text:
    CITY OF ST. LOUIS, Appellant, v. CLARENCE WATERMAN et al.
    Division Two,
    March 4, 1919.
    CONDEMNATION: Failure 'to Describe Property or Interest: Dismissal: ■ Jurisdiction. A proceeding brought by the City of St. Louis to open a street, wherein the petition sets forth the ordinance authorizing it and sufficiently describes its termini, course and width, cannot be dismissed for that neither the ordinance nor the petition sets forth a description of the property and estate or interest of some of the defendants who file a motion to dismiss. Although the charter requires that the petition contain “a description of the property and the estate or interest in each instance which the city seeks to appropriate or damage,” and the petition because of an omission of those necessary recitals does not state a cause of action and is bad on demurrer, the court has jurisdiction of the subject-matter, and a description of the street to be opened gives it jurisdiction over- the particular action, and the defect in the description of a defendant’s property or a failure to state his interest therein can be cured by amendment.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    RvE-RSED AND REMANDED.

      Chas. A. Daues, H. A. Hamilton and G. Wm. Senn for appellant.
    (1) The .allegation of interests in the land to be appropriated, though, erroneously set out in its petition by the condemner, would not alter the standing of and cause of action by the condemner; the respective rights of the defendants to the awards made -wonld attach none the less in accordance with the facts shown and with the true interests in the land taken. St. Lonis v. Barthel, 256 Mo. 276. (2) The particular description of each property and of the various estates and interests therein, if such allegation thereof in the petition, by interpretation of the city charter, he required, is yet not jurisdictional in character. St. Louis v. Franks, 78 Mo. 42; Thompson v. Ry. Co., 110 Mo. 158; Union Depot Co. v. Frederick, 117 Mo. 147; Kansas City v. Smart, 128 Mo. 289. (3) The practice in actions for the exercise of eminent domain follows the general rules of practice, when not governed by special statutory or charter provision in the particular instance; i. e., upon petition filed stating* defectively or loosely an action in condemnation for public use, the practice would not dictate a categorical dismissal of the petition — upon any theory of legal requirement of the condemning agent to present, at the peril of sacrifice of its cause of action, an original petition, perfect and invulnerable even in the particulars; instead, the practice would afford opportunity to supply form or ,substance in accord with the fact of an existing cause of action, before dismissing for a failure or refusal so to supply. St. Louis Ry. Co. v. Fowler, 113 Mo. 467; Leavenworth Bridge Co. v. Atchison, 137 Mo. 230 - St. L., K. & N. W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 407; St. Louis v. Lang, 131 Mo. 419.
   WHITE, C.

This is a condemnation proceeding-brought by the City of St. Louis for the purpose of opening a street. Thirty or forty individuals, corporations and trustees, are named as parties defendant.

The petition sets forth that on the 25th of July an ordinance, No. 28108, went into effect in the ' City of St. Louis, to establish and open a street to be known as Kingsbury Boulevard extending from Clara Avenue to De Baliviere Avenue. The ordinance is set out in. the petition. Section 2 of said ordinance is as follows:

“Section Two. A street to be known-as Kingsbury Boulevard, extending from Clara Avenue to De Bali-viere Avenue, as hereby established as a public highway one hundred feet wide, the centre line thereof to run fifty feet north of and parallel to the north line of property now or formerly owned by Sarah E. Simmons, Emma P. Simmons and Susan M. Simmons, and the north line of property now or formerly owned by Stewart Shallcross Eeal Estate Company, in City Block numbered thirty-eight hundred and seventy-five, west.
“The said centre line being distant about four hundred and ninety feet north of the north line of Waterman Avenue, measured along the east line of De Baliviere Avenue.”

The petition then alleges that it is necessary for the purpose of opening said Kingsburg Boulevard as provided in the ordinance, No. 28108, to appropriate, condemn, take and damage private property for public use, pursuant to the provisions of said ordinance; and further: ‘ ‘ That the defendants named in the caption of this petition respectively are the owners of, or claim some interest in, the- several lots or parcels of land included in the property hereinbefore described and sought to be condemned, appropriated, taken or damaged for the purposes of the ordinance aforesaid.”

The petition then prays that process issue, that commissioners be appointed to assess and award the value of property proposed to be taken “and other damages which the respective owners or persons claiming an interest in” the lots and parcels of land included in the premises heretofore described may severally sustain, and also to assess benefits against all lots or parcels of property or interest therein which will be especially benefitted by the establishment of said street; that the plaintiff have judgment for the condemnation of the property hereinbefore described, etc., and that plaintiff may have judgment against the several lots or parcels of property, or interest therein, for assessment of special benefits, etc.

To this petition the defendants, who are respondents here, Clarence Waterman, Mary Virginia Tompkins, Adele K. Worthington and George T. Worthington, her hnsband, and Winifred Waterman, filed their joint answer. This answer was afterwards withdrawn with leave and each of the five named defendants filed a motion to dismiss the plaintiff’s petition. The ground presented in each motion is the same, to-wit: •

“That said petition does not set forth a description of the property and estate or interest of this defendant therein which the plaintiff seeks to appropriate or damage.”

These motions were filed on the 15th day of May, 1916, and on the 17th day of May the court made this entry:

“It appearing to the court that heretofore, to-wit, On the 15th day of May, 1916', the separate motions of defendants George Y. Worthington, Máry V. Tompkins,' Clarence Waterman, Winifred Waterman and Adele K. Worthington to dismiss plaintiff’s petitions were sustained, it is now therefore considered and adjudged by the court that the plaintiff’s cause of action be and the same is hereby dismissed for want of jurisdiction, and that the defendants have and recover of plaintiff the cost of this proceeding and that execution issue therefor.”

Thereafter, at the same term, the plaintiff city filed its motion to set aside the order of dismissal and grant the order of rehearing. This motion was overruled and the plaintiff appealed.

I. The proceeding in this case is under Section 1 of Article 21 of the Charter of St. Louis adopted in 1914. This section provides for “condemnation of or damage to private property.” It sets forth that the Board of Aldermen may provide by ordinance for the appropriation of private property or any easement or use therein for public use and the City Counsellor in the name of the city shall apply promptly, “to the circuit court of the. Eighth Judicial Circuit, or to any judge thereof in vacation, by petition setting forth the general nature of the public use for which the property is to- be appropriated or damaged, a description of the property and the estate or interest therein in each instance which the. city seehs to appropriate or damage, and praying- the appointment of three disinterested commissioners to assess damages and benefits as hereinafter provided, to which petition the owners shall he made defendants by name, if known, and if unknown, by describing their claims or interests in such property and how derived by them. If the action affect the property of persons under guardianship the guardians shall be made defendants; if an estate or interest less-than a fee, the persons having the next vested estate in remainder or reversion shall be made defendants or their interests will not be bound; but only persons in actual possession of and claiming title or who have record title appearing upon the proper records of the city to property affected, need he made defendants, Notice of the filing of the petition, describing the property to be taken or damaged, shall be filed and recorded in the office of the Recorder of Deeds, otherwise purchasers of such property- shall not be hound by the proceedings under the petition.”

Section 2 of the article provides for the issuance of summons and the manner of service upon the different parties; Section 3 of the article provides for the appointment of commissioners and the assessment of damages and benefits.

The petition does not describe any property of the individual defendants to the action. It sets out the direction, distance and width of the street which it was proposed to establish as stated in the part of the ordinance quoted. Individuals having real estate through which the street would run or which it would affect might possible gather that they would he affected by the opening of the street, hut there being no property described, as provided by the very terms of Section 1, Article 21, of the Charter, the petition fails to state a cause of action. It would have been bad on demurrer. If however, enough is stated to give the court jurisdiction of the cause which is attempted to be set forth and enough so that it could be amended on application to the court, then the trial court erred in dismissing the proceeding.

It will be noticed that the motion filed by these respondents did not simply ask that the case be dismissed as to them or each of them, but asked that the proceeding be dismissed and the order of the court sustaining the motions dismisses the entire proceeding for want of jurisdiction, not only as to these defendants, but as to all other defendants.

Jurisdition of the subject-matter was defined by this court in the case of St. Louis & San Francisco Ry. Co. v. Lowder, 138 Mo. 533, l. c. 536, as follows: “Jurisdiction of the subject-matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case arising, or which is claimed to have arisen, under that general question.”

In a later case, Charles v. White, 214 Mo. 187, l. c. 206, this definition is given, quoting from a New Jersey case: “Jurisdiction may be defined as the right to adjudicate concerning the subject-matter in the given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. Third, the point decided must be, in substance and effect, within the issue. ’ ’

It is apparent that the court may have jurisdiction of the general subject of the class of cáse which the action contemplates without having jurisdiction of the particular property or subject-matter sought to be affected by the suit.

