author: WALKER, J.

text:
    THE STATE ex rel. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION OF MISSOURI et al.
    Division Two,
    March 4, 1919.
    1. PUBLIC SERVICE COMMISSION: Regulation of Interstate Trains. The Public Service Commission is vested with plenary power under the statute to compel a railroad company to stop an interstate train at a point on its line if it is not otherwise furnishing reasonable, proper and adequate interstate service to that point and locality.
    2. -: Due Process of Law. Special proceedings applicable to a specified subject-matter and conformable to the rules requiring notice and the acquisition of jurisdiction, which affect all persons alike whose property or rights come within the lawful scope of the proceedings, are prosecuted with due process of law. Therefore where the statutes contemplate proceedings before the Public Service Commission and require notice to' a railroad company, against whose train service complaint has been made, and an opportunity to be heard, and provide for a judicial review by the courts of the Commission’s orders, and the proceedings throughout are conducted in accordance with these statutory requirements, the railroad company is not deprived of its property without due process of law.
    3.. -: -: Motion for Rehearing: Held Under Advisement. Section 106 of the Public Service Act demonstrates that it is not a fact that, where the Commission has delayed in the disposition of a motion for a rehearing, the railroad copmany must obey a previous order or suffer the penalties provided by Section 130 for its failure to do so, and thereby be deprived of its property without due process of law. Section 110, declaring that an application for a rehearing shall not excuse a corporation from complying with and obeying an order of the Commission or stay its enforcement, must be read in connection with said Section 106, which provides for a suspension of the order by the circuit court upon the presentation of a meritorious application.
    4. -: -: Pecuniary Loss. The facts of this case fail to show that the railroad company, which was required by the Commission’s order to stop designated trains at a named ■ station, could operate the trains only at a loss, and therefore fail to demonstrate that the order deprived the company of its property without due process of law.

      5. -: Train Facilities: Pecuniary Loss. An order requiring a railroad company to stop designated trains at a certain point on its line may be sustained, although a compliance with it may entail some pecuniary loss upon the company. It is the company’s duty to furnish necessary facilities, an‘d the fact that the furnishing of additional trains entails an incidental pecunairy loss is to be considered, but it is to be considered in connection with the nature and productiveness of its corporate business as- a whole.
    6. -: Pleading. Technical exactness of court, pleadings is not required in complaints filed with the Public Service Commission. It is not a court, and the statute (Sec. 27, Publ. Serv. Act) says that a substantial compliance with its requirements 'shall be sufficient.
    7. -: Court Procedure: Finding of Facts. When an appeal is taken to the Supreme Court from a judgment of the circuit court affirming an order of the Public Service Commission, the case is to be construed as a suit in equity, and the Supreme Court may make its own findings of fact.
    Appeal from Cole Circuit Court. — Eon.. J. G. Slate, Judge.
    Affirmed.

      J. W. Jamison for appellants.
    (1) “The Public Service Commission derives its power to act from the terms and intendment of the legislative enactments which create that body.” State v. Pub. Serv. Com., 199 S. W. 1001; State ex rel. United Ry. Co. v. Pub. Serv. Com., 270 Mo. 429. The Commission derives its authority to order changes in train schedules or additional service solely and exclusively from Sec. 51, Laws 1913, p. 590. By said section the Commission was without authority to interfere with appellant’s interstate train schedules at Pilot Grove. State ex rel. Mo. Pac. Ry. Co. v. Publ. Serv. Com., 201 S. W. 1143;-Warner v. Railroa,d, 156 Mo. App. 523. (2) Under the evidence there was no public necessity for the stopping of appellant’s through trains at Pilot Grove on flag. The stopping of said trains there would merely serve the convenience of a very few residents and more particularly the • convenience of two traveling men, resident in that city. The order was, therefore, in excess of the Commission’s authority. Warner v. Railroad, 156: Mo. App. 523; Delaware, L. & W. R. Co. v. Van Santvoord, 232 Fed. 984; Gt. Northern Ry. v. Minnesota, 238 U. S. 340. (3) Inasmuch as it is conclusively ■ shown by the evidence that defendant is carrying intrastate passengers at a loss, the order of the Commission requiring the stopping of interstate trains 9 and 10 would he the taking of the property of the carrier without due process of law, contrary to United States . Constitution, Fourteenth Amendment.- Miss. Railroad Commission v. Mobile & Ohio R. Co., 37 Sup. Ct. Rep. 602. (4) Under the evidence, the order of the Commission amounts to a regulation and interference with and a burden upon interstate commerce under the commerce clause of the Federal Constitution. Chicago, B. & Q. R. Co. v. Wis. Railroad Com.; 237 U. S. 220; Miss. Railroad Com. v. Ill. Central R. Co., 203 U. S. 335; Ill. Cen. R. Co. v. Miss. Railroad Com., 138 Fed. 327; C., B. & Q. Railroad v. Pub. Serv. Com., 181 S. W. 61; Illinois C. R. Co. v. Illinois, 163 U. S. 142; C., B. & Q. Railroad v. Chicago, 166 U. S. 227; Railroad v. Ohio, 173 U. S.' 285; Cleveland Ry. v. Illinois, 177 U. S. 514; Atlantic Coast Line v. Wharton, 207 U. S. 328; Herndon v. C., R. I. & P. Ry., 218 U. S. 135; Oregon Railroad v. Fairchild, 224 U. S. 510; Gt. -Northern Ry. v. Minn., 238 U. S. 340. (5) Secs. 110, 111 and 112 of the Public Service Act providing for a rehearing before the Commission; the court procedure for review, and for writ of review, and Sec. 130 of said law providing a penalty for a violation of the orders of the Commission, and each of said sections, are void in that they seek to deprive appellants of .their property without due process of law, and deny to them the equal protection of the law in violation of Section .1 of the Fourteenth Amendment to the Constitution of the United States, by requiring immediate, unconditional compliance with and obedience to mere orders of a non-judicial administrative, representative agency. Lusk v. Atkinson, 268 Mo. 109; Chicago, Milwaukee & St. Pañi Ry. Oo. v. Minn., 134 U. S. 418; Ex parte Yonng, 209 U. S. 123; Wadley Southern Ry. v. Georgia, 235 U. S. 660; Mo. Pac. Ry. Oo. v. Nebraska, 217 U. S. 196. (6) The complaint in this case fails to state facts sufficient to constitute a cause of action. It was not alleged in the complaint that the existing train service was not reasonably adequate.

      Alex. Z. Patterson, General Counsel, and James D. Lindsey, Assistant Counsel, for respondent, Public Service Commission.
    (1) The State has the power to require adequate local facilities, even to the stoppage of interstate trains, or the rearrangement of their schedules, (a) Appellants’ first contention is that the Commission has no power under the act creating it and under the facts of this case, to interfere with interstate train schedules. This question of law has been definitely and positively settled. State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Com., 201 S. W. 1143; Chicago, Burlington & Quincy R. Co. v. Railroad Com. of Wisconsin, 237 U. S. 26. The general rule is also stated in Mississippi Railroad Com. v. ■ Illinois Central Railroad, 203 U. S. 344, 51 L. Ed. 209; Herndon v. Railroad, 218 U. S.' 156, 54 L. Ed. 970; Illinois Central Railroad Company v. Illinois, 163 U. S. 142, 41 L. Ed. 107; Gladson v. Minnesota, 166 U. S. 427, 41 L. Ed. 1064; Lake Shore Ry. Co. v. Ohio, 173 U. 'S. 285, 43 L. Ed. 702; Cleveland Ry. Co. v. Illinois, 177 U. S. 514, 44 L. Ed. 868; Atlantic Coast Line Co. v. Wharton, 207 U. S. 328, 52 L. Ed. 230; Atlantic Coast Line v. North Carolina Corp. Com.,’. 206’ U. S. 1, 51 L. Ed. 933, 11 Ann. Cas. 398; Oregon Railroad Co. v. Fairchild, 224 U. S.. 510, 56 L. Ed. 863; Railroad v. Yant Santwood, Public Service Com. (D. C.), 216 Fed. 252; Ohage v. Northern Pacific Ry. Co., 200 Fed. 128, 118 C. C. A. 302. (b) The facts conclusively show that the local service rendered the city of Pilot Grove, without the limited flag stop of trains Nos. 9 and 10 as ordered by the Public Service Commission,-was clearly inadequate and insufficient. (2) Neither the law nor the facts support the appellants in their contention that the order of the Commission is an arbitrary arid unlawful taking of property. The-evidence wholly fails to show that trains"No's. 9 and 10 are being operated at a loss, or that the order will cause them to be operated at a loss. The order of this Commission requires the stopping on flag of two trains each day, a practice long followed by the railroad company voluntarily, and in no event costing it more than a few dollars a day. (3) Sections 110, 111, 112 and 130 of the Missouri Public Service Act provide for a full, adequate and prompt judicial review of an order of the Public Service Commission, and for suspension thereof during such review, and the penalties for disobedience of a Public Service Commission order are inoperative until, final determination of the validity of the statute, (a) Appellants’ objection to these statutes is based wholly upon a theoretical or assumed condition, which it contends might arise under the procedure authorized by the Public Service Commission Act. No showing was made or can be made under the record that the procedure in this case has operated as an actual invasion of the appellants’ constitutional right to “due process of law.” Burlington R. Co. v. Dey, 82 Iowa, 312, 12 L. R. A. 436; Portland Railroad Co. v. Railroad Commission of Oregon, 229 U. S. 397. The essential concomitants of statutes providing procedure for public service commissions in order that proceedings thereunder may constitute “due process of law,” fully appear in the Public Service Commission Act. (b) The motion for rehearing is a necessary and vital part of the review proceeding, and during its pendéncy, the applicant is not subject to penalties and forfeitures for failure to obey an order of the Commission, provided, the review proceeding is prosecuted in good faith. Secs. 106, 110, Publ. Serv. Act; State ex rel. Mo. Pac. Ry. Co. y. Commission, 192 S. W. 6, (4) It is tbe duty of appellants to reasonably and adequately serve not only necessities, but tbe local convenience, of tbe communities through which their railroad operates. The order of the public service commission herein merely requires the performance of this duty. Such'regulation may, in a proper case, require the stopping of interstate trains, though this may involve some pecuniary loss. Miss. Railway Com. v. Mobile & Ohio Railroad, 244 U. S. 391; Atlantic Coast Line v. North Car. Corp. Com., 206 U. S. 1; Mo. Pac. Ry. Co', v. Kansas, 216 U. S. 262.
   WALKER, J.

