source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE ex inf. SEEBERT G. JONES, Circuit Attorney, Appellant, v. WEST END LIGHT & POWER COMPANY.
    In Banc,
    December 21, 1912.
    1. PLEADING: Departure: Not Raised Below: Waiver.’ Where no question of a departure was raised in the trial court, respondent will not he heard to contend on appeal that the facts pleaded in the reply are inconsistent with the theory and facts pleaded in the information and therefore constitute a departure from the cause of action respondent was called upon to answer, Unless the reply was challenged on that ground in the trial court, the issues, on appeal, will he treated as properly joined.
    2. —-: -: Quo Warranto. The State may charge the usurpation of a franchise in the information, and in the reply ayer a forfeiture, without the reply being open to attack as being a departure.
    3. QUO WARRANTO: Franchise: Nonuser: Forfeiture, When the consent of a city is required as a condition precedent to the right to use the streets in the exercise of a franchise for a public purpose, the city, in granting such consent and franchise, acts as an agent of the State, and in case of an alleged forfeiture or usurpation of such franchise' the State may proceed by quo warranto to determine the warrant of authority in the party claiming and exercising such right. Long continued nonuser of such a franchise will work a forfeiture thereof to the State and constitutes a sufficient ground for a judgment of ouster; and a nonuser of a franchise to erect along the streets and alleys, wires conveying electricity for the purpose of furnishing light to the public, for twenty years from the time the franchise was granted, is such nonuser as works a forfeiture.
    4. -: -: -: -: Waiver: By Administrative Officers. A waiver of the forfeiture of a franchise, already complete because of nonuser, may arise from the action of the municipal legislature clothed with authority to grant the franchise. The power of waiver of forfeiture resides wholly in the municipal assembly, which in St. Louis consists of two houses; and the approval by one house and the mayor of a bond exacted by the franchise ordinance, who were authorized to approve a bond, is not such legislative waiver. The administrative officers of the city are without authority to confer upon any person or company a right to use the streets for furnishing light to the public, and hence they are without authority, singly or collectively, to waive a forfeiture of such a franchise, either as to the city or the State.
    5. -: -: -: -: Estoppel: By Acts of Administrative Officers. The State is not estopped to assert a forfeiture of a public lighting franchise by the official acts of the administrative officers of the city. The State has conferred upon the legislative body of the city alone authority to grant suoh a franchise, and has not conferred such authority upon its administrative officers; and what they cannot do directly they cannot do indirectly, and hence the State is not estopped by any of their official acts from asserting a forfeiture.
    6. ——: -: -: -: By Amendment of Franchise Ordinance. Where the general ordinance granting the right to place wires conveying electricity along the streets for furnishing light to the public, enacted in 1884, provided that “the city reserves the right to alter, amend or repeal this ordinance at any time,” and there was no attempt by respondent to exercise that franchise until long after 1892, an ordinance enacted in 1892 which provided that, except as to persons or companies who had previously to its enactment “accepted and complied with” the previous ordinance, the right to use the streets for any such purpose could be thereafter obtained only by express authority of the municipal assembly, took away from defendant any warrant of authority to exercise the franchise claimed under the ordinance of 1884.'
    7.-: -: -: -: - — ■: Reservation in Franchise Ordinance. The effect of the reservation in the franchise ordinance of 1884, namely, that “the city reserves the right to alter, amend or repeal this ordinance at any time,” was to make it a part of the contract between the city, and the respondent claiming a franchise under that ordinance, and left the city free to repeal or to amend the terms of its contract or to withdraw it altogether at its pleasure, where respondent had done nothing towards exercising the franchise prior to the date of the amendment or repeal.
    8. -: -: -: -: -: -: Compliance Essence of Franchise: Acceptance. The rendition of the service contemplated by a franchise ordinance is a necessary element of a franchise. It is granted upon an implied agreement that it will be used, and the rendering of service to the public is of the essence of the contract. If no public service is rendered, the franchise can he forfeited. And the mere written acceptance of the ordinance and the filing of a bond for a few years are not alone the rendition of the public service which such a franchise contemplates.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    REVERSED AND REMANDED {with directions).

      Elliott W. Major, Attorney-G-eneral, Seebert G. Jones and Forrest G. Ferriss, for appellant; Lon 0. Hooker and B. Schnurmacher of counsel.
    (1) Even assuming a franchise was acquired and that the franchise was assignable, the West End Light & Power Company acquired nothing by the assignment, since.Browning, King & Co. had failed to “accept and comply with ordinance 12723,” and were therefore not within the exception created by ordinance 16894. Pearsall v. Railroad, 161 U. S. 659; Grand Lodge v. New Orleans, 166 U. S. 146; Railroad v. Railroad, 166 U. S. 567. (2) Under any aspect of the case the franchise, if any there was, has been lost by long nonuser amounting to abandonment, and should be declared forfeited. State ex rel. v. Railroad, 140 Mo. 539; Morawetz on Priv. Corp., Sec. 1018; State ex inf. v. Jockey Club, 200 Mo. 34; Kava-naugh v. St. Louis, 220 Mo. 496; State ex inf. v. Loan & Inv. Co., 142 Mo. 341; 2 Spelling on Extraordinary Relief, Sec. 1814; Given v. Wright, 117 U. S. 658; 'Henderson v. Passenger Co., 21 Fed. 358; Trust Co. v. Cincinnati, 76 Fed. 296; People v. Railroad, 126 N. Y. 29; Railroad v. Oswego, 92 N. Y. App. 551; Bridge Co. v. East Hartford, 16 Conn. 149; People v. Railroad,' 117 Cal. 604; State v. Railroad, 40 Ohio St. 504; Railroad v. E. St. L'onis, 182 Ill. 433; 3 Blackstone Comm., 362; 3 Cruise Dig., 267; 2 Cook Corp., Sec. 634; 27 Am. & Eng. Ency. Law, 55; Terrett v. Taylor, 9 Cranch. 43; Note to 8 Am. St. Rep. 179; McCntcheon v. Capsule Co., 71 Fed. 787; State v. Water Co., 98 Me. 214.

