author: RAILEY, C.

text:
    EMMA D. BELL et al. v. ED. GEORGE, Appellant.
    Division One,
    June 4, 1918.
    1. EVIDENCE: Champerty: Concealed Interest in Suit: Compulsory Testimony. It is not prejudicial error to refuse to compel the attorney of record for plaintiffs to testify whether he has a deed from plaintiffs to the lands in suit, or a contract with them whereby he is to receive an interest in the land in case judgment is rendered in their favor, for he is just as much concluded by a judgment against them as he would be had he been joined as a party.
    2. LACHES: Divesting Title: Failure to Fay Taxes. In an action at law to determine title to land, in which no affirmative equitable relief is asked, plaintiffs cannot be divested of their title based on a patent from the Government, on the equitable doctrine relating to laches, merely because neither they nor their ancestor, the said patentee, had paid any taxes on said land at any time during the fifty-six intervening years since the patent was issued.
    S. PAYMENT OF TAXES: By Whom: No Showing: Presumption. In the absence of evidence on the subject, the court has a right to presume that the record owner of the land paid the taxes from the time the patent was issued in 1859 up until it was sold for the taxes of 1889, although such record owner is not shown to have been at any time in actual possession. The burden is upon the purchaser at the tax sale to show that the record owner had not paid the taxes prior to his purchase.
    4. PLAT BOOK: Uncertified: Relied On to Show Owner of Land. An uncertified plat book, purporting to have been made by the proper United States land office, is not competent evidence for any purpose; and, although such plat book shows the lands were entered by a certain person in 1857, and the patents, which were not recorded in the county where the lands are situate, show they were issued to the assignee of said entryman in 1859, the Collector of the Revenue is not authorized to rely upon such uncertified plat book in ascertaining the owner of the land, where the statute requires the suit to be brought against the owner of the land.
    5. -: Ancient Document. An uncertified plat book, which does not purport to be the original, is not competent evidence as an ancient document.

      6. PATENT: Notice: Recorded in County. It is not necessary that the patent, which named a certain person as patentee and described him as the assignee of certain military bounty warrants, should be recorded in the county where the land lies, in order to impart notice to the tax collector that such patentee or his heirs are the owners of the land. The Act of Congress required the patents to be recorded in the General Land Office, and when so recorded they imparted notice to the tax collector that the said certificate holder had assigned his land warrants to the patentee.
    Appeal from Butler Circuit Court — Hon. J. P. Foard, •Judge.
    Affirmed.

      Lew R. Thomason for appellant.
    (1) Tile trial court erred in refusing to permit the defendant to show that J. William Chilton was the real party in interest and owner of the lands by an unrecorded deed or contract with the nominal plaintiffs. Every cause shall be prosecuted in the name of the real party. Sec. 1728, R. S. 1909. If J. W. Chilton had succeeded to the claims of the plaintiffs, either by deed or by valid contract, he was the proper party to sue as plaintiff, and it can make no difference whether it would change, strengthen or weaken the defense in this action. Sec. 1729, R. S. 1909; Citizen’s Bank v. Burroughs, 178 Mo. 731. Where the answer of the defendant denies that plaintiffs are the real parties in interest such averments are issuable allegations and it is error for the trial court to exclude evidence offered in support of such allegations. Nansen v. Jacobs, 93 Mo. 346. (2) One of the issues tendered by the defendant in his answer was that whatever claim, if any, the plaintiffs had to the lands in controversy, had long since been abandoned, and that plaintiffs had been guilty of the grossest laches. By the uncontroverted evidence it is shown that the plaintiffs’ ancestor obtained title to the lands in question on the first day of November, 1859, and that neither of the plaintiffs, the youngest of whom at the time of the trial was shown to be more than thirty-nine years of age, or their ancestor, had ever been in possession of the lands, or any part thereof, or had ever asserted any claim of, interest in and to said lands or any part thereof, until the institution of this suit, and for more than fifty-six years after obtaining their claim of title. “Laches” is defined to be an unreasonable delay; neglect to do a thing or seek to enforce the right at a proper time. Bouvier’s Law Dictionary (3 Ed.), p. 1820; Anderson v. Northrup, 30 Fla. 612. The doctrine of laches is based upon ground of public policy which requires there be peace of society and the discouragement of all stale claims. Mackall v. Casilear, 137 U. S. 556. Naddo v. Bardon, '51 Fed. 498; Shelton v. Horrell, 232 Mo. 376. Turner v. Burk, 81 Ark. 352. The doctrine of laches will prevent the enforcement of a stale claim no matter whether predicated upon a legal or equitable right. State ex rel. v. Eeynolds, 243 Mo. 720; Heating Company v. Consolidated- Car Heating Co., 174 Fed. 658. Laches though an equitable defense may be joined in the same answer as a general denial. Ledbetter v. Ledbetter, 88 Mo. 60; Mun-ford v. Keet, 154 Mo. 48; Fisher v. Stevens, 143 Mo. 181. (3) The statute to enforce the lien for delinquent taxes upon the lands, provided that: “all actions shall be prosecuted against the owner of the property, if known, and if not known, against the last owner as shown by the records of the county or city at the time the suit was brought.” The tax suit under which the defendant claims title was in strict harmony with the provisions of the above statute. It was brought against Amzi Eudolph, the last record owner as shown by the land records of Butler County. In ascertaining the record owner for the purpose of bringing a suit for delinquent taxes, the colleqtor is not confined to the records of deeds as recorded but may look to the plat book. Payne v. Lot, 90 Mo. 676;- Noland v. Taylor,. 131 Mo. 224; Allen v. Eay, 96 Mo. 542. There is nothing in the statute requiring said plat book to be certified in any manner or form; the statute only requires that it he obtained from the land offices of the respective district of the county. Sec. 11363, R. S. 1909. An ancient instrument is presumed to be genuine and is admissible in evidence without further proof. Where an instrument is more than thirty years old and is unblemished by alterations the bare production thereof is sufficient to entitle it to admission in evidence. Wynn v. Patterson, 9th Peters (U. S.) 674; Bank of U. S. v. Dandridge, 12 Wheat (U. S.) 70; First Greenleaf on Evidence, sec. 141; Jackson v. Blanshan, 3 Am. Dec, 485; Crane v. Marshall, 33 Am. Dec. 631; Dodge v. Briggs, 27 Fed. 170; Hodge v. Hub, 94 Mo. 489; Wilson v. Snow, 228 U. S. 217. The date of the instrument at the date of the trial determines its admissibility. Gordon v. Graniss, 56 Ga. 539. The plat book offered by the defendant, though uncertified, was the proper record for the Collector of Revenue to consult for the purpose of ascertaining the last record owner of the lands in controversy, for the purpose of recovering the delinquent taxes thereon, and was admissible in evidence. Payne v. Lot, 90 Mo. 676; Noland v. Taylor, 131 Mo. 224; Lond v. Doud, 87 Mo. 197; Kansas City v. Scarritt, 169 Mo. 471. The tax suit against Amzi Rudolph, being in full compliance with the law, the sale of the lands as a result thereof passed the' title.

      J. W. Chilton for respondents.
    (1) Respondent’s title being a legal title, laches could not be pleaded or urged as a defense thereto. Workman v. Moon, 177 S. W. 862; Chilton v. Nickey, 261 Mo. 232; Hays v. Schall, 229 Mo. 124; Wilcox v. Moore, 196 S. W. 15; Wilcox v. Moore, 199 S. W. 135; Wengler v. McComb, 188 S. W. 76; Meyers v. DeLisle, 259 Mo. 506; Russ v. Hope, 265 Mo. 637. (2) The non-payment of taxes by the owner of land for any length of time whatever, will not of itself bar the owner’s title. Actual possession by an adverse claimant is an indispensable pre-requisite to the starting of any Statute of Limitations, or to a plea of • equitable estoppel or laches. Burkham v. Mannewall, 195 Mo. 506; Haarstick v. Gabriel, 200 Mo. 237; Hays v. Pumphrey, 226 Mo. 119. (3) Payment of taxes, surveying land, cutting timber therefrom and keeping other trespassers off by one who holds mere color of title to land are not such acts as constitute actual possession of the land, and not such acts as will set in motion any Statute of Limitations or sustain a plea of equitable estoppel as against the true owner. Chilton v. Nickey, 261 hlo. 232; Himmelberger Harrison Lbr. Co. v. McCabe, 220 Mo. 154; Stone v. Perkins, 217 Mo. 602; Chilton v. Comanianni, 221 Mo. 685; Pharis v. Jones, 122 Mo. 125; Nye v. McAlfter, 127 Mo. 529. (4) Section 9303, R. S. 1899, required suits for back taxes to be brought against the owner of the land. In construing said statute this court has held that it is sufficient ordinarily to sue one whom the public records disclose to be the owner. But there is nowhere in the law any authority justifying a •Collector to resort to an uncertified plat book for the names of owners. Unless a plat book is certified it is not a public record; it is nothing. And it is not almissible in evidence for any purpose. Bell v. Ham, 188 Mo. App. 71; Stewart v. Lead Belt Co., 200 Mo. 281. (5) The purported plat book was not an ancient document within the meaning of the law; the ancient document rule does not apply to mere copies of records. Byrd v. Phillips, 111 S. W. 1109, McClerry v. Lewis, 70 Atl. 540. (6) Land patents issued by the United States are not required to be recorded upon the deed records of the county in which the land lies. Chap. 30, R. S. 1909, applies only to instruments “which have been acknowledged or proved according to law.” The Chapter on- Recorders qf Deeds (Sections 10390-10391) simply permits the record of patents by making it the duty of the recorder to record such patents as may be offered to him for that purpose. Secs. 2787-2809, Chap. 30, R. S. 1909; Webb on Record of Title, sec. 25, page 59; Wilcox v. Phillips, 260 Mo. 664; Mosher v. Bacon, 229 Mo. 338; Bell v. Ham, 1.88 Mo. App. 71; Nichols v. Hobbs, 197 S. W. 258; United States v. Sclxurz, 102 U. 'S. 378; 2 Jones . on Real Property, secs. 1377-1728; Wolf v. Brown, 142 Mo. 617. (7) The rule of equitable estoppel cannot be invoked in this action because appellant was never in the actual possession of the land, never improved it or expended any money on it, and his position has suffered no change for the worse by reason of respondents’ failure to quiet their title at an earlier date. Robbing the land of its timber certainly did not improve it. Workman v. Moon, 177 S. W. 862; Meyers v. DeLisle, 259 Mo. 512; Marshall v. Hill, 246 Mo. 1; Collier v. Uault, 234 Mo. 465; Williams v. Sands, 251 Mo. 147. (8) The plea of an outstanding title in a third party cannot be invoked as a defense to plaintiff’s action to quiet title where plaintiff' and defendant claim under a common source, if it be not shown that defendant has acquired the title of such third person. Skillman v. Clardy, 256 Mo. 322; Dixon v. Hunter,'204 Mo. 390. (9) And where a defendant shows no title in himself, he is not-concerned with an adjudication of the rights or titles as between the plaintiff and any third party. Authorities above.
   RAILEY, C.

