source: Caselaw Access Project

author: BLAIB, C. PER CURIAM.

license: Public Domain

text:
    HENRY HEBERLING et al. v. WILLIAM MOUDY, Appellant.
    Division Two,
    December 31, 1912.
    1. ORDER OF PUBLICATION: Publication in Supplement to Newspaper. Service by publication upon which the circuit court rendered its judgment ordering land to be sold for taxes, and under which the land was sold, will not be held invalid, in a suit to auiet title, because it was published in a supplement to a newspaper and not in the paper itself, where it appears that the supplement consisted of an additional sheet or sheets folded in with the paper and sent out with it, as a part of it, with each issue and to all subscribers, except that, when the number was a little short, “dead-heads” or persons who received complimentary copies might not receive the supplement, and for that matter, sometimes might fail to receive the paper at all.
    2. -Herberling for Heberling: Not Idem Sonams. A sale of land under a judgment for taxes based upon an order of publication running against Henry Herberling, did not devest the title out of the record owner, Henry Heberling. The names are not idem sonans; they are not of common derivation, and there is no evidence that the one is a corruption of the other in general use.
    Appeal from Beynolds Circuit Court. — Son. Joseph J. Williams, Judge.
    AmimMED (in part).

      Z. G. Smith and J. B. Daniel for appellant.’
    (1) The fact that the orders of publication mentioned in the evidence were published in a supplement to or extra sheet of a newspaper and not on one of the two pages usually edited and published by the editor and publisher of that paper is not' material and does not render the service invalid. Morton v. Horton, 189 N. Y. 398; Mann v. Carson, 120 Mich. 631; Zahradnicek v. Selby, 15 Neb. 579; Whitney v. Bailey, 92 N. W. (Minn.) 974; Taylor v. Beid, 103 Ill. 349; Black on Tax Titles (3 Ed.) p. 240, side p. 243; 37 Cyc. 1327, par. 3; 27 Am. .& Eng. Ency. Law, p. 826. (2) Courts of record are presumed to have acquired jurisdiction in all cases wherein they assume to act, and the burden of proof is on him who attacks their jurisdiction. 11 Cyc. 691; 23 Cyc. 1078; Wall v. Holla-day-Klotz Co., 175 Mo. 406; Wise v. Loring, 51 Mo. App. 258. (3) Under the public policy of this State the jurisdiction of courts of record will not be denied, judgments set aside and titles long at rest disturbed, except upon positive, clear and convincing proofs. 23 Cyc. 1028; 11 Cyc. 691. (4) It would be a gross violation of public policy to bold tbat orders of publication in suits for taxes published in supplements to newspapers did not give the courts jurisdiction when far more titles rest upon orders published in that way than upon orders published otherwise, especially when the bar of the State and the people for more than thirty years have accepted such titles and relied upon them as sufficient. Mangold v. Bacon, 237 Mo. 496; Shelton v. Franklin, 224 Mo. 342. (5) That names are idem soncms, regardless of the addition or omission of the letter “r” after a vowel, see the following cases: Taylor v. State, 72 Ark.-613; City of Detroit, v. Macier, 17 Mich. 76; Tel. Co. v. "Waford, 97 S. W. 324; Sparza v. Bank, 104 N. Y. 260; Harrel v. Neef, 80 Kan. 348; People v. Harrison, 112 Ga. Ápp. 713; Wilkerson v. State, 13 Mo. 91; State v. Havely, 21 Mo. 498; Eailroad v. Daniels, 1 Tex. Civ. App. 695; Land Co. v. Land Co., 25 S. W. 1089; Lane v. lu-nes, 43 Minn. 137; Moore v. Anderson, 8 Ind. 18; People v. Gosch, 82 Mich. 22; Land Co. v. Dooly, 33 Tex. Civ. App. 636; Felker v. New Whatcom, 16 Wash. 178; Schooler v. Asherst, 1 Litt. (Ky.) 216; Miller v. State, 110 Ala. 69; Salinas v. State, 39 Tex. Cr. App. 319.

      Arthur T. Brewster and Sam M. Brewster for respondents.
    (1) The court properly held that the four tax deeds were void for the reason that the judgments on which they were based were rendered by the court without jurisdiction of the record owner, for the reason that the orders of publication in said tax suits were not published in a newspaper as required by the . statute. “The statute requires the order to be published in a newspaper, it does' not say that a supplement to a newspaper will do.” Land & Mining Co. v. Land & Cattle Co., 187 Mo. 420; Sec. 1777, E. S. 1909. (2) Proof that an order was published in a supplement is insufficient, without showing what the supplement is and that it is circulated co-extensively with the paper itself. 27 Am. & Eng. Ency. Law, p. 826; Davis v. Simms, 4 Bibb (Ky.), 465; Dully v. Bauer, 52 Cal. 487; Zahradnicek v. Selby, 15 Neb. 579; Blackwell on Tax Titles, p. 243. ' (3) The sheriff’s deed purporting to convey the southeast quarter of section 27, township 29 north, range 2 east, is void -for the reason that H-e-b-e-r-l-i-n-g and H-e-r-b-e-r-l-i-n-g are not idem sonans. Miller v. Medley, 236 Mo. 694.
   BLAIB, C.

This is an appeal from a judgment for plaintiffs in the circuit court of Beynolds county in an action to quiet the title to section twenty-seven, township twenty-nine north, range two east. The petition is in the usual form under section 2535, Eevised Statutes 1909. The answer admits defendant’s claim of title, avers his ownership, denies all unadmitted allegations of the petition and sets up the ten-year Statute of Limitation. Plaintiffs ’ title rests upon a tax deed recorded February 10, 1881, and defendant claims under separate tax deeds to each quarter of section twenty-seven, all executed November 25, 1896, and each of them reciting a judgment of the circuit court against Heberling and others for taxes on the quarter section conveyed and a sale under such judgment. The service in these suits was by publication, Heberling et al. being non-residents, and no objection is made to the form of the publication, except as to that in the suit affecting the southeast quarter, in which the publication ran against Iierberling instead of Heberling. Plaintiffs attacked the sufficiency of all the notices on the ground they were published in a supplement to the “Centerville Beformer” and not in the paper itself, and, also, contend the publication in the case affecting the southeast quarter was insufficient by reason of the fact Heberling’s name was misspelled therein. The testimony of the editor and publisher of the “Centerville Beformer” was to the effect that the so-called “supplement” consisted of an additional sheet or sheets folded in with the paper and sent ont with it, as a part of it, with each issue and to all subscribers. On being somewhat rigidly examined by plaintiffs’ counsel, the witness admitted he could not then (fifteen years after the event) swear a supplementary sheet or sheets went out with each copy, though he testified it was his intent and purpose to so send them, as much so as any other part of the paper. He also admitted there were occasions on which the number of “supplements” might have been a little less than that required and that on such occasions he sometimes omitted the ‘ ‘ supplements ’ ’ in copies of the paper sent to other newspapers. There was no evidence any such omissions occurred during the time the orders of publication involved in this case were running. The whole of the testimony shows that the so-called “supplement” was simply a part of the paper, an addition made necessary by the large number of orders of publication being published; that it was circulated with the paper as a part of it and went to all subscribers, except, when the number was a little short, “deadheads” or persons who received complimentary copies might not receive the supplement, and, for that matter, sometimes might fail to receive the paper at all.

I. The evidence offered to invalidate the publication was wholly insufficient. Waiving the question as to the competency of such evidence • „ ... . to show want of jurisdiction after the circuit court in the tax suits had rendered judgment on the service thus made (1 Black on Judgments, secs. 271, 263; McClanahan v. West, 100 Mo. 309; Hamer v. Cook, 118 Mo. 476), it is apparent that, at all events, the nsnal presumption attending the judgments of a domestic court of general jurisdiction cannot he overthrown by such evidence as that adduced in this case. The authorities cited in the briefs' of counsel (which accompany this opinion) disclose that it is the general rule that publication in a supplement which is circulated fully with and as a part of a newspaper is sufficient. The burden of showing such circulation of a supplement is probably upon one who claims under a sale by a collector, auditor or county treasurer (as in some States) after a simple publication of the delinquent list and notice of sale, without, judicial proceedings of any kind, but no such rule can apply to one who claims under a sale on a judgment of a circuit court of this State. Besides, the testimony of the publisher in this ease not only fails to show any failure to circulate the supplement as fully as the rest of the paper, but shows, as nearly as testimony fifteen years after the event could well show, that the supplement was simply a part of the paper and was circulated with it as a part of it. To hold otherwise would, in effect, be to make the title to countless tracts depend solely upon the memory of publishers of papers that to each subscriber there was actually mailed a copy of the paper in which the publication appeared. The law does not require a publisher of a newspaper to issue, each week, the same number of pages, and the fact additional sheets are sent out as a part of the paper does not invalidate publications appearing in the added pages. There is no suggestion of fraud in the case and the facts render inapplicable those decisions relating to “extras” and “supplements” merely sold on the streets and not sent to the regular subscribers.

