perilous position and after such knowledge failed to use ordinary care to prevent his injury, hut he contents himself with saying that he was at a place where the duty devolved upon the defendant to he on the lookout for him, and that by the exercise of ordinary care and caution they could have seen him and his peril in time to have prevented an injury.

It has long been the rule of this court that the instructions should not only he within the scope of the evidence, but within the scope of the petition as well. For a collation of the authorities see separate concurring opinion in Black v. Railroad, 217 Mo. 685.

This instruction numbered 1 does not present the case pleaded and presented by the petition, unless it be said that the trial judge meant to declare as a matter of law that the evidence disclosed such long and continuous user as indicated both knowledge of and acquiescence therein by defendant. There may be cases where courts will so declare but this is not one. To our minds the proper rule for guidance is well outlined in Eppstein v. Railroad, 197 Mo. l. c. 734.

III. But going a step further and conceding that the court, nisi, was of opinion that there was no sufficient evidence to authorize the submission of the question to the jury, and that the court did not mean, by instruction numbered 1 for the plaintiff, to declare as a matter of law that there had been such user, then how stand the instructions in this case?

Grant it to be true that a prompt response to the stop signal would have saved the plaintiff, yet if the plaintiff was at a place where the engineer in charge of the engine had no right to expect persons, other than employees, to be, his failure would not he negligence as to the plaintiff. In other words if the engineer was at a place where he was entitled to- expect a clear track, his duties as to looking out for stop signals is quite different to what they would he if he was running his train at a place where he was not entitled to- expect a clear track. If the place of injury was where the engineer had the right - to expect a clear track, then as said before, his failure to immediately heed the same would not be negligence toward plaintiff, because such signals at such a place would not be given for his benefit. In other words, stop signals at such a place would not contemplate plaintiff’s presence there and a failure to heed them might be negligence as to some parties, but not as to him.

On the theory that there had been no sufficient user shown, then defendant’s instruction numbered 2, refused by the court, properly declares the law. So that it matters not which notion was entertained by the trial court, there was ferror in instruction numbered 1 for plaintiff. That is to say, if the trial court meant to declare as a matter of law that such user had been shown, then there was error for that reason, and on the other hand if the court meant to declare that there was no user, and that the place was one where defendant was entitled to a clear track, then the instruction is erroneous, because it imposes the duty to observe the stop signals for the benefit of plaintiff, who, to the engineer, was an unknown and unseen trespasser. To such a person the engineer only owed the duty of obeying the stop signal after he saw it. He was not guilty of negligence toward the plaintiff until he did see it, any more than he would have been of. failing to stop in that class of cases wherein he has a right to expect a clear track and fails to discover a person on the track in time to avert the injury.

The evidence in this case does not show that the engineer had knowledge of plaintiff’s peril. He obeyed the signal to back up, and when he started his train backward he had the right to expect a dear track, unless the proper user is shown. So that in our opinion the plaintiff in this ease has no cause of action unless he can show such a user of the tracks at the point of injury as to establish both knowledge of and acquiescence in the same by defendant, and thereby impose the duty on defendant’s engineer to be on the lookout not only for pedestrians, but to carefully watch for all stop signals, to the end that he might protect such expected pedestrians. We are not at all satisfied with the evidence upon the question of user. It is not definite enough in the present record to determine the portion of the track to which the user attaches, if to any. On any theory of the case we think there is error in instruction numbered 1 and err.or in permitting a recovery upon a theory not contained in the plaintiff’s petition, but we likewise feel that upon a retrial of the cause the necessary facts may be shown. The Hall, Eppstein and Frye cases so thoroughly go over the requisites as to the quantum and character of proof required to show user that a mere reference thereto will be sufficient here.

Judgment is reversed and cause remanded.

All concur, except Woodson, J., who concurs in all that is said, except that he does not concur as to what is said as to notice to the brakeman. He holds that notice to the brakeman was notice to the company.


author: LAMM, P. J.

text:
      FLANAGAN MILLING COMPANY, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    July 12, 1909.
    1. ABSTRACT: No Recital of Record Matters. Record entries, as such, cannot be preserved in a bill of exceptions for appellate purposes, and if they appear in the bill and nowhere else it is the same as if they did not appear at all. So that where there is no recital in the record proper at what term of court (if any) the motion for a new trial was filed or overruled, or the affidavit for an appeal was filed and the appeal granted, or at what term an order was entered granting plaintiff leave to file a bill of exceptions, the abstract is fatally defective, though the bill of exceptions contains a recital of some of these things.
    2. -: Transcript. A manuscript full transcript on file with the court is not an abstract. Absent conflicting abstracts, the court will not go to that transcript to spy out those things essential to perfecting an appeal and to give it jurisdiction of a concrete case, nor for matter essential to an understanding of points to be decided. Those things must be abstracted in a printed abstract, and an abstract is what its name imports —it does not mean (except by grace) a full record, and it means something more than an analytical index.
    Appeal from St. Charles Circuit Court. — Hon. Jas. D. Barnett, Judge.
    Affirmed.

      Hamilton Grover, T. F. McDearmon and Alfred A. Paxson for appellant.

      Charles W. Bates and Charles P. Williams for respondent.
   LAMM, P. J.

