source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    MISSOURI VALLEY COLLEGE et al., Appellants, v. BEN ELI GUTHRIE et al.
    In Banc,
    December 31, 1914.
    For the reasons stated in Hayes v. Manning, ante page 1, uie judgment in this case is affirmed.
    Appeal from Saline Circuit Court. — Ron. Samuel Davis, Judge.
    Affirmed.
   WALKER, J.

Putting aside minor matters of controversy, we find that the primary question for determination here is the validity of the union between the Cumberland Presbyterian Church and the Presbyterian Church U. S. A., by which the former was merged in and became a part of the latter. The validity of this union has been upheld by this court in the case of Hayes v. Manning, decided at this term and reported at page 1 of this Report, and for the reasons therein stated we affirm the judgment in the case at bar; and it is so ordered.

Lamm, G. J., and Woodson, Laris, and Brown, JJ., concur; Rotó, J., concurs in result; Graves, J., dissents.


author: GRAVES, J.

text:
    THE STATE ex rel. ALFRED W. FLEMING, v. ROBERT L. SHACKELFORD, Judge of Probate.
    In Banc,
    December 31, 1914.
    1. MANDAMUS: To Compel Court to Exercise Jurisdiction. Mandamus will lie to compel a court which has jurisdiction of a cause to proceed to exercise its jurisdiction, although it may he of the opinion that under the law it has no jurisdiction. Being of the opinion that under the existing status of the case it has no power under the law to make a certain order requested, hut having that power, mandamus is the remedy to compel it to exercise its discretion.
    2. CURATOR AND WARD: Partial Distribution: Jurisdiction of Probate Court. A probate court, in the exercise of a judicial discretion, has power to direct a curator to make a partial distribution of the ward’s estate, while there is pending and undisposed of exceptions filed by the ward to the curator’s final settlement.
    3. -: -: -: Aided By Equitable Principles. To the probate court has by statute been confided the control and management of a ward’s estate, and it may direct a payment to be made to the ward or for the ward’s benefit; and while there is no specific statute directing the court to make a partial distribution pending exceptions to the curator’s settlement, yet as there is no statute which prohibits such distribution, it can call to its aid both legal and equitable principles in reaching a proper judgment or order.
    4. -: -: Facts Calling For Exercise of Discretion. To allow a curator to withhold the whole estate until the end of a long litigation over contested exceptions to the curator’s final settlement, tends to discourage the ward from insisting upon his rights, and weakens his power to assert them, since he-is without funds; and, to require a partial' distribution where there is an undisputed large balance in his favor, reserving enough to pay costs of litigation, will do the curator no harm; and under such circumstances, the probate court should exercise a sound judicial discretion.
    Mandamus.
    Writ issued.

      Leahy, Saunders & Barth and John B. Reno for relator.
    (1) Mandamus is tlie only available remedy, (a) There is no statutory authority for an appeal. A refusal to make an order of distribution is not “a final order or judgment of the probate court” from which an appeal may be taken. Sec. 463, R. S. 1909, assimilates appeals in cases of administration of the estates of minors and the estates of deceased persons. And the section controlling appeals in the administration of decedents’ estates (Sec. 289, R. S. 1909) gives no right of appeal in cases analogous to the one at bar. State v. Fowler, 108 Mo. 465; State ex rel. v. Guinotte, 113 Mo. App. 399; Flick v. Schenk, 212 Mo. 275; Marshall v. Estate of Shoemaker, -164 Mo. App. 429. Ordinarily an appeal is not open where the action of the court is purely negative. 2 Woerner, Administration (2 Ed.), sec. 545. (b) In any event, it is well established that mandamus is the only proper remedy where a “court refuses to proceed with a case, because the court was of opinion that it did not have jurisdiction, ’ ’ and, further, that “a dismissal on the ground of the want of jurisdiction is not such an assumption of jurisdiction as to require its review by appellate proceedings.” State ex reh v. ITomer, 249 Mo. 64; State ex rel. v. McElhinney, 246 Mo. 56; State ex rel. v. Broaddus, 239 Mo. 359; State ex rel. v. Crirnm, 220 Mo. 483; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. O’Bryan, 102 Mo. 259; State ex rel. v. Philips, 97 Mo. 331; Castello v. Circuit Court, 28 Mo. 274; State ex rel. v. Reynolds, 121 Mo. App. 711. ■ (2) A peremptory writ of mandamus should be awarded, (a) It is settled that while probate courts are not invested with independent equity jurisdiction, nevertheless they have such extensive inherent equity powers in the administration of estates as to make their jurisdiction in so far practically exclusive. “The circuit courts of this State have no jurisdiction whatsoever in matters pertaining to probate business, except in rare instances. The jurisdiction over all such matters is given to the probate courts by the Constitution and laws of this State.” Constitution, art. 6, sec. 34; Sec. 4056, R. S. 1909; Meeker v. Straat, 38 Mo. App. 244; In re Ford, 157 Mo. App. 152; Pearce v. Calhoun, 59 Mo. 274; Titterington v. Hooker, 58 Mo. 593; In re Estate of Elliott, 98 Mo. 384; Scott v. Royston, 223 Mo. 568; Matson & May v. Pearson, 121 Mo. App. 120; Lietman v. Lietman, 149 Mo. 112; Brewer v. Cary, 148 Mo. App. 193. (b) Clearly, questions relative to the transfer of assets shown to be on hand by the curator’s final settlement are matters essentially “pertaining to probate business.” Yoeman v. Younger, 83 Mo. 424; Bombeck v. Bombeck, 18 Mo. App. 26; State ex rel. v. Creer, 101 Mo. App. 675. (c) It follows that in the case at bar the probate court had jurisdiction to order to the ward, upon his attaining majority, a transfer of such a portion of the undisputed assets, shown by the curator in its final settlement to be due, as the court in its judicial discretion might deem proper.

