author: GRAVES, J.

text:
    THE STATE ex rel. ANNIE C. FIELD v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    February 15, 1919.
    1. BILIi OF EXCEPTIONS: Record Recital of Filing. A recital in the proper place in the abstract of the record, but after a caption “Bill of- Exceptions,” that on “June 1st, 1917, the appellant duly filed her bill of exceptions in this cause, which said bill of exceptions recites and sets forth the following,” is not to be considered as a recital from the bill of exceptions, but a recital in the abstract of the record proper that the bill was filed. The mere fact that this record recital comes after the caption “Bill of Exceptions” in the printed abstract will not justify the court in ruling that the record proper does not show that a hill of exceptions was filed.
    2. MANDAMUS: To Court of Appeals. The Supreme Court, in the exercise of its superintending control over courts of appeals and inferior courts, can and will, hy its writ of mandamus, compel a court of appeals to hear and determine on its merits a case, falling within its jurisdiction, in which it has wrongfully ruled that the printed abstract did not contain a recital in the record proper that a hill of exceptions had been filed by appellant.
    3. -: -: Ascertainment of Facts. The Supreme Court will, in a mandamus case, examine for itself the facts before a court of appeals, and determine from them whether it has refused to exercise its full jurisdictional power. The finding of facts by the court of appeals, or its judgment of the law, will not preclude the Supreme Court from determining the facts or granting the writ of mandamus to compel it to. exercise a jurisdiction it has .erroneously refused to exercise.
    Mandamus.
    Wkit made absolute.

      Johnson & Lucas and R. H. Field for relatrix.
    (1) The Supreme Court has a superintending control of the Court of Appeals, and has the final say as to the sufficiency of a printed abstract of record filed in a case in the Court of Appeals, when there is a controversy thereon; and' this authority is properly exercised hy a mandamus proceedings. State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. Broaddus, 239 Mo. 368. (2) It is no longer necessary that printed abstracts of the record filed in appellate court should contain a copy, or even any recital, of the record entry in the circuit court of the filing of the hill of exceptions in a cause. It is now sufficient as to filing of a hill of exceptions in a cause in the circuit court, if the printed abstract of the record, filed in the appellate court, only “state that the hill of exceptions was duly filed.” This recital imports that the hill of exceptions was filed within the proper time and in the proper place and that the proper record entry thereof was made in the circuit court. Rule 26, K. C. Court of Appeals, adopted Jan. 6', 1913; Rule 31, Supreme Court, adopted Dec. 10, 1912; Reidy v. Reidy, 171 Mo. App. 342; Burnett v. Prince, 272 Mo. 74. (3) The Court of Appeals was in error and entirely wrong in construing the recital of the filing of relatrix’ bill of exceptions, set forth in re-latrix’ abstract of the record, as being a recital in the said bill of exceptions, because the said bill of exceptions contains no'recital of its filing. This recital in relatrix’ abstract of the record entirely precedes the bill of exceptions set forth therein. (4) Respondents are also wrong in the contention in their return, that the heading, “Bill of Exceptions,” preceding the above stated recital, in relatrix’ said abstract of the record, severed that recital from the parts of the record proper set forth in said abstract. This heading, “Bill of Exceptions,” was a double-header; it properly denoted the entire subject of the bill of exceptions and all that was said thereon in the paragraphs following it. ’ This was no confusion of the record proper with the matters of exception in said printed abstract of the record. City of Carúthersvil'le v. Huffman, 262 Mo. 367. Surely, it cannot be correctly held that it was not germane to this heading, “Bill of Exceptions,” to recite thereunder the fact that the bill of exceptions was duly filed, because without being duly filed it could not be considered a bill of exceptions. ‘ (5) Furthermore, thk heading, “Bill of Exceptions,” was not required and was obviously used only as a pointed way of suggesting the place in the printed abstract where the whole subject of the bill of exceptions could be turned to and found, including both the filing thereof and also the bill of exceptions itself. This heading does, not purport to be, and is not, .any actual part of the record, and therefore is to be considered as mere. surplusage in the printed abstract in question. It is uniform and familar law that a court paper or court record is not vitiated, weakened or strengthened, by merely superfluous matters therein. Iroquois v. Annan-Burg Milling Co., 179 Mo. App. 87; State ex rel. v. Knight, 46 Mo. 83; Dollman v. Munson, 90 Mo. 85; State ex rel. v. Tittman, 103 Mo. 554; Radcliffe v. Ry. Co., 90 Mo. 128.

      Ball & Ryland for respondents.
    (1) Mandamus will not lie in this case (a) because the object and purpose of the use of the writ here is to correct an alleged error in the matter of the law of procedure, claimed to have been committed by a court of competent and final jurisdiction in its disposition of the case involved; and (b) because if relatrix’s theory of the correct rule of law on the matter in question is sound, she has another proper and sufficient remedy. 6 West’s Dig.,-title, ‘‘Mandamus,” secs. 4, 5, 21 and 23; Same title and secs., vols. 13, 15 and 17; State ex rel. v. Broaddus, 207 Mo. 107. (2) The abstract does not comply with Rule 26 of the Court of Appeals, or with identical Rule 31 of this court, as construed by that court and this. Harding v. Bedoll, 202 Mo. 629; State ex rel. v. Broaddus, 239 Mo. 364; Hutson v. Allen, 236 Mo. 646; City of St. Louis v. Young, 248 Mo. 347; State ex rel. v. • Board of Health, 266 Mo. 265; Tracy v. Tracy, 201 S. W. 902; Squares v. Peters, 202 S. W. 530; Wilson v. Reed, 270 Mo. 400.
   GRAVES, J.

This case, in its facts, turns upon a narrow margin. The original action was one to enforce a special tax bill, by the. Parker-Washington Company against the relator herein, Annie Camp Field. The circuit court of Jackson County decided against Mrs. Field, and she appealed to the Kansas City Court of Appeals. In this case she filed an abstract of record, but the court, by a per curiam opinion, held that all of her complaints were lodged against matters of exceptions in the bill of exceptions, and that her abstract of record failed to show that she filed a bill of exceptions. The Court of Appeals thereupon ruled that, as there was no error upon the face of the record proper, the judgment would have to he affirmed and accordingly it was affirmed.

The present proceeding is one by mandamus to compel the Court of Appeals to hear relator’s appeal upon its merits. The'exact situation, as appears from the abstract of record before the Kansas City Court of Appeals, is as follows: First, we have the caption “Appellant’s Abstract of the Entire Record in the Case.” Under this caption is (1) a recitation of the facts of the filing of the petition in the circuit court, (2) an abstract of the petition, (3) a recitation of the facts of the filing of an answer by defendant, Annie C. Field, and a copy of such answer.

We then find the following headline: “Other Record Entries,” and following this headline is another headline reading: “Bill of Exceptions.” As the crux of the case is at this point, we deem it best to quote in full here from and including the two headlines above mentioned, and for some space following the latter headline, so that the exact connection may be seen. It follows thus:

“Other Becord Entries.
“November 2, 1916, jury waived in this cause.
“May 7, 1917, 49th day of the regular March Term of said Circuit Court, record of Division 4 of said court recites trial of the cause before the court without a jury, the court’s finding, and special judgment for the plaintiff, Parker-Washington Company, in the sum of $59.16 as the amount then due on the alleged tax-bill and, adjudged the plaintiff, Parker-Washington Company, have special judgment for said sum, with ten per cent interest from date, and have execution therefor and for all costs, against appellant’s said lot of land described in the petition.
“May 9, 1917, record of Division No. 4 of said Circuit Court recites that, on that day, Annie Camp Field filed in' this cause lier motion for a new trial herein.
“May 10, 1917, record of said division of said court recites the following: (1) That, on that day, said court overruled said motion for a new trial and that, afterwards on the same day, defendant, Annie Camp Field, filed her affidavit for appeal in this cause from the said judgment and decision of Division No. 4 of said circuit court to the Kansas City Court of Appeals; and said appeal was duly taken by said Annie Camp Field, and was duly allowed by said circuit court.
“Bill of Exceptions.
“June 1, 1917, the appellant, Annie Camp Field, duly filed her bill of exceptions in this cause, which said bill of exceptions recites and sets forth the following :
“That on the 2nd day of November, 1916, the 37th day of the regular September Term of Division No. 4 of the Circuit Court of Jackson County, Missouri, at Kansas City, the trial herein was begun and the following proceedings were had in this cause before Hon. W. 0. Thomas in said division of said court, to-wit: R. E. Ball appeared as attorney for plaintiff and R. H. Field appeared as attorney for defendant, Annie Camp Field. The plaintiff read in evidence the special tax bill for $28.40, alleged in the petition; which, with the ten per cent per annum interest allowed on said special tax bill amounted on the date of the judgment to the sum of $56.16, the amount of the court’s finding and judgment (Bill of Exception, page 2).”
From thence forward is an abstract of matters in the bill of exceptions. On the last page of the abstract of the Record in the Court of Appeals appears this:
“Wherefore, the defendant Field prays the court to settle and allow this her bill of exceptions to all and singular the acts, rulings and orders of the court in the premises, and that the same may be signed, filed, and made a part of the record herein. (Bill of Ex. 58)
“Now, therefore, the court, being fully advised in the premises doth find the foregoing to be a correct bill of exceptions taken and saved on behalf of the defendant Field herein, and doth sign the same, and doth order that the same may be filed and made a part of the record in this cause.
“Given under the hand of the judge of said court, before whom the proceedings were had, on this 1st day of June, 1917.
Wm. 0. Thomas,
“Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 4.
“(Bill of Ex. 59-60) ”
The cover to said bill of exceptions has indorsed thereon the following:
(1) The number and title of the case as herein-before stated;
(2) “Filed June 1st, 1917, James B. Shoemaker, Clerk, by John A. Thompson, D. C.”
(3) “Johnson & Lucas and R. H. Field,
“For Appellants.’'

