author: WILLIAMS, J.

text:
    THE STATE ex rel. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION et al. THE STATE ex rel. WABASH RAILWAY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION et al.
    In Banc,
    June 30, 1917.
    1. CROSSINGS: Subways: Powers of Public Service Commission. The Public Service Commission is given power by statute to regulate and provide for alterations and maintenance of all street crossings by railroads,, whether they be by subway, at grade or overhead.
    2. SUBWAY: Abandonment of Street. The construction by a railroad of a subway twenty-one feet wide over a street originally eighty feet wide and the acquiescence in said use of the street for thirty years by the city, are not such an abandonment of the rest of the street as precludes the Public Service Commission from compelling the railroad company to so widen the subway as to provide a passageway forty feet wide within the original limits of the street.
    3. CONSTRUCTION OF NEW SUBWAY: Arbitrary and Unreasonable Order. Where the tracks of the two railway companies cut a town of 15,000 people almost in halves, it is not arbitrary or unreasonable to require them to widen to forty feet and to increase by two feet in height a subway twenty-one feet wide and ten feet high, which, with the exception of numerous tracks at , grade, affords the only means of passing from one side of the city to the other, and is inadequate to accommodate the traffic at that point, and is so constructed as to allow dirt and oil to drop through on travelers and to cause horses to become frightened from the noise of trains overhead, although the present structure or bridge is of ample strength to support passing engines and with repairs might he used for that purpose for five or six years. The safety of passing trains is not the sole or controlling consideration; the convenience and necessities of the traveling public using the street must be considered.
    4. CONTRACT TO MAINTAIN A SUBWAY: Police Power. The exercise by a city of its police powers cannot be limited by contract, and a contract by which a city barters away its control over its streets, whatever may be its consideration and however formally entered into, is void. An agreement between a railroad company and the city, entered into at the time a subway for pedestrians and a bridge for trains at a street crossing were constructed, whereby it was agreed that the city would maintain the subway and keep it in repair and if it became necessary at any time to rebuild it each would bear one-half the cost, is not binding on the city, and does not obligate the city to pay one-half the expense of widening and reconstructing the subway.
    5. ORDER TO BUILD SUBWAY: Directed to Receiver of Railroad: Consent of Pederal Court. A city which seeks an order from the Public Service Commission to compel a railroad company to buLd a subway at a street crossing over which railroad tracks pass is not required to first obtain the consent of the Pederal court having jurisdiction over the receivership to proceed against the receiver of said railroad. Consent of the Pederal court is not necessary in order that the Public Service Commission may in the exercise of the police powers of the State proceed to promulgate its orders.
    Appeal from Randolph Circuit Court. — Eon. A. W. Walker, Judge.
    Affirmed.

      J. W. Jamison for appellant Missouri, Kansas & Texas Railway Company.
    (1) The order of the commission and the confirmation thereof by the circuit court of Randolph County are void, in that they would take, damage and destroy the property of appellants, for a public use without just compensation ; without any compensation, and without assessment of damages and the payment of the same, all in violation of section 21, article 2, Constitution of Missouri. Investment Co. v. St. Joseph, 191 Mo. 459; Telephone & Telegraph Co. v. Railroad, 202 Mo. 656; Railroad v. Pfau, 212 Mo. 398; Railroad v. Realty Co., 205 Mo. 167; Railroad v. Woodward, 193 Mo. 656; Lusk v. Atkinson, 186 S. W. 703; Railroad v. Public Service Commission, 266 Mo. 333. (2) Rollins Street as now existing does not cross the railroad tracks of the Missouri, Kansas & Texas at grade. The jurisdiction of the Commission is limited to grade crossings. Subsection 2, section 50, Public Service Act Laws 1913, 589. (3) The testimony shows the present subway to be safe and reasonably sufficient to accommodate the travel on Rollins Street, and the order of the commission requiring appellants to substitute an expensive bridge structure for. the present structure is, under the circumstances of the case, unreasonable, inequitable and arbitrary. State ex rel. v. Terminal Ry., 260 Mo. 439 ; St. Louis v. Tobacco Co., 247 Mo. 394; Macon v. Atkinson, 181 S. W. 396; Chicago v. Railroad, 91 N. E. 425; Railroad v. Public Service Comm., 266 Mo. 333. (4) In 1887 the city of Moberly abandoned a portion of Rollins Street to the appellants and the Wabash Railroad Company. Immediately thereafter, in the construction of the subway, the railroads extended their dumps and abutments over and into that part of the street so surrendered to them, and have ever since occupied that space, and there has ever since been a non-user of the same by the public. Non-user by the public of a portion of a street for a period of more than twenty years is sufficient to raise the presumption of an abandonment by the public of the right. State v. Culver, 65 Mo. 610; State v. Young, 27 Mo. 259; Brown v. Railroad, 20 Mo. App. 432; Weber v. Iowa City, 97 N. W. 637. (5) The order of the commission was beyond and in excess of its authority for the further reason that the complaint was originally filed against the Missouri, Kansas & Texas Railway Company, to which the receiver was not a party. A hearing was had on this complaint, and the cause was submitted. Afterwards, the case was reopened, and the receiver was then made a party, but without his consent. Neither did the complainant obtain from the United States district court, by whose order the receiver was appointed, leave to prosecute said action against him. The procuring of such leave was a condition precedent to the right to prosecute said complaint. Coster v. Railroad, 131 Fed. 115; Railroad v. Davis, 135 Fed. 707.

      J. L. Minnis, N. S'. Brown and O. G. Phillips for ap- . pellant Wabash Railroad Company.
    (1) The width of Rollins Street at the point of crossing of the Wabash right of way and tracks is limited to the width of the present subway by reason of the abandonment of the prior grade crossing, pursuant to the provisions of the contract between the Wabash and city of Moberly, dated September 14, 1887; and the commission is without power under the statute to require said street to be widened, and without power to require appellant to perform any work beyond the present boundaries of Rollins Street. Depot Co. v. St. Louis, 76 Mo. 391; Hickman v. Link, 116 Mo. 127; Investment Co. v. Railroad, 108 Mo. 64; Scarritt v. Railroad, 148 Mo. 682; Hatton v. Railroad, 253 Mo. 675; State v. Culver, 65 Mo. 607; Kansas City v. Smith, 238 Mo. 323, 336; Railroad v. Tatman, 149 Mo. 657; Railroad v. Smith, 170 Mo. 327; Railroad v. Baker, 183 Mo. 312. (2) If the present subway is required to be widened, then the city should be required to pay one-half the total expense thereof, because: (a) The contract between the city and the Wabash, of September 14, 1887, is still in force and effect and a valid obligation of said city. Sec. 7, Charter, City of Moberly, Laws 1873, p. 326; Edwards v. Kirkwood, 147 Mo. App. 599; 3 McQuillan, Mun. Corp., secs. 1167, 1179 and 1255. (b) Under the facts and circumstances of this case, it is equitable and just that said city be required to pay one-half the cost of the proposed improvement.