This action was commenced in the circuit court of Butler County, Missouri, on February 20, 1915, to quiet title to the southeast quarter and lot 1 of the southwest quarter of section 19, and the northeast quarter of section 30, all in township 26, range 7 east, situate in said county.

It is averred in the petition that plaintiffs own and claim to have title in fee simple to the real estate aforesaid; that defendant makes some claim of title, estate or interest in said land, which is adverse and prejudicial to the estate and title of plaintiffs therein. A decree was then asked, quieting title in them, etc. The petition also alleges that if the court should find “that defendant, since the year 1903, purchased said lands, or any part thereof, at a void tax sale, and thereafter in good faith paid taxes thereon, under claim of ownership of said lands, whereby plaintiffs are liable to re-imburse defendant for taxes so paid on said lands, the plaintiffs now offer, and tender to pay such taxes, with six per cent interest thereon, as soon as they may be found and adjudged by the court.”

Defendant, Ed. George, filed an answer, admitting that he claims title to the lands aforesaid. He further alleges that whatever claims, if any, the plaintiffs may have in or to said lands have long since been abandoned by them; that neither plaintiffs, nor those under whom they claim, have ever been in possession of said lands, nor have they or either of them ever paid any State,, county or other tax assessed against said lands, nor have they ever exercised any acts of ownership over said lands, nor have they ever asserted any claim or right of title to said lands until the institution of this suit. He alleges that plaintiffs have been guilty of such gross laches as to debar and preclude them from asserting any right, title, claim or interest in said lands, either at law or in equity; “that defendant has paid all taxes on said land and exercised such acts of ownership of which as said lands were susceptible.”

The answer further alleges that plaintiffs are not the real parties in interest in this action, but that said action is prosecuted in their names by one J. William Chilton, who is the real party in interest; that he is prosecuting said action under an unrecorded deed conveying to him an interest in said lands, equal to or greater than one-half thereof, or by virtue of a contract, whereby, if successful, he shall receive a part of said lands as compensation, and be responsible for the costs of this action, the plaintiffs being non-residents of Missouri; that said action was instituted and is being prosecuted under said champertons contract: He further denies, in said answer, each and every allegation of the petition, except that he claims title to said lands.

Defendant, further answering, by way of cross-bill, alleges that he is the owner and claims title to the lands aforesaid; that plaintiffs claim some title, estate or interest in the above lands which is adverse and prejudicial to the estate, title and interest of this defendant. Wherefore, defendant prays the 'court to ascertain and determine the estate, title and interest of the defendant, and of the plaintiffs respectively, in. and to said lands, and by its decree to adjudge, determine, define and quiet the title of this defendant in said lands. He also prays, that plaintiffs be, by the order, judgment and decree of the court, forever barred and precluded from asserting any right, title, claim or interest in and to said lands, or any part thereof; and for all such other and further relief to which defendant may,he entitled.

The case was tried without a jury on February 3, 1915, and taken under advisement by the court.

PLAINTIFFS* EVIDENCE.

The respondents introduced in evidence a certified copy of the patent issued by the United States to William B. Dorn, dated November 1, 1859, and recorded in Butler County, Missouri, November 20, 1912. As set out in the record, it reads as follows:

“United States of America, to all whom these 'present shall come, greeting: Whereas, in pursuance of an act of Congress,, approved March 3, 1855, entitled an act giving bounty lands to officers and soldiers having been engaged in military service of the United States of America, there has been deposited in the Genera] Land Office of the United States Warrant No. 29488 with evidence that the same has been duly located upon Lot One of the southwest quarter of section nineteen, township 26, north range seven east, Butler County, Missouri, in favor of Amzi Rudolph. The certificate of said location being duly assigned by said Amzi Rudolph to William B. Dorn; now know ye that .there is therefore granted by the United States of America unto the said William B. Dorn, as assignee as aforesaid, and unto his heirs, the lands above described, to have and to hold forever, and which said patent was duly executed by the President of tbe United States.”

Defendant objected to the introduction of the certified copy of said patent, as evidence, for the reason, that the lands described therein were entered by the said Amzi Rudolph, in the year 1857, under a military land warrant; that said entry by said Amzi Rudolph was of record in the offices of the Recorder of Deeds for the county of Butler and State of Missouri; that said Rudolph permitted the taxes on said lands to become delinquent and unpaid for many years; that suit was commenced by the Collector of Revenue of said county against said Rudolph, as the record owner of said lands, as shown by said records; that he was the proper party to sue for said taxes under the laws of Missouri; that judgment was rendered against him for non-payment of said delinquent taxes; that said lands were sold, and the title thereto passed by said sale; that the unrecorded patent to said William B. Dorn, as assignee, is insufficient to affect or destroy the validity of said sale; that by virtue of said sale, plaintiffs have neither the legal nor equitable title to said lands. This objection was overruled.

Plaintiffs next offered in evidence a certified copy of United States patent to Wm. B. Dorn, as assignee of said Rudolph, dated November 1, 1859, and recorded November 20, 1912, conveying the west half of the southeast quarter of section 19, township 26 north, range 7 east, in said county. Same objection' was made and overruled.

Plaintiffs next introduced in evidence a certified copy of United States patent to said Dorn, as assignee of said Rudolph, dated November 1, 1859, and recorded in said county November 20, 1912, conveying lot 1 of the northwest quarter and the southwest quarter of the northeast quarter of section 30, township 26 north, range 7 east, in said county. Same objection was made and overruled.

Plaintiffs next introduced in evidence, a United States patent to said Dorn, as assignee of said Rudolph, dated November 1, 1859, and recorded in said county, November 20, 1912, conveying the east half of the northeast quarter and the northwest quarter of the northeast quarter of section 30, township and range aforesaid, located in Butler County, Missouri. Same objection was made and overruled. «

Plaintiffs next offered in evidence the deposition of Erma D. Bell. Witness testified that her mother, Mattie G. Felton, is still alive, and married J. R. Felton in 1886; that her father, William B. Dorn, died in South Carolina, in December, 1876, at the age of seventy-eight years; that the other plaintiffs herein are the heirs at law of said Wm. B. Dorn-.

Plaintiffs also introduced in evidence a certified copy of the will of Wm. B. Dorn, which Division Two of this court held invalid in Bell v. Smith, 271 Mo. 619. In the will, testator attempted to give his wife a life estate in said lands, with remainder to his heirs. The will was objected to by defendant and his objection overruled.

“Thereupon it is admitted that said lands are not now, nor have they ever been, in the actual possession of any person or persons.”

DEFENDANT’s EVIDENCE.

E. R. Lentz, a witness for defendant, testified: That he was a practicing lawyer, and had been engaged in the real estate business in Butler County, Missouri, since 1878; that he had frequently examined the plat book on file in the office of the Recorder of Deeds of above county; that the book shown him is the above plat book, and it has been generally used as one of the public records of Butler County since 1878; that he examined it in 1878; that when he first examined the book it was in the custody of the Circuit Clerk, who was ex offl-cio recorder; that since the separation of said offices, it has been in the Recorder’s office; that he was told by the Circuit Clerk and Recorder that it had been obtained from the Registrar of the Land Office at Ironton, Missouri, some time in the later sixties; that he has always found it correct.

■Defendant then offered in evidence, over the objection of plaintiffs, the above plat book, for the purpose of showing that all the lands in controversy were entered by Amzi Rudolph, under military land warrants, in the year 1857.

Defendant next offered in evidence, over 'the objection of plaintiffs, a certificate signed by J. H. Duncan, Registrar of the United States Land Office at Springfield, Missouri, with the seal affixed, .showing that all the lands described ,in plaintiffs’ petition were entered by Amzi Rudolph on June 22, 1857, under military land warrants.

Defendant next offered in evidence, over the objection of plaintiffs, a sheriff’s deed in proper form, duly executed, and purporting to convey all the land described in plaintiffs’ petition dated November 5, 1889, acknowledged November 25, 1889, filed for record December 10, 1889, and which purported to convey all of the interest in said lands of Amzi Rudolph to Wm. Ferguson, as grantee.

“It is admitted by the plaintiffs herein, that the defendant Ed. George is the owner of mesne conveyance of any and all title which may have passed by the sheriff’s deed, which the defendant has just introduced in evidence.”

Ed. George testified that he claimed to own the lands in 'controversy; that he acquired deed to said lands in 1904 or 1905; that he has exercised such acts of ownership over said lands as they were susceptible of, that is, he paid the taxes thereon since 1905, and for two or three years back taxes; that he never knew of Wm. B. Dorn, or his heirs, claiming any interest in these lands until this suit was brought. On cross-examination, he testified that he did not mean to state that he had been in the actual possession of these lands, but has looked after them; that he has paid some one all the time to protect them from trespassers; that he had sold some of the timber from this land.

J. William' Chilton was sworn as a witness in behalf of defendant. He testified that he first saw Mrs. Bell in 1912, bnt never saw any of the other plaintiffs, with one exception; that he has had some correspondence,. mostly with Mrs. Bell; that she wrote first. Witness was then asked if he had a deed to this land, conveying any interest therein to him. This was objected to by witness as a confidential matter, and the objection was sustained. He stated, however, that he had no contract by which he was to be responsible for the costs herein, if this suit was 'decided in favor of defendant.