This appeal seeks the review of a judgment of the circuit court of Cole County, affirming an order of the Public Service Commission.

The. complaint filed with the Commission, upon which its order was based, is as follows:

“The complaint of W. A. Scott, Mayor of Pilot Grove, Cooper County, Missouri, respectfully shows that the Missouri, Kansas & Texas Railroad Company has and does refuse to stop trains Nos. 9 and 10 at this, Pilot Grove, station for any point on their system other than St. Louis on the east and Parsons, Kansas, on the south; that this city has enjoyed this train service continually and that now service to Sedalia, Boonville, New Franklin, Fayette, Higbee, Moberly and all points north, as well as McBaine, Columbia, Jefferson City, and all points on the east excepting St. Louis, may only be had on very early trains in the morning or late at' night; that we now have no midday train service, much to our discomfort.
“We were granted service on trains Nos. 9 and 10 even while we had former train No. 1 and the removal of trains Nos. 9 and 19 or service from those trains is also working a hardship on Sedalia and Boonville and on the traveling public at lárge, and we respectfully ask that the service of trains Nos. 9 and 10 be restored to us.”

A Tearing upon this complaint was held before a member of tbe Commission at Pilot Grove. Tbe evidence showed that tbe appellant railroad company bad, for a considerable length of time, regularly stopped' trains Nos. 9 and 10 at Pilot Grove, for the reception and discharge of passengers to. and from all points; this practice was continued until August, 1917, when appellant put into effect a rule providing that train No. 9 should stop at Pilot Grove only for the discharge of passengers from St. Louis, and the reception of passengers for Sedalia and beyond; and that train No. 10 should stop only for the discharge of passengers from Parsons, Kansas, and the reception of passengers for Columbia and beyond. In pursuance .of this course, these trains were compelled to make frequent stops at Pilot Grove; yet the appellant refused to carry passengers between Boonville and Pilot Grove on these trains, although stops were regularly made at Boonville and frequently at Pilot Grove. The principal passenger business at Pilot Grove was to Boonville and Sedalia; that during the months of August and September immediately preceding the hearing on the complaint, train No. 9, in thirteen days, stopped nine times at Pilot Grove; and train No. 10, in sixteen days, stopped there eleven times; that at the time of this hearing, appellant operated three trains daily between St. Louis, Mo., and Sedalia, Mo., with final destination beyond the State. The time schedules of a number of appellant’s other trains were shown to demonstrate the fact that tbe amount of time they consumed in running from Sedalia to Pilot Grove and from the latter place tó St.Louis was not appreciably different from that consumed by the two trains sought to be affected by the complaint in running between the same points. The testimony of a number of witnesses was introduced to show the inconvenience to the public at Pilot Grove on account of the manner in which the appellant ran the two trains in question.

The finding of the Commission, based on this testimony, was, that the principal passenger business, at the station of Pilot G-rove, was to Boonville and Sedalia; that trains numbered 9 and 10 stopped at Pilot Grove for passengers from and to St. Louis and beyond, and from and to Parsons, Kansas, and beyond, and that said trains seldom passed Pilot Grove without stopping’, and that the stops for the discharge and reception of Boonville and Sedalia passengers at Pilot Grove could be made without material delay or expense to the appellant.

The Commission thus defines its reasons for the ruling in this regard:

“(1) That the appellant, after it had voluntarily stopped trains Nos. 9 and 10 at Pilot Grove for a long period of years, ceased making the stops solely for the purpose of answering the contention of complainant, that inasmuch as the trains stopped nearly all the time at Pilot Grove, it was possible, without detriment to the service, or additional delay, to permit the carriage of Boonville and Sedalia passengers thereon.
“(2) That the Railroad Company for a long period of time, in fact, nearly ever since the inauguration of passenger train service over its line, has rendered flagstop service for Pilot Grove on certain of its fast trains. This fact in itself is strongly indicative of the necessity for these stops.
“(3) Without the flag stops of trains Nos. 9 and 10 at Pilot Grove, the city of Pilot Grove and a populous community around it has service only on two trains each way each day; trains Nos. 3 and 7 west-bound, and trains Nos. 4 and 8 east-bound; train No. 7 westbound originates at McBaine, and the destination of train No. 8 east-bound is McBaine.
£ ‘ These facts make the conditions and circumstances affecting the service complained of in this case entirely different from the conditions and circumstances in the California Case (State ex rel. Missouri Pacific v. Public Service Commission, 201 S. W. 1143). In that case,. California, having only about 400 more inhabitants than Pilot Grove, had six trains each way each day. Every passenger train operated by the Missouri Pacific through California, including its fastest through trains, stopped regularly or on flag, except one early morning train, west-bound. At Pilot Grove, under the-service inaugurated by the appellant November 25th, two of the fast M. K. & T. trains passed through each way daily without stopping.”

An order was thereupon entered by the Commission requiring the appellant to regularly stop trains Numbered 9 and 10 at Pilot Grove thereafter.

A rehearing of the case was granted by the Commission and additional testimony was offered by appellant, in which it was disclosed that appellant had prepared and put in operation a new schedule, prohibiting trains Nos. 9 and 10 to stop- at Pilot Grove for passengers from or to any point. A cancellation, therefore, of the Commission’s order was sought by the appellant on the ground that the new schedule remedied the inadequate local service theretofore existing between Pilot Grove and Boonville, since day-light service was furnished such points on trains other than Nos. 9 and 10. The Commission found, however, from the evidence adduced, that the failure to stop trains Nos. 9 and 10 at Pilot-Grove rendered the service less adequate to and from St. Louis and from points south of Parsons, Kansas. "Whereupon, the order theretofore made by the Commission in regard to said trains was affirmed and. a supplemental order entered as follows:

“The- Commission having heretofore, on the 10th day of October, 1917, issued an order in -the above entitled proceeding, and on the 22nd day of October, 1917, issued its first supplemental order in the above proceeding, and the case now being before the Commission for rehearing and upon motion to set aside and dismiss, and the Commission being fully advised in the premises, it is
“Ordered, 1. That section 1 of the order entered herein on October 10; 1917, be, and the same is hereby amended, so as to read as follows:
‘ ‘ Ordered, 1. That the defendant, the Missouri, Kansas & Texas Railway Company, and Charles E. Schaff, receiver thereof, he and it is' hereby required from and after the effective date of this order to stop westbound passenger train No. 9 at Pilot Grove, Missouri, on flag, when it has passengers from St. Louis or Boon-ville, Missouri, destined to Pilot Grove, Missouri, or when passengers at Pilot Grove, Missouri,- desire to board said train for Sedalia, Missouri.
“And that it be required to stop east-bound passenger train No. 10 at the station of Pilot Grove, Missouri, on flag, when it has passengers from Sedalia who desire to stop at Pilot Grove, Missouri, or when passengers at Pilot Grove, Missouri, desire to board said train for Boonville or St. Louis, Missouri.
“Ordered, 2. That defendants’-motion for rehearing filed herein on November 9, 1917, be, and the same is hereby overruled.
• “Ordered, 3. That defendants’ motion filed herein on December 17, 1917, asking that order entered herein on October 10, 1917, be set aside and held for naught, be, and the same is hereby overruled.
“Ordered, 4. That this order shall be in full force and effect from and after the first day of January, 1918, and that the secretary of the Commission forthwith serve upon defendants a certified copy of this order.
“Ordered, 5. That the defendants shall, on or before the effective date of this order, notify, the Commission in the manner required by Section 25 of the Public Service Commission Law, whether the terms of this order will be accepted and complied with.”

It is with the foregoing order that we are concerned in determining the propriety of the Commission’s action.

