author: VALLIANT, P. J.

text:
    ELMER A. SWEARINGEN v. CONSOLIDATED TROUP MINING COMPANY, Appellant.
    Division One,
    May 30, 1908.
    1. NEGLIGENCE: Mine: Pleading: Evidence of Defective Keying. Where the petition charged that plaintiff’s injuries “were the result of the negligence of defendant’s foreman in failing to properly brace said posts and properly wedge and key such timbers and structure to the roof of the drift,” the admission of evidence tending to prove that the foreman stopped the work of building the mine timbering before it was properly wedged against the roof and braced, was not irrelevant or error, although plaintiff was injured by the falling of the timbering while he was on it endeavoring to throw off the cord wood and timbers in order that the posts and caps might be replaced which had been displaced by an explosion of dynamite after the work of constructing the timbering had been stopped. The evidence was competent, under the petition, not only to show defective construction and that defendant was liable therefor, but also as bearing on the question of defendant’s alleged negligence in sending plaintiff up on the timbers without making a more careful inspection than was made.
    2. -: -: -: Cured by Instruction. But even if the evidence was not relevant to prove negligence, the court cured the error by instructing the jury that defendant was not liable for defects in the original construction of the timbering, and that the only question for them was whether defendant exer- • cised ordinary care in taking down the timbers after they had been twisted by the explosion.

      3. -: -: Falling Timbering: Demurrer. In a mine drift, there had been erected, as timbering to support the roof, a structure of heavy timbers, resting for its foundation on four posts ten or -twelve feet high and twelve inches in diameter. On top of the posts were placed caps ten or twelve inches thick, reaching from post to post across the drift. Then came the crib, built of timbers six of eight inches thick, reaching nearly to the roof, and on them was placed cord wood. After this structure had been erected, but had not been keyed up and braced, plaintiff, a miner, and his helper, were told by the foreman to drill and shoot with dynamite, and they did so, and the explosion drove one of the posts out of place at the upper end and twisted the cap. The plaintiff when he returned after the explosion thought the post was out of place ten or twelve inches, but the superintendents said it was from eighteen to thirty inches. There was no light except that in the miners’ hats, and by them one standing on the ground could see the displacement at the top, and the foreman made no examination except from that standpoint, but having placed a timber two by ten inches under the cap, ordered plaintiff to climb up the structure and throw off the cord wood and timbers from the top, and assured him it was safe, and plaintiff in endeavoring to obey that order was injured by the falling of the structure. The superintendent of the mine and the general superintendent visited the mine, made a more careful examination and said there was a stope’ six or seven feet high on which plaintiff could have stood and with a stick pushed the timbers off from the top, and this testimony indicates that there was a safer way than by climbing the tottering structure, yet they gave the foreman no instructions, said that in his place they would have acted just as he did, and he took no notice of the situation, did not examine it from the stope or by means of any light other than that in the miners’ hats. Held, that the court properly refused defendant’s demurrer to the evidence:
    4. -: -: -: Instruction: Obeying Foreman: Dangerous Situation. The court instructed the jury that though plaintiff may have believed the act he was ordered to do by defendant’s foreman was not safe, “yet this does not and should not defeat a recovery by him if you further find from the evidence that the plaintiff was negligently ordered into this position by said foreman and was told by him that it was safe and that plaintiff relied upon said assurance of safety and upon said order, provided that you further find that the danger of the timbering or structure falling was not of such a manifest or glaring nature as to threaten immediate injury in case the plaintiff obeyed the order.” Held, to correctly state the law. The servant has the right to rely upon the superior knowledge of his roaster, if it be a matter in which the master may be presumed to have superior knowledge, and also to trust that his master has exercised in his behalf the reasonable care the law requires of the master; and in this case it was the duty of the foreman, who had ample time after an explosion had displaced a post and a cap of the timbering of the mine, to make an examination, and it was his duty, not the plaintiff miner’s, to make the investigation. And the evidence of defendant’s superintendents is that the danger was not so obvious and glaring that plaintiff was guilty of contributory negligence in attempting to execute the foreman’s orders, who specifically assured him it was safe.
    5. -: Damages: Ability to Earn Livelihood'. An instruction, which tells the jury that in estimating plaintiff’s damages they ' may “take into consideration the . . . loss of his leg, his inability by reason of such loss to earn a livelihood,” does not mean that the loss of his leg rendered plaintiff totally incapable of earning a livelihood, and does not so inaptly express a true measure of damages as to constitute reversible error.
    6. -: -: Excessive Verdict: $10,000. A verdict of ¡¡¡10,-000 for a miner, twenty-four years old, who lost his leg, endured much physical and mental suffering and up to the time of the trial had not been able to do any work, is large, but not so excessive as will authorize the court to set it aside.
    Appeal from Jasper Circuit Court. — Hon. Howard Gray, Judge.
    Affirmed.

      A. E. Spencer for appellant.
    (1) The court erred in giving instruction 3 on behalf of plaintiff. The question for the jury was whether the condition was such that a reasonably prudent man would have refused to obey the order. If so, plaintiff was guilty of contributory negligence although the danger of the timbers falling was not so manifest or glaring as to threaten immediate injury. Bradley v. Railroad, 138 Mo. 309; Halliburton v. Railroad, 58 Mo. App. 34; Aldridge v. Furnace Co., 78 Mo. 565; Chicago, etc., Co. v. Sokowiak, 148 111. 573; Crooks-ton Lumber Co. v. Boutin, 149 Fed. 680; Musser, Etc., Go. v. Brown, 126 Fed. 141; Cudahy Packing Co. v. Skoumal, 125 Fed. 470. (2) The court erred in refusing to instruct the jury that plaintiff could not recover, and in submitting the case to the jury. The evidence is that one of the posts was misplaced through the act of plaintiff. That it was then braced and supported by plaintiff and his fellow workman, was care: fully examined by the representatives of defendant, and thought by them to be safe to work upon; that the proper way to handle the situation was to go upon the pen and throw down the timbers; that plaintiff was directed to and did go on the pen and throw down some of the' timbers, and that for some reason not shown the pen fell and injured plaintiff. This does not convict defendant of negligence. Nolan v. Shickle, 3 Mo. App. 300; Hamilton v. Eailroad, 100 S. "W. 671; Beebe v. Eailroad, 108 Mo. App. 138; Haynie v. Hammond Packing Co., 103 S. W. 580; Howard v. Eailroad, 173 Mo. 524; Eickaly v. Boiler Works Co., 108 Mo. App. 138; Bowen v. Eailroad, 75 Mo. 274; Patton v.-Eailroad, 179 U. S. 658; Eailroad v. Sanders, 166 U. S. 620; Montana Copper Co. v. Van Burén, 123 Fed. 61; Shandrew v. Eailroad, 142 Fed. 320; Omaha Packing Co. v. San-dusky, 155 Fed. 897.