Plaintiff corporation was “tenant and owner” of certain lots and a certain hominy mill and elevator situate thereon in St. Louis. Close by was a public sewer in Geyer avenue constructed in 1854. Plaintiff’s basement was connected with this sewer by drain pipes. In that basement were sundry sorts of milling machinery, also grains and manufactured “white corn goods,” meal, etc. On July 24, 1899, as the result of a heavy rainfall, the back water from the Geyer avenue sewer flooded said basement, damaging its contents and the mill building. Grounding its action on negligence in enlarging the area drained by the Geyer Avenue sewer district beyond the capacity of the sewer and in allowing the sewer to become obstructed by dirt and debris, whereby sewerage and flood water were dammed back into the basement, plaintiff sued for $25,000 damages.

Defendant answered, first, by way of a general denial; second, by way of a plea of contributory negligence in that defendant had charter power to regulate the use of sewers by ordinance and had passed certain ordinances by virtue of such power requiring owners of premises to put in self-acting valves in all cases where a back flow from main sewers may be apprehended, coupled with an allegation that such safety valve would have been a complete barrier to the back flow complained of in the petition; that there was in existence a self-acting valve known as a “back trap” or “back water trap” effective to stop sewer back flow — a simple device of small cost and installed with little trouble; and that plaintiff negligently violated said ordinance and negligently failed to install such device to prevent back flow and injury therefrom.

Unsuccessful below, plaintiff brings the case here.

The abstract sets forth the petition, answer and reply in full; next that the cause went on a change of venue to the St. Charles Circuit Court; next follows certain proceedings which the abstract states ‘ ‘ are preserved in the bill of exceptions. ’ ’ An abstract of the bill of exceptions next follows, covering 55 pages and winding up with the signature of the trial judge and the file marks of the clerk.

Following said abstract of the bill of exceptions is matter which we present totidem verbis, reading:

“Record Entries.
“March 10th, 1905, verdict and judgment for defendant.
“March 13th, 1905, motion.for new trial filed.
“March 24th, 1905, motion for new trial overruled.
“March 24th, 1905, affidavit and motion for appeal.
“March 24th, 1905, appeal granted to Supreme Court of Missouri.
“March 24th, 1905, time to second Monday of September, 1905, granted plaintiff to file bill of exceptions.
“September 4th, 1905, bill of exceptions presented, allowed, signed, sealed, filed and made part of the record by order duly entered, within the time given by the court.
‘ ‘ Affidavit for Appeal,
“A. A. Paxson, agent for the plaintiff in the above entitled cause, being’ sworn, upon his oath, says that the appeal prayed for by him for the plaintiff is not made for vexation or delay, but because he considers the plaintiff aggrieved .by the judgment and decision of the court. A. A. Paxson,
“Agent for plaintiff.
“Subscribed and sworn to before me, this 24th day of March, 1905. Wm. F. Wolter,
“Circuit Clerk.”

The defendant filed a .supplemental abstract, to-wit, a complete- copy of the bill of exceptions and no more.

Under our interpretation of the statutes and our rules, the foregoing abstract is fatally defective in that it nowhere appears at what term of court, if any, the motion for a new trial was filed or overruled or the affidavit for an appeal was filed and the appeal granted, or at what term an order was entered granting plaintiff leave to file a bill of exceptions. Or whether these things were done in term time at all. Some of these things do appear at large in the bill of exceptions.

In order to save an intelligent exception to the overruling of a motion for a new trial, there should appear in the bill some notation that such motion was filed and overruled. But record entries, as such, cannot be preserved in a bill of exceptions for appellate purposes because the function of such bill is not to preserve such record entries. Therefore, if they appear in the bill and nowhere else, it is the same as if they did not appear at all. Our statutes contemplate that a motion for a new trial should be- filed at the judgment term and within four days after the judgment; that an appeal should be taken at the term at which the motion for a new trial is overruled; and that the bill of exceptions should be filed at such term or that leave be then granted giving time. Therefore, the data should be abstracted from which we can see that the statutory steps have been taken to perfect an appeal. This, because an appeal is a creature of the statutes.

Appellant brought this case up by a manuscript full transcript. We may know nothing of its contents; because if there is one thing more firmly settled than another it is that, absent conflicting abstracts, we will not go to that transcript to spy out those things essential to perfecting an appeal and giving us jurisdiction of a concrete ease, nor for matter essential to an understanding of points to be decided. These things, under our rules, must be abstracted in print. Now an abstract is what its name imports. If a full record is printed our rules provide that such full record may be taken for an abstract. But that is not the best method to aid an appellate court, since it is expensive and cumbersome and can only be considered an abstract by grace. On the other hand an abstract must be something more than a mere analytical index shorn of paging. In condensed form, it should still preserve and evidence essential facts.

It is a marvel that excellent counsel will not heed the interpretation given of our rules and warnings judicially iterated and reiterated. We do not interpret our rules otherwise than equitably. For instance, by an implication from data furnished in the abstract, other data might be aided and rounded by supplying an element omitted. But there is nothing in this abstract from which we can see that the entries referred to were made at the judgment term of the circuit court of St. Charles county, or at any term at all.

We therefore affirm the judgment and put affirmance on a line of cases, of which a few are Harding v. Bedoll, 202 Mo. 625; Groves v. Terry, 219 Mo. 595; Shemwell v. McKinney, 214 Mo. 692; Stark v. Zehnder, 204 Mo. 442; Walser v. Wear, 128 Mo. 652; Pennowfsky v. Coerver, 205 Mo. 135; Coleman v. Roberts, 214 Mo. 634.

All concur.