II. The names Heberling and Herberling are not idem sonans. They are not of common derivation nor is there any evidence the one is a corruption of the other in general nse. While both seem to he foreign names no evidence as to their pronunciation in any language was offered and the usual rules as to English pronunciation must be applied. Numerous cases are cited in which the introduction of the letter “r” after a vowel (as in this case) has been held innocuous. Some of these cases concern, names of common derivation, some disclose one of the names considered was a corruption of the other, and in others the introduction of the “r” did not change the sound of the' vowel it followed. This case falls within none of these classes. The difference in sound is that between “he” and ‘her,” one the attentive ear finds no difficulty in recognizing. Some of the cases go far enough to support a holding that these names are idem sonans, but our own decisions (Simonson v. Dolan, 114 Mo. 176; State v. Havely, 21 Mo. 498; Miller v. Medley, 236 Mo. 694) announce the rule as stated which is generally accepted and nowhere directly controverted and the application of which must result in our holding the order of publication in the suit affecting the southeast quarter of the section to be bad and defendant’s claim to that tract, therefore, unfounded.

The judgment is affirmed as to the last mentioned tract, and, as to the remainder of the land involved, it is reversed and the cause remanded with directions to enter judgment for defendant.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court. All the judges concur.


author: GRAVES, J.

text:
    MARY HONEA, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.
    In Banc,
    January 13, 1913.

    Per GRAVES, J., with whom BOND and FARIS, JJ., concur.
    1. JUDGMENT: Power to Set Aside During Term: Motions After Rehearing Overruled: On Request Amici Curiae. The Supreme Court holds within its hreast all its judgments until the end of the term, and although a motion for a rehearing has been overruled, it can set aside any judgment it has rendered at any time before the term has ended, either of its own motion, or on the motion of the losing parties, or upon the suggestion of any amicus cwiae,

      2. --: -: -: More Than One Motion for Rehearing. The rule of the court against the filing of more than one motion for a rehearing was never intended to preclude the Supreme Court from exercising its inherent right to change its judgment at any time during the term, if it is of the opinion that its judgment is wrong, nor does it preclude the court from setting aside a wrong judgment upon the tona fide suggestion of an amicus curiae.

    3. EXCESSIVE VERDICT: New Trial: Reinstated by Appellate Court. Where the plaintiff obtained a verdict, and the court, upon a motion for a new trial, containing, among other grounds, a charge that the verdict was excessive, granted a new trial on the ground of supposed error in an instruction given, and, plaintiff appeals, the Supreme Court, after determining that the instruction was not error, cannot direct tlie trial court to set aside its order granting a new trial and reinstate its judgment, if tlie court are of tlie opinion that the verdict is in any wise excessive, whether slightly or grossly. And a majority of the judges who took part in the decision, having been of the opinion that the verdict was excessive, the judgment of the trial court granting a new trial should he sustained, even upon the suggestion amici curiae after motion for rehearing has been overruled.
    4. -: -: -: Point Raised by Motion for New Trial: Discretion. Nor does it matter that the trial court granted a motion for a new trial, on the ground that an instruction given was erroneous, if the motion also charged that the verdict was excessive. The Supreme Court is hound to consider the grounds assigned in the motion, whether or not they were ignored by the trial court, and if any one of them is sufficient ground for a new trial, the order allowing it should he upheld, and cannot he overridden without interfering with the discretion of the trial court. And if a majority of tlie Supreme Court are of the opinion that the verdict is excessive, and its exeessiveness was one of the grounds of the motion, it would be interfering with the trial court’s discretion to hold it erred in granting a new trial. The Supreme Court can set aside a verdict for ex-cessiveness only when its excess is such as to shock the conscience of the judges'. It cannot interfere with the discretion of the trial court in setting aside a verdict for exeessiveness, unless it is apparent that the discretion has been abused.
    5. -: -: -: Not Suggested in Brief. Where defendant filed a motion to set aside a verdict for plaintiff, charging, among other things, that the verdict is excessive, and the court sustains the motion on the ground that an instruction given was erroneous, and plaintiff appeals, and the Supreme Court holds the instruction was not erroneous, the fact that the respondent did not suggest in its brief that the verdict was excessive, does not preclude the Supreme Court from sustaining the order on that ground. The respondent has a right to stand mute. It devolves on the appellant to show that the trial court committed error in granting a new trial; not upon respondent to show its ruling was correct. Respond- ' ent can impose on the court the duty to examine all the grounds contained in the motion for a new trial.
   ON SUGGESTIONS AMICI CURIAE.

GRAVES, J.

This matter now comes up on a motion amici curiae. The motion for a rehearing has been filed and overruled, but the term of the court has not yet expired. That this conrt, like a circuit court, holds within its own breast all of its judgments until the end of the term needs no citation of authority. That the humblest citizen of the State, whether he be a lawyer or a layman, can come and as amicus curiae humbly suggest to this court, or any other court, that its judgment tramples down legal rights and incurs legal wrongs, is likewise as firmly entrenched in the law of this State, as elsewhere. That this court, of its own motion, during the term, can set aside a judgment which it has entered, although a motion for rehearing has been overruled, is evidenced by what we have done in the following cases, viz.: Williams v. Butterfield, 182 Mo. 181; Hollenbeck v. Railroad, 141 Mo. 97. The same rule is also explicitly recognized by this court in the very recent case of Ewart v. Peniston, 233 Mo. 695, and by the Court of Appeals in Toung v. Railroad, 113 Mo. App. 636. What the court can do of its own motion it can do upon suggestions amici curiae, it matters not how high or how low these professed friends of the court may be. Nor should it be material to the court seeking to announce correct principles of law whether the suggestions of error are upon questions purely of public benefit,, or whether back of the suggestions may be some personal interest. A court like this should be glad to consider any suggestion of our error, if it be made in good faith. Our one object should be to have our judgments speak the law, and we should make them so speak so long as we have control over them.

That this court should not ignore or refuse to investigate the suggestions amici curiae filed in this case is thoroughly shown in the following cases: Florida v. Georgia, 15 L. Ed. (U. S.) 181, and note; The Gray Jacket, 5 Wall. (U. S.) 370; Parker v. State ex rel., 18 L. R. A. 567; State ex rel. v. Rost, 49 La. Ann. 1451; Robinson v. Lee, 122 Fed. 1010; Ex parte Yeager, 11 Gratt. 655; People v. Gibbs, 70 Mich. 425; Bass v. Fontleroy, 11 Texas, 699; Irwin v. Armuth, 129 Ind. l. c. 342; Jones v. City of Jefferson, 66 Texas, 576.

Bnt we need not analyze authorities. That this court upon its own motion can set aside its judgments in this court at any time during the term will not he denied. The only thing necessary is for the court to determine that its judgment is wrong. "What it can do of its own motion it can do upon the suggestion of any person. The suggestion in such case is a mere light to the court.

Nor was our rule against filing more than one motion for a rehearing ever intended to preclude this court from exercising its inherent right to change its judgment at any time during the term, if the court was of the opinion that its judgment, was erroneous. If the rule does not preclude this action by the court upon its own motion, it certainly does not preclude the court from acting upon any bona fide suggestion that by our judgment we have made the court to appear in the wrong light.

So that after all, the question comes, should we in justice to ourselves, as impartial judges of the law, permit our judgment to stand. My lips would be sealed but for the vital interest this case is to my fellow judges and members of the bar of this State. The mere fact of a railroad company having to pay the sum of ten thousand dollars is but a bagatelle of the consideration involved in the question before us. The real question of moment is, what have we done by our former opinion and what is the legal effect of that opinion? Further, how does the majority opinion affect the jurisprudence of Missouri? An answer to these questions seeks the facts of the case. In stating such facts I shall clearly hew to the written record. These are the facts:

On trial nisi plaintiff had a verdict for ten thousand dollars. Motion for a new trial in the circuit court resulted in tlie granting of a new trial. This motion for a new trial contained the charges that the verdict was grossly excessive, among a great number of other charges. The trial court conceived that there was error in an instruction, and sustained the motion on that ground, and so designated, but remained mute as to the other grounds. In this court we were divided upon the proposition as to whether the instruction condemned by the trial court should have been condemned — the majority'thinking it was improperly condemned, as I read the several opinions. If this were all there would be no occasion for the views I am now expressing; but unfortunately for this court, it is not all. At least four members of this court, in written opinions filed, have denounced this verdict as excessive, yet by our judgment we have reinstated it in defiance of the circuit court’s discretion over such verdict, and. in defiance of the fact that the excessiveness of the verdict was attacked by the motion for a new trial in the circuit court. [See Honea v. Railroad, 245 Mo. 621, 647, 652.]

That three judges of this court condemned this verdict as grossly excessive is made apparent by the opinion of Heaves, J., on the motion for rehearing in this case (245 Mo. 647). Of the position of these three judges there can be no question. That BbowN, J., likewise condemned the excessiveness of this verdict is apparent of record by his opinion filed herein (245 Mo. 652). In his opinion he says:

“I am of opinion that the verdict is excessive; but not to the extent' indicated in the opinion of my learned brother Graves, who figures the earning capacity of plaintiff’s deceased husband at only $1.25 per day. He has overlooked the evidence at pages 56 and 57 of the abstract, which shows that deceased knew how to perform other kinds of work besides that of section hand; that he had worked as a lumber-stacker, and received therefor from $1.50 to $2.40 a day.
“I do not understand that the earning capacity of a man can he measured exclusively hy the wages he is receiving when killed. If so, there would be no recovery for killing or injuring a man who was temporarily out of employment.
“While the judgment may be, and I believe is, slightly excessive, I think the motion for rehearing should be overruled, for the reason that the issue of excesiveness of the verdict was not called to our attention by either of the briefs filed by learned counsel for respondent.”

We have quoted fully, because it is now urged that our brother has not condemned the excessiveness of this verdict; because it is now urged that this opinion should be interpreted to mean that the verdict was not So excessive as to justify a reversal upon that ground alone.

