author: BROWN, C. WOODSON, J.

text:
    F. W. HOLLOWAY v. MISSOURI, KANSAS & TEXAS RAILROAD COMPANY, Appellant.
    Division One,
    December 30, 1918.
    1. ASSUMPTION OF RISKS: Federal Employers’ Liability Act. Contributory negligence is not a bar to recovery for personal injuries Federal Employers’ Liability Act, but the law of the State as to assumption of risks is applicable as a defense unless there is a violation of the safety-appliance statutes. [WOODSON, J., dissenting.]
    2. -:-: Common Law of State. The defense of assumption of risks as it existed at common law was left untouched by the Federal Employers’ Liability Act except where a violation of a statute enacted for the safety of employees contributed to the injury, and if the Safety-Appliance Act has no application to the case the right of an injured employee to recover, where assumption of risks is pleaded, is to be determined according to the .common law of the State in which the cause of action accrued.
    3. -: Definition. Under the common law as applied in Missouri assumption of risks stands upon contract, expressed or implied, and that law does not intefere with the employment of persons in the hazardous occupation of railway operation upon lines and with appliances reasonably fit for that purpose, nor with the reasonable exercise of the judgment of the employer in the construction, maintenance and operation of these facilities. [WOODSON, J., dissenting.]
    4. --: Difference in Elevation and Grade of Tracks. A difference in elevation between the main track and the passing track, and a difference of eighteen inches in their grade, well known to an experienced brakeman who attempted to descend from the main track for the purpose of mounting a local freight train moving on the passing track, was a condition of his employment, and if an additional danger he assumed the incidental risk.
    5. -: -: Duty of Company: Increasing Danger: Insecure Footing: Loose Joints. If it was customary, or frequently necessary or convenient, for brakeman to mount the moving cars of freight trains as they passed over the side track, and such service was accepted by the company, the same principle of law by which the brakeman assumed the risk resulting from a permanent and unusual construction of the tracks imposed upon the company the duty of using ordinary care to avoid adding additional and unnecessary danger to the already hazardous situation. As the brakeman assumed the risk of descending from the main track for the purpose of mounting a freight train moving on the lower passing track whose grade was also different, it was the duty of the company to make the intervening space over which he had to pass stable and secure, and not to maintain ballast of large stones insecurely set and covered by loose chat, and not to maintain the side track on broken or rotten ties, so that the cars gave down at the rail joints and by their violent movements tended to break his hold on the grab-iron.
    6. -: -: -: Question for Jury. Where there is evidence tending to show that the railroad company failed to exercise ordinary care to avoid increasing the danger in the conditions assumed by the employee, and on the contrary testimony tending to prove that all the conditions were perfect, considered from the standpoint of unusual construction, the question of the company’s negligence and the employee’s assumption of risks should he submitted to the jury.
    Appeal from Henry Circuit Court. — Hon. C. A. Galvird, Judge.
    Affirmed.

      J. A. Galbreath, Peyton A. Parles, W. E. Owen, and Jos. W. Jamison for appellant.
    (1) Plaintiff’s petition alleges that in the space between defendant’s main-line track and passing track there was a piece of rock ballast covered up and hidden from view by fine chat ballast. That when plaintiff undertook to mount a car, as it came by where he was, the chats and ballast “gave way under plaintiff’s left foot on account of the bowlder and rocks just beneath the fine chat which had been sprinkled over them, which caused his foot to turn in under him and slide down the embankment while in the act of taking hold of the grab-iron of the car,” etc. Plaintiff’s own testimony shows that it was the turning of his foot on a single piece of ballast beneath the chat, through which his foot sank, as he attempted to board the car, that was the' proximate cause of his injuries. His petition states no cause of action, and he offered no evidence proving or tending to prove actionable negligence, It was not alleged in the petition that it was not reasonably necessary for defendant to construct its passing track on a lower grade 'than the main line track. There was no evidence offered tending to show that defendant knew, or by the exercise of reasonable inspection, might have discovered that the piece of rock ballast, which was covered with a layer of chat, and on which plaintiff’s foot turned, causing him to fall,, was lying in such position that it might cause such an accident if perchance a trainman in the performance of his duties, might place his foot upon the fine chats above said heavier piece of ballast. Plaintiff testified that the piece of rock on which his foot turned was concealed beneath a layer of chat so it could not be seen, and that his foot sank down through the chat as it came in contact with the ballast. Morris v. Pryor, 198 S. W. 817; Kane v. Railway Co,., 251 Mo. 45; Current v. Ry. Co., 86 Mo. 66; Williams v. Ry. Co., 119 Mo. 324; Newlin v. Ry. Co., 222 Mo. 375. (2) The question as to the proper construction of defendant’s main line and passing track at Calhoun, all physical conditions being considered, was an engineering question. Tuttle v. Milwaukee Ry., 122 U. S. 189; Potomac F. & P. R. Co. v. Chichester, 68 S. E. (Va.) 404.

      Wilkerson $ Barnett and Sizer & Gardner for respondent.
    (1) The court did not err in setting aside the involuntary non-suit and in granting plaintiff a new trial. Stauffer v. Railroad, 243 Mo. 316. The party demurring admits the truth of the testimony to .which he demurs, and also those conclusions of fact which a jury might fairly draw from that testimony. Forced and violent inferences he does not attempt, but the testimony is to. be taken most strongly against him, and such conclusions as a jury might justifiably draw, the court ought to draw. Pawling v. United States, 4 Cranch. 219; Pleasants v. Fant, 89 U. S. (22 Wall.) 121; Turner v. Anderson, 260 Mo. 17; Williams v. Railroad, 257 Mo, 112. If the action of the trial court in setting aside the nonsuit and granting a new trial (which is the same as overruling the demurrer to the evidence in the first place) was right for any reason, the action of the trial court will be sustained. Clark-son v. Garvey, 179 Mo. App. 9; State ex rel. Hartman v. Thomas, 245 Mo. 65. (2) The burden of appellant’s contention is that the testimony failed to show that defendant company knew or by the exercise of ordinary care could have known that the boulders were underneath the chats at the place in question. It should be kept in mind that the defects alleged were structural defects; i. e., defects in the roadbed itself. This was defendant’s own roadbed, constructed and built by the defendant and kept and maintained by it, and having been built and constructed by the defendant itself, defendant is charged in law with full notice and knowledge of the manner of its construction and of the materials placed therein. Cabanne v. St Louis Car Co., 178 Mo. App. 725; Cody v. Lusk et ah, 187 Mo. App. 337;' Taiman v. Railway, 96 Mo. App. 448;. Young v. Shickle, H. & H. Iron Co., 103 Mo. 328. {3) Defendant owed the plaintiff the duty to use reasonable care to keep the roadbed' and ways in reasonably safe condition, and what constitutes reasonable care must depend upon the surroundings and the dangers to be fairly apprehended and encountered. 26 Cve. 1125; Hall v. Mo. Pac. Ry. Co., 18 S. W. (Mo.) 426; Rifley v. Minneapolis & St. R. Co., 72 Minn. 469. Maintaining a soft, spongy and springy roadbed will justify a jury in finding such action to be negligence. Baker v. Great Northern, 83 Minn. 184; Culver v. South Haven Ry. Co., 138 Mich. 443; Hollenbeck v. Mo. Pac. Ry. Co., 141 Mo. 97; Swadley v. Mo. Pacific, 118 Mo. 269. (4) The question of assumption of risk by the plaintiff was one for the jury. The duty imposed is to use reasonable care and diligence to furnish safe tracks for its employees, and the plaintiff has a right to assume that this has been done. Lake Erie etc. Co. v. Morrissen, 177 111. 376; Hach v. St. Louis etc. R. Co., 208 Mo. 581. Where a brakeman is injured by reason of rotten and defective ties, such a condition of the roadbed constitutes negligence. Chesapeake & N. R. Co. v. Tenable, 111 Ky. 41; McFee v. Vicksburg S. & P. R. Co., 42 La. Ann. 790; Gulf Ry. Co. v. Pettis, 69 Tex. 689; Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U. S. 310. An employee does not assume a risk unless it was'apparent to him at the time and the danger was fully appreciated. And he has a right to assume that the master has furnished him a reasonably safe place to work, and the danger must be so glaring and thereatening that an ordinarily prudent man would not have attempted the work in hand. Hurst v. K. C., etc. Co., 163 Mo. 309; Franklin v. M., K. & T., 97 Mo. App. 473; Huhn v. Mo. Pac., 92 Mo. 440; Soeder v. Railroad Co., 100 Mo. 673.
   BROWN, C.

This is a suit for personal injuries received by plaintiff on March 2, 1914, while in the employment of defendant as brakeman and assisting in the operation of a local freight train on defendant’s railway, running from the city of Nevada, Missouri, to the city of Sedalia, Missouri. The injury was the result of falling from a car which he was attempting to board while in motion. He was thrown beneath the car, the wheel of which passed over and injured his right leg, so that it was necessarily amputated above the knee. The train was at the time engaged in the transportation of interstate freight and the suit is expressly founded upon the Federal Employers’ Liability Act. The petition, which was filed in the Henry County Circuit Court August 6, 1914, returnable to the next September term, states that “defendant owed to plaintiff the duty to exercise ordinary care to furnish plaintiff with a reasonably safe place to work, and further owed plaintiff the duty to exercise ordinary care to see that its track and roadbed and ways and means of transportation were reasonably safe for plaintiff to perform his duties; that defendant owed plaintiff the further duty to keep its passing tracks and its main line tracks on the same level or grade, as was the custom at other places upon its own road, and as was the custom of other railroads in the State of Missouri, and to keep the spaces properly ballasted and in reasonably safe condition; that on account of the failure of the defendant to perform its duties in these respects, plaintiff was injured.”