      Alex Z. Patterson, James D. Lindsay, W. B. Stone and Hunter & Chamier for respondent.
    (1) The jurisdiction of the Public Service Commission is not limited to grade crossings, but it embraces every crossing of a street or highway by a railroad, and is commensurate with the subject to be dealt with. The commission has the exclusive power to prescribe the manner and terms of installation, operation, maintenance, apportionment of the expense, use and protection of each crossing of a street by a railroad; to alter or abolish any such crossing; to require a separation of grades at any such crossing heretofore or hereafter established; and to prescribe the terms upon which such separation shall be made, and the proportions in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected, or between such corporations and the State, county, municipality or other public authority in interest. Sec. 50, Public Service Commission Act, Subdiv. 2, Sec. 2, Subdiv. 6, Sec. 16, Subdiv. 1 and 3; State ex rel. v. Public Service Comm., 130 App. Div. (N. T.) 335. (2) The alleged contract between the city and the Wabash Western Railway Company is a nullity. 'The city can make no contract except it be within the scope of its powers or expressly authorized by law. It was. the common law and statutory duty of the railway companies to construct and maintain a suitable and convenient crossing, and the city was not authorized to contract to aid the railway companies in the performance of their duty. State ex rel. v. Railroad, '86 Mo. 13; Sec. 807, R. S. 1879; Secs. 3049, 3142, R. S. 1909; 2 Elliott, Roads and Streets, sec. 1056; 3 Elliott, Railroads, sec. 1105; 1 Elliott, Roads and Streets, 48; Snow v. Deerfield Township, 78 Pa. 181; Newton v. Railroad, 66 Iowa, 422; State ex rel. v. Railroad, 98 Minn. 380, 28 L. R. A. (N. S.) 298; State ex rel. v. Railroad, 80 Minn. 108; Sec. 6, Constitution of Missouri. The contract being made for a purpose not within the city’s powers, and not authorized in accordance with the statute, was void, ab initio, and there can be no ratification of it. Savage v. Springfield, 83 Mo. App. 323; Perkins v. School District, 99 Mo. App. 483; Morrow v. County, 189 Mo. 610; Inhabitants v. Mfg. Co., 39 Mo. App. 264; Bell v. Kirkland, 102 Minn. 213, 13 L. R. A. (N. S.) 293; Bank v. Goodhue, 120 Minn. 362, 43 L. R. A. (N. S.) 84; Traction Co. v. Minneapolis, 124 Minn. 351, 50 L. R. A. (N. S.) 143. Regardless of the foregoing considerations, it is clear that the contract between the city and the Wabash Western Railway Company could not prevent nor control the exercise of the police power of the State over the subject dealt with in the contract. The Wabash Western Railway Company, and the city in its proprietary capacity, in undertaking by contract to assume reciprocal obligations upon a subject involving the public safety and convenience, could not affect the paramount right of the State to prescribe the duties of each of the parties to said contract in relation to that subject. Railroad v. State ex rel., 208 IT. S. 583; Railroad v. Minneapolis, 232 IT. S. 430; Tobacco Co. v. St. Louis, 247 Mo. 374; Kansas City v. Railroad, 102 Mo. 633; Milwaukee v. Railroad Comm., 155 N. W. 948; Railroad v. Connersville, 218 IT. S. 336. (3)' There was no abandonment of Rollins Street outside the subway proper by the city to the railway companies for the use of the railways and for the purpose of giving title to the railway companies. This is true because the contract was a nullity. Moreover, it is manifest, both from the language of the contract, if it is considered at all, and from the use to which nearly all of the said street is put, that the use contemplated was a public use — a use connected with and necessary to the maintenance of the subway itself. (4) The commission has the power to alter the present condition of the crossing by requiring existing structures to be replaced by structures adapted in size and construction to the demands of public necessity and convenience at the present time. The common law and statutory duty of the railway companies to maintain safe and convenient crossings of highways, keeps pace with changed conditions and must adapt itself to the necessities and convenience of the public. This duty of the companies, and this power of the commission, are continuing and co-extensive. Sec. 50, subdivision 2, Public Service Commission Act; Tobacco Co. v. St. Louis, 247 Mo. 374; Railroad v. Illinois, 200 IT. S. 561; Indiana ex rel. v. Ráilroad, 83 Fed. 284; State ex rel. v. Railroad, 35 Minn. 131; Railroad v. Bristol, 151 IT. S. 556; Railroad v. Chicago, 166 IT. S. 226; Railroad Co. v. Nebraska, 170 U. S. 57; State ex rel. v. Railroad, 98 Minn. 429. (5) The fact that' the existing structures are strong enough to bear the railway traffic safely and would probably last for several years, is not determinative of the issue presented. It leaves out of consideration the essential element of public safety and convenience. (6) The receiver is subject to the orders of the commission, without it being necessary to secure the consent of the Federal court by which he was appointed. Section 2, subdiv. 8, Public Service Commission Act; Secs. 65 and 66, Federal’ Judiciary Code; State ex rel. v. Public Service Comm., 192 S. W. 86; United States v. Harris, 177 U. S. .305; Erb v. Morasch, 177 U. S. 584; Steel Co. v. Railway, 157 Fed. 445; Railroad v. Russell, 115 111. 52. (7) The findings and orders of the Public Service Commission are presumed to be lawful and reasonable. The court will not reverse the orders of the Commission, unless they show arbitrariness, and a disregard of the material rights of the railway companies. Railroad v. Jacobson, 179 U. S. 287; Railroad v. North Carolina, 206 U. S. 224; Railroad v. Minnesota, 186 U. S. 257; State v. Public Service Comm., 137 Pac. 136; Interstate Commerce Comm. v. Railroad, 218 U. S. 88; Morgan Co. v. Railroad Comm., 33 So. 220 ; In re Brook Park, 140 N. W. 771; People ex rel. v. McCall, 219 N. Y. 84.
   WILLIAMS, J.

This proceeding was originally instituted before the Public Service Commission by the city of Moberly, asking the Public Service Commission to require the Missouri, Kansas & Texas Railway Company and the Wabash Railway Company to bear a portion of the expense in constructing a subway at the Rollins Street crossing of said railway companies’ tracks in said city of Moberly. Upon a hearing, the Public Service Commission ordered the subway to be constructed at an estimated cost of $44,700, 'and apportioned the cost of the same as follows: to the Wabash Railway Company, $18,246; to the Missouri, Kansas & Texas Railway Company, $14,759 ; to the city of Moberly, $11,695.

Upon certiorari the order of the Public Service Commission was reviewed and affirmed by the circuit court of Randolph County. Thereupon each of said railway companies appealed to this court. The appeals were separate. The appeal of the Missouri, Kansas & Texas Railway Company et al. is numbered 20061 in this court, and the appeal of the Wabash Railway Company is numbered 20088. Since both appeals involve the same record, and practically the same legal propositions, they were argued together in this court and treated as consolidated, and we will so treat them in this opinion. A sufficient understanding of the issues and facts involved may be had from the following excerpts from the opinion of the Public Service Commission:

