author: GRAVES, J.

text:
    CITY OF CARTHAGE v. R. W. GARNER and JOE LAWSON, Appellants.
    Division One,-
    February 26, 1908.
    1. TELEPHONE POLES IN STREET: No Application: Discretion of Clerk. A city of the third class has the right to require a telephone company, holding a franchise from it to construct and operate telephone lines in the city, to apply to the city clerk for permission to dig an excavation in the sidewalk for the purpose of replacing an existing pole with a new one, and the company’s servants may be punished for making said excavation and erecting said new pole without such permission and without having made such application. The clerk cannot arbitrarily deny said application, and if he does his arbitrary action can be corrected by proper authority. Hence, the city does not delegate to the clerk legislative authority, or unregulated official authority.
    2. -: -: Unreasonable. The ordinance requiring a telephone company to make written application to the clerk for permission to erect its poles in a public street, is net unreasonable.
    3. -: -: Contract With State:. New Burdens. A public service corporation must exercise its charter and franchise rights subject to such reasonable police regulations as may be prescribed by the city. And such regulation ordinances are not violative of the contract betwen the company and the State— its charter — because they impose upon the company duties not detailed in the general statutes. A statute which expressly gave a city the power to regulate the setting of telephone poles, applies to the original and. subsequent setting, and became a part of the contract between the company and the State; and aside from that, such ordinance regulations are but the exercise of the inherent police power of the city.
    4. -: -: Police,Regulation: Surrender. No city, by its charter, or by any contract it may enter into with a public service corporation, can abrogate or abridge its police powers, and if it did, to that extent such instruments would be void.
    Appeal from Jasper Circuit Court. — Noto. Hugh Dabbs, Judge.
    Affirmed.

      McReynolds & Halliburton for appellants.
    (1) The control of the highways and streets is primarily in the State and the State acting in its sovereign capacity may grant the right to nse the streets and public highways in its discretion. Railroad v. St. Louis, 3 Mo. App. 320, 66 Mo. 256; Hisey v. Mexico, 61 Mo. App. 252; Keasby on Elec. "Wires, sec. 3; Booth on St. Rys., pp. 107, 108; Elliott on Roads and Streets, pp. 327-332-698; 2 Dill. Mun. Corp,, secs. 657-683. (2) 'Cities derive their powers from the Legislature and have no power or authority except such as is granted to them by legislative act. St. Louis v. Laughlin, 49 Mo. 363; City of Kansas v. Swope, 79 Mo. 446; St. Louis v. Tel. Co., 96 Mo. 623; Nevada to use v. Eddy, 123 Mo. 546; Town of Clinton v. Clayton, 50 Mo. App. 535. (3) Section 1251, Revised Statutes 1899', has been held to confer on telephone companies the powers and privileges therein granted. St. Louis v. Tel. Co., 96 Mo. 623; State ex rel. v. St. Louis, 145 Mo. 570'; State ex rel. v. Fiad, 23 Mo. App. 185; Hannibal v. Tel. Co., 31 Mo. App. 23; Tel. Co. v. Benton Harbor, 121 Mich. 512; Tel. Co. v. St. Joseph, 121 Mich. 502; Tel. Co. v. Oshkosh, 62 Wis. 32; Tel. Co. v. Board, 67 Iowa 250; People v„ Tel. Co., 31 Hun 596; Tel. Co. v. Harrison, 31 N. J. Eq. 627. (4) The Home Telephone Company having incorporated under article 6, chapter 12, Revised Statutes 1899, in August, 1902, the provisions of that article as it stood at that time became the charter of said company, and became and was a contract between the State of Missouri and the Home Telephone Company, and when accepted and acted upon by the company became irrevocable and neither the State nor the city could set it aside or interpolate new and more onerous conditions. Matthews v. Railroad, 121 Mo. 310; State ex rel. v. St. Louis, 145 Mo. 591; O’Brién v. Cummings, 13 Mo. App-. 197; People v. Trust Co., 130 111. 266; North Point Consol. Inc. Co. v. Canal Co., 16 Utah 246; Tel. Co. v. St. Joseph, 121 Mich. 502; Tel. Co. v. Benton Harbor, 121 Mich. 512; New Orleans v. Tel. Co., 40 La. Ann. 45; McQuillin, Mun. Ord., secs. 197-201, 238; 10 Cyc. 222. (5) The only right granted to the city to control and regulate telephone companies prior to 1903, was given by section 1260', Revised Statutes 18991. And the city, in compliance with said section, by chapter 20; sections 599', 601 and 602 of the Revised Ordinances of 1901, made regulations for telephone and telegraph companies following the authority of said statute. The agreed statement of facts shows that defendants as agents and servants were acting in compliance with the regulations provided in said section 1260 and said sections 599, 601 and 602 of the ordinances of the city. (6) The ordinance under which defendants were convicted was passed in 1901, prior to the amendment'of section 1251, Revised Statutes 1899', by Act of 1903. At that time the city could only regulate a telephone company incorporated under article 6, chapter 12, Revised Statutes 1899, in three particulars, to-wit: First, the place where the piers, posts and abutments shall be located; second, the kind of posts that shall be used; third, the height at which wires shall be run. R. S. 1899, sec. 1260; State ex reí. v. Fiad, 23 Mo. App. 185; Hannibal v. Tel. Co., 31 Mo. App. 23; St. Louis v. Tel. Co., 96 Mo. 629. The only other authority given the city is in section 5837, Revised Statutes 1899', being charter of cities of the third class, which provides that “the council may also regulate the . . erecting of . . telephone, telegraph and electric light poles and the making of excavations through and under the sidewalks or in any street, avenue, alley or other public place in the city.” These two sections can stand together without being in conflict, and the city council so believed when sections 599, 601 and 602 of the ordinances of 1901 were passed, which sections regulate the eree-1 tion of telephone poles in strict compliance with section 1260 and also in compliance with section 5837. (7) Sections 599, 601 and 602 specially give the Home Telephone Company the right to set its poles under regulations therein prescribed, and give it authority to do just what its employees were arrested and convicted for doing. Sections 553 and 554 were evidently never intended by the council to apply to telephone companies, and should be so construed by the court under the well-known rule that where two statutes are in apparent conflict, they should be so construed as to uphold both if possible. Said ordinances being in pari materia must be construed together, and a fair construction of the two together excludes telephone companies from the requirements of sections 553 and 554. Lang v. Callaway, 68 Mo. App-. 393; State ex rel. v. Spencer, 164 Mo. 48; State ex rel. v. Hancock, 164 Mo. 55; Donnell v. Lee, 101 Mo. App. 191. A special law is not to be regarded as repealed by a general law, unless negative words are used or the provisions are plainly incompatible. State v. Daly, 49 Mo. App. 184; State ex rel. v. Frazier, 98 Mo. 426; Railroad v. Cudmore, 103 Mo. 634; Railroad v. Hambaugh, 106 Mo. 656. Sections 599-601 and 602 are special ordinances applying to telephone companies alone, while sections 553 and 554 are general ordinances, and there is nothing to show which was passed first.

      J. D. Karris for respondent.
    (1) The city of Carthage, being a city of the third class, has the police powers to “regulate the erecting of telephone, telegraph and electric light poles, and the making of excavations through and under the sidewalks or in any public street, avenue, alley or other public place within the city.” R. S. 1899, secs. 5837, 5834. (2) That the provisions of sections 553 and 554 of the ordinance are police regulations there can, under the authorities, he no doubt. City of Westport v. Mulholland, 84 Mo. App, 319, 159 Mo. 97. And that the city of Carthage has power to enact the same is equally clear. City of Westport v. Mulholland, 84 Mo. App. 319, 159 Mo. 86; R. S. 1899, secs. 5837, 5834; State ex rel. v. Murphy, 130 Mo. 10. (3) Franchise ordinance No. 317 does not attempt to relieve the American Electric Telephone Company or its successor, the Home Telephone Company, from the provisions of said sections 553 and 554 of the ordinance set out in the stipulation of facts. And, even if it did, its provisions attempting so to relieve the telephone company would be invalid, since the provisions of said sections are police regulations. Railroad v. Milwaukee, 97 Wis. 422; City of Westport v. Mulholland, 159 Mo. 94; Beer Company v. Massachusetts, 97 U. S. 33; Railroad v. Grill, 156 U. S. 657. The city cannot contract away its police power. State ex rel. v. Murphy, 130' Mo. 23; City of Westport v. Mulholland, 1591 Mo. 94; State ex rel. v. Murphy, 134 Mo. 575 ; Railroad v. Grill, 156 U. S. 657; Stone v. Mississippi, 101 U. S. 817; Dillon, Mun. Corp. (4 Ed.), sec. 141. (4) That the city may require the telephone company to take out a piermit before digging in its streets, and that the regulation requiring such permit is reasonable, has been settled beyond the question of doubt in this State in the case of .City of Westport v. Mulholland, 84 Mo. App. 319, and 159 Mo. 86; State ex rel. v. Murphy, 130 Mo. 10; State ex rel. v. Murphy, 134 Mo. 548. (5) Neither are sections 553 and 554 of the Revised Ordinances of the city of Carthage, under which the defendants were convicted, void for the reason that the ordinance delegates the issuing of the permit to the city clerk. Permission could not be refused by him for any purpose or act which the company have a right to perform; since, if permission should be arbitrarily withheld without good cause, the city clerk could be compelled in the proper tribunal to grant the permit. City of Westport v. Mulholland, 84 Mo. App>. 323; State ex rel. v. Murphy, 130 Mo. 10.
   GRAVES, J.

This is a prosecution for the violation of an ordinance of the city of Carthage, instituted by proper information of the city attorney before the police judge of said city. Defendants were convicted in the police court-and appealed to the circuit court, wherein was had a trial upon an agreed statement of facts, at which trial defendants were again convicted by that court, and this appeal is the result. The case reaches this court by reason of a constitutional question.