I. That the Public Service Commission derives whatever authority it possesses from the law of its creation, there can he no question (State ex rel. v. Public Service Commission, 109 S. W. l. c. 1001; State ex rel. United Ry. Co. v. Pub. Serv. Com., 270 Mo. 429).

This act, so far as applicable to the matter at issue, provides: “If, in the judgment of the Commission, any railroad corporation or street railroad corporation does not run trains enough or cars enough or possess or operate motive power enough reasonably to accommodate the traffic, passenger and freight, transported by or offered for transportation to it, or does not run its trains or cars with sufficient frequency or at reasonable or proper time having regard to safety, or does not run any train or trains, cars or cars, upon a reasonable time schedule for the run, the Commission shall, after a hearing, either on its own motion or after complaint, have power to make an order directing any such railroad corporation or street railroad corporation to increase the number of its trains or of its cars or its motive power or to change the time for starting its trains or cars or to change the time schedule for the run of any train or car or make any other suitable .order that the Commission may determine reasonably necessary to accommodate and transport the traffic, passenger or freight, transported or offered for transportation.” [Sec. 51, p. 590, Laws 1913.]

It is contended by appellant that this statute has no application to the case at bar, on the ground that the facts show that appellant was furnishing Pilot Grove and vicinity adequate service by other trains than those in controversy; and the latter being interstate trains, should not have been subjected to the Commission’s order, and hence the latter was improper and unauthorized.

A review of the testimony is confirmatory of the soundness of the reasons of the Commission, above set forth, for entering the order herein. Our recent ruling, therefore, in State ex rel. Railroad v. Pub. Serv. Com., 201 S. W. 1143, is apposite and controlling, that the Commission is vested with plenary power under the statute to compel a railroad company to stop an interstate train at a point on its line, if it is not otherwise furnishing reasonable, proper, and adequate interstate service to that point and locality.

This conclusion finds support in C. B. & Q. Ry. Co. v. Wisconsin Railroad Com., 237 U. S. l. c. 226, in which that court, in ruling upon a like question to that here at issue, held: “In reviewing the decision we may start with certain principles as established: (1) It is competent for a state to require adequate local facilities even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing — that is, the local conditions being adequately met — the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the Legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the. determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an 'arbitrary requirement.”

Numerous other cases, decisive of the Commission’s power in this regard, are cited in respondent’s brief,and therefore, need not be set out here. We • overrule this contention.

II. It is contended that the Commission’s order compels the appellant to operate the trains in question at a loss, and hence deprives the appellant of its property without due-process of law.

That the application of the doctrine here invoked is not confined to law and chancery actions, has been definitely determined by the Supreme Court of the United States in Portland Ry. Co. v. Railroad Com. of Oregon, 229 U. S. 397, in which it was held in effect, that special proceeding's applicable to a specified subject-matter and conformable to the rules requiring notice and the acquisition of jurisdiction, which affect all persons alike whose property or rights come within the lawful scope of the proceedings, are prosecuted with “due process of law,” and therefore where the proceedings before a commission contemplate notice to the railroad companies giving them an opportunity to be heard, and provide for a judicial review by the courts of the orders of the Commission, the railroads cannot complain. [See, also, Burlington C. R. & N. Co. v. Day, 82 Iowa, 312, 12 L. R. A. 436, 4 R. C. L. p. 624.]

The Public Service Act provides ample procedure to enable the Commission to proceed with due process of law in a case of this character in conformity with the rulings of the U. S. Supreme Court.

To illustrate: Section 197, of the Public Service Act, requires adequate notice of complaint and of prospective hearings, to corporations or persons against whom complaints have been lodged. Sections 110, 111, 112 and 113 of said act provide for a full and complete judicial review of the Commission’s orders. There is no complaint that the proceedings at bar were not conducted in accordance with the formal requirements of these statutes; but it is especially urged by appellant that certain provisions of Section 110 authorize the Commission to hold a motion for rehearing under advisement for an indefinite length of time, thus rendering it possible for appellants’ business and property to be damaged without remedy in violation of its constitutional rights. The particular portion of Section 110 to which this objection is urged is as follows: “An application for such a rehearing shall not excuse any corporation or person or' public utility from complying with or obeying any order or decision or any requirement of an order or decision of the Commission, or operate in any manner to stay or postpone the enforcement thereof, except as the Commission may by order direct."

The burden of appellants’ claim in this behalf is that if indefinite delay occurs in the disposition of a motion for a rehearing, appellant must nevertheless obey the orders of the Commission or suffer the severe penalties provided by Section 130 of the act for its failure so to do. The explicit’terms of Section 106' of the act show clearly that appellants’ claim is not tenable. The pertinent portion of said section is as follows:

“An action to recover a penalty or forfeiture . . . may be brought. ... In any such action . . . if the defendant in such action shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for the violation of an order or decision of the Commission, the defendant was actually and in good faith prosecuting a suit to review such order and decision in the manner as provided in this act, the court shall remit the penalties or forfeitures incurred during the pendency of such proceedings.” The filing of a -motion for rehearing in a case of this character sustains a like relation to that of a motion for a new trial in an ordinary action in the circuit court. During the pendency of the motion for a rehearing, the applicant is not subject to penalties and forfeitures for failure- to obey an order 'of the Commission, provided the proceeding for a review of its action is prosecuted in good faith. That the filing of a motion for a rehearing before the Commission is an essential part of a. proceeding for review is demonstrated by the following provisions of Section 110-of the act:
“(a) That no review proceeding shall accrue in any court unless the aggrieved party shall have filed, before the effective date of the order of the Commission complained of, an application to the Commission for a rehearing, and
“(b) Such, application must provide specifically the ground or grounds on which the applicant considers the order of the Commission unlawful, unjust or unreasonable, and further,
“(c) No corporation, person or public utility is permitted to urge in' any court any ground not set forth in said application.”

Judicial approval of these provisions has been given in State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Com., 192 S. W. 86. Thus it will be seen that ample opportunity is given the applicant for a review of the Commission’s order, which is stayed and suspended. until determined, for no penalty or forfeiture may be collected for a- non-compliance with same. If the section complained of (110) stood alone, some ground for the contention would exist; but-construed in connection with Section 106, it is not subject to the criticism leveled against it, under the general rule that the two sections are so related that they must be read together, and considered in pari materia. While the way is therefore' open for a review by the circuit court of the Commission’s proceedings like opportunity is offered for the securing of a suspending order as in any other case, provided the circuit' court finds the application in that behalf meritorious.

Aside, however, from this technical contention, as to a lack of due process of law, under the terms of the act, do the facts offer any support of this contention? The only material testimony offered in this regard was that of the appellant’s assistant passenger agent, who testified that certain trains, some four or five in number, but not the particular trains in controversy, were earning at various periods, amounts per train-mile, of forty to seventy-three cents; that these earnins’s were not sufficient to cover the transportation costs of these trains, and that the information he possessed and was testifying to was obtained from the appellant’s accounting department. He did not testify, however, in what manner, or to what extent, the stopping of trains Nos, 9 and 10 on flag, as required by tbe Commission’s order, would add to tbe loss claimed to bave been' incurred in tbe running of tbe other trains. There is, therefore, in our opinion no sufficient testimony to show that a compliance with tbe order of tbe Commission will result in financial loss in tbe operation of trains Nos. 9 and 10. Tbe lack of merit of tbe appellant’s contention, and that it has in no wise been subjected to liabilities, penalties or forfeitures, as it contends, is further shown by tbe record of tbe proceedings in this case. Supplemental order No. 2, upon which tbe appellant’s contention must be based (Sec. 110, Pub. Serv. Act; State ex rel. Railroad v. Pub. Serv. Com., 192 S. W. 86), was entered on December 18, 1917, to become operative January 1, 1918. On December 31, 1917, appellant filed its motion for rehearing. It was overruled by tbe Commission on January 26, 1918. It is stated by respondent and not questioned by tbe appellant that tbe latter did not comply with tbe order of tbe Commission during tbe pendency of said motion, and as a matter of fact, bad not done so at tbe time this appeal was perfected and tbe case submitted for our consideration.

We bave reviewed tbe cases cited by tbe appellant in support of this contention, and find that tbe opinions v therein were rendered in construing statutes unlike tbe Missouri Public Service Act, and were applied to facts, in many instances not parallel with those at bar. Hence, tbe conclusion deduced by appellant from these rulings is inapplicable in tbe determination of tbe matter here at issue.