“The amended complaint chai'ges that the street crossing situate under the tracks of the defendant railroad companies at Rollins Street, in the city of Moberly, is wholly inadequate to accommodate the public in the use of the street, in that the street crossing is not of sufficient width; that it is so defectively constructed and maintained as to permit dirt and cinders and water to accumulate thereon to the annoyance of the public; that the under-crossing as now maintained was constructed thirty years ago and is not sufficient to accommodate the present use of the same by the public. Complainant asks that defendants be required to erect and maintain a crossing at Rollins Street that will reasonably accommodate the public in the use of the street. . . .
“The substance of the answer of the Wabash Railway Company is that the grades of the street and railway crossing at Rollins Street were separated in 1887 at the joint expense of the city and Wabash Western Railway Company, in pursuance of a contract between the Wabash Western Railway Company (the predecessor in title of the defendant Wabash Railway Company), whereby it was agreed that a subway or tunnel should be built at Rollins Street beneath the railroad tracks at the joint expense of the city and said railway company; that the city should maintain the subway and keep it in repair and should it become necessary to change or repair the railroad bridge over the subway it should be done by mutual consent of the city and said railway company or its assigns, the city and railway company each to pay one-half the cost. Defendant averred that the city had by the terms of said contract abandoned all the remaining part of'Rollins Street not included in the subway; that defendant has been ready to perform the work of widening the subway at Rollins Street, provided complainant would pay one-half of the cost as provided by the contract.
“Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company by appointment of the United States District Court for the Eastern Division of the Eastern District of the State of Missouri, filed answer denying the allegations of the complaint and averring that the commission had no power to make him a party to the proceeding or to direct an order against him as receiver, for the reason that the property of said railway company was through him, as receiver, subject to the sole control of the said United States District Court.
“The answer of the Missouri, Kansas'& Texas Railway Company avers in effect that by the terms of the contract set forth in the answer of the Wabash Railway Company the city of Moberly agreed to pay one-half of the cost of constructing a permanent crossing at Rollins Street and that the defects therein complained of, if any, are due to the failure of the city to carry out that agreement; that the commission has no power to require the street crossing to be widened; and further, that defendant’s property is in the hands of a receiver and it is not now operating a railroad.
‘ ‘ The city of Moberly has fifteen thousand inhabitants. It was organized under a special act of the Legislature in 1873 and continued under that act until 1889, at which time the city became a city of the third class as provided by the statutes of this State, and has so continued.
‘ ‘ The general direction of right of way and tracks of the Wabash Railway Company through the city of Moberly is north and south. The .right of way and tracks of the Missouri, Kansas & Texas Railway are almost parallel to the Wabash Railway and a short distance-east thereof. About five thousand people reside east of the railroad tracks. The crossings now maintained at grade across the railroad tracks of defendants from the east part of the city to that west of the railroad tracks are at Coates Street, Wightman Street, Carpenter Street and McKensie Street.
“At the place of crossing the railroad tracks of the defendants by each of the streets above named, except Mc-Kensie Street, there are at least five railroad tracks. Watchmen are kept at the Coates and Wightman Street crossing to protect the public. Wightman Street is the first crossing south of Rollins Street and is one-eighth of a mile distant therefrom. The Carpenter and McKensie Street crossings are south of Wightman Street. Train movements are frequent on the tracks of defendants at all the street crossings.
“The crossing receiving the largest use by the public is the crossing at Coates Street, which is one block north of Reed Street, where the Union Passenger Depot of the defendants is located. Rollins Street is one block south of Reed Street. It is eighty feet in width and is one of the main streets of the city.
“Sturgeon Street extends north and south'and is crossed by Rollins Street at the west line of the right of way of the Wabash Railway Company. Rollins Street intersects Moulton Street immediately east of the railroad tracks.
“On the 14th day of September, 1887, the city of Moberly entered into a contract in writing with the Wabash Western Railway Company for separating the grades at the Rollins Street crossing. By said contract the parties thereto agreed that the city and railroad company should each pay one-half the cost and expense of excavating for a tunnel under said railway company’s tracks at Rollins Street and for erecting a wooden bridge over the same for use by the railway company. Under the terms of the contract the city was to take control and management of the tunnel as of its other property and keep it in good repair except the bridge and its supports. It was also agreed that the' railway company or its assigns shall have control of the bridge, and should the bridge or its supports be changed in workmanship, design or material, it shall be by the mutual consent of the city and railway company, or its assigns; in either event the railway company or its assigns and the city shall each pay one-half of the cost of said repairs'or changes in the construction thereof. The contract further provided that upon completion of the tunnel the city would permit the Wabash Western Railway Company to fence or close in Rollins Street on grade with its tracks and that the city would abandon the street and sidewalks on grade with the tracks on Rollins Street. The contract was made on behalf of the city by the mayor. There was no showing that it had been authorized by ordinance.
“The tunnel or subway for an undercrossing at Rollins Street and the bridge above the same were constructed in pursuance of the contract above named and the cost was paid, as provided therein. The evidence does not show at what time the overhead structures at Rollins Street were erected by the Missouri, Kansas & Texas Railway Company. At the time of the .hearings and long prior thereto said railway company maintained two separate overhead structures for a main track and a switch track at Rollins Street, a short distance east of the Wabash bridge over Rollins Street. The bridge of the Wabash Railway Company supports four tracks and is about sixty feet in width. It is across Rollins Street at a right angle. The other structures cross the street obliquely. At the time of the hearings a roadway sixteen feet in width, paved with brick, had been built by the city on Rollins Street through the tunnel or subway. About one year prior to the first hearing in the case the railroad companies built a cement sidewalk five feet in width' through the tunnel on the north side of Rollins Street. The overhead structures are much the same in the manner of their construction and are supported by wooden piling at each end. There is a row of piling between the sidewalk and roadway, under the bridge of the Wabash Railway Company.
“The overhead structures are reasonably safe for carrying the trains of the railroad companies, and with repairs may be used for five or six years. The bridge of the Wabash Railway is less than ten feet above the roadway. The Missouri, Kansas & Texas Railway bridges are eleven feet above the roadway. The parts of the bridges over the roadway are floored with boards, the parts over the sidewalk have been covered with sheets of metal to protect pedestrians from oil and dirt from passing trains. The grade of Rollins Street going east descends toward the tunnel and carries water to a point near the main track bridge of the Missouri, Kansas & Texas Railway, where the city has provided a pipe to carry it away. The testimony shows that the pipe is too small to carry away the water flowing into the tunnel. Water is frequently on the pavement in the tunnel, interfering with the use of the street by the public.
“The evidence shows a large use of the Rollins Street subway by both pedestrians and vehicles. The city produced a witness who had observed and counted the number of persons traveling on the street at the crossing on the 13th, 14th and 15th days of April, 1916. The witness testified to the use of the subway during that period by twelve hundred and seventy-eight vehicles carrying seventeen hundred and sixteen persons, and by twenty-eight hundred and seventeen pedestrians.
“Complainant offered many witnesses for the purpose of showing that the tunnel as now maintained was not sufficient for the reasonable accommodation of the public. The objections thus presented were lack of drainage, earth falling from embankments at the ends of the bridges onto the sidewalk and roadway, oil and cinders falling from trains onto persons passing beneath the tracks, noise from passing trains owing to open construction of the floors of the bridge, insufficient vertical clearance of the bridges above the roadway, and lack of width of the roadway.
“We find that the substantial defects in the tunnel or subway as now maintained are the narrow roadway,, insufficient vertical clearance, lack of abutments to prevent eartli and water from the embankments from falling-in the sidewalk and roadway, and the failure to provide floors in the bridges that will prevent oil, cinders or dirt from falling upon travelers. Sidewalks should be provided at each side of the roadway.
“Since 1906 the alterations of the structure at Rollins Street has been the subject of negotiations between the city and the Wabash Railway Company and also between the city and the Missouri, Kansas & Texas Railway Company. The city has insisted upon new structures which the railroad companies have refused to build unless the city would pay one-half of the cost thereof.”

At the request of the Public Service Commission, the railway companies submitted plans for the proposed structure. These plans were submitted, however, with the express understanding that in so doing the railway companies did not waive any right which they might have to object to any order that the Public Service Commission might make in the premises.

“The plan-filed by the Wabash Railway Company offers a structure of concrete and steel, with a roadway of twenty-four feet and sidewalk at each'side of eight feet in width. The bridge to be twelve feet above the roadway and to be supported by concrete abutments located at each end and piers located at curb lines. . . . The plan filed by the receiver of the Missouri, Kansas & Texas Railway provides for structures of the same type as prescribed by the plans of the Wabash Railway Company.”

The plan submitted by the railway companies was the one later adopted by the Public Service Commission. In apportioning the cost the opinion of the Public Service Commission states:

“The city and defendants should each pay a part of the expense of the proposed improvement at Rollins Street.
“The Wabash Railway Company should bear the cost of the subway necessary to carry its tracks over Rollins Street, and the cost of removing old sidewalks and old pavement, and the cost of street grading- from the east right of way line of the Wabash Railway Company to approximately 100 feet west of the center line of Sturgeon Street and necessary retaining walls within above limits. The estimated cost of work outlined above is $18,246.
“The Missouri, Kansas & Texas Railway Company and the receiver should bear the cost of the two subways necessary to carry its tracks over Rollins Street, and the cost of removing old sidewalks and old pavement, and the cost of street grading from the east right of way line of the Wabash Railway Company to the west line of Ault Street, and necessary- retaining walls within above limits. The estimated cost of this work is $14,759.
“The city of Moberly should bear the cost of the balance of the work, which consists of a twenty-four foot brick pavement, two eight-foot concrete sidewalks, and curbs from the west line of Ault Street to Sturgeon Street, and a sixteen-foot brick pavement from Sturegon Street to approximately 100 feet west of center line thereof, two catch basins at west portal of Wabash subway, two catch basins at east portal of east Missouri, Kansas & Texas Railway subway, necessary twelve-inch pipe connections between catch basins and under subways to connection with thirty-inch sewer, and thirty-inch sewer along south side of Rollins Street from east Missouri, Kansas & Texas Railway subway to ‘Lockley’s PIollow.’ The estimated cost of above work is $11,695.”