      William B. Skinner with Thomas & Hackney for respondent.
    (1) The third instruction given by the trial court, of which complaint is made by appellant, in principle and in the very wording thereof, is correct, and the same has been many times approved by the appellate courts of this State. Carter v. Baldwin, 107 Mo. App. 217; Harriman v. Eailroad, 27 Mo. App. 435; Huhn v. Eailroad, 92 Mo. 440; Stephens v. Eailroad, 96 Mo. 207; Warner v. Eailroad, 62 Mo. App. 184; McGowan v. Eailroad, 61 Mo. 528; Hamilton v. Eich Hill Mining Co., 108 Mo. 364; Hammon v. Central Coal & Coke Co., 156 Mo. 232; Holmes v. Brandenbaugh, 172 Mo. 53; Clippard v. Railroad, 202 Mo. 432; Shepherd v. Railroad, 189 Mo. 362. (2) The trial court properly refused defendant’s instruction in the nature of a demurrer to the evidence, and the cause was properly submitted to the jury, and the evidence amply supports the verdict and judgment herein. Gallagher v. Edison Illuminating Co., 78 Mo. App. 576; Sackewitz v. Am. Biscuit Co., 78 Mo. App. 144; Blanton v. Dold, 109 Mo. 64; Turner v. Plaar, 114 Mo. 335; Hamilton v. Railroad, 100 S. W. 671; Holweg v. Bell Telephone Co., 189 Mo. 165; Folk v. Schaffer, 186 Pa. St. 253; Beebe v. Railroad, 103 S. W. 1019. (3) Instruction 4, given for plaintiff, on the measure of damages, of which defendant complains, is correct. A similar one was given in Carter v. Baldwin, supra, and it was not even criticised, and the form thereof has been many times approved by this court. Plaintiff testified that he had been unable to work since his injury.
   VALLIANT, P. J.

— Plaintiff recovered a judgment for $10,000 as damages for personal injuries which he alleges he sustained through the negligence of the defendant. From that judgment the defendant has prosecuted this appeal.

Defendant is a mining corporation and plaintiff was one of its employees. The mine in which the accident occurred consisted of a shaft about one hundred and thirty feet deep and a main drift extending therefrom eighty or one hundred feet, and from this main drift a side drift was being cut which at the time of the accident had been cut to a distance of thirty to forty feet. It was in this side drift that the accident occurred. The condition of the earth through which the drift was being cut was such that it required what is called “timbering” to support the roof. The drift was about fourteen feet wide and estimated to vary from sixteen to thirty feet high. The work of timbering and that of chtting the drift was done under the supervision and direction of a foreman named Harry Needles called “the ground boss.” The plaintiff was one of the gang of laborers doing the work. He was twenty-four years old. He had been doing mining work five or six years, and had been doing this kind of underground work about a month. The structure called timbering is thus described in appellant’s brief: “This was done by placing two upright posts of proper diameter opposite each other near the two walls of the drift. Resting on top of these posts was a heavy timber, called a cap, running across the drift. A few feet ahead of this were put in two other posts and a cap. Then timbers, called stringers, were laid over the two caps, and on this was built up of timbers a pen, decreasing in size to correspond with the arch of the roof of the drift. "When this pen got near the roof the remaining space from top of pen to the roof was packed tightly with cordwood. The four posts, with caps and superstructure, were called a set of timbers. ’ ’

The testimony for the plaintiff tended to show that Needles, under whose personal supervision the work of timbering was being done, stopped the work before the last set of timbers had been “keyed up or braced.” Defendant objected to that evidence on the ground that it was attempting to prove an act of negligence different from that charged in the petition; the court overruled the objection and allowed the evidence, not as tending to prove negligence, but as going to show the condition of the set of timbers, and later at the request of the defendant the court gave an instruction to the jury that they should not consider it as any ground for holding the defendant liable. As soon as the last set of timbers was finished, which was about 2 or 3 o ’clock in the afternoon, the ground foreman, Needles, directed the plaintiff and his work-mate to drill a hole in the face of the drift and shoot hy exploding dynamite in it. This the plaintiff and his mate immediately set about doing and finished it about 3:30 or 4 p. m. and loaded it to shoot, then they retired to a safe place until the shot was fired.

When Needles gave the order to plaintiff to drill the hole and shoot he went off to some other part of the mine, and was not present during the performance of that work. After the shot was discharged plaintiff and his coworker returned to the scene and they there discovered that by force of the explosion one of the four upright posts on which the set of timbers was built had been knocked out of line, estimated by plaintiff to be ten or twelve inches at the top, by other testimony estimated at eighteen inches or two feet, the cap had been partly displaced, and four or five sticks of the cordwood had fallen to the ground, but from where he stood, with the poor light and the smoke he could not see the condition of the pen or how far it was out of line. Plaintiff and his companion then undertook to brace the leaning timber and did so as best they could with the means at hand, and after moving the fallen cordwood out of the path of the shovelers they went out of the mine to get their suppers, their regular day’s work being then ended. After the plaintiff left the mine, Needles returned to the scene of the explosion and examined the situation and then he went out of the mine and going to plaintiff just before supper told him that he would have to work extra and go under ground after supper and fix the timbers that had been displaced by the explosion. Accordingly after supper plaintiff returned with Needles and others to the scene. There were five or six men in all there; each had the usual miner’s lamp in his hat, which was the only light in the place. The testimony was to the effect that the condition of the crib, the extent to which it had been affected by tbe explosion, conld not be well seen from where the men stood with the miner’s lamps. The illuminating power of a miner’s lamp was stated to be about that of an ordinary tallow candle. The foreman, Needles, with the help of one of the men, put a brace under the cap of the leaning post, using for that purpose á two-by-ten piece of timber. Then Needles ordered the plaintiff to climb up the structure and throw the timbers off. The plaintiff’s testimony was that Needles said to him: “ ‘Bustle on up there and throw off those timbers; let’s hurry up and get them timbers straightened up,’ and I asked him if it was safe. Q. "What did you say to him? A. I said, ‘Harry, is that safe?’ and he said, ‘Yes, it can’t fall,’ and I commenced climbing on up and I began — my partner asked the same — and we went up and went to throwing off this pen, or we went up, and I think I threw off a stick or two; I had been up there a very few minutes before it fell down.” In his fall the plaintiff was buried in a mass of fallen timbers and received very serious injuries. The other man who was working with the plaintiff and who was also ordered by Needles to go up and assist in throwing off the timbers started to climb up but before he reached the top the structure fell. Other witnesses who were present at the accident testified substantially as did the plaintiff. A witness testified that it was so dark in the place that when the plaintiff was climbing up the witness could not see his form but could see only the lamp in his hat as he fell.

Needles was not present at the trial. The defendant introduced evidence tending to show that it had made an effort to obtain the presence of Needles as a witness but was unable to do so. The plaintiff introduced evidence tending to show that Needles was within reach of subpoena and defendant could have produced him if it had desired.

The superintendent of the mine was a witness for the defendant. He saw the structure after the explosion, but was not present at the accident. He testified that the drift at that point was fourteen to sixteen feet high, that the upper end of the post that had been dislocated by the explosion was two or two' and a half feet out of plumb. He gave no orders to Needles about it, did not consider it a very serious situation; in his opinion the proper way to do in the condition was to send a man up, just as Needles had done in this case, to throw off the timbers from the top; he did not regard it a dangerous operation, said it was the usual way of doing it. On cross-examination he said there was a stope six or seven feet high on which a man could have stood and with a stick have pushed the timbers off.