If Judge BbowjYs opinion had been written in a. case where the question was the reversal or non-reversal of a judgment in this court for excessiveness-of the verdict nisi, then the opinion might bear the-construction that some of my brothers seek now to-give it, hut such is not the situation. In this case the-trial court, in the exercise of a discretion peculiar to-trial courts, had set aside this verdict. This discretion should not be disturbed hy this court under art unbroken line of decisions, unless such discretion was wrongfully exercised. When the circuit court considers the question as to whether or not it will set aside the verdict for excessiveness, the question of such gross excessiveness as to shock the conscience of the court is not a matter in issue. That is a doctrine and rule peculiar to this court, and not to the trial court. The trial court had the right to set aside the verdict for excessiveness if its' excess of justice was-but fifty dollars. Nor can this court question the dis;cretion of the trial court in setting aside the verdict for excessiveness, although that excess may not be such as to shock the conscience of this, an appellate court.

So that we say that when Judge BeowN is opinion .declares this verdict excessive, whether he said it was grossly excessive or slightly excessive, such opinion admits the right of the trial court to have set aside that verdict upon that ground in the motion for new trial. If the trial court could have done so at the time of passing upon the motion, it is immaterial here whether he assigned the proper reason or not. So that I urge in this case that a majority of this court have denounced the verdict which we have reinstated as being excessive; that such excessiveness of verdict was charged in the motion for rehearing; that had the trial court assigned such excessiveness of verdict as a reason for granting the new trial, this court could not interfere. And we further say that if we could mot interfere under such state of facts, then we cannot now rightfully interfere simply because the trial court has assigned a wrong reason.

There is one other suggestion made at this time which to my mind is untenable. It is urged that the excessiveness of the verdict was not suggested by the first briefs filed in this case. The distinguished judge who made this suggestion evidently overlooked the situation. The railway company was respondent and had the right to stand mute and rely upon the judgment of the trial court, which judgment comes here with a presumption of right. It devolved upon the appellant to show that there was wrong in the action of the trial court in granting the new trial, and under cur rulings the appellant could not show this wrong by simply showing that the trial court had assigned a, wrong reason for the new trial when a good reason therefor was contained in the motion for a new trial. Under our rulings it was not necessary for counsel to brief tbis question, because be could bave.stood mute and filed no brief at all, and imposed upon tbis court tbe duty to examine all tbe questions contained in tbe motion for a new trial. All of these things appear to us to be excuses to evade tbe real issue in tbis case, which is when four judges, or a maj@rity, of tbis court, condemn a verdict as excessive, shall a trial court be reversed because it has granted a new trial upon a motion which contained a ground charging excessiveness of verdict?

Tbe urgency of tbis court to act upon tbis suggestion at once has precluded me from going further into tbe authorities of tbis case, a matter which I regret.

For tbe reason above assigned I am not only of tbe opinion that we should consider tbe question suggested by tbe amicus curiae, but upon those sugges-gestions our judgment should be so changed as to speak tbe law.

For these reasons I dissent from tbe order and judgment of tbe court made herein. Bond and Far is, JJ., concur in these views.


author: WOODSON, J.

text:
    JACKSON McGREW v. GRANITE BITUMINOUS PAVING COMPANY, Appellant.
    Division One,
    February 12, 1913.
    1. CONSEQUENTIAL DAMAGES: Changing Grade'of Street: Ascertainment and Payment in Advance. Under the provisions of the Constitution (Sec. 21, art. 2) declaring that “private property shall not he taken or damaged for public use without just compensation . ; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested,” the consequential damages to the owner of property abutting on a street arising from a change of the grade and the elevation of the street to the new grade are not required to be ascertained and paid to such abutting owner before the work is done, if' the work is done in pursuance of valid ordinances and other legislative authority; and a contractor, who performs such work in accordance with such valid ordinances, before such consequential damages are ascertained and paid, • is not liable as a trespasser. Those words of the Constitution have no reference, so far as they relate to the payment in advance of damages, to such incidental disadvantages as may accrue to the'^ abutting lot-owner from changing the grade of an established street. The damages which they require to be paid in advance are those resulting to the property-owner when a portion of his property is actually taken for a public use, and they may be twofold in character, namely, (1) damages for the land actually taken and (2) damages that may accrue to the property not taken by reason of the taking of the part over which the highway or railroad is constructed. [Disapproving obiter dictum in Rives v. City of Columbia, 80 Mo. App. 1. c'. 176, and distinguishing Soulard v.- St. Louis, 36 Mo. 546, and Dooley v. Kansas City, 82 Mo. 444, cited in support thereof.]
    2. .-: -: After Work Done: From Contractor. The owner may recover damages to his abutting -property resulting from the raising of an established street above its natural and established grade, after the street has been raised — from the city, if the work was done pursuant to valid ordinances; and from the contractor, and not from the city, if there was no ordinance. But if the work was done by a contractor in pursuance to valid ordinances and a valid contract thereunder, the property-owner cannot recover damages from him, for then the ordinances and contract are a complete shield against the recovery of any damages from him.
    3. -: -: Ascertainment and Payment in Advaince: Statutes: Validity of Proceedings and Taxbills: Liability of Contractor. The statutes pertaining to cities of the third class (Secs. 5861-5866, R. S. 1899) required the damages resulting to abutting property from a change in the grade of an established street, to be ascertained and paid before the doing of the work, and were not invalid because they in that respect outran the Constitution, for the Legislature has power to enact valid statutes which are not inhibited by the Constitution. And those statutes meant that unless the damages were- so ascertained and paid, in the manner and at the time prescribed by them, the burden of the cost of the improvement fell on the city. But the validity of the proceeding was not affected by the fact that the damages were not ascertained and paid before the work was done, and hence a contractor who did the work in pursuance to valid ordinances and a contract, is not liable to the owner for damages resulting to abutting property from a change in the grade of the street

      Appeal from Randolph. Circuit Court. — Hon. 'Nick M. Bradley, Special Judge.
    REVERSED AND REMANDED (with directions).

      Sturdevant & Sturdevani and James A. Cooley for appellant. '
    (1) A contractor acting nnder a valid proceeding of the municipal authorities providing for a street improvement, is not liable to an abutting property-owner for consequential damages to his property resulting from bringing the street to the grade authorized by such proceeding; and, although the property-owner affected may be entitled to damages caused by such improvement under the clause of the Constitution fixing the liability of cities for “damaging property for public use,” nevertheless such liability does not fall upon the contractor, but is that of the city alone. Keith v. Bingham, 100 Mo. 300; Springfield v. Baker, 56 Mo. App. 637; Hickman v. Kansas City, 120 Mo. 116; Werth v. Springfield, 22 Mo. App. 12; Clemens v. Ins. Co., 184 Mo. 46. (2) Under section 21 of article 2 of the Constitution, providing for the liability of cities where private property is damaged for public use (prior to which there was no such liability, 107 Mo. 83), damage may be assessed and paid as provided by law, either before or after the improvement is made; the owner. also having his remedy against the city in a common law action for damages; but a failure on the part of the city to assess and pay such damages before the improvement is made will not make the contractor, acting for the city under valid proceedings, liable for such damages. And it is only when such improvement “disturbs his property or divests him of his proprietary right therein” that he is entitled to have his damages assessed and paid before the improvement is made. Clemens v. Ins. Co., 184 Mo. 46. (3) A right created by the Constitution cannot be enlarged by legislation, and the remedy provided by statute for the enforcement of same is limited in application, strictly, to tbe right so created. Vanderburgh v. Minneapolis, 98 Minn. 329; Cooley, Const. Lim. (7 Ed.), p. 99. (4) The jurisdiction of the city over its streets and its power to improve them does not depend and is not conditioned upon a prior assessment and payment of consequential damages that may result to abutting property from the making of the improvement. Jurisdiction over and control of streets is given by Sec. 1495, R. S. 1889; Sec. 5858, R. S. 1899; Sec; 9254, R. S. 1909. Wheeler v. Poplar Bluff, 149 Mo. 36. (5) Consequential damages do not have to be assessed and paid prior to the doing of the work. Clemens v. Ins. Co., 184 Mo. 46;. Haskell v. Denver T. Co., 23 Colo. 60; Vanderburgh v. Minneapolis, 98 Minn. 329; Selden v. Little Falls, 102 Minn. 358; Lorie v. Railroad Co., 32 Fed. 270; 15 Cyc. 781; Ins. Co. v. Heiss, 141 Ill. 35; Ligare v. Railroad, 160 Ill. 530; Manigault v. Springs, 199 U. S. 485. A number. of authorities, from other States, cited by respondents are based upon constitutional provisions differing from ours in the respect that such constitutions specifically provide that the taking and damaging shall be “first paid.” See following constitutions: Washington, sec. 16, art. 1; North Dakota, sec. 14, art. 1; Georgia, sec. 3, art. 1; South Dakota, sec. 13, art. 6; California, sec. 14, art. 1.