It has been held in a condemnation proceeding, where a description of the property sought to be condemned is required, that the requirement is jurisdictional and failure to describe.it renders the entire proceeding void. [San Francisco, etc. R. R. Co. v. Gould, 122 Cal. 601.] However, it is generally held that a defect in such description or the absence of proper description may be cured by amendment. [2 Nichols Eminent Domain, sec. 402, pp. 1072-3; Smith v. City of Detroit, 120 Mich. 572; City of Chehalis v. City of Centralia, 138 Pac. 293.] In the last case cited it was held that the judgment was not subject to collateral attack although the property of each defendant was not described in the petition. It was said by this court in the case of St. Louis v. Barthel, 256 Mo. 255, that in a condemnation proceeding, “the suit is one of inquiry as to who the owners of the land are, as well as to condemn it for public purposes,” and that a proceeding of the kind Avould not be nugatory merely because it made a mistake as to who were the owners of the land described. In this case the charter requires that the petition shall set forth a “description of the property” which the suit seeks to appropriate or damage.

Now the motion on which the proceeding was dismissed gives as the only reason for sustaining the motion that the petition “does not set forth a description of the property and estate or interest of this defendant therein which the plaintiff seeks to appropriate or damage.” There were other defendants much more numerous whose property might be affected, might be taken or damaged or benefitted, and they would be properly in court on sufficient petition. The petition in this case sets out the ordinance providing for the condemnation and a description of the street which it is desired to open. That is, the distance, direction and width of the street. The court had jurisdiction of this class of cases and a description of the particular street desired to be opened gave it jurisdiction of this particular action. Of course, any owner of land affected in any way whatever by the proceeding, if he did not appear in the proceeding, would not be bound by it because his land is not described. [Leavenworth Ter. Ry. & B. Co. v. Atchison, 137 Mo. 218, l. c. 230.] But the court had jurisdiction of the subject-matter of the action to proceed with the cause on a sufficient petition.

. In the case of Kansas City Interurban Ry. Co. v. Davis, 197 Mo. 669, a condemnation proceeding under the statute which provided that owners of all parcels of land affected, with whom the corporation seeking to condemn could not agree, shall be made parties, it was held that the proceeding was properly dismissed because all such owners were not made parties. There is no provision in the section' of the St. Louis charter quoted requiring an attempt to agree with the owners, as a prerequisite to proceeding with the case. [See K. C. Interurban Ry. Co. v. Nelson, 193 Mo. 297.] Besides, that section of that charter provides that the owners of certain interests "shall be made defendants or their interests will not be bound; but only persons in actual possession of and claiming title or who have record title appearing upon the proper records of the city to property affected, need be made defendants.” So that parties having other interests than those mentioned need not be made defendants. There is nothing in the allegations to show whether the moving defendants were necessary or only proper parties, or to show that the court would not have jurisdiction to proceed without them.

The plaintiff had a right to amend its petition by leave and on request it would have been error to refuse leave to amend. It could amend and proceed as against all defendants not complaining, and had no authority to dismiss the proceeding because some of tlie defendants complained that their property was not described.

The conrt erred in the order dismissing the proceeding npon the motions as filed.

The judgment is reversed and the canse remanded.

Roy, C., absent.

PER CURIAM: — The foregoing oninion by White, C., is adopted as the opinion of the conrt.

All of the judges concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. ARTHUR HARDIMAN, Appellant.
    Division Two,
    March 4, 1919.
    1. PERJURY: Material and Immaterial Matter. Under the statute false testimony as to immaterial matter is not perjury. But where the testimony alleged to he false is material to any proper matter of inquiry and is uttered with knowledge of its falsity it is perjury, although it may not tend directly to prove the issue.
    2. -: Sufficient Evidence: Corroboration. To sustain the charge of perjury there must be some substantial evidence in addition to the testimony of a single witness. But the corroborative evidence need not necessarily be the testimony of another witness; it may consist of -circumstances sufficiently strong to be tantamount to the testimony of another witness.
    3. -:-:-: Admission. Corroborative evidence against an accused on a prosecution for perjury means evidence aliunde which tends to show the'perjury independent of any declaration or admission of the accused and the person to be corroborated. An admission made by the'accused and testified to by the person to whom. made is not corroboration.
    4. -: Instruction: Broader Than Charge. Where the charge is that the accused falsely swore that another did not place a.bottle in a buggy occupied by the accused and receive something in return from the accused, an instruction which, in addition, tells the jury that they may find the accused guilty of perjury if they believe he testified that he did not at the time receive any whiskey from such other person, is erroneous, in being broader than the charge.

      Appeal from Moniteau Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed AND remaNded.

      Boy L. Kay and N. C. Hickcox for appellant.
    (1) Corroborative evidence against the accused on a prosecution for perjury means evidence aliunde which tends to show the perjury independent of any declaration or admission of the prisoner and the person to be corroborated. State v. Rohten, 259 Mo. 424. (2) The instructions given by this court are erroneous upon authority of the case of State v. Thornton, 245 Mo. 436'. The instructions do not follow the charge alleged in the information. There is no charge in the information accusing defendant of swearing that he did not buy whiskey or intoxicating liquors and instruction number 7 requires the jury to find that he did swear that he did not buy whiskey and that such statement was false.

      Frank W. McAllister, Attorney-G-eneral, and Henry B. Hunt, Assistant Attorney-General for respondent.
    (1) Instructions similar to instructions Nos. 6 and 7 given for the State in this cause, have been passed upon by this court. ■ State v. Hunter, 181 Mo. 337; State v. Thornton, 245 Mo. 443; State v. Heed, 57 Mo. 253. (2) As to the sufficiency of the evidence in this cause, on the question of corroboration of the principal witness, we refer the court to the following cases: State v. Heed, 57 Mo. 254State v. Faulkner, 175 Mo. 254; State v. Hunter, 181 Mo. 334; State v. Thornton, 245 Mo. 444; State v. Rohten, 259 Mo. 424.
   WALKER, J.

Appellant was charged by information in the circuit court of Moniteau County with perjury, committed while testifying as a witness in said court. Upon a trial, he was convicted and sentenced to two years’ imprisonment in the penitentiary j from which judgment he appeals.

At a trial, in said court, in January, 1918, of one Schenewerk for the unlawful sale of intoxicating liquors, the appellant is charged with having, in the language of the information, testified: “That he, the said Arthur Hardiman, did not see the said Frank Schenewerk put a bottle in the buggy of the said Arthur Hardiman, at California, Missouri, on or about the 24th day of May, 1917, and that he, the said Arthur Hardiman, said that this was the first time he had ever seen the said Frank Schenewerk and that he, said Arthur Hardiman, had not seen the said Frank Schenewerk since said 24th day of June, 1917, until the day of said trial, January 15, 1913, and that he, the said Arthur Hardiman, had not talked to anyone about the case or issue being tried on the said 15th day of January, 1918, or the matter in issue to be tried, and that he, the said Arthur Hardiman did not give or hand any money on the said 24th day of May, 1917, to said Frank Sehene-werk, and that said Frank Schenewerk did not receive any money from him, the said Arthur Hardiman, at said time and place, and that statement so made by him, the said Arthur Hardiman, was made in reference to the time he, the said Arthur Hardiman, saw and talked with said Frank Schenewerk while he, the said Arthur Hardiman, was in his buggy near Gattermeier, mill in California, Missouri; whereas, in truth and fact, the said Arthur Hardiman, saw the said Frank Schenewerk put a bottle in the buggy of the said Arthur Hardiman, was in his buggy near Gattermeier’s 1917, near Gattermeier’s mill in California, Missouri, at the time mentioned, and said Arthur Hardiman did give and hand to said Frank Schenewerk money on said occasion, about the 24th day of May, 1917, at California, Moniteau County, Missouri, near said Gatter-meier ’s mill.”

The evidence against the appellant is that of one Allen, City Marshal of California, Mo. It is as follows: “I know the defendant, Arthur Hardiman. I live in California, Missouri, and am the City Marshal, and have been since April, 1917. I was investigating liquor violations going on here about May 24, 1917. I watched some of them — what I could.. I saw the defendant about the 24th of May, 1917. I saw at one time what I took to be' a delivery to him of a half pint of whiskey. I was in G-attermeier’s mill, and I noticed the defendant, Arthur Hardiman, at the hitch rack. I waited at the north door of the mill, and I noticed the-defendant untie his team and get into his buggy, and sit there without driving away, and it just called my attention to it; I just watched him there, and directly Prank Schenewerk came and it appeared to me that he drew a half pint bottle from his right hip pocket and put it in the front of the buggy, and took something from this fellow’s hand in return. That was from Hardiman’s hand. There was nothing said by either. That is about all I saw. I was not present at the time of his arrest.” Cross and redirect examinations elicited nothing of further relevancy, save an express statement by the witness that it was a bottle that was passed by Schenewerk to appellant’s buggy. That the latter thereupon handed something to ScheneAverk. On final cross-examination, Allen said: “I do not tell the jury it was whiskey; I do not tell them that any money was passed; I do not tell them that I saw a sale of liquor at the time.” No testimony corroborative of this witness was offered by the State.