It then charges the failure to perform such duty as follows:

~ “(1) That the train which the defendant was then and there operating was negligently overloaded as to cars and tonnage, considering the engine and the heavy grades of the defendant’s tracks' from the water tank where said train was compelled to stop for water, and the station where said train had to go on to the passing track to clear the main line, which overloading necessitated the dangerous practice of making a run for heavy grade between the tank and the station; and on account of such negligence plaintiff was required to go ahead of said train to open the switch and to mount said train while it was making a run for said grade.

“(2) That the defendant was further negligent, in whole or in part, by keeping and maintaining the space between the main line and passing track in a defective condition, and not in a reasonably safe condition for plaintiff to perform his duties, in that said space was steep and sloping from top of ties on main line to end of ties on passing track, and not on the same level or grade as the main line, and the sloping space covered with fine chat ballast over large and rough rock ballast, deceptive and hidden from plaintiff’s view while attempting to walk on said space and to use same in mounting car.

“(3) That the ties of the passing track were1 rotten, old and defective, and the joints of rails uneven and low, and spikes in ties were loose and rails uneven and unsupported by rotten and defective ties, so that the cars when passing over same would sway and rock violently, thereby making said passing track not reasonbly safe.”.

“That the defects and dangers as aforesaid were known to the defendant, its officers, agents and em- ' ployees, or by the exercise of ordinary care could have been known in time to have avoided injury to plaintiff; that said acts of negligence, acting separately or conjointly with each other, caused the injury to plaintiff, as aforesaid, to his damage in the sum of $30,000.”

Appellant answered by general denial, with pleas of contributory negligence and assumption of risk, and also a plea that plaintiff had full o^ portunity and liberty to select, and it was his duty to select, a safe place from which to board the car, and that, all the conditions being open to his observation, he chose the time, place and method from which the injury resulted. These affirmative matters were put' in issue by replication.

The’cause was tried at the May term of the Henry Circuit Court before a jury, and at the close of all the evidence for both plaintiff and defendant the court instructed the jury, to find for the defendant, upon which the plaintiff took a nonsuit with leave, filed motion to set it aside, which was continued until the September term, 1915, when it was sustained and the judgment of nonsuit set aside, from which order and judgment this appeal is taken.

The facts developed by the plaintiff and necessary to the determination of this appeal are as follows:

The train on which the plaintiff was employed as head brakeman at the time of his injury, was a local freight running north from Nevada to Sedalia, which constituted what is called a local division. The defendant had, with the exception of a few months, been in the employ of the defendant company in similar service fourteen years. Although this was his first run on the Iqcal freight he had been employed upon other trains, including a through, freight running upon this same track between Sedalia and Parsons, Kansas, for several years, and was well acquainted with defendant’s tracks at this point, to which he testified freely.

The accident occurred at the Calhoun station, where there was a passing track about sixty cars in length, leading out of the main track at about one hundred and fifty or one hundred and sixty yards north of the tank of a water station. Running north of the tank was a stream, crossed by a bridge, and the grade was practically level to the point of the switch. After passing this, the grade of the main track rose toward the north to a point near the station house, which was situated on a road which crossed¡ the tracks at a point about forty car-lengths north of the switch, and, therefore, about twenty car-lengths south of where the passing track reentered the main track, was day time, and the plaintiff’s train, going north, was closely followed by a local passenger, and both were to meet at that point a through passenger going south, and having the right of way. It was necessary therefore for the two local trains to take the passing track. The plan or method was for the local trains to move onto the passing track, where the rules required them to be five minutes ahead of the time of the other train. The grade of this passing track at the switch where they were to enter it from the south did not rise with the uniform grade of the main track, but ran level for perhaps .ten car-lengths, and then rose to meet the grade of the main track at the crossing, so that where the accident occurred it was nearly or quite eighteen inches below the grade of the main track. The nearest rails of the two tracks were about ten feet apart, and the ties beneath them projected about eighteen inches, leaving seven feet between the ties.

The local freight came up to the tank and stopped for water, and the plaintiff got off and walked along the main track ahead of the engine across the bridge, and past tbe switch about seven car-lengths. There were twenty-five cars in the train and one of them had a hot box, and it had been his plan to get on the caboose when it should stop, where he would get the necessary tools and brass to fix it, and then walk up to the car for that purpose. He was walking in the middle of the main track where he had walked frequently before, and the footing was smooth and good. He looked back and saw that his train had moved and that the local passenger was coming to the tank about two hundred yards behind it. He walked on up the track for about five car-lengths more, and then changed his mind about waiting for the caboose, determining instead to get on to one of the freight cars and ride up the track, to cut the highway crossing should it be necessary for the train to stand across it more than five minutes. He- also remembered that there was to be a car of horses on the house track to be taken into the train and it would be necessary for him to attend the engine and do the switching, for which it would be necessary to use the main track, after thei train for which they were waiting should pass. By this time his train was passing him. He turned toward it and when near enough he reached for and seized the grab-iron with the left hand and started to run with the train until he could seize it with his right and swing himself up to the stirrup. He had gone about two or three steps when something slipped or gave way under his feet, the car gave a lurch which took the grab-iron from his hand, and he fell and rolled under the train, which pased over his leg.

The ballast consisted ■ of crushed stone covered with what is described in the evidence as chat, which seems to be the fine stuff which passes through the screen over which the product from the rock crusher is run, and the name is also applied to a similar product from the lead and zinc mines, which is sometimes used for such purposes. The evidence tends to show that some of the rock used in the ballast was large. Four pieces picked up from near this place were brought into court, but the record gives us little information from which to estimate thir size. We have to assume that they were uncommonly large for use in such construction. The witness felt his foot crushing through the chat and a stone roll from under it when he stepped on the ballast outside the rail, and he lost his footing. There is testimony that these larger stones were concealed beneath the chat which escaped from beneath his foot. There was evidence that the chat would escape from between these stones, leaving hollow spaces covered by an apparently firm surface.

The evidence also tended to show that some of the ties under the passing track were defective, unballasted, broken and without firm support, and the spikes loose, so that the rail joints would sink under the train, giving the car passing over them a motion which made it difficult to hold on to the grab-iron or ladder on which the trainmen were compelled to climb in the discharge of their duties. . There was also evidence tending to show that the space between the toe of the ballast in the main track and the ties of the passing track was in an uneven condition and soft. There was no evidence tending to show that the main track was not in perfect condition to stand the traffic that passed over it, and the respondent testified that it was good walking between the rails.

I. The appellant is an interstate carrier by rail, and was engaged in interstate transportation with respect to the matters involved in this controversy. The suit stands upon the provisions of Sections 1 and 2 of the Employers’ Liability Act of April 22, 1908, and is for damages resulting to the respondent, a brakeman engaged in handling its train, from the loss of a leg crushed under the wheels of one of its ears.

This appeal is from an order of the court setting-aside a nonsuit suffered by respondent by reason of a peremptory direction to the jury to find for the defendant, given after the evidence of both parties had been heard... The only question, therefore, is whether the evidence should have been submitted to the jury. Although contributory negligence is pleaded in the answer, Section 3 of the act provides that it shall not be a bar to the action, so that it will he unnecessary to notice that question.

This provision as to contributory negligence does not, however, apply to the assumption of risk, for this was separately treated in the next section (4), which is as follows: “That in any action brought against any common carrier under and by virtue of any of the provisions of the act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” The. safety appliance act having no application to this case, it follows, as has been frequently decided by the Supreme Court of the United States, that the assumption by respondent of the risk attending the condition affecting the accident would constitute a complete defense. [Seaboard Air Line v. Horton, 233 U. S. l. c. 492 et seq; Railroad v. Vreeland, 227 U. S. 59; Railway v. Crockett, 234 U. S. 725; Railway v. Hesterly, 228 U. S. 702; Railway v. Washington, 222 U. S. 370; Railway v. De Atley, 241 U. S. 310; Jacobs v. Southern Railway, 241 U. S. 229.]

It is evident that when Congress, in the exercise of its plenary constitutional power, enacts a law relating to a particular subject, the statute so enacted is not only paramount to all State legislation upon that subject, but the legislative power of the State to occupy the same field ceases. This question is fully discussed in the cases we have cited, as well as in many other decisions of the same court which they cite and with which the bench and bar are familiar. The field is the liability of interstate carriers by rail for injuries to their emplovees and the enactment of the Federal law substituted it for all State laws on the same subject. The defense of assumption of the particular risk out of which the injury has grown having been left by the act untouched as it existed at common law, and full jurisdiction having been conferred upon the State courts for its enforcement, it follows that it must he determined and judicially enforced according to the common law existing in the State in which it accrued as if the act had not been passed. This is the doctrine distinctly announced by this court in Fish v. Railroad, 263 Mo. 106, 123, and Williams v. Pryor, 200 S. W. 53.

The common law, as expounded and administered in Missouri, expressed with sufficient accuracy for the puposes of this appeal, is that assumption of risk stands upon contract, expressed or implied, while negligence lies in tort, and that public policy forbids the judicial enforcement of contracts authorizing tortious acts upon one’s person. Upon this principle we have held that injury by negligence cannot be justified by contract. The rule does not interfere with the employment of persons in the hazardous occupation of railway operation upon lines and with appliances reasonably fit for that purpose, nor with the reasonable exercise of the judgment of the employer in the construction, maintenance and operation of these facilities.

In this case the petition complains that the passing track upon which the train was running at the time of the injury was lower than the main track and his evidence tends to show that there was a difference of some eighteen inches in the grade, so that when he attempted to mount the passing car from the main track he was compelled to descend that distance to reach it. This situation might have been created by the appellant to save cost of construction, to obtain momentum for trains passing from the water tank into and up the grade of the side track, or to protect the main track and through trains running thereon from the possible breaking loose of cars standing or running on the siding. The reason in this connection is immaterial. The physical fact was there and open to observation. The respondent knew it, and there is no pretense that during the years he had been accustomed to run over it he had ever complained. So far as the difference in gradient and the resulting difference of elevation in these two tracks is concerned he knew' it and accepted it as one of the conditions of his employment. If it created an additional danger in a dangerous occupation, his own experience and evident intelligence compel us to assume that he fully recognized it and assumed the incidental risk.