The city of Carthage is a city of the third class. In 1895 said city passed an ordinance granting to the American Electric Telephone Company of Kokomo, Indiana, the right to construct, operate and maintain telephone lines and operate a telephone exchange in said city, which said franchise and right was duly accepted by said company. This ordinance is quite lengthy and will not be set out, but such portions as may become necessary will be noted later. The remaining portion of such agreed statement of facts, which, in addition to outside facts, contains sections of different ordinances brought into question, is as follows :

“That said American Electric Telephone Company accepted said ordinance and complied with the terms thereof, and constructed an electric telephone system in the said city and in so doing erected and constructed a telephone line along and on Garrison avenue and Chestnut street in said city, where they cross each other, with the necessary poles, wires, etc., to operate same.
“4. That the Home Telephone Company is a. corporation duly incorporated in August, 1902, under article 6, chapter 12 of the Revised Statutes of Missouri, 1899.
“5. That the Home Telephone Company has by purchase and assignment acquired all the rights and liabilities of the American Electric Telephone Company under said ordinance. No. 317.
“6. That defendant G-arner is superintendent of the Home Telephone Company and defendant Joe Lawson is a foreman of said company in the work of constructing, maintaining and repairing of its telephone lines in said city.
“7. That the revised ordinances of said city for the year 1901 under the title of ‘ Misdemeanors, being part of article 6 of chapter 14, are sections 553 and 554, which are in force and effect and are as follows:
“ ‘Sec. 553. It shall be unlawful for any person to make or cause to be made any excavation in any sidewalk, gutter, street, avenue, alley or public highway in this city without first making application in writing to the city clerk for a permit to do the same. Said application shall he signed by the applicant and shall state the location, character and purpose of said excavation. Upon receipt of the application if the excavation described therein be not such as is expressly prohibited, by the ordinances of the city, the clerk shall grant to the applicant a permit to perform said work, which said permit shall designate the time in which said work shall be performed.
“ ‘Sec. 554. Any person who shall make or cause to be made any excavation in any sidewalk, gutter, street, avenue, alley, or public highway in the city of Carthage without first making application for and obtaining the permit as required by the preceding section, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not less than one dollar nor more than one hundred dollars.’
“8. That on the — — day of July, 1905, there was standing just inside the curb line of the sidewalk at the northwest corner of Garrison avenue and Chestnut street in said city, a telephone pole of said company, upon which were strung wires of the Home Telephone Company and also of said city. That said pole had been in said position and in use for a number of years. That by reason of the increase in business and increase in number of wires necessary to be strung thereon said pole had become too small and was too weak to carry' and hold such wires. And it became and was necessary to replace said pole with a newer and larger pole. And on the day charged in the complaint herein, defendant Garner as superintendent and defendant Lawson as foreman dug and caused to be dug an excavation in the sidewalk at the northwest corner of Garrison avenue and Chestnut street for the purpose of setting said new pole to replace said old pole, without first making an application in writing to the city clerk stating the location, character and purpose of said excavation and obtaining a permit from the city clerk of said • city as required by said section 554. That said excavation as it was being made was at a location in strict compliance with the terms of said ordinance No. 317 above set out and in compliance with chapter 20 of Revised Ordinances for the year 1901 of said city, which is now in force and effect, the material parts of which, as to this controversy, are as follows:
‘ ‘ ‘ Sec. 599. Any telephone or telegraph company doing business or desiring to do business in the city of Carthage duly incorporated under the provision of article forty-five, chapter forty-two, of the Revised Statutes of Missouri for the year 1899', is hereby authorized to set its poles, wires and other fixtures along or across and under any of the public streets and alleys of said city subject to the regulations hereinafter provided.
“ ‘Sec. 601. The poles used, as herein provided, shall be of good sound timber, not less than five inches in diameter at the upper end, straight, shapely, of uniform size, neatly planed or shaved, thoroughly painted, shall be supplied with iron steps, commencing not more than seven feet from the surface of the ground. All wires run upon such poles shall be run at a height of not less than twenty-five feet above the grade of the street.
“ ‘Sec. 602. Whenever said poles are erected upon any street of said city they shall be placed in all cases when practicable, on the outer edge of the sidewalk just inside of the curbstone, and on the line dividing the buildings one from the other, and in no case to be placed so as to obstruct the drainage of the street or injure or damage in any way the curbstones or other public or private property on the line of the said street or alley where said poles are located.’ ”

Defendants prayed for a peremptory instruction which was refused and they were adjudged guilty of a violation of sections 553 and 554 of the ordinances as above set out and as charged in the complaint. Their fine was fixed in the sum of one dollar each, and being unsuccessful in their motion for new trial appealed as aforesaid. Points made will be noted in the course of the opinion.

I. It is urged that sections 553 and 554 of the city ordinances, quoted above, and under which the defendants were convicted, are void as to the Home • Telephone Company, for whom defendants were working, and therefore void as to defendants in this case, for four reasons. Of these in their order. The first reason is thus stated in the brief of learned counsel:

“First. It delegates the- issuing of a permit to the unregulated official discretion of the city clerk: 1, as to whether the excavation is prohibited by ordinance; 2, the time in which the work shall be done. ”

By section 5837, Revised Statutes 1899, which was taken from the Act of 1893, the council had specific authority to regulate the erection of telephone poles, in this language: “The council may also regulate the . . . . erecting of ... . telephone, telegraph and electric light poles, and the. making of excavations through and under the sidewalks or in any street, avenue, alley or other public place within the city.”

This section is ample authority to empower the city council to legislate upon the subject. But in addition to that, the subject-matter of these two sections of the ordinance falls within the general police power of the city. The city has control of its streets and it owes to the public a duty to keep them in a reasonably safe condition and thereby avoid injury. If the city fails in this respect it becomes liable for ensuing damages. To our minds the question of the validity of this ordinance under the objection now in hand is fully settled by the case of Westport v. Mulholland, 159 Mo. 86. In that case we said:

“Defendant was convicted and fined in the police court of the city of Westport upon a charge of a violation of a city ordinance of which the first section is: ‘No person or persons shall tear up, dig up or 'otherwise interfere with any of the streets or alleys within the limits of the city of Westport without the permission first obtained from the board of aldermen of said city.’ .... That the city could not by its ordinance deprive the railroad company of its franchise or impair the obligation of its contract with the county court, treating the grant of the franchise and its acceptance as a contract, is a proposition of law that has not been gainsaid in this country since the decision in the Dartmouth College case in 1819. But that in the exercise of a franchise affecting the safety or well-being of the public the grantee is under the control of the police powers of the State is a proposition equally well settled. The question then is, is the authority of the municipality asserted under that ordinance the impairment of the contract or only a reasonable regulation of its exercise? In construing the ordinance for the purpose of testing its validity under the Constitution we must accord to it a reasonable and lawful purpose, if it is susceptible of such, and must assume that in its exercise a wise discretion will be used by the city officials, either of their own will or under compulsion of the courts.
“It is undoubtedly true that in maintaining and operating its railroad, repairs will be required which will necessitate the digging and tearing up of the street more or less, and the right to do this under reasonable police regulations is implied in the grant of the franchise, and if this ordinance is construed to mean that it is left with the city officers to say, arbitrarily, whether or not the railroad company may tear up the streets to make repairs, it would be equivalent to subjecting the existence of the franchise to the will of the board of aldermen and would be in violation of the Constitution.
“But if it means that when repairs of the railroad become necessary, requiring the tearing up of the street, and rendering it for the time being unsafe or inconvenient for travel, the railroad people must, before doing so, report to the city authorities and proceed in the matter under such reasonable police restrictions as they may prescribe, then it impairs no contract, and violates no provision of the Constitution, and we may add, that if that is what it means, the courts will hold the city to it, if it should attempt to use it to impair the railroad company’s rights. . . . The briefs of counsel are rich with learning on this subject, but we have quoted sufficient to- show the state of the law and to guide us to- a conclusion in this case. The ordinance in question is clearly a police regulation to protect the streets of the city.....The city is charged with the duty of preserving its streets in a reasonably safe condition for the public use; the lives of its inhabitants and the safety of their property demands the performance of that duty, and the city could not divest itself of it if it desired to do so-. If we say that the railroad company has a right to tear up the streets without regard to the city’s authority, then we have a power turned loose in the streets inconsistent with the particular sovereign power delegated by the State to the city, and liable to- be destructive of the public safety. A private citizen sometimes has the right to- dig up' the street, for example, if it be necessáry to connect or repair a broken connection with a water main, a gas main, a sewer, and that right the city authorities cannot arbitrarily refuse, but the citizen must comply with the reasonable regulations and obtain permission and do the work as the ordinance requires. The corporation has as much right as the citizen, but no greater; that is, it has the right to dig up the street when necessary for its business, but like the citizen it must apply to the constituted authorities for leave, and act under reasonable regulations. It is argued by the learned counsel for the railroad corporation that the power to grant permission implies the power to refuse it and thus puts the franchise at the mercy of the city authorities. But there is a law over the city authorities, as well as over the railroad corporation, and the ordinance is to be construed as designed to effectuate a lawful and not an unlawful purpose. It means that the railroad company cannot dig up the streets without permission of the board of aider-men, but it also means that the board of aldermen cannot refuse permission under reasonable regulations when the railroad company needs it.”

The two sections in question here are but reasonable regulations for the doing of work in the streets* By compelling an application to be made to the city clerk/ notice is brought home to the city as to what portions of its streets are liable to be put into a condition wherein danger to the traveling public may arise. By having this notice the city authorities can take such steps as may be thought best to guard and protect the public from danger and thus protect the city from damages which might otherwise accrue. Under these sections the clerk is obliged to issue a permit, unless the particular work contemplated is prohibited by ordinance. It is not a discretionary matter with the clerk. Should he refuse to grant the permit he can be compelled to do so by the proper action. His act is neither legislative nor judicial, but rather ministerial. At any rate the Telephone Company would have no trouble in procuring a permit under these sections of the ordinance, should a clerk be so arbitrary as to refuse it. The company, through these defendants, had the right to do this work, but the city in the exercise of its power over the streets, and its police powers, had the right to require the company to secure a permit, to the end that the city might be advised as. to where and when the work was to be done and being so advised could take the necessary precautions to protect the public.