The foregoing covered all the testimony in the case. No instructions were asked by either plaintiffs or defendant, nor were any given by the court of its own motion.

BINDINGS.

’ On July 5, 1915, the trial court decided the case, and made a finding of facts. It found that W. B. Dorn was the patentee of the lands in controversy; that said W. B. Dorn died in 1876; that Mattie G. Felton was his widow; that the other plaintiffs are his heirs as well as devisees, under the will aforesaid; that said Mattie Gf. Pelton has a life estate in said lands ana that the remaining plaintiffs are the owners in fee of the lands described in petition. The court further found that defendant Ed. George had no interest, estate or title to any part of said lands. A decree was entered in due form, in favor of said plaintiffs, in accordance with said findings.

Defendant in due time filed his motions for a new trial and‘in arrest of judgment. Both motions were overruled, and the*cause duly appealed by him to this court.

I. It is contended by appellant that the trial court committed error in .refusing to require J. William Chilton, counsel for plaintiffs, to testify as whether or not he had a contract with plaintiffs, whereby he was to receive an interest in the land mentioned in the petition.

It is not necessary to determine in this case whether Mr. Chilton was within the law in declining to testify in respect to above matter, nor whether he was justified in declining to answer the questions propounded, by virtue of Section 6362, Revised Statutes 1909. He was counsel for plaintiffs in the trial court, and is the attorney of record for them here. He is just as much concluded by the judgment rendered in this cause, as though he had been joined as a party to the action. [Titus v. Development Co., 264 Mo. 1. c. 246 and following; State ex rel. v. Stone, 269 Mo. 1. c. 344 and cases cited.]

In the Titus case supra, plaintiff had defended an action in the name of his clients, where the title to real estate was involved, when he had in his possession at the time an unrecorded deed to said land. His clients were unsuccessful in the first suit, and thereupon, Titus brought a suit in ejectment for the same land, after having his deed recorded. On page 248, we said:

“It is apparent from, the record that plaintiff was attempting, in the name of his grantors, to litigate his own title with the heirs of Edward A. Stevens behind a masked battery, and if unsuccessful, as he was in that litigation, to open up a new proceeding as an innocent purchaser for value, as he has attempted to do in this case. . . .

“We are satisfied, from the record, that plaintiff had the entire control and management of said cause in behalf of his grantors, and that every step taken therein was for his own benefit and in defense of his own title. We therefore conclude that on the facts presented here the plaintiff is as much bound by the decree in the above cause as he would have been had he been joined as a defendant in said action.”

In State ex rel. v. Stone, 269 Mo. 1. c. 344, we held that:

“Whenever a party is interested in the subject-matter of pending litigation, and is placed in the control and management of the defense therein, he is just as- much bound by the judgment in the cause as the real defendant in whose name the defense is made.”

The principle of law announced in both the above cases is amply supported by a number of authorities cited therein.

If we should conclude that the tax judgment is valid, and that the title to' the land in controversy passed under the sheriff’s tax deed, then defendant’s title is good as against these plaintiffs, and would likewise be good as against J. William Chilton, even if he did have an unrecorded deed to all or any part of said land.

In view of the foregoing, defendant was not injured by the ruling of the court, whether right or wrong, in refusing to compel Chilton to answer the questions propounded to him.

IT. It is claimed by appellant that he has acquired title to the lands in controversy, because of the alleged laches of plaintiffs and William B. Dorn in ^ failing to pay any taxes thereon for fifty-six years.

This is purely an action at law, in which no affirmative equitable relief is asked by either plaintiffs or defendant. The respectve claims of title are set out in the preceding statement. On the record thus made, the plaintiffs cannot be divested of their legal title by the application of the equitable doctrine relating to laches. [Charles P. Hunter et al. v. Louise C. Moore, decided by this Division, March 29, 1918; Wilcox v. Moore, 199 S. W. (Mo.) 1. c. 136; Garrison v. Taff, 197 S. W. (Mo.) 1. c. 274; Kellogg v. Moore, 196 S. W. (Mo.) 15; Chilton v. Nickey, 261 Mo. 1. c. 243; Hayes v. Schall, 229 Mo. 114.]

III. While defendant asserts that, neither Win. B. Dorn nor plaintiffs have ever paid any taxes on this land in fifty-six years, this assertion is not sustained by the evidence. The tax deed relied upon by defendant is dated November 5, 1889. He only claims to have paid the taxes after said date. This action was commenced on February 20, 1915. He failed to show that Amzi Rudolph had ever, at any' time, paid any taxes, and as he assigned his land warrants to Wm. B. Dorn prior to November 1, 1859, it can hardly be assumed that Rudolph paid any of the taxes on the land after he assigned the warrants to Dorn. As Dorn was the record owner of the land until his death, and as plaintiffs became the. record owners at his death, in the .absence of evidence upon that subject, the trial court had the right to presume that the taxes, from November 1, 1859 to 1889, were paid by Dorn and plaintiffs. [Hunter et al. v. Moore, supra.] The burden of proof, upon this subject, devolved upon -defendant, and he failed to successfully carry the burden.

In the Hunter-Moore case, supra, the plaintiffs were never in possession of the land, although they were the record owners thereof. It did not appear from the evidence, that they had ever, at any time, - paid any taxes on the land. The defendant, Moore, under color of title, pleaded the thirty-one-year Statute of Limitations, and charged that neither the plaintiffs, nor their predecessors in title, had ever paid any taxes on said] land, while she and those under whom she claimed had paid the taxes during said period. We ■ held in the above case, that as the evidence did not show who had paid the taxes on said land for three or four years, out of the thirty years, it could not be presumed that plaintiffs and those under whom they claimed, as the record owners,'had not paid them.

Even if defendant were relying upon the thirty-one year Statute of Limitations, the trial court was justified on the record before us in finding against him in respect to above matter.

IV. Defendant testified: “I have never known of Wm. B. Dorn, or bis heirs, claiming any interest in these lands until this suit was brought.” He claims to have' acquired his title in 1904 or 1905. There is nothing in the record to indicate that he bad ever heard of plaintiffs,- or William B. Dorn at that time, much less being misled by anything they said, did, or failed to do. The record fails to show how much defendant paid for the land; the amount of taxes he paid; the amount he claims to have paid for keeping trespassers off, and likewise fails to show how much timber he confessedly sold off the land. It is not surprising that the trial court failed to recognize any plausible grounds for the application of the equitable doctrine relating to laches. The trial court was well within the law, in holding that there is no merit in the above contention of appellant.

V. It is admitted that the plat book heretofore mentioned shows that Amzi Rudolph, in 1857, entered the lands in controversy. It is also admitted that said plat book is not certified as correct by any officer of the United States Land Office. It was offered in evidence by defendant, and objected to by respondents, on the ground that it was not a plat book within the meaning of the law. Said objection was overruled, an exception saved, and the plat considered as evidence.

The patents to the lands in controversy issued to William B. Dorn are dated November 1, 1859, and recite on their face that Amzi Rudolph assigned the land warrants issued to him, for said land, to Wm. B. Dorn. The tax suit brought in 1889, through which defendant claims title, was against said Amzi Rudolph, and not against these plaintiffs. William B. Dorn having died' in 1876, these plaintiffs were the record owners of said land, when the tax suit was brought in 1889. Section 7682, Revised Statutes 1889, which was carried into Revised Statutes 1899, as Section 9303, in express terms required that the tax suit, under which defendant claims title, should he brought against the owner of the land.

Notwithstanding the plain requirement of Section 7682 that the tax suit should be brought against the owner of the property, it is insisted by appellant, that the tax collector had the right to rely on the plat heretofore mentioned, as the patents were not recorded in Butler County, Missouri, in determining who was the owner of said lands; and that the tax proceeding was properly prosecuted against Amzi Rudolph, who was shown by said plat to be the party who had entered these lands in 1857.

We will now proceed to a consideration of defendant’s contention, in respect to above matter.

VI. Was the plat heretofore mentioned, and offered in-evidence by appellant, competent for any purpose,, without having been properly certified?

Section 6290, Revised Statutes 1909, provides, that: “Copies of any entry or entries, or memoranda, made on the books .of the office of any register or receiver of any United States land office, certified by fke said register or receiver to be correct, shall be received in evidence in the trial of any cause in any of the courts of this State.” This section has been upon our statute books for more than sixty years. We construed the same in Stewart v. Lead Belt Land Co., 200 Mo. 1. c. 290, and held that an uncertified plat like the one in controversy should have been excluded as evidence. To same effect is Bell v. Ham, 188 Mo. App. 1. c. 81.

We accordingly rule that the above plat was incompetent as evidence for any purpose and should have been excluded. The Collector, therefore, in detei mining- who was the owner of said lands, was not justified in resorting to the plat for that purpose.

VII. Was said plat competent evidence as an ancient document, regardless of its age? It does not purport to be the original, and tbe law relating to the admission in evidence of ancient documents, pas no application to such an instrument. [Laclede Land & Imp. Co. v. Goodno, 181 S. W. (Mo.); 1. c. 413; Stewart v. Lead BBelt Land Co., 200 Mo. 1. c. 290; McCleery v. Lewis, 104 Me. 1. c. 37, 70 Atl. 540.]

VIII. Was it necessary that the patents issued to Wm. B. Dorn by the United States, on November 1, 1859, should have been recorded in Butler County, Missouri, to impart notice to the tax collector, that Dorn or his heirs were the owners of the land dn controversy? Section 705, Volume 1, United States Compiled Statutes (1913), pag*e 280, R. S. see. 458, in express terms, provides that such patents shall be recorded in the land office at Washington, D. C.