II. The testimony tends to show that it was customary, and frequently necessary or convenient, in the performance of the work in which respondent was engaged at the time and place of the accident, to mount the moving cars as they passed over the siding, and that the service was accepted by the appellant. The same principle of law by which he is held to have assumed the risk resulting from the permanent and perhaps unusual construction of the tracks, charges the appellant with the duty of recognizing the situation so created and using ordinary care in its maintenance with reference to it, so that additional and unnecessary danger shall not be added to an already hazardous condition. In this respect the duty of ordinary care has reference to the existing situation and its dangers. Dangerous construction cannot be made an excuse for negligent maintenance. The difficulty of mounting a car passing along this low track from a position upon the high one ought not to be embarrassed by any inordinate and unnecessary insecurity of the footing from which the start must be made, nor- by any unnecessary condition tending to shake off one who has attained the hold that he seeks. If there is a path between the two tracks from which the operator may make the attempt - it should be kept clear from stumbling blocks so far as ordinary care will accomplish that object.

Upon these features of the case the evidence is irreconcilably conflicting. On the one hand it is to the effect that the ballast outside the rails of the main track over which the respondent was required to pass, was unnecessarily unstable and insecure; that the track over which the moving train was passing was laid on old, imperfect and in some cases broken ties in ■which the spikes were so loose that they could be drawn with the hand, and that the joints between the rails were low, loose and unstable, all of which had the effect of producing violent and unusual movements of the cars; that the little space left unoccupied between the ballast of the main track and sides of the passing cars was narrow and difficult. On the other hand there was testimony tending to prove that all these conditions were perfect, considered from the standpoint of usual construction. Such conditions are variable, and we are not prepared to say either that there is no evidence which should have been submitted to the jury that the appellant was negligent in the maintenance of its road in these respects, or that, if they should find it was so negligent, it is shown by the evidence to a legal certainty that the respondent knew the resulting conditions, and recognized and appreciated the danger. These questions should have been submitted to the jury.

It follows that the order of the trial court setting aside the nonsuit and granting a new trial is affirmed, and the cause remanded for further proceedings.

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

All concur; Woodson, J., in separate opinion, Graves, J., in result.

WOODSON, J.

(dissenting). — I concur in the result reached by the opinion of our learned commissioner in this case, but dissent as to what is therein said regarding contributory negligence and the assumption of risks. I fully expressed my views upon those questions in the recent case of Johnson v. Waverly Brick & Coal Company, 205 S. W. 615, l. c. 617, paragraph three,


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. TIM BIRMINGHAM v. GEORGE E. HACKMANN, State Auditor.
    Mandamus.
    In Banc,
    December 30, 1918.
    1. STATE OFFICE: Official Residence. If the statute fixes no place of residence for a state officer, he has the legal right to maintain his residence anywhere in the State; and if it likewise does not prescribe the place of his office, he can choose the place.
    2. -: -: Traveling Expenses. If the statute contains no requirements as to the place of residence or the place of the office of a state officer, but does say that he shall be paid “all necessary traveling expenses,” the State Auditor is without authority to refuse to audit and allow his traveling expenses incurred in traveling, in the performance of his statutory duties, from his residence, in one part of the State, to his office, in another part, including his hotel bills in the city where his office is.
    Writ issued.

      Frank II. Farris for relator.
    (1) It is the duty of the Governor to appoint a State Game and Fish Commissioner who shall hold his office for a term of four years, receive a salary of twenty-five hundred dollars per annum, payable monthly out of the Game Protection Fund. R. S. 1909, sec. 6557. (2) “The Game and Fish Commissioner may provide and maintain a suitable office and may maintain a clerk when necessary. At the end of each calendar month he shall file with the State Auditor an itemized statement under oath, of all sums of money r actually and necessarily expended by him in the discharge of his official duties. Such statement shall include office rent, salary of one clerk, salaries and expenses of deputies, and necessary traveling expenses, postage, stationery, fuel and such incidental expenses as may be required. The State Auditor shall draw his warrant for such amount, which shall be paid monthly out of the Game Fund.” R. S. 1909, sec. 6558. (3) The State G-ame and Fish Commissioner is not among the officers of the State who are required by our Constitution to reside, at the capital during their term of office, nor to keep his books and records there. Constitution, art. 5, sec. 1. And there is nothing in the law creating his office and prescribing his duties which requires him to reside at the capital or at any other particular point within the State. Art. 2, chap. 49, R. S. 1909. (4) It is not the province of the State Auditor to interfere with any expenditure of money or the performance of any act that is clearly embraced within the provisions of the law creating the department, the officers thereof, and prescribing the duties and rights of such officers .in the creation of expenses and the payment of the same. State ex rel. v. "Wilder, 199 Mo. 484; State ex rel. v. Gordon, 245 Mo. 27. (5) In this case the statute creatina' the office and providing for the compensation of the officers includes his traveling expenses, and the appropriation is made for the payment of his traveling expenses; being thus provided for by law and specific, money appropriated for its payment, the officer is entitled to receive the amount of money expended in traveling expenses in the discharge of his duties. It is admitted by the demurrer that the expense incurred by relator was necessary in the discharge of his duties as a public officer, and being necessary and incurred in the line of duty, and being provided for bv law, and covered by special appropriation, he is entitled to collect the same. A public officer may collect expenses incurred in the keeping of his .office although the statute creating the same and defining his duties does not specifically -name the expense incurred. Ewing v. Yernon County, 216 Mo. 693.

      Frank W. McAVister, Attorney-General, and S. E. Skelley, Assistant Attorney-General, for respondent.
    (1) Respondent contends that since the statute is silent on the subject, relator may establish his office at the place of his residence, or at any other point within the State; that the point where said office is established must be construed as “headquarters” or “base of operations,” so to speak, of the department; that it was not the intention of the Legislature that the incumbent in said office should be entitled to reimbursement for his personal expenses incurred while at “headquarters;” that if he chose, as has relator in this instance, to establish his office at a place other than his residence he cannot charge and be reimbursed for personal expenses incurred while there; that by the term “traveling expenses” as used by the Legislature, it is intended to include only necessary expenses incurred while away from “headquarters,” in the discharge of the duties of the office. (2) Respondent further states that in view of the undisputed rule that a public official is not entitled to any compensation, fee, or allowance, not clearly given him by statute, he was not only justified in so doing, but it was his duty to refuse to allow and draw his warrant for the payment of the items of expense claimed by relator herein.
   GRAVES, J.

This is an original proceeding by mandamus. The facts are few and simple and stand admitted, in as much as the respondent rests his case upon a demurrer to relator’s petition, which stands for the alternative writ.

Relator is the State Game and Fish Commissioner of Missouri. Respondent is the State Auditor. Relator, at the time of his appointment to the office of State Game and Fish Commissioner, resided at the city of St. James in the county of Phelps, and thence forward has continued to reside there. He established no residence in Jefferson City, but did establish an office there, in which is maintained a clerk and an office force. Once or twice per month it became necessary for relator to come from his home to his office to go over the expense accounts of the office, and the expense accounts of his divers deputies in the State, to the end that he might certify the same to the State Auditor for payment. While doing this work, he charged his hotel bills while at Jefferson City in his accounts as expenses chargeable to the State. Those items for a number of months the State Auditor, respondent herein, refused to allow to relator, and continues to so refuse to allow the same. ' By our writ of mandamus it is sought to compel the Auditor to audit and allow these items. For the five months involved in this action these items aggregate $58.35, but the suit will determine the status of these items and their allowance throughout the term of relator. The appropriation is ample out of which they may be paid, if valid. Further facts may well he left to the opinion.

I. We start with the proposition that there is no law, either statutory or constitutional, which fixes the residence of the State Game and Fish Commissioner. So far as the law is written, this official en-j°7s the privilege of residing wherever he pleases within the State. Some are. not so fortunately situated. [Constitution of Missouri, art. 5, sec. 1.] The statute creating relator’s office and prescribing the duties thereof nowhere fixes his place of residence, and he is permitted to escape the privilege of having the merchants and tradesmen of the Capital City adjust his living expenses to the size of his salary. Respondent (under the constitutional provision supra) is not so fortunate. Relator had the legal right to maintain his residence at St. James. He likewise had no restrictions upon the place of locating his office. Quite naturally he saw fit to locate it at the seat of government, but this did not compel him to change his residence.

II. By Section 6558 such officer “may provide and maintain a suitable office, and may maintain a clerk when necessary.” The same section also further provides :

“At the end of each calendar month the said Game and Fish Commissioner shall file with the State Auditor an itemized statement, under oath, of all sums of money actually and necessarily expended by him in the discharge of his official duties. Such statement shall include office rent, salary of one clerk at the rate of two and one-half dollars per day while said clerk is employed, salaries and expenses of deputies while traveling under special orders as hereinafter provided all necessary traveling expenses, postage, stationery, fuel and such incidental expenses as may be required. The State Auditor shall draw his warrant for such amount, which shall be paid monthly out of the Game Fund.”

The duties of such officer under Article 2 of Chapter 49, Revised Statutes 1909, are numerous and varied, and chief among them is, that he is to see that the state game laws are enforced, [Sec. 6562, R. S. 1909.] To this end he is empowered to serve warrants and make arrests. [Sec. 6565, R. S. 1909.] In fact, under this law (Art. 2, chap. 49, supra) his duties are so numerous and various as to require his presence at times in the different portions of the State. Without aid he could not meet all the obligations of the law, and the Legislature, so knowing, has provided for many deputies. [Sec. 6566, R. S. 1909.] Those deputies are allowed a ■per diem and expenses, and their accounts must be examined and approved by the Commissioner. [Sec. 6566, supra.]

The expenses involved in this action were expenses incident to the examination and approval of these expense accounts, as well as other expense accounts of the office mantained by the relator. If either the law or the Constitution required of relator a residence at the seat of government, and the law (as it does not) required his office to be maintained at the seat of government, there would be excuse for the action of the State Auditor in this case. But as it is there is absolutely no excuse for the refusal to audit and allow these expenses, which are amply provided for both by the law creating the office and prescribing the duties, and the Appropriations Act covering the expense of the office.