      T. K. Skinker and Thomas E. Sprinkle for respondent.
    (1) This court has no power to grant a writ of mandamus in this case, because the respondent, acting in his judicial capacity as judge of the probate court, has decided relator’s motion on the ground that pending a final settlement with exceptions filed, he has no power to make such an order. State ex rel. v. Riley, 219 Mo. 667; State ex rel. v.- Neville, 110 Mo. 345; State ex rel. v. Fort, 180 Mo. 108; State ex rel. v. Me-gown, 89 Mo. 156; State ex rel. v. Grimm, 220 Mo. 483; R. S. 1909, sec. 456. (2) Respondent had no power under the statute to order a partial payment. R. S. 1909, secs. 456, 458, 459; State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Bird, 253 Mo. 569, 579; R. S. 1909, secs. 222., 238, 458. (3) The peremptory writ should not be issued, because it would violate the rule against splitting causes of action. Pomeroy’s Code Remedies (4 Ed.), p-. 470; Donnell v. Wright, 147 Mo. 646; Bank v. Tracey, 141 Mo. 258; Phillips v. Laclede County, 76 Mo. 69; Union R. & T. Co. v. Traube, 59 Mo. 362; Wagner v. Jacoby, 26 Mo. 532; Pfeiffer v. Suss, 73 Mo. 245; Hoffman v. Hoffman’s Executor, 126 Mo. 497. (4) The peremptory writ should not be issued because it would accomplish nothing. High on Extraordinary Legal Remedies, secs. 14, 548; State ex rel. v. Railroad, 77 Mo. 143; State ex rel. v. Halladay, 65 Mo. 76. (5) It should not be issued because no demand was ever made upon respondent for the relief now sought. . State ex rel. v. LeSeuer, 136 Mo. 459; State ex rel. v. Associated Press, 159 Mo. 421; Abbott v. Adcock, 225 Mo. 363. (6) The fact that'the prayer of relator is in the alternative is fatal to his claim for relief. School District v. Lauderbaugh, 80 Mo. 194; State ex rel. v. Hudson, 226 Mo. 265. (7) The fact that there is no appeal from Judge Shackelford’s decision does not confer upon relator the right to proceed by mandamus. Millar v. Transit Co., 216 Mo. 103; Barnes v. Construction Co., 165 S. W. 728; State ex rel. v. Neville, 110 Mo. 349; State ex rel. v. Bates, 235 Mo. 282.
   GRAVES, J.

Original action in mandamus. The facts are few and simple, as we gather them from the record before us. The Trust Company of St. Louis County, a “corporation, was and is curator of the estate of Alfred W.- Fleming, in the probate court of St. Louis county. In September, 1913, the said Fleming attained his majority. At the November term of said probate court following the date at which Fleming reached his majority said Trust Company filed its statement of accounts for final settlement, by which it was shown that the Trust Company was indebted to its ward in a sum exceeding $107,000. Later a supplemental statement was filed showing that the curator had paid its ward some more money and showing a balance of $102,000 and over. Fleming, the ward, promptly filed exceptions to this settlement, and those exceptions are still pending and undisposed of at this time. With these exceptions pending, Fleming through his counsel filed in the probate court a motion, the purpose of which was to have that court to direct his curator, the Trust Company, to pay to him all of the said $107,000, except such sum as the court should deem sufficient to cover all costs and expenses of litigating the pending exceptions to the final settlement of the said curator. When this application or motion of Fleming came' to be heard, the probate court thus disposed of it:

“Now on this day the petition of Alfred W. Fleming, heretofore filed and presented to the court, praying for an order of distribution of the funds belonging to him in the possession of the Trust Company of St. Louis County, his curator, coming on for final consideration and determination; and the court having seen and heard said petition and the evidence adduced and argument of counsel for and against said petition, the court doth find that said petitioner, Alfred W. Fleming, has arrived at the age of majority.
“As the .court further finds, said curator has filed in this court its final settlement in the estate of said petitioner, showing a large amount of assets in its possession belonging to said estate; and the court further finds that said final settlement is now pending before the court and has not been' considered or approved.
“The court further finds that it has no jurisdiction to make an order of distribution of said estate, or any part thereof at this time. It is therefore ordered that said petition be and the same is hereby overruled and denied. ’ ’

After the issuance of our alternative writ the said Fleming again presented his petition for a partial distribution, and the court again refused it by an entry in the following language:

