text:
    EMMA SWIFT v. JAMES H. BUFORD, Appellant.
    Division Two,
    January 6, 1920.
    1. SHERIFF’S DEED: Last Above Described. Tract: Lands Sold. Á sheriff’s deed which .describes three tracts of land as having been exposed to sale by him, and then says that “the said last above described tract was stricken off and sold” to the purchaser, conveyed only the last tract described, and did not convey the other two tracts. But the question whether or not the other two tracts were sold, though not conveyed, still remains.
    2. -: Deed of Correction: No Sale. Under the statute (Sec. 2239, R. S. 1909) declaring that where, “after the sale of any property” and “after executing a defective, conveyance therefor,” the sheriff shall remove from the State, the sheriff in office, having obtained an order from the circuit court to do so, may execute a deed of correction, neither the sheriff has any authority, nor the circuit court any authority to direct him, to execute a deed of correction conveying land which had not been sold by the former sheriff. It is not sufficient that there had been an intention to sell; there must have been an actual sale, and no conveyance or an imperfect conveyance.

      3. -: Evidence of What Tracts Were Sold: Acknowledgment: Return. A recital in the sheriff’s deed that three tracts were exposed to sale and that a named purchaser was the highest and best bidder is not negatived by a recital that “the last above tract was stricken off and sold” to him; and a description of the three tracts in the acknowledgment which the sheriff files with the clerk of the court, which the statute requires the clerk to make, indicates that the sheriff thought he sold the three tracts. But the best evidence of what was actually sold is'probably the sheriff’s return upon his execution and his report of sale.
    4. -: Recitals in Deed of Correction: Prima-facie True. Recitals in a deed of correction made by a sheriff are prima-facie evidence of their truth only where such recitals are required by the statute; but Section 223.9 says such a deed made in pursuance to its requirements “shall have the same effect” as if made by the officer making the sale, and that means that the recitals required by Sections 2231 and 11501, if contained in the deed of correction, are prima-facie true, and among the recitals required by them are “the names of the parties to the execution, the date when issued, the date of the judgment, a description of the property, the time, place and manner of the sale,” and other particulars.
    5. -:--: -: Lands Sold: Decree of Court. Recitals in a sheriff’s deed of correction that at the former sale the three tracts described were sold and stricken off to the purchaser to whom the last described tract was conveyed, that a petition was filed in the circuit' court praying that a deed of correction be executed by the sheriff in office and that an order finding that the three tracts were sold was made, are all prima-facie evidence of their truth; and consequently the grantee is required to introduce only the corrected deed in evidence in order to make out his prima-facie right to recover.
    6. -¡Complete Sale: Lands Sold: Deed of Correction. A sheriff’s deed which fails to convey all the lands sold is not a complete instrument, and consequently it can be corrected by a deed of correction made in pursuance to the statute.
    7. INNOCENT PURCHASER: Land in Possession of Another. One who buys land in the open and visible possession of a third person is chargeable with notice of the title and right of that person, and is not an innocent purchaser.
    Appeal from Shannon Circuit Court. — Hon. E. P. Dorris, Judge.
    Eeversed and remanded.

      John H. Chitwood. C. M. Buford and Franklin Miller for appellant.
    (.1) The judgment in this cause should have been for appellant. Coombs v. Crabtree, 105' Mo. 292, (2) The evidence is not the same as in. the cases on -which respondent relies ..for affirmance of this judgment, name-iv: Sanzenbaeher v. Santhuff, 220 Mo. 274; DePaige v. Douglas, 2'3'4 Mo. 88; Davidson v. Laclede Land & Imp. Co., 253 Mo. 223; Laclede Land & Imp. Co. v. Schneider, 17(7 S. W. 388. (3) The sheriff’s deed to Jad.win recites that the judgment upon which it was based directed the sheriff to sell all of the land therein described, or a sufficient quantity to satisfy the judgment for' taxes and costs; and such recital in this deed' is primafacie true. R. S. 1909, sec. 11501. (4) The amended sheriff’s deed to appellant cured whatever defect may have existed in the original taxi deed. Ozark Land &■ Lumber Co. v. Franks, 156- Mo. 673; R. S. 1909, sec. 2239; Talley v. Schlatitz, 180 Mo. 240; Brannock v. Henry, 158 S. W. 385. (5) The sheriff’s amended deed related back to the date of the original tax deed, to the original exercise of the power of sale, and took effect by relation as of that time. Griffin v. Franklin, 224 Mo. 667; Ozark Land &■ L. Co. v. Franks, 156 M’o. 680; DePaige v. Douglas, 234 Mo. 86.

      J. W. Chilton and John W. McClellan for respondent.
    (1) The original sheriff ’s deed did not convey nor purport to convey the land. in controversy, namely, Section 20, Township 29, Range 1 west. Davidson v. Laclede Land & Improvement Co., 253 Mio. 231; Laclede Land & Improvement Co. v. Schneider, 177 S. W. 388; DePaige v. Douglas, 234 Mo. 78; Sanzenbaeher v. Santhuff, 220' Mo. 274; Spicer v. Howe, 38 Kan. 465. ‘(2)', It is the duty of a sheriff selling land at a /tax sale to sell it in tracts rather than in solido and he has no right to sell several tracts together unless directed so to do by tbe execution defendant. Sec. 2206', R. S. 1900; Sbelton v. Franklin, 224 Mo. 342; Yeanaan v. Lepp, 167 Mo. 61; DePaige v. Douglas, 234 Mo. 85; Griffin v. Franklin, 224 Mo. 667. (3) The law, however, presumes that an officer does his duty in the absence of proof to the contrary, and that he sold the land in tracts, as required by law. Owen v. Baker, 101 Mo. 413 ; State v. David, 131 Mo. 3'95; State ex reí. v. Crumb, 157 Mo. 556. (4) It is a general rule of law that no intendment can be made in support of tax deeds; hence words necessary to identify the land will not be supplied by inference or presumption. 37 Cyc. p. .1449; Nelson v. Braddock, 44 Mo. 608. A sheriff’s deed for. taxes should be strictly construed in favor of the original owner of the land. 37 Cyc. p. 1451. (5) An imperfect or defectively executed sheriff’s deed for delinquent taxes may be amended to conform to the sale as actually made upon proof of facts warranting such amendment. But a sheriff’s deed can never be amended to make it convey land which was never in fact sold. The statute authorizing amendments of sheriff’s deeds has no application to perfect deeds perfectly executed; it applies only to defective deeds or deeds defectively executed. A sheriff’s deed can never be amended to convey land which it may have been the intention of the sheriff to sell, but which he did not sell. Talley v. Schlatitz, 180 Mo. 231; Smith v. Vickrey, 235 Mo. 413; Keller v. Hawk, 19 Okla. 407; Clialfield v. Iowa & Ark. Land Co., 88 Ark. 395; Gould v. Thompson, 45 Iowa, 451; 37 Cyc. 1429. See also, Hewitt v. Storch, 31 Kan. 488. (6) A sheriff in office can exercise no greater powers in making an amended deed than could his predecessor in office, who sold the land. In re Grunzler, 70 Mo. 40. (7) There is nothing-in this record justifying the application of the doctrine of relation in behalf of appellant. Respondent is shown to have been a purchaser of the land for a valuable consideration and without any notice of appellant’s present contention, such purchase having been made from the heir .of the original owner, by warranty deed, before appellant procured Ms so-called amended deed, and wlaile tbe deed records of Shannon County disclosed the title to be in respondent’s grantors. Brannock v. McHenry, 156' S. W. 385; Shelton v. Franklin, 224 Mo. 683'; Griffin v. Franklin, 224 Mo. 360. This is an action at law, and the finding of fact by the trial court to the effect that respondent is an innocent purchaser of the land for value and without notice of appellant’s claim is the same as if such finding had been made by a jury and will not be disturbed by this court. Daman v. Rimme, 246 Mo. 2S'3; Nickey v. Leader, 235 Mo. 30; Williams v. Sands, 158 S. W. 47.
   WHITE, C.

This action was begun October 7, 1916, under Section 2585, to determine title to a tract of land in Shannon County, Missouri, described as all of Section 20, Township 29, Range 1 west. A count in ejectment also is in the petition. There was a judgment for plaintiff and the defendant appealed.

It ms stipulated that one E. W. Echols was the common source of title, and the owner on and before March 14, 1888, and that the defendant had been in possession of the property for one year prior to the bringing of this suit. Echols died in 1910, and his title descended to Mary Echols Bell, his only heir, who conveyed to Frank P. Swift, April 15, 1910. Swift died after the institution of this suit, having devised the land to his widow, the present plaintiff.

The defendant claims under a sheriff’s deed executed March 14, 1888, under a judgment against E. W. Echols, enforcing a tax lien and a sale for taxes; also a second! sheriff ’s deed executed on the tenth day of May, 1916, in correction of the first sheriff’s deed, and mesne conveyances.

The first sheriff’s deed recites that a judgment was rendered September 17, 1887, in the Circuit Court of Shannon County, for delinquent taxes in the sum of sixtv-two; dollars and fifty cents, which was found by the court to be due upon the following described real estate, to-wit;

"Parts of sections “Lot or block
“Tract No. Addition or Town Soc’t. Tw’p. Range Block
1 W 1-2 20 29 1
2 E 1-2 20 29 1
3 NE 1-4 22 31 4
“And that the taxes and interest found due upon said real estate, and the years for which the same were assessed are upon each of the above described tracts as follows, viz:
Tract Years for which
No. taxes were found due Tax Interest Total
1 1884 & 1885 . x 25.09
2 1884 & 1885 25.09
3 1884 & 1885 12.35”

The deed further recites that a special execution and order of sale was issued from the clerk’s office on the seventeenth day of January, 1888, by virtue of which the sheriff, William M. Freeman, levied upon “the above described real estate.” It recites the publication of the notice of sale, and the sale March IS, 1888, in the following words:

“I did expose to sale at public auction, for ready money, the above described real estate and James A. Jadwin being the highest bidder for the following described real estate, viz:
“Is W2 of section twenty and the east half of section twenty, in township twenty-nine, range one west, and the northeast quarter of section twenty-two, in township thirty-one, range four west.
“Section No.....In township No.....north of range .... west
acres, for the sum of thirty-seven dollars, the said last above described tract was stricken off and sold to the said James A. Jadwin for the sum bid therefor by him as above set forth.
“Now, therefore, in consideration of the premises, and the sum of thirty-seven dollars, to me, the said Sheriff, in hand paid by the said James A. Jadwin, the receipt whereof I do hereby acknowledge, and by virtue of the authority in me vested by law, I, W. M. Freeman, Sheriff, as aforesaid, do hereby assign, transfer and convey unto the said James A. Jadwin all the above described real estate so stricken off and sold to him that I might sell as sheriff as aforesaid, by virtue of the aforesaid judgment, execution and notice.”