A case as plain as this should have been disposed of without recourse to the courts. If the State Auditor had any doubts (although we can see no room for such), the law makes the Attorney-General his legal adviser, and we are loth to believe that the plain and simple issues of this case are here under the advice of the Attorney-General. The law furnishes to state officials this legal adviser to the end that the courts might be relieved of eases in which there are no merits. Our alternative writ of mandamus should be made absolute, and it is so ordered.

All concur.


author: WOODSON, J. BOND, C. J.

text:
    CITY OF ST. LOUIS v. PUBLIC SERVICE COMMISSION et al.; UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant.
    In Banc,
    December 30, 1918.
    1. PUBLIC SERICE COMMISSION: Street Railway Fares: In Excess of Rates Fixed by Ordinance. Notwithstanding the Constitution says that “no law shall be passed by the General Assembly granting the right to construct and operate a street raUroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad,” the Legislature has power, by subsequently enacted legislation, to grant to a State agency, such as the Public Service Commission, authority to increase the rate of fares agreed upon to be charged by the company in the franchise ordinance, although those rates were made the condition upon which the consent of the city was' given to the company to construct and operate its railways upon the streets. The constitutional provision does not expressly or by necessary implication prohibit the Legislature from fixing the fares.
    2. -: -: -: Consent Upon Condition. Independent of . the Constitution and incidentally in furtherance of the public welfare, the city had authority, prior to the enactment of the Public Service Act, to grant its consent to a private company to construct and operate its railways in the streets upon cond'tion that its fares be a fixed amount, simply because the Constitution did not prohibit it from doing so. But such a contract did not, neither does any provision of the Constitution, prohibit the Legislature to enact legislation prescribing or permitting different rates from those mentioned in the contract. The power of the city to impose the condition is wholly different from its power to give or withhold consent to the railway company to enter the city. The latter is a constitutional grant to the city; the former is not. The condition in the contract is subject to the police power, which by the Constitution itself cannot be abridged.
    3. -: Applicable to St. Louis. The act of the Legislature creating the Public Service Commission and defining its powers and prescribing its duties is applicable to the City of St. Louis, and gives to said Commission power to prescribe reasonable and lawful rates of fare to be charged by a street railway for carrying passengers, and thereby to displace rates previously prescribed by the city.
    Appeal from Cole Circuit Court. — Ron. J. G. Slate-, Judge.
    Reversed and remanded. (with directions.)

      R. S. Priest, T. E. Francis for appellant, United Railways Co.; Morton Jour dan, of counsel; A: Z. Patterson and J. D. Lindsay, General Counsel and Assistant General Counsel for appellant, Public Service Commission.
    (1) Rate making is the province of the State in the exercise of its police power. The express language of the Constitution, is that this power “shall never be abridged.” Art. 12, sec. 5. Even if not expressly reserved, this power, so essential to the public welfare,, would be construed as impliedly reserved. It is the governing power for the welfare of the State. The ordinance relied upon by the city, whether it be a contract or regulation, must give way when it conflicts with legislation of the State in the exercise of its police power. "When the State acts, the power of the city ceases. State ex rel. v. Public Service Commission, 275 Mo. 201; City of Fulton v. Public Service Commission, 275 Mo. 67; State Public Utilities Commission v. Railroad, 275 111. 555, 570; Chicago v. O’Connell, 278 HI. 591; Atlantic Coast Railway Company v. Commissioners, 104 Atl. 218; Collingswood Sewerage Co. v. Collingswood, 102 Atl. 901; Salt Lake v. Traction Co., 173 Pac. (Utah) 556. (2) Section 20 of Article 12 of the Constitution does not confer upon the City of St. Louis any power to make a contract or enact a law that is not subject to and in harmony with the Constitution and laws of the State. It is a prohibition against the exercise of the power of the General Assembly to grant a franchise “without first acquiring the consent of the local authorities,” etc. From this negation of power to the Legislature, except upon condition of consent of the municipality, a proper interpretation will not justify a commission to the municipality of omnipotence to make and maintain any condition its wisdom or folly may suggest. The right of the city to give or withhold its consent to the occupation of its streets by street railways does not give it the power to fix rates. Its power must be sought for in its charter, which must always be subject to the Constitution and laws of the State. Ewing v. Hoblitzelle, 85 Mo. 64, 76; Home Telephone Co. v. Los Angeles, 211 U. S. 265; Milwaukee ' Electric Ry. & Light Co. v. Railroad Commission, 238 TJ. S. 174; Manitowoc v. Manitowoc Co., 145 Wis. 13; State v. Telephone Co., 189 Mo. 99; State ex rel. v. Public Service Commission, 270 Mo. 444; State ex rel. v. Railroad, 140 Mo. 550. (3) The respondent relies upon the case of Matter of Quinby v. Public Service Commission, 223 N. Y. 244. The judgment there rested upon a narrow interpretation of the act of that State establishing the Commission, while a contrary interpretation of our act (mainly borrowed from that of New York) was made by this court long antecedent to the above decision. If, when a law has been substantially copied by one state from another, it has received judicial construction, that interpretation will also be adopted; but, if the courts of the borrowing sovereign are first called upon to construe the law, and do construe it, their construction must stand, notwithstanding there may be a subsequent and contrary interpretation by the judiciary of the' state from which the law was taken. Pratt v. Miller, 109 Mo. 89; Northcutt v. Edgar, 132 Mo. 278; Stulsman County y. Wallace, 142 U. S. 312; Myers v. McGavoek, 58 N. W. (Nebr.) 527; Bank v. Hoffman, 74 Mo. App. 207; Metropolitan R. R. Co. v. Moore, 121 U. S. 572; State v. Chandler, 132 Mo. 161.

      Charles II. Daues, and H. A. Hamilton for respondent, City of St. Louis.
    (1) The General Assembly can pass no law granting the right to construct and operate a street railroad in the City of St. Louis, and no street railroad can be constructed and operated in said city, without the consent of the duly constituted local authorities. Const. Mo. art. 12, sec. 20; Union Depot Ry. Co. v. Southern Ry. Co., 105 Mo. 562; State ex inf. v. Lindell Ry. Co., 151 Mo. 162; St. L. & M. R. Ry. Co. v. Kirxwood, 159 Mo. 239; St. Louis v. United Rys. Co., 263 Mo. 387; Carlisle Railway Company’s Appeal, 245 Pa. St. 561. (2) In granting the consent required by Section 20, Article 12, Constitution of Missouri, the City of St. Louis may attach such conditions thereto as it deems necessary and proper. A limitation upon the amount of fare to be exacted is a valid condition to granting consent to construct and operate a street railroad, and no legal power can disregard the con"dition and still uphold, the consent. Union Depot Ry. Co. v. The Southern Ry. Co., 105 Mo. 562; St. L. & M. R. Ry. Co. v. Kirkwood, 159 Mo. 239; Kansas City v. Railroad. 187 Mo. 146; St. Louis v. United Rys. Co., 263 Mo. 387; In re Kansas City Railways Co., 3 Mo. P. S. C. 593; In re Southwest Mo. Ry. Co., 4 Mo. P. S. C. 13; People v. Barnard, 110 N. Y. 548; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Gaedeke v. Staten Island Railroad, 43 App. Div. 515; People ex reí v. North Tonawanda, 70 Mise. Ren. 91; Allegheny v. Millville Railroad, 159 Pa. St. 411; Plymouth Tp. v. Chestnut Hill Eailroad, 168 Pa. St. 181; West Chester v. Postal T. C. Co., 227 Pa. St. 384; Ashworth v. Pitts-burg Eailroad, 240 Pa. 105; McKeesport v. McKeesport Eailroad, 252 Pa. St. 142; 3 Elliott on Eailroads (2 Ed.), sec. 1081; Detroit v. Detroit Eailroad, 184 U. S. 386. (3) The police power is always subject to the rule that the legislature may not exercise any power that is expressly or impliedly forbidden to it by the Constitution. 12 Corpus Juris, p. 929; State v. Julow, 129 Mo. 163; State v. Missouri Pacific Ey. Co., 242 Mo. 339; Ives v. South Buffalo E. E. Co., 201 N. Y. 271. (4) The Public Service Commission Act does not vest poweFIn the commission to increase the rate of fare stipulated in the franchise ordinance of a street railway and made a condition upon which the local consent is granted to construct and operate said railway upon the streets and highways. State ex ,rel. v. Public Service Commission, 270 Mo. 429; Quinbv v. Public Service Commission, 119 N. E. 433. ,
   WOODSON, J.

At all the times hereinafter mentioned, the United Eaiiways Company of St. Louis was operating its system of street railways in that city under and by authority of Ordinance No. 19,352, approved April 12, 1898. Said ordinance after authorizing the construction and operation of street railways upon and over certain streets of the city, provided that:

“A fare of five cents shall be charged for passengers of twelve years of age and over, and one-half of said fare for -persons under twelve and over five years of age. Children’s tickets shall be sold by conductors on the car at the rate of two tickets for five cents. Transfers shall be given so as to transport passengers by a continuous trim from one point on the system to any other point on the system.”

This ordinance was duly accepted in writing- by said Eailwavs Company, and was properly filed in the office of the Register of said city, as required by said ordinance.

Thereafter, in February of 1918, the United Railways Company filed with the Public Service Commission a petition asking that it be allowed to charge a reasonable compensation for the .service it rendered the public in operating its street railways in the City of St. Louis.

The City of St. Louis was allowed to intervene. It filed an “answer and protest” in which it challenged the jurisdiction and power of the Public Service Commission to annul, change or impair any terms made in said ordinance enacted by the Municipal Assembly of the City of St. Louis granting the Railways Company the right to construct and operate its railways in the streets of the city.

The answer interposed as a defense Section 20 of Article 12 of the Constitution of 1875, which reads: “No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchise so granted shall not be transferred without similar assent first obtained.”