This is followed by á complete index. The whole reason assigned by the Court of Appeals for not hearing the case upon its merits lies in the fact that the recitation “June 1, 1917, the appellant, Annie Camp Field, duly filed her bill of exceptions, which said bill of exceptions recites and sets forth the following” appears after the caption, “Bill of Exceptions.”

They say that this in effect destroys this recitation of fact, as a recitation of fact as to the record proper, and makes it a recitation of fact from the bill of exceptions.

This peculiar situation of facts, and the law applicable, is all there is to the case before us.

I. It is patently clear that .the recitation “June 1, 1917,- the appellant, Annie Camp Field, duly filed her bill of exceptions in this cause, which said bill °f exceptions recites and sets forth the following” was intended for an abstract of a fact of record in the record proper. Take the last line thereof: “which said bill of exceptions recites and sets forth the following:” If this means anything, it means that the things which follow come from the hill of exceptions, and not the things which preceded this line. .To make it plain let us place the situation in this shape. As it actually appears, we have:

“BILL OF EXCEPTIONS.
“June 1, 1917, the appellant, Annie Camp Field, duly filed her bill of exceptions in this cause, which said bill of exceptions recites and sets forth the following :
“That on the 2nd day of November, 1916, the 37th day of the regular September Term of Division No. 4 of the Circuit Court of Jackson County, Missouri, at Kansas City, the trial herein was begun and the following proceedings were had in this cause before Hon. W. 0. Thomas in said division of court, to-wit: E. E. Ball appeared as attorney for plaintiff and E. H. Field appeared as .attorney for defendant, Annie Camp Field.
“The plaintiff read in evidence the special tax bill for $28.40, alleged in the petition; which, with the ten per cent per annum interest allowed on said special tax bill amounted on the date of the judgment to the sum of $59.16, the amount of the court’s finding and judgment (Bill of Exceptions, page 2).”

But if we drop the headline “Bill of Exceptions” down to where it belongs, under the recitations before us, we would have:

“June 1, 1917, the appellant, Annie Camp Field, duly filed her bill of exceptions in this cause, which said bill recites and sets forth the following:
“BILL OF EXCEPTIONS.
“That on the 2nd day of November, 1916, the 37th day of the regular September Term of Division No. 4 of the Circuit Court of Jackson County, Missouri, at Kansas City* the trial herein was begun and the following proceedings were had in this cause before Hon. W. 0. Thomas in said division of said court, to-wit: R. E. Ball appeared as attorney for plaintiff and R. H. Field appeared as attorney for defendant, Annie Camp Field.
“The plaintiff read in evidence the special tax bill for $28.40, alleged in the petition; which, with the ten per' cent per annum interest allowed on said special tax bill amounted on the- date of the judgment to the sum of $59.16, the amount of the court’s finding and judgment (Bill of Exceptions p. 2).”

The language used indicates that this headline should be just where we have placed it, last above. With it so placed the whole situation is clear. That it should be considered in the place where we have fixed it, is made clear by the last page of the bill of exceptions, which we have quoted.' This last page contains the bill of exceptions’ recitation of facts as to the bill of exceptions, and demonstrates that the first recitation, which we have quoted, was' intended as a recitation of fact from the record proper.

The whole context of the matter so shows, so that we have no hesitancy in saying that the Court of Appeals was in error in saying that the recitation “dime 1, 1917, the appellant Annie Camp Field duly filed her bill of exceptions in this cause, which said bill of exceptions recites and sets for the following” was a recitation of fact from the bill of' exceptions, rather' than a recitation of fact contained in and shown by the record proper. To me this appears too clear for further elaboration. This leaves only the applicable law to he considered.

II. That this court, in the exercise of its superintending control over courts of appeals, and inferior courts, can, by mandamus, compel sucb courts to bear and determine a case within their jurisdiction, is unquestioned law. The Constitution grants the power, and it has been long and consistently exercised. State ex rel. v. Smith, 172 Mo. l. c. 459; State ex rel. v. Smith, 172 Mo. l. c. 627; State ex rel. v. Broaddus, 210 Mo. l. c. 9 and 10.]

Nor have we permitted such courts by an erroneous conclusion- of facts to refuse to exercise their full jurisdictional power. By this I mean, if the court by erroneously holding that a given condition of facts exists, refuses to exercise its full jurisdictional powers, and we find that such state of facts does not exist, we will by mandamus compel such court to exercise its full jurisdictional power, in the given case. This on the theory that, in such case, we determine the facts, and on such facts grant or' refuse our writ. In other words we will not, in mandamus, allow the finding of the facts by- the Court of Appeals, or their judgment of the law, to preclude us from granting our writ. We will find our own facts from the record before them, and apply our judgment of the law, in determining whether or not we will compel them to hear or further hear a given case. [State ex rel v. Broaddus, 210 Mo. l. c. 10 et seq; State ex rel. v. Broaddus, 239 Mo. 359.]

In both of the cases, last above cited, this court looked to the records on file in the Court of Appeals, and from them determined the facts for ourselves, and upon our conclusion of facts, applied the applicable law. In the latter of the two eases, last above cited, the Court of Appeals had affirmed a judgment, as in the case now before us, and had refused to look into the merits of the case, so far as such merits were to be found in the bill of exceptions. [State ex rel. v. Broaddus, 239 Mo. l. c. 362.] This court, however, examined the abstract of the record on file in the Court of Appeals (239 Mo. l. c. 363 & 364) and found that the Court of Appeals did, in law and fact, have before it for consideration the matters of exceptions in the hill of exceptions, and we granted our peremptory writ of mandamus, by which we compelled the Court of Appeals to set aside its order and judgment affirming the judgment nisi, and directing it to hear the case upon the full record before it.

We believe, upon full consideration, that the doctrine of these cases is right. In mandamus to compel an inferior court to exercise its jurisdiction, the fact as to whether such court in refusing. to exercise its jurisdiction or any part thereof, is to be determined by this court. We determine this fact from the record before the Court of Appeals, it is true, but we must determine it ourselves.

So in the instant case, we have found that the abstract of the record in the Field case was such -as to make the consideration of the matters in the bill of exceptions a duty upon the part of the Court of Appeals. This duty such court failed and refused to perform, although the case was one within their jurisdiction. Under the authority of the cases, supra, our alternative writ of mandamus should be made.absolute and it is so ordered.

All concur, except Faris, J., who dissents because he thinks mandamus is not proper remedy. Bond, C. J., concurs in result.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. CONSOLIDATED SCHOOL DISTRICT NO. ONE OF MISSISSIPPI AND NEW MADRID COUNTIES v. GEORGE E. HACKMANN, State Auditor.
    In Banc,
    February 15, 1919.
    1. ELECTION: Place of Meeting: Omission in Record: Nunc Pro Tunc Correction. Where the board of education called a bond election, but its record failed to designate the place, though the secretary’s notices stated the election “will be held at the school house,” the hoard had authority after the election was held to make its record speak the truth, hy making it recite that the election was ordered to he held at the school house; and that having been done the bonds will not be held invalid because of the defect in the record as first made.
    2. CONSOLIDATED SCHOOL DISTRICT: Indebtedness of Former Districts: Bond Issue. A consolidated school district, formed of parts of existing common school districts whose school house sites are not included in the consolidated district, is not required to assume and pay the bonded indebtedness of said districts; and in calculating the maximum amount of bonds said consolidated school district may issue, the amount of the existing indebtedness of such common school districts should be excluded.
    3. -: -: Lessening Taxable Ability: Impairment of Contracts: Raised by State Auditor. The State Auditor, when sued at the relation of a consolidated school district to compel him to register its bonds, has no authority to represent the common school districts or their citizens or creditors whose territory was taken in part to form the consolidated district, and for them raise the point that the formation of the consolidated district, by diminishing their territory, lessened their taxable ability to pay existing bonded indebtedness, and thereby impaired their contracts and rendered unconstitutional the statute authorizing the elision and leaving the' debts as a burden on the remaining portions of the common school districts. Such a question is not for decision in said mandamus suit.
    Mandamus.
    PERMANENT WRIT ISSUED.