In the Mulholland case, supra, when in the Court of Appeals, 84 Mo. App. l. c. 323, that court said: “It by no means follows that, since permission must be asked, it may be arbitrarily refused. Permission could not be refused for any purpose or act which the com-' pany have a right to perform. The ordinance does not attempt to take from the company any right; on the contrary, its words and enactment are an assumption that digging into and tearing up the streets will, at times, be necessary in the exercise of the rights of the citizen. And it only demands that when the right is exercised, the city must be consulted for the reasons aforesaid. If permission should be arbitrarily withheld, without good cause, I see no reason why it could not be forced in the proper tribunal.”

This has full application to the case in hand, and fully answers the complaint as to the discretion of the clerk. The duty imposed upon the clerk is not a legislative one as stated above. The city council having control over the streets and having power to legislate concerning the same, realized that at times and places excavations would have to be made, and for the public good, and in the exercise of the police power of the city, simply says that the city must be notified of the time and place of said excavations by application for a permit, upon which application a permit must be issued unless there is an ordinance prohibiting the work to be done. That it is not an attempted delegation of legislative power is plain. [City of Centralia v. Smith, 103 Mo. App. 438.]

II. It is next urged that the ordinance is unreasonable. To this we cannot consent. Whilst the telephone exchange is in the nature of a public service, yet we have the public likewise interested on the other side. It requires but little time and exertion to make an application under- the ordinance and when made the permit must go under the ordinance giving the telephone company the right to maintain its lines in the city, as well as under these sections, and when the application is made and the permit is granted the city can then protect the traveling public by proper precautionary measures. The ordinance upon its face is not unreasonable, and there is nothing in the facts before us to show it to be unreasonable. [St. Louis v. Theatre Co., 202 Mo. 690.]

III. In the third place it is contended that these sections violate the contract between the State and the Home Telephone Company, in that it imposes additional and onerous duties upon the company, not imposed by the general statutes under which the said company was incorporated, and herein lies the constitutional question. Under the laws existing at the time this company was organized in 1902, was section 5837, supra, which expressly gave the city the power to regulate the setting of telephone poles. This not only applied to the original setting but any subsequent setting. If it be said, as it is argued, that the laws of the State became the contract between the company and the State, this section became a part, as well as the specific sections'mentioned in article 6, chapter 12, Revised Statutes 1899. But aside from that as above stated these two sections are but the exercise of the police power of the city, and no contract, whether by way of charter or otherwise, can take it away from the city or even abridge it in the least. If the charter granted to a corporation, or the contract with the city, undertook to abrogate or abridge this power, to that extent such instruments would be void. The corporation must exercise its charter and franchise rights subject to such reasonable police regulation as may be prescribed by the city. [City of Westport v. Mulholland, 159 Mo. l. c. 92; State ex rel. v. Murphy, 130 Mo. l. c. 23; State ex rel. v. Murphy, 134 Mo. l. c. 575; Railroad v. Milwaukee, 97 Wis. l. c. 422; Dillon’s Municipal Corporations (4 Ed.), sec. 141.]

In the Wisconsin case it is said: “The charter of a corporation in no sense exempts it from police supervision and regulation. Such an exemption could never be implied from a mere grant of power, and it would not be valid if expressly conferred. It is frequently and rightly said that sovereign authority cannot divest itself of its ordinary police power over persons, whether natural or artificial, any more than it can of the power to make laws or to punish crime.”

These sections of the ordinance, whether taken alone or taken with the statutes, the charter, and other ordinances involved, in no way violate the constitutional provisions relied upon hy the defendants. The corporation is not prohibited from doing a single thing which the laws of the State, its charter and the franchise ordinance give it the right to do, but at most the doing of those things is simply subjected to reasonable police regulation.

IV. It is next urged that these provisions of the city ordinances are inconsistent with the laws of the State and repugnant to the legislative policy of the State as manifested by article 6 of chapter 12, Revised Statutes 1899. What we have said in the previous paragraph answers this contention. No contract rights, statutory rights or ordinance rights are taken away from the employer of these defendants by the two sections of the ordinance assailed in this case. In the exercise of a reasonable police power the city says to the telephone company, “before you do these things you notify us by making application to our city clerk for a permit, which we have provided that he must issue, and in this way enable us to protect the public from injury.” Such may be an inconvenience, but the exercise of the police power most generally occasions more or less inconvenience.

The defendants were rightfully convicted under the law and facts of the case, and the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    HENRY CROSSETT, Appellant, v. ROBERT FERRILL.
    Division One,
    February 26, 1908.
    1. EJECTMENT: Part of Plaintiff’s Land: Prima-Facie Case: Peremptory Instruction. Where there was substantial evidence that the thirty-foot strip of ground sued for was a part of plaintiffs land, that made out for him a prima-facie case, and the court sitting as a jury should have passed upon the facts, and refused a peremptory instruction to find for defendant.
    2. -: -: -: -: Effect of: Limitations. The giving of a peremptory instruction to find for defendant is, in effect, to withdraw all the other instructions given for both plaintiff and defendant. And where there was substantial evidence tending to prove that the thirty-foot strip of land sued for was a part of plaintiff’s land, the giving of a peremptory instruction to find for defendant, even where the case is tried before the court sitting as a jury, is error, although defendant introduced evidence tending to prove that he and those under whom he claimed had been in the exclusive, open and notorious possession of the strip for more than ten years.
    Appeal from Olay Circuit Court. — How. J. W. Alex- ■ wider, Judge.
    Reversed and remanded.

      Ralph Hughes and Martin E. Lawson for appellant.
    When two adjoining proprietors are divided by a fence which they suppose to be the true line, or which is built in ignorance of the true line, each claiming only to the true line, they are not bound by the supposed line, but must conform to the true line when ascertained. St. Louis University v. McCune, 28 Mo. 481; Schad v. Sharp, 95 Mo. 573; Brummell v. Harris, 162 Mo. 397; McCabe v. Buere, 153 Mo. 1; Roecker v. Haperla, 138 Mo. 33. This is especially true, where (as in this case) the adjoining owners ascertaining- that the fence is erroneously located, agree to let it remain until they can survey the entire section and get the lines located correctly. Even if adjoining proprietors agree upon a dividing line, but later, by long .course of conduct disregard it, the court can only enforce the true dividing line. Brummell v. Harris, 162 Mo. 404.

      II. F. Simrall for respondent.
    (1) This case, in the court below, turned upon questions of fact, and the decision of the court below on questions of fact will not be disturbed. The respondent, defendant below, denies that the strip of land in controversy was part of the southwest quarter claimed by appellant, and further claimed that appellant’s title, if any, was barred by limitation. There was conflicting testimony upon both these propositions, and the decision of the court below upon these questions of fact must stand. (2) The intent with which Camron held possession of the strip in controversy was a question for the court, sitting as a jury, to determine. His (Camron’s) testimony on that subject is, of course, admissible. But it should not be given much weight when contrasted with his acts and conduct while owning said land. (3) The acts of the adjoining owners show an agreement as to the line. Such an agreement may be shown by their acts and conduct. Eockwell v. Adams, 7 Cowen 761; Turner v. Baker, 64 Mo. 243; Blair v. Smith, 16 Mo. 281; Taylor v. Zepp, 14 Mo. 490; Brummell v. Harris, 148 Mo. 442; Schwartzer v. Gebhardt, 157 Mo. 104. (4) Plaintiff is estopped from recovering without regard to the Statute of Limitations. Taylor v. Zepp, 14 Mo. 490; Lindell v. McLaughlin, 30 Mo. 33; Major’s Heirs v. Eice, 57 Mo. 389; Battner v. Baker, 108. Mo. 316. (5) . The possession of Ferrill and Camron, his predecessor in title, was adverse, regardless of what Camron says now. His acts show that he claimed to the fence. Major’s Heirs v. Eice, 57 Mo. 316.
   WOODSON, J.

This is a suit in ejectment, instituted by the plaintiff, in the circuit court of Clay county, against tbe defendant, to recover a strip of land thirty feet wide off of the south side of the southwest quarter of the northeast quarter of section five, township fifty-two, range thirty, of said county.

The petition was in the usual form, and the answer was a general denial.

The cause was tried before the court, without the intervention of a jury; and the findings and judgment were for the defendant; and, after an unsuccessful motion for a new trial, he brought the case to this court by appeal.

The evidence discloses that the plaintiff and defendant are adjoining land-owners — the former owns the southwest quarter of the northeast quarter of section five, township fifty-two, range thirty, and the defendant owns the northwest quarter of the southeast quarter of the same section.

. As before stated, the plaintiff sues for the thirty-feet strip, before mentioned, which lies within defendant’s inclosure. The plaintiff introduced evidence tending to prove that the strip of ground was a portion of his forty above described; while the defendant, upon the other hand, introduced testimony tending to prove that the strip belonged to his forty, and was no part of plaintiff’s tract. The latter also introduced evidence tending to prove that he and those through whom he claimed title had been in the exclusive, open and notorious possession of the strip of land for more than ten years prior to the institution of this suit, claiming title thereto adversely to the world. The plaintiff’s evidence, upon the other hand, tended to contradict defendant’s adverse claim of possession.

The record discloses that the court gave a number of instructions for plaintiff and defendant, submitting their respective theories of the case to the court. In addition thereto, the court gave for the defendant the following instruction:

“7. The court instructs the jury that under the law and evidence in this case the plaintiff is not entitled to recover, and your verdict will therefore he for the defendant.”

Plaintiff duly objected and saved his exceptions to the action of the court in giving all of said instructions for defendant.

I. There was substantial evidence introduced by the plaintiff which tended to prove that the strip of ground sued for- was a part of the southwest quarter of the northeast quarter of said section five, and that he was the owner thereof at the time of the institution of this suit. That evidence clearly made out a primafacie case for him, and the court should have passed upon the facts, and should have refused defendant’s peremptory instruction numbered 7 to find for the defendant. [Barth v. Railroad, 142 Mo. 548-9.]