“Now on this day comes on to be heard the petition of Alfred W. Fleming, filed herein on the 16th day of June, 1914, again praying for an order directing the payment to him by the Trust Company of St. Louis County, curator of his estate, of a sum of money designated as $107,157.35, less such amount as may be necessary to defray any expenses reasonably incurred by the said Turst Company in the defense of pending exceptions, and it appearing to the court that such, sum constitutes but a part of the estate claimed by said Fleming to be due to him from the said Trust Company; that there is on file in the court an account offered by said Trust Company for the final settlement of said estate, and that exceptions to said account were filed by said Fleming on the 5th day of January, 1914, alleging that other large sums of money are due to Mm from said Trust Company aside from the balance shown by said account to be on hand; and it appearing that said exceptions remain unheard and undetermined; and the court being of opinion that until said exceptions are determined and the full and true amount due from said Trust Company as curator to petitioner is ascertained, the court has no power to order the said Trust Company as curator to mate any payment to petitioner, the said petition is for that reason denied.”

These facts we gather from the return. The case stands here on a motion for judgment upon the pleadings. In such case the facts of the return are the facts of the case here, in so far as they controvert the allegations of the petition.

From the record it is not disputed that the curator owes the ward at least $102,000. Under these facts should the probate court be directed by mandamus to consider the question of ordering a partial distribution of the estate? This is the single and sole issue.

I. ' This case presents at least two very nice questions. The first is one which lies at the very threshold of the case. That question is, will mandamus lie on this record? We think so, if the probate court possessed the discretionary power of ordering and directing a partial distribution of the ward’s estate. This latter question is the second very Mce proposition involved in the case. For the purpose of this point we shall proceed upon the theory that the probate court in the exercise of a sound judicial discretion, could direct a partial distribution. If the probate court, in the exercise of a sound judicial discretion, has the power to order and direct a partial distribution of the ward’s estate (a matter we will discuss in the next paragraph) then our peremptory writ should go, because by a proper application the relator has invoked the exercise of this sound judicial discretion, and in onr judgment the prohate court has declined to consider the merits of that application.

We do not gainsay the rule that mandamus will not lie to compel the doing of a thing which has heen done. If this record would bear the construction that Judge Shackelford in passing upon relator’s application for a partial distribution of his estate, was of the opinion that he had the jurisdiction, or in other words the power and .right, to exercise his discretion at the time, and so recognized his said power and right, did by his order undertake to exercise his judicial discretion in the matter, then this writ should be .refused. .To phrase the proposition differently, if Judge Shackelford recognized the fact that, under the law, in the exercise of a wise judicial discretion, he was possessed of full power to order a partial distribution of the ward’s estate, but in making his orders he meant to and did exercise that discretion, then our writ should be denied. But is this the status of this record? We think not. It is clear to our mind that Judge Shackelford was under the impression that under the law he was without power or jurisdiction to act in the matter whilst these exceptions were pending. In other words the force and effect of the order made is simply determining the preliminary question of jurisdiction, i. e., his right to hear and determine from a jurisdictional viewpoint. It does not appear to us from these proceedings in the probate court that Judge Shackelford recognized his jurisdiction or power to exercise his judicial discretion on the merits of the application, and did in fact exercise it. On the other hand it does appear from this record, in onr judgment, that Judge Shackelford did not exercise his judicial discretion as to what order he should make under the application and the facts of the case, but that he declined to enter into that matter because he was of opinion that he was without the right or power so to do at that time. In other words, that he was without jurisdiction.. If this be the status of the record, then, if he was in error as to his jurisdiction, our writ should go directing him to determine the application upon its merits.

We have so recently been over this exact question in the case of State ex rel. v. Homer, 249 Mo. 58, that we can add but little to what was there said. In that case we have fully collated the cases in this State and elsewhere. In that case the circuit court had declined to proceed with a case, because it was under the impression that it was without jurisdiction. In that case, among other things we then, at page 66, said:

“But aside from this there is much respectable authority to the effect that mandamus is the only proper remedy where a circuit court refuses to proceed with a case, because the court was of opinion that it did not have jurisdiction of the cause, or of the parties to the cause. In the circuit court case the trial. court refused to entertain jurisdiction and proceed with the case upon a preliminary objection to the return of service to the process. In the very early case of Castello v. St. Louis Circuit Court, 28 Mo. l. c. 274, we had up a very similar question. The question there was whether a notice of contest in a contested election case was sufficient to give the circuit court jurisdiction to hear and determine the case upon its merits. The circuit court held the notice insufficient and refused to proceed further with the case. This court issued its alternative writ and' then proceeded to determine whether or not the trial court was right or wrong in refusing to proceed further. We held that the trial court was right and that the notice was insufficient, and denied the peremptory writ for that reason, but in the course of the opinion we thus spoke upon the question in issue here:
“ ‘Upon the facts disclosed in the petition in this case for a mandamus upon the circuit court, a majority of this court determined that a conditional mandamus should be awarded, and it was accordingly so ordered. This determination was based upon the principle that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. The cases of the King v. The Justices of the West Riding of Yorkshire, 5 Barn. & Adol. 667, and Rex v. The Justices of Middlesex, 5 B. & Ad. 1113, The King v. Hewes, 3 Ad. & Ellis, 725, and Regina v. The Recorder of Liverpool, 1 Eng. Law & Eq. R. 291, are believed to be conclusive upon this point so far as the English authorities go; and our attention had not been directed to any American cases conflicting with. this view of the law. If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by the statute, that was a preliminary objection upon a point of law which .this court can review upon a writ of mandamus ; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.
“ ‘It is not deemed important to go into any extended examination of this question, since upon the return to the conditional mandamus by the circuit court, we were satisfied that the construction which that court gave to the statute was correct.’
“ So in the case at bár. The trial court entertained an objection to a preliminary matter and then refused to proceed further. The return was before the court and was therefore an undisputed fact, and it was thus a pure question of law as to whether the court should hear the case upon its merits. The doctrine of the Castello case, supra, has since met with the express approval of this court in the later case of State ex rel. Bayha v. Philips, 97 Mo. l. c. 347.”