      Campbell & Ellison, Higbee & Mills, G. C. Weatherbg and A. Doneghy for respondent.
    (1) The provisions of section 21, article 2 of the Constitution are to be liberally construed for the protection of the property-owner. Lewis Em. Domain (2 Ed.), sec. 232a; City v. Straight, 20 Colo. 13; Schal-ler v. Omaha, 23 Neb. 325; Omaha v. Kramer, 25 Neb. 492; Boyd v. IT. S., 116 U. S. 616; Searle v. Lead, 10 S. D. 312; Harmon v. Omaha, 17 Neb. 548. (2) The words in question were intended to enlarge the right to compensation. Lewis Em. Domain (2 Ed.), sec. 232; Transportation Oo. v. Chicago, 99 TJ. S. 642. (3) The words “injured, damaged or destroyed,” were not used in vain and without meaning. Montgomery v. Townsend, 80 Ala. 489; Railroad v. Williamson, 45 Ark. 429; Reardon v. San Francisco, 66 Cal. 492; Denver v. Bayer, 7 Colo. 113; Rigney v. Chicago, 102 Ill. 64; Cottschalk v. Railroad, 14 Neb. 550; Omaha Co. v. Strnnden, 22 Neb. 343; Johnson v. Parkersburg, 16 W. Ya. 402; City v. Madox, 89 Ala. 181; Buffalo v. Straight, 20 Col. 13; City of Vicksburg v. Herman, 72 Miss. 211; Yandevere v. Kansas City, 107 Mo. 83; County v. Brower, 117 Pa. St. 647; Railroad v. Hall, 78 Tex. 169; Brown v. Seattle, 5 Wash. 35; Chicago v. Taylor, .125 H. S. 161. (4) Consequential damages for change of grade of street were intended by the Constitution to be first paid before the property can be disturbed or interfered with. Searle v. Lead, 10 S. D. 312; Reardon v. San Francisco, 66 Cal. 492; City v. Creen, 67 Ca. 386; Moore v. City, 70 Ca. 611; Plarmon v. Omaha, 17 Neb. 548; Rigney v. Chicago, 102 Ill. 64; Railroad v. Ayers, 106 Ill. 518; City v. Pollock, 141 Ill. 346; McElroy v. Kansas City, 21 Fed. 259; Brown v. Seattle, 5 Wash. 35; Chicago v. Taylor, 125 U. S. 161; Brighton v. Church, 96 Pa. 331; Werth v. Springfield, 78 Mo. 107; Householder v. Kansas City, 83 Mo. 488; Davis v. Railroad, 119 Mo. 180; Hickman v. Kansas City, 120 Mo. 110; Smith v. St. Joseph, 122 Mo. 643; Calveston v. Fuller, 63 Tex. 467. (5) The ascertainment and payment of damages for a change of street is a condition precedent to the right of the city to exercise the power. Searle v. Lead, 10 S. D. 312; Smith v. Sedalia, 152 Mo. 302. (6) Unless restricted by the Federal or State Constitutions, the power of the Legislature to make any law that it sees fit is transcendent, as great.as that of the British Parliament. Cass County v. Jack, 49 Mo. 196; State v. Wear, 145 Mo. 162; Ex parte Roberts, 166 Mo. 207; Cooley Con. Lim. (5 Ed.), sec. 87; Morrow v. Kansas City, 186 Mo. 675; Ex parte Berger, 193 Mo. 16. The provisions of Sec. 5861, R. S. 1899, are wise, and, if followed, will prevent a multiplicity of damage suits and will accelerate public improvement. Donovan v. Allert, 91 N. W. 441. “The right of eminent domain belongs to the State. The exercise of such is a matter entirely under the control of the Legislature, subject to such restrictions as are found in the Constitution. The necessity, the occasion, time, manner of its exercise are wholly legislative questions, with the exceptions just stated.” Loomis v. Hartz, 131 N. W. 86; Musick v. Railroad, 114 Mo. 315; Railroad v. Evans, 85 Mo. 333. (7) The provisions of Sec. 5861, R. S. 1899, as to when and how the damages shall be ascertained, go to the remedy, and not to the right to the compensation guaranteed by the Constitution. Lewis Em. Domain (2 Ed.); sec. 245; Hickman v. Kansas City, 120 Mo. 118. (8) The Legislature may change the remedy whenever it sees proper so long as it does not impair the right given the property-owner by the Constitution. Lewis Em. Domain, sec. 245; Borne-felt v. Railroad, 180 Mo. 554; Sutherland Stat. Con., sec.‘554; Cooley Con. Liim (5 Ed.), sec. 443; Bronson v. Kinzie, 1 How. 312, 14 Curtis (U. S.) 629; 20 Am. & Eng. Ency. Law (1 Ed.), 871; Springfield v. Railroad, 67 Ill. 99; Chouteau v. Railroad, 122 Mo. 375; Southern Co. v. Stone, 174 Mo. 455. (9) If the Legislature has not made sufficient provision for the payment of consequential damages for a change of grade then it did not provide due process of law and could not confer the power. Chamberlain v. Elizabethtown, 41 N. J. Eq. 43; Chaffee’s Appeal, 56 Mich. 244; In re Manderson, 51 Fed. 501; Lewis Em. Domain (2 Ed.), secs. 341, 365; Elliott Roads and Streets (2 Ed.-), sec. 197; Smith, v. Sedalia, 152 Mo. 302. (10) This court has consistently held in construing section 21, article 2, Constitution, that consequential as well as actual damages must be first paid. St. Louis v. Hill, 116 Mo. 527; McMurray v. St. Louis, 138 Mo. 616; Leslie R. E. Co. v. St. Louis, 169 Mo. 227; Hickman v. Kansas City, 120 Mo. 110; Drainage Dist. v. Richardson, 237 Mo. 77; Smith v. Sedalia, 152 Mo. 302; Chapman v. Railroad, 144 S. W. 471.
   WOODSON, J.

This case reaches us upon an order of transfer made by the Kansas City Court of Appeals, owing to a constitutional question lodged in the record.

Plaintiff owns a certain described lot in the city of Kirksville, Missouri, which said lot abuts on Jefferson street in said city for a, distance of 108 feet. The lot is on the south side of said street. After properly charging the above matters, plaintiff’s petition then thus proceeds:

“Plaintiff further states that the defendant, Granite Bituminous Paving Company, at all times hereinafter mentioned, was,* and still is, a corporation organized and existing under the laws of West Virginia; that on or about the - day of September,. 1906, the defendant with force of arms wilfully and wrongfully entered upon said Jefferson street and constructed and erected a permanent embankment of stone, concrete and other durable materials twelve inches high and twenty-four feet wide in the center of said Jefferson street, along and in front of plaintiff’s said lands, whereby the grade of said street was and is permanently raised twelve inches along the entire front of plaintiff’s said premises above the natural surface thereof, whereby plaintiff’s said premises have been damaged, and plaintiff has sustained damages in the sum of seven hundred and fifty dollars, for which he asks judgment.”

Defendant is the contractor which did the work in improving Jefferson street in front of plaintiff’s property. By its answer the defendant specially pleads certain ordinances, resolutions, and proceedings of the city of Kirksville relating to the establishment of a grade for Jefferson street, and for the improvement of such street and also relating to the contract with defendant and the approval and acceptance of the work, and then such answer thus proceeds:

“Defendant further alleges that all the acts and things done by it upon the street in front of the property described in plaintiff’s petition were done according to, in pursuance of and under the authority of the ordinances, resolution and proceedings of the said city of Kirksville and its duly constituted authorities and in no other manner and that the said city of Kirksville in the passage of the said ordinances, resolution and proceedings acted within the authority conferred upon it by the laws of the State of Mis-' souri; that all acts and things done by defendant upon the said street were done in strict compliance with its contract with said city and to the satisfaction of said city as aforesaid and that, it is not liable to plaintiff in this action for the things complained of in plaintiff’s petition.
“Defendant further alleges that the said plaintiff had full knowledge, actual and constructive, of all the proceedings had on the part of said city and the execution of said contract with the defendant and the doing of said work by the defendant upon said street, all as herein alleged; that during all of said time the plaintiff stood by without complaint or protest and without taking any steps to prevent the said city or ‘ the defendant from doing the things herein alleged and acquiesced in and ratified all the acts and proceedings on the part of the said city and all things done by this defendant, and is therefore estopped to assert the claim set forth in his petition.
“Defendant further alleges- that the ordinances, resolution and proceedings enacted by the authorities of the said city of Kirksville as herein alleged were all duly and legally enacted and that the same are now and have been, since the dates of their respective enactments as alleged, in full force and effect and remain unrepealed.
“The defendant further answering herein denies all the other allegations in plaintiff’s petition contained.
“Wherefore the defendant, G-ranite Bituminous Paving Company, having fully answered, asks to be discharged with its costs in this behalf expended.”

Reply was a general denial.

Trial was had before the court without the intervention of a jury and judgment rendered for plaintiff in the sum of three hundred dollars, from which judgment an appeal was granted to the defendant to the Kansas City Court of Appeals, and upon its motion; the cause was as above stated certified to this court. Other material matters of pleading and proof will be-noted in the course of the opinion.

I. Under the ordinance establishing the grade of Jefferson street, the street was slightly raised (something like twelve to eighteen inches in the center ter of street as claimed by plaintiff) in front of plaintiff’s property. This it is charged interfered with ingress and egress, and also tended to keep surface water on the property. The-lot sloped to the northeast, and when it is remembered: that the street is north of the lot the situation is readily grasped.

We are first called upon to determine the meaning of section 21 of article 2, Constitution of 1875-This section reads:

“That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board ■of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the oioner therein divested. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken.”

We have underscored portions calling for our notice.

Plaintiff contends that his damages should have been assessed and paid to him, before the work was done by the city through its contractor, qe£encja;tx¡- herein That for this failure the proceedings were void, and the defendant liable in trespass, for. such is the nature of this action.