The deed was duly signed by W. M. Freeman, Sheriff, and his acknowledgment certified by the Clerk of the Circuit Court in the ordinary form. It was filed for record March 19, 1888.

The record in the office of the Clerk of the Circuit Court of that acknowledgment described the land as follows:

“3st. W 2 of section twenty and the east half of section twenty, township 29, range 1 west, northeast quarter of section 22, in township 31 north, of range 4 west. ’ ’

The second sheriff’s deed dated the tenth day of May, 1936, executed by O. O. Chilton, then Sheriff of Shannon County, recites the judgment of September 37. 3887, for taxes against the following described real estate, to-wit: '

“Tract One — The west half of section twenty, in township twenty-nine, range one west.
“Tract Two — The east half of section twenty, in township twenty-nine, range one west.
“Tract Three — The northeast quarter of section twenty-two, in township thirty-one, range four west.”

The deed then recites the amount of taxes due for each year for which the tract was delinquent, the amount of interest as in the first sheriff’s deed, the judgment, special execution, and the order of sale on the seventeenth day of January, 1888, delivery to Wm. M. Freeman, then sheriff, the levy and notice of sale, as in the original sheriff’s deed, and that said Freeman, sheriff, pursuant to such notice on the thirteenth day of March, 3888, did:

“Expose to sale at public auction for ready money all the above described real estate, and James A. Jadwin being the highest bidder for all the above described real estate, to-wit, all 'of section twenty, in township twenty-nine, range one west, and the northeast, quarter of section twenty-two, in township thirty-one, range four west, for the sum of thirty-seven dollars, all of the aforesaid real estate was by said Sheriff stricken off and sold to the said James A. Jadwin for the said sum of thirty-seven dollars.
“And, whereas, on the 14th day of March, 1888, said Wm. M. Freeman, as Sheriff of said county as aforesaid, executed and delivered a deed to said James A.. Jadwin for all of the aforesaid land, which said deed, upon the petition of Jamies H. Buford, was, by the Circuit Court of Shannon County, Missouri, at its May Term, 1916, found to be defective, and that said Wm. M. Freeman, the Sheriff as aforesaid, who executed the aforesaid deed, is now a non-resident of the State of Mis'sourt.
“And, whereas, upon the aforesaid petition and the hearing thereon by the said Circuit Court at its May Term, 1916, and on the 9th day of May, 1916, it was further found by said court tnat said James A. Jadwin has since the aforesaid sale, assigned, transferred and conveyed all his right, title and interest in and to said real estate so acquired by him at such Sheriff’s sale, and that by mesne conveyances all of said Section Twenty, in Township Twenty-nine, Range One west, is vested in the said James H. Buford.
“And, whereas, after hearing the evidence offered by said James H. Buford in support of his aforesaid petition, the said court ordered and directed that I, as the present Sheriff of said county, execute and deliver to said James H. Buford a deed for all of said section twentj in township twenty-nine, range one west.
“Now, therefore, in consideration of the premises, the order of said court, and the sum of thirty-seven dollars so paid by the said James A. Jadwin to the said Vm. M. Freeman as Sheriff as aforesaid, and by virtue of the authority in me vested by law, I, C. O. Chilton, Sheriff of Shannon County, Missouri, do hereby assign, transfer and convey unto the said James H. Buford all of said Section Twenty (20), in Township Twenty-nine (29) Range One (1) west, situate in Shannon County, Missouri, that I might sell and convey by virtue of the aforesaid judgment, notice and order of court.”

The deed was then, on the same day, duly signed and acknowledged by Chilton as sheriff.

W. M. Freeman was sworn and examined on behalf of plaintiff and testified that he was sheriff of Shannon C'onnty from 1887 to 1891. That he was away from Shannon County, in Oklahoma, from August, 1915 to November, 1916. He had no recollection of his sale of the land as sheriff, nor of the first sheriff’s deed produced in evidence. He testified further that he conducted sheriff’s sales on advice of counsel, and that the sheriff’s deeds which he executed while in office were presumed to correspond with printed forms of deeds in the recorder’s office.

The plaintiff claimed under the will of her husband, Frank P. Swift, and offered depositions to show that Frank P. Swift acquired the land April 15', 1916, for a valuable consideration of fifteen hundred dollars.

I. The respondent asserts that the first sheriff’s deed conveyed no title to the land in dispute to Jadwin. it will be noticed by the recitals in the deed that the judgment for taxes covered three tracts of land; the west half of Section 20, Township' 29, Range 1 west; the east half of Section 20, Township 29, Range 1 west; and the northeast quarter of Section 22, Township 31, Range 4 west. The first two are involved in this case. 'The recitals show that James A. Jadwin was the highest bidder for the three tracts above mentioned for the sum of thirty-seven dollars; but continue thus:

-“The said last above described tract was stricken off and sold to the said Jamies A. Jadwin for the sum bid therefor by him as above set forth.”

The sheriff then conveyed to Jadwin “all the above described real estate so stricken off and sold to him.” It is claimed by respondent that inasmuch as there are three tracts described, “the said last above described tract” could refer only to the northeast quarter of Section 22, Township 31, Range 4 west.

In the case of DePaige v. Douglas, 234 Mo. 78, where the recitals in the sheriff’s deed were almost exactly like those under consideration, it was held by this court in an opinion by Lamm, J., that only the last mentioned tract passed by the deed (l. c. 83). Judge Lamm: in that opinion notes that, it is doubtful whether the recital showed the bidder actually bid for and purchased all the land oh only the last tract; he resolves the doubt in favor of the suggestion of conscience and held that the deed conveyed only_ the last described tract. The opinion in that case .was followed in the case of Davidson v. Laclede Land & Imp. Co., 253 Mo. 223.

On the authority of those cases Sheriff Freeman by the first deed mentioned conveyed only the last mentioned tract and did not convey any part of Section 20 which is involved in this suit.

II. Respondent likewise attacks the second sheriff’s deed made to correct the defects in the first. The deei was made pursuant to Section 2239, ... . . . ’ which we quote for convenience in noting its requirements:

“Sec. 2239. After sale, how to obtain deed. — When any officer shall die, be removed from office or disqualified, or shall remove from this State, after the sale of any property and before executing- a conveyance therefor, as required by law, or after executing a defective conveyance therefor, the purchaser, his grantee, or anyone claiming by, through or under the purchaser, may petition the court out of which the execution issued, stating the facts, verified by affidavit, and if said petitioner satisfy the court that the purchase money has been paid, the court shall order the sheriff then in office to execute, acknowledge and deliver a deed to the purchaser, or if he be dead, to his heirs, and if the purchaser has sold the same, to his grantee, or to the party claiming by, through or under said purchaser, recitin'; the facts; which deed shall be executed accordingly, and shall have the same effect, to all intents and purposes, as if made by the officer so deceased, removed from office, disqualified or absent from the State.” ’ •

As very properly argued by respondent, the statut - gives no authority to the court to order, or to the sheriff to execute, a deed under Section 2209', unless the land which it purports to convey has in fact -been sold. It is not sufficient that there was an intention to sell it or a desire to sell it; there must have been an actual sale and no conveyance or an imperfect conveyance. [Talley v. Schlatitz, 180 Mo. 231; Smith v. Vickery, 235 Mo. 413; Cummings v. Brown, 181 Mo. 711, l. c. 715-6.]

It is asserted that the second sheriff’s deed was not authorized for several reasons: because no proof was presented of an actual sale of the land in Section 20; because no record proof is shown that a petition.! was filed or order made as required by Section 2239, and because the first sheriff’s deed was not defective.

While the first sheriff’s deed conveyed only the quarter section in Section 22, it recites that all the land was exposed to sale and “James A. Jadwin being the highest and best bidder for the following described real estate,” etc.; then follows a description of all the land, including Section 20. Though the deed goes on to say thej last above described tract was stricken off and sold to him, this does not negative the idea that the other-tract - may also have been sold to him. In the acknowledgment spread upon the record by the clerk of the court all the land including Section 20 is described. That is a record which the statute, Section 2233, Revised Statutes 1909, requires the clerk to make. It is unnecessary to inquire what force such an entry would have as evidence of an actual sale, but it does indicate that the sheriff thought he had sold all the land described.

The second sheriff’s deed contains very full recitals and it becomes important to inquire just what recitals in that deed furnish prima-facie evidence of their truth.

The recitals of the deed are prima-facie evidence of their truth only where such recitals are required by the statute; recitals not required by the statute are not evidence of anything. [Jordan v. Surghnor, 197 Mo. 520, l. c. 525; Scharff v. McGaugh, 205 Mo. 344, l. c. 358; Butler v. Imhoff, 238 Mo. l. c. 595; Toler v. Edwards, 249 Mo. l. c. 164.]

Section 2239' provides that a deed made pursuant to its requirements “shall have the same effect to all intents and purposes, as if made by the officer so deceased ... or absent from the State.

Section 11501, Revised Statutes 1909, makes a deed by the sheriff in a sale for delinquent taxes “primafacie evidence of title and that the matter and things therein stated are true.” Since a deed made pursuant to Section 2239' “must have the same effect,” the recitals required by that section are prima-facie true.

The recitals required by Section 2231 are applicable to a deed made -by an officer who ‘ ‘ shall sell any land, ’ ’ which include any deed by a sheriff under Section 11501 or Section 2239. The recitals required by Section 2231 are “the names of the parties to the execution, the date when issued, the date of the judgment, order or decree, and other particulars, as recited in the execution; also a description of the property, the time, place and manner of tire sale, which recital shall be received as evidence of the facts therein stated.”

Section 2239 sets out wlrat must be done by an officer in making a corrected deed, “reciting the facts/’ that is, in addition to the recitals required by Section 22317 the deed must also recite the further facts mentioned in Section 2239 which will authorize the execution of the corrected deed; the filing of the petition, the death, absence or inability of the sheriff who made the sale, the defective conveyance, the right of the petitioner as purchaser from the original bidder and the order of the court to the sheriff then in office to execute and deliver the deed.