We refer the curious to the full line of cases reviewed in the Homer case. The doctrine shortly summarized is this: If the lower court, upon a preliminary question of jurisdiction, which, question of jurisdiction, is to be determined from the law of the case, rather than the facts, resolves the question of jurisdiction against the applicant or plaintiff, and for that reason declines to consider the merits of the case, then mandamus will lie to compel such court to proceed, upon the merits, if we, under the law determine that such court possessed the jurisdiction. Of course if jurisdiction is dependent upon facts, then we have a different proposition. [State ex rel. Crouse v. Mills, 231 Mo. l. c. 500 et seq.]

Upon this record we conclude (1) that the probate court only passed upon the preliminary matter of jurisdiction, (2) that it did not undertake to pass upon the merits or demerits of relator’s application, and (3) that if the said court was in error as to its jurisdiction then this writ should go. The last question we take next.

II. Does a probate court in Missouri, in the exercise of a sound judicial discretion, have'the right to direct or order a partial distribution of an estate of a ward, whilst there is pending exceptions to the final settlement? This is vital question in this case. By refusing to consider the application on the ground of having no right to make such an order the court msi has ruled that such power is not possessed by a probate court. In this we think there was error. That the probate court for the maintenance of the ward may direct payment to be made to the ward or for the ward’s benefit there is no question? This, however, may be traced to the statute. All such payments are, however, partial distributions, made under the sound judicial discretions of the court. In the instant case there is no specific statute directing a partial distribution under the circumstances here disclosed, nor is there a statute which prohibits such a distribution. It is true that probate courts have no equitable jurisdiction, but in the administration of matters over which they have been given express jurisdiction, they can call to their assistance both legal and-equitable principles in reaching their conclusions and judgments. This doctrine is clearly recognized in the following very recent cases: Lietman’s Executor v. Lietman, 149 Mo. 112; In re Estate of Jarboe v. Jarboe, 227 Mo. l. c. 93; State ex rel. v. Bird, 253 Mo. l. c. 580. In the latter case this court said:

“Probate courts are specifically vested with jurisdiction to do certain things, and we think they should be permitted to invoke equitable principles in adjudicating all issues which by the Constitution or statute are expressly confided to their care. Such is the conclusion reached in the cases of Lietman’s Executor v. Lietman, 149 Mo. 112, and In re Estate of Jarboe v. Jarboe, 227 Mo. 59. While the rule announced in the two cases last cited is undoubtedly sound law,.I am not willing to concede that a probate court has jurisdiction to entertain a suit or proceeding, the sole basis of which is a demand for equitable relief, even though such relief should incidentally pertain to some matter of probate jurisdiction. ’ ’

In Jarboe’s case, 227 Mo. l. c. 93, we also said:

“Whilst it is true that the probate courts of this State are courts of statutory power, yet in the exercise of the powers granted, they resort to both common law and equitable rules in the disposition of matters before them. Taking of accounts have long since been recognized as matters in equity, yet under the law partnership estates which involve or may involve an accounting between partners are confided to the probate court, with full power to administer and settle. The statute allows offsets to claims to be filed and these may be such as involve long accounts or even an accounting, yet of these things either in individual or partnership estates the probate court has jurisdiction, and it may well be considered a substantial query as to whether or not in exercising the incidental powers required to determine the questions confided to the probate court by the law, it like other courts may not call to its aid the usual instrumentalities used by other courts in reaching conclusions upon the same class of investigations and in proper cases order a reference.”

In the case at bar the probate court has been confided by law with the control and management of the estate involved. It was clothed with power to distribute the same by proper order. To allow a curator to withhold the whole estate until the end of a long litigation over contested exceptions to the final settlement tends to discourage the ward from insisting upon his rights. It places him to the disadvantage of a long contest without ready funds. Such a rule might work serious hardship and injury, whereas no injury could result if the probate court would direct the curator to turn over all the estate, except such reasonable sum as might be required in the litigation over the adjustment of accounts. The probate court having the full power in the end to distribute all the estate, we can see no good reason why a partial distribution may not be made under circumstances of the kind disclosed here. We are impressed-with the idea that a sound judicial discretion would dictate such a distribution.