The instructions given by the court on behalf of the plaintiff, and the first six given at the request of the defendant properly declared the law of the case; but the giving of the seventh for defendant, in effect, withdrew all of the instructions given for both the plaintiff and defendant, and peremptorily required the finding to be for defendant.

That action of the court was clearly reversible error; and for that reason the judgment is reversed and the cause remanded for another trial.

All concur.


author: GANTT, C, J.

text:
    THE STATE ex rel. BOARD OF EDUCATION OF ST. LOUIS v. NAST, Clerk of the Circuit Court for Criminal Causes in St. Louis, and the CITY OF ST. LOUIS.
    In Banc,
    February 27, 1908.
    1. FINES: Right of School Board to: Constitutional Court. The Legislature cannot direct the fines imposed by a legal court as punishment for crime, to be paid into the city treasury. Such fines belong to the public school fund of the county, and the school board can compel them to be paid to it. But if such fines were collected by a court which has no constitutional and lawfully-created existence, then it had no right to impose fines, and the school board has no right to demand and receive them when paid.
    2. DEMURRER: Effective to Test Legal Right. It is a good ground of demurrer that plaintiff has no legal right, title or interest in the thing demanded; and in such case it makes no difference what' may be the nature of defendant’s title to the thing.
    3. COURT OF GENERAL SESSIONS. The St. Louis Court of General Sessions, created by the Act of the General Assembly of 1907, is, not a constitutional court, and had no authority to impose fines for misdemeanors on pleas of guilty or otherwise, and could neither try nor punish any offense against the laws of this State.
    4. -: New Provisions. The Act of 1907, creating the St. Louis Court of General Sessions, conferred upon it no civil jurisdiction of any character whatever, and said: It “shall have exclusive jurisdiction in the city of St. Louis, of the hearing and determination of all preliminary examinations of charges of felony, and the judge of said court shall possess all the power of an examining magistrate in felony cases as exercised by justices of the peace generally under the laws of this State;” and, “whenever, in the course of any proceeding in said court upon an information for felony, it shall appear that the defendant has been guilty, in the particular matter, of a misdemeanor only, the court shall discharge the defendant from the felony charge and may admit him to bail to answer an information for the misdemeanor to be filed by the prosecuting attorney in the court of criminal correction, or, in default of bail, commit defendant to jail......But if the defendant in such case desire to plead guilty to such misdemeanor and to receive sentence therefor, -waiving his right to a jury and to an information for the misdemeanor, the court may accept such a plea of guilty and assess such punishment as may he fixed by law for the offense, and issue a commitment or execution therefor.” Held, that this act did not create a court.
    5. -: An Anomaly. To denominate a body a court and to accord it criminal jurisdiction, without giving it any power to hear or determine a cause or render any judgment save by and with the consent of the accused, is an anomaly. It meets none of the constituent conditions which have always attended a court.
    6. -: Judgment: By Consent. A judgment of a court is the final determination of a competent court, upon the law and the facts of a given case, and the rule has become canonized that a party or parties cannot by consent confer jurisdiction over the subject-matter of a cause. A decision of an arbiter self-constituted or chosen by the litigants is no judgment. The law must confer the jurisdiction, the right to hear, determine and decide.
    7. -: Plea of Guilty: No Information. The provision of the Act of 1907, authorizing an acceptance of a voluntary plea of guilty “without an information for the misdemeanor” is in direct .contravention of the Constitution which says that “no person shall be prosecuted criminally for a felony or misdemeanor otherwise than by indictment or information.”
    8. -: Preliminary Examinations. The power to hear preliminary examinations on charges of felony' and misdemeanors is not judicial power, and does not make the body exercising that power a court.
    9. -: Conservator of Peace. Nor does an act by making an officer it designates as a judge a “conservator of the peace” thereby constitute him a court.
    10. -: Habeas Corpus. Conferring on the judge power to issue writs of habeas corpus and to determine the same, without conferring that power on the tribunal itself, is not an apportionment of the judicial power to the tribunal and does not make it a criminal court. Besides, proceedings by habeas corpus are civil, and not criminal.
    11. -: Void in Toto. The provisions of the Act of 1907, creating the Court of General Sessions, are so interwoven and dependent on each other, and the moving cause for its enactment is so plainly to be seen to be that the Legislature would not have enacted it had it not contained the section directing the fines collected by it to be paid into the city treasury, upon which was placed the burden of its support, that the whole act must be held to be unconstitutional and void.

      Mandamus.
    Alternative writ quashed.

      E. M. Grossman for relator.
    (1) The provision contained in section 17 of the ■act, directing the clerk of the court to pay all fines, penalties and forfeitures collected by him into the city treasury, is unconstitutional in that it violates section '8, article 11, of the Constitution of the State. State ex rel. v. Warner, 197 Mo. 650; State v. Newell, 140 Mo. 282; State v. Bockstruck, 136 Mo. 335, (2) A part of the law may be constitutionally invalid and the remainder of it valid, when the objectionable part may be properly separated from the other. State v. Bock-struck, 136 Mo. 335; State v. Newell, 140 Mo, 282. (3) In the event this court declares the law establishing the •'Court of General Sessions unconstitutional, the clerk of said court admittedly has collected and holds in his possession and has charged himself with certain sums as fines, and therefore should audit them to the credit of and pay them over to the Board of Education.

      Charles W. Bates and Charles P. Williams for respondent City of St. Louis.
    It is the essence of every court, as such, that it should have some jurisdiction. It is the character of that jurisdiction which determines the character of the court. Jurisdiction means the power to hear and determine disputed questions between adverse litigants. A criminal court must be, eco vi termini, a court that has and exercises criminal jurisdiction. A criminal court as such must have power to try — to hear and determine between the State and the defendant the disputed question of guilt or innocence of the defendant with respect to some charge of crime. Under our constitutional system, where an acquittal of the defendant is final, a criminal court must be a court whose judgment in that class of litigated questions is final. A court that cannot have a jury, that has no power to try any person for any crime, cannot be a criminal court within the meaning of the Constitution. Whoever may be entitled to such sums of money, collected or to be collected, the relator can .claim no title to, or interest in, them, for the reason that such exactions are not fines or penalties within the meaning of those terms as used in the Constitution, because they are not levied or collected by a body that has the legal right to assess or affix fines or penalties against any person whatsoever for the violation of any criminal law. It has always been a good ground of demurrer to plaintiff’s suit that the plaintiff has no legal right, title or interest in the thing sought; and it makes no difference under this rule what may be the nature of defendant’s title. State ex rel. v. Seibert, 130 Mo. 222; Bliss on Code Pleading (3 Eld.), sec. 448 ; 4 Wait’s Actions and Defenses, p. 358; Sanger v. Kennebec, 25 Me. 295; People v. Walker, 9 Mich. 328 ; Brownell v. Gratiot, 49 Mich. 414; Bank v. Runnells, 21 N. W. 211; State v. Benton, 31 Neb. 44; State v. Forrest, 8 Wash. 610; State v. Commissioners, 19 Wis. 237. Judicial -power means that power with which courts are clothed for the purpose of the trial and determination of causes — the power to hear and determine the subject-matter between the parties to a suit, and render a judgment or decree. U. S. v. Arredondo, 6 Peters 709'; Rhode Island v. Mass., 12 Peters 718; Riggs v. Johnson County, 6 Wall. 187. “ Jurisdiction” means the power to hear, determine and decide. State ex rel. v. Withrow, 108 Mo. 8; Babb v. Bruere, 23 Mo. App. 606; Gray v. Bowles, 74 Mo. 424; Daniels v. Tearney, 102 U. S. 418; U. S. v. Arredondo, 6 Peters 709. All of the judicial power of the State is, by the Constitution, vested in courts — in the courts specified in that instrument. The General Assembly bas no authority to either vest or apportion judicial power in any other tribunal than those specified in the Constitution. State ex rel. v. Ryan, 182 Mo. 349; State ex rel. v. Woodson, 161 Mo. 444; Jecker v. Montgomery, 13 How.- (54 U. S.) 515. The grant by the Legislature of some power usually exercised by, or even essential to the existence of courts, does not make a court of the tribunal in whom-such power is vested. Cases cited immediately supra; State v. Hathaway, 115 Mo.'37; U. S. v. Ferreira, 13 How. (54 U. S.) 39; U. S. v. Todd, 13 How. (54 U. S.) 51 (as a note by Chief Justice Taney). 'Nor can the Legislature make a piece of a court and patch it out with the loan of judicial action borrowed from a real court. State ex rel. v. Ryan, 182 Mo. 349. A court is Civil or criminal, or both, according to the character of causes it has authority, power or jurisdiction to hear and determine. The name by which it is designated'may add force to its character, but cannot control its powers or jurisdiction. State ex rel. v. Mason, 82 Mo. App. 242.