Now, the sheriffs deed of correction recited a judgment against all three of the tracts which included all the land in -Section 20, the advertisement, exposure to sale, and that “James A. Jadwin being the highest and best bidder for all the above described real estate, to-wit, all of Section 20, Township 2-9, Range'1 west, and the northeast quarter, Section 22, Township 31, Range 4 west, for the sum of thirty-seven dollars, all of the aforesaid real estate was stricken off and sold to the said James A. Jadwin for the sum of thirty-seven dollars.” It then recites that the sheriff W. ML Freemlan executed a deed, and “upon the petition” of James FT. Buford, the Circuit Court of Shannon County “found-the deed to be defective” and that "William M. Freeman, Sheriff at that time, was a non-resident of the State of Missouri, and the court further found, “upon the aforesaid petition,” James H. Buford had acquired all the interest of James A. Jadwin; and further:

“And, whereas, after hearing the evidence offered by James H. Buford in support of his aforesaid petition the said court ordered and directed that I, as the present sheriff of said County, execute and deliver to said James TI. Buford a deed to all of said Section Twenty, Township Twenty-nine, Range One west.”

Thus appears not only a recital of the original sale and the facts necessary to its validity, but also of the requirements of Section 2239 necessary for a corrected deed. The recital of the finding, and order of the court directing the execution of the deed of correction, primafacie is as effective as if the order itself were introduced. . It cannot be presumed that the court would have entered a finding upon its record contrary to the facts.

It is argued that the sheriff who made the corrected deed knew nothing about the facts and for that reason his recitals are of no force and no evidence of the facts. For that matter, the original sheriff, who was present, did’nt remember the facts; had forgotten all about them. The best evidence, probably, of what was actually sold at the sale in 1888, was the return of the sheriff upon his execution and his report of sale, which would necessarily appear in the files' of that tax suit. If, in fact, all the land was not sold, it-was for the plaintiff to produce that return and report in rebuttal of the recitals in the sheriff’s deed. The defendant had only to introduce the deed which recited the facts. That recital was prima-facie evidence and authorized the court in this suit to assume that the court, on.the hearing of the petition for a corrected deed, ascertained what the facts were from the record which showed them. It is to be presumed,, prima-facie, that the record facts stated in the deed were copied from the .record. [Cooper v. Gunter, 215 Mo. 558, l. c. 565.]

Respondent asserts that the first sheriff’s deed is a complete instrument and therefore could not be corrected under the statute. It is not a complete instrument, because it failed to convey all the land sold, and for that reason it was proper to have the correct deed made.

The second sheriff’s deed effectually conveyed the title to Jadwin.

III. It is claimed by respondent, and it ,was especially found by the court in rendering judgment, that Frank P. Swift, who devised the land to plaintiff, purchased the land from Marie Echols Bell, the only heir of E. W. ,Echols, on the fifteenth day of April, 1916, before the petition of Buford was filed -.in the circuit court to have a corrected sheriff’s deed, the petition having been filed at the May term, 1916; that the purchase of Frank P. Swift, was for a valuable consideration, .fifteen hundred dollars, without notice of defendant’s claim and therefore the corrected sheriff’s deed and the order of the court directing its execution would be of no effect as against the plaintiff.

It will be recalled that E. W. Echols was the com- - mon source of title and that Marie Echols Bell was the sole heir. Echols was the defendant in the tax proceeding and his heir did not convey the land until the fifteenth day of April, 1916, as stated.

This suit was filed October 7, 1916, and therefore defendant was in possession when Frank P. Swift bought.

There is nothing equivocal in the possession admitted in the defendant. It appears in these words:

“It is further stipulated that the possession of the land in controversy is admitted in the defendant down to the institution and for one year prior to the institution of this suit.”

The deed by which the defendant acquired the land in 1913, and the several deeds in defendant’s chain of title, running back to the conveyance from Jadwin in 3892 recites considerations larger than Swift paid. No evidence was offered to show that the considerations mentioned in these sales were not actually paid, or that the defendant did not also buy-and hold possession in good faith.

That defendant’s possession and claim were adverse to the claim of the plaintiff is alleged in the petition. That it was sufficiently open and notorious for the plaintiff to be cognizant of it appears in the fact that the suit was brought, including a count in ejectment. One who buys real estate in the open and visible possession of a third person is chargeable with notice of the title and right of thafi person and is not an innocent purchaser. [Stone v. Railroad, 261 Mo. 61. l. c. 76; Squires v. Kimball, 208 Mo. 110, l. c. 119; Davis v. Briscoe, 81 Mo. 27, l. c. 37.]

Plaintiff’s devisor was not an innocent purchaser for value without notice. Under the evidence produced plaintiff was not entitled' to recover.

The judgment is reversed and the cause remanded.

Bailey and Mosley, GG., concur.

PER CURIAM: — The foregoing opinion by White, -0., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    THE STATE ex rel. CARL C. ABINGTON v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    January 26, 1920.
    1. ' COLLECTOR: Commissions:, Title to Office. In a suit by a county collector for commissions on taxes collected by a township collector after township organization has been discontinued, the plaintiffs title to the county office, unless admitted, must previously have been established by a separate proceeding, as a condition precedent to his right to recover; but if his appointment, qualification and title to and induction into the office are affirmatively pleaded in his petition an;d admitted by motion for judgment on the pleadings, he can maintain his action for the commissions, without resorting to a separate suit to establish his title. [Distinguishing Hunter v. Chandler, 45 Mo. 452.]
    2. PLEADING: Motion for Judgment: Admissions. Upon a filing of a motion for judgment on the pleadings, the mover admits the truth of all facts well pleaded by the opposite party.
    3. COUNTY COLLECTOR: Title Established: Refiison to Approve Bond: Fees. An appointee of the Governor, who has the legal title to the office of county collector, but fails to obtain possession of it for no fault on his part, but because of the unauthorized refusal of the county court to approve his bond, is entitled to the fees of the same, and to sue for and recover the fees collected by another during the time he was wrongfully deprived of the office. Compensation is an incident to the title, and belongs to the tie jv/re officer.
    4. -: De Facto Officer: Township Collector. When the office of township collector was abolished, the occupant of the office became a mere intruder, for there being no tie jure office there could be no (Ia facto officer.
    5 -: De Jure Officer: Before Approval of Bond. The refusal of the county court to approve the sufficient bond of a person who under the Constitution and the statute is entitled to the office of county collector does not alter his status as a de jure officer. The words of the statute requiring him to give a bond “to the satisfaction of the county court” simply mean that he shall give such a bond as the law requires, and where such a bond is tendered the court cannot by refusing to approve it deprive him of the emoluments of the office.

      Certiorari.

    Record quashed.

      Ram 31. Phillips, Ed. L. Abington and W. T. Rutherford for relator. .
    (1) It i.s well settled that a canse must be heard and determined in the appellate court upon, the same theory as that upon which it -was tried in the court below. St. Louis v. Wright Contracting Co., 210 Mo. 502; Walker v. Owen, 79 Mo. 563; Minton v. Steele, 125 Mo. 181; Dice v. Hamilton, 178 Mo. 81; Meyer Bros. Drug Co. v. Bybee, 17:9 Mo. 354. (2) The judgment and opinion of the St. Louis Court of Appeals is in conflict with the following decisions of the Supreme Court of Missouri, to-wit: State ex inf. v. Harwell, 265 Mo. 26; Mayes v. Palmer, 206 Mo. 297; State ex rel. v. Clark, 52 Mo. 508; State ex rel. v. Gordon, 245 Mo. 28; Ex parte Bob Snyder, 64 Mo. 58; State v. O’Brian, 68 Mo. 153; State ex rel. v. Seibert, 130 Mo. 222; Deiner v. Chronicle Publ. Co., 230 Mo. 630 ; State ex rel. v. Wright, 251 Mlo. 325; Mulbry v. Mc-Cann, 95 Mo. 579; State ex rel. v. Draper, 48 Mo. 215; Henderson v. Koenig, 192 Mo. 690. (3) The judgment and opinion of the Court of Appeals is in conflict with the following decision of the Supreme Court of the United States: Norton v. Shelby Co., 118 U. S-. 425. (4) The judgment and opinion of the Court of Appeals is in conflict with the following decisions of this court, to-wit; State ex rel. v. Stone, Treas., 269 Mo. 844; Titus v. Development Co., 264 Mo. 249 ; Wilson v. Drainage Dist., 257 Mo. 283; Davidson v. Real Est. & Inv, Co., 249 Mo. 503; Landis v. Hamilton, 77 Mo. 554; WooQ v. Ensel, 63 Mo. l'9S‘-4; Strong v. Phoenix Ins. Co., 62 Mo. 290; Tlarvel v. Turner, 46 Mo. 448; State to use v. Coste, 36 Mo. 437-8, (5) Both relator and Harwell wore bound by the decision and judgment of this Court in State ex inf. Attorney-General v. Duncan, 265 Mo. 26. See Titus v. Development Co., 264 Mo. 248; State ex rel. v. Stone, 269 Mo. 344; Wilson v. Drainage Dist., 25'7 Mo. 283; Davidson v. Real Est. & Inv. Co., 249 Mo. 502;‘Landis v. Hamilton, 77 Mío. 565; Wood v. Ensel, 63 Mo. 192. (6) Absent a de jure office there cannot be a de facto officer. Norton v. Shelby Co., 118 U. S. 425; Kavanaugh v. [Gordon, 244 Mo. 719; State e.x rel. v. Nast, 209 Mo. 722; Ex parte Snyder, 64 Mo. 58; State v. O’Brian, 68 Mo. 153. (7) As a part of the general history of this State its courts will take judicial notice of the tenure of office of local officials. 16 Cyc. 869, 900; State ex rel. v. Seibert, 130 Mo. 221. (8) Courts judicially notice appointments to office by the Governor of the State, the date of accession to and the term of office. 16 Cyc. 901, 902; Mayes v. Palmer, 206 Mo. 298, 299; Bristol v. Pischel, 81 Mo. App. 367; Deiner v. Chronicle Pub. Co., 230 Mo. 630; State ex rel. v. Wright, 251 Mo. 325.
    L. M. Henson and Sheppard & Sheppard for respondents.
    (1) Where, on a certiorari, it appears that the decision of the Court of Appeals complained of was not in conflict with any prior ruling of the Supreme Court, regardless of whether the decision of the Court of Appeals was right or wrong, it is beyond the reach of the Supreme Court. Arel v. Farrington, 272 Mo. 15|7; State ex rel. Heinie Safety Boiler Co. v. Robinson, 188 S. W. 101. (2) On a certiorari to review an opinion of the Court of Appeals where it is alleged to be in conflict with a prior ruling of the Supreme Court, only matters of record and facts stated in the opinion of the Court of Appeals will be reviewed by the Supreme Court. State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Regis v. Reynolds, 200’ S. W. 1039. (3) It is claimed by relator that the case of State ex inf.