      Lyon & Swarts and W. M. Williams ,for respondent.
    (1) The informant cannot in quo warranto, any more than in other forms of action, set up in the reply facts inconsistent with the theory and facts pleaded in the information. Where specific grounds for ouster are pleaded in the information, other and inconsistent matters cannot he relied upon in the reply. State ex rel. v. Weatherby, 45 Mo. 1; Chitty v, Railroad, 148 Mo. 74; 32 Ency. Law and Proc., 1452d; State ex rel. v. Talbot, 123 Mo. 69; 2 Spelling on Extraordinary Relief, Secs. 1850, 1851, 1860; 17 Cyc. 457. (2) The city being competent to make the grant, and Browning, King & Co. being competent to accept it, the acceptance of the grant, and the giving of the bond by Browning, King & Co, constituted a contract which is protected by the Federal Constitution, as well as by the Constitution of this State. Bank v. Arkansas City, 76 Fed. 271; State ex rel. v. Cas Light Co., 102 Mo. 487; State ex rel. v. St. Louis, 145 Mo. 551; Cable Co. v. Baltimore, 66 Fed. 140; State ex rel. v. Railroad, 85 Mo. 263; Railroad v. Springfield, 85 Mo. 674; Knight v. Railroad, 70 Mo. 231; St. Louis v. Railroad, 85 Mo. 151; Railroad v. Railroad, Í05 Mo. 577; State ex rel. v. Milling Co., 156 tío., 620; Hovelman v. Railroad, 79 Mo. 632; Cas Light Co. v. Louisiana Gas Co., 115 U. S. 660; State ex rel. v. Railroad, 116 "Wis. 142; Wright v. Light Co., 69 N. W. 793; Light Co. v. Monett, 186 Fed. 360; Electric Co. y. Little Falls, 102 Fed. 664; Wilcox v. Gas Co., 212 U. S. 219. (3) The parties in 1884 having made a contract, vested property rights were thereby conferred, and the franchise being property, was assignable. Kavanaugh v. St. Lonis, 220 Mo. 511; State ex rel. v. Railroad, 140 Mo. 548;' Hovelman v. Railroad, 79 Mo. 643; State ex rel. v. St. Lonis, 161 Mo. 383; Lawrence v. Hennessy, 169 Mo. 67; Mayor v. Africa, 77 Fed. 507; Trust Co. v. Cincinnati, 76 Fed. 99; Louisville v. Tel. Co., 224 U. S'. 661; Railroad v. Delamore, 114 U. S. 508; Railroad v. Commissioners, 112 IT. S. 619; Electric Power Co. v. Tacoma, 17 Wash. 661; Carter v. Menle, 122 Cal. 367; State ex rel. v. Railroad, 85 Mo. 263. (4) Browning, King & Co. accepted and complied with ordinance 12723. Ordinance 16894, amending ordinance 12723, in 1892, did not take away or attempt to take away any rights of Browning, King & Co. It recognized that certain persons, associations and corporations prior to that time had availed themselves of its provisions, and had secured rights thereunder, and provided that.from and after that date no one else could obtain such rights except by ordinance. If the 1892 ordinance be construed to mean that the rights granted under the 1884 ordinance were taken away because of the nonuser by the grantees of such rights, then the 1892 ordinance is void, because: (a) It deprived Browning, King & Co. of property without due process of law in violation of the Constitution of the United States and of the State of Missouri, (b) The State has reserved to itself, under Sec. 2631, R. S. 1909, the exclusive right and power to declare a forfeiture of franchises by proceeding directly for that purpose. A forfeiture o'f a franchise cannot be enforced or brought about collaterally or incidentally, or in any otlier manner than by a direct proceeding by the State of Missouri. Therefore, the city conld not, by ordinance, forfeit the franchise. Kavanaugh v. St. Louis, 220 Mo. 517; State ex rel. v. Jockey Club, 200 Mo. 66; State ex rel. v. Railroad, 140 Mo. 546; Electric Power Co. v. Tacoma, 17 Wash. 670; G-as Light Co. v. Consumers Co., 40 N. J. Eq. 431; Railroad v. Commissioners, 39 N. J. L. 35; Light Co. v. Milwaukee, 36 L. R. A. 46; Indianapolis v. G-as Trust Co., 27 L. R. A. 514; Turnpike Road v. State, 19 Md. 291; Utah v. Railroad, 110 Fed. 890; Railroad v. McGee, 115 U. S. 473; Lewis v. Newton, 75 Fed. 897. (5) Abandonment of a property right can never be inferred from evidence of nonuser alone. 1 Cyc. 4, 5; State ex rel. V. Railroad, 140 Mo. 349; Investment Co. v. Railroad, 108 Mo. 62; Curran v. Louisville, 83 Ky. 628; Dyer v. Stanford, 9 Mete. 395; Iiayford v. Spokesfield, 100 Mass. 491; Barlow v. Railroad, 29 Iowa, 276. (6) The right of the State to prosecute for a forfeiture of franchise ceases with the cause on which the information is based. High on Extraordinary Remedies, Sec. 667; People v. Bank, 6 Cow. 196; People v. Bank, 6 Cow. 217; Dern v. Railroad, 19 Utah, 46. (7) The city, with respect to a contract within its express powers, acting in its private as distinguished from its governmental capacity, may waive a breach”of the contract, and be es-topped by its conduct as to the contract, to the same extent as individuals or private corporations. Knight v. Kansas City, 70 Mo. 237; Railroad v. Marion County, 36 Mo. 306; Subway Co. v. St. Louis, 169 Mo. 331; Depot Co. v. St. Louis, 76 Mo. 396; Hook v. Bow-den, 144 Mo. App. 331; Dillon on Municipal Corp., Sec. 237; Herman on Estoppel, Sec. 1222; High on Extraordinary Remedies, Sec. 621; Louisville v. Tel. Co., 224 U. S. 662; United States v. Wagon Road Co., 54 Fed. 881; Safety Insulated W. C. Co. v. Mayor, 66 Fed. 44; Railroad v. Triadelphia, 46 L. R. A. (N. S.) 337; State ex rel. v. Water Power Co., 32 L. E. A. 391; People v. Halliday, 29 Pac. 54-; Carter v. Menli, 122 Cal. 367; Dern v. Eailroad, 19 Utah, 46; State v Turnpike Co., 15 N. H. 165; G-regston v. Chicago, 145 Ill. 451. (8) The court, in considering the question of forfeiture, will exercise a wise judicial discretion, having in mind the effect of a decree of forfeiture on the grantee of the franchise, and the injury, if any, to public interests. A forfeiture has never yet been declared when its only result will be damage, both to the one exercising the franchise and to the public. State ex inf. v. Taylor, 208 Mo. 454; State ex rel. v. Weatherby, 45 Mo. 21; State ex rel. v. Mansfield, 99 Mo. App. 152; State ex inf. v. Eailroad, 151 Mo. 179; Walker v. United States, 139 Fed. 412; State v. Morris, 73 Tex. 435; People v. Eailroad, 50 N. E. 158; State ex inf, v. Club, 200 Mo. 68.
   KENNISH, J.

This is an appeal from the judgment of the circuit court of the city of St. Louis, in favor of respondent, in a proceeding by information in the nature of quo warranto. The information was filed in said court at the June term, 1909, by the circuit attorney of said city, against the respondent corporation, the West End Light & Power Company. The purpose of the suit was to oust the respondent from exercising the franchise of using the streets of said city for the erection of poles and stringing of wires thereon, to be used in conducting the business of supplying electricity to the public for lighting and other purposes. An amended information was after-wards filed, to which the respondent in due time filed an answer and return. Thereupon plaintiff filed a reply and the respondent filed a supplemental answer and return, and upon the issues thus framed, a trial was had and judgment entered as above. Plaintiff appealed to this court.

The pleadings covered forty-seven pages of the printed record and are of too great length to be set ont in this statement. In the view we take of the case, the material facts, as gathered from the pleadings are, briefly, as follows:

The information charges the respondent with claiming and exercising the franchise of nsing the streets and public places of the city of St. Lonis for the erection of poles and the stringing of wires thereon, for the purpose of supplying the public with electricity, without first having obtained authority by ordinance from the city so to do, and prays the court to cause the defendant to answer and state by what warrant of authority it claims to have, use and enjoy such franchise; that a judgment of ouster be rende'red against respondent, ousting it from the exercise of such franchise.

In its return to the information the respondent alleges that the city of St. Louis, on the 15th day of March, 1884, being-authorized by its charter, duly enacted ordinance No. 12723. That ordinance, which is filed as an exhibit and made a part of the return, is in part as follows:

An ordinance regulating tlie placing of wires, tubes or cables conveying electricity for tbe production 'of light or power along tbe streets, alleys and public places of tbe city of St. Louis. . . .
Section 1. That no wires, tubes or cables conveying electricity for tbe production of light or power shall be placed along or across any of tbe streets, alleys or public places in tbe city of St. Louis, except as hereinafter provided.
Section 2. That all such wires, tubes or cables, along or across any of tbe streets, alleys or public places of tbe city of St. Louis,- shall be placed at such distances above or below tbe surface of tbe ground and secured in such manner as shall be prescribed by tbe Board of Public Improvements.
Section 3. That any person or persons, corporation or association desiring to place along or across any of tbe streets, alleys or public places of tbe city of St. Louis such wires, tubes or cables, shall file in tbe office of tbe Board of Public Improvements an application therefor, stating in detail tbe streets, alleys or public places which said wires, tubes or cables are to occupy, and the manner in which said wires, tubes or cables are to he secured or supported and insulated, together with a plat showing the route of such wires, tubes or cables.
Section 4. The Board of Public Improvements is hereby authorized, upon the filing of the application and plat required by the next preceding section, to grant a permit for such occupancy of the streets, alleys and public places therein named, with such restrictions, regulations and qualifications as may be prescribed by said board. . . .
Section 10. No person or persons, corporation or association, shall be entitled to any of the privileges conferred by this article, except upon the following conditions: That said person or persons, corporation or association, before availing himself or itself of any of the rights or privileges granted by this article, shall file with the City Register his or its acceptance of all the terms of this article, and agree therein that he or it will file with the Comptroller of the City, on the first days of January and July of each year, a statement of his or its gross receipts from his or its business arising from' supplying electricity for light or power for the six months next preceding such statement, which shall be sworn to by such person or persons, or the president or secretary of such corporation or association; and further agree that he or it will, at the time of filing the statement with the Comptroller, pay into the City Treasury two and one-half per cent on the amount of such gross receipts up to the year 1890, and five per cent on the amount of such gross receipts thereafter. And said person or persons, corporation or association shall at the time of filing said acceptance, also file with the City Register his or its penal bond in the sum of $20,000 with two or more good and sufficient, securities, to be approved by the Mayor and Council, conditioned that he or it will comply with all the conditions of this ordinance, or any ordinance which may be hereafter passed regulating the placing of wires, tubes or cables in the streets and alleys for the purposes named therein; that he or it will comply with all the regulations made by the Board of Public Improvements having reference to the subject embraced in this or any other ordinance for the purposes herein named; that he or it will make the statements and payments required by the provisions of this section, and will save the City of St. Louis harmless and indemnified from all loss, cost or damage by reason of the exercise of any of the privileges granted by this ordinance or any other ordinance which may be hereafter passed relating to the subject-matter of this ordinance. . . .
Section 13. The city reserves the right to alter, amend or repeal this ordinance at any time.