In Organ v. Bunnell, 184 S. W. 1. c. 104, we said: “The patent aforesaid was not recorded in Dent-County, but was duly recorded at the General Land Office in Washington, D. C., at the time it was issued in 1859. There is no provision in our statute which requires a patent from the United States to be recorded in the county where the land lies. [Wilcox v. Phillips, 260 Mo. 1. c. 680, 169 S. W. 55; Mosher v. Bacon, 229 Mo. 1. c. 358, 129 S. W. 680; 2 Jones on Real Property, secs. 3377, 1378.]”

These patents thus recorded, imparted notice to the Collector and all other persons that Arnzi Rudolph had assigned his land warrants covering the land in question to William B. Dorn, and that the latter, on November 1, 1859, became the record owner of said lands.

IX. We have given full consideration to all the questions involved in this litigation, and find nothing *n ^ie record which would warrant us in disturbing the .judgment below in favor of plaintiffs. We accordingly affirm the judgment.

Brown, C., concurs.

PER CURIAM: The foregoing opinion.of Railey, 0., is adopted as the opinion of the court.

All of the judges concur; Bond, P. J., in the result.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    E. H. MILLER et al. v. CORDELIA LLOYD et al.; JAMES D. BUFTON et al., Appellants.
    Division One,
    June 4, 1918.
    1. EQUITABLE TITLE: Entries Prior to Patents: Issued After Suit Brought. Entry vests the equitable title in the entryman, and such title is sufficient to support a suit to quiet title; and where patents issued after the suit was brought are not in the record, it will be assumed on appeal, in aid of the judgment based on them, that they were issued on entries properly made prior to the institution of the suit.
    2. ACCRETIONS: Saltatory: Intervening Creek. If the accretions formed upon the old river bank and extended across in front of the mouth of a creek, they became at once a part of the land reaching the bank at that point, and a subsequent cutting by the creek of a channel through the accretions would not affect the title thereto; and if the evidence shows that in seasons of high water accretions would form along the old river bank, near and in front of the mouth of the creek, that the creek itself would be filled with silt for some distance back of its mouth, that as the high waters receded the creek would force its way through these accumulations, and that the deposits were made from the river bank outward, in the creek and on both sides of it, it cannot be ruled that the waters of the creek separated the accretions from the river bank.
    3. -: Judgment: In Proportion to Frontage. A judgment which awards accretions in proportion to the original river frontage prior to their formation, is in accord with well recognized legal principles.

      Appeal from Clay Circuit Court. — Hon. Frank P. Divelbiss, Judge.
    Affirmed.

      Martin E. Lawson, Ralph Hughes and John C. Grover for appellants.
    (1) A patent to land from the United States Government conveys title to the land only from the date of the issuance of the patent. Bagnell v. Broderick, 13 Peters, 450; Monson v. Simonson, 231 U. S. 347; Lang-don v. Sherwood, 124 U. S. 83; Redfield v. Parks, 132 U. S. 245; Texas P. R, Co. v. Smith, 159 U. S. 68. (2) The rights of the parties to an action must be determined according to the facts existing at the time the action was commenced.' The plaintiff must, therefore, recover, if at all, according to the status of his rights at the time of the commencement of the action. Tobin v. McCann, 17 Mo. App. 481; Weinwick v. Bender, 33 Mo. 80; Worth v. Springfield, 22 Mo. App. 17; American Bonding Co. v. Gibson Co., 145 Fed. 871. (3). Accretions are not saltatory, but must gradually and imperceptibly form themselves to the mainland, and the existence of an intermediate stream of water between the accretions and the mainland makes it impossible for the accretions to attach to the mainland. DeLassus v. Faherty, 164 Mo. 361; Crandall v. Smith, 134 Mo. 640; 1 Farnham on Waters, p. 328, par. 71a; Gould on Waters (3 Ed:), 313; Kinney on Irrigation and Water Rights, 929.

      Simrall £■ Simrall and Theodore Emerson for respondents.
    (1) There is nothing in the evidence involving the “saltatory doctrine of accretions” in this case, but this evidence shows that the creek flowed over the accretions, instead of the accretions jumping the creek, and the court properly refused the instruction asked by appellants. (2) That said instruction was properly refused because it would have deprived plaintiffs and other respondents of all their frontage and given some to an adjoining riparian owner, a result never allowed. Crandall v. Allen, 118 Mo. 403; see also Deerfield v. Arms, 48 Am. Dec. 277, .17 Pick. 41; Gray v. Deluce, 5 Cush. 9; Thornton v. Grant, 10 R. I. 487; . Kehr v. Snyder, 114 LI. 313; 1 Am. & Eng. Ency. Law (2 Ed.), ■p. 477; 29 Cyc. 350 (note); Manchester v. Iron Works, 13 R. I. 355. (3) The judgment correctly divides the accretions among the contiguous riparian owners, by dividing the new shore line in proportion to their respective rights in the old shore line and drawing lines from the points of división thus made, to the points at which the old shore line is intersected by the boundaries separating the proprietors. 29 Cyc. 353.
   BLAIR, J.

This is a suit to quiet title. [Sec- 2535, R. S. 1909.] The dispute arises over accretions, and the attached plat presents the situation.

It is admitted, subject to an objection to certain patents, that certain of the respondents own those portions of sections 30 and 31 which fronted on the old river bank as shown by the plat. It is also admitted that appellant Bufton owns those parts of sections 1 and 36, as shown by the plat, which fronted on the old river bank. That bank formerly extended from X through T, A, B and F to Z. The new river front extends from X through D, O and E to Z. The accretions lie within these lines.

I. The suit was begun in 1912. On the trial patents issued in 1913 and 1914 were offered. These patents cover the larger part of the lands claimed by respondents. We understand it to be admitted that the patentees are persons whose title respondents have acquired by mesne conveyances. The point made by appellants is that title had not emanated from the Government until the patents issued; that these did not issue until after suit brought; therefore, that the suit cannot be maintained. The patents are not in the record. Their recitals are binding on the Government and patentee. They may have shown the patents were issued on entries properly made and prior to the institution of the suit. In aid of the judgment, the patents being before the trial court and not before us, we so assume. Such entry vests the equitable title in the entryman and such title is sufficient to support a suit under Section 2535.

II. Formerly, Big Shoal Creek flowed into the river at the point marked “Y” on the plat. The evidence tends to show that in seasons of high water accretions would form along the old river bank, near and in front of the mouth of this creek and that the creek itself would be filled with silt for some distance back of the mouth; that as the high waters receded the creek would force its way through these accumulations; sometimes iu a short time and sometimes several weeks or months after the waters of the river receded; that the deposits were made from the river bank outward, in the creek and on both sides of it. The trial court found these to be the true facts. There was also evidence that the creek was always a running stream, except when and to the extent high water covered it; that at times it was almost inconsiderable in width and depth near the mouth, but that there was always a stream of some kind flowing into the river except as just stated. Appellants’ theory is that this stream at all times separated the accretions in dispute from the land of respondents, and they invoke the doctrine that accretions are not saltatory, i. e., that they could not leap the creek.- DeLassus v. Faherty, 164 Mo. 1. c. 372, et seq. is relied upon. If appellants’ theory of the facts is accepted that case supports the conclusion they draw. The same decision (1. e. 373, 374) justifies the judgment rendered if the facts are as the trial court found them. If the accretions formed upon the old river bank and extended across in front of the mouth of Shoal Creek they became at once a part of the land reaching the bank at that point. The subsequent cuttiiig of a channel through the accretions formed would not affect the title thereto. This is held in DeLassus v. Faherty, and is sound law. In that case, as in this, any other judgment than that rendered would deprive respondents of all their river frontage. The judgment rendered gives them frontage and accretions proportioned to their original frontage prior to the formation of the accretions. This is in accord with well recognized principles. A judgment for appellants would extend their property “longitudinally down the river and between” respondents’ land and the river. This does not appeal to the equities of the situation. The case was tried and is argued here as one at law. There is undoubtedly substantial evidence to support the finding of the trial court. If it be said the character of respondents’ title transforms this into a suit in equity, we think proper deference to the finding of the chancellor requires us to say his finding must be upheld. This, because the evidence on the disputed question is well balanced and he was in better position to resolve the conflict.

III. Complaint is made of the refusal of an instruction. Though the ease be treated as one at law ^is assignment must be overruled. Instructions given sufficiently covered the question involved. Affirmed.

All concur.


author: BOND, P. J.

text:
    DANIEL G. SAUNDERS, SR., et al., Appellants, v. HACKLEY & HUME COMPANY, LTD., et al.
    Division One,
    June 4, 1918.
    1. GARNISHMENT: No Indebtedness to Defendant. No judgment can be rendered against garnishees unless it appears that at the time of the service of the writs they weret in possession or custody of money or property or effects belonging to the defendant or were indebted to defendant.
    2. -: -: Voluntary Transfer of Assets. Even if defendant corporation was at the time indebted to plaintiff, as made manifest by subsequent suit, though no claim had previously been made, a voluntary transfer of negotiable bonds and notes in the form of dividends to stockholders, is not presumptively fraudulent in law nor voidable, if defendant owed nothing except plaintiff’s claim and retained sufficient property to pay said claim.
    3. -: -: -: Burden of Proof. The burden rests upon the interpleading stockholders of defendant corporation to prove that, at the time of the voluntary transfer to them, as dividends, of negotiable bonds and notes payable to defendant, the defendant retained sufficient assets to pay plaintiff’s claim; but having established that fact by showing that defendant still owns property far in excess of plaintiff’s claim, and that there was no actual fraud, the writs of garnishment must be dismissed.
    Appeal from Jackson Circuit Court. —Hon. William O. Thomas, Judge.
    Affirmed.