      Attorney General v. Duncan, 265 Mo. 49, passed upon the rights of the relator to said office. Respondent says that the opinion in that case did not pass upon relator’s rights to hold the office, nor could it have done so. The oiily point which miay he determined in a quo warranto proceeding, instituted by the Attorney-General upon his own information, is the right of respondent to the office. No inquiry can be made into the right of any other person to said office. Relator was not a party to the record in that case, and could not have been, because said proceeding was instituted upon the information of the Attorney-General and not at the relation of anyone. Therefore, relator’s right to said office was not, and could not have been, determined in said proceeding. Hunter v. Chandler, 45 Mo. 452; Stat ex rel. v. Gordon, 245 Mo. 30-; Mullery v. McCann, 95 Mo. 582; State ex rel. v. Yail, 53 Mo.' 97; State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Ross, 161 Mo. App. G71. (4) The sole question passed upon in the opinion of the St. Louis Court of Appeals was whether or not the relator herein was entitled to the fees of the office of County Collector of Butler County prior to the 15th day of April, 1915-, the date on which his bond as such collector was approved by the county court. The Court of Appeals in its opinion held that he was not. In this holding we contend that court was correct, and it is not in conflict with any decision of the Supreme Court of this State for the reason that this question has never been passed' upon by the Supreme Court. Secs. 11434, 11440, R. S. 1909; 29 Cyc. 1387 ; 23 Am. & Eng. Ency. Law, 361; McMillin v. Richards, 45 Nebr. 791; Ex parte Craig, 130 Mo. 590; Dickerson v. City of Butler, 27 M-o. App. 9; Stuhr v. Curran, 44 N. J. L. 181; State v. Carroll, 38 Conn. 449; Hunter v. Chandler, 45 Mo. 452; Sec. 11684, R. S. 1909. (5) The commission issued by the Governor upon his appointment of the relator to the office of county collector, was merely prima-facie evidence of his title to that office. 29 Cyc. 1373; State ex rel. v. Steers, 44 Mo. 223.
   WALKER, C. J.

Certiorari to the St. Louis Court of Appeals to quash its record in Abington, Appellant, y. Harwell, Respondent, designated hereinafter as the “original action.” The appellant, wjio was at the time Collector of the Revenue of Butler County, sued the respondent for money had and received, consisting of commissions on taxes collected by the latter to the former’s use. At the close of a jury trial the court sustained a general demurrer to appellant’s evidence and directed a verdict for the respondent. An appeal to the St. Louis Court of Appeals resulted in an affirmance of the- judgment of the trial court. The writ herein was thereupon invoked on the ground that the ruling of the Court of Appeals was in conflict with certain decisions of this court.

The facts, as disclosed by the opinion, are that Harwell had in March, 1913, been elected Township Collector of the Revenue of Poplar Bluff Township in Butler County, then under township organization. At the general election held November 3, '1914, the continuance of township organization was, under the provisions of Section 11745, Revised Statutes 1909, -submitted to the voters of that county, with the result that a “majority of all the votes cast on the question was against its continuance.”

On November 28, 1914, the G-overnor, acting under the authority of Section 5828, Revised Statutes 1900, and Section 11 of Article K of the State Constitution in regard to the filling of vacancies in office, appointed and commissioned Abington Colléctor of the Revenue of Butler County. The county court of that county on December 1, 1914, under a provision of Section 11745, supra, appointed’ one Duncan Collector of the Revenue of said county, who qualified by taking the oath of office and tendering an official bond which was accepted by the county court, but he never attempted to exercise any of the duties of the office. On the same day Abington presented to the county court a bond as ^Collector of the Revenue of said county. The court refused to approve the same on the ground that the power to appoint a collector was lodged by tbe statute (Sec. 11745) in tbe county court and not in the-Governor. On December 17, 1914, Abington executed and submitted to the county court a new bond as Collector of the Revenue of said county in the sum of $125',000, the approval of which was refused by the county court on the sole ground, as before, that the appointment made by. the Governor was unauthorized. The only difference between the two bonds was that the second was $5,009 larger in amount than the first.

During the time intervening between the election for the discontinuance of township organization in said county in November, 1914, and the ruling of the Supreme Court in State ex inf. Attorney General v. Duncan, 265 M‘o. 26, on April 2, 1915, in disregard of the appointment of Abington by the Governor and the attempted appointment of Duncan as county collector by the. county court, Harwell and the other township collectors continued in the exercise of the duties of'the offices of township collectors in said county, and it is for the recovery of the amount of the commissions on collections made by said Harwell during that time and retained by him that the original action herein was brought by Abington.

In December, 1914, the Attorney-General instituted in the Supreme Court a proceeding by quo warranto to determine the right of Duncan to the office of county collector, and that of Harwell and others named to the offices of township collectors of Butler County. This is the action heretofore referred to as State ex inf. Attorney General v. Duncan. It was held in that case that the provision in Section 11745 requiring ’ an affirmative vote of “all those voting at an election to discontinue township organization” was invalid as in contravention of the constitutional provision (Section 9, Article 9) which requires only “a majority vote of all of the votes cast upon the question” to discontinue this form of county government; as a consequence of this ruling, the returns showing that a majority of the votes cast on the question were against township' or-. ganization, it was held to have been thereby discontinued ; and it was further ruled that the county court, notwithstanding the provision of Section 11745, supra, attempting to empower it so to do, was not authorized to appoint a county collector because of the contravening constitutional provision (Section 11, Article 5) and the statute (Sec. 5828, R. S. 1909') in conformity therewith, which invest the Governor with this power; that upon the discontinuance of township organization Harwell and the other township collectors were divested of authority to act as such; and it appearing that the Governor had exercised the power conferred on him by the appointment of Abington as Collector of the Revenue of said county, that the lattei was entitled to said office, and a writ' of ■ ouster was directed to issue against all of the respondents named in said proceeding, which included Duncan and Harwell. Following this ruling of the Supreme Court the county court, on the 15th day of April, 1915', approved the second bond of Abington as collector theretofore submitted to it, and he entered upon the discharge of the duties of the office.

The Court of Appeals held that Abington was not authorized to sue for and recover from Harwell commissions retained by ’the latter on taxes collected by him during the time intervening between Abington’s appointment and induction into office. Hunter v. Chandler, 45 Mo. 452 is cited in support of this conclusion. In that case a demurrer to the petition had been sustained by tiie trial court. In reviewing this ruling we held, it appearing from the petition that Hunter was not at the time in possession of the office, that his title thereto should have been established in a separate proceeding as a condition precedent to his right of action for the fees of same. This conclusion was but an application of the general rule that a right of action in any case is dependent upon it appearing from the petition that the plaintiff has a substantial interest in the matter in controversy. Where the matter involved is the fees of an office it must appear that the plaintiff’s title to tlie office has been determined. With the correctness of this conclusion under the facts in that case we have no controversy. The vexing question is whether the allegations of Abington’s pleadings, as disclosed in the opinion of the Court of Appeals, show that his title to the office had been determined at' the time of the institution of the original action.

Preliminary to a discussion of the sufficiency of the petition, it is pertinent to say that the elementary rule which the Court of Appeals ignored should have been applied, that upon the filing of a motion for a judgment on the pleadings, as was done in this case, the mover admits, either directly or impliedly, the truth of all facts well pleaded by the opposite party. [State ex inf. Hadley v. Railroad, 237 Mo. l. c. 346; State ex inf. v. Coffee, 192 Mo. 670; State ex rel. Attorney General v. Simmons Hardware Co., 109 Mo. l. c. 123.]

It will be sufficient to say, without setting forth the petition at length, that the appointment, qualification and induction into office of Abington as collector of Butler County is affirmatively pleaded therein, and that he was' in the possession and exercise of the duties of the office at the time of the institution and prosecution of the original action. This being true, his title to the office, as evidenced by the express declaration to that effect in the opinion rendered by this court in the quo warranto proceeding of State ex rel. Attorney General v. Duncan, supra, need not, except as an affirmative judicial recognition of such title, be held to be determinative of his right to institute the action for the recovery of his fees. That right was sufficiently determined by the admitted declarations of his pleadings, and instead, therefore, of thq case of Hunter v. Chandler sustaining the conclusion reached by the Court of Appeals, it is, under the facts in the original action, an authority to the contrary, in that if it had been shown therein, as it- was in the original action, that the plaintiff was in possession of and entitled to the office, his right to the action for the fees of same would have been upheld instead of denied. The Court of Appeals opinion, therefore, while not in this particular in direct contravention of our ruling' in Hunter v. Chandler, supra, is contrary to its spirit and purpose and fails to correctly limit'its application to one suing to recover fees who is not an incumbent of the office. Where, therefore, the party sued, as in the original action, admitted not only the plaintiff’s title to but his possession of the office, what principle of justice or private right demands, as a prerequisite to his right to sue for the fees of such office, that he shall establish his title to same in a separate proceeding? A fact established needs no procedure or proof for its further establishment, and the separate proceeding required by the Court of Appeals ruling would have served no substantial purpose in the administration of justice. Its only effect would have been to impose an onerous and unnecessary prerequisite upon the plaintiff.

Abington’s right of action having been established by the admission of the truth of his pleadings, a discussion as to the effect, except as. stated, of the quo warranto proceeding instituted by the Attorney General (State ex rel. v. Duncan, supra) may be eliminated as unnecessary to a determination of the matter at issue. The regularity of Abington’s appointment and commission and that he pursued the course directed by the statute to authorize him to be. inducted into the office are conceded; his failure, therefore, to secure the possession of same was not due to his neglect or remission, but the unauthorized refusal of the county court to approve his bond made and executed as the law required. It follows as a necessary consequence of these facts that upon his submission to the county court of the required bond on December 17, 1914, he became the de jure collector of the revenue of the county and as such entitled to the fees of same (Auditor v. Menominee Co., 89 Mich. 552, 51 N. W. 483; Hamlin v. Kassafer, 15 Ore. 456, 3 Am. St. R. 176; McMillin v. Richards, 45 Neb. 786, 64 N. W. 242; Stott v. Chicago, 205 Ill. 281, 68 N. E. 736; People v. Staton, 73 N. C. 546); and upon his induction into the office on the 15th of - April, 1915, he was authorized to sue for and recover any fees collected by another from the time he became entitled to such fees of which he had been deprived through no fault óf his. In ruling to the contrary the Court of Appeals contravened the opinion of this court in State ex rel. Evans v. Gordon, 245 Mo. l. c. 28, in which we held it to be settled law that compensation is an incident to the title to an office and that it belongs to the de jure officer, who may. upon establishing his title thereto, recover the fees of same from a de facto officer who has received them. The rule should and does apply with more strictness to one who has usurped an office belonging to another and has received the fees of same. [Mayfield v. Moore, 53 Ill. 428, 5 Am. Rep. 52; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; 22 R. C. L. title “Public Officers." sec. 244.]