      Haw & Brown for relator; Charles & Rutherford of counsel.
    (1) The Board of Education having'designated the school house in relator district as the place of holding the election, and the secretary of the hoard having failed to record that fact, the record of the meeting may he afterwards corrected and made to speak the truth. Smith on Munic. Corp. sec. 3.13, p. 305; Commonwealth v. Scheubmehl, 3 Lack. Leg. N. (Pa.) 186; Ryder’s Est. v. City of Alton, 175 Ill. 94; Becker v. City of Henderson, 100 Ky. 450; Everett v. Deal, 148 Ind. 90. (2) A consolidated school district organized out of territory belonging to two or more common school districts is only required to assume the bonded indebtedness of the district or districts whose school house site or sites have been included within the consolidated school district. • Laws 1913, p. 721, sec. 6. (3) If we are right in our last point, then, although the Auditor, as the representative of the taxpayers in the district (Ransom v: City of Pierre, 41 C. C. A. 585, 101 Fed. 665), may, in a proper ease, raise constitutional questions affecting their interests, • in this case such question cannot be raised because the taxpayers are not interested in, nor affected by, the operation of the statute, and cannot, therefore, assail it as being unconstitutional. State ex rel. v. G-ordon, State Auditor, 268 Mo. 734; State ex rel. v. Blake, 241 Mo. 1Ü0; State ex rel. v. Williams, 232 Mo. 56; Ex parte House v. Mayes, 227 Mo. 617; Ordelheide v. Modern Brotherhood, 226 Mo. 203; State ex rel. v. .McIntosh, 205 Mo. 589 ; State v. Seebold, 192 Mo. 720. (4) The Legislature may provide for the change óf school district boundaries, or the consolidation of districts, even though this may result in imposing old debts upon taxpayers not originally subject thereto, and without their consent by vote or otherwise. Sharp v. Miller, 65 Mo. 50; Thompson v. Board of Education, 61 Mo. 176; Hughes v. School District, 72 Mo. 643; True v. Davis, 133 Ill., 522; Cicero v. Chicago, 182 Ill. 309; Abbott on Public Securities, sec. 17, p. 30. This court has already said that “there is perceived no constitutional objection to the method of consolidation provided by the Act of 1913.” State ex rel. v. Jones, 266 Mo. 198.

      Frank W. McAllister, Attorney-General and Shrader P. Howell, Assistant Attorney-General, for respondent.
    (1) The Board of Education having failed and neglected to designate, in its order of June 39, 1917, the polling place, the bonds attempted to be authorized at the election on July 21, 1917, were invalid and void. Sec. 10879, R. S. 1909; Laws 1915, p. 386'; Martin v. Bennett, 139 Mo. App. 237; Thornburg v. School District, 175 Mo. 12; State ex rel. v. Martin, 83 Mo. App. 55. A nunc pro time entry cannot he based on parole evidence, but must be founded on the original documents and recorded minutes which deal directly with the matter sought to be corrected. Railway v. Halschag, 144 Mo. 253; Jordan v. School District, 38 Me. 170; Low v. Pettengill, 12 N. H. 340; 2 McQuillin’s Municipal Corporations, sec. 623, p. 1372. (2) The bonds are invalid and void for the reason that amount of outstanding bonds of the common school districts which were merged into the consolidated district, together with the bonds voted on July 21, 1917, is in excess of five per cent of the assessed valuation of said district, and therefore, vio-lative of Section 12 of Article X of the State Constitution. (3) The Act of 1913 is violative of Section 10 of Article I of the Constitution of the United States, in that it authorizes and results in the impairment of the obligations of contracts. Laws 1913, p. 723, see. 6; Siebert v. Lewis, 122 U. S. 294;- State v. Young, 29 Minn. 474; Board of Education v. Railway, .110 Ky. 941; 5 McQuillin's Municipal Corporations, p. 4971, sec. 2373; Dillon on Municipal Corporations, p. 192, sec. 113.
   WOODSON, J.

This is an original proceding by mandamus brought by the relator against the respondent to compel the State Auditor to register bonds in the sum of $5,000 which were authorized by the voters of Consolidated. School District No. 1 in Mississippi and New Madrid Counties, Missouri, at an election held July 21, 1917, the proceeds of the bonds to be used for the purchase of a site and the construction of a school house thereon.

The respondent waived the issuance of the alternative writ, and the cause was submitted to the court upon the petition, which stands as and for the writ, and the return thereto.

The facts as disclosed by the petition and return are as follows:

The Board of Education of the Consolidated School District made an order on the 30th of June, 1917, calling an election at which it should be determined whether the bonds of the district should be issued for the purpose stated above, but the minutes of the board, as set out in the pleadings, failed to show that the place where the election was to be held was designated in said order. It is disclosed by the record, however, that the secretary of the board posted, fifteen days prior to the day of the election, within the limits of said Consolidated District, the required five notices, in each of which it was stated that the election “will be held at the school house in said Consolidated District on Saturday the 21st day of July, 1917.”

Thereafter, on March 25,1918, the Board of Education, recognizing the defect in the order of June 30, 1917, undertook to correct its records by entering an order nunc pro tunc in which it is recited that, at the meeting of June 30, 1917, the motion made and adopted, calling the election, included the clause that “the said election to be held in this schoolhouse, being the schoolhouse in said Consolidated School District.”

It is further disclosed by the pleadings that the assessed valuation of that portion of the taxable property of the Consolidated District situate in New Madrid County, on June 1,. 1914, was $16,320, and the valuation of that part of the district situate in Mississippi County as ascertained by the. assessment on the date last above named, was $86,135, thus making a total assessed valuation of $102,455. At the time of voting the bonds in question common school districts numbered 14 and 24, of Mississippi County, which then constituted a part of the Relator Consolidated District, had an outstanding bonded indebtedness aggregating the sum of $4,500, composed of indebtedness of $3000 against said School District No. 24, and $1500 against said School District No. 14, in Mississippi County, which amount, if to be added to the instant bond issue of $5000 attempted to be authorized by the vote of July 21, 1917, would make a total indebtedness of the Consolidated District of $9500, which is $4377.25 in excess of five per cent of the total assessed valuation of the said Consolidated District.

The $1500 and $3000 indebtedness before mentioned were incurred for the purpose of purchasing a sité in each of said school districts, and for the purpose of erecting a school house upon each. The record further shows that neither of these school houses are embraced within the boundaries of the Consolidated District here under consideration.

It further appears from the record that at the election which was called and held on July 21, 1917,. a total of forty-seven ballots were cast, forty-five of which were in favor of the proposed bond issue, and two were against the proposition, and that the said Board of Education duly canvassed the return, declared the result thereof, and authorized bonds of the district in the sum of $5000 to he prepared and issued. Thereafter the bonds thus authorized were presented to the State Auditor for registration in conformity with the provisions of the statute, hut the registration was refused on the ground that said bonds are invalid and void for various reasons which will he considered in the course of the opinion.

I. Counsel for the respondent try to justify the action, of the Auditor in refusing to certify the bonds upon, the ground that the Board of Education having failed and neglected to designate in its order of June 29, 1917, the place where the election of July 21st authorizing the issuance of the bonds was to he held, rendered them invalid and void; and in support of that position we are cited to. the following statutes and decisions of this court and of the Court of Appeals: Sec. 10879, R. S. 1909; Laws 1915, p. 386; Martin v. Bennett, 139 Mo. App. 237; Thornburg v. School District, 175 Mo. 12; State ex rel. v. Martin, 83 Mo. App. 55. These statutes mentioned, in explicit terms, provide that “such election shall be held on the. first Thursday in April of each year, and at such convenient place within the district as the board may designate.” These statutes also require the clerk of the board to properly enter the result of the election upon the records of the board.

It would seem that the language quoted is too plain to need judicial construction; however, that provision of the statute has been before this court and the courts of . appeals in the eases previously cited, and it is almost useless to state that the courts held that under that plain mandate of the statute it was the duty of the Board of Education, in calling the election, to designate' in the order calling the same the place where the election would be held.

If the foregoing were all of the facts that are disclosed by the records of the school board' regarding the bond election, then unquestionably, under the authority of the cases cited, we would be compelled to hold the election void, and consequently the bonds also which were issued in pursuance thereto; but fortunately for the school district, the records of the board also show by the amendment of the record heretofore mentioned in the return of the respondents, that the order calling the election did designate the place where it would be held, but through inadvertence or oversight, the clerk at the time of recording the call omitted to enter upon the records the place designated by the board.

While counsel for neither party have cited any case in this State where the precise point here presented has been decided, namely, that the clerk has or has not the authority under the law to make the amendment and thereby make the record speak the truth, yet the text-writers and the adjudged cases from other states are so uniform in holding the clerk has such power, it would seem as though the question is no longer a debatable one anywhere.