The public Service Commission granted the petition of the Railways Company and authorized it to collect from adult passengers a fare of six cents instead of five cents, as provided for by said ordinance.

The City of St. Louis obtained from the Circuit Court of Cole County a writ of certiorari, ordering the Commission to sent up the record in the cause so that it might review the rulings of said Commission in the cause, and upon proper hearing and after due consideration, that court reversed the finding and rulings of the Commission. From that judgment of the Circuit Court, an appeal was duly taken to this court, both by the Commission and the Railways Company.

I. There are two legal propositions presented by this record for determination. The first is, has the Public Service Commission the power, under the Constitution and laws of this State, to increase the rate of fares agreed upon to be charged by the Railways Company in the franchise ordinance! which was made a condition upon which the consent of fhe city was given to the company to construct and operate its railways upon the streets of the city? Counsel for the appellant insist upon the affirmative of this proposition, while those for the respondent deny the Commission possess that authority.

The second proposition before referred to will be stated and discussed in another part of this opinion.

Counsel for appellants contend that the judgment of the circuit court is erroneous for the reason that the making of rates to be charged for the transportation of passengers by common carriers is the province of the State in the exercise of its police power: that this power is inherent in the State as a part of its sovereignty, and unabridgable by virtue of Section 5 of Article 12 of the Constitution, and that under this power the franchise ordinance before mentioned, whether it be considered a contract or regulation, must give way when it conflicts wth legislation of the State in the exercise of its power. That when the State acts in that regard, the power of the city ceases.

It must be conceded, as contended for by counsel for respondent, that the Legislature has no power to grant to a street railway company the authority to construct and operate street railways upon and over the street of any city in this State without the consent of the duly constituted authorities thereof. Such is the express inhibition of Section 20 of Article 12 of the Constitution of this State for the year 1875; and the rulings of this court have been uniform in upholding that provision of the Constitution. [State ex inf. v. Lindell Ry. Co., 151 Mo. l. c. 185; St. Louis and Meramec River Ry. Co. v. City of Kirkwood, 159 Mo. 239, l. c. 249; City of St. Louis v. United Railways, 263 Mo. 387, l. c. 441.]

This court has also uniformly held that the city in giving its consent as provided for by said Section 20 of Article 12- of the Constitution may impose such conditions as it may deem necessary and proper; but whether that power is derived from the constitutional provision, the charter of the city, or derived from the public policy of the State, has not been decided.

The following’ cases hold that the city may impose such conditions: Union Depot Ry. Co. v. The Southern Ry. Co., 105 Mo. 562, l. c. 573 and 574; St. Louis and Meramec River Ry. Co. v. City of Kirkwood, 159 Mo. 239; City of St. Louis v. United Railways Co., 263 Mo. 387.

To the same general effect are the following authorities: Kansas City v. Kansas City Belt Ry. Co., 187 Mo. 146; In re Kansas City Ry. Co., 3 Mo. P. S. C. 593; In re Southwest Missouri Ry. Co., 4 Mo. P. S. C. 13; People v. Barnard, 110 N. Y. 548; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Gaedeke v. Staten Island, etc., R. R. Co., 43 App. Div. 514; People ex rel. v. North Tonawanda, 70 Misc. Rep. 91; Allegheny v. Millville, etc., R. R. Co., 159 Pa. St. 411; Plymouth Tp. v. Chestnut Hill, etc. R. R. Co., 168 Pa. St. 181; West Chester Boro. v. Postal T. C. Co., 227 Pa. St. 384; Ashworth v. Pittsburg Ry. Co., 231 Pa. 539; Point Bridge Co. v. Pittsburgh Ry. Co., 240 Pa. 105; McKeesport v. McKeesport, etc. Ry. Co., 252 Pa. St. 142; 3 Elliott on Railroads (2 Ed.), sec. 1081; Detroit v. Detroit, etc., Railroad Co., 184 U. S. 368.

From this premise it is contended by counsel for respondent that since the Leaislature could not under the inhibition of said constitutional provisions in the first instance have granted the Railways Company the authority to construct and operate its railways upon and over the streets of the Citv of St. Louis; and that since the city alone possessed the absolute' and exelusive power under the express provisions of said constitutional provision, to grant or withhold its consent to the company to so construct and operate its railways, and that since the city had the authority to impose as a condition upon its said consent that the company should agree that it would not charge greater fares than those stated in the ordinance, it therefore follows that the Legislature cannot, by statute subsequently enacted, authorize that to be done which it could not do in the first place, namely, authorize the Public Service Commission to annul, change or impair the limitations placed upon the fares prescribed by the franchise ordinance. In other words, if I correctly understand counsel, they insist that the Legislature had no constitutional authority by subsequent legislation to change or authorize the change of the list of fares fixed by the franchise ordinance, when it could not in the first place have done so.

It must be conceded that, under the adjudications of this court, the City of St. Louis had the absolute and exclusive authority to grant to or withhold its c'onsent from the Railways Company to construct and operate its railways over the streets of the city. Union Depot Ry. Co. v. Southern Ry. Co., 105 Mo. 562, l. c. 573; St. Louis and Meramec River Ry. Co. v. City of Kirk-wood, 159 Mo. 239; Kansas City v. Belt Ry. Co., 187 Mo. 146; City of St. Louis v. United Railways Co., 263 Mo. 387, l. c. 439.

If it were not for this constitutional provision there would be no doubt as to the power of the Legislature in the exercise of its police power to increase or authorize the Commission to increase the rates of fares stipulated for in the franchise ordinance; as I understand it, this is practically conceded by counsel for the respondent. But in the presence of that provision, it is contended that the Legislature is shorn of that power. Their position is thus stated: “The police power is always subject to the rule that the Legislature may not exercise any power that is expressly or impliedly forbidden by the Constitution;” and in support of this proposition we are cited to the following authorities: 12 Corpus Juris, p. 929; State v. Julow, 129 Mo. 163; State v. Missouri Pacific Ry. Co., 242 Mo. 339; Ives v. South Buffalo Ry. Co., 201 N. Y. 271.

The correctness of the proposition just stated is fully supported by the authorities cited, and counsel for appellants do not question its soundness; but insist that said Section 20 of Article 12 of the Constitution has no application to the facts of this case.

This brings us to the crucial point presented by this record, and I am of the opinion that said Section 20 of the Constitution has no application whatever to this case.

It will be observed by reading said section that it expressly prohibits the Legislature from “granting the right to construct and' operate a street railroad within any city, . . . without first acquiring the consent of the local authorities,” etc. This court, as previously stated, has repeatedly held that this language of the Constitution not only prohibits the Legislarure’from granting that right to a street car company, but has affirmatively conferred the absolute and exclusive power upon the city to grant that right, or to absolutely deny it; but no authority whatever is thereby conferred upon the city to prescribe the terms and conditions upon which the street railroad may be constructed and operated upon the streets of the city, much less the power to fix or prescribe the fares the company may or may not charge for the transportation of passengers. But it>is stated by counsel for respondent that this court has repeatedly held that the city in giving such consent may prescribe the fares it may charge. Counsel are mistaken in that assertion. Insofar as I have been able to ascertain, no such question has even been before this court, much less decided by it. As I understand the decisions, the furthest this court has gone in that direction was to hold that because the city could altogether deny a street car company the right to operate its roads within the corporate limits, the city had the right to dictate the terms and conditions upon which the road should be operated; the following cases go no further: Union Depot Ry. Co. v. Southern Ry. Co., supra; St. Louis & Meramec Ry. Co. v. City of Kirkwood, supra; Kansas City v. Belt Line Ry. Co., supra; City of St. Louis v. United Railways Co., supra.

But it should be observed that this court, in deciding that the city might dictate the terms and conditions upon which the road might be admitted into the city, did not hold that the power to so. do was conferred upon it hy said Section 20 of the Constitution, but placed its ruling squarely upon the ground that because the city had the absolute and exclusive right to exclude the roads from the city entirely^ it might admit them upon such terms and conditions as it deemed proper; that the greater power to exclude them included the incidental right to admit them upon such terms and conditions as it might deem best. [St. Louis & Meramec Ry. Co. v. City of Kirkwood, 159 Mo. 239 l. c. 253.]

In the latter case, this court on page 253 quoted approvingly from the case of Allegheny City Railway, 159 Pa. St. 411, the following language: “The man who can give the whole, can give a part, or who can grant absolutely, can grant with a reservation of rent or other condition. He who can consent or refuse without reason does not make his consent or his refusal either better or worse by a good or bad reason.” By parity of reasoning, it must be held that a city which can grant the whole can grant a part, that is, the whole burdened with conditions and limitations, and that a city which can absolutely refuse to grant permission to a street ear company to construct and operate street railroads upon its streets may refuse the grant unless the company agrees to transport passengers for certain fares. But that does not signify that the power of the city to impose these conditions and limitations, or the right to stipulate for fares, is derived from the constitutional provision granting to the city the power to consent to the company entering the city; the two powers are separate and distinct. The thought I am trying to express is this: Under the constitutional provision mentioned, the city had the power to authorize the construction and operation of street railways upon the streets thereof without conditions or limitations, had it deemed it wise to have done so, in which case the common law would have permitted the company to charge reasonable fares for the services to be performed by it, or in such a case the Legislature could have fixed the fares to be charged, and' neither rate so fixed would have done violence to the constitutional provision mentioned. There is not a word in the Constitution repealing the common law in that regard, or which would have prohibited the Legislature from having fixed the fares, had it seen fit to have done so. This is true, because the Legislature has absolute power to legislate upon any subject it may deem proper, in the absence of express constitutional prohibition, or by necessary implication to be drawn from that which is expressly stated therein. By reading this provision of the Constitution, it will be seen that it contains no language which expressly or by necessary implication prohibits such legislation. That being true, how can it be logically said the Legislature does not now have 'the constitutional authority to enact such legislation, or that it did not have that power when it authorized the Public Service Commission to increase the fares? I submit that this question cannot be answered in the negative.