It is further alleged that on the 14th day of February, 1885, while the said ordinance was in fnll force and effect, Browning, King & Company, a partnership, dnly accepted the provisions of said ordinance and filed a bond as therein required, which bond was approved by the mayor and council of said city, and that by such compliance with all the requirements of said ordinance, a contract was made between the city and said partnership, whereby Browning, King & Company became the grantee of a franchise from said city, to erect poles and place wires thereon along the streets and public places of said city, to convey electricity for public use. That on the fifth day of June, 1908, while the provisions of. the said ordinance were existing and in full force and so recognized by the city, Browning, King & Company caused the respondent corporation to he created and organized under the laws of this State,'“with full power to engage in the manufacture, purchase and sale of electric light and power, and, with the full consent of said city, caused the franchise and rights acquired and held by the said Browning, King & Company to be transferred and assigned to said respondent on the 5th day of June, 1908.” That thereafter respondent made application to the board of public improvements of said city for a perinit to erect poles and string wires along certain streets therein described, which permit was duly granted; and also filed a bond, as required by said ordinance, which was duly approved by the may- or and council of said city. That respondent paid the city various sums, and has expended thousands of dollars in and about the work of preparing to exercise said franchise. That its said franchise has been assessed by the city for taxes for the year 1909 at the sum of five hundred thousand dollars, and that the city, through its regularly constituted officers, has recognized the right of respondent to exercise the said franchise as aforesaid. The prayer of the return is that, having shown full power and authority to proceed in accordance with the law and the ordinances of said city in the exercise of said franchise, respondent’s said powers and acts be fully confirmed and vindicated by the judgment of the court, and for general relief.

The reply of the circuit attorney denied the right of the respondent to exercise the franchise claimed, upon the grounds: (1) that ordinance 12723 was void; (2) that if said ordinance be valid, then that Browning, King & Company acquired no rights thereunder; (3) that if said ordinance be valid and Browning, King & Company did acquire a franchise thereunder, the same was forfeited for nonuser and for failure to comply with the terms and conditions thereof; (4) that said ordinance 12723, in the year 1892, was amended by ordinance No. 16894, by the municipal assembly of said city, by the enactment of the following in lieu of section 1, so that as amended section 1 thereof was as follows:

“That no wires, tubes or cables conveying electricity for the production of light, heat or power shall hereafter be placed along or across any of the streets, alleys or public places of the city of St. Louis by any person, corporation or association, not having previous to the passage of this ordinance accepted and complied with ordinance No. 12723, now amended, or shall be duly authorized by the municipal assembly and then only as hereinafter provided.”

That the effect of said amendment was to destroy any pretended privileges or franchises claimed to have been acquired by Browning, King & Company, under ordinance No. 12723; (5) that respondent has not acquired from Browning, King & Company the privileges and franchises possessed by that partnership, if any were so possessed.

The prayer of the reply is that judgment of ouster be rendered against respondent from exercising the privileges and franchises sought to be obtained and exercised as aforesaid, and for general relief.

Respondent’s supplemental answer and return is substantially a denial of all new matter set out in the reply.

There was little conflict in the testimony introduced, and therefore we shall not set it out, but shall refer to it in connection with the legal questions dis-' cussed.

I. A question of pleading, preliminary to an inquiry into the merits of the controversy, is raised by the respondent. It is contended that the facts pleaded in the reply are inconsistent with the theory and facts pleaded in the information and therefore constitute a departure from the cause of action which respondent was called upon to answer.

Respondent' did not challenge the reply in the trial court upon the ground now complained of, and the rule is that where the question of departure is not raised below, the court will treat the-issues as properly joined. [17 Ency. Pl. & Pr., 447; Rolling Stock Co. v. People, 147 Ill. 246.] The case was tried upon the issues made by the pleadings. No question of departure was raised in the lower court, and it is a settled principle of appellate procedure that a party on appeal to the Supreme Court must stand or fall by the theory upon which he submitted his case to the trial court and cannot raise issues not raised in the court below, [Walker v. Owen, 79 Mo. 563.] Besides, there is good authority for the view that the State may charge usurpation of a franchise in the information and in the reply aver a forfeiture, without the reply being open to attack upon the ground of departure. [17 Ency. Pl. and Pr. 474, and footnotes; 32 Cyc. 1456.]

II. After a full examination of the pleadings, the testimony and the law applicable to the questions pre-seated, we have reached the conclusion that the respondent is not entitled to the franchise claimed and that the State is entitled to a judgment of ouster, as prayed.

Assuming that the firm of Browning, King & Company, by complying with the terms of ordinance 12723, was lawfully possessed of the franchise in controversy, and that by assignment all of the rights of that firm were transferred to and became vested in respondent, the fact remains, as shown by the testimony, that there was a nonuser of said franchise for a period of more than twenty years, being from the time it was acquired until the year 1908.

It'is well recognized law that when the consent of the municipality is required as a condition precedent to the right to use the streets of á city in the exercise of a franchise'for a public purpose, the municipality in granting such consent and franchise is acting as an agency of the State, and in case of an alleged forfeiture or usurpation of such franchise the State may proceed by quo warranto to determine the warrant of authority in the party claiming and exercising such right. [State ex rel. v. Railway Company, 140 Mo. 539; Kavanaugh v. St. Louis, 220 Mo. l. c. 517.] It is equally well settled law that long continued nonuser of such a franchise will work a forfeiture thereof to the State and constitute a sufficient ground for a judgment of ouster. [State ex rel. v. Railway Company, supra; Kavanaugh v. St. Louis, supra; State ex inf. v. Delmar Jockey Club, 200 Mo. 34; State ex inf. v. Equitable Loan & Investment Co., 142 Mo. 325; Purdy’s Beach on Private Corporations, Sec. 1294; Morawetz on Private Corporations, Sees. 1014 and 1018.]

Under the facts of this case and the foregoing authorities, the State was clearly entitled to a judgment of ouster of the franchise in question upon the ground of nonuser, in the year 1908 and until Browning, King & Company executed the alleged assignment thereof to respondent. Thus far there is no difficulty in determining the rights of the parties.

The difficult questions in the.case arise byreason of the official acts of certain officers of the city of St. Louis with reference to the said franchise, after the alleged transfer thereof to respondent, and also by reason of the acts of respondent in incurring expense, relying upon the assumption that the existence of its franchise had received official recognition from the city and was still in force, from all of which it is insisted by respondent that there was a waiver of the forfeiture for nonuser and also an estoppel against the city and the State to enforce such forfeiture.

The official acts .relied upon as constituting a waiver and estoppel are: (1) the action of the board of public improvements in approving the alleged assignment of the franchise and granting permits to respondent to erect poles and string wires upon certain streets; (2) the action of the mayor and the council in approving the bond filed by respondent; (3) the assessment of respondent’s franchise by the city assessor; and (4) an opinion by the city counselor to the effect that respondent was possessed of a valid franchise, entitling it to the use of the streets of the city as claimed.

Upon the foregoing contention, this question is presented: Was it within the power of the foremen-tioned officers of the city to waive the right of the State to a judgment of ouster of the franchise granted to Browning, King & Company and transferred to respondent? In considering this question it must be borne in mind that Sec. 3367, R. S. 1909, under the provisions of which respondent was created and its charter powers prescribed, authorizes the corporation to use the streets and public places of the city for the purpose of carrying on its business only “with the consent of the municipal authorities thereof and under such, reasonable regulations as said cities may prescribe.” And by Sec. 26, Art. 3 of the charter of tbe city, tbe mayor and municipal assembly are given power “by ordinance not inconsistent with any law of this State or of this charter,” among other enumerated powers, “to provide for grading, lighting, cleaning and improving” the streets. The statute and the charter provision cited are the measure of the power of the city in the premises and therefore the consent or franchise of the city can be granted only by an ordinance duly enacted by the legislative body.

After a franchise has been granted by the city and a ground of forfeiture has arisen, the authorities are not in harmony as to the power of the city to waive a judicial forfeiture of such franchise by the State. The case of State ex rel. v. Railway Co., 140 Mo. l. c. 558, is cited in support of the view that there is an entire absence of such power or authority in the city. This court there said: “Moreover, the city had no power or authority by ordinance or otherwise to take away from its sovereign the right to proceed by its public officer, the prosecuting attorney of the county, against the defendant by quo warranto for ouster of its franchises upon the ground of their forfeiture.”

On the other hand, it is contended, and such contention is not without support, that the city may, through the official acts of its administrative officers, waive such forfeiture. We do not agree with either of the foregoing views. What was said by this court in State ex rel. v. Railway Co., supra, was with reference to a provision in the franchise construed, to the effect that in case of a forfeiture, unless an action should be commenced by the city within six months thereafter to enforce such forfeiture, the city should be deemed to have waived it. That provision of the contract was interposed as a defense against a proceeding in quo warranto by the State, and it was in discussing the right of the city to prescribe the terms upon which a forfeiture should be waived and thus bind the State, that the language quoted was used. In what was there said we do not think the court intended to announce the doctrine that if a ground of forfeiture existed and the same should be amicably adjusted between the holder of the franchise and the legislative body of the city — the body which was clothed with power to grant the franchise in the first instance and which could grant it again even after an adjudication of forfeiture by the State — the forfeiture would not be effectually waived as against a proceeding in quo warranto. Capital in vast amounts is commonly invested in such franchise rights, and in such cases it is of the greatest moment to the municipality and to the public, as well as to the holders of the franchise, that the service to the public be continuous and without interference or interruption. After a ground of forfeiture of the franchise had been adjusted to the satisfaction of the legislative body of the city, representing the public, and the holder of the franchise, it would indeed be unreasonable to hold that notwithstanding such adjustment, the prosecuting attorney, in the name of the State, could successfully maintain a proceeding to forfeit the franchise.