In discussing this question, Mr. McQuillin in his work on Muncipal Corporations, vol. 2, p. 1379, sec. 626, uses this language:

4 4 The courts are liberal respecting amendments of corporate records. If, through inadvertence or misapprehension, the record has been defectively made it is competent to complete it according to' the truth. Thus, where the record fails to show that the yeas and neas were taken, it may be amended so that it will speak the truth.
4 4 The officer while in office may amend a record made by him. It has been held that one who was formerly town clerk, but who is no longer in office, cannot amend a town record made by him when town clerk. On ‘the other hand, it has been decided, that the person in office at the time the proceedings were had may make the amendment; that it is not necessary that he should hold the office when the amendment is made.
4 4 The records of councils or legislative bodies or departments or boards are generally controlled by the body as a unit, and while the determination of what the record should set forth devolves upon the clerk or secretary in the first instance, as a rule, the propriety of amendments belongs to the body itself. But where the charter required the clerk to keep a record of the proceedings of the council which should be received in all courts as evidence of the truth of the matters therein contained, it was held that it could not be amended by vote of the council, but only by the clerk or by order of the court. In one case the record showed the election of a street commissioner by a majority of one vote, resulting from a ruling of the presiding officer, sustained by the council, that a certain member could not change his vote. At its next meeting before approving the minutes, the council ordered them to be corrected so as to show that the member in question was allowed to change Ms vote, and, hence, ‘that there was no election.’ Here the charter prescribed that the council ‘shall determine the rules of their proceedings and keep a journal thereof,’ and required the clerk to make an accurate record of all proceedings. The amendment was sustained.”

In accordance with the foreging views, Mr. Smith, vol. 1, sec. 313, p. 305, of his work on Municipal Corporations, uses this language:

‘ ‘ The record of the council, kept by the proper officer, except subject to the rights of the' council itself to correct, is to be accepted as correct in the absence of fraud. Minutes may be amended by the council even after approval where no intervening rights have accrued. When the officer in charge of municipal records produces them in court as the council record they can only be impeached for fraud. The minutes of a preceding meeting may be corrected at the next succeeding meeting in order to show yeas and nays in compliance with the statute. A nunc pro tunc order is competent to make the minutes speak the truth.”

The Supreme Court of Connecticut, in discussing this question in the case of Boston Turnpike Company v. Town of Pomfret, 20 Conn. 590, l. c. 595 and 596, uses this language:

“Courts, however, have never adopted, and from their nature it would not be practicable to adopt, those strict, technical and peculiar rules as to their correction, which apply to the amendment of judicial records. On the contrary, it is deemed of so great importance to uphold the proceedings of our municipal corporations, that courts are disposed to be as indulgent in allowing entries of their proceedings to be amended, as is consistent with the safety of those whose' interests would be affected by them. From carelessness, on the part of the clerks of our towns and other municipal corporations, or their not sufficiently appreciating the importance of fully and precisely describing their proceedings, they are frequently entered on their records very loosely and irregularly and it is not to be expected that those officers will always be competent to perform their duty, in this respect, with the correctness which is desirable; to hold, therefore, that their entries, as' first made, are beyond the reach of their subsequent correction would produce the greatest confusion.”

In the case of Fossett v. Bearce, 29 Me. 523, the Supreme Court held that where the officer’s return upon a warrant for a town, meeting did not show that the copies posted up were attested, or that they were posted in conspicuous places, evidence that the copies posted up were attested,, and were posted in conspicuous places, was admissible for the single purpose of showing that the officer ought to be permitted to amend his return, and when it appears that he is willing to amend; and that the anlendment could be made only by the same officer and on his responsibility.

The Supreme Court of Massachusetts, in the case of Halleck v. Boylston, 117 Mass. 469, held that “a town clerk has the power to amend his record of the proceedings at a town meeting; and the record so amended cannot be varied or controlled by parol evidence.”

In the case of City of Logansport v. Crockett, 64 Ind. 319, the Supreme Court held that “where the city clerk failed to keep the record of the yeas and nays upon the adoption of a resolution by the common council, the proper remedy is for the council to cause the record to be amended by a nunc pro tunc entry showing the yeas and nays.”

In White v. Clarksville, 75 Ark. 340, the Supreme Court held that where the record of the passage of a municipal ordinance failed to show that the ordinance was passed under a suspension of the rules, the record might be amended so as to show that fact.

The Supreme Court of New Hampshire, in the case of Scammon v. Scammon, 28 N. H. 419, l. c. 429, held that “as the town clerk may be permitted to amend his return according to the fact (Bishop v. Cone, 3 N. H. 513; Gibson v. Bailey, 9 N. H. 176), it was better that an amendment should be required, than that any presumption should he adopted to support the deficient record."

In Mott v. Reynolds, 27 Vt. 206, the Supreme Court held that the town clerk while in office and having the custody of the records, may, generally, make them conform to the facts by altering or amending them; and this though he may have been out of office but is again restored.

In Ryder Estate v. City of Alton, 175 Ill. 94, l. c. 97, the Supreme Court said: “Whether the record was written up at the time the examination was made by the witnesses called is not shown, for no attempt was made to show that that record of the council as produced by the city clerk was wrong. Where an officer of a municipal corporation having charge of the records produces the same as the record, the same can be attacked only for fraud; and if the record was not written up at the time it was examined by the witnesses, the clerk may amend the same according to his knowledge of the truth, so long as he has the custody thereof as clerk.”

In Commonwealth ex rel. v. Schubmehl, 3 Lack. Leg. News (Pa.) 186, it was held that the law imposed upon the secretary the duty of recording the action of the council, subject to its correction.

In Everett et al. v. Deal et al., 148 Ind. 90, it was held that it was competent for the council to correct its record so as to speak the truth.

The same rule is announced in the case of Becker v. City of Henderson, 100 Ky. 450. In fact, there are numerous other cases of similar import throughout the country.

We, therefore, hold that the board had the authority to correct its record to speak the truth, and according to the authorities just considered the contention of counsel for respondent, that the bonds áre void because the record failed to show that the board failed to designate the place where the election should be held is untenable, and this question is decided in favor of the relator.

II. Counsel for respondent next insist that the bonds are invalid and void for the reason that the amount of outstanding bonds of the common school districts which were merged into the Consolidated District, together with the bonds voted on July 21, 1917, is in excess of five per cent . of the assessed valuation of said district, and therefore violative of Section 12 of Article X of the State Constitution, and cite the following authorities in support thereof: Sec. 6, Laws 1913, p. 723; Thornburg v. School District, 175 Mo. 12, l. c. 28; Dillon on Municipal Corporations, vol. 1, sec. 360; Plunkett’s Township v. Crawford, 27 Pa. St. 107; Winkleman v. Levee District, 171 Mo. App. l. c. 56; Thompson v. Abbott, 61 Mo. 176; McQuillin on Munic. Corp., vol. 1, sec. 294.

In the presentation of this proposition counsel for respondent assume that when Consolidated School District No. 1 was organized the law imposed upon it the obligation to pay off and discharge the $1500 and $3000 existing respectively against school districts Nos. 14 and 24 in Mississippi County, previously mentioned. That is the principal proposition presented by this record for determination, and if that assumption is well taken then unquestionably the bonds in dispute are void, for the reason that if they be added to the $4500 before mentioned the Consolidated District would then owe $9500, or $4337.25 more than the constitutional limitation, which under the authorities last cited world be absolutely void, if not the entire $5000, regarding which we express no opinion.

But the question is, did the relator, under the facts disclosed by this record, become obligated to pay the $4,500 of indebtedness of Districts Nos. 14 and 24.

The answer to that question depends npon the meaning of Section 6, Laws 1913, page 721, the act nnder which the relator was organized. That section reads:

“Whenever any consolidated district is organized nnder the provisions of this act, the original districts shall continne until Jnne 30th, following the organization of said consolidated district, and at that time ' all the property, money on hand, books and papers of the school districts whose schoolhonse sites are included within said consolidated district shall be turned over to the hoard of directors of the consolidated district, and also all bonds outstanding against the aforesaid districts shall become debts against the consolidated district. The division of property and money on hand in case school districts, are divided by the formation of any consolidated district shall he governed by Sections 10839 and 10840.”

It will be observed by reading this section of the act that. only in those cases where the consolidated district embraces or takes the sites and schoolhouses of the local districts, are the officers of the latter required to turn over to the officers of the former all the property, money on hand, books and papers which they owned and had on hand just prior to and at the time of the consolidation, and after so providing, the act proceeds with the following language: “and also all' bonds outstanding against the aforesaid districts shall become debts against the consolidated district; ’ ’ that is, the bonded indebtedness of such local districts whose sites and school houses have been taken by the consolidated district shall become the indebtedness of the latter; but no such provision. is made for the consolidated district to assume the indebtedness of any local district where the schoolhouse and site therefor are not taken by the former; nor can the consolidated district demand or receive the property, money, books or papers of the local districts, except in those cases where' the former takes over the site and schoolhouse of the latter. This is not only the clear meaning of the statute, but it is also the plain letter thereof; and since the record in. this case shows that the sites and schoolhouses in Districts Nos. 14 and 24 of Mississippi County were not embraced within the boundaries of the consolidated disrict, it necessarily follows from what has been said upon the subject, the law has not imposed upon the consolidated district the obligation to assume and pay the bonded indebtedness of said Districts Nos. 14 and 24, and should this court hold to the contrary we would do violence to both the letter and spirit of the statute.