      Bees Turpin for appellants.
    (1) The transfer of the notes and bonds in question was voluntary, that is, it was without consideration. (2) The circuit court erred in holding as a matter of law that the voluntary conveyances shown by the evidence will not- operate to hinder or delay creditors. Star v. Penfield, 166 Mo. App. 302; Walsh v. Ketchum, 84 Mo. 427; Clark v. Thias, 173 Mo. 628; Crowe v. Beardsley, 68 Mo. 435; Payne y, Stanton, 59 Mo. 158; McCollum v. Crain, 101 Mo. App. 522; Hoffman v. Nolle, 127 Mo. 120; Eddy v. Baldwin, 32 Mo. 369; Van Deventer v. Goss, 116 Mo. App. 316; Scharff v. Mc-Gaugh, 205 Mo. 344; Harding v. Elliott, 91 Hun. 502; Baker v. Lyman, S3 Ga. 339; Church v. Chapin, 35 Vt. 221; Botsford v. Beers, 11 Conn. 369; Walther v. Null, 233 Mo. 104; Johnson v. United Rys. Co., 247 Mo. 326; National Tube Works v. Machine Works, 118 Mo. 365; Shields v. Hobart, 172 Mo. 491. (3) The plaintiffs were existing creditors at the time of the last distribution of assets. (4) The circuit court erred in holding that there is no evidence in this case of fraudulent intent. Ross v. Crutsinger, 7 Mo. 245; Mosby v. Commission Co., 91 Mo. App. 500; Bank v. Russey, 74 Mo. App. 651; State to use v. Mason, 112 Mo. 374; Cole v. Cole, 231 Mo. 236;- Spengler v. Kaufman, 46 Mo. App. 644; Bank v. Keeney, 154 Mo. App. 285; Reed v. Pelletier, 28 Mo. 173; State to use v. O’Neill, 151 Mo. 67.

      Massey Holmes for garnishees, respondents; Holmes, Holmes S Page for interpleaders, respondents.
    (1) It was proper to grant a new trial since the cause should not have been submitted to the jury at all. Lynch v. Turrish, 236 Fed. 653. 2 Cook Corporations (6 Ed.), sec. 545, 7 R. C. L. p. 294; 2 Cook Corporations (6 Ed.), sec. 541, 7 R. C. L. p. 295; McLaran v. Planing Mill Co., 117 Mo. App. 40; Gentry v-. Field, 143 Mo. 399; Bump on Fraudulent Conveyances (2 Ed.), pp. 34, 21; 12 R. C. L. pp. 536, 593; Welch v. Mann, 193 Mo. 304; Coleman v. Hagey, 252 Mo. 135.
   BOND, P. J.

I. The plaintiffs sued Hacldey & Hume Company, Ltd., a corporation, organized in 1903, under the laws of the State of Michigan, for the sum of $94,894.22, claimed as a commission on a sale of a tract of timber land in Louisiana, which was sold anc| conveyed to defendant on April 1, 1910, to the Delta Lumber Company, a subsidiary company of its guarantor, the Central Coal & Coke Company.

Upon the institution of the suit by plaintiffs, an attachment was awarded, wh'ereunder writs of garnishment were executed upon the Delta Lumber Company and the Central Coal and Coke Company. These garnishees denied the possession or custody at the time of the service of writs upon them, of any money, property ^or effects belonging to Haekley & Hume Company, Ltd., the defendant in the suit brought by plaintiffs for commission as above stated.

The Delta Lumber Company further answered that prior to the service of the garnishment, to-wit, about April 1, 1910, it delivered $350,000 of its first mortgage five per cent bonds, payable to bearer, to the Haekley & Hume Company, Ltd., all of said bonds maturing from March 1, 1920, to March 1, 1927, bearing interest coupons payable semi-annually, and that on the same date (April 1, 1910) it gave to defendant twenty-four negotiable promissory notes aggregating $1,550,000, maturing serially each* successive six months thereafter, and bearing five per cent interest payable semi-anually.

This garnishee also averred, on information and belief, that none of these first mortgage bonds, nor interest notes, was, at the time of the garnishment, either owned or held by the defendant, but had been previously assigned, delivered and transferred, specifying the name of the transferees.

The Central Coal & Coke Company answered similarly, with thé'further averment that it had guaranteed the payment of the promissory notes executed by the Delta Lumber Company.

■ Interpleas were filed by the' persons named as interpleaders, setting up title to the respective portions of the notes and bonds of the Delta' Lumber Company claimed by such interpleaders.

Plaintiffs denied the answers of the garnishees and made answer to the claims set up by the inter-pleaders, in both of which pleadings plaintiffs averred that if there had been any assignment of the notes and bonds given to the defendants by the Delta Lumber Company, it was voluntary and fraudulent.

Upon the trial the jury found that the garnishees were indebted to the defendant, the Hackley & Hume Company, Ltd., in the sum of $1,805,000 and $350,000, the latter evidenced by the bonds of the Delta Lumber Company. The jury also found in favor of the plaintiffs against the claims of the interpleaders.

After a judgment in accordance and reserving jurisdiction, the garnishees and interpleaders filed motions for a new trial, which were sustained, in a written memorandum by the learned trial judge, on the theory that upon the undisputed facts, which were set out in the pleadings of the garnishees and interpleaders, no case was made for a jury.

II. The facts are that the Hackley & Hume Company, Ltd., was a Michigan corporation which acquired certain timber lands in the State of Louisiana, which it held for sale, and distribution of proceeds among its stockholders; that its capital'stock was $1,-200,000, all paid in cash; that after the death of Mr. Hackley in 1905, who owned three-fourths of the shares of the company, which passed by his will, the directors concluded to liquidate the company’s assets and distribute the proceeds of the sale of its lands among its stockholders; that the corporation had no operating expenses and was not indebted, at the date of the trial, unless as claimed in the suit of plaintiffs; that these distributions were in the form of dividends; that upon the sale, in April, 1910, of certain lands in the State of Louisiana, to the Delta Company and' the payment of the purchase price in the form of bonds and notes of that company to the Hackley & Hume Company, Ltd., the latter company distributed these, on June 13, 1910, in the form of a dividend to its shareholders by resolution of its board of directors duly entered upon its corporate records; that a large amount of the securities (bonds and notes) went into' the trust funds created by the will of Mr. Hackley and the will of his widow, and the remainder to stockholders, of the defendant or their assignees. It was admitted that the interpleaders, who claimed under these two wills and as or through shareholders, were the rightful distributees; that after the payment of the dividend thus distributed on June 13, 1910, the remaining assets of the defendant consisted of $4,000,000 of real estate in Louisiana, and at the time of the trial the defendant had remaining assets of timber lands in Louisiana of the value of $2,000,000.

It was undisputed that at the time of the declaration and distribution of the stockholders’ dividend, on June 13, 1910, the managing officers who ordered the same had no knowledge of the claim of plaintiffs, nor was there any evidence of intention on the part of any other officers in any way to hinder, delay or defraud the plaintiffs, the first intimation of whose claim against the defendant was contained in a letter dated August 10, 1910, addressed to “Messrs. Hackley & Hume, Muskegon, Michigan,” as follows:

“I am informed that you have consummated the sale of the timber land in Vernon Parish, Louisiana, to the Central Coal & Coke Company, in regard to which I began negotiations on your behalf in July, 1907. Our commission for making the sale . became due upon its consummation and we hope it is convenient for you to settle with us now.

“Your truly,

D. C. Saunders.’’

III. In any view of the case no judgment could be rendered against the garnishee unless it appeared that at the time of the service of the writs they were in possession or custody of money or . property or effects belonging to the defendant or were indebted to it. The conceded facts are that when the writs of garnishment were levied there was nothing in the hands or possession of either garnishee subject to seizure under said writs unless they were leviable on the liability of the garnishees for the bonds and notes given in payment for the land sold in April, 1910. Both of these forms of indebtedness were of the highest negotiability. Neither were mature. The bonds being payable to bearer were transferrable by delivery and the notes were transferrable by endorsement and delivery. When the garnishment writs were served the bonds and notes given to defendant had been transferred and delivered to other persons (the interpleaders). It is not claimed that sneh transfers were made with any actual intent to defraud, nor with knowledge on the part of the transferrors or transferrees or garnishees of the claim of plaintiffs which was subsequently asserted in the letter quoted herein.

In these circumstances the only possible theory upon which such' indebtedness could be attached is, that it existed when the debtors were garnished and that the previous transfers thereof by the defendant were voidable against plaintiffs, as attaching creditors, because voluntary and therefore presumptively fraudulent in law as to attaching or judgment creditors. [Clark v. Thias, 173 Mo. 1. c. 652.]

Even if it be conceded for the argument that no corporation can turn over its assets to its shareholders, without other consideration than that status, to the prejudice of the claims of its attaching and judgment creditors, still that principal has no application where, as here, the undisputed fact is that the defendant corporation retained other assets at the time of the trial, of the value .of two millions of dollars in the form of other real estate owned by it in Louisiana which was subject to no liens or charges and amply sufficient to satisfy plaintiffs’ demand and that defendant owed nothing, unless the amount sued for in the principal case shall be established as a debt against it. [Coleman v. Hagey, 252 Mo. 1. c. 135; Welch v. Mann, 193 Mo. 304, 324; 12 R. C. L. p. 593.]

If, therefore, the distribution by defendant of a portion of its assets arising from a sale of a part of its Louisiana lands was, as to plaintiffs, voluntary, it was not fraudulent in law or voidable under the facts in this record, since the proof was uncontroverted that defendant retained the title to similar lands more than sufficient to pay all the claims of plaintiffs. The burden of proving that fact rested upon and was discharged by the interpleaders (Clark v. Thias, 173 Mo. 1. c. 652.), and hence neither their title nor the indebtedness of the garnishees, under the circumstances shown on the trial, was charged or affected with any attachment lien in favor of plaintiffs hy the service of the writs of garnishment.