The testimony of the appellant was as follows: “I am the defendant in this case; I was present in the court last January and testified in the hearing of the case of State v. Schenewerk, for and on behalf of the State; I testified that I did not know Frank Schenewerk by name until the day of the trial;. I saw him once before the day of the trial, sometime in May. He came up to me at the hitch rack right across from Dr. Burke’s. I testified in that case that he did not put anything in my buggy, and that testimony was true. He did not put anything in my buggy that I saw. I testified in that ease that I did not hand him anything. ’ ’ This testimony is corroborated by that of Frank Schene-werk.

A statement of the general rule applicable to cases of this character is not inappropriate in this connection. Under Section 4344, Eevised Statutes 1909, upon which this prosecution is based, false testimony as to immaterial matter is not perjury. Where, however, the testimony alleged to he false is material to any proper matter of inquiry in the case, and is uttered by the witness with knowledge of its falsity, it is perjury, although it may not tend directly to prove the issue. [State v. Moran, 216 Mo. 550; State v. Ackerman, 214 Mo. l. c. 332.] Of this character is the testimony alleged to have been falsely given by the appellant.

The materiality of the alleged false testimony being determined, we are confronted with the question as to the quantum of evidence necessary to a conviction. It is fundamental that to sustain a charge of perjury, it is necessary that there should be some substantial evidence, in addition to the testimony of a single witness. This for the very apparent reason that if the defendant swears to one thing and the witness to the opposite, there is simply one oath against the other, and the jury would, in consequence, not be warranted in saying that the testimony of the one is false rather than that of the other, without some other proof tending to show which is true and which is false. [State v. Thornton, 245 Mo. 436; State v. Faulkner, 175 Mo. 546.] It does not necessarily follow, however, that the corroborative testimony must be that of another witness. It may consist of circumstances sufficiently strong to be tantamount to that of anothej witness’s testimony. [State v. Heed, 57 Mo. 252; State v. Hunter, 181 Mo. 316; State v. Blize, 111 Mo. 464.] As further illumi-native of what constitutes corroborative evidence in a case of this character, we have recently held, in State v. Rohten, 259 Mo. 424, in harmony with the well established doctrine elsewhere, “that corroborative evidence against the accused on a prosecution for perjury means evidence aliunde, which tends to show the perjury independent of any declaration or admission of the prisoner and the person to be corroborated.” This rule was earlier announced by this court in State v. Hunter, 181 Mo. l. c. 337, and State v. Thornton, 245 Mo. l. c. 444. A careful review of this record fails to disclose any evidence of a corroborative nature con. forming to the requirements we have stated. The nearest approach to any testimony of this character was that of a witness named Burford, the Sheriff of Moniteau County, who testified on behalf of the State, that while he had the appellant in charge before his trial, he said to the latter a number of times: “ ‘ It looks to me like you ought not to be here. Now, inasmuch as you are, the best thing you can do, if you know you are guilty, is to plead and get the easiest terms.’ He answered that ‘no one saw it,’ evidently referring to the offense charged against him, or ‘that nobody saw it.’ He repeated this whenever I went over the matter with him.” Whatever construction may be placed upon the meaning of this alleged declaration, it must be classified as an admission, and hence without probative force in a case of this character.

Instruction numbered 5, given by the court, does not conform to the allegations of the information. The latter limits the alleged false testimony to a denial of the fact that Schenewerk placed a bottle in appellant’s buggy, and that the latter handed him anything; the instruction, in addition, tells the jury that they may find the defendant guilty if they believe from the evidence that he testified that he did not at the time buy any whiskey from Schenewerk. The instruction was erroneous in being broader than the charge. [State v. Smith, 119 Mo. l. c. 447.]

For the errors noted, the judgment of the trial court is reversed and the cause remanded.

All concur.


author: FARIS, J.

text:
    IUZEFA TURR, Administratrix of Estate of POWELL TURR, v. TERMINAL RAILROAD ASSOCIATION, Appellant.
    Division Two,
    March 4, 1919.
    1. APPEAL: Statutory. Appeals are. matters wholly, governed by statute, and where there is no statute allowing an appeal none lies.
    2. -: Voluntary Nonsuit: Reinstatement. An appeal from the action of the circuit court in refusing to set aside an order re-instating upon the docket a ease wherein, at the same term, a. voluntary nonsuit was taken, does not fall within any of the classes of eases mentioned in the statute (Sec. 2038, R. S. 1909), and consequently does not lie.
    Appeal from St. Louis City Circuit Court. — Hon., J. Hugo Grimm, Judge.
    Appeal dismissed.

      T. M. Pierce, J. L. Howell and W. M. Hesel for appellant.
    The court erred in setting aside the voluntary non-suit taken by plaintiff. .(1) Because when a voluntary nonsuit is taken plaintiff abandons the suit, and it is ended. Karnes v. American Fire Ins. Co., 53 Mo. App. 439; Chouteau v. Rowse, 90 Mo. 195; Wiethaupt v. St. Louis, 158 Mo. 659; Mason v. Railroad, 226' Mo. 226; Simpson v. Brock, 40 S. E. (Ga.) 226; .Murray v. M’Dougall, 3 N. J. Law. 512; Manning v. Insurance Company, 176 Mo. App. 684. (2) Because though it be held that the court during the term can control its orders and judgments, it does not appear that the action of the court was ex mero motu, but was based on the plaintiff’s motion, and there was nothing assigned in the motion to appeal to the court’s discretion, and it abused its discretion in setting aside the .voluntary non-suit over defendant’s objections. 1 Cook on Stock and Stockholders (3 Ed.), p. 28, sec. 6, and 424; Richmond & I. Coys. Co. v. Richmond N. I. & B. R. Co., 68 Fed. 105; Stove v. C., E & St. Lonis Ry., 202 N. T. 352, 35 L. R. A. 770; Pullman Palace Car Co., 115 U. S. 587; Interstate Commerce Com. v. Stickney, 215 U. S. 108.

      Wm. Sacks and S. C. Rogers for respondent.
    (1) The court did not err in setting aside the voluntary nonsuit taken by plaintiff, (a) Because the question of setting aside a nonsuit was within the breast of the court until the end of the term at which the ruling or action was had. Rottmann v. Schmucker, 94 Mo. 139; Randolph v. Sloan, 58 Mo. 155; Carr v. Dawes, 46 Mo. App. 598. (b) Because the appeal was premature, there being no final judgment, and the statute gives no right of appeal from such order. Sec. 2038,, R. S. 1909; State ex rel. Merrill v. Burns, 66 Mo. 227; Halsey v. Meinrath, 54 Mo. App. 335; Carr v. Dawes, 46 Mo. App. 598; Heish v. Weisberger, 44 .Mo. App. 506; Smith & Keating I. Co. v. Wheeler, 27 Mo. App. 16; Kidder v. Wright, 72 Mo. App. 378; Creech v. Young,-94 Mo. App. 90; Bogges v. Cox, 48 Mo. 278; ■Lyons & Reesman v, Rollinson, 109 Mo. App. 68; Blanchard v. Wolff, 1 Mo. App. 520'.
   FARIS, J.

Plaintiff sued defendant for the alleged tortious killing of her husband by one whom she averred to have been an employee of defendant. Having failed, as she deemed, to prove upon the trial that the person who killed her husband was in -fact the servant of defendant at the time her husband was killed, she took a voluntary nonsuit.

Afterwards, at the same term, plaintiff filed her motion to set aside this nonsuit and re-instate the case upon the trial docket; which motion the court nisi sustained. Thereupon, and at the same term, but nine days after the case was thus re-instated upon the docket, defendant filed its motion to vacate the order re-instating the same. This motion the court overruled, and from the latter order overruling the defendant’s motion to vacate the order of re-instatement, the defendant took and now prosecutes its appeal.

Since no statement of the facts adduced upon the trial will in any degree shed light upon the questions up for ruling, we deem it unnecessary to lengthen our views by a recital of these facts. There are hut two points made in the case; one of these is raised by the defendant, and the other by the plaintiff.