The other view, that administrative officers- of the city may waive a forfeiture, is no less unreasonable. According to that theory, a franchise subject to forfeiture by reason of nonuser for twenty years and of little or no value, through the action of administrative officers of the city, and without legislative sanction, might become within a few days and without any return to the city, as in the case in hand, of the assessed value of five hundred thousand dollars.

We think the correct rule of law is that a waiver of the forfeiture may arise, from the action of the legislative body clothed with authority to grant the franchise.

In the case of People v. Phoenix Bank, 24 N. Y. 431, it appears from the facts stated that the Attorney-General proceeded against the defendant corporation by quo warranto to forfeit the corporate privileges thereof on the ground of taking nsnry. The defendant answered pleading a waiver of the forfeiture on the ground that the Governor and Senate had appointed a director of the corporation after the date of the alleged forfeiture and that such action of the State officials amounted to a waiver. Upon that issue, the court said:

“But I must not be understood as admitting that the Governor and Senate, without the concurrence also of the Assembly, had any dispensing power. They had no more authority to waive or pardon the forfeiture than any other public officer or body of men. Indeed, the Attorney-General had more power over this matter than the Governor and Senate united; for if he refused to prosecute, the wrong charged upon defendants would go unpunished, and the corporation would continue to exist and enjoy its privileges in the same manner as though there had been no violation of the charter. Still, the neglect to prosecute would not amount to a pardon; it could' only operate as a waiver so long as the omission continued, and would be no answer to a quo warranto whenever he, or his successor in office, might choose to insist on the penalty.
“In England where corporations may be created by royal charter, the king can pardon a forfeiture, by granting restitution; but he has, I think, no such power in relation to corporations created by act of Parliament. [The King v. Amery, 2 T. R. 568; Newling v. Francis, 3 T. R. 189; The King v. Miller, 6 T. R. 277.] So here, where corporations are created by the Legislature,' that body can waive the forfeiture, by ratifying and confirming the original grant. [People v. Manhattan Company, 9 Wendell, 351.] But no other body of men has any snob dispensing power.” The general rule as to waiver is stated in 40 Cyc. 266, as follows: “ Waiver is usually a matter» of personal privilege, and must be made by the person’whose rights or remedies are to be affected, or by someone dnly authorized to act for him in the matter.”

It is apparent that while the mayor and council of the city were authorized to approve the bond required of the grantee of a franchise to use the streets; the board of public improvements to grant a permit as to the particular streets upon which 'the poles and wires should be placed; the city counselor to give an opinion as to the rights of the grantee of such franchise; and the city assessor to assess such alleged franchise, yet such officials were not clothed with any authority in the matter of consenting to the use of the streets for the purpose of the franchise. That power resided solely in the legislative body, the municipal assembly, which, under the charter of the city of St. Louis, consists of the council and the house of delegates. And as the administrative officers were without power to confer such right upon respondent to use the streets, they were without power to waive a forfeiture of such franchise, either as to the municipality or the State.

What is said above as to waiver of the franchise is also applicable to the contention that the State is estopped to assert forfeiture by reason of the official acts of the administrative' officers of the municipality. We are not here dealing with the question of estoppel as between the city and respondent. The State, through the statute and the charter of the city, had conferred upon the legislative body alone authority in the matter of consenting to the use of the streets, and clearly the doctrine of estoppel could not be successfully invoiced against the right to a forfeiture of the franchise, upon the ground of official action of municipal officers who had no authority from the State in the matter of consenting to such franchise, and such officers could not do indirectly what they could not do directly.

III. There is another ground upon which respondent is without warrant of authority to exercise the franchise claimed.

Ordinance 12723, relied upon by respondent as the source of its title, was amended in the year 1892, so that except as to persons, corporations or assoeia tions who had, “previous to the passage of this or dinance, accepted and complied with ordinance 12723,” the right to the use of the streets as claimed by respondent could be obtained thereafter only by express authority of the municipal assembly. Sec. 13 of ordinance 12723 is as follows: “The city reserves the right to alter, amend or repeal this ordinance at any time.” The effect of this reservation was that it became a part of the franchise contract between Browning, King & Company and the city, and left the city free to repeal or to amend the terms of its contract or to withdraw it altogether at its pleasure. [1 Thompson on Corporations (2 Ed.), Secs. 153, 154; Hamilton Gaslight Co. v. Hamilton City, 146 U. S. 258; Southern Bell Tel. Co. v. Richmond, 44 C. C. A. 147.]

In Thompson, supra, it is said: “Many of the statutes, both special and general, expressly reserve to the Legislature the power to amend- or repeal all grants to corporations or amendments thereof. Such reserved rights operate on all future charters, although silent on the subject of such legislative right, and become a part of the charter or contract, as much so as if expressed in the charter itself. This is upon the plain principle that the corporation, and all persons interested, must take notice of this reserved right; and ' on the' further principle that grants by the State to corporations are strictly construed in favor of the State and against the corporation.”

The same rule is laid down in the telephone case, snpra, as to similar reservations in franchise contracts of municipalities granting the right to the use of the streets.

If Browning, King & Company, in the year 1892, when the amendatory ordinance was passed, had not accepted and complied with ordinance 12723, then all of the rights theretofore granted to them were withdrawn by Sec. 1 of ordinance 16894, enacted in accordance with the power reserved in Sec. 13 of the original ordinance, and a judicial determination of the forfeiture became unnecessary.

The question remains: Had Browning, King & Company accepted and complied with ordinance 12723, at the date of the amendment in 1892, within the meaning of the said amendment? There can be no doubt that the underlying purpose of conferring upon the municipality the power to grant the franchise was the prospective service to be rendered to the public, and the benefit to the city in .the receipt of its proportional part of the earnings of the grantee, as agreed upon by the acceptance of the ordinance. The rendition of such service and the payment of the amount agreed upon was an implied condition of the grant. [State ex rel. v. Railway Co., 140 Mo. 539; State ex inf. v. Loan & Investment Co., 142 Mo. 325; State ex inf. v. Delmar Jockey Club, 200 Mo. 34; Kavanaugh v. St. Louis, 220 Mo. 496.] It was only upon the condition of the exercise of the franchise that the city was clothed with power to grant it. The privilege granted was one to be used for the public good, and not a talent to be hidden in the- earth. The mischief to be remedied by the amendment was doubtless the large number of such franchises being accepted and outstanding, without the city or the public receiving anything in return. Being possessed of full power under ordinance 12723 to withdraw all of said outstanding fran-•cMses and to require thereafter an express legislative consent, why should the city have been solicitous to except from the scope of the amendment those who had rendered no service nor incurred any expense pursuant to their acceptance of the original ordinance? In the case of State of Missouri ex rel. City of St. Louis v. Light & Development Co. of St. Louis, 246 Mo. 618, this court, in an opinion by Feeeiss, J., construing the same ordinance now under review, held that a compliance with ordinance 12723 required the rendition of service to the public under such franchise, as an implied condition of the grant, and that in -default of such service there was not a compliance therewith. We think the reasoning of the opinion in .reaching that result is sound and is well within the Tule that courts will construe the law strictly as •against the existence of the franchise and in favor of the public. From the foregoing it follows, that after the amendment of 1892, Browning, King & Company were not possessed of the franchise now claimed by respondent, and therefore nothing passed to respondent by the alleged assignment.

Our conclusion is that the judgment should be reversed and the cause remanded, with directions that •a judgment of ouster be entered in accordance with the views herein' expressed.

It is so ordered.

All concur except Woodson, J., ¿not- sitting.


author: FEBBISS, J.

text:
    THE STATE ex rel. ROSA E. DAMON and HARRY F. EWALD v. EUGENE McQUILLIN, Judge.
    In Banc,
    December 21, 1912.
    1. WILL CONTEST: Dismissal. After'a will contest is properly instituted in the circuit court by a person in interest, it cannot he dismissed without an adjudication upon the will. The fact that issues have not been joined and no objection to dismissal is made by defendants, will not justify a dismissal by plaintiff.
    2. --: By Whom Instituted: Dismissal. Only a person “interested in the probate of a will” can institute a suit in the circuit court to contest its validity; and the interest referred: to must be a financial interest in the estate, and one which would be benefited by setting the will aside. A total stranger can not institute a will contest and invoke the jurisdiction of the circuit court to vacate the judgment of the probate court. And if it appears from the face of the petition that if the will is set aside the contestant will get nothing, she is not a party in interest, although the will gives her $15,000. And if the suit is instituted by a person who has no interest, it may be dismissed by such person without an adjudication upon its. validity, for then the judgment of the probate court stands.
    3. -: -: Alleging Adopted Children. A sister of testator who in her petition contesting the will states that he had, prior to the execution of the will, lodged in the. circuit court of Kentucky a petition praying for the adoption of three children who. are named as the principal devisees and legatees, and that said court acted upon said petition and entered an order declaring said children to be adopted by him, on the face of her petition .shows that she had no such interest in the probate of the will as entitled her to institute suit to contest it, since, if the will is set aside, she could have no possible interest in the estate, unless the adoption was also set aside, and that could not be done by the circuit court of Missouri; and the court was, therefore, authorized to dismiss the will contest upon her motion.
    4. -: -: -: Limitation. Where the petition filed in the circuit court to contest, the will showed on its face that, if the will were set’ aside, the property would go entirely to certain named adopted children and that therefore the contestant, a sister of testator, could have no possible interest in the estate, and was dismissed, an amended petition filed two years thereafter, from which such allegations of adoption are omitted, is too late, and is properly stricken from the files, since at that time the Statute of Limitations had run against a new contest.
    5. -: Judgment of Dismissal:■ Sufficient. Plaintiff in the will contest, hy her attorney, filed this memorandum: “Now comes plaintiff, by her attorney, and dismisses this suit at her costs.” On the same day this order was entered upon the record: “Upon motion of plaintiff, and hy consent of defendants, it is ordered by the court that the following memorandum be entered of record: ‘On motion of plaintiff, by attorney, this cause is to he dismissed at plaintiff’s costs.’ ” Held, that, though informal, the judgment of dismissal was sufficient.
    Mandamus.
    WEIT DENIED.