I. It is contended by both appellants that the Public Service Commission is without power under the statutes to make the order now sought to be reviewed. In jj. insisted that the power of the Commission in the matter of regulation of crossings is limited to grade crossings.

We are unable to agree with this contention.

Sub-section 2 of section 50, Public Service Act, Laws 1913, page 589, provides:

“The Commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expense, use and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public road or highway by a railroad or street railroad and of a street by a railroad or vice versa, so far as applicable, and to alter or abolish any such crossing, and to require, where, in its judgment, it would be practicable, a separation of grades at any such crossing heretofore or hereafter established, and to prescribe the terms upon which such separation shall be made and the proportions in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the State, county, municipality or other public authority in interest.” (Italics ours.)

The Supreme Court of Vermont in the case of Libby v. Canadian Pac. Ry. Co., 82 Vt. 316, said:

“A crossing of roads, in the primary and natural sense of the word, is an intersection of them in the same plane, and while an underpass is a structure which obviates the necessity of a crossing, in a broader sense, the ivord covers all the means by which the traveler passes from one side to the other of an obstructing line.”

In the cases of Wheeler v. Rochester & S. Ry. Co., 12 Barb. 227, l. c. 232, and St. Paul & S. C. R. R. Co. v. Murphy, 19 Minn. 500, l. c. 522, the term “crossing” was held to include all “crossings from one side to the other of the railroad, whether by passing over or under the track.

By reading in a connected way the above italicized portions of said statute, and considering the same in connection with the context, we think it becomes quite apparent that the commission is given the power to regulate and provide for the alteration and maintenance of all such crossings whether they be by subway, on grade, or overhead. The word “crossing” as used in the act is sufficient in scope to include all such crossings and we are of the opinion that the Legislature so intended. The very language of the act itself directs that: “The provisions of this act shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.” [Sec. 127, Public Service Commission Act, Laws 1913, p. 648.]

II. It is further contended that Rollins Street, originally eighty feet in width, is now only twenty-one feet in width; that the abandonment of the grade crossing in 1887 and the subsequent use by the public of only twenty-one feet thereof for such subway, amounts to an abandonment of the remaining portion of the original width of said street, so that as the matter now stands the commission is without power to require said subway to be widened and is without power to compel appellants to perform work beyond the boundaries of the present subway structure.

The plan of improvement contemplates a subway forty feet in width which includes a twenty-four-foot driveway for vehicles, with sidewalk eight feet in width on each side thereof. The present subway is twenty-one feet in width.

Without here undertaking to determine the power of the commission to exercise its power upon land beyond the limits of the street (because not necessary to a decision here), it is sufficient for the determination of the point here made to say that we are of the opinion that Rollins Street at said crossing is not limited to the width of the present subway structure. There is no showing made sufficient to warrant a holding that the intention of the city was to abandon, or that it did abandon, so as to exclude from future use, any portion of the original width of said easement as might, in the future, become convenient or necessary to be used in expanding the subway structure to accommodate the traveling public.

III. We are of the opinion that the order of the commission is not subject to the charge of being unreasonable or arbitrary. The situation here involved is quite different from the situation discussed in the cases of State ex rel. v. K. C. Terminal Ry. Co., 260 Mo. 489; American Tobacco Co. v. St. Louis, 247 Mo. 374; Railroad v. Public Service Commission, 266 Mo. 333, and other cases cited by appellant.

Moberly is a city of approximately 15,000 inhabitants. The tracks of the two appellant railway companies cnt the city almost in halves — leaving about six thousand people to the east of the tracks and nine thousand people on the west side. The subway crossing at Rollins Street is the only means of passing from one side of the town to the other without going across the numerous tracks at grade. The commission found (and we think there is an abundance of testimony to support the finding) that the present size of the subway is inadequate to accomodate the traffic at that point. It further appears that the construction of the present subway is such as to allow dirt and oil to drop through on the persons using the subwav a"d that the open construction of the subway causes horses to become frightened from the noise of the passing of the trains overhead. It is true the commission finds that the structure is of ample strength to support passing engines, and that with repairs it might be used for that purpose for five or six years, but the safety of passing trains is only one of the elements to be considered in matters of this kind. It is not the sole or controlling element. The convenience and necessities of the traveling public using Rollins Street must likewise be considered. The plan of improvement adopted is not claimed to be extravagant or unreasonable.- In fact the very plan adopted is the one supplied by the appellant companies. And while they claim that no improvement should be required at this time, yet, as we understand the matter if an improvement is to be made, they make no complaint as to the details of the plan adopted.

The whole situation carefully considered, we are unable to say that the order is unreasonable or arbitrary.

IV. It is contended by the appellant "Wabash Railway Company that by virtue of a contract- entered into between it and the city of Moberly in 1887, the should have been ordered to pay one-half of the total expense of said proposed improvement. A description of the contract to which reference is here made will be found in the foregoing statement of facts.

Assuming (but without deciding) that the above mentioned contract was in fact duly executed as the law requires of contracts executed by a municipality, yet the contract cannot avail the appellant in this proceeding, for the reason that such a contract is void as against public policy in that, if held valid, it would amount to a limitation on the exercise by the State of its police power.

This exact point was passed upon by the Supreme Court of the United States in the case of Northern Pacific Railway v. Duluth, 208 U. S. 583. In that case a contract was entered into between the railroad company and the city of Duluth which provided for the construction of a viaduct at a point where one of the city’s streets crossed the railroad. The initial cost was paid, $50,000 by the railroad and $23,000 by the city. The contract provided that the city, for a period of fifteen years, should maintain the part of the bridge over the railroad’s right of way, and that the city should perpetually maintain the approaches. Later the viaduct -and the approaches became dangerous for public use and the city under the exercise of a delegated power from the State undertook to require the railroad company at its own expense to make the needed improvement. The .city by mandamus proceeding undertook to enforce its order. The railroad company pleaded the contract as a defense. The trial court granted the city the relief prayed. Upon appeal the State Supreme Court- affirmed the judgment. [98 Minn. 429,] Upon error to the Supreme Court .of the United States the judgment was affirmed, the court saying:

“The result of these cases [citing] is to establish the doctrine of this court to be that the exercise of the police power in the interest of public health and safety is to be maintained unhampered by contracts in private interests, and that uncompensated obedience to laws passed in its exercise is not violative of property rights protected by the Federal Constitution. In this case the Supreme Court of Minnesota has held that the charter of the company as well as the common law required the railroad, as to existing and future streets, to maintain them in safety, and to hold its charter rights subject to the exercise of the legislative power in this behalf, and that any contract which undertook to limit the exercise of this right was without consideration, against public policy and void. This doctrine is entirely consistent with the principles decided in the cases referred to in this court. But it is alleged that at the time this contract was made with the railroad company it was at least doubtful as to what the rights of the parties were, and that the contract was a legitimate compromise between the parties which ought to be carried out. But the exercise of the police power cannot be limited by contract for reasons of public policy, nor can it be destroyed by compromise, and it is immaterial upon what consideration the contracts rest, as it is beyond the authority of the State or the municipality to abrogate this power so necessary to the public sai

The same doctrine is also announced in the case of American Tobacco Co. v. St. Louis, 247 Mo. 374, l. c. 433.

V. It is contended by appellant, the receiver of the Missouri, Kansas & Texas Railway Company, that the commission was without authority to make said order as to him because, although he was notified and appeared and answered, the complainant failed to obtain from the Federal court having jurisdiction of the receivership, consent to proceed against said receiver.

We know of no authority which requires that the consent of the court having jurisdiction of the receivership must first be had in order that the Public Service Commission of the State wherein the railroad is located, may have the authority to proceed in the promulgation of its orders in the exercise of the police power of the State. Counsel have not cited any such authority and we are not aware of any reason making such a rule necessary. By sub-section 8 of section 2 of the Public Service Commission Act, (Laws 1913, p. 558), receivers of railroads are expressly included within the scope of said act.