There is no claim here of a de facto incumbency of the office. Harwell was a mere intruder. The office of township collector had been abolished, and there being no de jure office there could be no de facto officer. [Ex parte Snyder, 64 Mo. l. c. 62; State v. O’Brian, 68 Mo. l. c. 154; State ex rel. Board of Education v. Nast, 209 Mo. l. c. 723.]

The conclusion of the Court of Appeals that Abington did not become an officer ' de jure until his bond had been approved by the county court is without merit. Sections 11434 and 11440, Revised Statutes 1909, which define the conditions of a collector’s bond, are cited in support of this conclusion in that they require that such bond shall be given “to the satisfaction of the county court.” This simply means that such a bond shall be given as the law requires and such requirements are clearly defined in the statute. It is conceded that they were in this instance fully complied with and the record affirmatively shows that the reason assigned by the court for its refusal to approve the bond was wholly unauthorized. The logic or lack of same of the conclusion is, therefore, that it results in the denial of a conceded right for an unauthorized reason.

Contravening, as the Court of Appeals opinion does, the rulings of this court as to the effect of a general demurrer or a motion for a judgment on the pleadings and in regard to the right of the relator to sue for the fees herein, it follows 'that its record should he quashed and it is so ordered.

Graves, Williams and Williamson, JJ., concur; Blair and Goode, JJ., concur in result; Woodson, J., not sitting.


author: BLAIR, J. GRAVES, J.

text:
    THE STATE ex rel. PUBLIC SERVICE COMMISSION v. MISSOURI PACIFIC RAILROAD COMPANY and ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
    In Banc,
    January 26, 1920.
    1. MANDAMUS: When Maintainable. In order to warrant control by mandamus there must be an existing, clear, unconditional legal right in relator and a corresponding present, imperative, unconditional duty upon the part of respondent, and a default by respondent therein.
    2. -: -: Power of Public Service Commission: Interlocking Plants. The Public Service Commission has power to compel the installation by railroad companies of interlocking plants at proper places and on terms which are just and reasonable. But where .the order of the Commission requires one of two companies to do the actual work of constructing the interlocking plant, and assesses 75 per cent of the cost against the other and says its portion of the cost shall be paid in monthly installments, no duty rests upon such other company to pay until the plant is constructed, and as the plant has not been -constructed it is not in default and the court cannot by mandamus compel it to construct the plant; but the object oft the order is to be attained by a writ against the company directed to make the improvement.
    3. -: Railroad Interlocking Plant: Right to Enter Upon Right-of-Way. Thq order of the Public Service Commission directing two railroad companies to construct and maintain an interlocking plant at a designated point, and requiring one of them to do the actual work of construction, is sufficient to give said company access to the right-of-way of the other for the purpose of constructing the plant, and no express mention of its right to enter upon the right-of-way for that purpose is necessary; and therefore it is not necessary that such other company be made a party to a writ of mandamus which seeks to compel the construction of the plant.

      4. -: -: Apportionment of Costs: Contrary to Contract: Judicial Matters Between Themselves. An order of the Public Service Commission directing two railroads companies to construct an interlocking plant, and requiring one of them to do the actual work of construction, and apportioning 25 per cent of the cost to it and 75 per cent to the other, and requiring such other to pay in monthly installments, being reasonable, must be obeyed, and the one directed to do the actual work of construction will be compelled by mandamus to proceed to make the improvement, but the other is not in default until a monthly installment is due; but it cannot have the order annulled on the ground that there was at the time a subsisting contract between the companies by which they were to share the costs equally, but the question of the apportionment of the costs is more appropriately a matter between the two companies, which may be adjudicated in a proper legal proceeding.
    Appeal from Cole Circuit Court. — Hon. J. G. ¡State, Judge.
    Affirmed in part; reversed in part.

      W. F. Evans and E. T. Miller for appellant.
    (1) Respondent is seeking to enforce its order according to its terms, and the Judgment and the peremptory writ follow the alternative writ with the enlargement that the Frisco shall permit, without interference, the Missouri Pacific to perform the work. The writ was improvidently and unlawfully issued against the Frisco in that it was not in default under the order of the Commission, if valid, and because there was neither a present duty on the part of the Frisco to comply with the order, nor was there a present, clear, existing right on behalf of the Commission to the remedy sought against the Frisco. State ex rel. v. Associated Press, 159! Mo. 410; State ex rel. v. McIntosh, 205 Mo. 616 ; State ex rel. v. Bridge Co., 206 Mo. 134; State ex rel. v. Hudson, 226 Mo. 239; State ex rel. v. Thomas, 245 Mo. 65'; State ex rel. v. Gas. Co., 254 Mo. 515; State ex rel. v. Stone, 269 M,o. 334; State ex rel. v. Bank, 174 Mo. App. 589; State ex rel. v. Appling, 191 Mo. App.-589; Northern Pacific v. Dustin, 142 U. S. 492 ; 26 Cyc. 340 ; 20 Oye. 4316; Section 64, Missouri Public Service Act, Laws 1913, p. 600. (2) The order of the Commission is unreasonable, arbitrary, unlawful, unjust and oppressive. It should have respected the provisions of the valid contract between the railroad companies. The interests of the public did not require that the contract be disregarded. The public was interested in having an interlocking plant and not in who paid for it. As the parties had agreed on the question of the expense of the construction, maintenance and operation of the plant, the. Commission should have left that matter where the parties had placed it. The p'olice power is exercised in the interest of the public safety and not in the attempted destruction of private property rights. Observance of the contract was not inconsistent with the full and complete exercise of the police power. The judgment of the circuit court should have been for this appellant. State ex rel. v. Vandiver, 222 Mo. 206; Tranbarger v. Railroad, 250 Mo. 46; State ex rel. v. Roach, 267 Mo. 315; State ex rel. v. Eastin, 270 Mo. 193; Home Telephone Company v. Sarcoxie Telephone Company, 236 Mo. 114; Wiggins Ferry Company v. Railway, 73 Mo. 38®, 128 Mo. 224; Sec. 3106, R. S. 190®; Railroad v. Railroad, 135 Mo. 173; Railroad v. Richmond, 86 U. S. 584; Railway v. Railway, 163 U. S. 564. (3) The order of the Public Service Commission and the judgment of the circuit court upholding it violate Section 15; Article II, Constitution of Missouri, by impairing the obligation of the contract of June 2, 1904; violate Section 21, Article II, Constitution of Missouri, in taking and damaging for public use thé property of the Frisco without just compensation; violate Section 30, Article II, Constitution of Missouri, in attempting to deprive the Frisco of its property and of the use thereof without due process of law; violate Section 1, Article XIV, Amendment of the Constitution of the United States in abridging the privileges and immunities of the Frisco, depriving it of its property without due process of law and denying it the equal protection of the law. If Sections 50' and 116 of the Public Service Commission Act attempt to give to the .Commission the power upheld by the trial court. they are to that extent unconstitutional and void when tested by the above constitutional guarantees. State v. Loomis, 115 Mo. 307; State v. Miksicek, 2-25 Mo. 561; Lochner v. New York, 198 XJ. S. 45; Cooley on Const. Lim. (5 Ed.) 712.

      A. Z. Patterson and James D. Lindsay for respondent.
    (1) The Public Service Commission has the exclusive power to determine and prescribe the manner and the terms of construction, alteration, operation, maintenance, apportionment of expenses, use and protection of each crossing of one railroad by another railroad, and the alteration of any such existing crossing, by the installation of an interlocking plant or other device, and to prescribe the proportions in which the expenses of such alteration, construction or installation, and operation shall be divided between the corporations affected. Secs. 50' and 116, Public Service Commission Act; State ex rel. Ry. Co. v. Public Service Commission, 271 Mo. 270; State ex rel. St. Joseph' L., H. & P. Co. v. Public Service Commission, 272 Mo. 645; State ex rel. Chicago & Alton v. Public Service Commission, 204 S. W. 531; State ex rel. v. Public Service Com., 130 App. D-iv. (N. Y.) 335. (2) The Public-Service Commission is not a court, and has no judicial power. It cannot construe, nor can it enforce, the provisions of contracts in private interests. It must-exercise that kind of power which has been conferred upon it by statute, and no other, and in the manner provided by statute, and not otherwise. Lusk v. Atkinson, 268 Mo. 109; State ex rel. A., T. & S. F. v. Commission, 192 S. W. 460; State ex rel. United Rys. Co. v. Commission, 270 Mo. 429; State ex rel. Mo. Yalley Realty Co. v. Cupples Station L., H. & P. Co., 199 S. W. 151; Augusta v.. Lewiston Ry. Co., 114 Me. 24. (3) The power exercised is legislative in character both as to requirement of installation, and as to apportionment of expenses; and the resultant order is of the nature of a law of the State. It is therefore binding upon the present owners. Grand Trunk Ry. v. Indiana Railroad Com., 221 U. S. 400; Atlantic Coast Line v. Goldsboro, 232 U. S. 555; Wadley Southern Ry. Co. v. Georgia, 235 U. S. 660; Public Service Commission v. Union Pacific Ry. Co., 271 Mo. 258. The power to require the expenses to be incurred, and the power to apportion the expenses, are identical and inseparable. The word, apportionment, as here used, has the same significance as when used in reference to taxation. Cooley on Taxation (3 Ed..), p., 411; Simpson v. Kansas City, 46 Kan. 438. "And the power of apportionment is therefore unlimited, unless it be restrained as a part of the power to assess the expense. Cooley, p. 412; Hagar v. Reclamation District, 111 ü. S. 701; Walston v. N'evin, 128 U. S. 578; Glasgow v. Rouse, 43 Mo. 479. (4) The exercises of this power, to require the installation of the interlocking plant in the interest of the public safety, and to require the incurring of the necessary expenses incident thereto, and the coincident making of apportionment of those expenses between the parties involved, cannot be controlled or affected by a contract' on the subject in the private interests of the parties. State ex rel. Wabash Ry. Co. v. Public Service Commission, 271 Mo. 270 ; State ex rel. St. Joseph L., H. & P. Co. v. Commission, 272 Mo. 645.; Kansas City Bolt & Nut Co. v. Kansas City L., H, & P. Co., 204 S. W. 1074; Tranbarger v. C. & A., 250 Mo. 46; American Tobacco Co. v. St. Louis, 247 Mo. 374; State ex rel. Sedalia v. Public Service Com., 204 S. W. 497; State ex rel. Fulton v. Public Service Com., 204 S. W. 386; Northern Pacific Ry. Co. v. Duluth, 208 U. S. 583; Chicago, M. & St. P. Ry. Co. v. Minneapolis, 232 U. S. 430; Missouri Pacific Ry. Co. v. Omiaha, 235 U. S. 121; New Orleans Gas Light Co. v. Drainage Com., 197 U. S. 453'; New York & New England Railroad Co. v. Bristol, 151 U. S., 556.. (5) The Frisco is a necessary and' indispensable party to this proceeding because the order is, and must be considered as, an entirety, wholly valid and enforceable according to its terms, or wholly invalid. Authorities under Point 3. And it is so, because the Frisco has an undivided interest in the physical property involved, and in the use of it; the rights and obligations of one company cannot be determined without also, and at the same time, determining the correlative rights and obligations of the other company. Merrill on Mandamus, sec. 243. (6) Both companies being concerned in the separate, but cooperative steps, necessary to attain the complete result sought, are properly joined in the writ of mandamus. A nari'ow rule of construction is not applicable here. Section 64, and Section 127, Public Service Commission Act; State ex rel. Mo. Southern Ry. v. Public Service Commission, 259 Mo. 704; State ex rel. Missouri Pacific v. Garesche, 202 S. W. 490; State ex rel. Thomas v. Williams, 99 Mo. 291; Labette County Commrs. v. United States, 112 U. S. 21 (I; Bunch v. United States, 252 Fed. 680; Meitrill on (Mandamus, secs. 235, 243; 18 R. C. L. Mandamus, secs. 36 and 33; State ex rel. v. Robert Jones, 23 N. C. 129.
   BLAIR, J.