The ruling of the learned trial judge in sustaining the issue joined under the writs of garnishment between plaintiffs and the garnishees and interpleaders, was correct and is affirmed. It is so ordered. All concur.


author: FARIS, J. WALKER, J.

text:
    THE STATE ex rel. UEL W. LAMKIN, Superintendent of Public Schools, v. GEORGE E. HACKMANN, State Auditor.
    In Banc,
    June 13, 1918.
    SUPERINTENDENT OE SCHOOLS: Traveling Expenses: Outside of State. Since the Legislature appropriated money to pay the traveling expenses of the office of State Superintendent of Public Schools, and the statute prescribing his duties says he shall have power “to in every way elevate the standard and efficiency of the instruction given in the public schools of the State” and further says that “all moneys reasonably expended in the execution of these duties shall, upon due proof,” he allowed and paid hy the State, the question of the necessity and expediency of incurring expense for this purpose, in the absence of statutory restriction, is to be determined hy the .Superintendent, and not hy the State Auditor; and in consequence a reasonable expense account incurred hy the Superintendent in railroad fares and hotel accommodations in attending~an annual meeting, at Portland, Oregon, of the National Education Association, composed of superintendents of public schools in all the States and of leading teachers and educators throughout the county and organized to promote, foster and encourage the cause of public education generally, should, upon the Superintendent’s approval, he audited hy the Ota^e Auditor for payment out of the moneys so appropriated, as an exoense useful and properly to he incurred in the performance cf the Superintendent’s statutory duty “to elevate the st'iud«rd anl efficiency of the instruction givc-n in the public schools of the State.”

      Held, hy WALKER, J., dissenting, that the statutes contain no intimation of a requirement that the State Superintended shall attend educational associations, and without a statute declaring, either in express terms or hy reasonable implies tine, it to be his duty to attend national educational associations, the Legislature itself could not appropriate money to pay his traveling expenses in attending them.

      Mandamus.
    Writ granted.

      A. T. Dumm for relator.
    (1) Mandamus is the proper remedy. State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Wilder,, 199 Mo. 470; State ex rel. v. Wilder, 196 Mo. 429; State ex rel. v. Meier, 143 Mo. 447; Mansfield v. Fuller, 50 Mo. 339; 26 Cye. 235, 236; 19 Am. & Eng. Eney. Law (2 Ed.), 782-785; High, Extra1. Rem. (3 Ed.), sec. 104; Merrill on Mandamus, sec. 126. (2) And the return in the nature of a demurrer to the petition for the writ (which, under the stipulation, stands as and for the alternative writ itself) admits the facts pleaded in the petition. State ex rel. v. Reynolds, 256 Mo. 714; State ex rel. v. Gordon, 231 Mo. 559; State ex rel. v. Cook, 171 Mo. ‘354; High, Extra. Rem. (3 Ed.), sec. 449. (3) Mandamus being the proper remedy, and the facts alleged in the petition being admitted, the only question remaining for the court to decide is as to the law applicable to the admitted facts, and the law being clearly in relator’s favor, the peremptory writ of mandamus should be awarded. Sec. 10922, R. S. 1909; Laws 1917, p. 10, sec. 22; Secs. 10920, 11813, R. S. 1909; High, Extra. Rem. (3 Ed.), sec. 449.

      Frank W. McAllister, Attorney-General1, Thomas J. Cole and John T. Cose, Assistant Attorneys-General, for respondent.
    (1) A demurrer only admits those facts which are well pleaded; Paving Co. v. Fleming, 251 Mo. 222; Meek v. Hurst, 223 Mo. 696; Donovan v. Boeck, 217 Mo. 70. (2) Relator’s right must be clear. “It is a principle of the law of mandamus that the relator must .have a clear right to the performance of the act sought to be coerced by the mandate of the court.” State ex rel. v. Thomas, 245 Mo. 71. “In order for the writ of mandamus to he available, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondents to perform the act required.” 19 Am. & Eng. Ency. Law (2 Ed.), 725; State ex rel. Doud v. Lesueur, 136 Mo. 452; State ex rel. v. Appling, 191 Mo. App. '592; High on Extraordinary Remedies, sec. 12, p. 17.
   FARIS, J.

This is an original proceeding by mandamus to compel the respondent, who is the State Auditor, to audit for payment two expense-accounts for traveling expenses incurred by the petitioner, who is the State Superintendent of Public Schools.

The issuance of an alternative writ was waived by the respondent and it was agreed that the petition for the writ should stand for all purposes as and for the alternative writ.

The pleadings state the case. The first count, omitting formal parts, and parts already substantially stated, runs thus:

“Your petitioner says that, in the month of July, 1917, in connection with and in the discharge of the duties of his office as Superintendent of Public Schools of Missouri, as aforesaid, he attended the annual meeting of the National Education Association at the City of Portland, State of Oregon; that petitioner is, and, at the time hereinabove mentioned was, a member of said National Education Association; that said National Education Association is constituted and composed of the superintendents of the public schools of the various States of the Union, and of leading teachers and educators throughout the United States; and that the purpose of the organization of said National Education Association, and of the annual meetings of the agrue held in different cities of the country, is to promote, foster and encourage the cause of public education, and to elevate the standard and efficiency of the instruction given in the various States of the Union, and throughout the United States generally, and that the attendance of your petitioner at said annual meeting of said National Education Association, in the City of Portland, Oregon, in said month of July, 1917, was by him believed to be, and your petitioner alleges that it was, useful and necessary tó the proper and efficient discharge of the duties of his said office, and tended to promote and advance the cause of public education in Missouri, and to elevate the standard and efficiency of the instruction given in the public schools of this State; and that his attendance at said meeting was authorized by the laws of this State prescribing his powers and duties, and more particularly by the provisions of Section 10922, Revised Statutes 1909.

“Your petitioner says that, in attending said annual meeting of said National Education Association, at the time and place aforesaid, he actually expended the sum of $140.65, and that said amount was the reasonable and actual expense of his said attendance at said meeting, including necessary railroad fare, hotel bills, and other expenses reasonably and actually necessary to his attendance at said meeting; and that no personal expenses were or are included in said above-mentioned sum.

“Your petitioner says that thereafter, and on the 5th day of September, 1917, he presented to the said George E. Hackmann, State Auditor as aforesaid, his account in said sum of $140.65 (which said account had theretofore been duly approved by petitioner as Superintendent of Public Schools of Missouri) for allowance as a claim against the State of Missouri, as authorized and provided by said Section 10922, Revised Statutes 1909, and to be paid out of the moneys appropriated for the contingent and traveling expenses of the department of education, said moneys being appropriated by Act approved April 11, 1917, entitled ‘An Act to appropriate money for the support of the state government, the payment of the contingent and the incidental expenses of the state departments,’ etc., and being Section 22, page 10, of Laws of Missouri 1917; that at the time your petitioner presented said account to the said George E. Haekmann, State Auditor as aforesaid, for allowance, there was, and is now in the State Treasury, to- the credit of the' traveling expense account of the moneys appropriated for the contingent and traveling expenses of the department of education, more than sufficient money to pay said account of $140.65; and that it then and thereupon became the duty of the said George E. Haekmann, State Auditor as aforesaid, to audit and allow said account in said sum of $140.65; but your petitioner says that the said George E. Haekmann, State Auditor as aforesaid, wrongfully failed and refused, and does still wrongfully fail and refuse, to audit and allow said account in said sum of $140.65, or in any other sum, for the reason, as your petitioner is informed and believes, that it is the opinion and decision of the said George E. Haekmann, State Auditor as aforesaid, that your petitioner is not entitled to have audited and allowed, as a claim against the State of Missouri, any expenses made or incurred by him outside the State of Missouri.

“Your petitioner says that he is remediless in the premises by or through ordinary process or proceedings at law, and he therefore prays this Honorable Court to issue its writ of mandamus directing and commanding the said George E. Haekmann, as the State Auditor of Missouri, to audit and allow your petitioner’s said claim in said sum of $140.65, and for such other relief as to the court may seem meet and proper in the premises.”

The second count is a substantial rescript of the first count, except that it is bottomed upon expenses incurred in a trip to Washington, D. C., the nature of which is thus set forth:

“First: To consult with the Federal Board for Vocational Education regarding the terms under which Federal money should be made available for the State of Missouri for the purposes of reimbursements to school districts for moneys expended for the salaries of teachers of trade, industrial, home economics subjects, and teachers of agriculture, and for the training of 'such teachers. Your petitioner says that said Federal Board is created by act of Congress, and is appointed by the President to administer the Smith-Hughes Act, under which moneys are annually granted to the various States for the above purposes; that said Federal Board notified both your petitioner and the Governor of Missouri that the State of Missouri should be represented at said meeting; that the law of Missouri (Sec. 3, page 513, Laws 1917) vests the disbursements of moneys received by the State for- the above purposes in the State Board of Education, and that your petitioner, as Superintendent of Public Schools, as aforesaid, is ex-officio chairman of said State Board of Education, and is designated by Section 11, page 516, Laws of Missouri 1917, as the executive officer of said board for the administration of said act.

“Second: To attend, at the same time and place, a conference of State Superintendents of seven States, Missouri being one of them, said conference being called by Hon. P. P. Olaxton, United States Commissioner of Education, appointed by the President, and directing general educational affairs throughout the United States, said conference being called to consider the condition of the public schools and the work of the public schools in said seven States during the period of the war and immediately following the war.”

To this petition and to both counts thereof respondent demurred. His demurrer, omitting formal parts, runs thus:

“1st. Because neither said first nor second count states facts sufficient to constitute a cause of action against this respondent.

“2nd. Because neither said first nor second count is sufficient in law.

“3rd. Because it appears upon the face of said first and second counts and each of them, that the expenses made and incurred by relator, to compel the payment of which relator asks for this court’s extraordinary writ of mandamus, were expenses made and incurred without the, State of Missouri.

“4th. Because Section 10922, Revised Statutes 1909, and Section 22, Laws 1917, page 10, set up in each of said counts of said petition, show upon their face that the money appropriated for the payment of traveling expenses incurred by relator’s department can be used only in payment of expenses made and incurred within the State of Missouri.”

There is no point made touching whether mandamus is the proper remedy, lienee we make none and do not examine the point, assuming, as learned counsel upon both sides do, that mandamus is the proper remedy.