It must be borne in mind that I am not now dealing with that constitutional provision which prohibits the enactment of any law which impairs the obligaton of a contract and which will be considered later, but said Section 20 of Article 12, which it is contended has abridged the police power of the State, - and prevents the Legislature from fixing fares to be charged by street car companies in the City of St. Louis.

The same general rule is announced in Union Depot Ry. Co. v. Southern Railway Co., 105 Mo. 562, l. c. 573. In that case, while the court recognizes the exclusive power of the city to grant consent to street railroad companies to construct and operate street railways upon its streets, yet it clearly placed the city’s authority to permit one company to run it cars over the track of another company, not upon the constitutional provision mentioned, but upon “the reserved power of the city in the interest of the public welfare to permit any other company to run its cars over the plaintiff’s road; for such is the contract between the plaintiff and the city.” By that same authority, if we may so call it, the city had the power to stipulate with the Railways Company regarding the fares it should charge for the service to be performed by it. This was not because the Constitution authorized the city to prescribe the conditions before mentioned, but because it did not prohibit the city from so doing; it might, therefore, independent of the Constitution, incidentlv in furtherance of the public good, prescribe such terms. If that is hot true, then clearly the city had no authority whatever to contract with the Railways Company as to the fares that should be charged.

A similar question of power came before this court in the ease of State v. Parker Distilling Company, 236 Mo. 219. There it was conceded, and all of the authorities held, that the Legislature had the absolute and exclusive power to prohibit the manufacture and sale of intoxicating liquors in this State; that notwithstanding that power, counsel for the defendant contended that the act of the Legislature providing for licensing manufacturers of malt and spiritous liquors to do business in this State, was void because it made no provision for their regulation. After an exhaustive review of all the authorities, State and Federal, bearing upon the question of power, this court in that case, on page 274 used this language:

“When we bear in mind the foregoing idea, that the liquor traffic in this State has no legal rights, save and except those expressly granted by license and the statute under which it is issued, then we can more clearly see that the State may impose such conditions, burdens and regulations as it may deem wise and proper, and no one wbo engages therein has a right to complain thereof.

“The authorities fully support the proposition that the imposition of the license tax alone is the exercise of the police power, and that the person who desires to engage in the liquor traffic must pay, or agree to pay, that tax, before the license will issue, and the question of regulation is foreign to the subject. The manner and extent of the regulation rests exclusively in the discretion of the State. The regulations may be much, little or none, as the Legislature may deem wise, and this is the first time I ever heard the validity of such a law being questioned by those engaged in the liquor business, because it provides for slight rather than stringent regulation.”

The same is true in the case at bar. The power of the city under the constitutional provision mentioned to grant consent to the company to enter the city was absolute and rested exclusively with the former; it, therefore, might place such conditions and limitations upon such consent or none at all as it deemed proper. But the power to impose such conditions and limitations is wholly different from the power to give consent.

I, therefore, feel confident that the City of St. Louis, under the greater power to admit or deny the Railways Company the right to enter the city, was left at full liberty, not under the constitutional provision mentioned, but under its general reserved powers, to impose such terms and conditions upon the company as it deemed proper in permitting it to operate its railways upon the streets of the city; this of course included the power to fix by agreement the fares to be charged by the company for the services to be performed under its charter, yet in line with the public policy of the State, as gathered from the general trend of the laws enacted for the general welfare.'of all.

The same principle is announced in the case of Thrasher v. City of Kirksville et al., 204 S. W. 804. That was a suit brought by the property owners against the assignees of special tax hills issued in payment of the contract price for constructing a public sewer in that city. The ordinance ordering the work to be done required the city clerk to advertise for bids, and that the contract for the construction of the sewer should be let to the lowest and best bidder, while the charter of the city, Section 9241 and 9254, Revised Statutes 1909, was absolutely silent upon the question, making no such requirements. For this reason the city clerk did not advertise for bids as required -by ordinance. There was but one bid,,and. that was made by Grassle Bros, who performed the work and assigned the bills to the. defendants. Counsel for defendants contended that because the charter of the city did not authorize the clerk to advertise for bids, nor that the contract should be let to the lowest and best bidder, the city had no power or authority to enact the ordinance making those requirements, and therefore the ordinance was void, and the tax bills were just as valid as if the ordinance had not been enacted, and as though the work had been done under a private contract as contemplated by the charter. This court, in that case, held that the tax bills were void because the contract was not awarded according to the ordinance mentioned; and stated that if the contract had been let according to the charter provisions without the enactment of the ordinance, the bills would have been valid, but having been let after the passage of the ordinance and in violation of its terms, the bills were void. The reason assigned was that the charter did not prohibit the city from advertising for bids, nor to, let the contract to the lowest and best bidder, but since that was the mode of letting such contracts and was not prohibited by the charter, 'and in harmony with the general welfare of the city and her citizens, the court was unwilling to hold the bills invalid.

The following cases announce the same rule, and are cited with approval in: Thrasher v. Kirksville, supra; Galbreath v. Newton, 30 Mo. App. l. c. 394; Clapton v. Taylor, 49 Mo. App. 117; Keane v. Cushing, 15 Mo. App. 96; Cole v. Skrainka, 105 Mo. 303; Excelsior Springs v. Ettenson, 120 Mo. App. l. c. 223; Springfield v. Weaver, 137 Mo. 650.. In the last case this court, on page 667 and 668, used this language: “While the statute governing cities of the third class does not require contracts to be let out to bidders, it makes no contrary or inconsistent requirement. The council, then, had the undoubted power to require contracts to be let in that manner.”

The same is true of the case at bar. Section 20 of Article 12 of the Constitutional authorized the City of .St. Louis to permit street car companies to construct and operate street railroads upon the streets thereof, but did not require the city to fix the fares, nor does it prohibit the city from so doing. The council then, according to the ruling in the ease last cited, had the undoubted power to require the railways companies to carry passengers for the sums stated in the ordinance. This was clearly upon the theory that such requirement was not prohibited by the Constitution, but was in keeping with the general mode of granting to street railroads permission to enter cities, towns and villages throughout this State, if not the country at large, and was in harmony with the general well-being of the city and the inhabitants thereof, and for that reason the city council had the unquestionable authority independent of the Constitution to fix the fares to -be charged by the ordinance. When reduced to their final analysis, the foregoing-authorities in substance announce this rule: That where a person or corporation, including a city, has the absolute and exclusive legal power or authority to do or not to do a particular thing, then no additional power or authority, except mental capacity and physical force, is necessary to enable such person, corporation or city to impose such conditions or limitations as he or it may deem proper upon the mode or manner of the performance or non-performance of that thing. Possibly sound public policy of the State and the general-welfare clause of a city charter might condemn any condition or limitation attached thereto which would he detrimental to the public good. This is not only elementary, but seems to me to be self-evident. Moreover, if this is not the law, then a county court, under this same Section 20 of Article 12 of the Constitution, could, with this same irrevocable authority, require a streetcar company to agree to pay five cents fare for each passenger carried by it for the consent of the former to the latter to cross over or along any public road in the county. It the city had that irrevocable authority, then undoubtedly the county court, after granting its consent, would be irrevocably bound thereby, however oppressive a compliance with the contract might become, even to the extent of forcing the company into bankruptcy, and to permanently suspend the operation of the road; and there would be absolutely no relief for such a deplorable condition, except an amendment to the Constitution, in that regard, which would take months, if not year's to do, to say nothing of the cost and inconvenience to the traveling public during that time. That same deplorable condition might befall the Railwáys Company and the people of the City of St. Louis and there would be no remedy except as before stated. Certainly that was not the intention of the framers of the Constitution.

Again, if a county court may permit a street ear company to operate its roads over the public roads of the county without conditions imposed or duties required, why may not a city do the same? Both are governed by the same constitutional provision, and, if the court should so grant its consent, may not the Legislature subsequently impose duties and burdens upon the company for the privilege of continuing to operate its cars over the public roads? Certainly it may; this has been frequently done by county courts and city councils, such asA requiring such companies to construct and maintain bridges, viaducts, etc. Or suppose the county court should, as a condition to its consent to let the company occupy a public road, require it to agree to maintain a free ferry across the river dividing its railway into two parts, which would be very valuable to the traveling public, yet could it be seriously contended that the court could not, in case of necessity, relieve the company from the obligations of that contract, even though such release would greatly increase the cost of travel to the public? I think not; clearly there is nothing in the Constitution denying such right.

If I am correct in the foregoing conclusion, then the Legislature had the undoubted authority under the police power of the State to increase or decrease those fares as it deems proper or to authorize the Public Service Commission to do the same. The following cases so hold: State ex rel. v. Public Service Commission, 275 Mo. 201; City of Fulton v. Public Service Commission, 275 Mo. 67; Public Utilities Commission v. Railroad, 275 Ill. 555, 570; Chicago v. O’Connell, 278 Ill. 591; Atlantic Coast Electric Ry. Co. v. Commission, 104 Atl. 218; Collingswood Sewerage Co. v. Collingswood, 102 Atl. 901; Salt Lake v. Light & Traction Co.; 173 Pac. (Utah) 556.

And this is true whether the franchise ordinance mentioned is considered as a contract or a regulation enactment; it having been enacted and agreed to subject to the police power of the State, it must give way upon the exercise of that power by the Legislature or by its duly authorized agent, the Public Service Commission ; and it having acted the ordinance or contract, as you may deem it, must give way to the extent herein-before stated. [State ex rel. v. Public Service Commission, 275 Mo. 201; City of Fulton v. Public Service Commission, 275 Mo. 67.]

There are other cases in and out of this State announcing the same doctrine, and some in other states and possibly one in this State, State ex rel. St. Joseph Water Co. v. Easton, 192 S. W. 1006, announcing a contrary doctrine, especially in the case of Matter of Quinby v. Public Service Commission, 223 N. Y. 244. But after careful consideration of all of them, we are satisfied upon both, reason and authority the rule announced in this State is the correct one.