This is a proceeding by mandamus to compel appellant railways to comply with relator’s order that an interlocking plant be installed at the intersection of their lines at Aurora, Missouri.

The order referred to, in so far as material to the issues, reads as follows:

“Ordered: 1. That the St. Louis, Iron Mountain & Southern Railway Company and B. F. Bush, its receiver, and the St. Louis & San Francisco Railroad Company and James W. Lusk, Wm. C. Nixon and Wm. B. Biddle, its receivers, be and they are hereby ordered to construct, maintain and operate an interlocking plant at Aurora, Missouri, in accordance with the plans filed with the Commission within six months after the effective date of this order.
“Ordered: 2. That the actual work of construction, operation and maintenance be carried out by the St. Louis, Iron Mountain & Southern Railway and B. F. Bush, its receiver. '
“Ordered: 3. That the cost of construction, maintenance and*operation he divided as follows: St. Louis & San Francisco Railroad Company and its receivers, 75 per cent, and the St. Louis, Iron Mountain & Southern Railway Company and its receivers, 25 per cent.
“Ordered: 4. That the St. Louis & San Francisco Railroad’s portion of the cost of construction, maintenance and operation of said interlocking plant be paid in monthly installments to the St. Louis, Iron Mountain & Southern Railroad Company.
“Ordered: 5. That this order shall be in full force and effect on and after the 20th day of June, 1916, and that the Secretary of the Commission shall forthwith serve a duly certified copy of this order .and report on each of the parties hereto, and that the parties hereto notify the Commission within ten days after receipt of a copy of said order and report, whether the terms of the order are accepted and will be obeyed.”

Appellants are, respectively, the successors of • the defendants named in the order. For brevity, relator is hereinafter referred to as the Commission, and appellants as the Missouri Pacific and the “Frisco.” The predecessor of the Missouri Pacific accepted the order. The Frisco sued out a writ of certiorari in the Cole Circuit Court, which proceeding it subsequently dismissed. Thereafter, appellants took no steps looking to the carrying out of the Commission’s order, and that tribunal directed its counsel to institute this proceeding, which was done in April, 1918. Upon a hearing, the circuit court made the alternative writ mandatory, and both companies appealed.

On the hearings before the Commission and in this case in the circuit court the Frisco offered in evidence a contract, dated June 2, 1904, wherein the Iron Mountain, in consideration of a grant of “the right to construct, maintain and operate a single-track main-line railroad over and across” the Frisco right-of-way and railroad at Aurora, agreed, among other things, that whenever an interlocking plant ■ should be required at this crossing, either by tli'e Frisco or by law, the Iron Mountain would install sucia plant at its own cost and that the expenses of operation and maintenance should thereafter be borne by the two companies equally.

Appellant Frisco Company contends there is no basis in the evidence for a writ of mandamus against it; that the order of the Commission is invalid in that it unreasonably, arbitrarily and unlawfully ignores and violates the contract between appellants; that it impairs the 'obligation of that contract, takes and damages its property for public use without just compensation, takes its property without due process of law, abridges its privileges and immunities, and denies it the equal protection of the laws.

The Missouri Pacific, though appealing, aligns itself in support of the order of. the Commission and the judgment of the tidal court.

I. It is not contended the Commission lacks power to compel the installation of interlocking plants at proper places and on terms which |re just as betweeaa the companies affected. There seems to be no real opposition to the installation of such- plant at Aurora. The contention arises over the portion of the order apportioning* the expense. That question is not open for determination in this case. So far as concerns the Frisco Company the only duty attempted expressly to be imposed upon it by the order is simply one to pay iponthly a named proportion of the expenses of construction, operation and maintenance as they accrue. No duty to pay arises until the Missouri Pacific has proceeded with the work for at least one month.. There is nothing expressly required of the Frisco until that time has come. Assuming for present purposes that mandamus would lie to enforce a payment of money which had become due under this order, we do not think it can be held that the record justifies the judgment of the trial court. In order to warrant control by mandamus there must be an existing, clear, unconditional, legal right in relator and a corresponding present, imperative, unconditional duty upon the part of respondent, and a default by respondent therein. [State ex rel., v. Associated Press, 159 Mo. 410; State ex rel. v. Thomas, 245 Mo. 65; State ex rel. v. Stone, 269 Mo. 334:.] .Many other decisions cited in the briefs announce the same doctrine. The duty of the Frisco under the- Commission’s order is conditioned upon the doing* in the future of prescribed things by the Missouri Pacific. Nothing had been done' under the order when this proceeding was' instituted. The Frisco was not in default.

Respondent cites cases supporting the doctrine that: “All persons concerned in the separate but cooperative steps in the attainment of the result sought may be joined in one writ of mandamus. One writ of mandamus may issue against all the officers concerned in the separate but co-operative steps in the attainment of one result in the performance of a general duty.” The cases cited relate to the use of the writ against several public officials whose co-operative, though successive, action is essential to the end sought. This is not such a'case. The public is chiefly interested in the crossing protection. The division of expenses more particularly concerns appellants. When the plant is constructed and operated the purpose which constitutes the foundation of the right of the State to interfere is accomplished. This object is covered by the writ against the Missouri Pacific. It does not depend at all upon the payment of the sums which may become due from the Frisco to the Missouri Pacific.

II. It is suggested that the writ was necessary to give the Missouri Pacific access to the Frisco right-of-way for the purpose of'constructing the plant. There is no express mention of this in the order of the Commission. None was necessary. The order of the Commission became and is full authority for yie Missouri Pacific to proceed to perform its duties thereunder. Under that order, concededly authorized in so far as it directs the construction of the interlocking plant, the Frisco has no right or authority to deny the Missouri Pacific access to the crossing for the purpose of carrying out the order. The letters which are offered; to show a refusal of the Frisco to permit such access were written after this proceeding was begun, and are not, in our opinion, subject to that construction. In brief, they seem to have been designed merely to avoid any admission which might impair the right of the Frisco to continue to insist upon the termls of its contract; and the contract, also, gives the Missouri Pacific the right to enter.

III. In the view we take of the case it is the duty of the Missouri Pacific to proceed with the construction of the plant. In the event the Frisco fails to pay the sums which may become due under the terms of the order of the Commission, the Missouri Pacific ^ }U\°ke Pr0Per meanS to Collect> if under the law and the facts collection is legally possible. The public is served when the plant is installed. The proper apportionment of expense is rather a matter between appellants. In that proceeding the other questions attempted to be raised in this case may be more relevant to the issues.

The judgment as to the Frisco is reversed; that as to the Missouri Pacific is affirmed.

Walker, C. J., and Williams and Williamson, JJ., concur; Goode, J. concurs in the result; Graves, J., concurs in separate opinion; Woodson, J., not sitting.

GRAVES, J.

(concurring). — I agree to this opinion in so far as it holds that, under the order of the Public Service Commission, the Frisco is not now, nor was it at the institution of this suit, in default. If the opinion means that at the end of the month (admitting that the Missouri Pacific proceeds with the work under the Commissions’ order, and that the Frisco then refused to pay the monthly installments) the Frisco would not be in' default, under the order, and not subject to mandamus by the Public Service Commission, I do not agree to it. M!y judgment is that both companies must comply strictly with this order, and then if by any contract the appellants, as between themselves, have any different rights, they can litigate that question in a proper forum, in view of what they think are their contract rights. The Public Service Commission is not a court, and has no power to enforce contracts. It has power to deal with interlocking systems (in the public interest) and cam apportion the costs by its order. The order, if reasonable, as here, can be enforced. On the other hand, if the railroads have an agreement, the Commission should leave that for court determination as between the parties, to the agreement, but that determination should not in any way effect the full performance of the Commissions’ order in its fullest detail. Its order is enforceable for public reasons, and under the Commissions Act enforceable by mandamus. The violation of a private contract should be determined afterward. I think my learned brother so writes, but this to make by own views clear. With this explanation,

I concur.


author: BROWN, C.

text:
    McGREW COAL COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    January 26, 1920.
    1. CONSTITUTIONAL LAW: Freight Charges: Long and Short Hauls. The statute forbidding a railroad to charge a larger rate for shipping coal a given distance within this State than it charges for a shipment a greater distance within the State, and penalizing the company for the excess, is violative of neither the State nor Federal Constitution.
    2. FREIGHT CHARGES: Paid by Consignee; Recovery by Shipper of Overcharge. The shipper of coal, instead of quoting a price f. o. b. cars at point of shipment, quoted a price delivered at the consignee’s station, which quotation was made up of the price at the point of shipment plus the freight rate charged by the railroad. When the goal was received by the consignee, he paid the railroad agent the freight charges and forwarded a receipted hill to the shipper, who credited the consignee on the coal hill for the amount thereof, and then the consignee paid to the shipper the difference between the freight charges and the quoted price for the coal. Thus the higher the freight charges the less the shipper received for the coal. The freight charges were in excess of charges for intrastate shipments a longer distance on the defendant’s railroad, and were violative of the statute. Held, that the shipper, in contemplation of law, was injured by the exaction of the illegal overcharge, and may maintain an action to recover it back. The remedy for the overcharge, to be effective, must lie with the shipper, and the amount of the recovery is measured by the amount he is, either directly or through his consignee, forced to pay.
    3. -: Long and Short Haul: Amount of Recovery: Liquidated. The long-and-short haul provision of the Missouri Constitution is self enforcing, and liquidates the amount of the overcharge at the difference between the charge exacted and paid for the shorter haul and the rate charged for the longer haul, and that difference is necessarily the amount to he recovered back.
    Appeal from Lafayette Circuit Court. — Hon. Samuel ID avis, Judge.
    Appirmed.