Defendant, who is the appellant here, insists that the trial court had neither authority nor discretion to allow a re-instatement of the case after plaintiff upon a failure of her proof had taken a voluntary nonsuit. "Without squarely meeting this proposition, plaintiff insists that an appeal will not lie from the action of the trial court in refusing to vacate the order re-instating the case upon the docket after plaintiff had voluntarily taken a nonsuit therein. So stand the contentions, and it is obvious that since by'plaintiff’s contention our jurisdiction to entertain this appeal is attacked, we must in limine determine the question raised, which is: Will an appeal lie from the trial court’s action in refusing to vacate an. order re-instating a cause where plaintiff therein from lack of proof takes a voluntary nonsuit ?

Our statute which prescribes the cases wherein appeals lie reads thus:

“Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from any order granting .a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case The Supreme Court shall summarily hear and determine all appeals from orders refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, and for that purpose shall, on motion, advance the same on its docket.” [Sec. 2038, R. S. 1909.]

It is fairly obvious that an appeal from the action of the circuit court in refusing to set aside an order re-instating upon the docket a ease wherein, at the same term, a voluntary nonsuit was taken, does not fall within any of the classes of cases mentioned in the statute supra. In short, it is neither a final judgment, nor is it provided for, or to be found either expressly or impliedly among any of the orders set out in the statute from which an appeal lies. [Holdridge v. Marsh, 28 Mo. App. 283; 3 C. J. 504.] Since appeals are matters which are wholly governed by statute, it follows that where there is no statute allowing an appeal, no appeal will lie. [Millar v. Transit Co., 216 Mo. 99; Bussiere’s Admr. v. Sayman, 257 Mo. 303; Holdridge v. Marsh, supra.] This view disposes of the case and renders it unnecessary to discuss whether the trial court possesses either the power or discretion to reinstate upon the trial docket a case wherein a voluntary nonsuit was taken, when such re-instatement is permitted at the same term at which the nonsuit was taken. This appeal was prematurely taken; let it be dismissed.

All concur.


author: WALKER, J. WOODSON, J.

text:
    MAGGIE BREUNINGER et al., Appellants, v. THOMAS J. HILL et al., Judges of County Court.
    In Banc,
    March 15, 1919.
    1. ELECTION: Irregularities. An election, at which the voters had notice of all changes in the usual voting places, conducted in a peaceable and quiet manner, free from fraud, coercion or any - interference with the rights of voters, and at which no voter was denied an opportunity to freely and fairly cast his ballot, followed by an honest return, is not invalid for irregularities in calling or conducting it.
    2. -: Constitutional Objects. In the holding of an election two well defined objects are recognized by the Constitution, namely, to afford legal voters a free and untrammeled right to vote, and a correct record of a return of the votes. *
    3. -: Mandatory Regulations: Opportunity for Fraud. If no mandatory provision of the Constitution or statutes regulating the rights of voters and the calling and conduct of the election is violated, irregularities which do not deprive voters of the right to freely and fairly express their will, although they may be such as to invite and afford an opportunity for the concealment of fraud, will not render the election void, no fraud being charged or shown.

      Held, by WOODSON, J., dissenting, with whom FAR.IS, J., concurs, that an election required to be held under the Australian Ballot Law which is held in total disregard of the requiremnts of that law is invalid, and cannot be held to be valid simply because no fraud is shown.
    4. -: Secret Ballot. In the utter absence of fraud, or unfair efforts to influence the voter, a ballot not prepared and cast in secret is not invalid.
    5. - :-: Facilities: Absence of Booths. If a ballot was very short, containing but a single proposition, and its preparation in secret did not require those.facilities for secrecy which a reasonable construction of the statute render necessary in the preparation of a blanket ballot at a general election, and there was an entire absence of any attempt to influence voters, the mere absence of voting booths wherein voters could have prepared their ballots did not render the election void.
    6. -: -: Foiling Places: In Cities. A special election to be held throughout a county embracing a city of the first class, and all elections in cities of the first class, are required to he held under the general laws, and they contain no mandatory requirement for the fixing of polling places, and therefore the effect upon the validity of the election of changes in such places must be determined by the facts of the particular case.
    7. - :-: -: Inclement Weather. Where the usual polling places for general _ elections are canvas tents, changes by the county court, on account of inclement weather, to near-by buildings, for a special bond election, notice being given to all voters, and no voter encountering any difficulty in finding his voting place or being hindered in his right of suffrage, did not invalidate the election, but the statute under such circumstan., * will be held to be directory.
    8. -: -: Number of Judges and Clerks: Bond Election. The law governing the appointment of' judges and clerks of election is directory, and the appointment of a number less than the statute designates will not nullify the result of votes freely cast and honestly counted. Besides, the Act of 1913, Laws 1913, p. 327, amended the existing statute so as to require only two. judges * and two clerks for each precinct at a special election for the purpose of voting bonds for road construction, and the Act of 1917, Laws 1917, p. 471, which provided that bond elections shall be held in the same manner as general elections, had reference to . the general law as it then existed, including the amendment of 1913, and- consequently the appointment of two judges and two clerks for the special bond election held in 1918, instead of six judges and six clerks, was in strict compliance with the existing statute.
    9. -: -: Notice of Registration: No Entry of Record. Failure of a county court to cause to be entered of record an order directing the clerk to give notice of a supplemental registration of voters did not invalidate an election, where the clerk in his official capacity published the notice in conformity with the statutory requirements.
    Appeal from Buchanan Circuit Court. — Eon. Alonzo D. Burnes, Judge.
    AFFIRMED.

      B. J. Woodson, Vinton Pike and W. B. Norris for appellants.
    (1) There was no legal supplemental registration. R. S. 1909, sec. 6070. (2) The election was void he-cause held at polling places other than and long-distant from the regular legal polling places in the City of St. Joseph. Laws 1917, p. 471, sec: 84. (3) The election was void because no booths, compartments, separate places, or stalls were erected or used to afford the voter a place to make out his ballot in secrecy in the City of St Joseph and because no railings were placed about the judges. R. S. 1909, secs. 5897, 5901; Laws 1913, p. 328, sec. 5900. (4) The election was void because held in totál disregard of the Australian Ballot Law. R. S. 1909, secs. 5897, 5901, 5919; Laws 1913, p. 328, sec. 5900; Laws 1917, p. 471, sec. 84; Státe ex rel. Miles v. City of Macon, 193 Mo. App. 306', 269 Mo. 151; State ex rel. City of Tarkio v. Seibert, 116 Mo. 415 ; Gaston v. Lamkin, 115 Mo. 20’; State ex rel. City of Marshall v. Hackmann, 203 S. W. 960.

      Strop & Mayer for respondents.
    (1) There being no fraud charged and all of the evidence affirmatively showing that the eléction was free from fraud, duress, intimidation or wrong-doing of any character, and that it resulted in a full, free and fair expression of the will of the people, the absence of stalls did not vitiate the election. Yonkers v. Susong, 156 N. W. 25; Allget v. Callahan, 144 S. W. 1166; Links v. Anderson, 168 Pac. 605; Perry v. Hackney, 90 N. W. 483; Moyer v. Van De Yanter, 29 L. R. A. 670; Skelton v. Ulen, 217 Mo. 383; State ex rel. City of Marshall v. Hackmann, 203 S. W. 960; Carabajal v. Lucero, 158 Pac. 1988; 9 R. C. L. 1003, sec. 102; McCrary on Elections (4 Ed.), sec. 225. (2) The fact that a number of polling places and registration places were not at the places fixed by ordinance as polling places,' especially since notice of the change was given every voter, will not render the election void. State ex rel. Canton v. Allen. 178 Mo. 555; State ex rel. v. Westport, 116 Mo. 582; Light & Magnetic Co. v. Lebanon, 163 Mo. 246; Bowers v. Smith,, 111 Mo. 45; Curian v. City of Devil’s Lake, 25 N. Dak. 207, 141 N. W. 756, Ann. Cas. 1915 C; p. 624; Smith v. Haekett, 98 Atl. 140; State ex rel. v. Shanks, 125 N. W. 122. (3) The statute required only two judges and two clerks. Laws 1913, p. 327. “The Good Roads Law” of 1917 carried a provision that bond elections for building roads under that act should be held in the same manner as general elections are held and that no person should be permitted to vote who would not be qualified to vote at a general election held on that date. Laws 1917, p. 471, sec. 84. The Legislature did not have in mind the general election law as originally passed merely, but the general election law as amended from time to time. As amended in 1913, that law provided that at bond elections only two judges and two clerks should be required. Buit, even if the statute required six judges, the requirement was merely directory ,and a failure to appoint the full number of judges, not having affected the merits of election, will not invalidate the election. 'Sanders v. Lacks, 142 Mo. 254. (4) The notice of supplemental registration, published by the county clerk over his signature as clerk, attested by the seal of the court was. sufficient. The notice was not rendered less effective simply because the court, having made an order for the supplemental registration, did not enter of record an additional order directing the clerk to publish the notice. State ex rel. City of Memphis v. Hack-mann, 273 Mo. 695; McCrary on Elections (4 Ed.), sec. 178; Demaree v. Johnson, 150 Ind. 419; State v. Doherty, 16 Wash. 382; DeShon v. Smith, 10 Iowa, 212; Jordan v. Hayne, 36 Iowa, 9; Phillip v. Town of Albany, 28 Wis. 340; 9 R. C. L. 993, sec. 15. (5) The fact, that somje of the voters prepared their ballots in the presence of the judges does not invalidate the election. Absent fraud, such votes should be counted; this,, too, even, in a case where such votes determine the result of the election. Hall v. Schoenecke, 128 Mo. 661; Altgelt v. Callahan, 144 S. W. 1166.
   WALKER, J.