There was a general superintendent of defendant’s mines, who was also a witness for defendant. He was in this mine shortly after the explosion and examined the set of timbers to see the extent of the displacement. In his opinion the post was out of plumb about ■ eighteen inches or two feet. He went upon the pile of dirt which had been shot out with the blast; on this pile "of dirt was some cordwood that had fallen down; from that point of view he examined the timber set that had been creeled over; standing on the pile of dirt his forehead was a little higher than the cap; he gave the situation a careful examination, after which he said to those who were with him, “This is bad luck but it don’t amount to anything; it is only a loss of a couple of hours time to take it down and raise it again. ’ ’ He then went away and dismissed it from his mind, went home and thought no more about it until later in the evening he was informed by telephone of the accident. He said that the twisting of a set of timbers in that way was a very common incident in mines. He gave no orders to the superintendent of that mine who was with him when he made the inspection, nor to Nee-dies, the ground foreman, because it was a simple matter that Needles needed no instructions about, the way Needles went about rectifying the matter was the usual and proper way.

I. Defendant assigns as error the admission of the evidence tending to prove that Needles stopped the work of building the set of timbers before it was properly wedged against the roof and braced. Defendant objected to this evidence when it was offered as irrelevant, that is, not tending to prove any fact in issue, that the only act of negligence in issue was the sending of the plaintiff up on the timbers in the condition in which they were after being dislocated by the explosion. The petition distinctly states that the ground foreman stopped the work before the set of timbers was so keyed and braced, and charges that it was an act of negligence and that plaintiff’s injuries “were the result of the negligence and carelessness of defendant’s agents and ground foreman, Harry Needles, in failing to properly brace said posts and properly wedge and key such timbering and structure to the roof of the drift, in failing to properly inspect and ascertain the defective and dangerous condition of such timbering and structure, and in carelessly and negligently ordering plaintiff to climb to the top of the same and in assuring him that it was safe to do so, when, in fact, it was not safe,” etc.

This evidence was competent, not only for the limited purpose for which the court admitted it, but also as bearing on the question of negligence in sending the plaintiff up on the timbers without making a more careful inspection of the condition than was made. Whilst, as it was shown by the evidence, the dislocation or disarrangement of a set of timbers by explosions in the mines was not an unusual occurrence, yet it is but reasonable to assume that a set of timbers braced and tightly keyed against the roof would have greater strength of resistance and would be likely to suffer to a less degree in its structure from such an explosion than one not braced or keyed. The ground foreman is charged with the knowledge that this set of timbers was not so braced or keyed, and when he was informed of the dislocation of the timbers by the explosion he should have taken that fact into account and examined the condition with all the more care. The same force will knock a loose set of timbers into greater disarrangement than a set tightly keyed against the roof of the drift and braced. But the court at the request of the defendant instructed the jury that defendant was not liable for defect in the original construction and erection of the timbers, and that the only question for them was whether defendant exercised ordinary care in the taking down the timbers after the same had been so twisted. Therefore, if the evidence had been irrelevant, the error was cured by the instruction. Defendant has no cause to complain on that point.

II. The court refused to instruct the jury that the plaintiff was not entitled to recover. This is assigned as error.

In support of this proposition the appellant in its brief says: “The evidence is that one of the posts was misplaced through the act of'the plaintiff.” We do not so understand the evidence. There is no evidence tending to show that in drilling the hole, loading it with dynamite and exploding it the plaintiff did anything wrong or negligently. He did what he was ordered to do and what he was hired to do. The timbers were driven out of place by force of the explosion, a result which defendant’s general superintendent testified was not an unusual occurrence.

Needles was the defendant’s foreman in charge of that work. Both the superintendent of that mine, and the general superintendent of all of defendant’s mines in that group, testified that the work to be-done was particularly in the scope of Needles’ -duty and they gave him no advice or direction because it was his business and he needed none. The plaintiff was the defendant’s servant under Needles, Needles had hired him, could discharge him, gave him orders about his work, as to the plaintiff Needles was the master or stood in the master’s place.

We have for our contemplation a structure of heavy timbers, resting for its foundation on four posts ten or twelve feet high and twelve inches in diameter, on the top of the posts first came the caps ten or twelve inches thick reaching from post to post across the drift, then the crib, built of timbers six or eight inches thick, reaching nearly to the roof, and then came the eordwood. The explosion drove one of these posts out of place at its upper end, the plaintiff thought when he returned after the explosion that it was out of place ten or twelve inches, but with the smoke and dim light he could only estimate; the defendant’s superintendents, who saw it later, said it was eighteen inches or two or two and one-half feet.

That much of the structure was visible by aid of the miner’s hat lamp to one standing on the ground; beyond that it was dark. To what extent the timbers constituting the superstructure were displaced could not be seen from that standpoint and with that light. Needles made no examination of the structure except from that standpoint and with that light, yet he ordered the plaintiff to climb up the structure and throw off the timbers from the top; in his endeavor to obey that order, the plaintiff suffered the injuries for which he brings this suit.

Could the trial court, viewing the situation as thus shown by the evidence, have said as to a matter about which there could he no two honest different opinions that the foreman in sending the plaintiff into that danger exercised the reasonable care that a master should observe for the safety of his servant?

The superintendent of this mine and the general superintendent of the group of mines, each visited the scene and each made a more careful examination than, as it seems, did Needles, yet neither thought it worth while to give Needles any instructions; they each testified that in his place they would have done just as he did. The mine superintendent said there was a stope six or seven feet high on which one could have stood and with a stick have pushed the timbers off from the top. The general superintendent said that he climbed to the top of the pile of earth thrown out by the explosion which was so high that standing on it his forehead was a little higher than the cap. The testimony of both those witnesses for the defendant indicates that there was si safer way to get those timbers down than sending a man to climb up the tottering structure. Yet Needles took no notice of that situation, did not even examine it from the stope or the pile of earth, but, without attempting to see beyond the limited distance dimly lighted with the lamps in the miners’ hats, he ordered the plaintiff to climb up' the structure. The testimony shows that as soon as he gave the order and assured the plaintiff there was no danger, he turned and walked away himself and was not standing there when the structure fell. In the absence of evidence as to where he went and for what purpose, we will not infer that he went away to be out of reach of what he suspected might be danger, but unless he could show why he went away it is reasonable to infer that he regarded the situation as of trifling interest and not worthy of his personal supervision. He miscalculated the danger, he did not examine the situation as he might have done — he did not make any but the most casual or superficial observation. Our estimate of the case is that there was not only some evidence tending to prove that Needles was negligent, bnt the evidence to that effect was very strong and there was none to the contrary, saving only the opinion evidence of the two superintendents that the way Needles did was the usual way and the best way. The court did not err in refusing the instruction that would have taken the case from the jury.