"We, therefore, hold that in computing the indebtedness of said consolidated district, the courts and other state, county and school district officers must exclude the $4500 indebtedness of said local School Districts Nos. 14 and 24. in Mississippi County, and by so doing the $5000 bonded indebtedness authorized by the vote of the consolidated district on July 21, 1917, is within the constitutional limitations, and therefore valid.

III. Counsel for respondent also assail the validity of the bonds mentioned in the evidence for the reason stated that “the act of the Forty-seventh General Assembly, approved March 14, 1913, is violative of Section 10 of Article 1 of the -Constitution of the United States, in that it authorizes and results in the impairment of the obligations of contracts,” and cite us to the following authorities in support thereof: Laws 1913, sec. 6, p. 723; Seibert v. Lewis, 122 U. S. 284, l. c. 294; State v. Young, 29 Minn. 474; Board Education of Hawesville v. Railway, 110 Ky. 932, l. c. 941; McQuillin on Munic. Corp., vol. 5, sec. 2373, p. 4971; Dillon on Munic. Corp., sec. 113, p. 192.

Viewing this proposition in the light of the conclusions announced' in paragraph two hereof, we are unable to conceive in what possible way the incurring of this $5000 bounded indebtedness by the consolidated district can result in the impairment of any of its obligations or contracts. If I correctly understand the record in this- case, it shows that this consolidated district was organized on the same day and at the same time the bonds were voted for, and that it did not and could not under those facts have had any other contract or obligation of any kind, much less one that could have been impaired.

There is no merit in this contention.

IV. If counsel for respondent mean by the position stated in paragraph three of this opinion, that the act of the Legislature mentioned therein is unconstitutional because it authorizes the consolidated district to take parts of the taxable lands and other property of said local Districts Nos. 14 and 24 and the same to the former, and thereby and to that extent diminish the taxable assets of said local districts, and to that extent lessen their ability to pay their respective p'arts of said $4500 before mentioned, it will suffice to state at this time that in the first place, said local districts are not, nor are any of its creditors, here complaining; second, that this record fails to show that, notwithstanding the supposed diminution of the taxable assets of said local districts, they are not still amply able to pay their respective indebtedness in full; third, if such a question should ever be presented to this court for determination, it would be wise to wait until that time before deciding the same, for “sufficient unto the day is the evil thereof;” and, fourth, because the respondent in this case has no authority to represent or litigate the rights of those local districts or their creditors, neither being parties hereto.

There is no merit in this proposition.

Y. Counsel for respondent also contend that the act of the Legislature under consideration is violative of the provisions of Section 12 of Article 10 of the State Constitution, which prohibits the incurring of an indebtedness in excess of the current revenues for any one year 'without the assent of two-thirds of the voters of the district.

We must confess we do not understand just what counsel are driving at by this contention, for the reason that the record in this case discloses the fact that not only two-thirds of the. electors voted for the bonds, but that forty-five out of the forty-seven who voted cast their ballots in favor of issuing the same.

There is no merit in this contention.

■ VI. It is finally insisted by counsel for respondent that “the act in question further violates the provisions of Section 12, Article X, of the Constitution, in that it permit's and results in the incurring of an indebtedness by consolidated districts to an amount in excess of five per cent of the valuation of the taxable property therein.”

This insistence is untenable, and for the reasons stated in paragraph three and five of this opinion this point is decided against the respondent.

We are, therefore, of 'the opinion that the alternative writ of mandamus heretofore issued should be made permanent; it is so ordered.

All concur.


text:
    THE STATE ex rel. ROBERT F. KLEINSCHMIDT, Prosecuting Attorney, v. W. A. JONES, Appellant.
    Division One,
    March 1, 1919.
    1. PUBLIC NUISANCE: Injunction: Crimes. A court of equity can prevent the maintenance of a public nuisance, although some of the acts composing its creation and maintenance may be crimes and punishable as such.
    2. -: -: Sale of Liquor. The sale of liquor' in violation of law is a crime, but equity will not enjoin its sale on that ground alone, but when the unlawful sale of liquor is made at such places and under such circumstances as to make its sale and the place a public nuisance equity will abate the nuisance. Mere sale of liquor at retail by a wholesale licensee does not constitute a public nuisance.
    3. -: -: -: Disorders Along Public Road. The fact that persons, men and women, who bought liquor at the place of business of a licensed wholesale liquor dealer, which was in a county in which the Local Option Law had not been adopted and which was conducted in an orderly way, except perhaps in the sale of liquor at retail, made loud noises and used profane language and were guilty of other disorderly conduct, on the public highway and along the roadside a mile or more from said place, did not constitute the place a public nuisance. If it itself was conducted in an orderly way, disorderly and drunken conduct committed some distance away in a “dry” county did not make it a public nuisance.
    Appeal from Jefferson Circuit Court. — Hon. E. M. D earing, Judge.
    REVERSED AND REMANDED (with directions.)

      Clyde Williams and H. B. Irwin for appellant.
    (1) Every offense mentioned in relator’s petition for an injunction was an ordinary crime — not a public nuisance. Hence the court of equity is without jurisdiction to afford relief. Ex parte Laymaster, 260 Mo. 613. (2) The circuit court, on petition of prosecuting attorney, was without jurisdiction to grant temporary injunction until plaintiff gave bond. State ex rel. v. Williams, 221 Mo. 227; R. S. 1909, sec. 2522; Akin v. Rice, 137 Mo. App. 147. (3) There is no proof that defendant had knowledge of any of the offenses complained of in plaintiff’s petition, hence he cannot be held responsible. State ex rel. v. Brewing Co., 270 Mo. 100. (4) There is no evidence in this case that defendant’s place of business was either a private or public nuisance. (5) Injunction cannot be invoked until defendant has been indicted or informed against, tried and convicted. State ex rel. v. Dearing, 253 Mo. 604; State ex rel. v. Wilson, 30 Kan. 661. (6) Defendant cannot be held responsible for tbe individual acts of persons alleged to be Ms patrons away from Ms place of business, and of which acts he had no knowledge. State ex rel. v. Moffett, 194 Mo. App. 286.

      Robert F. Kleinschmidt, Prosecuting Attorney, and Albert Miller for respondent.
    (1) The petition alleges and the evidence shows a public nuisance, which a court of equity may enjoin. State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Canty, 207 Mo. 439; State ex reí. v. Crawford, 28 Kan. 726; Haggart v. Stehlin, 35 N.. E. (Ind.) 1997; Jones v. State, 132 Olda. 319; 29 Cyc. 1189; Note to 15 L. R. A. (N. S.) 748; 258 Ill. 69. (2) A court of equity has authority to issue a temporary injunction without bond, to enjoin a public nuisance, upon the filing by the prosecuting attorney, in the name of the State, proceeding ex oficio, of a bill setting forth such nuisance and charging its maintenance by defendants. R. S. 1909, secs. 1007, 2522; Fourth Pomeroy’s Eq. Jur. (3 Ed.) sec. 1349; State ex rel. ,v. Lamb, '237 Mo. 437. (3) The testimony shows that the ¿appellant was personally present conducting the business and had knowledge of the acts and conduct alleged in respondent’s petition and established by the proof in this case to be a public nuisance. (4) The testimony shows conclusively that intoxicating liquors in less quantities than three gallons were sold by appellant, and consumed upon premises under his direction and control, and that the place of business so conducted by appellant became the resort of dissolute and immoral persons, whose continuously disorderly conduct tended to the injury of the public morals, peace and welfare, all of which constituted a public nuisance. State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Canty, 207 Mo; 439. (5) The petition charged and the proof establishes a public nuisance, and the writ of injunction should not be denied merely because the acts, or some of them, when committed, would be a crime, and injunction should issue regardless of whether appellant has been informed against, tried and convicted. State ex rel. v. Canty, 207 Mo. 439; State ex rel. v. Lamb, 237 Mo. 437; Ex parte Laymaster, 260 Mo. 621; State ex rel. v. Woolf oik, 269 Mo. 395; State ex rel. Lyon v. City Club, 65 S. E. (S. C.) 730; State ex rel. v. Crawford, 28 Kan. 726, 42 Am. Rep. 182; Walker v. McNelly; 121 Ga. 114; Ex parte Roper, 34 S. W. (Texas) 334.
   GRAVES, J.