To conclude, we hold that Judge Shackelford was in error when he concluded that he had no jurisdiction to hear and determine relator’s application; that such ruling on a preliminary matter of jurisdiction does not preclude a writ of mandamus to compel said judge to investigate and determine such application upon its merits: that our absolute writ of mandamus should issue, directing said judge to proceed to hear and consider the application of relator upon its merits, and after such hearing and consideration upon the merits to enter such judgment as a sound judicial discretion may dictate. Let our writ be made absolute.

All concur.


author: WOODSON, J. GRAVES, J.

text:
    W. W. DEARDORFF and J. R. HERYFORD. Partners, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    In Banc,
    December 31, 1914.
    INTERSTATE SHIPMENT: From Hale, Mo., to Kansas City Stockyards: Estoppel by Contract. A shipment of stock from Hale, Missouri, to the Kansas City Stock Yards, the place for unloading the stock being on the Kansas side of the line dividing Missouri and Kansas, is an interstate shipment; and the fact that, after the stock were transported in the cars across the State line into Kansas and were there unloaded, they were driven on foot back across the State line to sale pens in Missouri allotted by the Stock Yards Company to the shipper’s commission merchant, and there exposed to sale ■ and sold, had no effect whatever on the character of the shipment made by the railroad company.

      Held, by GRAVES, J., dissenting, with whom BROWN, J., concurs, that, it being undisputed that the effreightment contracts read “from Hale, Mo., to Kansas City, Mo.,” the railroad company, having thus contracted, cannot gainsay the terms of its contract so far as to make an interstate shipment out of a contracted intrastate one, but is estopped by the contract from making such a claim.
    Appeal from Carroll Circuit Court. — Hon. John P. Butter, Judge.
    Reversed and remanded (with directions).

      O. M. Spencer, Lozier & Morris, M. G. Roberts aud H. J. Nelson for appellant.
    Since this case was briefed and argued in Division No. 1, the Supreme Court of the United States has wiped out the last vestige of a hope the plaintiffs had of escaping a decision that the shipments in question were intrastate, because said hope of plaintiffs was based on fact that there was proof some of the shipments moved on contacts reading “Kansas City” without a State being mentioned, and a very few contracts read “Kansas City, Mo.” The Supreme Court of the United States holds the reading of the shipping contract is immaterial. Railroad Com. v. Railroad, 229 U. S. 340; C. M. & St. P. v. Iowa, 233 U. S. 343; Baer Bros. v. D. & R. O., 233 U. S. 490. The reasoning of these cases is that commerce means movement, that a commodity is commerce only when it moves and because thereof, and that no other fact is material in determining whether a shipment is interstate or intrastate commerce.