III. That tbe order, such as has been made herein, may, under tbe facts, be sustained although it may entail some pecuniary loss, has been more than once determined by tbe Supreme Court of the United States, in cases sufficiently similar in subject-matter to that at bar, to justify their citation as authorities here. To illustrate: In Miss. Railroad Com. v. M. & O. Railroad Co., 244 U. S. l. c. 390, it was held that “the principles of law applicable to the decision of snch a case as this record presents are few and they have become so settled and so familiar by repeated decisions of this court that extended discussion of them would be superfluous. They, are these: £A state may regulate the conduct of railways within its borders, either directly or through a body charged with the duty and invested with powers requisite to accomplish such regulation’ . . . ‘Under this power of regulation a state may require carriers to provide reasonable and adequate facilities to serve not only the local necessities but the local convenience of the communities to which they are directly tributary. . . . And such regulation may extend in a proper case to requiring the running of trains in addition to those provided by the carrier, even where this may. involve some pecuniary loss.’ ”

In an earlier case of Mo. Pac. Ry. Co. v. Kansas, 216 U. S. l. c. 278, the Federal Supreme Court, in discussing this question, said:

“The difference between the exertion of the legislative power to establish rates in such a manner as to confiscate the property of the corporation by fixing them below a proper remunerative standard and an order compelling a. corporation to render a service which it was essentially its duty to perform, was pointed out in Atlantic Coast Line v. N. Car. Corp. Com., 206 U. S. 1. In that case the order to operate a train for the purpose of making a local connection necessary for the public convenience was upheld, despite the fact that it was conceded that the return from the operation of such train would not be remunerative. Speaking of the distinction between the two, it was said: ‘This is so (the distinction) because as the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although by doing so as an incident, some pecuniary loss from rendering such service may result. It follows, therefore, that the mere incurring of a loss from the performance of such a duty does not in and of itself necessarily give rise to the conclusion of unreasonableness, as would be the case where the whole scheme of rates was unreasonable under the doctrine of Smyth v. Ames. ....
“ ‘Of course, the fact that the furnishing of a necessary facility ordered' may occasion an incidental pecuniary loss is an important criterion to be taken into view in determining the reasonableness of the order, but it is not the only one. As the duty to furnish necessary facilities is coterminous with the powers of the corporation, the -obligation to discharge that duty must be considered in connection with the nature and productiveness of the corporate business as a whole, the character of the services required, and the public need for its performance.’ ”

The doctrine, thus announced is applicable here because, if the testimony of appellant as to loss of earnings be given the full probative force to which its relevant portions are entitled, it is not sufficient to show such material injury to appellant, arising from a compliance with the order, as to render same invalid. As we have held, however, except upon a strained construction, this evidence has- very little probative force.

IY. The technical exactness of court pleadings is not required in complaints filed before the- Commission; it is not a court, but as we said in Atchison, etc. Ry. Co. v. Pub. Serv. Com., 192 S. W. 460, “a committee created by the Legislature to make findings of fact and base orders thereon, which if reasonable, may be enforced by the courts.” In addition, in State ex rel. Sedalia v. Pub. Serv. Com., 204 S. W. 497, we held that the nature and purpose of the act authorized us to “view it in a kindly spirit by giving it a liberal construction.” This view comprehends the procedural as well as the administrative provisions of the act. Express legislative approval uf this manner of construing the act is evident from Section 127 of same, which provides that “a substantial compliance with the requirements of this act shall be sufficient to give effect to all the rules, orders, acts- and regulations of the Commission, and they shall not he declared inoperative, illegal or void for any omission of a technical nature in respect thereto. The provisions o'f this act shall he liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.” [Laws 1913, p. 648.]

Our rulings in this regard are, therefore, as they should be, but an express affirmance of the legislative construction of the act embodied in this section.

The technical rules of pleading, therefore, need not be observed in proceedings before the Commission, a substantial compliance with the requirements of the act being sufficient. A rule in harmony with this conclusion has been promulgated by the Supreme Court of the United States, in Cincinnati etc. Ry. Co. v. Interstate Com. Co., 206 U. S. l. c. 150, although that body' possesses more of the characteristics of a judicial nature than.the Public Service Commission. There is, therefore, no merit in this contention.

V. There is no gainsaying the. question that when a case reaches this court from a circuit court, affirming an order of the Public Service Commission, it must be construed as a suit in equity, and we may make our own findings of fact. This course we have approved in State ex rel. Wab. Ry. v. Pub. Serv. Com., 271 Mo. 155, and by this rule ive have been guided in the review of this case.

Summarizing our findings based upon this review, in the light of the law applicable thereto, we hold, that the complaint is sufficient to authorize the invoking of the remedial powers of the' Commission; that the latter is authorized to consider a case involving the running of interstate trains; that under the preponderance of the evidence there is a public necessity for the stopping of the trains in question at Pilot Grove, as prayed; that this finding’ does not result in such a loss of the earnings, or other inconvenience or detriment to the appellant as to constitute a violation of any substantial right,, whether invoked under the due-process or interstate commerce clauses of the Constitution.

In consequence of all of which, the judgment of the circuit court should be affirmed, and it is so ordered.

Faris, J., concurs; Williams, P. J., concurs in the result, and in all except paragraph five.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    THE STATE, Appellant, v. JOSEPH J. CRITES.
    Division Two,
    March 4, 1919.
    CONSTITUTIONAL LAW: Title: Legislative Agents: Contingent Fee. The title to a bill, which read: “An Act entitled an act, requiring legislative counsel and legislative agents retained or employed for compensation by any person, firm, corporation or association to promote or oppose the passage of bills or resolutions, or the approval of the same, to file with the Secretary of State a statement in writing subscribed by such counsel or agent stating the name of the person, firm, corporation or association by whom or on whose behalf he is employed, together with a brief description of the legislation in reference to which such service is to be rendered, requiring an itemized statement of expenditures to be filed, prohibiting legislative agents or counsel from going upon the floor of the Legislature, providing penalties for a violation of this act,” is not broad enough to include a section making criminal an agreed compensation to he contingent upon the final enactment into law of a certain measure, since said section does not come within the scope of the title. The title does not in any wise relate to the regulation of the compensation of legislative agents or counsel; it relates to their duties, and not their compensation. Consequently the section (Sec. 8150, R. S. 1909) which declares that “no person shall accept any such employment or render any such service for compensation contingent upon the passage or defeat of any legislative measure” is void, and an indictment charging a legislative agent of its violation should be quashed. However, if the title had simply stated it was an act respecting legislative agents and legislative counsel, the particular matters mentioned' in the section would have been within its scope, for then it would have related to a general subject, and would not have restricted that subject to the duties of these agents, as the subsequent words of this title do.

      Appeal from Greene Criminal Court: — Hon. G. H. SJcinker, Judge.
    Aefirmed.

      Frank W. McAllister, Attorney-General, Henry B. Hunt and S. P. Howell, Assistant Attorney-General, for appellant.
    (1) The title to the act ill the case at bar is sufficiently broad to embrace the provisions prohibiting the acceptance of compensation upon a contingent basis. Sec. 8150, E. S. 1909; Laws 1907, p. 351; State v. Smith, 233 Mo. 255; Bishop on Statutory Crimes (3 Ed.), sec. 36a; 1 Sutherland on Statutory Constr. sec. 131; In re Burris, 66 Mo. 446; State ex rel. v. County Court, 128 Mo. 441; State v. Cantrell, 179 Mo. 245. (a) It is not necessary for the title to embrace the limitations contained in the body of the act. 36 Cyc. 1029; Nenendorff v. Duryea, 69 N. Y. 557; Mt. Vernon Co. v. Frankfort Co., Ill Md. 568. (b) Where the provisions of the act fairly relate to the same subject, or are means or incidents of accomplishing its purpose, the act comprises a single subject, and, therefore, is not violative of Sec. 28, Art. 4, of the Constitution. 1 Sutherland, Statutory Constr. p. 249; Ewing; v. Hoblitzelle, 85 Mo. 71; State v. Doerring, 194 Mo. 408; State v. Cassidy, 22 Minn. 322; Hogan v. Akin, 181 Ill. 448; Kurtz v. People, 33 Mich. 279. (c) The purpose of the constitutional provision is twofold, namely: first, to prevent the members of the Legislature from being misled and’ deceived; and, second, so the public may be apprised by the title as to the character of the proposed legislation. Cooley’s Const. Lim. p. 204; State ex rel. v. Laughlin, 75 Mo. 368; O’Connor v. Transit Co., 198 Mo. 639; State v. Heege, 135 Mo. 119; Attorney-General v. Weimer, 59 Mich. 580; Attorney-Géneral v. Hollister, 59 Mich. 590; Laws 1907, p. 351, sec. 4. (2) The presumption obtains that the legislative act' is valid, and the burden is east upon the respondent to show beyond doubt that the act is violative of some constitutional provision. State v. Aloe, 152 Mo. 477; State v. Thompson, 144 Mo. 322; State v. Addington, 77 Mo. 117. Where there is doubt as to the contitutionality of an act, the court will resolve the doubt in favor of the validity of the statute in question. State v. Able, 65 Mo. 361; Lumber Co. v. Railroad, 216 Mo. 671; State v. Harney, 168 Mo. 197; State ex rel. v. Pike, 144 Mo. 277; State ex rel. v. Gordon, 261 Mo. 639.