      Joseph A. Wright and 8. T. G. Smith for relators.
    (1) Will contest in Missouri is a proceeding in rem and cannot be dismissed. Teckenbrock v. McLaughlin, 209 Mo. 538; Bradford v. Blossom, 207 Mo. 227; Cowan v. Shaver, 197 Mo. 212; Hogan v. Hinchey, 195 Mo. 532; Cash y. Lust, 142 Mo. 637; McMahon v. McMahon, 100 Mo. 99; Hughes v. Burriss, 85 Mo. 665; Hariis v. Hays, 53 Mo. 96; Benoist v. Murrin, 48 Mo. 52; Dickey v. Malechi, 6 Mo. 182. (2) The rule announced by the Supreme Court of Missouri is the uniform rule both in the United States and England'.. Hutson v. Sawyer, 104 N. C. 1; Collins v. Collins, 125 N. C. 98; Cardan v. O’Donnell, 141 App. Div. (N. Y.}’ 463; Sly v. Hunt, 159 Mass. 151; Farrell v. O’Brien; 199 U. S. 89; Higgins v. Eaton, 188 Fed. 938; Goodrich v. Ferris, 145 Fed-. 844; Ballantyne v. Macldnnon, 65 L. J. Q. B. 616-621; Concha v. Concha, 11 App. Cas. 541-72,11 Eng. Rui. Cas. 22. (3) The entry of March 17, 1910, is not a dismissal of the suit. 14 Cyc. 395; 6 Ency. PI. & Pr. 872; Wagon Co. v. Cornell, 131 Mo. App. 344; Wooten v. Manning, 11 Tex. 327; Boren v. Billington, 82 Tex. 137; Barnes v. Barnes, 95 Cal. 171. (4) Relators have a joint and common interest in the will contest, and therefore have properly joined in the petition for mandamus. 13 PI. & Pr. 645; 26 Cyc. 408; State ex rel. Punch v. Kortjohn, 246 Mo. 34; Independent District v. Rhodes, 88 Iowa 570; State ex rel. v. Terminal Co., 41 Pla. 377; State ex rel. v. Mount, 151 Ind. 679; Lehman v. Pettingill, 39 Col. 258; People v. Ontario County, 85 N. T. 323; Payne v. Staun-ton, 55 W. Va. 202; Thompson v. Ferris Dr. Dist., 116 Fed. 769. (5) Adoption as against the heirs by blood is an affirmative defense and should now be pleaded as a defense to be available as against the amended petition. Hockaday v. Lynn, 200 Mo. 456; Steele v. Steele, 161 Mo. 566; Clarkson v. Hatton, 143 Mo. 47; Reiners v. Koppelman, 94 Mo. 338; Morgan v. Reel, 213 Pa. St. 81; Albring v. Ward, 137 Mich. 352; Keegan v. Geraghty, 101 Ill. 26. (6) Should defendant, or any of them, set up the adoption of the minor children made beneficiaries in the alleged will, then plaintiff can plead the institution of suit in Louisville, Ky., to set aside the alleged adoption, and the circuit court of St. Louis should stay proceedings in the will contest until the direct attack upon the alleged adoptions is finally adjudicated. This would accord with the practice in similar cases from other jurisdictions. Rogers’ Estate, 154 Pa. St. 217; Taylor v. Commonwealth, 13 Weekly Notes' of Cases (Pa.), 378; Pattee'v. Stetson, 170 Mass. 93; McCutchen v. Loggins, 109 Ala. 457; Kostelecky v. Scherhart, 99 Iowa, 120. (7) Mandamus is the proper remedy where plaintiff’s petition has been stricken from the files. State ex rel. v. Grimm, 220 Mo. 489; State ex rel. v. Neville, 157 Mo. 394; State ex rel. v. O’Bryan, 102 Mo. 254. (8) A decree of adoption of a foreign State may be assailed collaterally or directly, or both ways. The original petition contesting the will made a direct and positive attack upon the will itself, and also a well-grounded and valid attack on the decrees of the Kentucky court, and is properly cognizable in the circuit court of the city of St. Louis. The following grounds are assigned for this motion: First. That the opinion is in direct conflict with the decisions of the Supreme Court of the United States, in that it gives greater weight and credit to the decrees of the Kentucky courts than the United States Supreme Court has ever required or approved. Thompson v. Whitman, 18 Wall. 457; Cole v. Cunningham, 133 U. S. 112; Grover & Baker Co. v. Radcliffe, 137 U. S. 295; Simmons v. Saul, 138 U. S. 448; Thor-mann v. Frame, 176 U. S. 356; Andrews v. Andrews, 188 U. S. 14; Bank v. Wiley, 195 U. S. 269; Haddock v. Haddock, 201 U. S. 562; Tilt v. Kelsey, 207 U. S. 43; Brown v. Fletcher’s Estate, 210 U. S. 82. Second. The opinion is in conflict with the uniform decisions on conflict of laws, in that (a) domicile and residence of adopting father in the state of adoption is absolutely necessary to give any validity whatever to the adoption; (b) the original petition alleged Louis P. Ewald to be a resident of Missouri, and never having been a resident of Kentucky, therefore the alleged adoptions are absolutely void and not binding on the Missouri courts, even though never assailed in Kentucky; (c) a decree of adoption has no extraterritorial effect unless it affirmatively appears that every essential requirement of the statute has been complied with, and its recognition then is only a matter of comity, so far as property rights are concerned. Irving v. Ford, 183 Mass. 448, 65 L. R. A. 177 and notes; Davis v. Me-Graw, 206 Mass. 295; Foster v. Waterman, 124 Mass. 592; Renz v. Drury, 57 Kan: 84; Furgeson v. Jones, 17 Ore. 204; Blythe v. Ayres, 96 Cal. 532; McCreery v. Davis, 44 S. C. 195; Tyler v. Reynolds, 53 Iowa, 146; Smith v. Derr, 34 Pa. 126; Keegan v. Geraghty, 101 Ill. 26. Third. The opinion is in direct conflict with the decision on adoption by the Supreme Court of Missouri, Sarazin v. Union Depot Ry. Co., 153 Mo. 485, which held that “one who claims that such a change occurred must show that every requirement of the statute lias been strictly complied with.” Fourth. The decision gives greater rights to these children than accorded these same children in their domicile, to-wit, Kentucky, in that these children take thereunder all of the Missouri property, while if he was a resident of Missouri, as alleged in the original petition, they can take none of the Kentucky estate, (1) because Kentucky statutes, Sec. 2071, required Louis P. Ewald to file these petitions for adoption “in the circuit court of the county of his residence”; (2) because under the decision of the Kentucky Court of Appeals, Leonard v. Braswell, 99 Ky. 528, as pointed out in note to 65 L. R. A. 177, “the law of the deceased’s domicile governs so far as the status of the child affects his right to share in the distribution of personal property.” Fifth. The decision is in conflict with the decisions of the Supreme Court of Missouri, in that it gives sanctity to a foreign decree heretofore never recognized in Missouri. Napton v. Leaton, 71 Mo. 359; Bradley v. Welch, 100 Mo. 268.