In January, 1918, an election was held in Buchanan County to determine if a bonded indebtedness of two millions of dollars wonld be incurred, to provide fnnds for the bnilding of roads in said county. At this election there were 7784 votes cast. Of this number, 6342 were in favor, and 1442 against the incurring, of the indebtedness. Before the bonds authorized by the election were issued by the county court, in April, 1918, Maggie Breuninger, one of the plaintiffs, for herself and others similarly situated, brought this suit in the circuit court of Buchanan County against the county judges to enjoin them from issuing said bonds. Others appeared, and on their application, were made parties plaintiff. Defendants entered their appearance.

The petition of the plaintiff, Breuninger, as well as those of the others, alleged that the county judges were threatening to issue bonds in the sum of two millions of dollars payable in twenty years, under the authority of the election held in January, 1918; that their proposed action was unauthorized because of the invalidity of the said election, in that it was held (1) at other than the usual polling places; (2) that only two judges and clerks were appointed and acted at each voting precinct; (3) that no order was made and entered of record by the county court calling said election; (4) that no order was made and entered of record authorizing the pretended supplemental registration in said county; (5) that the pretended supplemental registration was illegal because not held at the regular polling places in the City of St. Joseph; and (6) that the election was held in total disregard of the Australian Ballot Law.

Defendants ’ answer admitted their official character; that unless restrained, they would issue the bonds re-f erred to; that bonds, if issued, would constitute a county indebtedness; that the plaintiff, Breuninger, was a resident assessed taxpayer of said county; that St. Joseph was. a city of the first class and contained more than 25,000 and less than 100,000' inhabitants; and that only two judges and two clerks for each voting precinct were appointed by the county court and served at each voting precinct during said election.

For further answer, defendants alleged the presentation to the county court óf the petition for the calling of the election for the submission to the voters of a proposition to issue bonds in the sum of two million dollars for road purposes; that pursuant to said petition, an order calling an election for January 24,1918, was made and entered of record December 28, 1917; that an order was made by the county court for a special registration for June 12, 1918, and w.as entered of record on December 31, 1917; that the required notice of said registration was given; that the places used for registration were the same places used as polling places at said ele— tion; that in some precincts the places used as polling places were not the same places as the -usual polling places, and that where the same places were not used the places used were described, and the reason for their use stated; that notice of the location of all the polling places was given to the voters by publication in .the daily newspapers published in the City of St. Joseph, and by mailing a printed notice of any changes to every voter in the City of St. Joseph, designating the location of the polling places for the purpose of this election; that it was the custom of the county to use canvas booths as polling places in the City of St. Joseph; that because of the inclement weather, it was not possible to find persons who'would serve as election officials, if such booths were used; that because of this fact, the defendants secured such places as could be obtained as polling places in such precinct; that the utmost effort was made to find and secure such places as would be suitable for an orderly and peaceable election, and as would afford voters of each precinct a fair opportunity to vote secretly and free from duress or interference; that there were thirty precincts in Buchanan County outside of the City of St. Joseph; that in all of said precincts the county had permanent buildings which were used as polling places, and that said buildings were, so arranged as to comply in the minutest detail with the requirements of the Australian Ballot Law, and were used at such places at said bond election; that none of said defendants have any personal interest in said election or the result thereof; and that the acts performed by them were in good faith and an honest endeavor to have a fair election in accordance with the provisions of law.

The reply was a general denial to the new matter contained in the answer.

On the 28th day of December, 1917, during the regular November Term of the county court of Buchanan County, a petition was presented to said court, requesting a special election for the submission to the qualified voters of said county a proposition to issue bonds in the sum of two million dollars for grading, constructing and paving the roads. On said 28th day of December, the court entered of record an order calling said election for January 24, 1918; and on the 31st day of December, 1917, the court made an order for a supplemental registration, to-wit: “Now, on this day it is hereby ordered by the court that a sup-plememental registration be held in the City of St, Joseph, Mo., one day, Saturday, June 12, 1918, from 8 o’clock A. M. to 9 o’clock P. M., in each of the voting precincts of the city."

No other order was made fixing places for the supplemental registration, nor was an order made directing the clerk of said court to give notice of such registration. However, the clerk did publish in the daily newspapers in the City of St. Joseph, for the requisite number of days, a notice of said supplemental registration. This notice fixed the places for holding the registration in each precinct, and in a number of the precincts the place thus fixed was other than the place designated by ordinance. The election was held, however, and the polling places used were the same as those where the supplemental registration had been held.

For many years it had been the custom in the city of St. Joseph to erect canvas tents for polling places, and these tents contained conveniences for the conducting of elections in compliance with the Australian Ballot Law. At this election none of these' tents were erected or used, but the election was held at such polling places as had been selected by the county court, of which the voters had notice.

There were 87 voting precincts in Buchanan County; 57 of these are within the corporate limits of the City of St. Joseph, and 30 in the County of Buchanan, outside of the city. Within the city, there were 4077 votes cast for the bonds, and 1026 cast against them. Outside of the city there were 2265 votes for the bonds and 416 against them. The foregoing constitutes the material portions of the evidence adduced by plaintiffs.

The evidence on the part of the defendants shows that the petition • presented to the county court requesting the calling of the election was signed by more than 3000 residents of the county; that the order made by the court for said election was published as a notice of same by the county clerk; that the notice of special registration with the proof of its publication showed that it was published the requisite number of days, and that it had been regularly filed with the clerk of the county court. In 34 of the precincts in the city of St. Joseph, the county court did not provide booths within which the voter could retire to prepare his ballot. This failure was due to the inclemency of the weather. In furtherance of the attempt of the court to afford voters an opportunity to cast their ballots, the county judges selected other polling places than the canvas booths, and the places thus selected were as near the regular voting places as it was possible to have them. That the conditions surrounding the places selected were such as to enable the voter to readily find the polling place and to cast his ballot free from duress or other influence calculated to interfere with the free exercise of this right, and that voters had notice of all changes made. That at each precinct the election was conduct in a qniet and peaceable manner, and no voter was denied an opportunity to freely and fairly cast his ballot.

I. It appears that it is not fraud, duress, or any interference with the rights of voters, of which complaint is made. Nor is the correctness of the result questioned; but the burden of the plaintiff’s contention'is ^at calling of the election and the conduct of the same were characterized by such irregularities as to render it invalid. Recognized by the Constitution (Art. VIII.), the regulation of the right of suffrage whether it be as to the form of the ballot, the manner in which it is required to be cast, or the character of the polling places and conduct generally of the election, has two well defined objects; one, to afford the voter the free and untrammeled right to vote; and the other that a correct record of the return of the votes may be made. A first essential, therefore, in' the determination of the matter at issue is whether any of the mandatory provisions of the Constitution or statutes regulating the rights of voters and the calling and conduct of the election have been violated. If so, then the contention of the plaintiff’s should be sustained. Otherwise, however, if it has been shown despite irregularities, that a free and fair opportunity was afforded the voters to express their will, and no question has arisen as to the correctness of the return of the votes and the result of the election. While it may be admitted that irregularities invite and afford opportunities for the concealment of fraud, and that a conformity with regulatory statutes is necessary in many instances to procure exactness of results, the end for which all rules are made and regulations prescribed, is a free ballot and a fair count. This conclusion in not intended in disregard of any legislative provision which has clearly been defined to be necessary to the validity of an election; but to provisions which have not been so defined, the violation of which is not shown in any manner to have influenced the conduct of an election, or rendered the result doubtful. A contrary ruling would not he in harmony with the purpose of regulatory statutes; would subordinate substance to form, the end to-the means, and thus defeat the vital purpose for which elections are authorized. [Nance v. Kearbey, 251 Mo. 374.]