      Barbour & McDavid and Thos. J. Delaney for respondent.
    (1) The title to the act does not embrace the provisions, contained only in the body of the act, prohibiting the acceptance of employment for compensation upon a contingent basis. Constitution, sec. 28, art. 4; State v. Rawlings, 232 Mo. 554; Williams v. Railroad, 233 Mo. 676; State v. Sloan, 258 Mo. 313; State v. Fulks, 207 Mo. 33; St. Louis v. Workman, 213 Mo. 138; State ex rel. v. Heege, 135 Mo. 119; Shively v. Lankford, 174 Mo. 545; State ex rel. v. Gordon, 233 Mo. 387; State v. Distilling Co., 237 Mo. 104; Hardware Co. v. Fisher, 269 Mo. 276. (a.) When a title "descends into details and attempts to point out a particular class of persons to which that law applies, and the particular acts prohibited, then that law cannot be leveled against acts not mentioned in such title. State v. Rawlings, 232 Mo. 554; State v. Sloan, 258 Mo. 313; St. Louis v. Wortman, 213 Mo. 138; State ex rel. v. Heege, 135 Mo. 119. (b) It is not sufficient that acts prohibited in the body of the law may be germane to the subject contained in the title. In addition to being germane, those prohibited acts must also be clearly expressed in such title, otherwise the law will be held invalid as to such acts not • clearly expressed in the title. State v. Rawlings, 232 .Mo. 556; State v. Persinger, 76 Mo. 346. (c) The title to an act may be traced through, the Legislature, and such title, if insufficient, may not be validated by a general title used in a subsequent revision of the Statutes. State ex rel. v. Wiethaup, 231 Mo. 463; State v. Rawlings, 232 Mo. 558; Williams v. Railroad, 233 Mo. 680. (d) The act in question is penal in its nature and must be strictly construed in determining the liability of the defendant. Hardware Co. v. Fisher, 269 Mo. 279. (e) Section 28, Article 4, of the Constitution, declaring that “no bill shall contain more-than one subject, which shall be clearly expressed in its title,” is mandatory. It' is a clear,' absolute and unconditional limitation upon legislative power. Williams v. Railroad, 233 Mo. 676; St. Louis v. Wortman, 213 Mo. 139; State v. Sloan, 258 Mo. 313.
   WHITE, C.

The defendant was indicted by the grand jury of Greene County on the charge of entering into a contract to promote the’passage of a certain bill in the 49th General Assembly for a compensation of ’twenty-five hundred dollars, the payment of which'was contingent upon the final enactment into law of the said measure — contrary to Section 8150, Revised Statutes 1909. The defendant filed a motion to quash the indictment on several grounds, and the motion was sustained. The State appealed from the final judgment thereupon entered.

In the motion to quash the indictment it is urged among other things that the section of the statute upon which the indictment is based is unconstitutional because contrary to the provisions of Section 28 of Article 4 of the said Constitution, which provides that “no bill . . . shall contain more than one subject, which shall be clearly expressed in its titled”

Section 8150 was enacted in 1907. The bill containing it has the following title:

“An Act entitled an act,' requiring legislative counsel and legislative agents retained or employed for compensation by any person, firm, corporation or. association to promote or oppose tbe passage of bills or resolutions, or tbe approval of tbe same, to file with tbe Secretary of State a statement in writing- subscribed by sucb counsel or agent stating tbe name of tbe person, firm, corporation or association by whom or on whose bebalf be is retained or employed, together with a brief description of tbe legislation in reference to which sucb service is to be rendered, requiring itemized statement of expenditures to be filed, prohibiting legislative agents or counsel from going upon tbe floor of tbe Legislature, providing penalties for tbe violation of this act, with an emergency clause.”

Tbe first section of tbe act provides that every person retained or employed for a compensation to promote or oppose tbe passage of any bill in either bouse of tbe Legislature shall register, giving full particulars as to whom' be represents, etc. Then follows in tbe same section this provision: “And no person shall accept any sucb employment or render any sucb service for compensation contingent upon tbe passage or defeat of any legislative measure or measures.”

Penalties for tbe violation of tbe act, fine or imprisonment or both, are provided. It is tbe provision just quoted which the indictment charges tbe defendant with having violated. Tbe respondent claims that it affects a subject not clearly expressed in tbe title of tbe bill.

It is argued by -counsel for tbe State that tbe particular acts prohibited in tbe passage quoted, come within tbe general scope of tbe title; that tbe general subject of tbe act is sufficiently broad to embrace them. They assert that tbe title in a general way indicates tbe subject, and the particular matter affected by tbe provision is a detail of that subject, a specification included in tbe general subject-matter. If that were true the indictment would have to be held good.

Now what is tbe general subject mentioned in tbe title? Certainly “legislative counsel and legislative agents.” If the title of the act simply stated that it was an act respecting legislative counsel and legislative agents, the particular matters mentioned would he within its scope.' The title, however, does not stop there; it is further restrictive. Counsel for the State assert that after the general subject-matter the title in particular relates to “compensation of legislative agents.” In this counsel are incorrect. The subject expressed does not relate to the classification of legislative agents, nor to the regulation of their compenation. It affects such agents only as to certain affirmative requirements, and certain restrictions upon their activities; they are required to file with the Secretary of State “a statement in writing” showing whom they represent, and they are forbidden “to go.upon the floor.” The subject embraces, not the compensation of agents, but the duties of agents who are compensated; compensation is mentioned only in the classification of the person to whom the requirements apply; the persons upon whom are imposed the duties indicated in the title. There is nothing indicating that any legislative agent, compensated or otherwise, would be prohibited from opposing or promoting measures. These affirmative requirements and the prohibitive injunction apply as well to agents who work for a contingent fee as those who were compensated in any other way. The title, in fact, indicates that all such agents may lawfully pursue that employment, provided they comply with the requirement to make their business a public instead of a secret one.

The reasons for that provision of the Constitution and for a strict adherence to it, have been so often and so fully stated by this court in recent decisions that it is only necessary to refer to some of them as illustrative of the point under consideration.

State v. Great Western Coffee & Tea Co., 171 Mo. 634, is where the court considered the constitutionality of an act with the following title:

“An Act to prevent the use of unhealthy chemicals or substances in the preparation or manufacture- of any article used or to- be used in the preparation of food.”

The body of the act following that title made it unlawful for any person to sell any such article for the purpose of being used in the preparation of food. It was held that the provision of the act was not within the subject indicated by the title. It was not the selling of such compounds, but the using of them in the preparation of food that was the subject expressed in the title.

In the case of State v. Sloan, 258 Mo. 305, the title of the act considered related to “herding cattle by nonresidents,” but the act made it unlawful for any person to drive cattle from the range in one county on to the range in another county, in the State. It applied to residents as well as non-residents, and it was held that the provision in the body of the act was broader than the subject limited in the title.'

The case of St. Louis v. Wortman, 213 Mo. 131, concerned the construction of an act creating the office of State Dairy Commissioner, defining his duties. The body of the act made it a misdemeanor for any purpose to sell milk or cream containing foreign substances injurious to health. It was held to be without the subject expressed in the title.

The case of Williams v. Railroad, 233 Mo. 666, concerned an act entitled. “An Act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employees.” [L. c. 676.] The body of the act required that “platforms, passage ways, . . . in and around railroad yards . . . and passenger depots, shall be located, placed and arranged so as to insure, as far as possible, the safety of employees from injury or accident.” It was held that the provision mentioned did not come within the purview of the title.

In the case of Hardware Co. v. Fisher, 269 Mo. 271, the court had under consideration an act whose title related to the registration, supervision and reports of certain corporations. The body of the act provided penalties to he assessed against the officers of such corporations for violation of the act. It was held that the provision was without the scope of the title.

The case of State v. Fulks, 207 Mo. 26, the court had under consideration the Local Option Law. It was entitled, “An Act to provide for preventing the evils of intemperance by local option” in . certain counties and cities by submitting the question of “prohibiting the sale ’ ’ of intoxicating liquors. The body of the act prohibited the giving away of intoxicating liquors. It was held not included within the subject expressed in the title. In that case the body of the act didn’t attempt to include persons different from those indicated in the act, but it simply prohibited different acts by any persons from those expressed in the title.

The case of State v. Rawlings, 232 Mo. 544, is instructive. In that case Rawlings was prosecuted for violation of Section 7226, Revised Statutes 1909, enacted in 1907. The title of the act prohibited persons running order houses from delivering intoxicating liquors to persons having no license, and to prohibit the storing for, or delivering to, another person intoxicating liquors in Local Option counties. Section 1 of the act made it unlawful for any person, not a dramshop-keeper, to order for, store, or deliver as agent of another person (not limited to Local Option counties). The court said, l. c. 557, if the title to the act had simply read, “An Act concerning intoxicating liquors,” the section complained of would have been within the subject. But instead of that general statement of the subject: “The title descends into details and attempts to point out a particular class of persons to which that law is intended to apply and the particular acts prohibited, and therefore cannot support a law which is levelled against a wholly different class of persons and prohibits acts not mentioned in such title.”

In the law under consideration the title of the act indicates that certain acts shall be required and certain acts prohibited. That part of the act with which we are concerned prohibits totally different acts and acts which the title indicates are perfectly lawful. It is not the contracting for compensation in any particular way that is expressed in the title, but the prescribing of certain duties to be performed by the agent who is compensated.