      Stewart, Bryan & Williams for respondent.
    (1) After the case of Damon v. Trust Company was dismissed, all the parties to that cause were out of court, and no further proceedings therein were authorized, and the action of the respondent in striking out the so-called amended petition, and in refusing to otherwise proceed with such cause after it had been dismissed and the term had expired, was right. Davis v. Hall, 90 Mo. 659; 14 Cyc. 458; Greeley v. Winsor, 3 S. Dak. 138; Black on Judgments (2 Ed.), Sec. 27; Freeman on Judgments (4 Ed.), Sec. 17; Bowie v. Kansas City, 51 Mo. 454. (2) A suit to contest a will is one to determine the rights of the parties to the suit, and no other rights whatever, and, like any other suit, may be dismissed by plaintiff unless defendants object thereto, and, like any other suit, it may Tbe dismissed after demurrer to the plaintiff’s pleading therein has been sustained. In re Lasak, 131 N. Y. 624 ; Crow v. Blakley, 31 Ala. 728; Whitfield v. Hnrst, 9 Iredell, 175; Thurston v. Gough, 42 N. J. Eq. 346; Stone y. Cook, 179 Mo. 534; Gordon v. Burress, 125 Mo. 39; Lilly v. Tohhein, 103 Mo. 477; Church v. Tohbein, 82 Mo. 418. (3) The dismissal of the case under consideration (Damon v. Trust Company) was in fact proper both in substance and in form. State ex rel. v. Thurman, 232 Mo. 130; Bowie v, Kansas City, 51 Mo. 454; Black v. Rogers, 75 Mo. 441. The return of respondent to the alternative writ of mandamus in this case sets forth clearly that the case of Damon v. Trust Company had been dismissed on March 17, 1910. The relators ’ demurrer to the return necessarily admits its truth, and under the pleadings in this cause as they now are, the dismissal of said cause on the date mentioned is conceded by relators. State ex rel. v, Neville, 110 Mo. 345; State ex rel. v. Smith, 104 Mo. €61. (4) The law is well settled in this State that an appeal will lie from an order dismissing a cause. State •ex rel. v. Thurman, 232 Mo. 130; Bowie v. Kansas City, 51 Mo. 454; Williams v. Judge of Common Pleas, 27 Mo. 225; State ex rel. v. Homer, 150 Mo. App. 325;. Crane v. Hawley, 54 Mo. App. 603. (5). The writ of mandamus cannot be made to perform or usurp the functions of an appeal or writ of error. The fact that the relators, by neglecting to appeal from the dismissal of the cause of Damon v. Trust Company, have placed themselves in such a position that they can no longer avail themselves of that right, does not remove this ease from the application of the rule, and constitutes no ground for interference by mandamus. State ex rel. v. McKee, 150 Mo. 233; State ex rel. v. Thurman, 232 Mo. 130; State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Homer, 150 Mo. App. 325. (6) A writ of mandamus is not one of right, hut on the contrary its issue is discretionary with the court. State ex rel. v. Homer, 150 Mb. App. 325.
   FEBBISS, J.

Petition for mandamus against respondent, directing him to permit the filing of an amended petition in the case' of Bosa E. Damon against the Columbia Trust Company and others.

In March, 1905, Louis Ewald made his last will, in. which he described himself as “Louis Phillip Ewald,, of the city of Louisville, in the State of Kentucky.”' The will gives the bulk of his very large estate to the Fidelity Trust Company of Louisville, in trust as; follows: ‘ ‘ For my three children, Phillip Louis, hielen Josephine and Sterling Donald, share and share alike.”' He also makes several bequests to his brothers and sisters, giving them each the sum of $15,000. The will appoints a guardian for the said three children. There were several codicils to this will, one of them substituting the Columbia Trust Company as executor. These codicils were made on the 19th day of July, 1909. The will purports to be signed in the city of Louisville. On the 17th day of January, 1910, Bosa E. Damon, one of the sisters of decedent, filed a suit in the circuit court of the city of St. Louis to contest the aforesaid' will. She is the only plaintiff. In that suit she made defendants the Columbia Trust Company, of Louisville, Kentucky, the St. Louis Union Trust Company, of St. Louis, the brothers and sisters; of decedent and their descendants, several in number, and the children mentioned in the will, together with their guardian. In her petition the plaintiff alleges, that she is a sister of said Louis P. Ewald; that he was at the time of his death, and for many years prior thereto, a resident of the city of St. Louis, Missouri, and that the-defendants, other than the trust companies and the aforesaid children, are the brothers and sisters of said Louis P. Ewald, and the descendants of said brothers and sisters. The petition further alleges that said Louis P. Ewald never married, that his said brothers and sisters and their descendants are his only heirs, and that said children mentioned in the will ■claimed to be his children by adoption. The petition states further that on November 10', 19001, there was filed in the circuit court of Jefferson county, Kentucky, a paper which purported to he a petition of Louis P. Ewald, asking for the adoption of two of said children, and that on said date the circuit court of Jefferson county, Kentucky, acted on said paper, and entered an order purporting to grant the prayer of said petition, and declared said children to he adopted by said Ewald, and thereafter, on October Id, 1905, similar proceedings were had with regard to the adoption of the third child. Plaintiff alleges that said petitions for the adoption were invalid, in that when they were filed, and for a long time prior thereto, the said Louis P. Ewald was not of sound mind, and was not capable •of entering into the adoption of children; that from, and. prior to, the said date, November 10, 1900, until fhe time of his death, the said Louis P. Ewald was a resident of the city of St. Louis, and was never a resident of Louisville, in the State of Kentucky, and that neither of the petitions filed in the circuit court of Jefferson county, Kentucky, is in form required by law, and that the decree of the said circuit court of Jefferson county, Kentucky, is not in conformity to the law of the State of Kentucky; that all of said proceedings for adoption are void by reason of the aforementioned facts. The petition further alleges that said Louis P. Ewald died in the city of Louisville, Kentucky, on the —=- day of-, 1909, and that on the-day of-, 1909', “there was produced before the probate court of the city of St. Louis, State of Missouri, an instrument purporting and alleging to be the last will and testament of said Louis P. Ewald, which said instrument was admitted to probate on the-day of-, 1909', and which said instrument was dated 23rd day of March, 1906,” and then sets out in detail the will of said Louis P. Ewald p further, that on the-day of- — , 1909, the defendant, the St. Louis Union Trust Company, was by the probate court of the city of St. Louis appointed, administrator cum testamento annexo of the paper above mentioned and set out as the purported and alleged last will and testament of Louis P. Ewald, deceased, and is now in possession of the said estate and administering thereon. The petition then alleges that said Louis P. Ewald was not of sound mind at the time of the execution of said will, and also alleges undue influence exerted by one Ellen J. Golden. Wherefore, the plaintiff prays that the alleged instruments claimed to be petitions, and claimed to have been filed by Louis P. Ewald in the circuit court of Jefferson county, Kentucky, asking for the adoption of said children, and all proceedings had thereon, be declared null and void, that an issue of fact be made, and that the probate of the instrument alleged to be the last will and testament of Louis P. Ewald be set aside, and for such other decrees as to the court might seem just and proper.

On this petition summons was issued and served upon the St. Louis Union Trust Company, and upon, several individual defendants who resided in St. Louis,, in time fox the February term. Among the defendants so served was Harry F. Ewald, one of the relat-ors herein.

This suit'was filed, as stated above, on the 17th. day of January, 1910, returnable to the February term. On February 7, 1910, the St. Louis Union Trust Company entered its voluntary appearance in writing, and on that date filed a demurrer to the petition upon the following grounds: 1. That said petition does not state facts sufficient to constitute a cause of action. 2. That several causes of action have been improperly united in one count in said'petition. 3. That the peti-lion is multifarious. 4. That the plaintiff has no capacity to sue.

Following this, on February 24, 1910’, plaintiff filed her affidavit alleging the nonresidence of certain defendants. An order of publication was made thereon commanding said defendants to appear at the April term, 1910, which was duly published. ,

The petition further alleges, “That thereafter, and during the February term, 1910', of said court, plaintiff confessed the said demurrer of the St. Louis Union Trust Company, and on March 8, 1910’, and on said last-mentioned day, plaintiff took ten days to file an amended petition; that on March 17, 1910, and during said February term, 1910, of said court, the following was entered of record in this cause:

Thursday, March 17, 1910.
Rosa E. Damon, v. Columbia Trust Co.
) [ 64360-A. .)
Upon motion, of plaintiff, and by consent of defendants, it is ordered by the court that the following memorandum he entered of record, to-wit:
On motion of plaintiff, by attorney, this cause is to be dismissed at plaintiff’s costs.

> It is proper to state here, in order to get the facts in regular order, that on said 17th day of March the plaintiff, by her attorney, Joseph A. "Wright, filed in the case the following memorandum, signed by him as attorney: “Now comes plaintiff, by her attorney, and dismisses this suit at her costs.” Whereupon, the above-mentioned order was entered.