      Arthur N. Sager and Loomis G. Johnson for respondent Nast.
    (1) The court will not pass upon the constitutionality of an act in its entirety where the merits of th© controversy can be decided without doing so. State ex inf. v. Detonev, 166 Mo. 529; State v. Railroad, 112 Mo: 34; State ex rel. v. King, 44 Mo. 283. Nor will it declare the act, in its entirety, unconstitutional simply because one section of the act may offend. State v. Williams, 77 Mo. 319; State v. Bockstruck, 136 Mo. 335; State ex rel. v. Warner, 197 Mo. 650. (2) (a) The act in question, creating the St. Louis Court of General Sessions, does not come within the terms of article 4, section 3 of the Constitution of Missouri. State ex rel. v. Yancey, 123 Mo. 391; State v. Ebert, 40 Mo. 190; State ex rel v. Wilcox, 45 Mo. 453 ; State ex rel. v. County Court of Boone County, 50 Mo. 352; State v. Johnson, 66 Mo1. 202; State v. Etchman, 189 Mo. 648. (b) Article 4, section 31 of the Missouri Constitution gives the Legislature the power to establish criminal courts in counties having a population exceeding fifty thousand. Ex parte Renfrow, 112 Mo. 591; State ex rel. v. Yancey, 123 Mo. 391; State v. Wiley, 109 Mo. 444; State v. Daniels, 66 Mo. 192; State ex rel. v. Boone Co-. Court, 50 Mo. 317; State v. Etch-man, 189- Mo. 648. (c) The Constitution having conferred a specific grant of power upon the Legislature, legislation in pursuance of such grant will hot be held unconstitutional as special legislation. - State ex rel. v. County Court, 50 Mo. 324; State ex rel. v. Watson, 71 Mo. 370; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Yancey, 123 Mo. 401; State v. Eitchman, 189' Mo. 648. (d) Section 1, article 6, inferentially authorizes the establishment of courts of inferior jurisdiction by the Legislature, but the qualifications of that section by the provisions of section 22 and section 31 leave no doubt of the right of the Legislature to create a court of the character of the St. Louis Court of General Sessions. (3) The St. Louis Court of General Sessions, although of inferior jurisdiction, by the Act of 1907 is vested with judicial functions and charged with the administration of the laws of the State. It is therefore a court within the meaning of the Constitution and the law. Mason v. Moerner, 18 Mo. 570; State ex rel. v. Woodson, 161 Mo. 453; 8 Am. & Eng. Ency. Law (2. Ed.), 22; Sternberg v. State,’48 Neb. 312; Hobart v. Hobart, 45 Iowa 503; Tissier v. Rhein, 130 111. 110; In re Allison, 13 Colo. 528; State v. Judges, 32 La. Ann. 1261; Shoultz v. McPheeters, 79 Ind. 376. (4)' The city of St. Louis, having become a beneficiary under section 17 of the act creating the Court of General Sessions, receiving and collecting from the clerk of the circuit court the fees and forfeitures heretofore imposed and collected by the said St. Louis Court of General Sessions, is now estopped from pleading the unconstitutionality of the said act in a proceeding of this character. Daniels v. Tearney, 102 U. S. 415; St. Louis v. Consolidated Coal Co'., 113 Mo. 87.
   GANTT, C, J.

This is an application in this court for a writ of mandamus against the clerk of the circuit court for criminal causes in the city of St. Louis and against the city itself to require the defendant Nast, as clerk of said court, to pay over to the Board of Education of the city of St. Louis all fines, penalties and forfeitures heretofore collected by.him and which may hereafter be collected by him as clerk of the St. Louis Court of General Sessions.

The petition sets.forth that the Board of Education is a public corporation organized and existing under the laws of the State of Missouri, and as such is in charge of the public schools and of the school fund of the city of St. Louis; that the defendant Nast is the duly elected, qualified and acting clerk of the circuit court for criminal causes in the city of St. Louis, and that the defendant city of St. Louis is the municipal corporation of that name in the State of Missouri. It is then alleged that the Eorty-fourth General Assembly of the State of Missouri, at its general session at Jefferson City in 1907, passed an act creating “The St. Louis Court of General Sessions,” and that by section 5 of said act the clerk of the circuit court for criminal causes, in the city of St. Louis, is constituted ex-officio clerk of the said court of general sessions, and that pursuant to said provision defendant Adolph Nast is the qualified and acting clerk of said St. Louis Court of General Sessions. That by virtue of section 10 of said act said court is given power to declare forfeitures, and by section 11 of said act said court is given power to assess such punishment as may be fixed by law whenever a defendant shall plead guilty to a misdemeanor, and by section 17 of said act the clerk of said court is directed to pay all fines, penalties and forfeit-tires collected by him into the city treasury. That said section 17 violates section 8, article 11 of the Constitution of the State of Missouri, which provides: “All .... the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of penal or military laws of the State, .... shall belong to and be securely invested and sacredly preserved in the several counties as a county public school fund; the income of which fund shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of this State. ’ ’ That on or about the second day of July, 1907, one Peter Reiser pleaded guilty in the said court of general sessions to a misdemeanor, and was fined by said court in the sum of $100; that on or about the 31st of August, 1907, one Michael Forster pleaded guilty in the said court to a misdemeanor and was fined in the sum of $10; that on or about the 25th of September, 1907, one Carrie Hegel pleaded guilty in said court to a misdemeanor and was fined in the sum of $80; that on or about the 4th of October, 1907, one John Jones pleaded guilty in said court to a misdemeanor and was fined in the sum of $50; and on the 15th of October, 1907, Charles Brooks pleaded guilty and was fined in the sum of $25. That the defendant, Adolph Nast, clerk as aforesaid, had collected all of the above fines, amounting in the aggregate to the sum of $283, and has audited said sum to the benefit of the defendant, the city of St. Louis, and has refused and still refuses to turn over the sum to the Board of Education of the city of St. Louis, though often requested to do so. The prayer of the petition is that a writ of mandamus be awarded against the said defendant, requiring him, to pay over the amount of said fines and all fines which may hereafter he collected by him as the clerk of said court, to the Board of Education.

This court awarded the alternative writ of mandamus and the defendants waived the service of the same and entered their respective appearances in the cause and filed separate demurrers to the alternative writ. The circuit attorney appearing for the clerk, demurred on the general ground that the petition did not state facts sufficient to' constitute a cause of action against the clerk. The city of St. Louis, by the city counselor and his assistant, in its demurrer, assigns the following special reasons why the writ should not be made peremptory:

“1st. Because the facts stated in said writ are not sufficient to entitle the relator, the Board of Education of the city of St. Louis, to any relief whatever, and because the same does not state facts sufficient to constitute a cause of action.
“2nd. Because the alleged fines are not fines within the meaning of section 8 of article 11 of the Constitution of the State of Missouri, the same not having been imposed or assessed by any court.
“3rd. Because, on the facts stated, the relator, the Board of Education of the city of St. Louis, has no interest whatever in the sums of money alleged by it to be fines, for the reason that said pretended fines were assessed by the St. Louis Court of General Sessions, which is not and cannot be a court under the laws of this State.
“4th. Because the Act of the Legislature of April 15, 1907, creating the St. Louis Court of General Sessions, is unconstitutional and void,- in that it violates section 1 of article 6 of the Constitution of the State of Missouri, in that by said section the entire judicial power of the State is vested in the courts there named, together with the justices of the peace courts created bv section 37 of article 6 of the Constitution, and the St. Louis Court of General Sessions having no power to try and determine criminal or other cases is not a criminal court, and cannot assess or impose fines for the violation of the laws of the State of Missouri.
“5th. The said Act of the Legislature of April 15,1907, is unconstitutional and void, in that it violates section 53 of article 6 of the Constitution of the State of Missouri, and particularly those provisions of said section which prohibit, the Legislature from passing any local or special law creating offices, and prescribing the powers and duties of officers in counties, cities, townships, election or school districts; or any local or special law regulating the practice or jurisdiction of courts, justices of the peace, or other tribunals; or any local or special law in any other case where a general law can be made applicable, and providing that whether a general law could be made applicable in any case is a judicial question which shall be judicially determined without regard to any legislative assertion on the subject.
“6th. The said Act of the Legislature of April 15, 1907, is unconstitutional and void, in that it violates section 54 of article 4 of the Constitution of the State of Missouri, which provides that no' local or special law shall be passed, unless notice of the intention to apply .therefor shall have been published in the locality where the matter or thing to be affected may be situated, and no notice whatever was published of said act.
“7th. Because the provision of said Act of April 15, 1907, requiring the fines to be paid to the city of St. Louis, is an essential part of the same without which the Legislature would not have enacted the same, nor created said St. Louis Court of General Sessions, and said provision cannot be held void by reason of section 8 of article 11 of the Constitution without destroying the entire act.”

The circuit attorney practically concedes that section 17 of the Act of 1907 (Laws 1907, pp. 212. and 217), is unconstitutional in that it attempted to divert from the school fund of the city of St. Louis the net proceeds of the fines and forfeitures which by section 8 of article 11 of the Constitution of this State are required to be turned over to the school fund, but urges that in other respects the act is constitutional.

The issue is clear and single. The School Board of St. Louis invokes the mandatory writ of this court to compel the clerk of the circuit court for criminal causes in the city of St. Louis, to turn over to it the fines imposed for misdemeanors by the St. Louis Court of General Sessions now in his hands, and to command and require him to -pay over to the Board of Education all fines, penalties and forfeitures which may hereafter be collected by him as clerk of the said St. Louis Court of General Sessions. We are relieved in this case of all question as to the character of the fund, which the relator seeks to recover. It is a fund which has accumulated out of fines' imposed by the St. Louis Court of General Sessions for crimes, and if we should make the writ peremptory, it would be a command to the clerk of the circuit court for criminal causes in the city of St. Louis to pay over to the relator, the school board of the city of St. Louis, the clear proceeds of all of the said fines collected by him and now in his hands as clerk, and all such fines and forfeitures as shall hereafter be assessed and imposed by said St. Louis Court of General Sessions, and to do this, in view of the issues presented by this proceeding, we must determine and adjudge that the St. Louis Court of General Sessions is a lawful and constitutional court, duly authorized and adjudged to impose said fines and forfeitures, and has the power to adjudge a person guilty of a misdemeanor or other crime. To impose a fine as punishment- therefor eos vi termini assumes that there is a court legally constituted with power to impose and enforce the same. If the St. Louis Court of General Sessions is a constitutional and lawfully constituted court no doubt whatever can exist that the Board of Education of the city of St. Louis is entitled to the fines and penalties set forth in its application for the writ of mandamus in this case, and that section 17 of the Act of April 15, 1907 (Laws 1907, p. 212), is unconstitutional, and therefore void, inasmuch as it is a clear violation of the constitutional mandate. [Sec. 8, art. 11, Constitution of Missouri; State ex rel. Rodes v. Warner, 197 Mo. 650; In re Staed, 116 Mo. 537; State v. Clifford, 124 Mo. 492.] But if it shall appear, as is asserted by the demurrers in this case, that there is no such court, or what amounts to the same, that said St. Louis Court of General Sessions is not a constitutional and lawfully created court, then it had no right to impose, assess or enforce said fines, and relator had no right to demand and receive the same, as it has always been held a good ground of demurrer that the plaintiff has no legal right, title or interest in the thing demanded, and in such case it makes no difference what •may be the nature of the defendant’s title. The large and controlling question in this case then is, is the St. Louis Court of General Sessions a lawfully constituted and constitutional court with power and authority to hear and determine informations for misdemeanors and to adjudge the defendants therein guilty and to assess and impose fines therefor and enforce the same?