Upon a division of opinion in the St. Louis Court of Appeals, this case was duly certified to this court in pursuance of constitutional provisions. By a sufficient petition, the prosecuting attorney of Jefferson County sought to enjoin the defendant from further running and maintaining a wholesale liquor house in a little place called Melzo in his county. Defendant was a licensed wholesale dealer in liquors under the Act of 1917, p. 318. The temporary injunction upon trial and hearing was made permanent, and defendant appealed to the St. Louis Court of Appeals, from whence the case comes here as above indicated.

Melzo seems to be a one man’s place. It is located between the City of De Soto in Jefferson County, and Bonne Terre in St. Francois County. Its location is on a public road, about midway between the two towns. Jefferson County is “wet” and St. Francois Coanty is “dry,” and Melzo is not far from the county line. Melzo seems to be made up of a store and post-office, both run by defendant, Jones, and this liquor house is likewise owned and run by Jones. The evidence would indicate that there was another wholesale house some-, where within the neighborhood, but not at Melzo.

The petition in this case states facts sufficient to show that the maintenance of this wholesale house constituted a public nuisance, although there are many allegations therein which only go to indicate the violation of criminal laws. Measured by the usual tests, the petition sufficiently charges the maintenance of a public nuisance.

The trouble with this case is the lack of evidence. There is evidence which shows that defendant sold liquor in less quantities than by the law and his license he was permitted to do. There is some slight evidence that there was, at the times indicated by a witness or two, some gambling of a minor nature. There is a little evidence of some loud talk and swearing in the place upon an occasion or two. Generally speaking the evidence shows Jones to be a reputable man, and no disorder in or about this liquor house. This comes from plaintiff’s witness, who visited the post-office, about 100 yards from the liquor house.

The great bulk of the evidence in this record is to the effect that along the public road from Melzo to Bonne Terre, men and women passed by in automobiles, apparently in their “cups.” There was a church and a school house something over a mile from, I believe a mile and a quarter, from Melzo, on the road to Bonne Terre, and these were disturbed.by these passing travelers. In instances beer bottles were thrown over into the yards, and apparently drunken remarks made to men and women near the public roadside. None of this, however, was at or near defendant’s place of business. All this was on the public.road a mile or more from the house which the State asks to be condemned as a public nuisance. The details of this evidence as to the conduct of the travelers upon the public road, far from the defendant’s place of. business, noisome as it may be, is not a matter of moment under the vital portions of the petition in this case. The petition is loosely drawn, and, contains many valueless statements of fact, but does contain a sufficient statement of facts as to the conduct of defendant’s place to make such place a public nuisance. These material allegations are not proven by the witnesses. This sufficiently outlines the case.

I. That a court of equity can prevent the maintenance of a public nuisance is thoroughly established in this State. [State ex rel. v. Canty, 207 Mo. 439; State ex rel. v. Lamb, 237 Mo. 437.] This is true although some of the acts g'oing toward the creation and maintenance of the public nuisance may be acts in violation of the criminal code, and themselves punishable under the criminal law. My personal view of the law was thus expressed in the separate concurring opinion in Ex parte Laymaster, 260 Mo. l. c. 621:

“I adhere strictly to the rule announced in State ex rel. v. Canty, 207 Mo. 439, and State ex rel. v. Lamb, 237 Mo. 437. I do not understand those cases to say that a court of equity will enjoin a crime, but they do announce the doctrine that when a given state of facts shows a public nuisance, them a court of equity will enjoin the doing of the acts which make up and constitute the public nuisance, although such acts or some of them may within themselves be crimes.”

The sale of liquor in violation of law is a crime, but equity will not enjoin the sale. This will be left to the courts of law. But unlawful sales of liquor may be at such places and under such facts and circumstances, as to make the whole thing a public nuisance. It is then, and only then, that equity will intervene and abate the nuisance. But the evidence must show such surrounding circumstances and facts as will constitute the maintenance of the place of sale a public nuisance. Merely showing that there are violations of law in the sales, by selling less than the license to sell authorized, does not make a public nuisance. In the instant case there was no substantial evidence upon which a court of equity could say that, outside- of sales of liquor in violation of law, the conduct of the place, or the persons frequenting the place, were of such character as to make the place a public nuisance. The record will be read in vain for such evidence.

That defendant conducted Ms place in as orderly-manner as is usual for a liquor house to be conducted, is clear from this record. The character of his customers is not assailed further than they no doubt bought and drank liquor. The State licensed the defendant to mate proper sales to just such persons, and without further showing than here made the State cannot enjoin in equity. Had the evidence shown some of the extravagant charges in the bill as to the conduct of the defendant’s place of business, we would have a different case. But it does not.

II. We have indicated, and the record shows, that persons, both men and women, passed along this public Mghway, apparently under the influence of liquor. The witnesses who saw them did not know 'where they got their liquor. Nor is it very material so far as this case is concerned. It might be conceded that they bought of defendant, and the status of the case would not be changed.

Defendant was licensed to sell and every traveler seen by the witnesses might have bought their liquor from him in quantities authorized by law. Defendant was not chargeable with the conduct of his customers after they left his place of business. If such customers' stopped by the roadside and over-indulged their appetites, and thereby became boisterous as they further proceeded upon their journey, such facts do not make the licensed house of the sales a public nuisance.

In a case upon very similar facts, State ex rel. v. Moffett, 194 Mo. App. l. c. 290, Thimble, J., aptly says:

“With regard to the charge that the house was located at the point in question in order to evade the Local Option Law in the three adjoining counties, the evidence shows that the defendant had a legal right to sell where he did. Courts cannot question the motives of a man when he does only that which the law gives him a right to do. Besides, there is no evidence of any evasion of the Local Option Law in the said counties. The only situation in that regard, presented by the evidence, is that persons who live in dry territory and desired to buy beer in Benton County, which was wet, could conveniently and legally buy it at defendant’s place of business and carry it to their homes in the dry counties. However reprehensible this may be and however desirable it is to remove such conveniences, a court of equity is not the place wherein that situation can be remedied. If the defendant’s business, which has been licensed by the law, can be enjoined and closed up in a court of equity because of the individual acts of persons alleged to be patrons, committed away from the place of business and at different times and places, then a licensed saloon can be closed by injunction because some of its patrons afterwards commit lawless acts under the influence of liquor purchased, according to law, at the saloon. The' jurisdiction of equity does not extend that far.”

The chief complaint in that case is like the chief complaint in this case. At page 289 Judge Tremble states what the evidence in that cdse tended to show, thus :

“The basis of the complaint of those who testified for the State seems to be, not that crowds of disorderly or noisy persons congregated in and about the place, disturbing the public peace and producing conditions detrimental to the general welfare, but that individuals on the public road between defendants place of business and the town of Windsor would, under the influence of liquor, render themselves obnoxious by loud and profane language, unseemly behavior, and other disorderly conduct.”

The evidence in this record fails to show facts which would authorize a court of equity to enjoin the defendant from the maintenance of. his place of business, and the trial court should.have dissolved the temporary injunction. The judgment is reversed, and the cause is remanded to the circuit court with directions to dissolve the injunction.

All concur; Bond, J., in result.


author: BLAIR, P. J.

text:
    FRED REED et al. v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY et al., Appellants.
    Division One,
    March 1, 1919.
    1. RECEIVERS: Taking Property from Custody. One court cannot hy appointing a receiver take from the custody of a receiver previously appointed by lawful order of another court the assets and estate in the latter’s hands as receiver. But a suit to declare a forfeiture of land granted to a railroad company in the hands of receivers for failure to keep a covenant to stop trains on signal, unless within a reasonable time they comply with such covenant, is not such a suit.
    2. -: Suit Without Leave. Except in actions to deprive receivers of possession of receivership property, want of leave to sue receivers appointed by another court is not jurisdictional, but such actions may be controlled by injunctive process or by proceedings as for contempt. If there is no attempt to interfere with the actual possession of property held by the receiver under the order of a court appointing him, jurisdiction of another court does not depend upon leave to sue. The rule applies where the receiver has been appointed by a Federal court and the action is brought in a State court.
    3. -: -: Waiver. A receiver may waive the point of want of leave to sue, by appearing without objection and pleading • without raising the point and praying affirmative relief.
    4. -: -: Leave to Defend: Presumption. Voluntary appearance and submission to the jurisdiction by a receiver raises a presumption of leave to defend.
    5. -: -: Failure to Raise Point in Trial Court. The receiver appointed by the Federal court having appeared in the State court and having failed to raise the point that the State court was without jurisdiction for that plaintiff had not obtained leave to sue, will not be heard on appeal or elsewhere to raise the point of want of jurisdiction. [Overruling Haag v. Ward, 89 Mo. App. 186, and Smith v. Railroad, 151 Mo. 391, in so far as they hold that want of leave was not waived.]
    6. -: -: Certifying Judgment to Federal Court. The State court after having adjudged that plaintiffs were entitled to have certain passenger trains stop on signal and' that if the railroad company and its receivers previously appointed by the Federal court “fail to stop their trains on signal, then all the right, title and interest which, they have acquired” in the strips of ground described in their deed should he divested and vested in plaintiffs, by ordering that no execution issue and that the judgment he certified to the Federal court, left the latter court in full power to direct the manner in which the judgment should he rendered effectual.
    7. COVENANT IN DEED: Stopping Passenger Train: Limitations. An intent to violate a covenant contained in a- deed to stop passenger trains on signal is not enough to start the Statute of Limitations running. Where the evidence shows that no one with any right to enforce such a demand had made request that a train be stopped on signal and had that request refused by the company until a short time before the suit was brought, a failure of the company for more than ten years to. schedule its through trains to stop on flag and failure in fact to stop them, could not start the statute, or bar the act to forfeit the land, according to the covenant.
    Appeal from Jasper Circuit Court: — Hon. Joseph D. Perkins, Judge.
    AFFIRMED.