No defendant appeared in the case except the St. Louis Union Trust Company. The nonresident defendants were not required to appear until the April term. The individual defendants living in St. Louis, among them the relator, Harry F. Ewald, were served in time to appear at the February term, but at the time of dismissal were in default, although no default was entered. After the order of dismissal was entered as above, tbe papers in the case, as is the usual practice, were transferred from the court room to the general files in the clerk’s office. Subsequently, on the 1st day of March, 1912, plaintiff, without notice to anybody, appeared in court asking leave to file an amended petition, which leave was granted. In this amended petition the plaintiff makes the same parties defendant; alleges that the said Louis P. Ewald was never married; that his mother and father died several years before the death of said Louis; that at the time of his death the said Louis left surviving him as heirs the plaintiff and brothers and sisters, and their descendants, named in the first petition, and no other heirs; that the defendants, the children named by Louis P. Ewald as his children in the will, claimed to be his children, but that said claims were untrue, and that Louis P. Ewald was at all times during his life an unmarried man, and died without issue in the city of Louisville, Kentucky, leaving real and personal estate in the city of St. Louis, and that the will was probated in the city of St. Louis on the 6th day of August, 1909. The will is set out again in full. The amended petition also alleges that the St. Louis Union Trust Company was appointed by the probate court administrator, and then charges the invalidity of the will on the ground of mental incapacity and undue influence, as alleged in the original petition, but says nothing about the adoption of the children. Upon this amended petition summons was again issued to all the defendants, again served on the defendants resident in the city of St. Louis, and again an order of publication was obtained and published against the nonresident defendants. The resident defendants were served for the April term, 1912. The order of publication was published for the June term, 1912. On the third day of April, 1912, and during the April term, the St. Louis Union Trust Company filed its motion to strike the amended petition from the files upon the grounds that at the time the so-called amended petition was filed there was no canse pending before the court in which said petition conld be lawfully filed; that the said cause was dismissed more than two years before, at the February term, 1910, to-wit, on the 17th day of March, 1910, and final judgment dismissing said cause entered on that date, and that therefore the court had no jurisdiction to make any order therein. This motion of the trust company was continued until the June term, 1912, and on July 5, 1912, was sustained, and said amended petition was stricken from the files by order of the court, to which order of the court the plaintiff, Rosa E. Damon, excepted, and on the same day, July 5, the court quashed the writ of summons issued against the St. Louis Union Trust Company.

After service of summons on relator Harry F. Ewald, at the April term, 1912, he appeared in court, and asked leave to file the following answer:

“Now, this day comes Harry F. Ewald, one of the defendants in the above styled cause, and by leave of court files this his answer to the amended petition herein* and for answer thereto admits all the allegations contained in the amended petition, and joins with plaintiff in her plea thereto that an issue of fact be made, and that the probate of the instrument alleged to be the last will and testament of said Louis P. Ewald be declared inoperative and of no effect, and for such other decrees as to the court may seem just and proper.”

On July 5, 1912, the court refused to allow said answer to be filed, whereupon the plaintiff, Rosa E. Damon, and the defendant, Harry F. Ewald, joined in a petition to this court asking that a writ of mandamus be issued against the judge of the circuit court of the city of St. Louis, commanding him to “forthwith set aside and annul the order made by said court over which he presides, on July 5, 1912, striking from the files said amended petition in said cause, and to reinstate said amended petition, and to proceed to consider and determine the same in accordance with law, and your petitioners pray for snch other process, orders and remedies as may to the court seem meet and proper.”

The circuit judge, Hon. Eugene McQuillin, filed a return which does not materially change the facts as stated in the petition of relators. It sets up the filing of the memorandum of the plaintiff by her attorney above set out, dismissing the cause at her costs, and alleges “that said plaintiff, with the consent of the defendant, dismissed the said cause,” and that she paid the costs; that the application for leave to file the amended petition was made without notice to any of the persons who had been -parties to the said cause, and without any of said parties being heard; that the court heard the argument of counsel for plaintiff in opposition to the motion of the St. Louis Union Trust Company to strike the amended petition from the files and to quash the writ of summons, and also heard the evidence of plaintiff in support of her several motions1; that no person named as a party defendant in the original petition ever appeared in said cause, or in any way participated therein, other than the defendant the St. Louis -Union Trust Company. The return - states that it appears on the face of the petition filed by the .relator, Rosa E. Damon, in said cause, that plaintiff was not one who would have been benefited by having the will of Louis P. Ewald set aside, either by taking a share of the estate of the decedent or by obtaining the first right to administer thereon; further, that the original petition did not state facts sufficient to constitute a cause of action; that several causes of action had been improperly united in one count, and that plaintiff had no legal capacity to sue. The return of the respondent further alleges that the original cause was dismissed and the costs paid by plaintiff therein, and that the cause was not pending in the eircnit court at the time when the so-called amended petition was filed; that the records show that the cause had been dismissed with the consent of all parties to said cause, on the 17th day of March, 1910, two years before the time when it was sought to file an amended petition, and that the court was without jurisdiction in 1912 to make any order in the cause; further, that the action of réspondent in refusing to permit Rosa E.- Damon to file her so-called amended petition, if wrong, constituted error only, and should be remedied only by an appeal or writ of error, and not by means of mandamus; further, that relator Harry F. Ewald has no joint or common interest with the said Rosa E. Damon, and is not a proper or necessary party as relator in this cause.

Thereafter, on October 12, 1912, relators filed a ■demurrer to the return of respondent on the ground that the same does not state facts sufficient to consti-ute a defense, or show any cause whatever for not 'obeying said writ.

Upon this state of facts it is contended in the ar-gnment and brief of relators, first, that a will contest in Missouri cannot be dismissed; second, that the entry of March 17, 1910, dismissing the cause, cannot he construed as the act of all the parties, because the nonresident defendants were not required to plead before April, 1910; third, that the entry of March 17, 1910, is not a dismissal of the suit. On the other hand, it is contended by respondent that the will contest was ■dismissed, that all of the parties to the cause were out of court, and that therefore the order to strike the so-called amended petition from the files, and the refusal do otherwise proceed in the cause, was right; that a will contest may be dismissed by plaintiff, unless the •defendants object thereto, after demurrer to the petition has been sustained, and before issues áre joined, and that it is the duty of the court to dismiss the case when it appears upon the face of the petition that the? plaintiff is not interested in the probate of the will.

I. It is earnestly contended by the respondent, that it has never been decided by this court that a will contest cannot be dismissed by the plaintiff before the issues are joined and where no objection is made by the defendants. •

So far as we have been able to review the decisions, of this court, it would appear that this statement is correct. This court, however, has decided in numerous eases that the jurisdiction of the circuit court is derivative, that a contest is in the nature of an appeal front the probate court, and when instituted by a party in interest vacates the interlocutory judgment below; that the institution of such contest imposes upon the circuit court the duty of determining the question of will or no will. [Dickey v. Malechi, 6 Mo. 177; Benoist v. Murrin, 48 Mo. 48; Cash v. Lust, 142 Mo. l. c. 637; Hogan v. Hinchey, 195 Mo. 527; Teckenbrock v. McLaughlin, 209 Mo. 533.] And although the decisions have been in cases where issue was joined, and where objection was made, yet the irresistible logic of the situation is that, after a contest is properly instituted by a person in interest, such contest cannot be dismissed without an adjudication upon the will. The statute provides that during a contest the letters of the executor may be revoked, and an administrator appointed pendente lite; this, upon the theory that the contest suspends the- judgment of the probate court. Proceeding upon this idea, it has been decided in a very recent opinion by Lamm, J., that the application to revoke the letters of the executor, and appoint such administrator, may be made so soon as the petition in the contest is filed, and such is the common practice. [State ex rel. v. Imel, 243 Mo. 180.] This court has also ruled that no security for costs can be required from parties to the contest (Cash v. Lust, supra); nor an appeal bond. [State ex rel. v. Guinotte, 156 Mo. l. c. 522.] Further, that the burden of proof is upon the proponents of the will (Benoist v. Murrin, 58 Mo. l. c. 322; Norton v. Paxton, 110 Mo. l. c. 461; Teckenbrock v. McLaughlin, supra); also, that a contest properly instituted by a party in interest cannot be dismissed or abandoned by the party contesting so as to. prevent an adjudication upon the will. [Hogan v. Hinchey, supra; Cowan v. Shaver, 197 Mo. l. c. 212.];

II. The controlling question in the case is, whether or not this will contest was properly instituted by a person interested in the probate of the will. It has been decided, and we think correctly, that all proceedings in will contests are purely statutory, and. that the provisions of the statute must be strictly, complied with. [Stowe v. Stowe, 140 Mo. 594; Hans v. Holler, 165 Mo. 47.] Our statute, Sec. 555, R. S. 1909,. provides that a will contest may be instituted by any person “interested in the probate-of any will.” No. contest, therefore, can be said to be properly instituted' unless it is by one who is interested in the probate-of the will. Obviously, a total stranger could not institute a will contest and invoke the jurisdiction of the circuit court to vacate the judgment of the probate-court. In the case of Church v. Tobbein, 82 Mo. 418, the plaintiff corporation instituted suit in the circuit, court to establish a certain paper writing as the last-will of Tobbein, the same having been offered to the-probate court and rejected. It was held that the plaintiff corporation could not take under the will, and for-that reason the judgment which had been rendered in-, its favor in the circuit court was reversed in this court.. There was simply a judgment of reversal. No attempt, was made to adjudicate upon the will. The case came-subsequently to this court (Lilly v. Tobbein, 103 Mo. 477), where the court, speaking of the reversal in tlie-former appeal, says: “The conclusion seems to have been reached that the corporation had no snch interest in the probate of the will as would give it a standing-in court as a proponent. The judgment was, therefore, simply one of reversal. Where the final judgment is one upon the merits, it must be a judgment to the effect .that the paper writing produced is, or that it is not, the will of the testator. This court gave no such judgment. There was no judgment at all on the issue of will or no will. The judgment of reversal simply said the then plaintiff had no right to prosecute the suit because it was not a party in interest. The final judgment in that case left no impediment in the way of a new suit by anyone having the requisite interest.”