II. The other legal proposition referred to in the former part of this opinion is, in brief, whether or not under the Scheme and Charter of the City of St. Louis the act of the Legislature creating the Enblic Service Commission and defining its powers and prescribing its duties is applicable to the City of St. Louis.

This proposition must be decided in the affirmative. Section 23 of Article 9 of the Constitution in express terms provides that “the charter and amendments shall always be in harmony with and subject to the Constitution and laws of Missouri,” etc.; and Section 25 of the same article also expressly provides that “the General Assembly shall have the same power over the city and county of St. Louis that it has over other (¿ties and counties of this State.”

This is not a new question before this court. The same ruling as above announced was made in the case of Ewing v. Hoblitzelle, 85 Mo. 64, l. c. 76, and State ex rel. Garner v. Missouri and Kansas Telephone Co., 189 Mo. 83, l. c. 99.

We are, therefore, of the opinion that the judgment of the circuit court should be reversed and the cause remanded with directions to proceed with the cause as required by law.

Faris, Walker and Graves, JJ., concur; Bond, G. J., concurs in separate opinion, in which Faris, Blair and Williams, JJ., concur.

BOND, C. J.

(concurring). — Where not constitutionally inhibited, the power to fix rates of steam and street railroads is a legislative faculty which is dele gable to a Public Service Commission. Neither the Legislature nor its administrative agency can fix rates which are confiscatory oi the property of the carrier. If there had been a specific rate per passenger prescribed by a general statute at the time the street railroad was chartered, the City of St. Louis could not have contracted for a different rate as the price of admitting the carrier; for its charter powers are subordinate to the general laws of the State. This power of the Legislature fully existing, though unexerted, at the time of the incorporation of the street railway, was subsequently delegated to the Public Service Commission, who thereby became empowered to prescribe rates, reasonable and lawful, and subject to judicial review, which should ■ displace any prior rates prescribed by the municipality, which said municipality was entitled to make in its capacity as an auxilliary but subordinate governmental agency. The parent body, the State, through its Legislature, might have altered any rate which it might have fixed when the carrier was incorporated in virtue of its inalienable police powers.

It necessarily follows that a Public'Service Commission, clothed quod hoc with this legislative authority, might prescribe rates conformable to the preservation of an utility necessary to the public convenience anSt welfare.

This is exactly what was ruled in the Sedalia and Fulton cases, under which the conclusion is inescapable that the action of the circuit court in setting aside the finding of the Public Service Commission was error. Hence, my concurrence in the reversal of the judgment of the circuit court and the affirmance of the order of the Commission.

Faris, Blair and Williams, JJ., concur in this opinion.


author: WILLIAMS, J.

text:
    PEMISCOT COUNTY et al., Plaintiffs, v. STERLING H. McCARTY, Judge, Defendant.
    In Banc,
    January 13, 1919.
    1. DRAINAGE DISTRICT: Order of County Court to Enlarge Ditch: Appeal. Under the County Court Dramage District Act no appeal lies from an order and judgment of the county court ordering (in pursuance to Section 5613, Revised Statutes 1909, and Section 5614, Laws 1913, p. 279) that certain ditches he enlarged and cleaned out and the obstructions removed. The circuit court cannot by appeal obtain jurisdiction to correct any errors in the proceeding leading up to said order or in the order itself.
    2. PROHIBITION: Merits of Case. In an original suit of prohibition to prohibit the circuit judge from taking jurisdiction of a cause appealed from the county court, on the ground that an appeal did not lie, the merits of the case before the county court will not be considered.
    3. -: No Appeal: Availability of Other Writs: Certiorari. And if appeal is the only method by which it is asserted that the circuit court obtained jurisdiction of a cause appealed from the county court, the question of whether the circuit court, by certiorari or by some other writ, in pursuance to its superintending control over county courts, could have obtained jurisdiction, will not be decided.
    Prohibition.
    Writ issued.

      Charles E. Bragg and Callivan & Finch for plaintiffs.
    (1) If there was any basis, in the record made in the county court, for the exercise of any “superintending control” on the part of the circuit court, such superintending control could have been exercised by the writs of mandamus or certiorari. St. Louis Co. Court v. Sparks, 10 Mo. 123; Bennett v. McCaffery, 28 Mo. App. 221. And, as no appeal could lie under the statutes and the decisions of this court, such superintending control could be exercised only by one or the other of such writs. Sheridan v. Fleming, 93 Mo. 325; State ex rel. v. St. Louis Co. Court, 47 Mo. App. 647; Barnett v. Pemiscot County Court, 111 Mo. App. 700. (2) The county court had full authority under the statutes to arrange contracts between different drainage districts for such an outlet as one might need and the other could furnish “on such terms as the county court may decide to be just and fair.” E. S. 1909, secs. 5613, 5614 and 5628. (3) The appellate jurisdiction, in any case, is purely of statutory origin. Expressio unius exclusio alterius est. The drainage statute itself states the cases wherein appeals will lie from the county court to the circuit court. All other cases are excluded; and, therefore, no appeal lies in such other cases. (4) In the absence of constitutional inhibition, it is within the power of the Legislature to prescribe the cases , in which and the courts to which parties shall be entitled to bring a ease for review, and to impose such conditions and restrictions as it may see fit. 3 Corpus Juris, 297; John v. Paullin, 231 U. S. 583, 58 L.' Ed. 381; Schuepbach v. Laclede Gas Light Co., 232 Mo. 611; Reetz v. Michigan, 188 U. S. 508, 47 L. Ed. 566; State v. Thayer, 158 Mo. 62; State v. Mericle, 245 Mo. 549; State v. Virron, 164 Mo. App. 212; State v. Short, 250 Mo. 333; State v. Brown, 153 Mo. 578; State ex rel. v. Woodson, 128 Mo. 514; Drainage District v. Railroad, 216 Mo. 715; Buschling v. Acldey, 270 Mo. 173; State v. Pieski, 248 Mo. 715. (5) The proceeding by appeal was entirely unknown to the common law. It is of civil law origin, and was introduced therefrom into courts of equity and admiralty. 3 Corpus Juris. 316; Wingfield v. Neall, 10 L. R. A. (N. S.) 449; State v. Thayer, 158 Mo. 62. (6) The remedy by appeal in actions of law is purely of statutory origin and exists only when given by some statutory provisions. 3 Corpus juris, 316; Bussiere v. Sayrnan, 257 Mo. 308; Barnes v. Missouri Valley Constr. Co., 257 Mo. 175; Star Bottling Co. v. Exposition Co., 240 Mo. 641; Western T. & T. Co. v. Dr. Disk, 226 Mo. 420; Owens v. Matthews, 226 Mo. 78; State v. Broaddus, 216 Mo. 342; Millar v. Transit Co., 216 Mo. 103; . Thomas v. Elliott, 215 Mo. 598; State v. Woodson, 128 Mo. 407; Sheridan v. Fleming, 95 Mo. 321; State ex rel. v. McElhinney, 241 Mo. 608; Ackerman v. Green, 201 Mo. 243. (7) Drainage laws are purely statutory proceedings both as to tribunal and the character of the proceeding’s; were unknown to the common law, and are special and constitutional; and the provisions of the code of civil procedure are not applicable thereto. Buschling v. Ackley, 270 Mo. 173; State ex rel. Hancock v. Spencer, 166 Mo. 285; State ex rel. Wells v. Hough, 193 Mo. 615; Leavenworth Ter. Ey. v. Atchison, 137 Mo. 218; Eothan v. Eailway, 116 Mo. 143; Nishnabotna Dr. Dist. v. Campbell, 154 .Mo. 151; Anderson v. Pemberton, 89 Mo; 64; Eailroad v. Townsite Co., 103 Mo. 457.
    • Ward (& Beeves and N. G. Hawhins for defendant.
    (1) The right of appeal from the county court to the circuit court existed in this matter, and it was the proper and only method by which the action of the county court could be supervised, superintended or reviewed, (a) No other method, save an appeal would do more than bring up the record proper, which record proper had been “fixed” so as to make it invulnerable, as it was thought, to attack, (b) The inhibitions on the right of appeal, set out in Section 5592, E. S. 1909, relied upon by plaintiffs, apply to and only to a proceeding to organize a drainage district, and not to a proceeding to enlarge, clean out, remove obstructions therefrom or do new work, as contemplated by Section 5613, E, S. 1909, and See. 5614, Laws 1913, p. 279, the latter being in the very nature of things intended to become operative only after a long lapse of time and under changed conditions, (c) Even if the inhibitions in Section 5592 did -apply to such a proceeding as this, they do not apply to this particular proceeding, which was begun under the Act of 1913. State ex rel. v. Taylor, 224 Mo. 490; State ex rel. v. Bugg, 224 Mo. 537. (d) The judgment of the court extended the life of the district beyond the period for which it was originally incorporated, undertook to give a money judgment in favor of one district and against another, destroyed the plan of reclamation originally adopted by it, created a lien upon the lands of the district, without regard to whether or not any one tract would be benefited or damaged; it plunged each district into entangling alliances with all the others, virtually consolidating the five systems into one district, and gave to Elk Chute Drainage District (a district over which the county court did not have and never can have control) the power to control the other four districts and forever deprived the other four districts of the right of self determination. It expended money for lands in Elk Chute Drainage District, at values fixed by that district and wherein no one interested in any of the four other districts had any authority to be heard. It expended money entirely outside of the respective districts, and entirely outside of Pemiscot County. It was not such a judgment as might bo rendered by the county court upon the undisputed facts, or under the statement as filed, or authorized by law. (2) The total amount of tax levied upon this district for the first and now proposed improvement, exceeds the grand total of benefits originally determined. It is fundamental and no authorities are needed to sustain the assertion, that such a proceeding is a clear denial of the rights of those who are not benefited, among them being these objectors. Unless an appeal is prohibited, it is granted. King’s Lake v. Jamison, 176 Mo. 564; State ex rel. v. Taylor, 224 Mo. 490.
   WILLIAMS, J.