      Edward J. White, James F. Green and Harvey G. Clark for appellant.
    (1) Under the stipulation introduced hy the plaintiff, the freight on each shipment mentioned in the petition was paid by the consignee and not by the plaintiff. Any damages sustained by reason of any overcharge on such shipments was sustained by the consignee, who paid the freight, and not by the plaintiff, and respondent is not the proper party to complain. International Coal Co. v. Railroad, 230 U. S. 184; Hoover v. Railway Company, 156 Pa. St. 220'; Sharp'less v. Lawrence, 213 Fed. 427; Homestead Co. v. Electric Co., 226 Fed. 53; Lehigh Valley Railroad v. American Hay Co., 219 Fed. 541; Railroad Co. v. Spiller, 242 Fed. 1; Kirkpatrick v. Railroad Co., 86' Mo. 341.' (2) Before plaintiff can recover in this case it must show that it has been damaged by the acts of the appellant. Cases supra. (3) Statutes are read and construed in the light of the common law. Johnson v. Fluetsch, 176 Mo. 452; 6 Am. & Eng. Enc. Law (2, Ed.), p. 270; Cooley’s Constitutional Limitations (7 Ed.), p. 94. (4) Common carriers were allowed to make reasonable and just discriminations at the common law. 4 Elliott on Railroads, secs. 1467, 1565, 1676; 17 Am. & Eng. Enc. Law (2 Ed.), p. 135; '2 Hutchinson on Carriers (3 Ed.), secs. 521, 588, 589; Railroad Commissioners v. Weld., 73 S. W. 529. (5) Secs. 3173 and 3211, R. S. 1909, enacted by the Legislature of 1872, are unconstitutional and void as the act containing said sections was not passed in accordance with Sec. 32, Art. 4, Constitution of 1865. State ex rel. Hixon v. Lafayette Court, 41 Mo. 39; State v. P'resinger, ;76 Mo. 346; State v. Great Western Coffee 'and Tea Co., 171 Mo. 634; City of Kansas v. Payne, 71 Mo. 159; State ex rel. v. Baker, 129 M:o. 482; Witzman v. S. Ry. Co., 131 Mo. 612; Shively v. Langford, 174 Mo. 535; Dart v. Bagiev, 110 Mo. 42. (6) The fact that the Act of 1872, or Sections 3173 and 3211, have been brought forward in the various revisions, gives them no added force or validity; said sections are void just as they were void when first enacted by the Legislature in 1872. Brannock v. Railway, 200 Mo. 561; Paddock v. Railroad, 155 Mo. 524. (7) The General Assembly by adopting the statute of a sister state, adopts the construction which has been given that statute by such state. State ex rel. v. Macon County Court, 41 Mo. 453; Northcut v. Edgar, 132 Mo. 265; Burnside v. Want, 170 Mo. 531. (8) The Legislature has no power to arbitrarily say that all discriminations by railroads, regardless of conditions and circumstances, are unlawful. Sloan v. Pac. Railroad, 61 Mó. 24; Chicago & Alton Ry. Co. v. People, 67 111. 11; 2 Hutchinson Carrier (3 Ed.), sec. 588; Abbott v. Lendenvower, 42 Mo. 162. (9) A statute revising the whole subject-matter of a formier statute and evidently intended as a substitute for it, although *it contains no expressed words to that effect, repeals the former. Laws-1887 (Extra Session), p. 15; State v. Roller, 77 Mo. 120; Tall v. Gillham, 187 Mo. 393; Mari wether v. Love, 167 Mo. 514; Delaney v. Police Court, 167 Mo.' 667; State ex rel. v. Patterson, 229 Mo. 364; Sutherland on Statutory Construction (2 Ed.), sec. 247. (10) A statute is repealed hy implication if there is a positive repugnancy between the new law and the old, so that they cannot stand together or be consistently reconciled. Pac. Railroad Co. v. Cass Co., 53 Mo. 17. (11) A construction of the Constitution should not be adopted which renders meaningless any of its provisions. State ex rel. v. Hostetter, 137 Mo. 636; Cooley’s Constitutional Limitations (7 Ed=), pp. 91, 92. (12) The test of whether or not a constitutional provision is self-enforcing is whether its language is addressed to the General Assembly or to the courts. If its language indicates that it was intended as a present enactment, complete in itself as definite legislation, it is addressed to the courts and is self-enforcing; but if it contemplates subsequent legislation to carry it into effect, it is addressed to the General Assembly, and is not self-enforcing. State ex rel. v. Gibson, 195 Mo. 251. (13) Sec. 3173, R. S. 1909, and Section 12, Article 12, Constitution of Missouri 18(75, are in violation of the 14th Amendment of the Constitution of the United States. Cooley’s Constitutional Limitations (7 Ed.), pp. 500 to 520; 2 Elliott on Railroads, sec. 686; 2 Hutchinson Carrier (3 Ed.), sec. 574; State of Neb. ex rel. v. Sioux City & O. W. R. Co., 31 L. R. A. 47; Ragan v. Farmers Loan and Trust Co., 154 U. S. 1014; Chicago, M. & St. P. Railroad v. State of Minn., 134 U. S. 970; State v. Aims, 169 IT. S. 819,

      Kra-uthoff, McGlivtock & Quamt for respondent.
    (1) The right of the McGrew Coal Company to recover of defendant an excess rate, being a greater rate of freight for a shorter haul than defendant charged another for a longer haul, stands adjudicated. McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496; McGrew v. Mo. Pac. Ry. Co., 258 Mo. 23; McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533; Cohn v. St. L., I. M. & S, Ry. Co., 181 Mo. 30 ; McGrew v. Mío. Pac. Ry. Co., 118 Mo. App. 379. The questions presented have all been considered heretofore with great care and at great length and consistently have been decided against appellant. McGrew Coal Co. v. Mo. Pac. Ry. Co., 178 S. W. 1179'; affirmed, Mo. Pac. Ry. Co. v. MbGrew, 244'U. S. 191. (2) Plaintiff quoted a price for coal per ton delivered at point of destination. The carrier exacted of the consignee an illegal freight rate. The consignor reimbursed the consignee for the excess charged. The carrier received money to which the carrier was not entitled. Who owns this money? This constitutional provision is self-on-' forcing. McGrew v. Mo. Pac. Railroad Co., 230 Mb.' 496-, 546; Mo. Pac. Ry. Co. v. McGrew, 244 U. S. 191. The Constitution declares unlawful the charging of the excessive rate. Where the doing of a thing is declared unlawful, a right arising out of the unlawful act may be enforced in any appropriate form of action. McGrow" v. Mo. Pac. Ry. Co., 230' Mo. 547, 549. In the case of an excessive freight rate “the legal injury is suffered by the person who pays for the carriage.” Watkins on Shippers & Carriers, p. 344, sec. 213; Nicola v. Railroad Co., 14 Interstate Comm. Rep., pp. 199, 209; Sondheimer Co. v. Railroad, 20: I. C. O. 60i7; Lamb, McGregor & Co. v. Railroad, 20 I. C. C. 358; Deming Lumber Co. v. Southern Pacific, 24 I. C. O. 509; Darñell-Taenzer Lumber Co. v. Southern Pacific Co., 221 Fed. 890, 245 U. S. 531; Georgia Railroad & Banking Co. v. Crosslev, 128 Ga. 35; Service & Wright Lumber Co. v. Railway Co., 67 Ore. 63; Davis v. Mobile & O. Ry. Co., 194 Fed. 376; Andalman v. Ry. Co., 153 111. App. 169. (3) “A person liable for and who -has paid for a loss or injury caused by fault of another''is subrogated to the rights of the injured party against the wrongdoer.” 37 Cyc. 394; Lumberman’s Mut. Ins. Co. v. Railroad Co., 149 Mo. 177; Loewenstein v. Ins. Co., 227 Mo. 116; Hartford Fire Ins. Co. v. Wabash Ry. Co., 74 Mo. App. 112; Holland Banking Co. v. See, 146 Mo. App. 275; The Jersey City, 43 Fed. 166, 167; Mobile Ry. Co. v. Jurey, 111 U. S. 594. (4) The law is a part of every contract. Plaintiffs made a contract with defendant .to carry coal. The law fixed the rate. This made-the rate a part of the contract. Defendant violated the contract. Plaintiff as consignor has a right to sne for the breach of a contract to which it is a party. Atchison v. Chicago Ry. Co., 80 Mo. 213; Ross v. Ry. Co., 119 Mo. App. 294; Gratiot Street Warehouse Co. v. M., E. & T., 124 Mo. App. 564; Steamship Co. v. Railroads, 144 Mo. App. 53; Bennett v. Railroad, 151 Mo. App. 298; Reynolds v. C. & A., 85 Mo. 90; Vanbuskirk v. Railroad, 131 Mo. App. 363 ; Clubb v. Railroad Co., 136 Mío. App. 4; Barr v. Railroad Co., 181 Mo. App. 91. Either a consignor or a consignee may sue for a breach of the contract of shipment. Henry Bromschwig Tailor’s T. Co. v. M., E. & T., 147 S. W. 174. (5) As between a consignor and a consignee, the consignor is the trustee of an express trust. R. S. 1909, sec. 730; Wolfe v. Mo. Pac. Ry. Co., 97 Mo. 478; Gratiot Street Warehouse Co. v. Railway Co., 124 Mo. App. 565; Snider v. Adams Express Co., 77 Mo. 523; 3 Hutchinson on Carriers (3 Ed.), sec. 1309'. An action may be brought by the trustée of an express trust. Harney v. Dutcher, 15 Mo. 89; Chouteau v. Bougliton, 100 M;o. 411; Ellis v. Harrison, 104 Mo. 277; Beck v. Haas, 111 Mo. 271; Glenn v. Hunt, 120 Mo. 342; Stilwell v. Glasscock, 47 Mo. App. 557; Rothwell v. Skinker, 84 Mo. App. 176; Geer v. Zinc Co., 126 Mo. App. 177,
   BROWN, C.