      W. F. Evans and Mann, Todd & Mann for appellants.
    (1) The court erred in refusing to sustain the objection to the introduction of any evidence and in refusing to dismiss the case at the conclusion of all the evidence, because upon the allegations in the petition and the admissions in the case the fact that the receivers of all the property of the railroad company, including the real estate involved in this suit, had been appointed by the United States Court, deprived the circuit court of Jasper County of jurisdiction in this action. Murphy v. Hoffman, 53 L. Ed. (U. S.) 330; Palmer v. Texas, 53 L. Ed. (U. S.), 435, 440; Rickey v. Miller, 53 L. Ed. (U. S.) 1032; State ex rel. v. Reynolds, 209 Mo. 180; State ex rel. v. Williams, 221 Mo. 254; Bray v. Marshall, 66 Mo. 123; Springfield S. W. Ry. v. Schweitzer, 246 Mo. 127. (2) The court should have found the issue for defendant, because plaintiffs’ cause of action accrued more than ten yeara* prior to the institution of this suit .and was barred vy
      the Statute of Limitations. Hoke v. ' Central Twp. Farmers’ Club, 194 Mo. 576; Blair v. Railroad, 92 Mo. App. 538; Jones v. Railroad, 79 Mo. 96-7; Boyd v. Buchanan, 176 Mo. App. 56.

      Gray & Gray for respondents.
    (1) The appellants in declaring that inasmuch as the property of the company, including the real estate involved in this suit, was. in the hands of the receivers under appointment by the United States Court, the circuit court of Jasper County was without jurisdiction in the action, state the proposition to.o broadly. The Federal court could have retained jurisdiction in all these matters, or at its discretion authorized the respondents to institute their suit in Jasper County or the defendant receivers to appear in the Jasper County Circuit Court and file their answer asking for affirmative relief. Smith v. St. Louis & San Francisco Railroad Co., 151 Mo. 402; Durand & Co. v. Howard & Co., 216 Fed. 585, L. R, A. 1915 B, 998. (2) This being true, it cannot be said that the question is one of jurisdiction in its broadest sense because the courts hold that' even though at the time the suit was ’ instituted permission had not been obtained from the court in which the receivership matters were pending, yet such permit may be obtained at any time. Hirshfeld v. Kalischer, 81 Hun (N. Y.) 606. (3) Failure to obtain the leave does not deprive the court of all jurisdiction. Southwestern Surety Ins. Co. v. Pacific Coast Casualty Co., 159 Pac. 788; Payson v. Jacobs, 80 Pae. 429; Mulcahey v. Strauss, 151 Ill. 70. In any event,. the defendants by appeáring and asking for affirmative relief are bound by . the judgment. Manker v. Phoenix Loan Association, 100 N. W. 38; Flenthan v. Steward, 63 N. "W. 924. (4) The defendants having appeared and filed their answer asking for affirmative relief, they stand in the same position as if they had been parties plaintiffs in the case, and as the record is silent as to their authority to file the answer asking affirmative relief, it will be presumed that they had the consent of the court appointing them. Manker v. Phoenix Loan Association, 100 N. W. 38. To the same effect, are Carter v. Rodewald, 108 Ill. 351; Brook v. Watts, 19 S. C. 539, and Scott v. Duncombe, 49 Barb. 73. (5) The court should give proper weight to the fact that at no place in the record did the appellants in the trial court assert, claim or even insinuate that the receivers were not' authorized to appear and file the answer asking for the affirmative relief. The question really is, therefore, can receivers institute a suit to quiet title and defeat a judgment obtained against them because the record does not affirmatively show that they obtained permission of the court in which the receivership matters were pending to institute the suit? We say that in the absence of such testimony, the presumption will prevail that they had obtained such permission. (6) Plaintiffs’ cause of action was not barred by the Statute of Limitations when this suit was commenced. There is no proof that the company did not recognize the validity of the contract and that it was not still in force up to within a short time before this suit was instituted. Parrott v. Atl. Railroad Co., 81 S. E. 348. (7) Even though there be a formal breach of a contract, yet in order to preserve his right, the grantee is not compelled to file suit immediately, but he may wait until he has sustained some actual damage before instituting his suit. State ex rel. v. Tittman, 134 Mo. 162; Chambers v. Smith, 23 Mo. 174; Pineland Mfg. Co. v. Trust Co., 139 Mo. App. 209. (8) The covenant or agreement to stop trains is a continuing one and from day to day, and for that reason the Statute of Limitations does not run until the party complaining has suffered some real damage. Schaber, Admx. v. St. Paul Water Co., .14 N. Y. 874; Carnegie Realty Co. v. Carolina C. & Ry. Co., 189 S. W. 371.
   BLAIR, P. J.

This is a suit under a covenant in a deed executed by the father of respondents to the. assignors of appellant railway. The other appellants are receivers of the railway company, appointed by the Federal Court for the Eastern District of Missouri on May 27, 1913. This suit was begun November 1, 1913. The covenant mentioned provided, among other things, that passenger trains should be stopped at Reeds on signal and that a failure of the grantees “to perform their part of the agreement shall make void this deed and the land herein quitclaimed shall revert to its original owner.” The prayer of the petition is “for a judgment devesting said Railroad Company and said receivers of all right, title and interest in and to said premises, after giving them a reasonable length of time in which to comply with the terms of said instrument.” The court adjudged that respondents were entitled to have certain passenger trains stop on signal for passengers “and that if defendants continue to fail to stop their trains on signal, then all the right, title and interest which they have acquired in and to said strips of ground should be devested and vested in plaintiffs.”

The court further ordered' that since the road was’ in the hands of the receivers no execution should issue, hut a certified copy of the judgment should he filed with the appointing court and that “the enforcement of said judgment shall be in said court in which said receivership matters are pending.”

A statement of some of the proceedings prior to the trial is pertinent. December 10, 1913, the company and receivers filed separate answers. These were general denials. June 15, 1914, the receivers filed an amended answer. After the evidence was in an amended petition was filed with leave, and the receivers refiled their amended answer, and the company refiled its answer. The amended answer of the receivers consisted of (1) a general denial, (2) a plea that defendants had been in the “actual, open, visible, notorious possession of the strip of ground . . . described in the petition, and claiming to he the owners of the same, for moré than ten years prior to the institution of plaintiffs’ suit. That during all of said time there has been on said strip of ground railroad tracks and a depot, and defendants have been engaged in operating thereon a railroad, and that said strip of ground forms an integral part of its right of way and line of railroad over which defendants operate their trains from St. Louis, Missouri, to and through Jasper County, Missouri, and on into the States of Kansas and Oklahoma. Wherefore, defendants pray that the court will adjudge the title of said strip of ground described in plaintiffs’ petition to be well vested in these defendants and for costs.” The third paragraph-sets up the ten-year Statute of Limitations as a defense.

On. the trial the defendants'objected to the introduction of any evidence on the ground that the petition failed to state a cause of action and that the petition “shows that the property of the railroad is in the hands of receivers, and the jurisdiction of the res of the property should be in the. court appointing the receivers; this court has no jurisdiction.”

Appellants raise two questions. First, that the Jasper Circuit Court had no jurisdiction, since the property was in the hands of receivers appointed by another court. Second, that the cause of action was barred by the ten-year Statute of Limitation.

I. The first contention is that the fact that the railroad property was in the hands of receivers appointed by another court deprived the courts of Jasper County of jurisdiction in this case.

(a) It is well settled that one court may not appoint a receiver and take from the custody of a receiver previously appointed by lawful order of another court the assets and estate in the latter’s hands as receiver. [State ex rel. v. Reynolds, 209 Mo. 161.] It was held also in State ex rel. v. Williams, 221 Mo. 227, and Hardware Company v. Building Company, 132 Mo. l. c. 452, that in case one court has taken jurisdiction of a particular subject-matter and rendered its decree and the right of appeal is open to the losing party, a second court has no jurisdiction to open up and cause to be relitigated the questions determined, by the decree rendered by the court which first took jurisdiction. The authorities generally are in accord with these decisions. It is apparent this case does not fall within either of these principles. The contention of appellants is, in substance, that no action or suit can be brought against receivers without leave of the court appointing them and that want of leave is jurisdictional.