      John P. Benson and Jones & Conhling for respondents.
    In his brief, appellant’s counsel says that the last vestige of hope which respondents have in this case has been wiped out by the Supreme Court of the United States. With all due deference to appellant’s counsel, we take issue with him. The case of Railroad Commissioners v. T. & P. Ry. Co., 229 U. S. 340', cited by appellant’s counsel does not in the least militate against respondents. In that case it appears that from the very beginning the commodities of commerce were treated by both shipper and carrier as interstate, and that the tariffs were governed by those on file with the Interstate Commerce Commission. Such are not the facts in the case at bar. There is no contention on the part of appellant that the tariffs on file with the Interstate Commerce Commission applied to or governed the shipments of respondents’ stock. Nor is there any contention that respondents and appellant, in any way or manner, whatever, treated or recognized said transportation as interstate commerce. It is true that appellant’s answer, by way of affirmative defense, alleged that the freight charges for said shipments were not determined by, nor in any way governed by, the laws of Missouri. Even if this allegation of the answer should be construed to mean that it was the contention of appellant that the laws, rules and rates governing interstate commerce applied to this case, still, it appears from the printed record that appellant abandoned that defense, in that no effort was made by appellant to prove (although that right was reserved by paragraph 9 of the agreed statement of facts) that the shipments in question were made on an interstate rate. In plaintiff’s petition, the local rate (intrastate rate) is alleged, and the amount of the rate specifically set out. The rate thus alleged in plaintiff’s petition is specifically admitted in the agreed statement of facts upon which this cause was submitted. So, then, so far as the rate in question is concerned, it stands admitted by the agreed facts that the shipments were made on the local or intrastate rate, but in the face of this admission, appellant seeks to avoid the laws of this State and its attending penalties, because a portion of the stockyards and of the Live Stock Exchange Building were across the line in the State of Kansas, and because its unloading chutes, where it unloaded stock, were on the Kansas side. This, in view of the fact that the rates charged were intrastate, together with the fact that the shipping contracts read either to “Kansas City, Missouri,” or to “Kansas City,” is a very fine-spun and, to say the least, a weak defense. To appropriate some of the language in the concluding paragaph of appellant’s supplemental brief, is mere “juggling.” There is an entire absence of evidence showing that the shipments in question were in any way, manner or form, whatever, recognized or treated by either plaintiff or defendants as interstate commerce. In the absence of evidence showing that an interstate rate was charged, or that the commerce was intended to be interstate, it would be unreasonable to construe it to be interstate merely because that in getting it to the unloading chutes, defendant pushed the cars in which the stock was loaded up to the unloading chute on the Kansas side. Can it be said that since the stock pens are both in Missouri and Kansas, that the defendant could not contract to carry stock from any point in Missouri with the point of destination being at the stock pens, on the Missouri side and charge therefor the intrastate rate and accomplish the delivery by unloading the stock at an unloading chute on the Kansas side? It seems to us that a contrary argument would at once appear' to be absurd and unreasonable. If so then defendant’s contention that the shipments in question became interstate merely because the stock was unloaded at the unloading chutes on the Kansas side is absurd and unreasonable. The agreed statement of facts show that the sale pens of plaintiff’s consignees were on the Missouri side and the stock was there lotted and sold. This is not the first time such a contention as appellant now makes has been made in an appellate court of this State. In the case of Scammon v. Railroad, 41 Mo. App. 194, the same point, namely, that the shipments in question were interstate because the stockyards were located partly in Missouri and partly in Kansas, was asserted —but, that point was squarely and thoroughly decided against appellant. Eleven of the contracts read to “Kansas City, Missouri.” Hence, Kansas City, Missouri, as to those, was the point of delivery, but as to those of the contracts which read to “Kansas City” defendant could discharge its obligation by delivering the stock at Kansas City, Missouri. The rate it charged was to Kansas City, Missouri, and if defendant chose to deliver the stock by taking them to' the Kansas side and unloading them at chutes on that side of the State line, such was a matter of its own choice and for its own convenience, and cannot and does not change the character of the commerce from intrastate to interstate. We confidently assert that no case can be found holding to a view contrary to the Kansas City Court of Appeals in the Scammon case, supra. To hold under these facts, that the shipments were interstate, would be to disregard the established and admitted facts as to the rate and the language of the shipping contracts offered in evidence, or, stated differently, it would be to hold that although the contracts and rates applied to intrastate shipments, yet, because of the fact that part of the yards were situated in Kansas, it was therefore an interstate shipment, or, in other words, it would be to hold that in order to determine the character of a shipment originating in the State of Missouri, destined to the Kansas City stockyards, and because the State line runs through the stockyards, that part of the stockyards on the Kansas side will control and determine the character of the shipment — make it interstate. This we say is unreasonable and untenable. We call the court’s attention to Campbell v. Railroad, 17 L. R. A. 443, where •it is held that shipments between points within the same State do not constitute interstate commerce merely because part of the transit runs through another State. The case of Railroad v. Iowa, 233* U. S. 343, and Baer Bros. v. D. & R. G., 233 IT. S. 490, are not in point on any of the facts in the case at bar. They are wholly distinguishable from this case in important particulars. In the first case, the shipment originated in Illinois and terminated at points in the interior parts of the State of Iowa. In the other, the shipment originated at St. Louis, Missouri, with point of destination at Leadville, Colorado. The shipping bill read, “In good order to be delivered to Baer Bros. Company, at Leadville, Colorado, via. the Denver and Rio Grande,” which clearly shows that the shipment was interstate.
   WOODSON, J.

This suit was instituted in the circuit court of Carroll county, by the plaintiffs, under sections 1133, 1140 and 1153, Revised Statutes 1899-, against the defendant, to recover certain alleged overcharges and penalties incident thereto, on shipments of live stock, made by them from Hale, Missouri, to the Kansas City Stock Yards, which are partly located in the State- of-Kansas and partly in the State of Missouri, the entrance of which is in Kansasi just across the line separating the two States.

The plaintiffs had judgment below and defendant appealed to this court.

The cause was argued and submitted in Division No. 1, and assigned to our learned Commissioner, Brown, to write. For reasons not necessary to be here stated his opinion failed to receive the approval of the court, and for that reason the cause was transferred to Court In Banc. It was there reargued and submitted, and the cause was assigned to the undersigned to write, the opinion herein, for the court.

The pleadings are in no manner assailed; and for that reason it is not necessary to consider them further, than to state that they presented the issues which are shown to be true by the agreed statement of facts filed and largely upon which the cause was submitted to the trial court.

The agreed statement of facts is as follows:

“It is hereby stipulated and agreed by and between the plaintiffs and defendant in the above entitled cause, that this cause shall be submitted to the court without a jury, upon the following agreed statement of facts, to-wit:
“1. It is agreed that this suit was instituted on December 9, 1904, and that within three years next prior to the institution of this suit, the plaintiffs shipped over .the railroad of defendant various cars of live stock from Hale, Missouri, to Kansas City Stock Yards, as listed on. Exhibits ‘A,’ £B,’ £C,’ and £D,’ which are attached hereto and made a part hereof, upon which shipments the plaintiffs paid to the defendant the amount of freight charges and at the rate per cwt. as follows, to-wit:
“Between the 12th day of December, 1901, and the 25th day of April, 1904, 113 cars of hogs, weighing 1,906,300 pounds at a rate of twelve and one-half cents per hundredweight, total freight charges on said 113 cars being $2382.84, as shown on Exhibit ‘A.’
‘ ‘ From April 26,1904, to December 9,1904, thirty-four ears of hogs, weighing in the aggregate 581,820 pounds, at a rate of thirteen and one-half cents per hundredweight, total freight chages on said thirty-four cars being $785.45 as shown on Exhibit ‘B.’
‘ ‘ From December 9,1901, to April 25,1904, twenty-four cars of cattle, weighing in the aggregate 540,800 pounds, at a rate of ten cents per hundredweight, the total freight charges on said twenty-four cars being $540.80,' as shown on Exhibit ‘ C. ’
“From April 26, 1904, to December 9, 1904, five cars of cattle weighing in the aggregate 112,200 pounds at a rate of eleven and one-half cents per hundredweight, the total freight charges on said five cars being $129.04, as shown on Exhibit ‘D.’
“2. It is agreed that from December 9, 1901, to April. 26, 1904, the defendant’s published tariff carload rate from Hale, Misouri, to Kansas City Stock Yards was twelve and one-half cents per hundredweight on hogs, ten cents per hundredweight on cattle; and that from April 26,1904, to the date of the filing of this suit, December 9, 1904, the defendant’s published tariff carload rate, from Hale, Missouri, to Kansas City Stock Yards was thirteen and one-half cents per hundredweight on hogs and eleven and one-half cents per hundredweight on cattle.
“3. It is agreed that from December 9, 1901, to the date of the filing of this suit, to-wit, December 9, 1904, the defendant’s tariff rate from Carrollton, Missouri, to Kassas City Stock Yards was eleven cents per hundredweight on hogs and nine and one-half
cents per hundredweight on cattle; that on February 15, 1907, the defendant raised its rates on live stock from Carrollton, Missouri, to Kansas City Stock Yards so that since that time its rates thereon from Carroll-ton to Kansas City Stock Yards have been the same as its rates from Hale to Kansas City Stock Yards.
“4. It is agreed that at all times between December 9, 1901, and December 9, 1904 the defendant operated a line of railroad from Carrollton, Missouri, through Hale, Missouri, to Kansas City Stock Yards, and that during said period the defendant transported cattle and hogs from Carrollton, Missouri, to Kansas City Stock Yards through Hale, Missouri, and that at the times mentioned in plaintiffs’ petition herein, defendant as such common carrier was engaged in the transportation and carriage of live stock from Hale, Missouri, to said Kansas City Stock Yards.
“5. It is agreed that at the station of Carrollton, Missouri, on defendant’s line, it has the competition of the Wabash Railroad Company and of the Atchison, Topeka & Santa Fe Railway Company for1 the live stock traffic from Carrollton, Missouri, to Kansas City Stock Yards; and that prior to and from December 9, 1901, to December 9, 1904, the rates of the Wabash Railroad Company and the Atchison, Topeka & Santa Fe Railway Company on cattle and hogs from Carroll-ton, Missouri, to Kansas City Stock Yards, were the same as the above stated rates charged by this defendant after December 9, 1901, from Carrollton, Missouri, to Kansas City Stock Yards on the same commodities; and that during said period the defendant made and so maintained the same rates on cattle and hogs from Carrollton, Missouri, to Kansas City Stock Yards as were maintained by said Wabash Railroad Company and the Atchison, Topeka & Santa Fe Railway Company, in order to meet the competition of said last-named companies and secure any of said traffic.
“6. It is agreed that from the 9th day of December, 1901, to the 9th day of December, 1904, the only .railroad entering Hale, Missouri, or engaged in the transportation of live stock from Hale, Missouri, to Kansas City Stock Yards, was the railroad of the defendant, so that the defendant had no competition on the live stock traffic from Hale, Missouri, to Kansas City Stock Yards during said period.
“7. It is agreed that during all the times hereinbefore mentioned, the lines of the Wabash Railroad Company from Carrollton, Missouri, to Kansas City, was sixty-six miles in length, and the line of the Atchison, Topeka & Santa Fe Railway Company between the same points was sixty-seven miles in length, and that the line of the defendant between the same points was one hundred and fifty-five miles in length.
“8. It is agreed that the said Kansas City Stock Yards are located partly in the State of Kansas and partly in the State of Missouri; that the main freight yards of the defendant were at all times located in Missouri; that the trains in which plaintiffs’ said live stock was carried from Hale to Kansas City moved first into said main yards in Missouri; that the cars containing plaintiffs ’ said live stock 'were taken from said yards in Missouri to the unloading chutes of the Kansas City Stock Yards Company by the engines and employees of defendant over a track owned by defendant and leading from said main freight yards to the Kansas City Stock Yards, which said track is located for some distance in the State of Kansas and the chutes at which plaintiffs ’ live stock was unloaded from the cars are located in the State of Kansas; that said cars were placed at said chutes in Kansas by the engines and employees of the defendant and pulled by them from said chutes as soon as plaintiffs’ live stock was unloaded therefrom; said live stock of plaintiffs’ was driven out of the cars into the chutes by'the employees of the Kansas City Stock Yards Company, the owner of said stockyards, and that said live stock of plaintiffs was driven by the employees of said Stock Yards Company, from said chutes in Kansas, to the sale pens in Missouri allotted by said Stock Yards Company to the plaintiffs’ commission men, and there exposed to sale, and sold by said commission men; that the commission men to whom said live stock of plaintiffs was consigend had their office in that part of the Live Stock Exchange Building located in Kansas ; that a portion of said exchange building is located in Kansas and a portion thereof in Missouri.
“9. It is agreed that upon the submission of this cause either party to this suit may offer competent proof of contracts, if any, made between plaintiffs and defendant for the transportation of the live stock of plaintiffs mentioned herein, and either party may offer competent proof to contradict or explain such evidence, if any, as may have been admitted at the instance of the other party in relation to contracts for transportation of plaintiffs’ live stock.”