Section 65 of the Federal Judicial Code (4 Fed. Stat. Ann., p. 386; 1 U. S. Comp. St. 1913, p. 435) provides:

“Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall wilfully violate any provision of this section shall be fined not more than three thousand dollars or imprisoned not more than one year or both.”'

Under a very analogous situation the Supreme Court of Alabama held that the consent of the appointing court was unnecessary. [Railroad Commission of Alabama v. Alabama Great Southern R. R. Co., 185 Ala. 354.]

We are of the opinion that the consent of the court, appointing the receiver, to permit said receiver to be made a party to the proceeding before the Public Service Commission, was not a necessary prerequisite to the right of the commission to enter its said order and the contention therefore is disallowed.

The judgment is affirmed.

Graves, G. J., Walker, Faris and Blair. JJ., concur;' Bond, J., concurs in paragraph 3 and in the result; Wood-son, J., not sitting.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    A. M. LUCKETT, Doing Business as SOUTHERN FRUIT JULEP COMPANY, and JERSEY COMPANY, Appellants, v. ORANGE JULEP COMPANY, a Corporation, and CLAUD JOHNSTONE et al., Partners, Doing Business Under Firm Name of ORANGE JULEP COMPANY.
    In Banc,
    June 30, 1917.
    1. FORMULA-: Ownership: Howel’s Orange Julep: Chemist in Employ of Manufacturer. A chemist hy written contract was employed to “personally supervise and attend to the manufacture of all extracts and syrups necessary to carry on the business” of a company manufacturing soft drinks, and agreed and bound “himself to never divulge any of the trade secrets or formulas turned over to him” by said company. At that time the company was manufacturing “Jersey Creme,” and later the manager took up with said chemist the perfecting and manufacture of a new soft drink, and bought the ingredients used in experimenting, the tests being made in the company's laboratory and most of the work being done by the chemist, and as a result “Howel’s Orange Julep” was manufactured and placed upon the market, and much money was spent in advertising it and many thousands of dollars’ worth of it were sold, all while the chemist remained in the company’s employ. He did not originate the formula, but it was the result of the combined efforts of himself and three other officers of the company, which paid for their services and for the ingredients. Held, that the formula belonged' to the company, and the chemist had no interest in it as it existed at the time he resigned which he could transfer to others or use for his own benefit.
    2. —-: -: Injunction. And as said chemist claims to have
    said formula in his possession, and he and his associates are using it to manufacture and sell an Orange Julep, and he is attempting to induce patrons to believe that be alone originated the formula and that he alone can manufacture an Orange Julep in accordance with it, and said acts are injuring the company in its business, he and his associates will be enjoined from making use of the formula and they will be restrained from manufacturing an orange julep of any kind until he makes out and delivers said formula to said company.
    Appeal from St. Louis City Circuit Court . — Hon. Leo 8. Bassieur, Judge.
    Beversed and remanded (with directions).

    " Fnmnberg $ Bussell and Brownrigg $ Mason for appellants.
    (1) Where a person is employed by a company which uses á secret process in the manufacture of its product, there is an implied contract on the part of the employee not to divulge the secret or use it for his own purposes, after he leaves the company. Pape v. Lathrop, 18 Ind. App. 643; Little v. Gallus, 38 N. Y. Supp, 489; Kodak Co. v. Beichenbach, 79 Hun, 183; O. & W. Thum Co. v. Tloczynsld, 114 Mich. 149; Peabody v. Norfolk, 98 Mass. 452; Westervelt v. Paper Co., 154 Ind. 673; Stone v/ Chemical Co., 65 N. J. Eq. 759; Silver Springs B. & D. Co. v. Woolworth, 16 R. I. 732; Trice v. Comstock, 121 Fed. 620; Detinning Co. v. Can Co., 12 L. R. A. (N. S.) 102; Baldwin v. Yon Micheroux, 25 N. Y. S. 857; Class Co. v. Schnebach, 239 Pa. 76; Wiggins Co. v. Cot-A-Lap Co., 169 Fed. 150; Switch & Signal Co. v. Sperry, 169 Fed. 26. (2) Furthermore, even if during his employment he had discovered the secret of this compound, entirely by his own efforts, unaided by any other employee, but with his master’s time, material and appliances, then, inasmuch as he allowed the master to advertise this product under the name of “Howel’s Orange Julep,” to advertise it throughout the United States to the extent of thousands of dollars, and build up a business to the extent of more than $100,000 a year, based upon that formula, by every principle of equity and fairness he would be now estopped to claim the sole proprietorship of that formula, or to claim that he had a right to go out and use it to his former master’s injury. Pape v. Lathrop, 18 Ind. App. 643; Little v Callus, 38 N. Y. Supp. 489; Kodak Co. v. Reichenbach, 79 Hun, 183; Silver Springs B. & D. Co. v. Woolworth, 16 R. I. 732; Baldwin v. Yon Micheroux, 25 N. Y. Supp. 857. (3) The owner of such a secret process, though not patented or patentable, has a right to protection by injunction against one who, in violation of a contract or breach of confidence, undertakes to apply the secret to his own use, or impart it to others. Stewart v. Hook, 18 Ca. 445; O. & W. Thum Co. v. Tloezvnski, 114 Mich. 149; Nut Co. v. Cramer, 134 Mich. 370; Taylor v. Iron & Steel Co., 70 N. J. Eq. 541; Harvey Co. v. Drug Co., 75 App. Div. 108. (4) Whether a trade name is capable of exclusive appropriation as a technical trade-mark, or not, and even though it be descriptive, if it has a secondary meaning as a designation of the product of a certain person, others have no right to use that name without some accompanying statement to elqarly distinguish the competing product from the product originally put out under the name used. Watch Co. v. Sanborn, 96 Fed. 330; Oxford University v. Publishing Co., 101 Fed. 443; Devlin v. Peek, 135 Fed. 167; Draper v. Scarritt, 116 Fed. 206; Globe-Wernicke Co. v. Brown, 121 Fed. 185; Knitting Co. v. Garon, 128 N. W. '288; Levy v. Walker, L. R. 10 Ch. D. 447. (5) In order to make out his casé, it is not necessary for the plaintiff in a case like the one at bar to prove actual deception of the public, where a manifest likelihood of such deception exists. Fuller v. Huff, 43 C. C. A. 453, 104 Fed. 141; Pin Co. v. Berg Bros., 188 Fed. 683; Yon Mumm v. Frasch, 56 Fed. 837; Malting Co. v. Malting Co., 97 N. W. 389. (6) In such a case as this, even though the defendants practiced no deception themselves, if the trade name adopted by them was such as to enable middlemen and to lead middlemen to deceive the public into believing that the defendants’ product is the plaintiff’s product, there is a yiolation of plaintiff’s rights. J ohnston v. Orr-Ewing, 7 App. Cas. 231; R. Hennisch’s Sons Co. v. Boker, 86 Fed. 768; Gulden v. Chance, 182 Fed. 318; Yon Mumm v. Frasch, 56 Fed. 835; Mfg. Co. v. Trainer, 101 U. S. 51; Nims, Unfair Competition, p. 32, sec. 18; Tobacco Co. v. Hynes, 20 Fed. 884; McLean v. Fleming, 96 U. S. 255; Fairbank Co. v. Mfg. Co., 77 Fed. 877.