Defendant contends that whilst the plaintiff can recover from the city his damages, yet the failure to have the same assessed and paid beforehand, does not invalidate the proceedings, and if the proceedings are otherwise regular, the contractor is not liable at all. If property is taken for street purposes there can be no question about the meaning of this constitutional provision. It has been too often passed upon. If, however, this constitutional provision contemplates the assessment and payment of damages of the kind here involved, prior to entering into the contract for the construction of the work, and prior to doing the work, then the proceedings have been unwarranted, .and afford no protection to the contractor.

Counsel for the plaintiff thus state their position in the brief: “Again, it has been repeatedly decided in this State that if a city proceeds to grade a street to the damage of private property -without first having ascertained the damages as provided by law, not only it, but all who join in the trespass, are joint trespassers and can be sued jointly or severally.” Under this statement and in support thereof, we are cited to the case of Reed v. Peck, 163 Mo. 333. This case does not go as far as plaintiff would have us say. There the city council of Columbia by a mere resolution (not an ordinance) directed a street to be graded, in consequence of which damage accrued to the property of one Jacobs. Reed was the administrator of the Jacobs estate, Jacobs having died pending the appeal. The suit was against the city, the contractors, the mayor and members of the street committee. Yerdict and judgment for the plaintiff were sustained. However, we search the case in vain for a discussion of the question w;e have here. The only thing in that entire opinion lending countenance to the suggestion is thus stated: “But as the council had no authority to authorize the grading in front of plaintiff’s residence otherwise than by ordinance, the resolution passed directing it was without authority, void, and afforded no protection to those who did the grading.” This is far from saying that although there was an ordinance, yet there would be liability until the damages were first assessed -and paid. This case is no authority for plaintiff’s contention upon this point.

A case from this court more nearly in point is the case of Clemens v. Insurance Co., 184 Mo. 46. That case involved property which did not abut on the street being improved and which had been changed in grade, yet it did involve the easement of ingress and egress and the question of flooding a lot with water. C-aNtt, P. J., discussed the decisions of this State and also those of other states having the same constitutional provisions. He concludes his discussion by giving’ an interpretation of onr constitutional provision in this language:

“In our opinion the Colorado, Illinois and West Virginia and Louisiana courts correctly construe section 21 of article 2 of our Constitution, which is found in the constitutions of those states in practically the same words as in ours, and in holding that where the property of the citizen is not taken and his proprietary rights not disturbed, but the damage to his property is purely consequential, he is not entitled to have the same ascertained and paid before the proposed public work is done, and is not entitled to have the work done in pursuance of valid legislative and municipal authority enjoined until his damages are ascertained and paid, but that his remedy is one at law for damages.
“Having reached’ this conclusion we hold that whether plaintiff was an abutting owner or not he was not entitled to have the improvements which were being made pursuant to an ordinance of the city and clearly within its charter powers enjoined; that plaintiff' has not brought himself within any recognized head of equity jurisdiction, and if he has any cause of action it is against the city for damages. It becomes unnecessary for us to determine other propositions urged by counsel.”

Up to this Clemens case we had never passed in terms upon the precise question. It is clear that we do pass upon it in that case, and it is also clear that the rule we there announced is made applicable to abutting property-owners. The cases from other states cited and approved in the Clemens case, are cases where the question was raised by abutting property-owners. These cases also construe constitutional provisions such as we have.

In McMahon v. Railroad, 41 La. Ann. l. c. 829, that court said: “It is true the Constitution, article 156, provides that ‘Private property shall not be taken nor damaged for public purposes without adequate compensation being first paid.’ We will not say what might be the effect of this article on the right to bond if the act prohibited involved the taking of property, the valne of which might be settled in advance. Bnt in this case*there is no taking of plaintiff’s property, which is not invaded or touched. The damages claimed are purely consequential in their nature, necessarily conjectural, and impossible of any accurate determination except after the construction of the road. To impose upon the parties the necessity of settling and paying such damages before proceeding' with the work would be to require a manifest impossibility ; and if such an injunction could not be bonded it would operate a perpetual bar to the construction of public works, which was certainly not contemplated by the Constitution.” This was an action to enjoin the construction of a railroad in the street upon which the property of plaintiffs abutted.

To like effect is Railroad v. Domke, 11 Colo. l. c. 255, whereat the Colorado court said:

“But where the fee of an individual is not sought to be taken, though an abutting lot-owner, he cannot enjoin the construction and operation of a railroad merely because the damages to his premises are not compensated in advance; provided the company act under sufficient legislative and municipal authority. [1 High, Inj; (2 Ed.), sec. 637.]
“It is contended that this doctrine ought not to be held applicable here, because of the peculiar phraseology of our Constitution. True, this instrument declares that private property shall not be ‘damaged’ without compensation. It does not, however, require that the damages, where property is not ‘taken,’ shall be computed and paid before the injuries complained of are inflicted. It provides that ‘property shall not be needlessly disturbed, or the proprietary right of the owners therein divested/ till remuneration be made. The proprietary rights of plaintiffs in the land are not divested, because such rights do not exist. There may be a disturbance of the easements connected with the use or enjoyment of their abutting lots; but needful disturbances of property may take place without prior compensation. [McClain v. People, 9 Colo. 190.] The city council, by adopting the right-of-way ordinance, determined conclusively, so far as the general public is concerned, including all interests of the plaintiffs common to the general public, that the anticipated disturbances were needful. But the disturbances mentioned in the Constitution are,- in our judgment, disturbances of property sought to be taken, or, at least, property of the same owner out of which that desired is to be carved. We do not think that the clause in question was intended to require the prior assessment and payment of probable damages for disturbances, to take place in the future, of an easement connected with the property of a party, no part of which is taken, near or adjacent to the land condemned. ’ ’

The other cases cited by this court in the Clemens case, supra, are to like effect, and we will not further encumber this opinion with excerpts therefrom. To our mind the damages to be paid in advance, within the meaning of the Constitution, are those damages which arise from the taking of private property for public use, and these damages may be twofold in character, i. e., (1) damages for that portion of the property actually taken for use, and (2) damages to the remainder of the property which may accrue by reason of the taking of the part, and the construction of the railroad or highway over the part so taken. In other words the Constitution has no reference, so far as payment in advance of damages is concerned, to such incidental damages as may accrue to the abutting lot-owner for changing the grade of a street. Such, party has his right of action against the city which has authorized by ordinance the change of grade, at such time as the consequent injuries become apparent and susceptible of reasonable ascertainment. This would not be in advance of the doing of the work upon the newly-fixed grade line. We therefore conclude that plaintiff is in error in his contention as to the meaning of this section of our Constitution, and that the trial court was in error in following the contention of plaintiff upon this point, as somewhat darkly appears from the giving and refusing of declarations of law in this case.

II. By what we have said above we do not mean that consequential damages to property abutting a street occasioned by a change of grade are not damages which fall within the constitutional provisions of section 21 of article 2, supra, but what we do mean is that they are not required to be assessed and paid in advance by reason of such constitutional provision. As said in Hickman v. City of Kansas, 120 Mo. l. c. 116:

“Prior to the adoption of the Constitution of 1875 {although the doctrine was vigorously attacked in Thurston v. City of St. Joseph, 51 Mo. 510, in the opinion by Judge Adams), it was uniformly held that any damage resulting to an abutting property-owner from a change of grade was damnum absque injuria for which the municipality was not liable, unless the injury could be shown to have resulted from the negligent or improper manner in which the work was done. [St. Louis v. Gurno, 12 Mo. 415; Taylor v. St. Louis, 14 Mo. 23; Hoffman v. St. Louis, 15 Mo. 656; Schattner v. City of Kansas, 53 Mo. 162; Imler v. Springfield, 55 Mo. 119; Wegmann v. City of Jefferson, 61 Mo. 55; Swenson v. Lexington, 69 Mo. 157; Stewart v. Clinton, 79 Mo. 603.]
“To uproot this doctrine, and provide for compensation when property is damaged, as well as when it is taken for public use, the eminent-domain clause-in the Constitution of 1865 was amended, by the Constitution of 1875, to read as quoted, and since it has-been considered the settled law in this State, that ‘when property is damaged by establishing the grade of a street, or by raising or. lowering the grade of a street previously established, it is damaged for public use within the meaning of the Constitution. [Werth v. Springfield, 78 Mo. 107; State ex rel. v. City of Kansas, 89 Mo. 34; Householder v. City of Kansas, 83 Mo. 488; Sheehy v. Railway, 94 Mo. 574; Gibson v. Owens, 115 Mo. 258.]
“It is also well settled law that this article of the-Constitution gives an absolute right and is self-enforcing, and although the Legislature may have enacted no law providing a mode for the ascertainment and payment of the compensation provided for, resort may be had by the party entitled to the right to any common law action which will afford him adequate and appropriate means of redress.”

As said, prior to 1875 the words “or damaged” were not found in our Constitution, and therefore no right was given to recover these consequential damages. The Constitution of 1865 (article 1, section 16) read: “That no private property ought to be taken or applied to public use, without just compensation.” It will be observed that this provided for no time for the payment of this just compensation. The Constitution of 1875 reads as we have herein quote,d, but that we may have the two together for comparison and discussion we quote again:

“That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders., in such manner as may be prescribed by law; and until Hie same shall be paid to the owner, or into conrt for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in sneh owner, subject to the use for which it is taken.”

It is the latter clause which has lead to the construction given it in the Clemens case, supra. The clause “the property shall not be disturbed or the proprietary rights of the owner therein divested,” is construed to mean property actnally to be taken, or the remainder of property actually damaged by the taking of a part thereof. And in giving this clause that construction it is further held that the previous clause “and until the same shall be paid to the owner” refers to that class of damages growing out of the actual taking of property as above limited and defined, and not to mere consequential damages such as are involved in this action.