By section 1 of article 6 of the Constitution of Missouri, it is ordained: “The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts.” By section 31 of article 6 of the Constitution of Missouri, it is provided: “The General Assembly shall have no power to establish criminal courts, except in counties having a population exceeding fifty thousand, ’ ’ and section 37 of the same article provides: “In each county there shall be appointed, or elected, as many justices of the peace as the public good may require, whose powers, duties and duration in office shall be regulated by law.” Section 22 of article 6 provides: ‘ ‘ The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original'jurisdiction in all civil cases not otherwise provided for, and such concurrent jurisdiction with and appellate jurisdiction from inferior tribunals and justices of the peace as is or may be provided by law.” Section 28 of article 6 provides: “The General Assembly may, from time to time, provided one or more additional justices for any circuit composed of a single county.” In 1884 the Constitution was amended by creating the Kansas City Court of Appeals and providing for the territorial jurisdiction of the St. Louis Court of Appeals and the Kansas City Court of Appeals, and also providing that the Legislature should have’ power to create an additional court of appeals. The Constitution of 1875 also provided “that all criminal courts organized and existing under the laws of this State, and not specially provided for in this Constitution, shall continue to exist until otherwise provided for by law.” Thus it'will be seen that all the judicial power of this State is by the Constitution itself vested in courts specified and provided for in that instrument. The General Assembly may lawfully apportion among the courts mentioned in the Constitution the judicial power vested in them by the Constitution itself, subject always to the limitations and prohibitions imposed by the Constitution upon the Legislature.

In State ex rel. Haughey v. Ryan, Judge, 182 Mo. l. c. 355, it was said by this court In Banc: “All the judicial power in this State is by our Constitution vested in certain courts therein named [Art. 6, sec. 1, Mo. Const.]. The General Assembly has no authority to create any other tribunal and invest it with judicial power. It may and it has created boards with quasi-judicial functions, but those functions are not really judicial; they partake more of the character of ministerial offices.” In State ex rel. v. Woodson, 161 Mo. l. c. 453, it was again said: “By our Constitution the judicial power of the State, as to matters of law and equity, except as in the Constitution itself otherwise provided, is vested in certain courts therein named. [Sec. 1, art. 6, Const.]. The word ‘court’ is there used in its technical sense. A court is a judicial assembly. The judge of the court is its presiding officer. While the judge is often called the ‘court’, yet he is only so rightly called when the tribunal over which he presides is in session. Bouvier gives to the word ‘court’ this definition: ‘A body in the government to which the public administration of justice is delegated. The presence of a sufficient number of the members of such a body, regularly convened in an authorized place at an appointed time, engaged in the full and regular performance of its functions.’ The Supreme Court of California has said: ‘A court is a tribunal presided over by one or more judges, for the exercise of such judicial power as has been conferred upon it by law. Blackstone, following Coke, defines it as “a place where justice is judicially administered.” ’ ” In State v. Hathaway, 115 Mo. l. c. 49, it was said: “A judicial duty within the meaning of the Constitution is such a duty as legitimately pertains to an officer in the department designated by the Constitution as judicial.”

The Constitution of this State in article 6 has conferred jurisdiction over both criminal and civil cases and has expressly provided for the distribution of this jurisdiction. In Ex parte Snyder, 64 Mo. 58, the Act of March, 1875, establishing- a probate and criminal court in lieu of the common pleas court of Cass- county, which by its terms was not to take effect until January, 1876, was held unconstitutional, because it was not in force and existing at the time the Constitution went into effect on November 30, 1875. And a prisoner who was convicted in said court of grand larceny was discharged on habeas corpus on the ground that said court •was absolutely without jurisdiction to- try and convict him. Owing to the distribution of the jurisdiction into civil and criminal cases, the courts having jurisdiction of criminal cases .were designated as criminal courts and those having jurisdiction of civil cases became known as civil courts. There can be no valid prosecution for crime unless the court in which it is carried on is legally created and constituted and has jurisdiction of the offense and of the person of the defendant. Jurisdiction to punish the offense cannot be conferred by the consent of the accused. Clark, in his work on Criminal Procedure, page 4, says: “No court “can try and punish for any offense unless it is a legal court; that is, unless it is legally created and legally constituted. If the statute attempting to create a court is clearly unconstitutional, or otherwise clearly insufficient, there is no legal court, and, if a court purporting to have been so created assumes jurisdiction of an offense, its proceedings and judgments are an absolute nullity.....If the court or judge is neither a de jure nor a de facto court or judge, the judgments are a nullity, and may be attacked at any time.” And this court, in Ex parte Snyder, supra, said: “Numerous cases can “be instanced from the hooks, wheré the acts of an incnmhent of an office have been held valid, upon the ground that such incumbent was an officer de facto. But an officer of that description necessarily presupposes an office which the law recognizes. And a quite extensive research has failed to discover an instance where an incumbent has been held an officer de facto, unless there was a legal office to fill; and all the cases cited from our own reports were of that sort. And as there was no such office or court known to the law as the probate and criminal court of Cass county, the conviction of the petitioner was altogether coram non judice.” In State ex rel. v. Mason, 82 Mo. App. l. c. 242, it was well said: “A court is civil or criminal, or both, according to the character of causes it has authority or jurisdiction to hear and determine. The name by which it is designated may add force to its character, but cannot control its powers or jurisdiction.”

The foregoing considerations lead us now to an examination of the Act of April 15', 1907, and to determine, if we can, the nature of the jurisdiction which was conferred upon it and whether that jurisdiction is civil or criminal. On the part of the circuit attorney, it is said, that the said court was created to supply a defect in the criminal system as applied in the city of St. Louis; that the old system worked an inconvenience and delay, to have charges of felony made by the prosecuting attorney of the city and heard in the St. Louis court of criminal correction and then to require prosecutions for felony to be prosecuted by the circuit attorney in the circuit court. Section 1 of the act under consideration provides in terms, “That said court shall be a court of record, with criminal jurisdiction, as hereafter provided.” No civil jurisdiction of any character whatever is conferred or attempted to be conferred upon it. The sections of the act which purport to confer jurisdiction upon this court as a criminal court are as follows:

Section 4. “Said court of general sessions shall have exclusive jurisdiction in the city of St. Louis of the hearing and determination of all preliminary examinations of charges of felony, and in misdemeanors, as hereinafter provided, and the judge of said court shall possess all the power of an examining magistrate in felony cases as exercised by justices of the peace generally under the laws of this State. Said judge shall be a conservator of the peace, within the city of St. Louis; he shall have power to issue writs of habeas corpus in matters of a criminal nature, and determine the same, to administer oaths and affirmations, and to take and acknowledge recognizances in all cases within the jurisdiction of said court. He shall receive an annual salary of four thousand dollars, to be paid in monthly installments by the city of St. Louis.”
■ Section 10. “Said court shall have power to. take recognizances in all cases within its jurisdiction and to declare forfeiture of the same. "When judgment of forfeiture has been entered on any such recognizance, the clerk must certify and return to the circuit court division having criminal jurisdiction in said city the recognizance and a transcript of his record in relation thereto, to be proceeded on in said circuit court as other forfeited' recognizances in criminal cases in said circuit court.”
Section 11. “Whenever, in the course of any proceeding in said court upon an information for felony, it shall appear that the defendant has been guilty, in the particular matter, of a misdemeanor only, the court shall discharge the defendant from the felony charge and may admit him to bail to answer an information for the misdemeanor to be filed by the prosecuting attorney in the court of criminal correction, or, in default of bail, commit the defendant to jail to await such action by said prosecuting attorney; but no such commitment shall be for a longer period than forty-eight ■hours; and if no such information be filed in said court of criminal correction within such period, the defendant shall be discharged. But if the defendant in such case desire to plead guilty to such misdemeanor and to receive sentence therefor, waiving his right to a jury and to an information for the misdemeanor, the court may accept such plea of guilty and assess such punishment as may be fixed by law for the offense, and issue a commitment or execution therefor, with the same force and effect as if such defendant had been tried for such misdemeanor in the court of criminal correction, and the record shall show the whole proceedings. ’ ’

A critical examination of each of the foregoing sections will demonstrate that the said court had no power to hear, determine and decide the guilt or innocence of- an accused either for felony or a misdemeanor, save and except by section 11.

In the absence of such plea of guilt, it is perfectly obvious that no judicial power had been apportioned by the Legislature to said court for the trial of misdemeanors, because the preceding portion of said section 11 provides merely for a preliminary examination, and if it appears that the defendant has been guilty of a misdemeanor only, the court is required to bail him or commit him. to await the action of the prosecuting attorney in the St. Louis Court of Criminal Correction, which has jurisdiction to hear and determine misdemeanors. The Ceneral Assembly has power to provide a criminal court in counties having a population of fifty thousand, and could doubtless create another criminal court in the city of St. Louis, if the public weal required it, in addition to all the other courts of said city now having jurisdiction of criminal causes, but this act gives no such jurisdiction, unless it can be said that the single power to sentence a prisoner for a misdemeanor upon Ms plea of g'uilty can be denominated jurisdiction over criminal causes. It is certainly an anomalous situation to denominate a body a court and to accord to it criminal jurisdiction when sucb so-called court has absolutely no power to' bear or determine or render any judgment save by and witb tbe consent of tbe accused. Heretofore, we have understood that a judgment must be pronounced by a court, a body clothed witb authority of law, a body having tbe power to bear, determine and decide, since without this power tbe requiring of jurisdiction over tbe subject-matter and over tbe person would be an idle ceremony and a mockery. Tbe prerequisite of jurisdiction over both comes down to us from tbe common law of England and is embedded in our judicial system. A judgment of a court witb us is tbe final determination of a competent court upon tbe law and facts of a given case, whether in a controversy between adverse parties or in an ex parte proceeding, and tbe rule bas become canonized that a party or parties can not confer jurisdiction over tbe subject-matter of a cause by consent. Tbe law must confer tbe jurisdiction, tbe right to bear, determine and decide; a decision by an arbiter self-constituted or chosen by tbe litigants is no judgment. The law speaks by its own appointed and duly empowered organs, and their judgments must be responsive to the law and state of facts brought before them in tbe manner prescribed by law. Tbe power to so act is what we term jurisdiction. Power to bear is tbe power to bear both sides and bear all tbe issues affecting tbe matter. By this it is not meant of course that parties may not waive their right to make issues, for instance, by maMng default, but sucb waiver, default or admission does not and can not confer jurisdiction over tbe subject-matter which tbe court would not have were tbe facts proven instead of admitted. Tbe court as a matter of law either bas or bas not jurisdiction on a given state of facts, irrespective of whether one or both of the parties admit or deny them. It must needs follow that a tribunal with jurisdiction, only if a defendant or an accused consents, is not under our system and government a court.