(b) It is now well recognized that the great weight of authority sustains the view that, except in actions having the purpose to deprive receivers of possession of the receivership property, want of leave to Slie is n°f jurisdictional but that such action may be controlled by injunctive process or by proceedings as for contempt. [High on Receivers (4 Ed.), sec. 254a; Alderson on Receivers, sec. 525; Carter v. Rodewald, 108 Ill. 351; Railroad v. Smith, 19 Kan. l. c. 230, 231; Bank v. Risley, 19 N. Y. l. c. 376, 377; Kinney v. Crocker, 18 Wis. l. c. 77, 78; Blumenthal v. Brainerd, 38 Vt. 402; Lyman v. Railroad, 59 Vt. 167; Allen v. Railroad, 42 Iowa, l. c. 686, et seq.; Hirshfeld v. Kalischer, 81 Hun, 606; Shedd v. Seefeld, 230 Ill. l. c. 127; Leuthold v. Young, 32 Minn. 122; Flentham v. Steward, 45 Nebr, 640; Payson v. Jacobs, 38 Wash. 203; Burke v. Ellis, 105 Tenn. l. c. 705, 706.]

The rule of these cases is that in cases in which “there is no attempt to interfere with the actual possession of property which the receiver holds under the order of” the court which appointed him the jurisdiction of another court does.not depend upon leave to sue; that the jurisdiction of other courts is not ousted in such cases by the mere fact of the appointment of a receiver; that the appointing court may, in any proper case, enjoin the suitor or proceed against him as for contempt, but that its jurisdiction of the receivership does not, of itself, deprive all other courts' of ah jurisdiction in every matter affecting the receiver and the property in his hands. In Railroad v. Smith, supra, Brewer, J., subsequently of the United States Supreme Court, held that though it be conceded a court appointing a receiver might draw to itself all controversies affecting the receivership property, it was not compelled to do so. It had the power to leave them to be determined by other courts of appropriate jurisdiction; that the “appointment does not, ipso facto, oust all other courts of their ordinary jurisdiction as to matters in which the receiver may be interested, or which affect the property placed in his hands; it simply secures to that court the power to control at its discretion all such controversies. It may assert its right to táke to itself all such controversies, or it may leave them for determination where the parties may bring them. The jurisdiction of other courts remains unchanged; but it may reach parties and compel them to proceed nowhere else than in its own forum.” The authorities and the cases therein cited show this rule is supported by the weight of authority in this country and is the rule in England.

In Barton v. Barbour, 104 U. S. 126, a divided court held that a receiver of a railroad, appointed by the courts of one State, could not be sued without leave in a court of another jurisdiction in an action for damages based on the receiver’s negligence in'operating the road; that the second court had no jurisdiction to entertain such a suit. The last paragraph limits the holding to the facts stated. [See Manker v. Loan Assn., 124 Iowa, 341.] This opinion has met with much criticism and but few courts have followed it. Some of these have subsequently overruled themselves and rejected the rule of that case.,

(c) The fact that the receiver is one appointed by a Federal court and that the action is. brought in a State court has not "been thought to affect the question. [Carter v. Rodewald, 108 Ill. 351; Railroad v. Smith, 19 Kan. l. c. 230, 231; Kinney v. Crocker, 18 Wis. l. c. 77, 78; Allen v. Railroad, 42 Iowa, 686 et seq.]

(d) Under the rule which we have stated is supported by the weight of authority, it is clear the receiver may waive the point of want of leave to sue appearing without objection and pleading without raising the point and praying affirmative relief. All these things the receivers did in this case. [Flentham v. Steward, 45 Nebr. 640; Mulcahey v. Strauss, 151 Ill. l. c. 80, 81; Manker v. Loan Assn., 124 Iowa, 341; Sligh v. Railroad, 20 Wash. 16; Payson v. Jacobs, 38 Wash. 203; Southwestern Surety Ins. Co. v. Casualty Co., 92 Wash. 654.]

(e) It is also held that voluntary appearance and submission to jurisdiction raises a presumption of leave to defend. [Manker v. Loan Assn., 124 Iowa, 341; Carter v. Rodewald, 108 Ill. 351; Alsobrook v. Watts, 19 S. C. l. c. 543.]

(f) The same doctrine of waiver is applied by courts which take the view that want of leave is jurisdictional. [Keen v. Breckenridge, 96 Ind. 69; Carworks Co. v. Ellis, 113 Ind. l. c. 216.] In the Ellis case it was held that a receiver who “voluntarily submitted to the authority of the court and joined issue without objection” could not raise the question. The rule was approved in In re Young, 7 Fed. 855.

In Grant v. Buckner, 172 U. S. l. c. 238, a receiver appointed by a Federal court sued in a state court to recover rent alleged to be due on property in his hands. The tenant filed a setoff for over-payments of rents of previous years and had judgment. To the objection that such a setoff could not be allowed by a State court in such circumstances, the Supreme Court of the United States replied: “It is said-in the brief that the court first acquiring jurisdiction has a right to continue its jurisdiction to the end. We fail to see the application of this. The receiver voluntarily went into the State court, and having voluntarily gone there cannot question the right of that court to determine the controversy between himself and the defendant. A similar proposition was often affirmed in cases of bankruptcy, although by Section 711, Revised Statutes, the courts of the United States are given exclusive jurisdiction ‘of all matters and proceedings in bankruptcy.’ [Mays v. Fritton, 20 Wall. 414; Winchester v. Heiskell, 119 U. S. 450, and cases cited in the opinion.] The same rule applies here. The question presented is not how the estate belonging to the receiver shall be administered, but what is the estate belonging to him. The two questions are entirely distinct.’ ”

The rule in bankruptcy proceedings, thus held applicable to suits against receivers, appears from the two cases the court cited. An examination of these eases becomes necessary.

(1) In 1862 Born executed a mortgage to Doll. Thereafter (January, 1868) he authorized the confession of judgment in favor of F'ritton and judgment was tendered. In February, 1868, creditors instituted bankruptcy proceedings. Doll sold under his mortgage in July, 1868. Fritton appeared before the proper State tribunal and claimed her judgment was a lien on the surplus arising from the mortgage sale. The assignee in bankruptcy appeared by counsel and claimed the entire fund as part of the bankrupt’s estate. Pritton denied this claim, and- a jury returned a verdict in her favor. The State Supreme Court affirmed this judgment. The United States Supreme Court held that the question of the jurisdiction of the State court had not been raised below and was, therefore, not available. “The present was the case of the foreclosure of a mortgage under the State laws. The disposition of any surplus that might arise from a sale on such mortgage under a proceeding in the State courts prima-facie belonged to the State courts. Tbe subject-matter was within their jurisdiction and under their control. If special circumstances existed which altered that result, it was the duty of a party making such claim to state them and ask a ruling accordingly. Nothing of the kind was done in the present instance.

“To be available here an objection must have been taken in the court below. Unless so taken it will not be heard here. It is not competent for a party to assent to a proceeding in the court below, take his chance of success, and, upon failure, come here and object that the court below had no authority to take the proceeding. The point comes before us at every term and is always decided the same way.” [Mays v. Fritton, 20 Wall. l. c. 418.]

(2) In the other case cited, Winchester v. Heiskell, 119 U. S. l. c. 453, the assignee in bankruptcy made the point of no jurisdiction before the referee and the State supreme court. No such point was made in the pleadings. It was held his appearance and litigation of his rights in the State court made the judgment binding.

It appears,, therefore, that the rule of waiver in bankruptcy, held in Grant v. Buckner, supra, to be applicable in actions in which receivers are parties, is as broad as the rule announced in the decisions of the State courts above cited, and that under either rule it must be held, on the facts already stated, that the question of want of leave to sue was waived and cannot now be urged in this court. Haag v. Ward, 89 Mo. App. 186, and Smith v. Railway, 151 Mo. 391, in so far as they are out of accord with this view, are overruled.

(g) The court ordered that no execution issue and that the judgment be certified to' the court which appointed the receivers. This leaves to the latter court its full power to direct the manner in which the judgment shall be rendered effectual. [Burke v. Ellis, 105 Tenn. 706.]

II. It is urged the action is barred. It was admitted by counsel for appellants that the “railroad company -has operated through passenger trains which were not scheduled to stop at Reeds as a regular stop; nor as a flag stop, and which do not, in fact, stop at Reeds as a regular stop, nor on flag, since prior to the year 1900.” On the other hand, the respondents’ evidence on the question showed that no one with any right to enforce such a demand had made any request that a train be stopped on signal and had that request refused by the company until a short time before this suit was brought. The mere fact that the company did not schedule its trains to stop on flag or that it would not have stopped them could not start the running of the statute. The company recognized other provisions of the deed in all respects until a short time before this, suit was begun. Its intent, if it had such intent, to violate the covenant as to stopping trains, was not enough to start the statute. The judgment is affirmed.

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