This proceeding, originally instituted in this court (by Pemiscot County, the three judges of the County Court of said county, Drainage District No. 6 of Pemiscot County, and approximately two hundred and fifty landowners of said drainage district), seeks to prohibit the Hon. Sterling H. McCarty, Judge of the Circuit Court of Pemiscot County, from taking further judicial action in a certain drainage proceeding.

The drainage proceeding originated before the County Court of Pemiscot County under the provisions of Section 5613, Revised Statutes 1909, and Section 5624, Laws 1913, page 279, and was, after proceeding to judgment in the county court, attempted to be taken on anneal to the said circuit court for trial de novo.

The contention of the plaintiffs is, that there was no right of appeal from the order or judgment of the county court and hence the circuit court acquired no jurisdiction to proceed with the matter.

Defendant filed fiis return in this court and thereafter plaintiffs moved for judgment on the pleadings.

The following may be stated as the conceded facts:

Drainage District No. 6 of Pemiscot County, comprising about 83,500 acres, was duly organized March 11, 1907, by an order of the County Court of Pemiscot County, under what is sometimes called the “County Court Drainage Act,” which will now be found (except as to subsequent amendments) in Article 4, Chapter 41, Revised Statutes 1909.

The defendant herein is the judge of the judicial circuit which embraces Pemiscot County.

On April 6, 1918, proceeding under and by virtue of Section 5613, Revised Statutes 1909, and Section 5614, Laws 1913, page 279, a written petition or statement (signed by the two-hundred and fifty landowning plaintiffs herein, which purported to be more than twenty per cent of the number of persons owning land in said drainage district and a majority of the acreage of said district), was filed with the county clerk of said county. Said petition alleged in substance that certain ditches in said drainage district were in need of being enlarged, cleaned out, and of having obstructions removed and new work done, to afford adequate outlets for the drainage of said district.

The county court thereupon set the same for hearing to the first day of its May term, 1918, and caused notice thereof to be published as required by law. ' 1 • á¡^i]

Upon the appointed day the county court appointed a competent surveyor to examine the ditches of the district and report his observations back to said court.

On May 14, 1918, the surveyor filed his report showing the work which he deemed necessary to be done to fully and fairly reclaim the land, together with an estimate of the cost thereof, whereupon certain persons owning land in said district filed their “objections, exceptions and remonstrances.”

The cause was then continued until June 3, 1918, for the purpose of permitting all interested persons, who might so desire, to file objections and exceptions. On June 3, 1918 one-hundred and ten other landowners of said district filed objections and exceptions. On June 4, 1918, the county court was of the opinion that before ordering the work done in said district it would be advisable to have further information on the matter of an outlet for drainage in said district in connection with the plan of reclamation adopted by the Elk ,Chute Drainage District, and to that end directed the surveyor theretofore appointed to make investigation, surveys and costs thereon and report the same on June 17, 1918, to which date the proceeding was continued.

On June 17, 1918, the county court again proceeded to hear the matter and, after hearing the evidence and arguments presented, made an order finding that the statement was filed with the clerk of the county court more than four weeks before the first day of the May term, 1918, of the county court; that the same was signed by the requisite number of land and acreage owners; that proper notice had been duly published; that the ditches and other improvements in said district were in need of enlargement, cleaning out, having obstructions removed and new work done, to provide adequate outlets for drainage in said district; the county court approved the surveyor’s or engineer’s report and ordered the work to be done, and overruled the objections filed; the court also found that it would not be necessary for the district to acquire “any other new or additional rights of way; that same already acquired by the district being found sufficient.”

Further matters found and orders made by the county court on said day are stated in defendant’s return as follows:

“The court then found that Drainage District No. 6, organized March .16, .1907, had constructed a main ditch, and twelve laterals thereto, and the county court found that said ditch did not receive adequate drainage; that there should be .an outlet made by said Drainage District No. 6; and the court further found that there should be an outlet made by said Drainage District No. 6, and Elk Chute Drainage District, which was organized in the circuit court of Dunklin County, Missouri, they, together with Drainage Districts Nos. 8 and 9, should together have an outlet and that each district should contribute its fair share of the diversion cost of outlet for said district; and tbe court further found:

“1. That the main ditch in Drainage District No. 6 should be enlarged and deepened throughout its entire length, except portions of said ditch through Sections 21, 20, 19, 30 and 31, in Township 18 north, of Range 12 east, should be deepened but not widened, and there should be constructed piling on both sides of said ditch through the town of Steele, and that the main ditch should be deepened from two feet to six feet below the bottom on an average of about four feet throughout its entire length.

“2. That lateral known as Ditch No. 1 should be widened through its entire length and deepened so as to have a depth from six to seven feet through its entire length, and that each of the other laterals known as Ditches No. 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 should be deepened and the major part of them widened.

“3. That Drainage District Number 6 should pay its proportionate part with the other districts heretofore mentioned in providing adequate, proper and efficient outlets for all of said districts.

“4. Thereupon the court orders all of said work done and the outlet made according to the plans and report of the engineer, L. E. Thrupp, and then said order provides:

“ ‘The court finds from the evidence adduced and the report of L. E. Thrupp, engineer, made and' submitted as aforesaid, that to do the work herein ordered to be done, together with the amount that District No. 6 should, in fairness and justice, pay and contribute to providing proper and efficient outlets of drainage needed by said district and therein provided for, is the sum of $784,515.94.’

“It is therefore ordered by the court that the said sum of $784,515.94 be and the same is hereby levied and assessed against the lands in said Drainage District No. 6, originally assessed for the construction of the ditches and other improvements therein, and that said sum be and is hereby divided pro rata according to the original assessments of benefits against the lands in said district.”

On June 17, 1918, the objectors filed an affidavit for an appeal, and the county court thereupon made an order granting an appeal to the said circuit court.

Thereafter and more than ten days before the July term, 1918, of said circuit court, a duly certified copy of the proceedings in the county court was filed in the circuit court.

On the first day of the July term, 1918, of said circuit court, said drainage district and the two hundred and fifty landowners who had originally instituted the proceeding in the county court, filed in the circuit court a motion to dismiss said appeal, on the ground that an appeal could not be taken from the above mentioned judgment of the county court, and that therefore the circuit court acquired no jurisdiction by the attempted appeal.

The defendant sitting as judge of said circuit overruled the motion to dismiss the appeal, and was proceeding to hear the matter when the preliminary rule in prohibition was issued by this court. No question of misjoinder of parties plaintiffs is raised and we therefore do not discuss that question.

Many matters are stated in the return concerning the merits of the proceeding tried before the county court, but as we view the matter they are of no concern in the present proceeding.

The present record discloses that the proceeding was attempted to be brought to the circuit court from the county court by the process of an appeal. No other method or process was asserted or attempted to be asserted by which the circuit court could acquire jurisdiction in the cause. We are therefore not here concerned with the question of whether or not the circuit court, under its power of superintending control over the county court, could by writ of certiorari or by other writ have acquired jurisdiction.

The foregoing being true there is but one question presented by this record, which question is: Did an appeal lie to the circuit court from the order or judgment of the county court?

If an appeal did lie, then the circuit court acquired jurisdiction and our preliminary rule should be quashed. If an appeal did not lie, then the circuit court acquired no jurisdiction and our preliminary rule should be made absolute.

Upon an examination of the matter we have reached the conclusion that an appeal did not lie from the judgment of the county court.

Section 5592, Revised Statutes 1909, of the County Court Drainage Act, does provide for an appeal from certain orders or judgments of the county court in drainage cases, but, neither the act nor the amendments thereto in any manner undertake to provide an appeal from an order or judgment of the kind entered by the county court in the instant case.

In the recent case of Buschling et al. v. Ackley et al., 270 Mo. 157, it was held by Court in Banc that an appeal from a judgment of the circuit court under the “Circuit Court Drainage Act” did not lie unless the act itself provided for such an appeal. It was there said:

“The drainage act being purely a statutory proceeding, both as to the tribunal and the character of the proceedings, was unknown to the common law, and the act is special and constitutional and the provisions of the code of civil procedure are not applicable there- ------ — ;- to. In its present amended form it is a code unto itself. It is in all respects as to its provisions like the election law, forcible-entry-and-detainer law, road law and eminent-domain statutes, and should be strictly followed and so construed, independent of the civil code. This is especially true of appeal. [State ex rel. Hancock v. Spencer, 166 Mo. l. c. 285; State ex rel. Wells v. Hough, 193 Mo. 615; Leavenworth Terminal Ry. & B. Co. v. Atchison, 137 Mo. 218; Rothan v. Railway, 113 Mo. l. c. 143; Anderson v. Pemberton, 89 Mo. 64; Railroad v. Randolph Townsite Co., 103 Mo. l. c. 457; State ex rel. Keshlear v. Slover, 134 Mo. l. c. 15.]

“The Drainage Act is a separate and distinct statute. Since the various amendments thereto it is a complete code unto itself. Not being placed in the statute under the civil code of procedure, it is independent of it and is not governed by it. Consequently the procedure thereunder is not as in an ordinary civil case within the meaning of the code of civil procedure and is not governed by it.” Id. 1. e. 173-4.

There appears to be no reason why the rule announced in the Ackley case, supra, with reference to the right of appeal under the Circuit Court Drainage Act, should not apply with equal force and effect to the right of appeal under the County Court Drainage Act. The rule is fully discussed and the authorities are cited in that case which now renders unnecessary further treatment of the subject.

A further interesting and comprehensive discussion of the right of appeal under the “County Court Drainage Act” will be found in Drainage District v. Railroad, 216 Mo. 709.

For the reasons given in the two above mentioned cases we hold that an appeal did' not lie from the order or judgment of the county court and that therefore the circuit court acquired no jurisdiction over the proceeding by the attempted appeal.

From the foregoing it follows that the preliminary rule heretofore issued in this cause should be made absolute.

It is so ordered.

Bond, C. J., Walker, Blair, Woodson and Graves, JJ., concur; Baris, J., not sitting.