III. By instruction three for the plaintiff the jury were instructed that though the plaintiff may have believed the act he was ordered to do was not safe, “yet this does not and should not defeat a recovery by him in this action if you further find and believe from the evidence that the plaintiff was negligently ordered into this position by said Needles and was told by said Needles that it was safe and that the plaintiff relied upon said assurance of safety and upon said order, provided you further find that the danger of the timbering or structure falling was not of such a manifest or glaring nature as to threaten immediate injury- in case the plaintiff obeyed the order.” This is assigned as error.

The law is correctly stated in that instruction as will be seen by reference to the numerous cases cited in respondent’s brief, among which are Hammon v. Central Coal & Coke Co., 156 Mo. 232; Sheperd v. Railroad, 189 Mo. 362; Clippard v. Railroad, 202 Mo. 432.

The plaintiff knew that the structure had received a severe blow, that one of the posts on which it rested had been driven out of place, and this knowledge caused him to be apprehensive of danger. Therefore, when ordered to climb up on the structure, he asked the foreman if it was safe and on being assured by the foreman that it was safe he immediately proceeded to execute the order. He testified that he trusted in the assurance the foreman gave him.

In an emergency of that kind the servant has the right to rely not only on the superior knowledge of his master, if it be a matter in which the master may be presumed to have superior knowledge, but also to trust that his master has exercised in his behalf that reasonable care that the law requires of a master. The plaintiff was a young man of twenty-four years, he had been working in mines of this kind several years, but had been at this kind of work, timbering and drifting under ground, only about a month. He was working under the eye of the man who had hired him and who could have discharged him, the man whom the mine owner had distinguished above the ordinary miner, presumably for his superior skill; therefore when ordered to go into the place,of danger he asked the man who gave the orders if it was safe and when the man assured him that it was he trusted him. From the time the shot that displaced the post was fired to the time when the plaintiff returned to the work thé foreman ,had ample time and opportunity to have made a careful examination and the plaintiff had the right to trust ■ that he had done so. The defendant cannot say in this case that the danger was so obvious and glaring that plaintiff was guilty of contributory negligence in at- ■ tempting to execute the order, because the evidence of the defendant’s two superintendents is to the contrary; the danger was there and easily to be discovered, but it was hidden in the darkness of the arched roof of the drift. Nor can the defendant say that the ■ danger could have been discovered as easily by the plaintiff as by the foreman, because in the first place there was no duty on the plaintiff to make the investigation, while there was a duty on the foreman to investigate, and also because the means of investigating were with the foreman, not the plaintiff. There was no error in giving that instruction.

IY. In instruction four for plaintiff on the measure of damages the jury were told that they might “take into consideration the mental and physical- pain and suffering endured by plaintiff since his injury in consequence thereof, the loss of his leg, his inability by reason of such loss to earn a livelihood for himself.” Appellant complains of the item of “ inability to earn a livelihood” in that instruction. The interpretation that counsel for appellant put on those words is that the court assumes that the loss of the leg rendered the plaintiff totally incapable of earning a livelihood. That is not the natural interpretation or the interpretation that a jury would he likely to put on the words. The fact that a man with one leg amputated five or six inches above the knee may earn a livelihood is a fact of such common knowledge that no one would say to the contrary or be misled as to the meaning of such words in that connection. But it is also a fact of equally common knowledge that the loss of a leg may impair the capacity of a man to earn a livelihood in certain lines of work; it is likely to close some avenues of employment to him, or else render him less efficient in such. That is all that this instruction means to say on that point, and it is a subject of such common sense knowledge that the jury could not have been misled by it. The instruction might have been more accurately worded, but it is not reversible error.

V. It is also contended that the damages awarded are excessive.

It is impossible to calculate the amount necessary to compensate one for such injuries with anything like mathematical accuracy, or as you would calculate the impairment of the value of property. There is a mental as well as a physical suffering, there is a closing of the way into which a young man’s ambition may have led him to hope for a bright future, disappointment and humiliation may take the place of hope and manly pride, and a blight falls upon Ms young life. Who can put down in dollars and cents the exact amount that will compensate him? The evidence was that the plaintiff’s leg was crushed and mangled in the fall and it was amputated in the hospital a few days afterwards, he also had a cut on the head, he was confined in the hospital about two months and suffered a great deal, and up to the date of the trial, which was about a year after the accident, he had not been able to do1 any work. The jury awarded him $10,000 damages. That is a large award, but there is nothing in the record to indicate that it was not the calm, impartial judgment of the twelve men who composed the jury. We do. not feel justified in setting aside the award. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    R. G. WHITELAW, Appellant, v. ELLA W. RODNEY.
    Division One,
    May 30, 1908.
    t. WILL: Construction: Partition: Evidence: Map of Lands. In construing a will the court should take into consideration the nature and character of the property devised, as well as the conditions and circumstances surrounding the testator and the property at the time the will was made. Therefore, it is held in this case, by which it is sought to partition land, which it is claimed was not by the will to be partitioned, that it was not error to admit in evidence the will through which both parties - derive title and in connection therewith a plat of the land.
    2. PARTITION: Cross-Easements. Where it is manifest from the language of a will, by which the testator gave certain designated lots to his wife in severalty, and certain other lots in severalty to his brother, that it was his intention to create cross-easements in favor of each of them over a strip of ground twenty feet wide lying between lots devised to them, as an appurtenance thereto, in order that they might have access to the rear of their respective properties, and that such intention, owing to the fact that each devisee was given separate lots on each side of said strip, would be defeated if partition of the strip were permitted, partition will he denied, although the will- gives the strips to them as tenants in common.
    3. -: -: This Will. The language of the will by which a twenty-foot strip was devised was: “I give and deyise to my beloved wife.....and my brother ....'. the following real estate.....; the same to be used by them in common in connection with the realty herewith devised to them and adjoining same on the north.” Bold, .that the will created a cross-easement in the twenty-foot strip thereby devised in order that it might be used in connection with the other lots ' devised to each in severalty, and that neither was entitled to partition of the strip without the consent of the other.
    4’. -: -: How Created. All that is necessary to create an appurtenant cross-easement is a clear manifestation of the intention of the person who is the source of the title to subject one parcel of land to a restriction in its use for the benefit of another, whether that other belongs at the time to himself or to third persons, and sufficient language to make that restriction perpetual.
    5. TAXING COSTS: Partition. Where the question of the taxing of costs was not called to the attention of the trial court, the Supreme Court will not consider the question. In this case the petition in partition was dismissed at plaintiff’s cost, and on appeal it is held that the petition was properly dismissed, and the court refuses to consider the question of taxing costs.
    Appeal from Cape Girardeau Circuit Court, — Hon. Henry G. Riley, Judge.
    Affirmed.