In other words, the effect of the Clemens case, supra, and those from other states along the same line, is to divide the damages for which compensation is given by the Constitution into two clauses (1) those which must be assessed and paid beforehand, and (2) those which are recoverable after the work has been done, and the damages more easily ascertainablé.

As suggested in the Louisiana case, supra, this appears to be the reasonable construction. These consequential damages cannot be easily ascertained until after the work is done, and the actual situation is made plain. So that whilst, as indicated by G-astt, P. J., in the Clemens case, there is language in a few of our cases (not called for by the cases) which might lead to a different conclusion, yet we think the construction we have given this constitutional provision is the one more consonant with the good sense of the thing.

For instance in Rives v. City of Columbia, 80 Mo. App. l. c. 176, it is said: “It appeared on tbe trial that there was no ordinance (although the petition stated there was) authorizing’ the grading, and the city was therefore properly held not liable. [Werth v. Springfield, 22 Mo. App. 12.] But if there had been a valid ordinance directing the' grading without first, having taken, measures to ascertain and pay the damage, the city would have been liable. [Soulard v. St. Louis, 36 Mo. 546; Dooley v. Kansas City, 82 Mo. 444.] In Werth v. Springfield, supra, and cases cited, there was no action taken of binding force on the city. But in the Soulard and Dooley cases the city acted in a manner binding upon it for the consequences of the trespass.”

The Hives case was a street grading ease, and the property was not actually taken. The first part of the quotation is all right, because the city only becomes bound by its ordi-Ain . . nance. As to the appropriation of private property it can only speak through an ordinance. But this case does announce the broad doctrine that the consequential damages to property occasioned by changing the grade of a street must be first ascertained and paid, or the city and other parties doing the work under the ordinance would be liable as trespassers. It will be noticed that the court relies upon the Soulard and Dooley cases for its pronouncement of the law. In both of those cases there was an actual taking and appropriation of property for public use. What was said in those cases must be referred to the subject of the remarks. So we might call attention to other cases in which, as in the Eives case, unguarded language has been used in street grade cases.

III. Plaintiff next contends that by statute these damages are required to be assessed and paid prior to the doing of the work, and that the failure to comply ment^Re ufred bjf státutes.re with this statute invalidates the whole proceeding and renders the defendant liable in trespass. The statute relied upon by plaintiff is the last clause in section 5861, Revised Statutes 1899, the statute in force at the time of this proceeding. Such clause reads:

“And when the grade of any street or alley shall have been once established by ordinance, it shall not be lawful to change such grade without making compensation to all persons owning real estate on such street or square, avenue, alley or other highway, who may be damaged by such change of grade, to be determined and governed in all respects, with reference to benefits and damages, as is provided in this article.”

It will be noted that this section says that such damages are “to be determined and governed in all respects, with reference to benefits and damages, as is provided in this article.” The laws we are now discussing relate to cities of the third class. Going to section 5864, Revised Statutes 1899, the manner of ascertaining damages for property actually taken is thus outlined:

“And it becomes necessary for the purpose to take private property described in such ordinance, just compensation shall be paid therefor to the owner or. owners of such property, which the mayor shall be caused to be ascertained and assessed by a jury of six disinterested freeholders of the city, by proceedings prescribed by ordinance, and as in this article provided. The mayor shall have' and exercise the power of a circuit court for conducting such proceeding, for the preservation of order and enforcing process issued in the course of proceedings, and may summon and compel the attendance of witnesses and jurors, and fine and commit any person guilty of misdemeanor or contempt, preside at the investigation and pass on the competency of evidence, and instruct the jury on questions of law arising thereon. The city clerk shall issue process, and attend and record orders made by the mayor.”

In section 5865, it is said:

“When any ordinance provides for taking* private property, as authorized in the preceding* section, the council shall by ordinance, before any steps are taken to impanel a jury, determine and prescribe the limits within which private property shall be deemed benefited by the proposed improvement, and be assessed and charged to pay compensation therefor; and thereupon the city engineer shall make out and deliver to the mayor a statement, by plat, map or otherwise, containing a correct description of the several lots or parcels of property- deemed benefited and to be assessed to pay compensation, as provided by ordinance as aforesaid, and containing* also the names of the ■owners or claimants of such lots or parcels of property, or of any interest or estate therein, who may be such at the time of the passage of the ordinance providing for the taking* of such property. The mayor shall thereupon, by order, appoint a day or place for impaneling a jury to ascertain the compensation for the property to be taken, and to make assessments to pay the same.”

In the next section, 5866, we find this language:

“The jury shall first ascertain the actual damages done to each person or corporation in consequence of taking their property for such purposes, without reference to the proposed improvement, as the just compensation to be made therefor; and second, to pay compensation, assess against the city the amount of benefit to the city and public generally, inclusive of benefits to any property of the city, and against the several lots and parcels of private property deemed benefited, as determined according to the last section, by the proposed improvement, the bal-anee of such compensation — each, lot or parcel of ground to be assessed with an account bearing tbe same ratio to snob balance as tbe benefit to each lot or parcel of ground bears to tbe whole benefit to all tbe private property assessed. Parties interested may submit proof to tbe jury, and tbe latter shall examine, personally, tbe property to be taken and assessed. Tbe verdict of tbe jury shall be signed by each .juror and delivered to tbe mayor, and contain a correct description of each lot or parcel of property to be taken, tbe names of tbe owners or claimants, and tbe value thereof, and also tbe amount assessed against tbe city, together with a correct description of each lot or parcel of private property assessed, and tbe amount assessed against tbe same, and tbe names of tbe owners thereof.”

Then follows section 5868, with this among other provisions:

“Tbe mayor shall, after tbe rendition of tbe verdict, report tbe same, together with tbe proceedings under tbe last section, to tbe council; and if tbe same be not confirmed within sixty days from tbe making of such report, tbe proceedings and verdict shall be void, and new proceedings may be instituted at any time after tbe expiration of eight months from tbe making of such report. If tbe council, by ordinance confirm tbe verdict and proceedings under tbe two preceding sections, within sixty days from tbe report of tbe mayor, an appropriation shall be made to pay such sum as has been assessed against tbe city; and tbe amounts assessed by- the jury against the property shall be a lien on tbe several lots and parcels of. property charged, from tbe day tbe ordinance providing for tbe improvement takes effect until paid, and, if not paid within thirty days, after tbe confirmation, shall bear interest at tbe rate of fifteen per cent per armum from tbe confirmation of tbe verdict, and shall be collected by tbe city as provided by ordinance by suit or otherwise, as any other special tax, or by special execution as follows.”

Said section 5861 provides that the damages therein mentioned shall be ascertained and paid for in the manner prescribed for ascertaining and pay the damages done to property when taken under condemnation proceeding for public purposes.

The defendant urges that said section is beyond the scope of constitutional authority, and is, therefore, null and void. That is, counsel for defendant insists that said statute is unconstitutional for the reason that it requires the city to assess and pay the damages, in advance of the doing of the work authorized by said section.

There is no doubt but what that statute does require said damages to be assessed and paid prior to doing said work, nor is there, at this day, any doubt as to the meaning of said constitutional provision when applied to the class of damages involved in this case; that is, it does not, as previously shown, require this class of damages to be assessed and paid in advance to doing said work, nor does it prohibit the Legislature from making such a requirement, if, in its legislative wisdom it sees proper to so do.

In the absence of constitutional limitations the Legislature is supreme and may enact any law which in its wisdom it may deem best for the ‘ residents of our municipalities and the people of the State at large. In other words, the Legislature represents the sovereign people, who have unlimited power to enact laws, except as limited by the State and Federal constitutions; and in the absence of such limitations all enactments of the Legislature are valid and binding, however unreasonable and oppressive they may be. This is elementary .-

Returning to said section 5861: Conceding that it required the damages to be assessed and paid for prior to the doing of the work mentioned therein, also that it was not done, then how stands the ease? In our opinion that statute was enacted for the purpose •of placing this class of damages upon the same footing with those damages which are done to the remaining property after taking a part thereof for public purposes, as provided for in said section 21 of article 2 of the Constitution. In other words, to piece out the Constitution and compel cities of the third class to assess and pay both classes of said damages in the same manner. This was for the purpose of correcting a great injustice that had grown up in some of the cities of the State, by their failure to have the benefits and damages arising from this class of work assessed and paid for before the work was done. By such neglect, no benefits were assessed against the property benefited thereby, and consequently all damages did naturally fall upon the city for doing the work contrary to law. For instance, in the city of St. Joseph, the failure to assess the damages and benefits done to property abutting such improvements prior to making them, resulted in alleviating' all such property from the as- . sessment of all benefits received thereby and rendered the city liable for all the damages done to all such property in consequence thereof, which, if my memory correctly serves me, aggregated about $200,000. Suits were brought therefor, and judgments were rendered therein.

When those matters came before the circuit court, the writer had the honor of presiding over Division No. 1 thereof, and was in that way made familiar with all the facts.

So unjust and oppressive did that matter become to the city, and to the taxpayers thereof, the public demanded relief therefrom, and in response thereto, Major Samuel P. Houston, the then city counselor, with the assistance of the writer, drew an amendment to the charter of said city, section 5665, Revised Statutes 1899, which in so far as this case is concerned, was substantially the same as said section 5861 now is, and had it presented to the Legislature at the session of 1903. That section was first enacted in 1885. [Laws 1885, p. 59.] On.February 10, 1903, that section was so amended as to read as follows:

“No street, alley or other public place in any city of the second class shall be graded so as to change the existing grade thereof, unless the property-owners to be affected thereby petition therefor and waive all claim to damages on account thereof, or unless such damages shall be first ascertained and paid as hereinafter provided, and any special taxbills issued for grading in violation of this law shall be void.” [Laws 1903, p. 74, sec. 2.] This act is now section 9050, Revised Statutes 1909.