Other objections to the indictment need not be considered. The motion to quash was properly sustained.

The judgment of the criminal court of Greene County is affirmed.

Roy, C., absent.

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

All of the judges concur.


author: FARIS, J.

text:
    THE STATE v. CHARLIE PFEIFFER, Alias CHARLES N. PETERS, Appellant.
    Division One,
    March 4, 1919.
    1. INFORMATION: Misprision. So obvious a clercial misprison as misspelling a word, such as “threusing” for “thrusting,” even if the word he absolutely necessary to a sufficient information, will not vitiate the information.
    2. EVIDENCE: Conspiracy in Sodomy and Rape: Acts and Admissions of Co-conspirators. A conspiracy to commit the criminal act of rape and sodomy being shown, the acts done or admissions made by any of the co-conspirators while the common enterprise was' proceeding are admissible in evidence against any one of them. Evidence of prior rapes and sodomy committed by three other men on the same woman and the language they used are admissible against defendant who by his own words connects himself-with them as a co-conspirator in the common enterprise.
    3. -: -: Credibility. It is not the province of an appellate court to pass upon the credibility of the prosecutrix or the weight of her testimony tending to prove that defendant prior to assaulting her used • certain words which connected him with a prior assault upon her by three others and made him a co-con-, spirator with them in the common enterprise; it is enough for said court that the evidence was substantial and was believed by the jury. And in this case it is persuasive that three different juries have believed her testimony.
    4. INSTRUCTION: Comment on Evidence: In Appellant’s Favor. A comment on the evidence in defendant’s favor, in the instruction given for the State, for instance, if it softens and limits the probative effect the jury would have been warranted in giving to the facts detailed, is not error of which he can complain.
    5. EVIDENCE: Sodomy: Consent. Consent is not an element of sodomy. The sodomitic act being conceded, it is wholly immaterial - to a conviction whether prosecutrix did or did not consent.
    6. -: Consent: Sodomy Per Os: Possibility: Muscles of Jaw: Pear. The muscles of the jaw have no necessary connection with the crime of sodomy through the mouth as defined in the statute. It was not error to refuse to permit a physician, in the trial of defendant charged with sodomy per os, to testify whether or not it was possible for a man to «insert his private organ in ■ the mouth of an eighteen-year-old girl, weighing 150 pounds, in full . control of the muscles of her jaws and mouth, without her consent. In order to make the question competent it is not only necessary to omit all reference to consent, but other facts having reference to the situation of prosecutrix and the fear which she testifies she suffered should he included.
    7. INSTRUCTION: Sodomy: Accomplice. If there is no evidence that prosecutrix was an accomplice in defendant’s crime of sodomy, no cautionary instruction on the theory that she was an accomplice should be given. The court is not required to instruct upon mere abstract questions of law.
    Appeal from St. Louis City Circuit Court. — Son. Leo• 8. ' Rassieur, Judge.
    Affirmed.

      Courad Paeben and Chester H. Krum for appellant.
    (1) Evidence of previous assaults to which, the accused was not a party was erroneously admitted. The evidence seems to have been admitted on an assumed continuity of performance which the facts did not justify, (a) The town-meeting nature of the antecedent assaults, whose consequence was visited upon the appellant by the admission, was in itself sufficient for the exclusion of the evidence. In other words, evidence should not be admitted which a court could not advise a jury to accept because of its incredibility, (b) The appellant having been charged with a completed offense, in which he, at least, was alleged to have participated, there was no room for the admission of evidence of transactions to which he was not a party and which occurred in his absence and without his knowledge. (2) A more prejudicial error could not have been committed than the admission of this evidence. State v. Hyde, 234 Mo. 200;. State v. Horton, 247 Mo. 666; State v. Teeter, 239 Mo. 485. (3) It was reversible error to exclude the evidence of Doctor A. C. Vickery, and as a corollary to the question involved in this testimony it was reversible enjor to refuse the instructions asked by appellant on. the point that the prosecutrix might have been an accomplice. The questions and the instruction were asked upon the obvious theory that if the woman assented to the act she was an accomplice in the commission of the crime. The offense is one which presupposes participation by at least two persons.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) Evidence as to the assaults committed in Benton Park and at Cherokee Brewery by Long, Gaussman and Katz was properly admitted, (a) as the crime committed by appellant was one part of this continuous transaction. This evidence was also admissible upon the theory (b) that appellant joined the parties above named before the conspiracy was ’ ended, and by so doing, he adopted their acts and declarations. State v. Katz, 266 Mo.- 503; State v. Pfeifer, 267 Mo. 28; United States v. Logan, 45 Fed. 889; State v. Crab, 121 Mo. 563; Com. v. Rogers, 181 Mass. 193; Owens v. State, 16 Lea (Tenn.), 5; Stevens v. State, 42 Tex. Crim. 172; Baker v. State, 81 Wis. 1. c. 420; Blain v. State, 33 Tex. Crim. 1. e. 250; State v. Fields, 234 Mo. 615; State v. Gatlin, 170 Mo. 354; State v. Melrose, 98 Mo. 590; State v. McGraw, 87 Mo. 161; State v. Duncan, 64 Mo. 262; State v. Minton, 116 Mo. 605; State v. Swain, 68 Mo. 605; State v. May, 142 Mo. 135; State v. Faulkner, 175 Mo. 546; State v. Walker, 98 Mo. 95; Hart v. Hicks, 129 Mo. 105. (2) The evidence of Dr. A. C. Yickery, was properly excluded, and the instruction offered by appellant, as to the prosecu-trix being an accomplice, was properly refused by the court. State v. Katz, 266 Mo. 504; State v. Campbell, 210 Mo. 229; State v. Smith, 250 Mo. 372; State v. Jenkins, 178 S. W. 93. (a) Consent is no defense to the crime charged. 36 Cyc. 504; 25 Am.'& Eng. Ency. Law (2 Ed.), 1146; State v. Katz, 266 Mo. 503. (b) Hypothetical question must be based on evidence. Rogers, Expert Testimony (2 Ed.), p. 66 and sec. 13, p. 33; Russ v. Railway, 112 Mo. 48; Root v. Railway, 195 Mo. 377; Meily v. Railway, 215 Mo. 593; State v. Brown, 181 Mo. 215'.
   FARIS, J.

Defendant was convicted of sodomy perpetrated, as it is averred, upon one Mary Emmenegger, and his punishment fixed by the jury at imprisonment in the penitentiary for a term of three years. This is the second appeal in, this case (See State v. Pfeifer, 267 Mo. 23), and the third time the bestial facts in evidence have been before us. (See State v. Katz, 266 Mo. 498). No occasion therefore is seen to again recite the facts shown upon the trial, since so much of the facts as we omit here, but which are necessary to an understanding of all the points raised, will be found set forth in the case of State v. Katz, supra, and State v. Pfeifer, supra, wherein the student of the law or the pruriently curious may read them at length and ad nauseam.

I. It is first insisted that the information upon which defendant was convicted is fatally defective. We have already passed upon this identical objection in the case of State v. Katz, snpra, wherein an information similar all substantial respects was held sufficient. There is, however, in the case at bar a patent typographical error whereby the word “thrusting” is spelled “threusing” in the information, but even if the use of this word were absolutely necessary to the sufficiency of the information instead of being surplusage (State v. Meyers, 99 Mo. 107) we would hesitate to stultify ourselves by holding that so obvious a clerical misprision would vitiate this information. [State v. Miller, 156 Mo. l. c. 84; State v. Estis, 70 Mo. l. c. 437; State v. Massey, 274 Mo. 578, 204 S. W. 541.] We disallow this contention.

II. Defendant’s learned counsel also contend with much vigor that the trial court erred in permitting the State to show acts of rape and sodomy which were perpetrated on prosecutrix' by Katz and two 0^erg pefore defendant is alleged to have appeared upon the scene, or committed the offense of which he- was convicted. Counsel argue with much force and ability that under no possible theory could there have been a criminal conspiracy (in which defendant had part) to do the acts proven to have been done by Katz and his associates in crime. In other words, while grudgingly conceding the rule that once a conspiracy to do a criminal act is shown each co-conspirator becomes liable to have proved against him upon his trial every act and admission done or made by any other co-conspirator which are res gestae, that is to say, which are done or said while the common enterprise is proceeding, counsel yet insist that rape and sodomy are in their nature such crimes as preclude any possible application of this general rule to them. So, it is urged there was error here in admitting against the defendant, evidence of the prior rapes and sodomies, language and. acts of Katz and Ms criminal associates. The question is a close and difficult one, but after a laborious and careful examination of the ruled cases and the textbooks, we are constrained to overrule it.

Let us 'briefly look at the facts: Katz and his associates took the prosecutrix from the young man in whose company she was at about eleven o’clock at night. In order to secure possession of her person they told her that they were detectives and that they were arresting her for some undisclosed offense. Thereafter they kept her in their custody continuously, each in turn committing acts of rape and sodomy upon her person ad libitum, till 3:30 o’clock in the morning, at which time the defendant came up to where the three were holding her in custody. The first words defendant said to prosecutrix, and so far as the record shows, the first words spoken by defendant to any one of this degraded gang were, “Well, girlie the same thing has to be done what was done to you before, what the other fellows done, I am head of these detectives, I am boss over them all.” Immediately thereupon, continues the prosecutrix, “he threw me down and Katz and Graussman and Long and him carried me back of the old Cherokee Brewery,” where and whereupon the defendant committed the act for which he is here being prosecuted.