      Robert L. Wilson and M. A. Dempsey for appellant.
    (1) The devise to Ella Wall Rodney and Louis L. Rodney vested title in them in fee simple. (2) The provision that the premises devised were “to be used by them in common in connection with the realty herein devised to them, and adjoining same on the north,” is merely precatory or declaratory, and does not amount to a restriction or a condition subsequent, because: (a) So construed it would be repugnant to and inconsistent with the grant of a fee. A limitation or restriction repugnant to or inconsistent with the estate granted is void. State ex rel. v. Tolson, 73 Mo. 320; Chew v. Keller, 100 Mo. 362; Roberts v. Crume, 173 Mo. 572; Small v. Field, 102 Mo. 104; Roth v. Rauschenbusch, 173 Mo. 572; Underwood v. Cave, 176 Mo. 1; McDowell v. Brown, 21 Mo. 60; 13 Ency. Law and Proe., 669; Shep. Touchstone, 131; Ladd v. Whitney, 117 Mass. 201; Thompson v. Swoope, 24 Pa. St. 474; Batchelor v. Macon, 69 N. O. 545. (b) The provision is void because indefinite as to time and unlimited and uncertain as to character of use. Restrictions as to use, to be valid as not inconsistent with a fee, must be partial and temporary. G-ray v. Blanchard, 8 Pick. 284; 6 Am. and Eng. Ency. Law (2 Ed.), 506. (c) The provision does not constitute an easement, because the parties who are to use the land are the joint owners of the fee. An owner of land cannot have an easement in his own estate in fee, for the plain and obvious reason that in having the jus disponendi — the full and unlimited power of making any and every possible use of the land — all subordinate and inferior rights are merged and lost in the higher right. 14 Ency. Law and Proc., 1188. (3) The statutory provision that no partition shall be made' contrary to the express intention of the testator (R. S. 1899, sec. 4383), has no application, for the reason that the will does not prohibit the devisees jointly or severally from alienating their interests, and one of the devisees has actually aliened his interest. Prohibition against alienation is a test as to whether or not the statute applies. Sikemeier v. Galvain, 124 Mo. 371. (4) The court having found in its judgment that plaintiff had a cause of action at the time of filing the petition, it is reversible error to charge plaintiff with all the costs.

      Benj. F. Davis for respondent.
    (1) Respondent maintains that testator has impressed an easement upon appellant’s undivided half of said twenty-foot strip for the benefit of the lots devised to respondent lying on the south thereof and on respondent’s undivided half of said twenty feet for the benefit of the lots devised to appellant’s grantor also lying on the south thereof and now held by appellant, and that said cross-easements are not easements in gross, but are easements appurtenant to said other realty, and follow Louis F. Rodney’s part of said lots when assigned to appellant, and that said twenty feet do not constitute an ordinary estate in common that may be partitioned under our statute. Sharp v. Cheatham, 88 Mo. 498; Barr v. Lamaster, 32 L. R. A. 451; Fisher v. Fair, 14 L. R. A. 333; Wash, on Easements, ch. 2, par. 5, p. 257; Hagerty v. Lee, 20 L. R. A. 635; 2 Wash. Real Prop. (4 Ed.), pp. 303, 304; R. S. 1899, sec. 4383; Cubbage v. Franklin, 62 Mo. 364. In the construction of wills the true intent and meaning of the testator should be considered. R. S. 1899, sec. 4650;'Mead v. Jennings, 46 Mo. 91. (2) The taxing of the costs of the suit against the plaintiff was never questioned nor raised in the trial court, and has been raised for the first time in this court on appeal. Appellate courts will not review matters of exception to' which the attention of the trial court was not directed by motion for new trial. McCoy v. Farmer, 65 Mo. 244; Elsenrath v. ICallmeyer, 61 Mo. App. 430.
   WOODSON, J.

— This is a suit for the partition of certain real estate situate in the city of Cape Girardeau.

William F. Rodney was the common source of title. On May 8, 1899, he executed his last will, by which he devised to the defendant, Ella W. Rodney, his wife, and to Louis L. Rodney, his brother, several tracts of land, including the one in question. After the will was duly probated, Louis L. Rodney, on November 6, 1903, by deed, sold and conveyed all his right, title and interest in and to said lands to Rodney G. White-law, the plaintiff, who brought this suit.

Ella W. Rodney appeared and filed her answer of general denial, and afterwards an amended answer, in which she alleged that since the institution of the suit the mutual rights and interests of plaintiff and defendant as to all the lots of land described, excepting one, had been amicably “adjusted, partitioned and settled “by proper deeds (which is admitted by plaintiff), and as to the one lot excepted she denies all the allegations in the petition, excepting the allegation that plaintiff and defendant claim title thereto by virtue of the will of W. F. Rodney as the common source of title. She further denies that plaintiff is entitled to partition thereof for the reason that said will devises to defendant and to Louis L. Rodney in severalty four other pieces of land abutting on said real estate on the south, one on the north and one on the west, and that said will devises the real estate now in question to defendant and to plaintiff’s grantor, and expressly provides that the same shall be used by them in common in connection with the other realty devised to them, and the defendant avers “that by said devise the whole of said realty now sought to be divided is impressed with an easement in favor of this defendant and this plaintiff as the grantee of said Louis L. Rodney, and that the common use thereof by both defendant and plaintiff is an absolute necessity for the proper and full use and enjoyment of said other abutting and adjoining real estate, and that the same is not subject to partition.”

The replication puts in issue the construction placed on the will by the defendant, alleges that the testator did not in his will express the intention that said premises should not be partitioned, either by the consent of the parties or by order of court, and denies that said realty is impressed with an easement in favor of plaintiff and defendant perpetual in its nature and not susceptible of partition, but avers that plaintiff and defendant are each seized of an undivided interest in said premises in fee simple, and are jointly, as such owners in fee, possessed of the whole of said premises, and that therefore all lesser titles, estates and easements are merged in the fee simple estate.

The plaintiff, to sustain the issues, offered the stipulation as to the adjustment of the claims of the parties as to the real estate named in the petition, except one lot described, and also the admission as to common source of title, defendant talcing under the Rodney will, and plaintiff as grantee of Louis L. Rodney, who also took under the Rodney will. Plaintiff offered his deed from Louis L. Rodney, and the will of W. F. Rodney, that portion of the will material to the present issues, being as follows:

“I give and devise to my beloved wife, Ella Wall Rodney, and my brother, Louis Lorimer Rodney, the following real estate situated in the city of Cape Girardeau, and the State of Missouri, described as follows:

“ (a) Fractional part of Lot number five, in Range E, in said city and State, beginning at the northeast corner of lot number four, on Main street, and running northwardly along the east line of said lot five, twenty feet, thence westwardly and parallel with Broadway street ninety-one and thirty-one hundredths (91.31) feet; thence southwardly parallel with Main street twenty feet to the north line of lot four; thence eastwardly along said line and parallel with Broadway street ninety-one and thirty-one hundredths (91.31) feet to the place of beginning; the same to be used by them in common in connection with the realty herewith devised to them and adjoining same on the north; and also one hundred and fourteen feet by one hundred and eighty-three feet in size.”

The defendant offered article A, section 4, of the will (the portion above set out) and in connection therewith a plat of the lot and adjoining premises, which were admitted in evidence over specific objections. It was admitted that the east 46.02 feet of lot 4, range E, were entirely covered by brick buildings. This was all the evidence offered. The court in its decree found that the plaintiff at the time of bringing suit had a cause of action, but that as to the lot or strip remaining in controversy, the petitioner had no cause of action, and orders the petition dismissed at the costs of plaintiff.