II. Complaint is made that voters were not afforded an opportunity at certain precincts to cast a secret ballot. This contention is based on the assumption that the absence of booths at certain precincts rendered a secret ballot impossible. Notwithstanding the absence in the City of St. Joseph of booths in the conduct .of this election, there is no instance in evidence where a single voter could not, if he so desired, have prepared and cast his' ballot in the utmost secrecy as to the nature or result of his vote. The ballots were exceedingly brief, could be read at a glance, and were couched in the following words: “For incurring- of county indebtedness for road and bridge purposes. Against incurring of county indebted-' ness for road and bridge purposes. (Erase the clause you do not favor).”

Embracing but the one subject, the ballots were not difficult to understand, and the voter was enabled to express his will with two strokes of a pen. Such a ballot, encompassed as it might have been, within the palm of the voter’s hand while preparing it to be cast; did not require that paraphernalia as an auxiliary of secrecy which a reasonable construction of the statute might require in the preparation of a blanket ballot at a general election which might involve the selection of presidential electors, state and local officers, and the approval or rejection of constitutional amendments.

Admitting, therefore, that the Constitution in providing for elections by ballot, means a secret ballot, and the fact that the law provides means to encourage and facilitate the preparation of such ballot, it does not follow in the utter absence of any fraud, unfairness or other effort made to influence the voter, that a ballot not prepared and cast in secret is invalid. On the contrary, although the facilities for secrecy are thus afforded, it could not in reason be held that if a voter tendered a ballot prepared and furnished to him under the requirements of the law,- his disregard of the law in regard to its secret preparation or even his announcement as to the manner in which he had voted, would invalidate his vote.

Eegulations, therefore, as to the right of the voter to a secret ballot are sustained on the ground that it secures him freedom in the exercise of his franchise and reduces to a minimum the incentive to fraud. Such is the trend of the ruling in Ex parte Arnold, 128 Mo. l. c. 261, in harmony with other cases on the same subject. Where, however, as here, there is evidence that the voter was afforded every opportunity to freely cast his ballot without disclosing the nature of same and there was an utter absence of any attempt to influnce him in so doing, a statute requiring the erection of booths should not he held mandatory, because not a necessary condition precedent to the secrecy of the ballot.

It may be admitted as a general proposition, as was held in Hall v. Schoenecke, 128 Mo. l. c. 669, that where it is necessary to secure an absolutely secret ballot and thus protect the right of the voter in the free expression of his choice of candidates to be voted for, uninfluenced by fear or intimidation, that not only the requirement as to booths, but others which, if disobeyed would necessarily defeat a fair election, should be held to be mandatory. In the case at bar, a failure to comply with the requirement complained of not only did not have, but could not reasonably have had, any obstructive or unfair influence. The requirement under such circumstances should be held to be directory. Such a construction does not violate the spirit of the law, is consonant with justice, and is affirmative of the free expression of the will of the people.

We said no more than this in State ex rel. Miles v. Ellison, 269 Mo. 157, where it appeared that not only were no booths provided, but that no facilities were furnished the voter to enable him to prepare his ballot free from observation and coercion. This, as we have shown, was not the case at bar; but there was, as stated in the Ellison ease, as an exception to the ruling that the statute be construed as mandatory, but a deviation from the method marked for the holding of an election not sufficient to violate the spirit and general purpose of the law (Sec. 5897, R. S. 1909), and thus render the result invalid (Skelton v. Ulen, 217 Mo. 383).

III. It is urged that in certain precincts the election was held at unauthorized places; that isj it was no held at the same polling places where general elections were required to be held as prescribed by the statute (Laws 1917, sec. 84, p. 471), the specific ground of error being that the physical character of the places to which the polls were changed was of such a nature that the requirements of the law could not be carried out. There is no evidence to sustain the reason thus urged in support of the contention.

The facts disclose that where changes were made, the same were rendered necessary on account of the inclemency of the weather; that all voters were notified of the same; and no contention is made that any voter encountered any difficulty in locating his polling place, or that he was by reason of such change, hindered or obstructed in the right of suffrage. The contention, therefore, must resolve itself into a question as to the construction of the statute. If it seems that no exigency will authorize a change, although it be shown that no obstacle was thereby interposed as to the holding of a fair, free, and full election, then the plaintiffs’ contention must be upheld.

There is no general statute prescribing the manner in which polling places shall be fixed by the county courts of the several counties. The nearest approach thereto is found in the authority conferred upon such courts to establish election precincts, [Secs. 5801, 5802, R. S. 1909.] The succeeding section (5808) impliedly confers upon them the power of fixing the polling places in providing that, upon their failure so to do, the same may he designated by the sheriff. The election here under review having been held throughout Buchanan County, was not to be regulated by the statute regarding elections in cities of the first class. This question, however, is foreclosed for another reason; that all elections in cities of the first class, of which St. Joseph is one, are required to be held under the general laws of the State (Sec. 8564, R. S. 1909). Consequently, in construing the statute (Laws 1917, supra) authorizing a county court to submit a proposition to voters for the creation of an indebtedness for the building of roads, we are not confronted with a mandatory statute in regard to the fixing of the polling places, a violation of which would render the election invalid. The effect, therefore, upon the election, by whatever changes were made, must be determined by the facts applicable to this particular case. There is no evidence of any obstruction or hindrance caused by the county judges in making the change which in any wise interfered with the expression or the true sentiment of the voters. Under this state of facts, it does no violence to law, but is promotive of the public will, that the statute be held to be directory. In thus holding, we are not unmindful of the importance which attaches to a specific designation of the polling places, because this notified the voters wheré their votes can be cast. But that reason for the requirement, however, loses its force in the present case, in the face of the facts that the voters were not only apprised of the changes, but encountered no difficulty in casting their votes notwithstanding the same. Many cases from other jurisdictions are cited by plaintiffs in support of this contention, but an analysis of them, if carefully made, will show that in each instance there was either present a mandatory statute, or that the changes made interfered with the freedom of action of the voter and, as a consequence, prevented a fair election.

We have given express judicial approval to the conclusion we have here reached. First, in State ex rel. Canton v. Allen, 178 Mo. l. c. 576, in which we held that where there was no pretense that the election was fraudulent, or that it was hot the expression of the will of the people, that a change in the polling places was nothing more than an irregularity, and should not be held to invalidate the election (citing cases). This ruling has been subsequently affirmed in the recent case of State ex rel. Memphis v. Hackmann, 273 Mo. l. c. 695.

The Court of Appeals, for like reasons, hold that the contention here made, under facts parallel with those in the instant case, to be without merit. [Bauch v. Cabool, 165 Mo. App. 494; State ex rel. Fahrman v. Ross, 160 Mo. App. l. c. 693; O’Laughlin v. Kirkwood, 107 Mo. App. 302.]

IV. There is no merit in the contention that the election was invalid because the county court appointed but two judges and two clerks for each election Precinct. The general law, which required the appointed of six judges and six clerks, was amended in 1913 (Laws 1913, p. 327), so far as regards the manner of holding special elections for the purpose of voting bonds for road purposes, it being expressly provided by the amendment that only two judges and two clerks for each voting precinct was necessary. The act approved April 9, 1917 (Laws 1917, p. 471), which provides that bond elections shall be held in the same manner, etc., as general elections, has reference to the general law as it then existed which includes the amendment of 1913, supra, with which the action of the county court was in accord. Aside from this, the law governing the appointment of judges and clerks. is clearly directory, and courts will not nullify the result of votes honestly cast and counted, although the statute has not been strictly complied with, [Sanders v. Lacks, 142 Mo. 255.]

V. It is urged that the failure of the county court to cause to he entered of record an order directing the clerk to give notice of the supplemental registration invalidated the proceeding. This, notwithstanding the fact that the clerk .in his official capacity published the notice in conformity with the requirements of the law. The notice having been published, no voter could have been deprived of an opportunity to register, and the basis of the contention must rest wholly upon the technicality of the absence of the record entry. This, in the presence of affirmative proof that no Injury arose from the omission, affords litle reason for the sustaining of this contention. The will of the people, fairly expressed at the polls, ought not to be rendered ineffectual by the interposition of objections which go merely to the oversight or unintentional omissions of officers charged with purely administrative duties. There in nothing in Section 6070, Bevised Statutes 1909, concerning days of registration and notice of same, which militates against the conclusion that the action of the county court in regard thereto was not .in substantial compliance with the law. While this section requires that registrations shall be held at the places of voting, established by the county court, we have' shown that this requirement is directory in discussing the location of polling places, and ample notice having been given and no ground of complaint coming from the voters, there remains nothing in this regard upon "which to base a ground of complaint meriting a reversal of the judgment.