This petition, filed in the Circuit Court of Lafayette County, Missouri, returnable to the February term, 1915, contains fifty-two counts. Each count is based upon alleged illegal charges on shipment of coal from Myrick, Missouri, to some other station on the line of defendant’s railroad in the State of Missouri. All the counts are identical except as to dates, amount of coal shipped, the rate charged, the destination and the comparative rate charged by the defendant for .shipment between the points mentioned.

' The first count is, omitting titles and signatures, as follows:

“Plaintiff avers that in April, 1908, it was and still is a coal mining company incorporated under the law of the State of Missouri.
“Plaintiff for first cause of action avers that in October, 1879, the defendant was, and has ever since been, a railroad corporation, duly organized under the law of said State and a common carrier for hire of freight and passengers between its station hereinafter named in said State. That within five years last past, and on the dates hereinafter named in Exhibit No. 1, plaintiff produced and sold bituminous coal from its mines near Myriek, one of defendant’s stations in said county, and that on the various dates named in Exhibit No. 1, and in the cars 'therein described by number and initial, he shipped, by defendant’s road, from said Myriek, in the aggregate 640,4(X) pounds of his said coal in car-load lots to the consignees named in said exhibit at Blackwater, another station on defendant’s road in said State.
“Plaintiff avers that for the said carriage of said coal defendant fixed, charged, demanded and received of the' plaintiff 65 cents per ton, an illegal freight rate, being 25 cents per ton more than defendant- was by law entitled to fix, demand, charge and receive, in this, that during all said times and dates herein named defendant had fixed, charged, demanded and received for the carriage of the same class of coal over its said line and over another part of its said road fromi its station of Waverly, and to another of its said stations, viz., Kansas City, in said State, a distance of 63.84 miles, 40 cents per ton by the car load, while the distance from said Myriek to said Blackwater was only 60.62 miles, for which said rate of 65 cents per ton for said carriage was fixed, charged, demanded and received of plaintiff as aforesaid, and the same was illegal and exceeded the amount the defendant was entitled to fix, charge, demand and receive for said shipments by the sum of $80.05.
“And the plaintiff avers that it is damaged and aggrieved by reason of said illegal freight charge in the sum of $80.05. Wherefore, he prays judgment for the same and for said damages not exceeding $1,000 and for all other and general relief according to the statute in such case made and provided.”

The answer admitted that defendant was a corporation and owned and operated the lines of railway mentioned in the petition, on which it was a common carrier of freight and passengers, and denied generally the other allegations of the pétition. It also pleaded specially the unconstitutionality of. certain statutes on which it assumed the petition was formed. Issue was joined on all these pleas by demurrer and replication.

The cause was submitted' to the court on the pleadings and the following stipulation:

“It is hereby stipulated between the parties that the defendant’s station, the rates charged by the defendant, and amount of coal transported and the distance set out in the several counts of the petition are correctly stated therein.
“It is further stipulated that in this case the plaintiff in quoting the price of said coal to the several consignees named in the exhibits herein, instead of quoting f. o. b. at Myrick, quoted a price delivered to the consignee’s stations, which quotation was based upon the price at Myrick plus the freight rate charged by the defendant; when the coal .was received by the consignees such consignee paid defendant’s agent the. freight charges and forwarded the receipted freight bill to the plaintiff, to be credited on the price of said coal as part payment therefor, and then such consignee paid the plaintiff the difference between such freight bill and the quotation price.
“It is further stipulated that such coal was delivered by the plaintiff to the defendant for shipment in the usual and ordinary way without any direction or request by plaintiff as to what particular trains the same must be transported in, and that the defendant received and transported the same in the usual, ordinary course of business, on the usual train passing over defendant’s road.
“It is further agreed that the trains in which the defendant hauled said cars of Coal contained other cars and shipments consigned from points within this State to points without the same, from points without the sarnie to points within this State, and from points from without this State through this State to points in other •states.”

Judgment was rendered for the plaintiff on each count of *the petition, aggregating the total sum of $14,308.77, from which this appeal is taken.

I. The statement filed by the appellant in pursuance of the terms of Section 280, Revised Statutes 1909, and the rules of this court made in pursuance thereof, closes with a clear and concise presentation of the issues as follows:

“It is conceded that the rates charged, the distances between the different points and the amount of coal shipped, are as stated by the plaintiff, and the issues of law before this court are:
“1. Whether the plaintiff paid the freight on the several shipments and was in fact damaged as alleged in its petition and is the proper party to bring this action.
“2. Whether, regardless of who in fact paid the freight, the respondent has been damaged and is therefore entitled to recover.
“3. Whether the sections of the statute on which this action is based are constitutional.
“The latter proposition has been decided adversely to the contention of the appellant by this court in prior actions between the same parties, but the question as to whether or not' plaintiff can recover for damages, if any, sustained- by the consignee who in fact paid the freight, has never been jjassed upon by this court.”

Notwithstanding this frank declaration the appellant has favored us with an elaborate brief upon the constitutional questions raised in the trial of the case which are the same in all respects as those involved in the following cases: McGrew v. Missouri Pacific Railway Company, 177 Mo. 533; Ib v. Ib, 230 Mo. 496; Ib v. Ib, 258 Mo. 23; and McGrew Coal Company v. Ib, 178 S. W. 1179. In each of these the questions were raised by similar pleadings and were presented to the court for determination in the same manner in which they are raised and presented here. They were all against this appellant and in the last case cited this respondent corporation was the plaintiff and we disposed of it in our opinion with the statement that “the questions presented have all been considered heretofore with great care and at great length, and consistently have been decided against appellant,” who is also the appellant in this case. That case was taken by writ of error to the Supreme Court of the United States, where the rights claimed by .appellant under the Constitution of the United States were adjudged against it and our judgment affirmed. [Missouri Pacific Railway Company v. McGrew Coal Co., 244 U. S. 191.] For these reasons we must take the appellant at its word, and consider only the unadjudicated question.

II. Has the plaintiff, in contemplation of law, been injured by the exaction of the illegal charge? If so, may he maintain this suit to recover it back? This depends upon the stipulation upon which the case was submitted.

The stipulation stated that the plaintiff, instead of quoting to his customer a price for the coal f. o. b. at Myrick, quoted a price delivered at its destination. This means that the coal was sold to the consignee f. o. b. at the station of destination. "When the coal was delivered the purchaser paid the illegal freight hill and settled his account with the plaintiff by sending him the defendant’s receipt for the amount of freight paid, with the balance in cash. The transaction of sale stated in the stipulation was a simple one. According to its terms the less the purchaser of the coal paid for freight the more the plaintiff received in net proceeds from the transaction. The more he paid for freight the less the plaintiff received for his coal.

The stipulation states that plaintiff’s quotation to the purchaser “was based upon the price at Myriok plus the freight rate charged by the defendant.” This is probably true. The value of all commodities is based on all the conditions of cost, including transportation. "When the consignee of this coal sold some or all of it to his customer, he no doubt based the price upon the cost of the coal in his yard including the illegal charge paid to the defendant, but this would not transfer the right to bring the suit for the overcharge. We cannot see that the plaintiff stands on any different footing from that upon which it would stand had it paid the freight in advance. While it would, no doubt, then take it into consideration as an element in the selling price of his commodity, that fact would have no effect upon the liability of defendant for the illegal exaction.

This litigation illustrates the just and salutary operation of the rule. The defendant had the physical power to enforce its illegal claim by withholding the delivery. The right of each consumer upon whom the burden ultimately falls to pursue the tortuous course of litigation which has resulted from these transactions would be a barren one. The remedy, to be effective, must lie with the shipper with whom the contract is made, and the amount of the recovery measured by the amount which he is, either directly or through his consignee, forced to pay. This conclusion is well supported by the authorities. [Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531, 221 Fed. 890; Burgess v. Freight Bureau, 13 I. C. C. 668, 680; Jennison Bros. v. Dixon, 133 Minn. 268; Service Lumber Co. v. Railway Co., 6¡7 Ore. 63, 76; Railroad Co. v. Manufacturing Co., 51 Ill. App. 151; Andalman v. Railway, 153 Ill. App. 169; Railroad Co. v. Crossley, 128 Ga. 35.]

In the foregoing cases, as well as in many others which they cite, this very point is discussed and expressly determined. We call attention to the Georgia case, because it presents the question in a- striking light. The rate charged, collected from the consignee, and charged to the consignor, who paid it, was not an illegal rate, nor so far as appears, an unreasonable one. It was simply in excess of a rate made by agreement between the consignor and carrier, and of course liquidated the amount of the excess.

The appellant cites Railroad v. Coal Mining Company, 230 U. S. 184, to sustain its position in this case. In disposing of that case in its application to this we can do no better than to quote from the opinion of the same court upon the same subject in Southern Pacific Co. v. Darnell-Taenzer Co., 245 U. S. l. c. 534, as follows:

“The cases like Pennsylvania R. R. Co. v. International Coal Mining Co., 239 U. S. 184, where a party that has paid only the reasonable rate sues upon a discrimination because some other has paid less, are not like the present. There the damage depends upon remoter considerations. But here the plaintiffs have paid cash out of pocket -that should not have been required of them, and there is no question as to the amount of the proximate loss. See Meeker v. Lehigh Valley R. R. Co., 236 U. S. 412, 429; Mills v. Lehigh Valley R. R. Co., 238 U. S. 273.”

We have expressly held the long-and-short-haul provision of Section 12 of Article 12 of the State Constitution to be self-enforcing. [McGrew v. Railroad, 230 Mo. 496; Ib v. Ib, 258 Mo. 23; McGrew Coal Co. v. Ib, 178 S. W. 1179.] It liquidates the amount of the overcharge at the difference between the charge exacted and paid for the shorter haul and the rate charged for the longer haul. If it is wrongfully exacted and paid, it is necessarily the amount to be recovered back. The judgment in this case was rendered accordingly, and is affirmed.

Walker G. J. and Williams, Blair and Williamson, JJ., concur; Goocle and Woodson, JJ., dissent; Graves, J., not sitting..