The plat referred to in the evidence is on the opposite page.

I. The first contention of appellant is that the court erred in admitting in evidence article A, in section 4, of the last will and testament of William P. Rodney, and in connection therewith the plat accompanying the statement of the case. Counsel for appellant objected to the admission of that evidence for the following reasons:

1st. Because said evidence was irrelevant, incompetent and immaterial.

2d. Because it elucidated no issue in the case as made by the pleadings. That there is no language in article A, section 4, of said will, that can be held to have created a right in the nature of an easement or servitude in said land and attached it to one parcel as the dominant estate and made the other subservient thereto for all time to come. Such.a right will not be inferred by a forced construction or amplification of language beyond its natural meaning. Further, because the law is jealous of a claim of easement and perpetuities, and the said article A, section 4, of the will does not, in clear or precise language, create an easement, and no easement can be presumed from said section and plat. There was no evidence from the will or aliunde that any easement or servitude in said land was established by use or custom.

We are of the opinion that the evidence mentioned was clearly admissible, for the reason that the right to have the land in question partitioned depends upon the proper construction to be placed upon the will of said William F. Rodney.

In construing a will the intention of the testator should never be lost sight of, and, in order to throw light upon and gather that intention, it is the duty of the court to take into consideration the nature and the character of the property devised as well as the conditions and ■ circumstances surrounding him and it at the time the will was executed. By thus looking at the will, the court is placed, as far as may be, in the situation he was in when the will was executed, and is thereby better enabled to gather the intention as expressed in the provisions thereof. [Tebow v. Dougherty, 205 Mo. 315; Small v. Field, 102 Mo. 104.]

We are, therefore, of the opinion that the action of the court in admitting said evidence was proper.

II. This brings us to the consideration of the other and the real question involved in the case.

It is the contention of the appellant that by the terms of the will Ella W. Rodney and Louis L. Rodney, the devisees, took the strip of ground in question in fee, as tenants in common, and that under the law it is subject to partition. While upon the other hand, respondent maintains that said testator has impressed an easement upon appellant’s undivided half of said twenty-foot strip for the benefit of the lots devised to respondent lying on the south thereof and on respondent’s undivided half of said twenty feet for the benefit of the lots devised to appellant’s grantor also lying on the south thereof and now held by appellant, and that said cross-easements are not easements in gross, but are easements appurtenant to said other realty, and follow Louis P. Rodney’s part of said lots when assigned to appellant, and that said twenty feet do not constitute an ordinary estate in common that may he partitioned under our statute.

When we consider the facts that the devisees named in the will were the testator’s wife and brother; the character of the other devises made to them, each in severalty; the location of those various lots and their relative positions with each other, as well as the manner in which they abut upon this twenty-foot strip; the nature, character and sizes of the buildings and improvements upon the other lots devised; their accessibility or inaccessibility with and without this strip being considered as a way; the width of the strip, only twenty feet, which if divided in kind would give each of them a strip only ten feet wide and ninety-one and thirty-one hundredths feet long — too narrow for residence or business purposes, and running at right angles to the other property, with the east and west quarters of the south ten feet adjoining the property of the defendant, while the center half thereof would abut that of the plaintiff, and the north strip of ten feet would adjoin none of their said properties; and last but not least the language of the habendum clause (if I may so term it) of the will itself, which is as follows: “The same [the twenty-foot strip] to be used by them [the devisees] in common with the realty herein devised to them and adjoining same on the north,” leaves no room to doubt but what it was the intention of the testator to create cross-easements in favor of each of the devisees over this strip of ground, twenty feet in width, in order that .they might have easy access to the rear of their respective properties.

All that is necessary to create an easement of the kind under consideration “is a clear manifestation of the intention of the person who is the source of title to subject one parcel of land to a restriction in its use for the benefit of another, whether that other belongs at the time to himself or to third persons, and sufficient language to make that restriction perpetual.” [2 Wash. Real Property (4 Ed.), sec. 8, p. 303.]

The foregoing rule is in harmony with all the authorities; and, when applied to the facts of this case, we are unable to see any escape from the conclusion that it was the intention of the testator to devise a right of way over the strip of land in question to his wife and brother, in order that each of them might have access to the rear of the property devised by him to them. Otherwise the value of their property would be greatly depreciated, and, under the circumstances, the strip of ground itself would be practically worthless.

Nor can there be any question about the right of way in question being appurtenant to and running with the lands devised. “Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming. They must inhere in the land, concern the premises, and be essentially necessary to their enjoyment. They are of the nature of covenants running with the land, and like them must respect the thing granted or demised, and must concern the land or estate conveyed.” [Wash, on Easements (4 Ed.), sec. 5, p. 257.]

The same principle is announced by this court in the case of Sharp v. Cheatham, 88 Mo. 498. There, adjoining owners of premises made an agreement under seal, but not acknowledged or recorded, whereby one was to build a party wall and the other when he should use it in the construction of his building was to pay one-half of the cost thereof. The court held that the legal effect of the agreement was to create cross-easements as to each owner, and that a purchaser of the estate with notice would take it with the easement, burdened with the liability to pay-one-half the cost of the construction of the wall whenever he should avail himself of its benefits.

We have carefully considered the authorities cited and relied upon by learned counsel for appellant for a reversal of the judgment, but we are of the opinion that they do not enunciate a rule in conflict with the views herein expressed.

Upon an inspection of the record, we find that the question of taxing the costs of the case was not called to the attention of the trial court, and for that reason it would be improper for this court to consider that question.

Finding no error in the record, the judgment is affirmed.

All concur, except Valliant, P. Jabsent.


author: CRAVES, J.

text:
    RAYMORE SPECIAL ROAD DISTRICT of Cass County, Missouri, by G. B. SIMMONS et al., Commissioners, Appellants, v. A. M. HUBER, President, WESLEY KING, Trustee, and GEORGE EVANS, Composing Township Board of Raymore Township, Cass County, Missouri.
    Division One,
    May 30, 1908.
    1. SPECIAL ROAD DISTRICTS: Act of 1905. The Act of 1905, providing for the creation of special road districts and the construction of permanent roads by means of benefit assessments against the property included in the district, does not apply to counties under township organization, and, therefore, the township board is not required to turn over to the county treasurer for the use of the commissioners of said special road district the road funds pertaining to the township where the special road district and the township are commensurate.
    2 -: -: Inharmonious Statutes. Sections 14 and 15 of the Act of 1905 are out of harmony with the Township Organization Act, in that, where the special road' district is less. or greater than a township, there might be different rates of taxation upon the property within the district and upon that without the district but in the township. Besides, said sections 14 and 15 do not specifically require the township board to turn over the township funds and tools to the district board, .and said sections do not otherwise expressly repeal the provisions of the Township Organization Act giving to the township board the right to the funds and property of the township, and repeals by implication are not favored.
    Appeal from Cass Circuit Court. — Hon. N. M. Bradley, Judge.
    Affirmed.