VI. The record discloses that the required petition for the special election was filed with the county court; that a formal order therefor was made and entered of record; that notice of same was published as required by law. These grounds of complaint, although presented by the petition, are not pressed upon our consideration, and if so, would be held without merit in the face of the facts. Hence they need not be discussed.

VII. In addition to the lack of substantial error in any of the assignments made by plaintiffs, we are confronted by this fact, that in thirty precincts outside of the City of St. Joseph, and in twenty-three therein, in which there was no issue of irregularity other than in the number of judges and clerks, which we have shown to be without foundation, there were 3559 votes cast for the bonds,' and 849 against them. The statute provides that if it appears that two-thirds of the qualified voters voting at the election favor the issuance of the bonds, the court shall order same. [Laws 1917, p. 471, sec. 85.] The affirmative result in the instant case shows that more than four to one, of the votes cast in precincts free from irregularities, were in favor of the issuance of the bonds. Under this state of facts, the holding as to the lack of substantial error, in addition to being supported by precedents, is in accord with the express will of the people and constitutes such an interpretation of the election laws as comports with the administration of justice.

In view of all of which, the judgment of the trial court'is affirmed, and it is so ordered.

Bond, C. J., Williams, Graves and Blair, JJ., concur; Woodson, J., dissents in a separate opinion, in which Faris, J., concurs:

WOODSON, J.

(dissenting). — While I fully concur in the views expressed in the majority opinion to the effect that mere irregularities should not nullify an election fairly and honestly held, yet I do . most earnestly dissent from the proposition that, an election which the law requires to be held under the Australian Ballot Law, if held in total disregard of that law, is a valid election. That the Australian Ballot Law applies in .this case is not denied, and that it was totally ignored is conceded, yet it is held that such an election is valid. This is strange doctrine to me, since there is no other law in existence in this State governing elections of any kind, except school and perhaps some other minor elections; therefore, the conclusion is irresistible that this election was held under no law whatever — only a voluntary election held by common consent of those who participated therein. I say this, because, prior to the enactment of the Australian Ballot Law, we had an elaborate system of laws governing all kinds of elections, hut upon its enactment it superseded all of those laws, except as previously- stated.

Moreover,- if this election is valid, then the general elections for the election of State, Federal, and county officers may be held in total disregard of the Australian Ballot Law, and yet be valid, if no fraud is shown, which all know would be an almost impossible thing to do.

For the’reasons stated, I dissent from the majority opinion

FARIS, J., concurs herein.


author: BLAIR, P. J.

text:
    P. A. GRISWOLD, Commissioner, v. MAX HAAS, Appellant.
    In Banc,
    March 15, 1919.
    1. SALES: Disclosed Agent: Misrepresentation of Authority: Action for Damages. If one represents himself to be the agent of a disclosed principal and attempts to contract in the name of such principal without authority or in excess of authority, he becomes liable to the vendor, not on the contract, unless it contains apt words to bind him, but for breach of the express or implied covenant of authority, or, in a proper case, in an action of fraud and deceit. [Distinguishing Myers Tailoring Co. v. Keeley, 58 Mo. App. 1. c. 495, where the agent contracted in his own name.]
    2. -:-:-: Measure of Recovery. In an action against an agent on a breach of an implied or express covenant that he in bidding for bonds sold at public sale was the agent of a disclosed principal, the measure of recovery is the damage suffered by the breach of the warranty of authority. And there must be some showing of that damage; if the vendor retains the bonds, it is not sufficient to show that the agent’s bid was so much and that a part of it had been paid. The suit is not one on the contract of sale; it is one for damages for a breach of warranty of authority to buy, and the amount of recovery is the damage to the vendor flowing from that breach.
    3. -; -: Ratification: Admission. One may ratify the act of another who undertook, without property authority, to act as his agent and purchase bonds for him at public auction, and such ratification is retroactive. But the trial court is not compelled to find, from the inconsistent testimony of the disclosed principal who repudiated the agency, that there was such ratification.
    4. -: -: Pleading. In an action for damages for a breach of a warranty of agency, the statement or petition should negative defendant’s agency.
    Appeal from St. Louis City Circuit Court — Hon. Eugene McQuillin, Judge.
    REVERSED AND REMANDED.

      Henry H. Furth for appellant.
    (1) Tlie appellate court will review tire facts for the purpose of determining" whether or not there is any substantial evidence to support the finding. Ettlinger v. Kahn, 134 Mo. 497; James v. Hicks, 76 Mo. App. 108; Ray County Savings Bank v. Hutton, 224 Mo. 72; Orchard v. Smith, 193 S. W. 574. A finding of facts is conclusive only when supported by substantial evidence. Vincent v. Means, 297 Mo. 709; Barker v. Scudder, 56 Mo. 72; Freeman v. Moffitt, 119 Mo. 294. (2) The finding of fact that after the sale McLain did not approve the purchase of the bonds by appellant as his agent is without any foundation in the evidence. The uncontradicted testimony sliows that MeLain expressly ratified the purchase almost immediately after it was made. This is tantamount to express prior authorization and relates back to the sale itself. Flesh v. Lindsay, 115 Mo.' J ; Turner v. Chillicothe & Des Moines R. R. Co., 57 Mo. 501; First National Bank v. Cray, 63 Mo. 33; Ruggles v. Washington Co., 3 Mo. 496; Ferris v. Shaw, 72 Mo. 446; Hackett v. Van Frank, 105 Mo. App. 384; Smith v. Jefferson Bank, 120 Mo. App. 527, 550; Lingenfelder v. Leschen, 134 Mo. 55. (3) The finding of the court that McLain, after the sale, did not recognize and approve the purchase of the bonds made by appellant as his agent, and the judgment rendered thereon, are not only without any substantial evidence to support them, but are directly against all of the evidence. Lingenfelder v. Leschen, 134 Mo. 55; Sheffield v. Ladue, 16 Minn. '388; 31 Cyc. 1550, 1551. (4) The finding of damages in the amount of the unpaid balance of the bid is without any foundation whatsoever in the evidence. Under the evidence in the record appellant could not in any event recover more than nominal damages. The measure of damages is the loss, if any, which has accrued to the third party as the natural and probable consequence of the want of authority in the.supposed agent. As appellant has not parted with his bonds, he suffered no loss' unless the bonds are worth less than the price bid for them. No proof has been offered that they are worth any less; therefore no damages have been established. LeEoy v. Jacobsky, 136 N. O. 443;'Baltzen v. Nicolay, 53 N. Y. 469 ; 31 Oye. 1551; G-roeltz v. Armstrong, 125 Iowa, 39; "White v. Madison, 25 How. Pr. 481; Simons v. Patchett, 7 Ell. & Black, 568; Hall v. Crandall, 29 Cal. 567, 89 Am. Dec. 64; Woodes v. Dennett, 9 N. H. 55; Wright v. Baldwin, 51 Mo. 269; Williams v. DeSoto Oil Co., 213 Fed. 194; Skaaraas v. Finnegan, 31 Minn. 48; Knoch v. Haizleip, 163 Cal. 146. The rule that the contract price is the measure of damages obtains only in suits by a seller against a buyer for refusal of the buyer to accept the goods. Black Eiver Lumber Co. v. Warner, 93 Mo. 374; Crown Vinegar & Spice Co. v. Wehrs, 59 Mo. App. 493; Eeinhard on Agency, sec. 307, p. 306; Story on Agency (9 Ed.), sec. 264a, p. 314. In this case there was no sale of the bonds, if the plaintiff’s theory of the case is correct. His suit is predicated on a loss alleged to have been sustained by reason of the failure of the sale. If he proved that appellant was not the agent of McLain, then there was no sale of the bonds; therefore the contract price cannot be the measure of the damages. Hall v. Crandall, 29 Cal. 567.

      John B. Denvir, Jr. and P. A. Griswold for respondent.
    (1) Where one without authority assumes to act as the agent of another and makes a contract, he becomes personally liable. Smout v. Ilbery, 10 Meeson & Welsby’s Rep. 1; Randell v. Trimen, 37 Eng. Law & Equity, 275; Wright v. Baldwin, 51 Mo. 269; Duffy v. Mallinkrodt, 81 Mo. App. 449; Griswold v. Haas, 191 Mo. App. 97. (2) The cases cited by Judge AlleN in his dissenting opinion go no further than to hold that one who assumes to contract for another without authority will be liable for the damages caused by his false representations. Byars v. Doores, 20 Mo. 284; Wright v. Baldwin, 51 Mo. 272; Hotel Co. v. Furniture Co., 73 Mo. App. 135. . .
   BLAIR, P. J.