Again, in the case of Gordon v. Burris, 125 Mo. 39, three petitions in the will contest were held insuf - ficient on demurrer in the circuit court. Thereupon the defendants filed a motion that judgment be entered establishing the will. The court denied the motion, and entered final judgment dismissing the case at plaintiff’s costs. Defendants appealed. The judgment below was affirmed. This court held that the general practice act governed the case, and that there was no exception in will cases; also, that the provision that judgment should be rendered when a third petition is adjudged insufficient, means a judgment for costs. The court says: “But there is no intimation in the section that a judgment is to be rendered on the merits, or that such judgment should be a bar to any further proceedings involving the same facts.”

The three cases referred to are authority for the proposition that a will contest is not -properly instituted, so as to have the effect of vacating the interlocutory judgment of the probate court, where the petition fails to state a cause of action by á party in interest.

Strong reliance is placed by the .relators upon the decision of this court by Valliant, J., in Hogan v. Hinchey, 195 Mo. l. c. 532, to the effect that a suit 'brought in the circuit court to contest the validity of ■a will has the effect of vacating the action of the probate conrt; but it will be perceived that the learned judge, with his usual caution, qualified his statement by saying that the suit must be brought by a “party in interest.” He says further, that after the suit is instituted, it is so far beyond the control of the contestant that she cannot dismiss it, but he also carefully says that the suit must-be “properly instituted.” The question now is, whether the converse of the proposition he lays down can be maintained, namely, that a suit instituted by a party who has no interest may be dismissed. In the case of Jele v. Lemberger, 163 Ill. 338, the court held that the superior court was without jurisdiction to entertain the bill contesting the will, because it affirmatively appeared upon the face of the record that .the contestant was a nonresident alien, incapable of taking or holding real estate in Illinois by descent or otherwise, and therefore not “a person in interest.” In Lockard v. Stephenson, 120 Ala. 641, a demurrer was sustained to a bill filed, by a creditor to contest the will, on the ground that the contestant did not come within the statutes which authorized a will contest by any person interested. The statute of Alabama (Sec. 4287, Code of 1896) provided that when a contest was filed, the issue raised should be submitted to a jury. It was held in Roberts v. Trawick, 13 Ala. 68, that an executor offering a will for probate could not take a nonsuit. The court said, “The court, by statute, is required to proceed with the investigation, and determine the matters put in issue.” Tet, in the case of Montgomery v. Foster, 91 Ala. 613, the petition was dismissed, with costs, on the ground that the contestant had no interest in the estate.

Furthermore, the interest referred to by the statute must be a financial interest in the estate, and one ■which would he benefited by setting the will aside. In the case at bar the will as set out in the petition gives-the contestant $15,000. If, however, it appears upon the face of the petition that if the will is set aside-the contestant will get nothing, she is not a party in interest. Page on Wills, Sec. 325, construes the words “any person interested” to mean “a person who-would take more if the will were denied probate than if it were admitted to probate,” and also says that 11 one who is not benefited by having the will set aside ’T cannot contest the will. In Biles v. Dean, 14 So. (Miss.) 536, it is said that one who gets more under the will than he would get if the decedent died intestate is not an interested party. In Selden v. Trust & Savings Bank, 239 Ill. 78, it was held that a person to whom the will gave a benefit which he would not have a right to without the will was not “interested,” and cbuld not maintain a .suit to contest. In that case the-court sustained a demurrer and dismissed the hill. Its judgment was affirmed in the Supreme Court. In the Matter of Davis, 182 N. Y. 468, the court defines the statutory expression, “any person who is otherwise interested in sustaining or defeating the will,” as meaning “a person who has a pecuniary interest to protect. . . . An interest resting on sentiment or sympathy, or any basis other than the gain or loss of money or its equivalent, is not sufficient.” To the same effect are McDonald v. White, 130 Ill. 493, and Shepard’s Appeal, 170 Pa. St. 323. The original petition of Rosa E. Damon showed that she could have no interest in the estate unless the adoption could be set aside. It does not appear that any steps were taken or intended to be taken to set aside adoption other than her prayer in the petition. Obviously the circuit court of the city of St. Louis could not set aside that adoption, and it is equally clear that until set aside she could have no possible.interest in the estate. Had she alleged in her petition that the adoption was invalid, and that steps had been instituted in Kentucky, or even that they were about to he instituted, to set aside such adoption, and had she asked that the will contest be stayed until such proceedings should have come to an end, a different question would have been presented, "because if proceedings were instituted in Kentucky to vacate the adoption they might not come to an end until the Statute of Limitations had run against the contest. We do not mean to say that she could not have, framed a petition that would have preserved her alleged rights until the adoption question should be settled, but there was nothing in the petition filed to suggest such course. It appeared upon the face of the petition that the plaintiff had no interest in the estate. It is conceded upon the record that the petition filed hy Kosa E.- Damon to contest this will was insufficient, in this respect. A demurrer upon the ground that she had no interest was sustained. She confessed the •demurrer, and filed a memorandum dismissing the case at her costs. The court entered such dismissal. This left the way open for other proceedings in contest, but none were instituted within the statutory period of two years.

Undoubtedly the court had the power to sustain the demurrer, even if it had not been confessed by the plaintiff. She took ten days to plead. She did not plead further, but voluntarily filed in court a memorandum of dismissal. No other party appeared aside from the administrator. Was it the duty of the court at this juncture to compel an adjudication of the will, when such adjudication had been asked for by a stranger to the estate only, and one who had abandoned her claim; admitting herself to be a stranger? We think not. If, as we have shown above, it is the law of this State that a will contest in the circuit court is in effect an appeal from the judgment of the probate court, then, like every other appeal, it must be taken by a party in interest who is aggrieved by the judgment below. If taken by a stranger, it should be dismissed. The court has jurisdiction to hear a contest, not a mere request. Suppose a contestant alleges in his petition that he has no interest in the probate of the will, or, being a party in interest, alleges that the will is valid. It would be absurd to say in such case that the .mere filing of the petition vacated the judgment below and conferred jurisdiction on the circuit court to adjudicate the will.

The judgment of the probate court is a valid and binding judgment until contested by a party in interest, whose petition states a cause of action, and, if not so contested, becomes final after two years. In our judgment, the same logic which supports this court in its ruling that a will contest, properly instituted by a party in interest, vacates the judgment below, and cannot be dismissed, authorizes its dimissal when it appears upon the face of the record that the suit has. been improperly instituted by one who is not interested in the probate of the will.

Nor is the relator, Harry F. Ewald, who is the only other party complaining, in any better position than Eosa E. Damon. He is her brother, and his alleged rights are the same as hers; and so it is with all the parties defendant in the contest case, except those contending for the will and mentioned therein,, namely, the children, their trustees and the executor. Therefore, the petition demurred to stated no interest in any of them. ' No effort was made to set aside the dismissal or to further prosecute the case until two-years had expired and the Statute of Limitations had run against a new contest. Then it was sought to file an amended petition on the theory that the dismissal was a nullity and .that the suit was still pending. On this theory the parties were still in court under the original summons, and yet the plaintiff saw fit to issue summons to all the defendants on the amended petition. On motion, the court struck this petition from the files and quashed the summons issued against the administrator. We are constrained to hold that this ruling was proper. Nor should this court by writ of mandamus order the circuit court to permit the filing of the amended petition.

Eelators contend that the entry made March 17, 1910, was not a'dismissal of‘the suit. Here is what was done. Plaintiff on that day filed-in the cause, by her attorney, this memorandum: “Now comes plaintiff, by her attorney, and dismisses this suit at her costs.” This was signed by Joseph A. Wright, as attorney for plaintiff. Upon the same day this order was entered upon the record: “Upon motion of plaintiff, and by consent of defendants, it is ordered by the court that the following memorandum be entered of record, to-wit, ‘ On motion of plaintiff, by attorney, this cause is to be dismissed at plaintiff’s costs.’ ” Plaintiff paid the costs. The papers in the case were filed away as upon final disposition. It was regarded at the time by the court and the parties as a dismissal. Though informal, we think the judgment sufficient. [Moody v. Deutsch, 85 Mo. 237; Smith v. Kiene, 231 Mo. 215; State ex rel. v. Thurman, 232 Mo. 130; Black v. Rogers, 75 Mo. 441.] In the last named case the following entry was held to make a good judgment: “Now at this day this cause is compromised and settled as per stipulation now filed, each party to pay costs.” The entry here, read in connection with the dismissal by plaintiff, was sufficient under the above authorities to make a good judgment.

The peremptory writ is denied.

All concur, except Kennisfo, J., and Woodson, J., not sitting. Dissenting opinion of Kennish, J., not yet filed.