      Allen Glenn for appellants.
    (1) The rule for interpretation of a statute is to ascertain the legislative intent. The intention expressed, technical rules should he rejected. It is not a question, can all purposes of the law he carried . out? but what was the legislative intention in the enactment? Bowerman v. Min. Co., 98 Mo. App. 312; Stubbs v. Mulholland, 168 Mo. 73; Walsh v. Walsh, 15 Mo. 519; State ex rel. v. CorMns, 123 Mo. 67; Grimes v. Reynolds, 94 Mo. App. 584; St. Louis v. Lane, 110 Mo. 258; 6 Current Law, p. 1539: (2) A special road district, organized, supersedes the township board’s control over the property and means of the territory within the new district; the commissioners of such special district are clothed with the managing authority over the affairs and property of such organized district.

      Chas. W. Sloan for respondents.
    (1) While it is conceded to be true that it is the province of courts in the interpretation of a legislative act to give effect if possible to the legislative intent, yet there are certain rules, which courts will follow in getting at the intention of the Legislature, (a) The effects and consequences of any proposed construction of a law may properly be considered as an aid in ascertaining the probable intention. Kane v. Railroad, 112 Mo. 39; Bowers v. Smith, 111 Mo. 56; Chouteau v. Railroad, 122 Mo. 393; State ex rel. v. Slover, 126 Mo. 652; Hilgert v. Pav. Co., 107 Mo. App. 393; Collier Estate v. Western Pav. & Supply Co., 180 Mo'. 381. (b) And where words and phrases, in different sections of an act, are contradictory, or inconsistent with the general scope and design of an act, or would lead to absurd consequences, courts will not give a literal construction, where it would manifestly defeat the purpose intended; indeed, the courts to get at the true interpretation of a law will he justified in rejecting words or phrases, when necessary. Conner v. Railroad, 59 Mo. 293; Monks v. Strange, 25 Mo. App. 15; Searritt v. Jackson Co., 89 Mo. App. 592; State to use v. Heman, 70 Mo. 441; Bingham v. Birmingham, 103 Mo. 351; St. Louis v. Dorr, 145 Mo. 497; State v. Moody, 202 Mo. 127; 26 Am. and Eng. Ency. (2 Ed.), 655. (c) All the statutes treating of the same subject-matter should be • considered, so that the meaning of any particular provision may he enlightened by a view of the general purpose pervading the entire law of the subject. Crimes v. Reynolds, 184 Mo. 688; State ex rel. v. Cordon, 197 Mo. 59. (2) The whole scheme of taxation for road purposes and the rate of taxation for public roads and repairing same in counties not under township organization is radically different from that which obtains in counties under township organization. State ex rel. v. Cordon, 197 Mo. 55; R. S. 1899, sec. 9436 (as amended by Laws 1901, p. 234); R. S. 1899, sec. 10321 (amended by Laws 1903, p. 272); R. S. 1899, sec. 10324 (amended by Laws 1901, p. 254); R. S. 1899, sec. 10326 (amended by Laws 1907, p. 419); R. S. 1899, sec. 10327 (amended by Laws 1903, p. 274); R. S. 1899', sec. 10328 (amended by Laws 1901, p. 255).
   CRAVES, J.

— Plaintiffs are an alleged body politic, styled “Raymore Special Road District of Cass connty, Missouri,” and its three commissioners. Defendants constitute the township board of Raymore Township, in Cass connty, Missouri, a political subdivision of said county — one of the municipal townships of said county. Plaintiffs filed their petition and application in the circuit court of Cass county for a writ of mandamus against defendants, whereby, “said plaintiffs ask the court to grant, issue and award a peremptory writ of mandamus to said defendants, the township board of Raymore township, compelling and commanding them, the said township board, to order the trustee of said township' to pay over to the county treasurer of Cass county, Missouri, said funds, to-wit: all the road funds of said township for the use of plaintiffs as commissioners of said Raymore Special Road District and to turn over and deliver to said commissioners all tools and implements belonging to the road districts of said township and to recognize said Raymore Special Road District as a body politic as aforesaid and these plaintiffs as commissioners thereof, and for such orders in the premises as may be proper and meet. ’ ’

The petition previously pleads all facts necessary to show the creation of a special road district under an act of the Legislature approved April 14, 1905, and avers that said special road district so created included all the territory embraced in the municipal township of Raymore. Whether it contains more territory is not averred.

The defendants entered their appearance, waived the formal issuance of the alternative writ, so that the petition may be taken as and for the alternative writ. Defendants then moved to qnash the alternative writ of mandamus, for the alleged reason: “Because said writ of mandamus does not state facts sufficient to constitute a cause of action. ’ ’ This motion to quash was sustained, and judgment entered against plaintiffs. Prom this judgment, plaintiffs in due form and in due time appealed.

The real question involved is whether or not the act of the Legislature approved April 14, 1905 (Laws 1905, p. 282), is applicable to counties having adopted township organization. We should have stated that by the alternative writ it appears that Cass county, prior to the creation of the “Raymore Special Road District of Cass county, Missouri,” had adopted township organization, and at the time was operating under such law.

To get at the question presented an analysis' of the Act of 1905, supra, is required. It appears to be an independent and new act, hut makes no direct provision for the repeal of any other law or laws. Sections one to thirteen, inclusive, contain provisions for the organization of special road districts, as well as provisions for the grading and improvement of public roads within the district. The method of procedure is given in detail. The cost of such improvements is to be paid by special taxbills issued against the land of the district according to its appraised value. This cost may be all paid at once, or may be extended over a period of five years. The commissioners are authorized to issue bonds in the name of the road district, but these bonds shall be paid out of special taxbills issued during the time. The plans given in these thirteen sections of the act are very much like the plans adopted for street improvements. To set this portion of the act out more in detail would be at the expense of brevity and serve no good purpose. As to the size of the special road district, section one of the act provides: “Said district shall contain at least two thousand acres of land of contiguous territory and may be commensurate with a municipal township, and if laid out along any thoroughfare may be of any length deemed necessary and advisable, except that every district shall be included wholly within the county organizing it.”

Prom this provision it will be noticed that a special road district may extend from one end of a county to the other, and in so doing traverse and cross several different municipal townships. We then have sections 14 and 15, as follows:

“Sec. 14. Whenever any road district shall be organized under the provisions of this act the county clerk shall set aside to the credit of said road district the portion of the revenues for working the public roads that may be raised by direct taxation against property lying therein, according to any existing law or subsequent enactment, and said revenue shall be spent by said board of commissioners for keeping any road within said district in repair or for paying for any other needed work. Likewise shall a proper apportionment of any license taxes and poll taxes and city revenue raised and set aside to any special road district organized under article ten of chapter [151(1)] of the Revised Statutes of Missouri of 1899, be made by the county court and turned over to the commission provided for by this act. Any overseer or road commissioner who shall be such under any other law at the time of the organization of the road district shall turn over to such commission any tools, graders, scrapers or implements of any kind in his possession which may (be) by a proper apportionment belong to such district. Said commission shall have power to contract for the working or improving of said road in any manner that to them may seem best, and to pay for the same out of such revenues. Said commission may out of such revenues pay the engineer for his estimates and specifications, except when made by the state highway commissioner or his assistants, and any other expenses for which provision is not by this act otherwise made.