The mere fact that the Legislature may call it a court does not mate' it a court within the meaning of our Constitution when it uses that term. "While the first section of the Act of 1907 declares that the St. Louis Court of General Sessions is “a court” and “a court of record” it qualifies those terms by the phrase, “as hereinafter provided,” obviously referring to the jurisdiction or powers, in the act afterwards conferred, and nowhere in the act is any jurisdiction apportioned to said court in criminal causes. The conferring of the' general attributes of a court of record is not an apportionment of any part of the judicial power of the State over a given class of causes. Those attributes presuppose a lawfully constituted court with a lawfully defined jurisdiction. It follows that while the power to assess punishment for a crime is judicial power, it can only be exercised by a court, and the sole power to enter a judgment upon a plea of guilty, dissociated from all other essential and indivisible elements of judicial action, must be held to be abortive and of no efficacy.

Moreover, the provision for accepting a voluntary plea of guilty, “without an information for the misdemeanor,” is directly in the teeth of section 12 of article 2 of the Constitution of this State, which ordains that, “No person shall be prosecuted criminally for a felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies.” Under this act we have the spectacle of a court of record rendering a judgment of conviction with no information or other foundation of record upon which to bottom that judgment and furnishing no basis to the accused for a plea of autrefois acquit or convict should he be again called into court for the same offense. We have in a word a plea of guilty to a charge, no information for which could by any possibility have been filed in said court. The result is that we have, notwithstanding all our constitutional guarantees, the punishment of a citizen by fine or imprisonment in jail without any criminal prosecution therefor, because in the absence of an information for some specific misdemeanor there is absolutely nothing of which' the said court could take jurisdiction under our Constitution and laws.

If such a tribunal can be called a court, it is a court which can not act except in plain violation and disregard of all safeguards of our Constitution.

Many other reasons occur to us why said court of general sessions is devoid of all those powers and the jurisdiction essential to entitle it to be recognized as a court within the meaning of our Constitution and laws, for the punishment of misdemeanors, but we forbear and proceed now to consider some of the other contentions advanced to show that it is a court. Thus we are referred to the exclusive jurisdiction in the hearing of preliminary examinations on charges of felony and misdemeanors, and it is asserted that this is the exercise of judicial power and the body upon whom it is conferred is a court. This is not a new question in this country. In Ex parte Gist, 26 Ala. 156, the application was for habeas corpus and certiorari to discharge the prisoner who had been committed and detained under a warrant of commitment for robbing the United States mail, issued by a justice of the peace of that State, in conformity to the thirty-third section of the Act of Congress, of September 24, 1789, 1 Stat. at Large, page 91, sec. 33. Said the Supreme Court of Alabama: “It is not denied that Congress may constitutionally pass the law for the violation of which the prisoner stands committed; but it is insisted for the petitioner that the thirty-third section of the Judiciary Act confers judicial poiver upon a state officer, in violation of section 1, article 3, and the second clause of section 2, article 2, of the Federal Constitution. We concede that the power or authority conferred by this act is in its nature judicial. The justice of the peace is called upon to exercise judgment and discretion; he is to judge of the sufficiency of the affidavit on which the warrant of arrest is founded; he must determine, upon the evidence adduced against the prisoner, whether there is reasonable ground of suspicion against him, so as to require that he should be put upon trial for the offense; and he is to imprison or take bail for the appearance of the party at court to abide his trial. But, although such authority involves in its exercise judicial functions, we are very clear it does not fall within the meaning of ‘ judicial power/ in the sense in which that term is used in the third article of the Constitution.....It is manifest, we think, that by the term ‘judicial power’ is here meant that power with which the courts are to be clothed for the purpose of the trial and determining of causes,” citing Prigg v. Com. of Pennsylvania, 16 Peters 539; Moore v. People, 14 How. (U. S.) 13; United States v. Ferreira, 13 How, 48; In re Kaine, 14 How. (U. S.) 103.

In Ex parte Pool, 2 Va. Cases 276, it was held that “a commitment is not such an act of judicial power as requires that it should be exercised by courts or judges within the meaning of the third article of the Constitution ; by judicial power is there meant such regular and permanent duties as belong to courts and judges in the ordinary and popular signification of the words. A justice of the peace, or any other person designated by the Act of Congress, may be authorized to commit, although they can not be required or compelled to do so.” Bishop, in his New Crim. Proc. (4 Ed.), volume 1, section 237, says: ‘ ‘ The magistrate, in exercising this jurisdiction, appears to act, not judicially, but ministerially; at least, he does not put forth ‘judicial power,’ within the meaning of the Constitution of the United States,” citing the foregoing cases.- The first section of the third article of the Constitution of the United States provides: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The first section of article 6 of our Constitution provides: ‘ ‘ The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court,” etc. The language and import of the two instruments are .to the same purpose, a grant and distribution of the judicial power, the one, in the United States; the other, in the State. If the provision for arrest and preliminary examination in the one does not confer “judicial power” within the meaning of the Federal Constitution neither is it an apportionment 'of the “judicial power” in the other. In Ex parte Bedard, 106 Mo. 616, the Act of 1869, creating the St. Louis Court of Criminal Correction, came before Division No. 2 of this court for construction as to the right of an accused to a change of venue from the said court in a preliminary examination and it was held that in preliminary examinations for a felony the judge of the said court did not act as a court/ but as an examining magistrate, but that in the disposition of misdemeanors it was a court, and the same conclusion was reached by the St. Louis Court of Appeals in State v. Hoeffner, 44 Mo. App. 543. [Laws 1869, p. 198, sec. 21.] Our statutes, Revised Statutes 1899, section 2441, vests this power in justices of the peace as distinct from their powers as inferior courts, and not as a grant or apportionment of the “judicial power” of the State. Bishop, in his Crim. Proc., sec. 239, defines a preliminary examination as “a mere expedient to prevent the suspected person from escaping’ or for preserving the evidence, or keeping the witnesses under control.” Certainly the conclusion of the committing magistrate in no sense partakes of a judgment, for whether held over or discharged it is no har to a further prosecution by the State. [State v. Whalen, 148 Mo. l. c. 290.] As said by the Supreme Court of Alabama, the fact that some of the duties devolving upon the examining magistrate partake of a judicial character does not bring them within the grant of the judicial power of the State and constitute the said court or the judge thereof one of the courts in which the judicial power is vested by the Constitution.

But it is said the judge of said court shall be a conservator of the peace, but it will not be seriously contended that this constitutes him a court, any more than it would make a sheriff or constable who from time out of mind were known as conservators of the peace in England before the office of justices of the peace was created. [Lambard, book 1, ch. 4; In re Barker, 56 Vt. 14.]

Again, it is to be noted that the judge of said court “shall have power to issue writs of habeas corpus in matters of a criminal nature and determine the same.” It is obvious that no such power is granted to the tribunal itself and hence no part of the judicial power of the State is apportioned to said tribunal in this regard and the power conferred upon the judge to issue such writs would not make his court a criminal court. The proceeding by habeas corpus is civil and not criminal. [Ex parte Tom Tong, 108 U. S. 556.] Of course, it need only be said that the giving of the judge power to administer oaths and affirmations and to take and acknowledge recognizances does not constitute the said judge a court. The power to take recognizances in all cases within its jurisdiction is rendered futile by the fact that no criminal cause can come before it as a court.

It must therefore be held that neither one nor all of the alleged powers conferred by the act upon this so-called court, in law, constitute it a court within the meaning of our Constitution. It could not possibly be anything but a criminal court and yet no jurisdiction over criminal causes, either felonies or misdemeanors, is apportioned to it, and the attempt to confer the other powers enumerated in the act does not constitute it a criminal court.

But it is said by the circuit attorney that notwithstanding section 17 of the act is void because unconstitutional, the remainder of the act can stand. Numerous cases attest that though one section of an act is unconstitutional that alone will not authorize the courts to declare the remainder of the statute void unless all of its provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning that it can not be presumed the Legislature would have passed one without the other. [State v. Williams, 77 Mo. l. c. 313; State v. Bockstruck, 136 Mo. 335; State ex rel. v. Warner, 197 Mo. 650.]

If the invalid and unconstitutional section was, so to speak, the consideration for the whole act or so interwoven into it that we can readily presume the Legislature would not have enacted it but for the unconstitutional section, then the whole act must fail. The sole purpose of this Act of April 15, 1907, was to create a special tribunal in the city of St. Louis. The act created no new offense and-prescribed no punishment. Other long established courts already possessed jurisdiction and authority over every matter - attempting to be given to this -court and that jurisdiction was well understood by the bar and public. To this system, this anomalous tribunal was added at the expense of the city, and the Legislature evidently thought that as the city was to bear this additional and apparently wholly unnecessary burden, it should be in part compensated with the voluntary fines which should be paid into the registry of the clerk, and while that provision would clearly have been unconstitutional, had a lawful and constitutional court been established, we do not believe it would have been passed but for the provision reimbursing the city to the extent of those fines.