The admissibility of evidence of the prior crimes of Katz and his associates does not depend, as learned counsel for defendant somewhat flippantly argue, upon ratification, but upon the theory fairly to be deduced by the jury from the language of defendant himself, that there was a conspiracy between the defendant, and Katz and his miserable gang to get possession of prosecutrix and hold her till defendant could appear and likewise have his will of her. Under the testimony of prosecutrix as to the initial statements of defendant, which seemingly corroborated the lié by which Katz and his gang got possession of her person, the latter were aiders and abettors and therefore accomplices of defendant Hjfüthe sodomy he perpetrated on her. The jury had the right to consider and to find, if they saw fit, whether the .language of defendant did not fairly mean that in arresting prosecutrix and retaining her in custody till defendant came, they were acting under his orders. If they were, defendant was as to the acts of Katz and his associates, an accomplice and a co-conspirator with them, and whatever was done or said by them after the caption of prosecutrix and pending her detention could be shown against defendant upon his trial.

The situation presented is we think wholly different from that which is so ably urged upon us by the insistence of defendant’s counsel. If A and B mutually conspire to rob all of the houses in a given block, A taking one-half and B the other moiety, and they proceed -singly and alone thereafter, there is not lacking authority that B’s acts in robbing a given house may not be shown against A when the latter is on trial for another but wholly different robbery in the category. [4 Chamberlayne on Mod. Law of Ev. 3244.] Or, if F be on trial for perjury, for that he had falsely, etc., sworn that he did not know of the existence or purpose of a certain fund held in escrow for the purpose of a specific bribery, other acts of an alleged combine, or of co-conspirators, tending to prove separate and distinct briberies by other persons for other purposes cannot be shown against him. [State v. Faulkner, 175 Mo. 546.] Or, if .(and we take this illustration bodily from defendant’s brief) “A is brutally assaulted on two occasions by B, C and D; E is not present, but some hours afterwards, together with B, C and D, assaults A and is prosecuted therefor,” A will not be permitted to give the details of the previous assaults and of offenses. to which E was not a party and of which he had no knowledge. But, it is defendant’s misfortune that neither of the above illustrative cases at all presents the 'situation confronting us. If, in the first case, B while robbing house number one had kept a lookout for A while the latter was robbing house number tvoV B would thereby become an accomplice in the later robbery and Ms concurrent, acts constituting tbe res gestae could., tbe conspiracy being proven, be shown against A. Or, if in tbe supposed case of defendant’s brief, A bad been captured by B, C and D, and held by them till E could appear and assault him, and if E, appearing bad stated in effect that tbe object of A’s capture and detention was to enable E to assault him, obviously tbe case would be different. [State v. Fields, 234 Mo. 615; State v. Faulkner, supra; State v. Gatlin, 170 Mo. 354; Hart v. Hicks, 129 Mo. 105; State v. May, 142 Mo. 135; State v. Hyde, 234 Mo. 224; State v. Weisman, 238 Mo. 555; State v. Minton, 116 Mo. 605; State v. Melrose, 98 Mo. 594; State v. Walker, 98 Mo. 95; State v. McGraw, 87 Mo. 161; State v. Greenwade, 78 Mo. 268; State v. Crab, 121 Mo. 554; Stevens v. State, 42 Tex. Crim. 172; Blain v. State, 33 Tex. Crim. 250.] It is obvious that defendant’s counsel, in their illustration, omit a salient and determinative fact, which tbe record before us discloses. In tbe instant case tbe language of tbe defendant when be came up to prosecutrix presently in tbe clutches of Katz and bis bestial bunch could well have been construed as tending to prove that prosecutrix bad been arrested and was being held for defendant’s sexual delectation. If this was a fact (and it was for the jury to so find if they saw fit), tbe acts and admissions of these persons were admissible against defendant on tbe theory of a conpiracy. We think this contention ought to be disallowed. [State v. Fields, 234 Mo. 615, and cases cited, supra.]

While it is urged that prosecutrix ought not to be believed, and that her statement as to this conversation, as well as tbe whole of her testimony, is incredible and therefore false, this question is not one to be resolved by us. It was peculiarly tbe province of the jury to pass upon prosecutrix’ credibility, and it is persuasive that three different juries have seen fit to believe her testimony. [State v. Katz, 266 Mo. 498; State v. Pfeifer, 267 Mo. 23.] In any event it is not among onr privileges as an appellate court to pass upon the weight of it. Upon the question of the sufficiency of the evidence upon this point and others germane we said in the Katz case supra, this:

“It is finally insisted that the evidence upon which this' conviction rests is ‘so incredible, improbable and contradictory, and so opposed'to all human experience’ that the verdict should not be permitted to stand. As said by this court in State v. Sechrist, 226 Mo. l. c. 582, ‘That the transcript presents a state of degradation that challenges 'credulity must be conceded, and yet our statutes on incest and rape attest that these crimes are within the experience of our courts and Legislatures.’ If the facts testified to by the prosecu-trix are true, and in many respects she is corroborated by the testimony of disinterested persons, it cannot be said that the evidence is insufficient. The lawful triers of this issue have certified to us the truthfulness of her statements, and their verdict assessing punishment at only two and one-half years’ imprisonment, instead of showing passion and prejudice, evinces that mercy has tempered justice.” [State v. Katz, 266 Mo. l. c. 504.]

III. Which brings us to the consideration of error urged, for that the court instructed the jury thus:

“You are further instructed that the testimony admitted at the trial with reference to what transpired at Benton Park and at the Old Cherokee Brewery,' between the prosecuting witness and the persons referred to m the evidence as Long, Katz and Gaussman, before defendant’s arrival at said last named place, if you believe and find from the evidence he did come there, should not be considered by you excent insofar as such testimony, together with all of the other evidence in the case, tends to show the guilt or innocence of the defendant of the crime charged in the information and for which he is on trial. And even though you may find and believe that such acts referred to in the testimony as having taken place at Benton Park and at the Old Cherokee Brewery between the said Katz, Long and G-aussman and- the prosecuting witness actually did take place, yet if from the evidence and circumstances in this case you have a reasonable doubt as to whether or not the defendant actually committed the crime charged against him and for which he is now on trial, you must return a verdict of not guilty.”

In the light of the view which we have felt impelled to take of the admissibility, as against defendant, of the prior acts of Katz and his associates, we do not think there was any error of which defendant may complain in the giving of this instruction. Indeed, if this testimony was admissible, as under the peculiar facts here we rule it was, the above instruction was more favorable to defendant than otherwise. [State v. Bayne, 88 Mo. l. c. 611; State v. Weisman, 238 Mo. l. c. 556.] If it was a comment upon the evidence, as counsel for defendant insist, that comment ran m defendant’s favor rather than against him. For to an extent it limited and softened the probative weight which otherwise the triers of fact might have felt warranted in attaching to it. In the case of State v. Weisman, supra, this court refused to reverse for that an instruction was given similar in substance to the one here complained of. We think this contention is likewise untenable.

Evidence. IV. In the course of the trial Dr. Vickery, a physician, connected at the time of the alleged offense with the medical staff of the City Dispensary, was called by the State to testifv as to the physical condition of prosecutrix immediately subsequent to the assault. In cross-examination the defendant asked him this question:

“Doctor, assume that a female 18 years of age, weighing about 150 pounds, in good health, with full control of the muscles of her jaws and month, and assuming further that her articulation was good, and that she was possessed of all her teeth, in your opinion, Doctor, if, under those assumed facts, a female was to close her mouth and exercise. those muscles, those masseter muscles, would it be possible for a male to insert his organ in her mouth without her consent.”

The learned trial court sustained the State’s objection to the above question and defendant contends that this ruling was error. We are of the view that this contention is not tenable. Consent is no element of sodomy [36 Cyc. 504; State v. Katz, 266 Mo. 503]; for conceding a sodomitic act it is wholly immaterial to a conviction whether the pathic does or does not consent. Neither, as is fairly obvious, do the masseter, or great muscles of the jaw [Webster’s Dict.] have anything to do necessarily with the crime of sodomy perpetrated per os pursuant to statutory amendment. The proposed hypothetical question was not then, for this and other 'obvious reasons, based upon the facts in evidence, as is by law required. [State v. Brown, 181 Mo. l. c. 215.] It should at least, among other facts not necessary to mention, have included some apt reference to the situation of the prosecutrix and the fear from which, she says, she was suffering while in the clutches of these libidinous lechers.