“Sec. 15. All poll taxes in any such road district shall be paid in money and placed to the credit of said road district, and shall be collected as other personal taxes.”

Section 16 is simply an emergency clause.

In State ex rel. v. Gordon, 197 Mo. 55, we undertook to analyze and distinguish the various road acts of this State and to determine the question whether or not article 10, chapter 151, Revised Statutes 1899, and the acts amendatory thereto, applied to counties having township organization, and we reached the conclusion that such acts did not apply to counties so situated. "We further concluded that counties under township organization, in so far as public roads were concerned, were governed by the provisions of article 14 of chapter 168. Article 10 of chapter 151, and its amendatory acts, relate to the formation of special road districts. It was in that case pointed out that the Legislature, although making amendments to each of the two articles above named, i. e., article 10, chapter 151, and article 14, chapter 168, had at all times kept them as separate and distinct schemes, of road law, one of which, by its terms, could only be made applicable to counties not having township organization, and the other only to counties having township organization. In conclusion we there said: “A great number of differences and discrepancies as strong as the foregoing could be pointed out, but these are sufficient. The two systems are so clearly distinctive that one must conclude a legislative intent, from the acts themselves, to make the one applicable to counties having no township organization, and the other to counties having township organization.” In the same case we also said: “The methods of getting the poll tax lists are different; the methods of collecting, and the officers to collect, are different; a contract system is provided for by both statutes, but are so essentially different that the governmental agencies under the one would have no authority under the other. ’ ’

The law we have before us now, as stated above, is -an independent act, and purports to amend neither of the laws discussed in the case of State ex rel. v. Gordon, supra. It pertains to public roads and the improvement thereof by special benefit assessments, and in this differs from either of the acts above named.

No provisions had theretofore been made for the improvement of public roads by means of special assessments of the property within the district. The first thirteen sections of this act in question relate solely to such a purpose. The improvements there contemplated are broader and different in character to any road work contemplated under the township organization act. We are not prepared to say that a valid law may not be passed and made applicable to counties under both systems of our road law discussed in State ex rel. v. Gordon, supra. Nor are we prepared to say that the first thirteen sections of this law is not such an act. However, that is not the real issue here, and we reserve our opinion thereon until such opinion is required by a concrete case. The case at bar is bottomed upon sections 14 and 15 of the act of 1905, supra. These two sections reach the road revenues and road property of municipal townships, in counties under township organization, and there are hut two questions for consideration, viz.: First, does this act by implication or otherwise' repeal the road laws in the township organization act so far as these road districts are concerned, and, secondly, if not, can the two laws he harmonized so that both may stand? Considering sections 14 and 15 of the Act of 1905, and taking the last proposition first, it is apparent that the two acts, i. e., this act and the Township Organization Act, cannot he made to harmonize. The method of levying and collecting the revenues for working public roads is totally different. In section 14 it is provided that the county clerk shall apportion the revenues, but under the Township Organization Act, the county clerk has nothing to. do with the township road funds. Under the Township Organization Act the township board assesses the poll tax and the poll tax may he paid either in money or labor at the election of the taxpayer, whilst under the act before us it must be paid in money. The two acts cannot be made to harmonize, so far as the two sections, 14 and 15, are concerned, except upon the theory that there are at least two independent schemes for road work, one for counties under township organization and one for those not under township organization. We are not saying that road districts could not be organized to improve roads within certain districts by assessments having for their basis special benefits, as in the case of streets, but what we desire to say is that the instrumentalities for levying and collecting road revenues for the maintenance and working of the road after it is improved are so radically different that these two acts cannot be said to be in harmony with each other. It may be that a special road district for the improvement of a public road by special assessments could be created under the act, which district would have the power to collect and expend such revenue, independent of township organization laws, but we leave that question to a case wherein it is a live issue. In this case the sole question is as to whether or not the township officers can be compelled to turn over the township road property and the township road funds as they are collected to special road districts organized under this act. As will be seen a special road district under this act may cross several municipal townships, each levyiny and collecting a different amount for the support of the public roads, and thereby we would have the same question presented to us as in State ex rel. v. Gordon, supra, and upon which we there said: ‘ ‘ Under this state of affairs property in the same road district, and for one and the same purpose, could be and in many instances would be, assessed differently, which would be clearly a violation of the law, and such violation of the law was never contemplated by the lawmaking power. Again, we would have fractions of townships operating under different systems of law.”

Under this act a special road district might cross the entire county, and we might have a dozen different rates of taxation for the same identical purpose, i. e., keeping up and repairing the road as improved under the first thirteen sections of the act. It can hardly be said the Legislature contemplated such and if it did such a law could not stand.

This act contemplates, among other things, that there may be one certain graded and improved road extending across the county, for which the people of that district should contribute both property and poll taxes, and which, under the township' organization laws, may be varied as are the number of municipal townships crossed. Yet we would have the one subject for which to collect those taxes, i. e., the maintenance and repairing of this road. So that we say that the two laws are not such as can be made to harmonize. But it is urged that because in section 5 of the act are found the words “or township assessor where counties are under township organization” and the words “or with the collector of the revenue of the township or townships in which the road district may lie according as such county may of may not be under township organization” are found in section 10 of the act, the act should be held to apply to counties having township organization. The words used in the first section named are used in connection with the commissioners getting a valuation of the land for the special assessment, and the words quoted as found in section 10 of the act to the officer to collect these special assessments, but neither of these sections refers to the revenues annually collected for road purposes. Sections 14 and 15 do refer to such, and herein lies the difficulty. As we have suggested, without giving judgment thereon, because not in this case, it may be said that the county court could establish a road district for special assessments in counties under township organization, and appraise the property in the manner provided by section 5 and collect the special taxes through the agents referred to in section 10, but that is beside the question before us in the present case. After such roads are constructed, how then are they to be kept up and repaired in counties having township organization? Which law shall prevail as to the levying, collection and expenditure of the township road funds? Shall there be two classes of road districts in the townships, or shall the township board divide the township in such districts as it sees fit and expend the road taxes upon all these roads in these districts under the direction of its own officers? These, and other questions which might be put, clearly indicate the conflict between sections 14 and 15 of this act, and the Township Organization Act. Nor are we of the opinion that the words herein above quoted are sufficient to indicate that there was a legislative intent to divert the road property and the annual road revenues of the townships to the special road districts authorized by the Act of 190'5, unless it can be said that this law by implication repeals the Township Organization Act. Repeals by implication are not favorites of tbe law. Section 14 of tbe act says tbat tbe county court must turn over to tbe commission certain revenues, but there is nothing said about township boards, which have the custody of the road property and funds of the townships, turning to the commissioners any property of revenues. TIad the Legislature contemplated the turning over of property in the custody and under the charge of the township boards, it would have no doubt specified them as it did county courts. We are of opinion that these two sections, which form the basis of this suit, have no reference to counties under township organization, and that the trial court was right in quashing the alternative writ of mandamus, and the judgment is therefore affirmed.

All concur, except VaMiant, P. J., absent.