      Bruce 8. Elliott and Wagner & Miller for respondents.
    (1) As to the claim that defendants have been guilty of unfair competition in giving their product the same color as that of the plaintiffs ’ products, plaintiffs have no monopoly in any particular color, and certainly have no monopoly to give an orange syrup an orange color. Plaintiffs adopted no particular color as a distinguishing mark of their goods; and where defendants use the same color for their product as plaintiffs use, it must be shown that this was done with the design to market their goods as those of plaintiffs. Enoch Morgens’ Sons Co. v. WhittierCoburn Co.,. 118 Fed. 657; Fairbank Co. v. Mfg. Co., 75 Fed. 869; Dennison Mfg. Co. v. Mfg. Co., 94 Fed. 651; Tobacco Co. v. Larus & Bro., 133 Fed. 727; Marvel Co. v. Pearl, 133 Fed 160; Remedy Co. v. Eureka Co., 80 Fed. 105; Von Mnmm v. Whitteman, 85 Fed. 966, 91 Fed. 126. (2) The formula under which “Orange Julep” is being made by defendants was not obtained from plaintiffs and was never peculiarly their property, (a) If, on the one hand, defendant Johnstone originated and owned this formula, his conduct in permitting plaintiffs to use it 'in the manufacture- and marketing of their syrup simply gives them the right to continue to do so; but he would have an equal right with plaintiffs to manufacture and market the syrup made from his own formula, the only limitation to that right being that he must distinguish his goods from those of plaintiffs, (b) If, on the other hand, Johnstone and Howel collaborated in producingdhe formula, it must affirmatively appear that the information conveyed to Johnstone by Howel in the matter was not such as John-stone would or could have acquired in the ordinary practice of his profession, before he can be enjoined from its use^ Nims, Unfair Competition, p. 432; Iron & Steel Co. v. Nichols, 69 Atl. 186; Alger v. Thatcher, 19 Pick. 51; Al-bright v. Teas, 37 N. J. Eq. 171; Stein v. National Life Assn., 105 G-a. 821, 46 L. R. A. 150; High on Injunctions, par. 19. (3) There is no evidence that defendants are using the same formula as that used by plaintiffs, or that their product is the same product as that made by plaintiffs; and-the court, therefore, has no means of knowing that they are the same. On the contrary, Johnstone swears that the “Orange Julep” now manufactured by defendants is the same product that he had niade originally before his employment by plaintiffs and is the same product that he made while with the plaintiffs, and that he has never disclosed the formula for making that product to any one. Wherefore, the court is manifestly unable to say that the two formulae and the products therefrom are now the same. Baglin v. The Cusinier Co., 164 Fed. 25. (4) The words “Orange Julep,” being a common name, descriptive, and incapable of exclusive appropriation, the defendants, in common with the public generally, have a right to use the words to describe their product, if in so doing they practice no deception. Descriptive terms and generic names are publici juris and incapable of exclusive appropriation by any one; and even where the words have acquired a secondary meaning the subsequent users (as these defendants) have no other burden imposed upon them than to use the name (as was done in this case) in such manner as to prevent the possibility of deceiving purehásers. If, by reason of such allowable use by defendants, plaintiffs suffer any injury it is damnum absque injuria. 38 Cyc. 769; Varnish Works v. Fisher, 153 Fed. 928; Stationery Co. v. Dodge, 145 Cal. 380; Kroph v. Furst, 94 Fed. 150; Hot Springs Co. v. Hegeman, 138 Fed. 855; Nicholson v. Cigar Co., 158 Mo. 158; Oakes v. Candy Co., 146 Mo. 391; McCartney v. Garnhart, 45 Mo. 593; Seed Co. v. Plant Co., 37 Mo. Ápp. 313; Wrisley Co. v. Soap Co., 122 Fed. 796; Reach Co. v. Hardware Co., 155 Mo. App. 412; Alden v. Gross, 25 Mo. App. 123. (5) The fact (if it be a fact) that defendants’ “Orange Julep” could be sold to ultimate consumers at the soda fountain as or for plaintiffs’ product, thereby injuring the plaintiffs, constitutes no ground whatever for interference with defendants’ sale of their product; provided, that defendants have fully met the duty imposed upon them by law (as they clearly have in this case) of so labeling the immediate containers of their product that they in no manner simulate the packages or containers of plaintiffs’ product. Rathbone v. Champion Co., 189 Fed. 26, 110 C. C. A. 596, 37 L. R. A. (N. S.) 354. (6) It is an absolute essential, in order to establish a case of unfair competition, that the court should find that the ordinary purchaser would be deceived into purchasing defendants’ goods, believing that he was purchasing those of the plaintiffs. Scrivener v. North, 134 Fed. 366-80, .67 C. C. A. 348; Simmons Co. v. Drug Co., 93 Tenn. 84; Washboard Co. v. Saginaw Co., 103 Fed. 281; Vitascope v. Phonograph Co., 83 Fed. 30; Proctor & Gamble Co. v. Refining Co., 92 Fed. 357; Centaur Co. v. Marshall, 97 Fed. 785, 38 C. C. A. 413; Heinz v. Lutz, 146 Pa. St. 608; Pfeiffer v. Wilde, 107 Fed. 456, 102 Fed. 658; Fisher v. Blank, 138 N. Y. 452; Coates v. Thread Co., 149 U. S. 526; McDonald v. Mueller Co., 183 Fed. 972; Type Foundry Co. v. Portland Co., 186 Fed. 690; Hilker Mfg. Co. v. Map Co., 191 Fed. 613.
   RAILEY, C.

On November 19,1913, appellants filed in the circuit court of the city of St. Louis, tbeir petition in equity to restrain defendants, and each of them, from using plaintiffs’ formula and alleged trade secret in respect to the sale of Orange Julep, etc. The petition concludes with a prayer for general relief. A temporary restraining order was issued; defendants entered their appearance and filed an answer admitting the following facts: That plaintiff, Jersey Creme Company, is a corporation, duly organized under the laws of Texas; that defendants are residents of St. Louis, Missouri; that the business of plaintiffs has been the manufacture and sale of compounds and syrups, for the making of soft drinks, as alleged in petition; that defendants, Johnstone, Cox and Jones were in the employ of plaintiff Jersey Creme Company during the periods alleged in petition. The remainder of said answer contains a specific and general denial of the allegations of said petition, not admitted to be true as above stated. It concludes with a prayer for the dismissal of the case, for the assessment of damages, etc. The reply is a general denial.

The abstract of record covers 638 pages of printed matter; calls for numerous exhibits, and contains the testimony of twenty-four witnesses, thirteen of whom testified in the form of depositions, and the remainder were examined at the trial. In view of the voluminous record aforesaid, and in order to avoid repetition, we shall simply present a brief outline of the case here, and consider the evidence and main questions involved in the opinion.

We gather from the record that the Jersey Creme Company, in 1906, was a Texas corporation, doing business at Fort Worth, Texas, and engaged in manufacturing and selling a soft drink, known as “Jersey Creme,” in various cities and states of the Union. About the latter part of the year 1907, the defendant Claude Johnstone was employed by plaintiffs to work in their laboratory at Fort Worth and to manufacture Jersey Creme syrup, according to the formula which they turned over to him, at the date of said employment. Johnstone was not a graduate from any school where chemistry is taught, but claims to have received instruction through the International Correspondence School, in addition to that which he learned from his employment at different places.

On December 9,1907; C. J. Howel, secretary and manager of the Jersey Creme Company, employed Johnstone, as above indicated, and on said date they entered into a written contract of employment, which among other things provides that Johnstone “is to take charge of the manufacturing department of party of second part and is to personally supervise and attend to the manufacturing of all extracts and syrups necessary to carry on business of party of second part. Party of first part is to be held responsible for the manufacturing department and must see that every gallon of Jersey Cream shipped by company is made in accordance with formula and that every package containing syrup is filled and shipped in neat and attractive packages.

“Party of first part agrees and binds himself to never divulge any of the trade secrets or formulas turned over to him by party of second part.”

Johnstone entered into the performance of his duties under this contract and manufactured Jersey Creme Syrup until he left the service of the company in the fall of 1913. He worked for the company at Port Worth about one year after his employment; went to Chicago, where the company had a branch business of the same kind; did the same work there for two years; returned to Port Worth and continued his work there until lie resigned in September, 1913. He made the Jersey Creme, both at Port Worth and at Chicago, upder the formula of the Jersey Creme Company. He testified in regard to this matter, as follows:

‘ ‘ Did you make Jersey Creme according to the formula handed you by Mr. Howel? A. To a certain extent, yes.
“Q. Just explain your answer. A. Well, the formula was changed from time to time, and I developed and worked on the formula and made it a little bit different from what it was at the time I went to work for them.”