By an examination of said section 5665, it will be seen that the amendment of 1903 consisted of the provision declaring the taxbills issued for work done in violation thereof should be null and void.

The judgments for the $200,000 damages against the city of St. Joseph were rendered notwithstanding the existence of section 21 of article 2 of the Constitution, aud section 5665, Revised Statutes 1899, for the reason that the circuit court followed the rulings of the court in the case of Keith v. Bingham, 100 Mo. 300, and the numerous cases following it.

In the case of Gribson v. Owens, 115 Mo. 258, the first case which raised the question as to the validity of taxbills issued in violation of said section of the charter of the city of St. Joseph, the circuit court held them invalid, but upon appeal to this court, the judgment of the circuit court was reversed, and in doing so the court used this language:

“For ascertaining and providing for the payment of such consequential damages, the Act of 1885 was clearly intended, not as a repeal of section 4781: but as supplementary to it. It cannot reasonably be contended that macadamizing a street in a careful manner upon an established grade would entitle abutting owners to damages. The city of course proceeded at its peril in making the improvement without the assessment of damages, and rendered itself liable for any injury to the property resulting from any change in the grade of the street, but the validity of the proceedings was not thereby affected. [Keith v. Bingham, 100 Mo. 306.]”

And in the Keith-Bingham case, supra, Barclay, J., in spealdng for the full court, used this language:

“It is claimed by defendant that the taxbills in suit were issued in violation of that section of the Constitution which declares ‘that private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed.’ [Constitution 1875, art. 2, sec. 21.]
“Looking at this defense from the most favorable standpoint, it is evident that it is untenable. The sec-' tion of the Constitution just quoted, refers to, and is intended to regulate, the exercise of the right of eminent domain, whereas special assessments for local improvements, such as the taxbills before us, are referable to, and sustainable under the taxing power. This distinction is well recognized both here and elsewhere in the United States. [Garrett v. St. Louis (1857), 25 Mo. 505; Lewis on Eminent Domain, sec. 5.] If the taxing power has been called into play in the mode required by law for the purpose of paying for a local improvement, such as paving or grading a street, it is no defense to a bill issued therefor to say, as is said here, that the street, or the improvement, damaged and did not benefit the property, though, if such were the fact, the party injured might have his action (on a proper showing) under the Constitution for such injury.”

This language was quoted with approval in the case of Drainage District v. Richardson, 237 Mo. 49, l. c. 71. The same doctrine has been repeatedly announced by this and other courts. See cases cited in last case.

After the decision in the Gibson-Owens case, supra, the judgments against the city of St. Joseph began to pile up, which called forth the legislation previously mentioned.

In the light of this legislation, and the decisions of this court regarding such damages, I am unable to understand how it can be logically contended that work of this character, done in the streets of a city of the second or third class, over which it has exclusive possession and control, done in pursuance to ordinances duly enacted, is illegal and wrongful, when this and all other courts so far as I know, hold that the taxbills issued in payment of said work are valid and enforceable, notwithstanding the damages were not first ascertained and paid for.

"While I have no doubt whatever as to the constitutionality of section 5861, Eevised Statutes 1899, and believe as previously stated, that it was enacted to piece out the Constitution in the manner before stated, as far as was possible, yet I do not think it has any greater or more binding force in regard to consequential damages to property from street improvements, than section 21 of article 2 of the Constitution has in reference to damages incident to the remaining property left after taking a part thereof, under section 21 of article 2 of the Constitution, for public purposes.

Both require such damages to be first ascertained and paid, but neither says the work of making such improvements is illegal or wrongful or that it should not be paid for, in the absence of a statute similar to the amendment of the charter of the city of St. Joseph, or rather of the charter of cities of the second class.

In the Gribson-Owens case, supra, it was' expressly held, that, notwithstanding section 5665, which is fully as broad and sweeping as is section 5861, the statute here under consideration, such improvements ‘ ‘ are referable to, and sustainable under the taxing power,” and were therefore lawful, and that the taxbills issued in payment thereof were valid and collectible.

In fact,'the courts of this State, and of others, uniformly hold that notwithstanding said constitutional and statutory inhibitions, street improve-me:rrks made in violation thereof are legal and that taxbills issued in payment thereof are valid, and enforceable, but add, as in the language of this court in the Gribson-Owens case, page 267, “The city of course proceeded at its peril in making the improvement without the assessment of damages, and rendered itself liable for any injury to the property resulting from any change in the grade of the street, but the validity of the proceedings were not thereby affected.”

If that is a correct enunciation of the law of the subject, of which there is no question, then how can it be that the contractor who did the work in obedience to the ordinances of the city, is liable for the damages resulting from making the improvements'? The mere asking the question, answers it in the negative.

Neither the framers of the Constitution nor the lawmaking body of the State entertained any such idea when said section 21 of the Constitution was framed, or when said section 5861 was enacted.

Both were intended to secure to the property-owner his property and property rights, by prohibiting it from being taken or damaged until he was paid therefor, which clearly means that he has the unquestionable right to resort to injunctive remedies to stay the hand of the city until the property taken is paid for and compensation made for the damages, that would be done; and the latter also for the purpose of assessing the benefits and damages done by the improvements against the various pieces of property abutting the improvements.

If there was a charter provision of the character of section 5861, Eevised Statutes 1899, in force in the city of St. Louis, at the time the case of Clemens v. Insurance Co., supra, was tried, Judge G-aNTt did not refer to it in that case. Liad there been such, and had his attention been called to it, in the light of the cases cited, the conclusions reached therein, would, in our opinion, have been quite different; But be that as it may, we are firmly of the opinion that neither said constitutional provision, nor said statutory enactment, was designed to make unlawful the work and improvements, made on the streets of the city of Kirks-ville, in pursuance of ordinances duly enacted. Had that been the design, there would have been some such provision found therein as that contained in the amendment of the charter of the city of St.. Joseph.

If the plaintiff’s property was being damaged by the improvements being made, then he should have enjoined the city from proceedings with the work, or have sued the city for the damages done, just as was done in the case of Householder v. Kansas City, supra, and many other cases of like character, and especially those against the city of St. Joseph, and should not have stood gently by until the work was done, and then sue the contractor who in no manner or form touched his property or damaged it, for the reason that he was acting for the city, and not for himself. The ordinances thereof, and his contract made in pursuance thereof, is a perfect shield against any and all litigation that has or may be instituted against him on that account.

There are a number of other questions presented and discussed in briefs of counsel, but the view we have taken of the case renders it unnecessary for us to pass upon any of them.

We are, therefore, of the opinion that the judgment should be reversed and remanded to the circuit court with directions to proceed with the case, as herein expressed.

It is so ordered. All concur, except Vallicmt, G. J., absent; Graves, J., concurs in an opinion to be filed.

Decision rendered December 31,1912. . Motion for rehearing filed; motion overruled February 12, 1913. No opinion by Graves, J.


author: BROWN, P. J.

text:
    THE STATE v. WILLIAM MITTNER, Sr., Appellant.
    Division Two,
    February 19, 1913.
    1. MANSLAUGHTER: Sufficiency of Evidence. Defendant and deceased engaged in a quarrel over a watch., which defendant claimed as the result of a raffle. Defendant invited deceased to come down from the porch in front of deceased’s saloon into the street and fight him. Deceased remarked, “You are & fool,” and went hack into his saloon; whereupon, defendant said to his two sons who were present, “Boys, go get your gun; he has to go hack after something, he won’t fight fair.” One of the hoys started home for his gun, and defendant and the other supplied themselves with stones and remained in front of the saloon. In a very short time deceased and his barkeeper came out on the porch both unarmed,and defendant, challenged them to a fist fight. The barkeeper accepted the » challenge, but deceased remained silent. Defendant asked the barkeeper if he would fight fair, and on receiving an affirmative answer threw down his rock, and after requesting those present to see that he had a fair deal, entered upon the fist fight, which progressed vigorously for several minutes, when defendant’s son wlio was present started up towards the combatants with a stone in his hand, whereupon deceased stepped in front of him and holding up his hands towards him said,. “Stand back.” At this point the other son returned with the gun, and pointing it at deceased threatened to shoot him. Deceased said nothing, but walked • towards his saloon, and as he stepped on the porth' the son shot him in the neck, killing him instantly. Defendant’s witnesses testified that when deceased first started back into the saloon défendant said to him, “Go get your damned gun, you won’t fight fair nohow.” Held, that there was substantial evidence to sustain a verdict of murder in the second degree, since defendant was the inciting cause of the murder, but defendant cannot complain that he was convicted only of a lower degree of the crime, to-wit, manslaughter in the second degree.
    2. WITNESS: Credibility. The veracity of all the witnesses is. to be determined by the jury.
    3. MANSLAUGHTER: Entering into Fist Fight: Intent. Proof that defendant ifivited deceased to enter into a fist fight with him, and on defendant’s refusal stated to his son seventeen years of age that deceased would not fight fair and to go get his. gun, and after the son’s departure he and deceased’s bartender engaged in a fist fight and were so engaged in the presence of deceased when the son returned and shot deceased, although defendant may not have wished his son to kill deceased and may not have intended to do anything more than to whip de- . ceased in a fair fist fight, is sufficient to authorize an instruction for manslaughter, and a conviction.
    Appeal from St. Francois Circuit Court. — Hon. Peter H. Much, Judge.
    Appikmed.