The exhibits referred to in the agreed statement consist of many pages of the printed record, the year, month, and day of each shipment, the initials and number of each car shipped, from where to where, the kind of live stock, the weight in each car. The totals of all of those various items tally with the aggregates set forth in the agreed statements of facts.

Such additional facts as were shown by the evidence introduced will he considered in the course of the opinion.

I. Counsel for appellant assign many reasons why the judgmest of the circuit court should be reversed, but the view we have taken of the case dispenses with the necessity of considering but one of them.

The facts are, that the town of líale, the point from which respondents shipped the stock in question, is located in the State of Missouri, and the Kansas City Stock Yards are located partly in the State of Missouri and partly in the State of Kansas; and the only places furnished by said yards, an independent corporation, for unloading stock shipped thereto over the appellant’s line of road are located in the State of Kansas, and in order for the appellant to have delivered the stock shipped to those yards, it was necessary for it to carry the same over the State line into the State of Kansas, and there unload the stock into the yards where appellant had agreed to carry and deliver it.

The simplest forms of interstate shipments within the meaning of the commerce clause of the Constitution of the United States are those which consist of the shipment of some article of commerce designed from the initial point of shipment in one State in the Union, to be carried to another point in another State thereof, by means of one and the same common or private carrier or by different carriers, public or private.

This definition covers the case at bar, as a glove covers the hand, as shown by the authorities to be uresently cited, for the reason that it was the intention and agreement of both parties to the contracts of shipment here involved, that the live stock should be transported from Hale, Missouri, to the unloading chutes of the Kansas City Stock Yards Company, which, as before stated, were situated in the State of Nansas.

The mere fact, that after the stock had been transported -into the State of Kansas and there unloaded and was then driven from there, on foot, back across the State line, into the State of Missouri, had no effect whatever upon the character of the shipments made by the railroad company.

After the unloading of the stock, the company had nothing whatever to do with it. The act of driving the cattle and hogs hack into the State of Missouri was an independent matter over which it had no control and it could not have compelled the shipper to have so driven them hack nor to have driven them further into the State of Kansas or elsewhere. As previously stated, when the stock had been unloaded from the cars of the company into the Kansas City Stock Yards of Kansas City, its connection with the shipment completely ended, and it had uo more control over the stock or its movements, on foot, car, boat or barge, than did the “Man in the Moon.”

The views I have here expressed are in full accord with the rulings of the Supreme Court of the United States — the final arbiter of all such questions, in the cases before mentioned.

This being true, the sequence must be that the acts of Congress of the United States and not the statutes of the State of Missouri must govern in this cáse; that is, the shipments here mentioned are interstate and not intrastate shipments.

The cases referred to are the following: Louisiana R. R. Commission v. Texas and Pacific Ry. Co., 229 U. S. l. c. 340; Chicago, Milwaukee & St. Paul Ry. Co. v. Iowa, 233 U. S. l. c. 343; Baer Bros. v. Denver & Rio Grande Ry. Co., 233 U. S. l. c. 490; Southern Pac. Terminal Co. v. Interstate Commerce Comm., 219 U. S. 498; Ohio Railroad Comm. v. Worthington, 225 U. S. l. c. 107; Texas Ry. Co. v. Sabine Tram. Co., 227 U. S. 119.

These cases have so fully, carefully and completely considered this question from so many different viewpoints that there is nothing new that can be said upon the subject. Those who are curious enough or who are sufficiently interested in the questions here presented, will find them learnedly discussed in those cases, in which most every phase thereof has been definitely settled. Bnt in the light of these cases, there is no nse of burdening this opinion with a review of them.

Believing the rulings announced in those cases are controlling in this, we are of the opinion that the judgment should be reversed and the cause remanded, with directions to the circuit court to dismiss the suit. It is so ordered.

All concur, except Graves, J., who dissents in a separate opinion, and Brown, J., who concurs in opinion of Graves, J.

GRAVES, J.

(dissenting). — I shall not go into all the reasons for this dissent. One proposition will suffice. It is undisputed in-this record that a number of the written contracts read from “Hale, Mo., to Kansas City, Mo.” The defendant having thus contracted cannot gainsay the terms of its contract in order to make an interstate shipment out of a contracted intrastate shipment. The contract estops defendant from making such claim.

For this reason the majority opinion is in error, if not for others. I therefore dissent.

Brown, J., concurs with me.