The point presented is a narrow one. Is the State under the law which provides for the duties of the State Superintendent of Public Schools (hereinafter called for brevity, Superintendent) liable to pay the traveling expenses of such Superintendent, incurred under the circumstances set forth in our statement of the case! We see no vital difference in the applieatory law as between the expenses involved in the two counts, and therefore the reasons for the payment or refusal of payment of the expenses incurred upon the trip to Portland ought to be decisive of the other. We consider the first count, for if there be any difference, there are reasons favoring payment of the expenses sued for in the second count which are not found in the first count. The effect of the demurrer is to admit that petitioner is a member of the National Educational Association; that such association is composed of the Superintendents of Public Schools of the various States of the Union, and of leading educators and teachers of the United States; that the purpose of this association and of the annual meetings held by it “is to promote, foster and encourage the cause of public education, and to elevate the standard and efficiency of instruction . . . throughout the United States;” and that the petitioner believed that attendanee upon this meeting was useful and necessary, and that it in fact was “useful and necessary to the proper and efficient discharge of the duties of his said office and tended to promote and advance the cause of public education in Missouri,’ and to elevate the standard and efficiency of the instruction given in the public schools of this State.”

The demurrer does not admit the petitioner’s conclusions of law set forth in his petition, to-wit, that he made such trips and incurred the expenses in dispute “in connection with and in the discharge of the duties of his office . . . and that his attendance at said meeting was authorized by the laws of this State prescribing his powers and duties.” These are questions of law for this court, and they are the only questions of either law or fact in the case.

The Legislature recognized the necessity of providing a fund to cover the travelling expenses of the office of State Superintendent of Public Schools, for it appropriated therefor the sum of $14,000, to cover these expenses during the biennial period ending December 31, 1918. [Sec. 22, p. 10, Laws 1917.] This was tantamount to a legislative construction of Section 10922, Revised Statutes 1909, as meaning that some travel and therefore some traveling expenses, are necessary under the law which prescribes the duties of the Superintendent. However, another statute, indicates this necessity more clearly than the legislative interpretation mentioned. For pertinent parts of the statute prescribing the place of residence and the place wherein the office of the Superintendent shall be kept, says:

“He shall reside and the books and papers of his department shall be kept at the seat of government, where a suitable office shall be provided by the State, at which he shall give his attendance when not absent on public business.” [Sec. 10920, R. S. 1909.]

But these statutes and the legislative construction mentioned, while making it clear that some travel is necessary, do not make clear what travel may he at the expense of the State. It is persuasive, however, that if the Legislature had in mind to restrict the expenditure of the money appropriated to expenses incurred in travel wholly within this State, it could, by adding three words to the language of the appropriation, have put this question beyond cavil. The authority to travel at the expense of the State, we concede, must he found in some statute, or arise by the most obvious implication from some statute, otherwise there is no obligation on the part of the State to pay the expenses incurred thereby. The statute which prescribes the duties of the Superintendent, so far as it is in any way pertinent to the point involved, reads thus:

“It shall be the duty of said Superintendent of Public Schools to make an annual report on or before the first Wednesday in January, in each and every year, to the General Assembly, when that body shall be in session any such year; and when not in session any one year, then the report shall be made to the Governor, who shall cause the same to be published, and shall also communicate a copy thereof to the next General Assembly. The State Superintendent, in the annual report of his labors and observations, shall present ... a statement of plans for the management and improvement of public schools, and such other information relative to the educational interests of the State as he may deem important. He shall, in person or by deputy, confer with and advise county officers on all matters pertaining to the school law and school directors, and all other school officers, teachers and patrons of the public schools. He shall have power, in person or by deputy, to visit and inspect schools, and make suggestions in regard to the subject-matter and methods of instruction offered, the control and government of the-. school, and the care and keeping of all school property. He shall have power to attend and assist in meetings of teachers, directors or patrons, and to in every way elevate the standard and efficiency of the instruction given in the public schools of the State. All moneys reasonably expended in the execution of these duties, as prescribed by this section, shall, upon due proof, be allowed by the auditor, and paid out of the State Treasury: Provided, that no personal expenses be included in the above allowance.” [Sec. 10922, B. S. 1909.]

Does this statute prescribe such duties as. may in the fulfillment thereof necessitate incurring expenses such as those in dispute? We think it does. Among the Superintendent’s statutory duties it is written: “He shall have power to attend and assist in meetings of teachers . . . and to in every way elevate the standard and efficiency of the instruction given in the public schools of the State.” Should it be contended that the “meetings of teachers” mentioned are meetings of state or local teachers, and not meetings of national or international “leading teachers and educators without the State,” so much on this phase may bcvconceded. But there yet remains the incumbent duty “to in every way elevate the standard and efficiency of the instruction given in the public schools of this State.” This is a broad and comprehensive duty, and in fulfilling it, of necessity much is left to the discretion of the Superintendent. It is difficult to see how it is to be complied with unless the officer whose official duty it is to elevate standards and efficiency shall have an opportunity to ascertain what standards and efficiency have been attained by teachers and educators in other States of the Union. Unless we are now to build a Chinese Wall about this State, and thus inferentially serve notice to all and sundry that in educational matters, we have attained absolute perfection in standards and efficiency, and that hereafter' we shall go to school to no man but a native, to no school but a local one, and that none of the other forty-seven states are capable of adding jot or title to our educational knowledge, standard or efficiency, we must take steps to ascertain the progress which is being made by others. The motto, nobis est demonstrandum, which persiflage has attributed to us, may in some respects be wholly commendable, bnt we ought not to carry it so far as to assume that there are none capable of imparting information to us. It is, we think, necessary if standards and efficiency in education in this State are to be kept abreast of the progress in other States, that the head of the public school system should be advised as to what educators elsewhere are doing. No better way perhaps for doing this has been devised than by conventions and conferences of the leaders in educational progress. That it is possible for the privilege of attending such conventions at the expense of the State to be. abused is no argument in favor of entirely cutting off the -necessary privilege. If it is proper and necessary to attend these conferences, some one must be vested by law with the authority of deciding upon the expediency of it. "We think the question of the necessity and expediency of incurring the expense in issue for the purpose mentioned has been by the statute conferred on the Superintendent of Schools, and not upon the State Auditor. If the privilege be abused the people exercising their political power can correct the abuse at the polls. Obviously we are not holding that if the expenses incurred were for travel which, patently, had no relevancy to the Superintendent’s statutory duties that the Auditor would be bound to audit them, merely because the Superintendent had approved them. That situation is not presented by the record before us.

We are of opinion that the statute fixing the duties of the State Superintendent of Public Schools, holds in contemplation the necessity of attendance upon meetings and conferences and conventions of the sort here in question. It follows that the preliminary writ herein should be made peremptory. Let it' be so ordered. All concur except Wother, J., who dissents in' a separate opinion. . .

WALKER, J.

(dissenting) — The State Superintendent of Public Schools is an official whose duties are defined, compensation fixed, and the expenditures of Ms office regulated by statute. To this we must look to determine his right to demand payment for expenses incurred in attending- national educational associations. If the statute defines such attendance either by express terms or reasonable implication as one of his duties, then a basis has been established for the allowance of this claim. Otherwise, not. Even the Legislature itself could not under our State Constitution (Art. IV., sec. 18) appropriate public money to pay such expenses in the absence of a statute authorizing or requiring such attendance and thereby rendering it a duty. If the Legislature has no such power, can it be said, with proper regard for the rules of interpretation, that the courts, which can only défine but cannot create power, possess it?

An examination of the statute defining the duties of the Superintendent does not disclose any intimation of a requirement that he shall attend educational associations. However much, therefore, we may be inclined to the conclusion that such attendance may prove beneficial in tending to broaden the mental horizon of the Superintendent, and thereby render him more efficient in the discharge of his authorized duties, we cannot lend our approval in the absence of at least a permissive statute to the expenditure by him of public money limited only to his discretion. Such a ruling, would, in our opinion be the making, rather than the declaring, of a law.

As the barber said to the coal heaver in declining to render him tonsorial service, “The line must be drawn somewhere.” We draw it at the Constitution. Wherefore, this dissent.


author: BOND, C. J.

text:
    THE STATE ex rel. WATERWORTH et al. v. A. L. HARTY,. Superintendent of Insurance.
    In Banc,
    June 13, 1918.
    INSURANCE: Schedule of Rates: Judicial Review: Original Jurisdiction. The Supreme Court does not have original jurisdiction to judicially review,- upon evidence to be heard by a commissioner, the ruling of the Superintendent of Insurance in refusing an increase of rates according to a schedule filed wUh him by the rate-making representatives of all stock fire insurance companies doing business in the State.
    Petition for Review De Novo,

    Dismissed.
   BOND, C. J.

This is an application by petitioners as the rate-making representatives of “all the stock fire insurance companies doing business” in this State, for a “judicial review,” upon evidence to be heard by a commissioner, of the ruling of the Superintendent of Insurance, in refusing petitioners an increase of rates according to a schedule filed with him March 27, 1918.

The matters of original cognizance thus presented do not lie within the constitutional jurisdiction of ■ this court, which is “appellate only,” except as otherwise specified or directed in that instrument. [Const. 1875, art. 6, secs. 2 and 3; Ib., art. 8, sec. 9; Gantt v. Brown, 244 Mo. 1. c. 300; R. S. 1909, sec. 5951.] The application is therefore dismissed without prejudice to “a proper action” in a court of competent original jurisdiction. [Laws 1915, p. 318, sec. 15.]

All concur.


author: GRAVES, J.

text:
    THE STATE ex rel. MISSOURI PACIFIC RAILWAY COMPANY and BENJAMIN F. BUSH, Receiver, Appellant, v. PUBLIC SERVICE COMMISSION.
    In Banc,
    June 13, 1918.
    PUBLIC SERVICE COMMISSION: Grain Scales: Repeal of Prior Statutes. The Public Service Act, by Section 49, Laws 1913, p. 588, invested the Commission with power to make an order for the erection and maintenance of track scales by a railroad company whenever public necessity therefor exists, and it repealed all prior statutes which interferes with the Commission’s discretion to determine, in each individual case, the existence of the public necessity«*H public convenience. It repealed Section 3157, Revised Statutes 1909, which required a railroad company to erect and keep in good condition, for use in weighing grain shipped over its road, true and correct scales, at all stations from which the shipments for the previous year amounted to fifty thousand bushels or more. And an order of the Commission which requires such scales to be maintained at a certain station, based alone on said Section 3157 and a showing that for the previous year fifty thousand bushels were shipped from said station, without any further showing of public necessity or public convenience, is invalid.
    Appeal from Cole Circuit Court. — Eon. J. G. Slate, Judge.
    Reversed and remanded (with directions).