It appears from the testimony, that D. H. McDonald had pnt upon the market a soft drink called “Orangeade,” which was out-selling the Jersey Creme, although it could only he kept for immediate use. Howel, the manager of the Jersey Creme Company, was familiar with the McDonald Orange-ade, and was anxious to have his company manufacture and put upon the market a better soft drink, which could be sold for future as.well as present use. He took up the subject with Johnstone and concluded to perfect a new soft drink as above indicated. He bought the ingredients necessary to use in experimenting, and the tests were made by Howel and Johnstone in the laboratory of the Jersey Creme Company. Johnstone did the principal part of the work, and after repeated experiments in the laboratory, he and Howel presented to Blanchard, an officer of the company, a sample of the drink which had thus been prepared, in the laboratory and at the expense of the Jersey Creme Company. Blanchard approved the drink and originated the name ‘ ‘ Orange Julep ’ ’ therefor. Thereupon Johnstone, assisted by Howel to some extent, experimented for two or three months with the new drink in the laboratory, and with the ingredients furnished by the Jersey Creme Company, for the purpose of preparing this drink to put on the market. Johnstone testified in respect to this matter as follows:

“Mr. Elliott: State what, if anything, Mr. Howel or Mr. Blanchard or Mr. Boswell did toward perfecting the formula under which Howel’s Orange Julep was manufactured. A. I made up innumerable samples of syrup and we would put them away, set probably — some of them set a week, some a month. That was all during the fall of 1911, and at different times, and some of them would form a little scum on top; some of them would not. And during that time some of them had one kind of acid in them, and Mr. Howel and Mr. Blanchard would make suggestions about a little bit too much acid, or a little bit too much flavor, or a little bit too much color, or probably not enough, as I stated a while ago.”

The drink finally agreed upon was submitted to Blanchard, because he was supposed to have a truer and tetter taste than anyone else around the factory, and met with his approval.

Howel testified that the Jersey Creme Company spent approximately $1015 in experimenting upon the Orange Julep, and that said company, through him, bought and paid for the necessary ingredients which were used in manufacturing said Orange Julep, as it was placed upon the market.

After the formula for Orange Julep had been perfected, while Blanchard, Howel and Johnstone were present, the first suggested that it be called.“Howel’s Orange Julep.” This suggestion met with the approval of both Howel and Johnstone. Thereupon Howel applied for and received, in June, 1912, a registry certificate from the United States, entitling him to use as a trade-mark the words, “Clayton James Howel,” etc., but no certificate was applied for or issued in respect to the words ‘ ‘ Orange Julep.”

' During the season of 1912 the Jersey Creme Company spent in advertising Howel’s Orange Julep about $5,000, and sold during the first year a little over $100,000 worth of same. It was shipped to the fountain trade in one-gallon glass jugs, six in a crate, and to the bottler in twenty-five and fifty-gallon barrels.

The plaintiffs obtained label registration, with “Howel’s Orange Julep Syrup ” printed thereon, but such registration did not in any manner protect the use of the words “Orange Julep.” Small labels were given to the bottlers, and they put them on the bottles in carbonated form. The larger labels, containing the same words, were placed on the one-gallon bottles used by plaintiffs.

It appears from the evidence that about the first of January, 1912, T. E. Blanchard, W. Gr. Newby and W. C. Stribling formed a private partnership which they designated as “Southern Fruit Julep Company,” as a sales agent to market Howel’s Orange Julep. The Southern Fruit Julep Company was owned by the Jersey Creme Company and all of its bills were paid by the latter. It was brought into existence as a matter of convenience, for the purpose of advertising and selling the Howel’s Orange Julep, separate and apart from the Jersey Creme. Whatever rights Howel acquired under the registrations aforesaid were assigned to the Jersey Creme Company.

After the formula for making Howel’s Orange Julep was finally perfected, and about the first of Jannary, 1912, plaintiffs began to market said julep; sent out thousands of letters to dealers all over the country, with the above trade-mark and name, exploiting said drink soliciting business, etc. They also sent out through salesmen, for the benefit of customers, handsome glass signs and lithographs on the packages bearing their trade-mark and name. They received orders for Howel’s Orange Julep from all parts of the United States and Canada. Mr. J. B. Hogsett, director and secretary of the Jersey Creme Company, testified that Howel’s Orange Julep, since 1911, had been advertised at an annual expense of from $10,000 to $20,000. J. S. Boswell, a regular graduate in chemistry, put up and sold Howel’s Orange Julep for plaintiffs at Chicago, Illinois, during the year 1912. He estimated that from June, 1912, to June, 1913, he made and shipped out from Chicago about 50,000 gallons of Howel’s Orange Julep.

During all the time that Johnstone was in the service of plaintiffs, while engaged in manufacturing Howel’s' Orange Julep, and while experimenting and perfecting the formula for Howel’s Orange Julep, he never claimed to any of the plaintiffs, or to the officers of the Jersey Creme Company, that he was the originator of the formula for Howel’s Orange Julep, nor did he inform any of them that he claimed any interest in said formula.

About September, 1913, defendant Johnstone resigned his position, left the service of plaintiffs, and in conjunction with the other defendants attempted to obtain a charter from the State of Missouri to manufacture and sell Orange Julep in St. Louis, Missouri. The charter had not been obtained at time of trial below, but said defendants had obtained from the United States a certificate of registry for the name of “Johnstone.” The latter, and his associates as co-partners, then commenced manufacturing and selling Orange Julep in St. Louis, Missouri, under the name and style of “Orange Julep Company,” with a label containing the words “Orange Julep Syrup manufactured by the Orange Julep Company, Johnstone’s Orange Julep, trade-mark, The Original.”

Defendant Johnstone, at the instance of counsel, testified as follows:

“Mr. Elliott: I will ask you to state, Mr. Johnstone, if the orange syrup you are now manufacturing as John-stone’s Orange Julep is the same or different from the orange syrup made by you for the plaintiffs and sold as Howel’s Orange Julep? A. It is the same syrup that I made originally, and necessarily would he the same I made for the. Jersey Creme Company.” . .

J. S. Boswell, a regular graduate in chemistry, who had charge of plaintiffs’ plant at Chicago, and who was at time of trial the chemist of plaintiffs in charge of their laboratory at Fort Worth, Texas, testified as follows:

“Q. Is the Orange Julep as you. are now making it the same, in your judgment, as it was made or being made at the time Mr. Johnstone left the employ of the plaintiff companies? A. Yes, sir.
“Q. Is the Orange Julep you are now making the same, in your judgment, as the Orange Julep you were making at the time you left Chicago? A. Yes, sir.
“Q. Are you making this Howel’s Orange Julep now, in the same manner as you did when Mr. Johnstone left the employ of the plaintiff company and you took charge? A. Yes.”

It clearly appears from the evidence that some, if not all the defendants, have repeatedly sought to obtain the trade of those who bought Howel’s Orange Julep, by inducing them to believe that Johnstone was the originator of the formula which manufactured said syrup; that the plaintiffs did not have said formula and that they could no longer manufacture Howel’s Orange Julep as it was made when Johnstone was in the employ of plaintiffs and manufactured the same. It is likewise clear to our minds that plaintiffs have lost a portion of their original trade •and thfit the same has gone to defendants on account of the matters above mentioned. The defendant Johnstone still claims to be the originator of the formula which manufactured Howel’s Orange Julep, as well as the sole possessor of same, and by advertising accordingly in continuously making inroads on the trade of plaintiffs, in selling the Orange Julep claimed to have been manufactured by them under said formula.

Such other facts disclosed by the record as may be necessary will be considered in the opinion.

On February 3, 1914, the trial, court found the issues in favor of defendants, dismissed plaintiffs’ bill, and entered its judgment accordingly. Plaintiffs filed their motion for a new trial which was overruled and the cause duly appealed by them to this court.