      Benjamin H. Marbury for appellant.
    Some degree of participation by William Mitt-ner, Sr., in tbe act of William Mittner, Jr., in killing-Tabu, must be shown in order to establish criminal liability; something more than the mere presence of Mittner, Sr., even accompanied with his approval of' the act done, is necessary to make Mittner, Sr., an aider and abettor; Mittner, Sr., must have materially participated, either in the plan or its execution. State-y. Darling, 216 Mo. 45; State v. Ostman, 147 Mo. App. 422; 1 McClain on Criminal Law, secs. 194 and 197.

      Elliott W. Major, Attorney-General, and Ernest A. Oreen, Assistant Attorney-General, for the State.
    (1) The evidence was ample to sustain the verdict of the jury as to this appellant. State v. F orsha, 190 Mo. 331; State v. Walker, 98 Mo. 95. One who is present aiding and abetting others in the perpetration of an offense is guilty as a principal in the crime, although he did not personally participate in its commission. State v. Nelson, 98 Mo. 414; State v. Miller, 100 Mo. 606; State v. Brown, 104 Mo. 374; State v. Crab, 121 Mo. 554. (2) Under the testimony of the defendant, Mittner, Jr., when taken into consideration with all the other testimony in the case, the verdict- finding appellant guilty of manslaughter in the second degree can be upheld, although the preponderance of the evidence showed him to be guilty of murder in the second degree. Sec. 4461, R. S. 1909-State v. Blunt, 91 Mo. 508; State v. Dierberger, 9& Mo. 676.
   BROWN, P. J.

Convicted of manslaughter in the-second degree, defendant appeals from a judgment of’ the circuit court of St. Francois county sentencing him to serve three years in the State penitentiary.

The evidence discloses a controversy between defendant and one William Iahn about the raffling of a watch. The deceased, William Iahn, kept a saloon in the village of Frankclay, Missouri, and employed Tom Gould as his barkeeper. There also resided at the same village the defendant, William Mittner, Sr.,, and his two sons, Casper, aged eighteen and William^ Jr., aged seventeen.

The deceased and the barkeeper raffled a watch,, at which one Patterson took several tickets or chances.. Patterson deposited Ms tickets with defendant, and then went to another town. One of Patterson’s tick- • ets drew the watch, but deceased and his barkeeper refused to deliver it to defendant, claiming they had instructions from Patterson to hold it for him.

The testimony on the part of the State is to the effect that on the evening of May 4, 1911, several days after the watch raffle, a number of hoys were pitching horseshoes on the street near the saloon of deceased. The defendant and his two sons were present. The deceased came out on the porch of his saloon and defendant was heard to say to him: “You fellows don’t want to do what is right about that.” (Presumably referring to the watch raffle). Deceased replied: “I have told you about that, I won’t give the watch to you or any other person until I find out the right one to give it to.”

The defendant’s sons hearing the quarrel walked down near their father. Defendant invited deceased to come down off of the porch and fight him. Deceased remarked to defendant: “You are a fool,’’ and walked back into his saloon; whereupon defendant said to his sons: “Boys, go get your gun; he has to go back after sometlfing, he won’t fight fair.” When this statement was made defendant’s son, William Mittner, Jr., started home for his gun, and defendant and Ms other son armed themselves with rocks and remained in front of the saloon.

In a very short time deceased and his barkeeper, Gould, came out on the porch. Both were unarmed. Gould stated that he would not give up the watch until he found out who ought to have it. Defendant then challenged both Gould and deceased to a fist fight. Gould accepted the challenge, but deceased remained silent. Defendant asked Gould if he would fight fair, and, upon receiving an affirmative answer, threw down Ms rock, and, after requesting those present to see that he had a fair deal, entered into a fist fight with Gould. The fight progressed vigorously, but without special interest for several minutes when defendant’s son Casper started up towards the combatants with a rock in his hand; whereupon the deceased stepped in between them and held his open hands out towards Casper Mittner, saying: “Stand back.” At this juncture defendant’s son William Mittner, Jr., returned with a shotgun, which he pointed at defendant and threatened to shoot him. Deceased said nothing, but walked towards his saloon. When he stepped up on the porch of his saloon William Mittner, Jr., shot him in the neck, killing him instantly.

Defendant being engaged in a fight with Gould did not notice the arrival of his son, but when told that his boy had killed Iahn he quit fighting Gould and exclaimed: “Oh, my God! kill me; oh, my boy, oh, my boy!”

At the time he was killed, deceased carried no deadly weapons, and there is no evidence that he desired to fight defendant or any one else.

Defendant testified that he did not tell his boy to get the gun and did not want Iahn killed. Other evidence on the part of defendant is only different from that given by the State’s witnesses in one material point, to-wit: defendant’s witnesses testified that they did not hear defendant tell his .boys to go after the gun, but that after the first quarrel, when deceased went back into the saloon, they heard defendant say to deceased: “Go get your damned gun, you won’t fight fair nohow.”

One of the witnesses testified that when told that his son had killed Iahn defendant exclaimed: “For God’s sake, what did he do it for? I would rather have both arms cut off than that. I wish it was me instead of Iahn.”

Another witness . testified that defendant exclaimed : ‘ ‘ Oh, my God, my boy will be hung, and I hope I will be hung with him!”

Defendant and Ms two sons were jointly indicted for murder in the first degree. A nolle prosequi was entered as to Casper Mittner. William Mittner, Jr., was convicted of murder in the second degree and given twenty years in the penitentiary and does not appeal. The father (defendant), who was jointly tried with his son (William Mittner, Jr.), was found guilty of manslaughter in the second degree and his punishment assessed at three years in the penitentiary.

Appellant makes no complaint against the instructions or that his punishment is excessive. He places himself squarely on the assignment that ^ie evidence does not warrant a conviction of any offense, and that the judgment should be reversed and the appellant discharged.

We have read the record very carefully and while the testimony is conflicting, there is substantial evidence to sustain even a verdict of murder in the second degree, had the jury seen fit to convict defendant of that crime. Of course, defendant cannot complain that he was convicted of a lower degree of crime than the evidence warranted. [Sec. 5115, R. S. 1909.]

Two witnesses testified positively that when deceased abandoned the first quarrel and walked back into his saloon, defendant told his sons to “go get your gun;” that defendant had to go back after something and would not “fight fair.”- The son who went after the gun and did the killing did not hear any threat made by deceased (if such threat was ever made); and, consequently, could not reasonably have anticipated any attack by deceased from the mere fact that the latter walked into his own saloon.

If it had not been for the request of the father to get the gun, coupled with the further groundless charge that deceased had gone back to get something and “won’t fight fair,” the son would most likely have remained in the peace and no one would have been killed.

The father’s words'were calculated to, and doubtless did, inflame the young man’s mind and caused him to believe that deceased had some kind of a deadly weapon in his saloon with which he would assault the defendant (his father); consequently, when the son returned with the gun and'saw deceased starting to return to the saloon, his father’s words were ringing in his ears, and he thought' he ought to Mil deceased and thus prevent him from securing any arms or weapons.

We do not see anything else in the record which could have spurred the young man on to commit such an unprovoked murder. It is manifest that deceased was not only unarmed but had no desire to fight anyone, either with fists or weapons. The exclamations or remarks of defendant when he ascertained that his son had killed deceased (“My son will be hung and I hope I will be hung with him”) tend to show that defendant suddenly realized that his request to get a gun and his statement that deceased would not “fight fair” had caused a murder to be committed.

Of course, the fact that defendant threw down Ms rock and engaged in a “fair fist fight” with Gould tends to indicate that he would have been satisfied, if given an opportunity, to whip deceased with Ms fists, but he seemed determined to have a fight of some kind at any cost. This indicated a bad spirit. We have no way of knowing precisely what defendant intended in bringing on the hostilities, but his unfortunate act in sending Ms boy for the gun and indicating to the boy that deceased was seeMng to use a deadly weapon were the very things which produced the tragedy.

The veracity of all the witnesses who testified was a question for the jury. If the witnesses for the State are believed, defendant unquestionably P11^ uiotion the very machinery which caused the death of an inoffensive, unarmed citizen. When we consider the youth of defendant’s son, we must conclude that what the father said to him bore exactly the kind of fruit which a reasonable person would expect it to bear, and, therefore, it is meet and proper that the father should be punished for the crime which he induced his son to commit.

The case of State v. May, 142 Mo. 135, is unlike the one at bar and is no authority in this case, for the reason that in the May case the inflammatory language, “Catch him and kill him,” was used by the man who did the killing; consequently, the man to whom the inflammatory words were spoken, but who did not kill anybody, was held not liable for the homicide. The views expressed in the cases of State v. Nelson, 98 Mo. 414; State v. Miller, 100 Mo. 606; State v. Brown, 104 Mo. l. c. 374, and State v. Crab, 121 Mo. 554, are without weight, because those cases are likewise wholly different from the one now in judgment.

In the case of State v. Darling, 202 Mo. 150, l. c. 170, the court approved an instruction which author- ized a conviction of manslaughter upon proof that defendant went with his brother to where an enemy was working, intending only to whip the enemy with their fists, but the brother resorted to a deadly weapon resulting in a homicide.

There is no reversible error in the record and the judgment of the trial court is affirmed.

Far is and W alicer, JJ., concur.