      James F. Green and E. E. Larimore for appellant.
    (1) Tbe order of the Public Service Commission requiring the installation and maintenance of track scales at Rich Hill for the sole purpose of weighing carload shipments of grain, and Sec. 3157, R. S. 1909, on which said order is based, are a discrimination in favor of one class of shippers and are invalid and unauthorized. Sec. 23, Art. 12, Mo. Constitution; Railroad v. State, 107 Pac. 929; Midland Valley Railroad v. State, 133 Pac. 27; Ry. Co. v. Mo. Pub. Ser. Com., 192 S. W. 460. (2) The order of the Commission, requiring the relators to expend money and use the property of the railway company in a specified manner, is not a mere administrative order, but is a taking of property and to be valid must be justified by a'public necessity, and must not be unreasonable or arbitrary, and no such public necessity being shown, to enforce the order is to take relators’ property without due process of law. State ex rel. Oregon Ry. & Nav. Co. v. Pair-child, 224 U. S. 510; Great Northern Ry. Co. v. Minnesota, 238 IT. S. 340; Interstate Com. Com. v. L. & N. Railroad Co., 227 IT. S. 88; Railroad v. Wisconsin, 238 IT. S. 491. (3) See. 3157, R. S. 1909, was in effect repealed bv the Public Service Act approved March 17, 1913, and the order of the Commission is invalid in that it is based upon arbitrary provisions of said Section 3157, and not- upon any findings of fact made by the Commission pursuant to a hearing held under the provisions of said Public Service Act. Sec. 49, Public Service Act, Laws 1913; State ex rel. Rhodes v: Public Ser. Com., 270 Mo. 547; State ex reí M. K. & T. Ry. Co. v. Pub. Ser. Com., 271 Mo. 270. (4) If said Section 3157 has not been repealed, then to enforce the same, or any order of the Public Service Commission made pursuant to its terms, would be arbitrary and unreasonable and would constitute the taking of the property of relators without due process of law, in violation of the provisions of Section 1, Article 14, Amendments to the Constitution of the United States. Mo. Pac. Ry. Co. v. Nebraska, 217 U. S. 196'; Mo. Pac. Ry. Co. v. Nebraska, 164 U. S. 403.

      A. Z. Patterson, General Counsel and James D. Lindsay, Assistant Counsel, for respondent.
    (1) Track scales are a convenience — a facility or an instrumentality of transportation. All carload shipments are weighed by railroads on the first track scales available, and the freight charges, and all transactions between the shipper and carrier, are based exclusively upon this weight. Great Northern Railway v. Minnesota, 238 U. S. 340. (2) Since track scales are a transportation facility, the Public Service Commission has been granted power by the Legislature (Section 49, Public Service Act) to require their erection and maintenance, when public convenience and necessity demand that they “ought reasonably to be provided.” (3) Section 3157, R. S. 1909, has not been revoked by express repeal, nor is it directly in conflict with the provisions of the Public Service Act. If it is repealed by implication, or is violative of constitutional provisions, as providing for the taking of property without due process of law, it can only be authoritatively declared repealed or held unconstitutional by the judicial branch of the i State government, and not by the Public Service Commission, a non-judicial body. Lusk v. Atkinson, 268- Mo. 109. (4) If this court finds that Section 3157 has been repealed, or is violative of constitutional provisions, it should not reverse the judgment of the circuit court in toto, but should direct the circuit court to remand the cause to the Commission for the taking of further testimony, and for the determination of the question of whether or not public convenience and necessity reasonably require the installation and ’maintenance of track scales at Rich Hill. “The court may, in its discretion, remand any cause which is reversed by it to 'the Commission for further action,'' Section 3, Public Service Act; See, also, Secs. 39, 49, Public Service Act; Shallenberger Elev. Co. v. 111. Central Railroad, 278 111. 333.
   GRAVES, J.

.For a number of years the Missouri Pacific Railway Company has maintained track scales at Rich Hill, Missouri. For five or six months the scales had been out of repair, and were not in use. The company were about to remove the scales, and the commercial club of the city of Rich Hill filed complaint with the Public Service Commission asking that the railway company be compelled to erect and maintain proper scales on its tracks at such city. This the Public Service Commission directed, and theii judgment, under statutory certiorari to the circuit court of Cole County, was by such court sustained, and by appeal taken by the railway company and B. P. Bush, its receiver, the case comes here.

The order of the Public Service Commission, as well as the opinion of the commission does not find that these scales are a necessary public convenience, except in the following limited way. The commission in its opinion says:

“The Missouri statute provides that at all stations or places from which the shipment of grain by the road of any railroad company shall have amounted, during the previous year, to fifty thousand bushels or more, such railroad company shall erect and keep in good condition for use, and use, in weighing grain to be shipped over its road, true and correct scales, of proper structure apd capacity, for the weighing of grain by carload in its cars. Such railway shall carefully and correctly weigh each car upon which grain shall be shipped from such place or station, both before and after the same is loaded, and ascertain and receipt for the true amount of grain so shipped (Sec. 3157, R. S. 1909).

“The provisions of Section 49 of the Public Service Commission Law are broad enough' to justify a Commission order requiring track scales as a facility in connection with the transportation of property where the evidence shows a public convenience or necessity, or that such facility ‘ought reasonably to be provided.’

“In the judgment of the law-making body, as expressed clearly in Section 3157, supra, when the shipment of grain from any given point on the road shall have amounted during the previous year to 50,000 bushels or more, a public convenience or necessity arises, and therefore such scales ‘ ought reasonably to be provided.’ ”

From this it is clear that the Commission was of the opinion that the terms of said Section 3157, Eevised Statutes 1909, fixed the measure of public necessity, and the evidence having shown the quantity of grain therein named, the Commission was hound to find a public necessity, although the other evidence might disclose a different situation. The other evidence did strongly tend to show a different situation. It is clear that the Commission based its judgment as to public convenience on this statute. In so doing the railway urges error, in that the statute is of no force ■since the passage of the Public Service Commission Act. Such is the case in a nut shell.

I. If the Public Service Commission in this ease had, on the facts involved, and excluding the force of Section 3157, Revised Statutes 1909, found that there was a public necessity for the track scales sought, then we might have a different question here. The Commission makes no such finding. We doubt whether they could make such finding upon the facts presented.

What the Commision really has done is to say that they are bound upon the question of public necessity by the terms of the statute aforesaid. In other words, because Section 3Í57, supra, requires that a railroad should furnish track scales at all stations where the shipment of grain from such station had aggregated 50,000 bushels or more, the said Public Service Commission was bound to find a public necessity for such scales upon the showing that 50,000 or more bushels of grain had been shipped from Rich Hill, the year prior to the application made in this ease. The evidence did show 50,000 or more bushels of grain for the previous year. But it is upon this theory as to the binding effect of Section 3157, alone, the Public Service Commission bases its finding as to public necessity. And upon such theory its order must stand or fall. The railway company urges that such statute has no binding effect, and this is the real question, which question we take next.

II. To my mind there is no question as to the power of the Public Service Commission, to make an order for track scales. This power is contained in the broad terms of Section 49 of the Public Service Commission Act. [Laws 1913, p. 588.] But this act requires the independent judgment of the Public Service Commission upon the facts before it, in the individual case, and without the influence or effect of any previous statute. In fact the whole act is expressive of a new theory of reaching results in matters pertaining to things to be done by public service corporations. It contemplates that orders may be made for things of public necessity or of public convenience in the transportation of either persons or property, hut the act further contemplates that the question of public necessity or public convenience should be determined by the evidence in each particular case, and not by a previous statute which by its terms conflict with' the Public Service Act.

The exact question, dealing with almost identical statutes, has been recently ruled by the Supreme Court of Illinois, in State Public Utilities Commission ex rel. Baber v. Cleveland, C., C. & St. L. Ry. Co., 119 N. E. 310. That our Section 3157, Revised Statutes 1909, conflicts with our Public Service Commission Act is made so clear by Cartwright, J., in the Illinois case, supra, that we adopt that opinion as our own in this case. Among other things, the Illinois court says:

“The authority to enforce reasonable regulations for the weighing of grain and freight offered for shipment and to test the weights used in weighing freight on cars necessarily implies power to decide what regulations are reasonable and what they shall be. The law is that, if two statutes deal with the same subject-matter and are inconsistent with each other, so that both cannot be operative as-to such subject-matter, the latter act will be regarded as a substitute for the former one and will operate as a repeal, although it contains no express repealing clause. A requirement that a carrier shall furnish track scales is a regulation in regard to weighing cars and the freight thereon. Section 2 of the Act of 1871, as amended in 1877, and the Public Utilities Act, deal with the same subject; one classifying stations by the amount of grain shipped therefrom, and fixing a definite rule, subject to no choice, judgment, or discretion, and the other committing to the judgment of the Public Utilities Commission what will constitute a reasonable regulation. Section 2 requires the installation of track scales, whether in the judgment of the Commission such installation is reasonable or unreasonable, and Section 2, if in force, would restrict the power of the Commission to determine and enforce reasonable regulations. The one act leaves nothing to the judgment or discretion of the Commission, and the other commits everything to its discretion; so that the two are irreconcilable, and both cannot be in effect as to the same subject-matter. The judgment of the Public Utilities- Commission might be that the requirement of track scales at a station like Dudley was reasonable or unreasonable, or that track scales should be furnished at stations where less than 50,000 bushels of grain are shipped in a year. Inasmuch as the two acts are irreconcilable, and relate to the same subject-matter, Section 2 was repealed by the Public Utilities Act.”

The scope of the statutes in the two states are so similar, that further comment is unnecessary. A reference thereto is all that is required. We therefore hold that our said Section 3157 was repealed by our Public Service Commission Act, and the present order of our Public Service Commission which was based thereon, should be reversed.

Inasmuch as the circuit court affirmed the order, we will reverse the judgment of that court and remand thq cause to be proceeded with as herein indicated. It is so ordered.

All concur.