We have carefully read and fully considered the voluminous record and briefs on file in the ease. In view of the conclusion which we have reached, in respect to the facts, it will not be neecssary to consider all the questions raised and discussed by the respective counsel. We have a very high regard for the legal ability of the judge who tried this case, but as we are required to pass upon the weight of the evidence, and as fully half of the witnesses testified by deposition, we see no good reason for deferring to the conclusions of the trial court in disposing of the case as a whole.

I. Is the contention of defendants, that Johnstone originated the formula under which he manufactured Howel’s Orange Julep while in the service of the Jersey Creme Company, sustained by the record? Johnstone testified that he originated the formula used in manufacturing Howel’s Orange Julep, before he went into the service of the Jersey Creme Company; that he made an orange syrup for the soda fountains of the two stores of ’Yeager Drug Company of Mineral Wells, Texas, and for the Kendall-Clark Drug Company at Fort Worth; that the syrup at both places was made from the fruit; that the former did not sell the syrup, but served it at the fountain; that the Kendall-Clark Drug Company sold concentrated orange syrup.

Even if Johnstone’s evidence be true, that he did sell syrup under the above circumstances, it would be wholly insufficient to show that he used the same formula as that used after months of experiment with Howel’s Orange Julep, in malting a finished product, which did not require immediate use. Johnstone, however is flatly contradicted by K. D. Holland, who was president and general manager of the Kendall-Clark Drug Company, and who employed him as an order clerk. Holland testified that he originated the formula used by the above firm for making orange syrup; that said firm never put up any orange syrup that was made by Johnstone; that Johnstone never manufactured in their laboratory any orange syrup that was put up by the company; that Johnstone never originated any formula for mailing orange syrup while he was with said firm; that the formula which was used belonged to said company.

Theodore Mack, an attorney of twenty years standing at Fort Worth, testified that he was introduced to John-stone on May 29, 1913, at Fort Worth, while the latter was in plaintiffs’ laboratory where the Orange Julep and Jersey Creme were compounded. He testified that John-stone told him that he did not prepare the formula for the Orange Julep but had improved it some; that the formula belonged to the company.

Johnstone’s contract of employment with the Jersey Creme Company required him to take charge of the manufacturing department and “to personally supervise and attend to the manufacturing of all extracts and syrups necessary to carry on business of party of second part.”

He knew that the Jersey Creme Company was the owner of all the Howel Orange Julep manufactured by him, and that he was paid by said company for his services. It was just as much a part of his duty under said contract to manufacture the Orange Julep, as it was the Jersey Creme. He makes no claim to the formula of the latter, although he said he changed and improved the same after his employment. He made no claim to the officers of said company, while experimenting and manufacturing Orange Syrup, that he had or owned any formula for making same. On the contrary, he agreed with Howel and Blanchard that it should be called “Howel’s Orange Julep.” He knew that Howel had applied for _and received the trade-mark heretofore mentioned, and that goods to the amount of $100,000 had been manufactured by him and shipped to various points in the United States and Canada, as “Howel’s Orange Julep.” He knew that the company for which he was working was annually expending from $10,000 to $20,000 advertising Howel’s Orange Julep. He knew that the Jersey Creme Company was not only paying his wages, but likewise all the expenses for manufacturing and marketing Howel’s Orange Julep. In other words, he stood silently by, while his company was spending thousands of dollars in advertising, making and selling Howel’s Orange Julep on the theory that it was the undisputed owner of the formula under which said goods were made without making the slightest protest, or even suggesting, that he had any interest in said formula.

When Johnstone resigned in September, 1913, he told Luckett he would fix them up with the formula for all the syrups they had been making, so they could go ahead and manufacture same. He testified that he intended to give plaintiffs all the information in his power. He still made no claim to any interest in either of said formulae. After his resignation, however, he then talked with Luckett, and demanded $1,000 for the formulae. He had claimed to Mack and others that he had improved the orange formula; and also claimed that the plaintiffs did not have the true formula under which he had manufactured the Howel’s Orange Julep. The plaintiffs were willing to pay him a consideration for the formulae as improved, if John-stone would write them out in his own handwriting. He declined to do so, but kept the unsigned agreement which plaintiffs offered to sign; used the same to back'up his contention, that they recognized him as the owner of Howel’s Orange Julep formula, and is still asserting that claim in this court. He admits that he deceived Howel— when the latter called upon him for a copy of the Orange Julep formula to turn over to his successors — by giving him false information as to the Orange Julep formula. Johnstone said that Howel, after selling his stock, told him they would have to get up some formulae to turn over to his successors, as they wanted them. He then testified as to what occurred as follows:

“I tbld him a few things that I wanted him to know, and purposely misled him and did not give him ally formulae or any of the secret processes that I had used in making Orange Julep.”

He not only deceived Howel, but did not furnish the plaintiffs any formulae. Even if he was afraid Howel might use them in his business, this was no excuse for failing^to deliver the same to plaintiffs.

Without pursuing this subject further, we are satisfied from the record before us that Johnstone never originated the formula for making Howel’s Orange Julep, before he entered the service of the Jersey Creme Company; that the formula finally agreed upon for said syrup as a finished product — which could be stored and sold in the future — was produced by the joint collaboration of John-stone, Howel 'and Blanchard, while all three were working for the Jersey Creme Company, and being paid by the latter for such service; that all the ingredients which entered into the manufacture of Howel’s Orange Julep were paid for by the Jersey Creme Company; that all the expenses for making and selling said Julep were paid by said company. In short we are satisfied from the. evidence that when Johnstone retired from the service of plaintiffs in September, 1913, he had no interest whatever in the formula for making Howel’s Orange Julep, as it existed before he resigned, and that said formula is the sole property of the plaintiffs. The conclusion thus reached is abundantly supported by the following authorities: Gill v. United States, 160 U. S. 426, and cases cited; Westervelt v. National Paper & Supply Co., 154 Ind. l. c. 678-9, and numerous cases cited; O. & W. Thum Co. v. Tloczynski, 114 Mich. 149; Silver Spring B. & O. Co. v. Woolworth, 16 R. I. l. c. 732; Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. St. 76; Vulcan Detinning Co. v. Am. Can Co., 12 L. R. A. (N. S.) 102; Peabody v. Norfolk, 98 Mass. 452; Tabor v. Hoffman, 118 N. Y. 30; Salomon v. Hertz, 40 N. J. Eq. 400; Eastman Kodak Co. v. Reichenbach, 79 Hun (N. Y.), 183; Story’s Eq. Jur., sec. 952; High On Injunctions (2d Ed.), secs. 19, 1108; Beach on Injunctions, secs. 35, 924-5.

The defendant Johnstone claims to have in his possession the formula under which Howel’s Orange Julep was manufactured hy him, when in the service of the plaintiffs. He and his associates are using this formula to maimfacture and sell the Orange Julep marketed hy the defendant Orange Julep Company, in violation of plaintiffs ’ rights, and are illegally attempting to induce the patrons of the latter to believe that the formula for making Howel’s Orange Julep was originated ■ by said Johnstone, and that he alone can manufacture Orange Syrup in accordance with said formula. It appears from the evidence that the acts of said defendant are injuring plaintiffs in their business. ' Under the authorities heretofore cited the plaintiffs are entitled to equitable relief against such wrongs, and injunction is the appropriate remedy to right the same.

We therefore reverse and remand the cause with directions to the trial court to set aside its judgment and all its proceedings thereunder; to enter a decree in favor of plaintiffs, enjoining said defendants and all others claiming under them, from manufacturing or selling any Orange Julep made under the Howel’s Orange Julep formula aforesaid; and also requiring that said Johnstone, shall make out and deliver to the president or secretary of said Jersey Creme Company a true statement in writing, containing an accurate copy of the Howel’s Orange Julep formula aforesaid, within a reasonable time; and that the defendants and each of them, shall refrain from making or marketing Orange Julep of any kind or under any formula, until said requirement is complied with by said John-stone.

Brown. G., concurs.

PER CURIAM:

The foregoing opinion of Railey, C., in Division One, is adopted by the Court in Banc as the opinion of said court.

Graves, G. J., and Walker, Bar-is and Woodson, JJ., concur; Bond, Blair and Williams, JJ., dissent.