This cause was appealed to the St. Louis Court of Appeals. The judgment was affirmed. Judge AlleN dissented- and certified the cause here because he thought the decision in conflict with certain decisions of this court and the Kansas City Court of Appeals.

In 1907, respondent was, by the Circuit Court of the City of St. Louis, appointed commissioner to make a sale of certain bonds involved in litigation pending in that court. He duly offered the bonds for sale, and, appellant making the highest bid, they were knocked down to him at a price of $276, fifteen dollars of which was paid at the time. When respondent asked him who was the purchaser, appellant stated that he bought them for George F. McLain. Respondent, as commissioner, reported to the court the sale of the bonds to .McLain, and that sale was duly approved. Later, respondent tendered the bonds to McLain and demanded the balance of the sale price, $261. McLain refused to accept the bonds or pay tbe balance. Tbis was reported to tbe circuit court, and respondent ordered to bring suit. Respondent bad tbe bonds in bis possession. He sued appellant Haas on tbe contract of sale. Tbe case reached tbe Court of Appeals. [Griswold v. Haas, 145 Mo. App. 578.] Tbe statement averred a sale to Haas, and tbe suit was one to recover tbe purchase price. Tbe court held there was “a fatal departure from tbe allegations of tbe petition.” It'held that respondent Griswold’s testimony in that case disclosed “a sale to McLain, a report to tbe court of tbe fact of a sale to McLain, and an approval and confirmation by tbe court of a sale to McLain.” Tbe court said Haas bad not, in that case, been “sued as agent* nor for deceit in pretending to be an agent, when in fact be was principal.” Tbe court held, citing au-tborites, that the suit was one for goods sold and delivered,, and that Haas could not be held in such an action; that “where one acts professedly for another, but without authority, be renders himself individually liable;” that tbe remedy is “for deceit, or in assumpsit upon the express or implied warranty of authority. If be knowingly and falsely represents that be had authority to act, tbe former remedy is the appropriate one. If be makes tbe representation in good faith, then tbe latter remedy should be pursued.” The court thereupon reversed tbe judgment outright.

Subsequently, respondent brought tbis suit. The petition or statement sets forth tbe proceedings authorizing tbe sale of tbe bonds and tbe time and terms of sale, and proceeds:

“Plaintiff further states that tbe defendant herein being tbe highest and best bidder for said bonds, tbe same were struck off and sold to him for tbe sum of $276, and defendant then and there paid to plaintiff tbe sum of $15 required on account of the purchase price of' said bonds.
“That upon plaintiff inquiring who tbe purchaser was the defendant stated that one G. F. McLain was.
“That thereafter, to-wit, on the first day of July, 1907, said sale of said bonds made on the 21st day of February, 1907, was approved by said circuit court.
- ‘ ‘ That thereafter, to-wit, on or about the 3rd day of July, 1907, plaintiff made a tender of said bonds to said Gr. F. McLain and demanded of him the sum of $261, the balance of the purchase price of said bonds.
‘ ‘ That said Gr. F. McLain denied that defendant was his agent or authorized to use his name or represent him in the purchase of said bonds, and refused to receive said bonds, or to pay the balance of the purchase price thereof and has ever since refused to do so.
“That plaintiff is now and has ever been ready to deliver said bonds upon the payment of the purchase price.
“That by reason of the premises plaintiff has been damaged in the sum of $261, together with interest thereon from the 1st day of July; 1907.
“That on or before, to-wit, the 14th day of January,. 1908, the circuit court in said Division No. 5 ordered plaintiff herein to institute legal proceedings to recover the balance of the purchase price of said bonds.
“Therefore, plaintiff prays judgment against defendant in the sum of $261-and interest from July 1st, 1907, and for costs.”

The trial court, on defendant’s request, made the following finding of facts. It found facts showing respondent’s authority to sell the bonds, the fact of sale, and that:

“At said sale defendant was the highest and best bidder and thereupon said bonds were struck off to him for the price of $276, and at said time defendant paid to' plaintiff the sum of $15 on account of said purchase; that on inquiry concerning the name of the purchaser defendant stated the purchaser was George F. McLain, and that subsequently the sale was duly approved by Division No. 5 of this court.
“That after said plaintiff made a ténder of said bonds to said McLain and demanded of him the balance of the purchase price, namely, $261, and that said Mc-Lain repudiated the agency of defendant.
“The court further finds that defendant was not authorized to purchase said bonds for said McLain, and therefore was not the agent of said McLain in said purchase; and that after said sale said McLain did not recognize and approve defendant’s purchase of said bonds as his agent.
, “The court further finds that there is due on account of said purchase by defendant the sum of $276, less $15, the amount paid at the time.”

The last sentence was subsequently modified as hereinafter pointed out.

The court rendered judgment against appellant for $261. An appeal took the case to the Court or Appeals. The majority opinion holds that the measure of damages was the difference between the amount bid and the sum paid; that the value of the bonds was immaterial; and that the judgement was for the right party and should be affirmed

It is to be kept in mind that respondent now has the bonds and, also, a judgment exactly equivalent to the unpaid portion of the bid made at the sale.

I. On the first appeal in the first suit (Griswold v. Haas, 145 Mo. App. l. c. 585) it was held that, “the proper action in a case of this kind where one falsely represents himself as agent, is not on the contract itself, but against the agent for damages.”

The general rule, subject to exceptions not here involved, which is supported by reason and the weight of authority, is that if one represents himself as the agent of a disclosed principal and attempts to contract in the name of such principal without authority or in excess of his authority, he becomes liable to the third party. Not on the contract, unless it contains apt words to bind him, but for breach of the express or implied convenant of authority or, in a proper case, in an action of fraud and deceit. The decisions in this State are in accord with this rule. [Wright v. Baldwin, 51 Mo. 269; Lingenfelder v. Leschen, 134 Mo. l. c. 63; Hotel Co. v. Furniture Co., 73 Mo. App. l. c. 139.] In Myers Tailoring Co. v. Keeley, 58 Mo. App. l. c. 495, appears an expression which might seem contrary to this rule. The appearance of conflict disappears when it is noted that the agent in that case contracted in his own name. It, therefore, results that the applicable rule of law and a previous adjudication between these parties precludes a recovery by respondent against appellant on the contract.

II. In a case like this the measure of recovery is the damage suffered by breach of the warranty of authority. [Wright v. Baldwin, 51 Mo. l. c. 272; Gestring v. Fisher, 46 Mo. App. l. c. 612, 613; Lingenfelder v. Leschen, 134 Mo. l. c. 64.]

Let it he assumed the statement states a cause of action under the rules just referred to. The trial court first found that “there is now due on account of said purchase bp defendant the sum of $276, less $15, the amount paid at the time. ’ ’ Subsequently, it changed this finding to read: “The court further finds that plaintiff has been damaged in the sum of $261.”

This finding is attacked. Respondent does not contend the rules stated above are inapplicable, hut concedes, in his argument, their applicability. His position is that the finding and judgment are right under these principles. There was no evidence offered tending to show the actual value of the bonds. There was no showing that the bonds are worth less than the amount bid for them. No evidence of the costs and expenses of the sale was tendered. In fact, no evidence of loss or damage was adduced. Respondent has the bonds and he has the $15 paid him by appellant. The recovery was permitted solely upon the showing that the hid was $276 and only $15 had been paid. In other words, recovery was allowed in an action for damages without any evidence that damage had been suffered-

If there was a valid contract of sale, this action for damages cannot be sustained at all. It there was no such contract, then respondent did not lose title to the bonds. There was no showing the bonds were worth less than the bid. If the bonds are worth anything, a recovery," under the .statement, of the full difference between the bid and the amount paid is wrong. There was no evidence of damage, and, consequently, no evidence to support any judgment against appellant.

III. Appellant urges that the evidence establishes as a matter of law that McLain ratified the contract. One may ratify the act of another who undertook, without proper authority, to act as his agent, and such ratification is retroactive. [Lingenfelder v. Leschen) 134 Mo. l. c. 64, 65.] The contention of appellant is that an express ratification was conclusively shown. This contention is founded upon the testimony of McLain who was offered as a witness by respondent. His testimony is not entirely consistent with itself. The trier of the fact was not bound to find all that he said was true. The fact that respondent offered him did not necessarily require the court to believe him. He was not a party to the suit. Apparently the court did not believe part of his testimony.

IV. The suit was begun before a’ justice of the peace. The sufficiency of the statement is. challenged. It is open to some objection. We think it amendable. One particular in which it fails is that it does not negative appellant’s agency. It states merely that McLain denied such an agency. It can be reframed so as to meet the objection made in case there is another trial. The judgment is reversed and the cause remanded.

Faris, Woodson and Williams, JJ., concur; Walker, J., concurs except in paragraph 4; Graves, dissents.