This opinion has been extended to a greater length than we desire because we are unwilling to declare and adjudge an act of the Legislature unconstitutional without a full consideration of its provisions and without being convinced beyond a doubt of its unconstitutionality. In our opinion the said Act of April 15, 1907, attempting to create the said St. Louis Court of General Sessions, is entirely unconstitutional and void and the demurrers are sustained, and the alternative writ quashed.

All concur.


author: Ryland, Judge,

text:
    Metz, Respondent, vs. Eddy, Appellant.
    1. The supreme court will not reverse a judgment in a suit for wages originating before a justice of the peace, because the plaintiff was allowed to recover in the appellate court upon a quantum meruit, when the account filed stated a contract. In actions commenced before justices, a variance, to be fatal, must go to the substance of the action, and not merely to the form.
    2. That a verdict was against the weight of evidence is no ground for a reversal.

      Appeal from St. Louis Law Commissioner’s Court.

    Action commenced before a justice of the peace for abalance of wages as clerk. The plaintiff filed an account, in which he charged the defendant with his salary at the rate of $41 66 a month up to January 1st, 1854, without stating whether it was under a contract or not. After the 1st of January, and up to March 3d, 1854, when the plaintiff left, the defendant was charged in the account with a salary of $50 a month, under an alleged contract. The credit side of the account consisted of cash and goods, and the balance claimed by plaintiff was $36 02. At the trial de novo, before a jury in the law commissioner’s court, upon appeal, the plaintiff, without attempting to prove a contract, offered and was allowed to prove the worth of his services from January 1st to March 3d, 1854, to which the defendant excepted. There was a verdict for the plaintiff upon the evidence for the full amount of his claim, without instructions asked. The defendant afterwards filed his bill of exceptions and appealed.

      R. S. Voorhis, for appellant.
    1. The court below erred in allowing the plaintiff to waive the contract and proceed on a quantum meruit. (3 Phill. Ev. 108. 18 Johns. 169. 1 Johns. 414. 3 Mo. 366. 8 Mo. 118, 517.) 2. The verdict greatly preponderated against the weight of evidence. (11 Mo. 629. 13 Mo. 308.)

      A. V. Hofer, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

1. This was a suit commenced originally before a justice of the peace, thence- taken by appeal to the law commissioner’s court, where judgment was obtained against the defendant, and the case is brought here by appeal.

In this court, the defendant by his counsel alleges that the cause of action appears to have been for wages as a clerk — a quantum meruit — and the evidence shows it was on a special contract for so much money per month as clerk, and therefore not properly a quantum meruit.

The answer to this is, that the same cause of action was tried in both courts. The cause, as set forth before the justice, was tried de novo in the law commissioner’s court. These proceedings before the justices are generally conducted very loosely, without regard to specific distinctions of actions ; and if the same cause, the same subject matter of the action was tried in the appellate court as was tried in the magistrate’s court, that is enough. The law requires that it shall be the same cause of action tried on the appeal that was tried before the justice, so as to avoid surprise.

Now this being the same cause, the same subject matter of account between these parties, tried in both courts, it is sufficient ; and this court will not look into any technical inaccuracies as to the name of the action, whether it be for work and labor, or on account for wages, or quantum meruit, or on special agreement. We shall not reverse for any such imperfections. So the record shows us it was the same subject matter tried both times between these parties, we shall be content and not interfere.

2. This court has long since decided that the verdict being; against the weight of evidence, is no ground for reversal. No.» instructions were asked of the law commissioner in this case¿. The matter was left, upon the evidence, to the jury, and their-finding will not be set aside by this court, even where they find against the weight of evidence. It is their peculiar province to weigh the evidence, and we will not interfere in such cases.

Let the judgment be affirmed, the other judges concurring.


author: Scott, Judge,

text:
    Skinner, Appellant, vs. Thompson, Respondent.
    1. The trustee in a deed of trust upon a stock of goods seized in an attachment-suit may interplead for the goods or their proceeds, although he has sold under the deed of trust since the sale under the attachment.

      Appeal from St. Louis Law Commissioner’s Court.

    In addition to the facts stated in the opinion of the court, it-was found by the court below that the property was attached on the 19th of February, and sold by the constable under an order of court on the 2d of March following; and that it was sold by the trustee under the deed of trust on the 19th of March, but not taken away by the purchasers. The interplea was filed on the 2d of April.

      J. W. Skinner, for appellant,
    insisted that the trustee, -having received the proceeds of the sale under the deed of trust, and parted with his interest in the goods, had no right to interplead for the proceeds of the sale under the attachment.

      Blennerhassett & Shreve, for respondent.
   Scott, Judge,

delivered the opinion of the court.

Property was attached by the constable at the suit of the ^plaintiff, Skinner, against his debtor. That property had been previously conveyed by the debtor to a trustee, by deed duly 'recorded. The trustee claimed the attached property by an ante plea. The property attached was sold by an order of the court. The court found that the property attached is the same described in the deed of trust, with an immaterial variance. Now, whether the interpleader, being a trustee under a deed ‘duly recorded prior to the levy of the attachment, claims the property or the money arising from the sale of it, it is clear ¡that he is entitled to it. The constable’s sale took place before the -sale made by the trustee under his deed ; it cannot matter, then, what -property the trustee subsequently took and sold ; it cannot better the title of the attaching creditor to that which he seized, as it is found to be the property covered by the deed of trust.

As there was no review of the facts asked in the court below, and the law arising upon the finding is the only matter complained of, we cannot interfere with the judgment. We do not-,-see how it - could well be otherwise than it is. If there is ;any thing growing out of the “immaterial variance” found by ;the court between the property attached and that covered by -the deed of trust, it must be answered by the maxim de mini-mis non curat lex. The other judges concurring, the judgment will be affirmed.


author: Scott, Judge.

text:
    St. Louis Hospital Association, Plaintiff in Error, vs. Wegman, Administrator of Williams, Defendant in Error.
    1. Same case, 19 Bio. Rep. 609, and Northcutt v. Northmtt, 20 Bio. Rep. 266, affirmed.

      Error to St. Louis Circuit Court.

    This was a proceeding commenced in the St. Louis Circuit Court to establish the will of John Williams, previously rejected in the Probate Court. It is the same case reported in 19 Mo. Rep. 609, and there reversed for an insufficient finding of the facts.
    After it was remanded, it was again tried by the court without a jury, and the following facts found- in regard to the circumstances attending the execution of the will: “That Williams being too feeble from illness to write his name, P. B. Garesche, at the request and in the presence of Williams, wrote the name, “John Williams,” and the words, “his mark,” leaving a blank for the mark, for the purpose and with the intention on the part of said Williams that he should affix his mark thereto ; and that Williams, in fulfillment of such intention, did accordingly make his mark in the blank left therefor between the Christian and the sirname, designating the same as a signing or execution of the paper by him, and thereupon did acknowledge the mark as his signature, and did publish and declare the paper signed as and for his last will and testament,” &c.
    The will was attested by Garesche and another as witnesses,, but the attestation of Garesche omitted to state that he wrote the name of the testator at his request. Upon these facts, the Circuit Court refused to establish the will.

      A. J. P. Garesche, for plaintiff in error.
   Scott, Judge.

It appears that the testator’s- name was-signed to this will at his request. The case, then, is within the words of the statute. This subject was considered at the lasfc term of this court at Jefferson city, in tbe case of Northcutt v. Northcutt. It was there held that the cross could only be regarded as a signing within the statute, when 'that mark alone was used; that if, in addition to the cross, the name of the testator was subscribed, at his request, then it was a case within the statute. The other judges concurring, the judgment will be affirmed.


text:
    Bersie et al., Respondents, vs. The Steamboat Shenandoah, Appellant.
    1. Under the act concerning boats and vessels, (R. C. 1845,) there is no lien upon a steamboat for the use of a private wharf-boat placed at the St. Louis levee. This is not a demand for wharfage within the meaning of the act, when wharfage is still required to be paid to the city.

      Appeal from, St. Louis Law Commissioner’s Court.

    This was an action in rem against a steamboat upon a demand for the use of a wharf-boat belonging to the plaintiffs, lying at the St. Louis levee. It was agreed in the court below that the wharf-boat lay alongside the public wharf, and was .used by the defendant for three days, and that wharfage was paid to the city of St. Louis during that period. There was a judgment for the plaintiff.

      C. B. Lord, for appellant.

      Blackburn & McLean, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

The only question in this case, which we shall notice, refers to the demand and its nature, made by these plaintiffs of the defendant, the steamboat Shenandoah.

So far as it regards the right and authority of the plaintiffs to place their wharf-boat at the wharf, and charge for its use, that question is not noticed by this court.

This cause of action, as the agreed case presents it to us, is not embraced among the demands against boats and vessels, as one of those which become liens on the boat.

It is not in the first class, for that embraces only wages due to hands or persons employed on such boat or vessel for work done or services rendered on board the Same, except'for wages due the master or clerk. It is not in the second class, for that embraces only debts contracted by the master, owner, agent or consignee of such boat or vessel, on account of stores or supplies furnished for the use thereof, or on account of labor done or materials furnished by mechanics, tradesmen or others, in the building, repairing, getting out, furnishing or equipping thereof. It is not in the third class, for that only embraces sums due for wharfage or anchorage of such boat or vessel within this state. It is not in the fourth class, for that embraces only demands or damages accruing from the non-performance of any contract of affreightment or of any mal-performance of any contract of affreightment, or of any contract of transportation of persons or property entered into by the master, owner, agent or consignee of such boat or vessel, and for damages for injuries done to persons or property by such boat or vessel.

Now, these four classes embrace all demands which, by our statute, are liens against the boat. This demand of the plaintiffs cannot be placed properly under either of these. The wharf-boat cannot pretend to charge wharfage, for that the agreed case shows was duly paid to the city authorities by the Shenandoah. The opinion of this court is, that the plaintiffs have no cause of action against the boat. Their claim is not classed among the specific liens against the boat. As this view of the subject settles the case, so far as the Shenandoah is concerned, we content ourselves by declaring the law against the present demand of the plaintiffs. The judgment of the court below is therefore reversed ; the other judges concurring.