This point is germane to that bottomed upon the refusal of the court to give a cautionary instruction on the theory that prosecutrix was an accomplice. There was not a scintilla of proof-in the case that prosecutrix was an accomplice. Had the court not refused, upon grounds we think were sufficient, to permit Dr. Vickery to answer the. alleged hypothetical question, there might have been some basis, for an instruction of the sort requested. But the latter point falls out of the case with the one next preceding. The trial court is not required to instruct upon mere abstract questions of law, upon which there is no evidence in the case. [State v. Katz, 266 Mo. l. c. 504.]

Defendant’s assanlt npon the whole case, bottomed upon what his learned counsel conceive to be the manifold and manifest contradictions, incongruities and in-credibilities of the testimony of prosecutrix in the light of the situation,, has been already answered in part. While prosecutrix’ story staggers credulity, and while her testimony and her actions in some respects are well-nigh inexplicable upon any theory of human experience, three juries, we repeat, have seen fit to believe her. Her credibility was for the jury alone, and while the contents of this record may incline us to the view that in lecherous and libidinous indecency there is something new under the sun, and that the conclusion of the Psalmist to the contrary was either premature or exaggerated, we must yet leave to the jury the things which are the jury’s and decline to interfere.

The defendant was not only well, but most ably defended. We have never before seen a record wherein every possible point looking to the safeguarding of defendant’s liberty was more ably urged, contested and preserved. Finding no error meet for reversal, we are constrained to affirm it. Let it be so ordered.

All concur.


author: WILLIAMS, P. J.

text:
    THE STATE ex rel. SEEBERT G. JONES, Circuit Attorney, v. HOWE SCALE COMPANY OF ILLINOIS, Appellant.
    Division Two,
    March 4, 1919.
    1. CONSTITUTIONAL QUESTION: Motion to Quash Execution: Appellate Jurisdiction. The constitutionality of a statute ira which a judgment in a civil case is based, cannot be raised for the first time by a motion to quash an execution issued upon said judgment. Consequently the Supreme Court does not have jurisdiction of an appeal from an order of court overruling a motion to quash an execution which assails the costitutionality of a statute in pursuance to which a judgment for one thousand dollars was rendered against appellant.

      2. -: -: In Criminal Casé. Cases holding that the constitutionality of a criminal statute under which a conviction has been had may be raised for the first time after judgment under the Habeas Corpus Act have no bearing on the question of a defendant’s right in a civil ease to raise, by a motion to quash the execution, the constitutionality of the statute upon which the judgment was based.
    3.'-: -: Must Be Timely Baised: Penalty. Unless the constitutional question is timely lodged in a civil case the Supreme Court does not have jurisdiction of an appeal from a monetary judgment of one thousand dollars, whether it be assessed as a penalty for the violation of a statute or otherwise. Consequently if it is apparent that defendant had oppurtunity to attack the validity of the statute which formed the basis of the action and did not avail himself of it at any time during the trial, he cannot, by a motion to quash the execution, so raise it as to give the Supreme Court jurisdiction of an appeal from an order overruling the motion.
    Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillan, Judge.
    TRANSFERRED TO St. LOUIS COURT OF APPEALS.

      B. A. Wood and Anderson, Gilbert & Hayden for appellant.
    (1) Where a statute is unconstitutional, an execution on a fine assessed under it -will be quashed, although the judgment had previously been affirmed on appeal. State v. Finley, 187 Mo. App.' 72; Same Case, 259 Mo. 414; Same Case, 162 Mo. App. 134; Same Case,' 234 Mo. 603; Exp. Smith, 135 Mo. 229. Jurisdiction comes from Constitution and laws and not from mistaken interpretation, and a judgment entered under an unconstitutional statute is void. Finley v. United Railways Co., 238 Mo. 19. (2) The judgment is void because there is no law imposing a fine for violation of Section 1025, as approved. March 24, 1903. Old Section 1025 was repealed and this repeal carried with it the penalty section following. Where a section is repealed, for whose violation a penalty is provided, the penalty does not attach to a new section covering the same matter. Com. v. Kelleher, 12 Allen (Mass.) 481; State v. .Gaunt, 13 Ore. 118; State v. Ashley, Dudley (Ga.), 188; Ned v. Dillon, 3 Mo.'59. (3) If the execution he not quashed, defendant will be deprived of its property without due process of law in violation of Amendment 14 of the Constitution of the United States. There i.s no law in force providing a fine for the act passed in 1903, and hence a judgment so imposing is void. Where a judgment shows on its face no judgment could lawfully he entered, no execution can be entered thereunder. Holzhorn v. Meer, 59 Mo. 434. (4) There is no law in this State which provides that a fine draw interest. The execution directs the sheriff to collect interest, and unless quashed, will deprive defendant of its property in violation of Amendment 14 to the United States Constitution.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for respondent.
    (1) Although no motion has been made by respondent, this court will, of its own motion, inquire whether it has jurisdiction. Electric Service Co. v. Mfg. Co., 125 Mo. 140; State v. Finley, 259 Mo. 421. It is' hardly necessary to cite authorities to the proposition that, “It must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest possible moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.” Barber Asphalt Co. v. Ridge, 169 Mo. 387. See also Lohmeyer v. Cordage Co., 214 Mo. 691; State v. Gamma, 215 Mo. 104; Hartzler v. Railroad, 218 Mo. 564; Dudley v.. Railroad, 238 Mo. 187; Ross v. Grand Pants- Co., 241 Mo. 299; Howell v. Sherwood, 242 Mo. 540. And it would seem that if the constitutional question must be raised as soon as it properly can be and in the trial which results in the judgment, then it cannot be raised in a supplementary proceeding which is taken for the purpose of realizing on said-judgment. State v. Finley,'259 Mo. 414. That no constitutional question was raised by the record of the trial court has been determined by this court in this identical case when it was here on a former occasion and was then certified to the St. Louis Court of Appeals. State ex rel. v. Howe Scale Co., 253 Mo. 63. (2) Appellant also says that the effect of the Act of March 24, 1903, repealing Sec. 1025, R. S. 1899, and at the same time enacting Section 1025 in lieu thereof, was to also repeal Section 1026 which, among other things, imposed the penalty; and that therefore the “due process of law” provision of the constitution is violated if this judgment is enforced. It is only necessary to say that this question was raised for the first time by appellant’s motion to quash the execution.
   WILLIAMS, P. J.

This is an appeal from an order of the Circuit Court of the City of St. Louis, overruling defendant’s motion to quash an execution issued out of said court to collect a judgment which had theretofore been rendered against defendant in the sum of $1000.

The original suit which resulted in the above mentioned judgment. was instituted by the State of Missouri at the relation of the Circuit Attorney of the City of St. Louis and sought to recover from the defendant a penalty in the sum of $1000 under Section 3040, Revised Statutes 1909, for a violation by said foreign corporation of the provision of Section 3039, Revised Statutes 190Q.

Defendant filed a demurrer to the petition, which was overruled, and upon defendant’s refusal to plead further judgment was rendered against it for. the above sum.

On the theory that a constitutional question was involved an appeal was granted defendant to this court. This court held that a constitutional question was not involved and certified the case to the St. Louis Court of Appeals. [See 253 Mo. 63.] Thereafter the Court of Appeals affirmed the judgment. [See 182 Mo. App. 658.]

After the mandate from the Court of Appeals reached the circuit co/urt an execution was issued upon the judgment. Thereafter defendant filed a motion to quash the execution, which motion is as follows:

“Now comes defendant, The Howe Scale Company of Illinois, by its attorney, and respectfully shows:
“That on July 10, 1914, there was issued out of the circuit court, City of St. Louis, in cause No. 59475A, execution No. 129 to the October Term, 1914, commanding the sheriff of said city to cause to be made of the goods, chattels and property of. defendants a certain judgment rendered in said cause on February 7, 1910, for $1000 and costs, and that the said sheriff threatens to levy on the property of defendant;
‘ ‘ That said execution should be set aside, stayed and quashed for the following reasons, to-wit:
“1. Because the judgment under which said execution is issued is void ;
“2. Because the court had no jurisdiction to assess a fine or to. enter said judgment;
“3. Because Section 1025, Revised Statutes 1899, enacted in 1903, under which said judgment purports to be entered, does not provide that the penalty defined in Section 1026', Revised Statutes 1899, shall be applicable ;
“4. Because there is no law authorizing the imposition of a fine for a failure to observe the provisions of Section 1025, as enacted in 1903;
“5. Because Section 1026, Revised Statutes 1899, is unconstitutional and void, because in violation of Section 28 of Article IY of the Constitution of Missouri, as the act in which said section' was passed contains more than one subject, expresses in its title the subject of each other section, and does not express in its title the subject of said section known as Section 1026;
“6. Because the said execution and. judgment violate Section 25 of Article IY of the Constitution of Missouri;
“7. Because said execution and judgment violate Section 34 of Article IY of the Constitution of Missouri ;
“8. Because said judgment and execution violate Section 4 of the Act of Admission to the Union;
‘ ‘ 9. Because said judgment and execution violate the Constitution of the United States and Amendment XIY thereof, and if said execution is not quashed defendant will he deprived of its property without due process of law;
“10. Because said judgment and execution violate the Constitution of the United States and Amendment XIY thereof and deny to defendant the equal protection of the laws;
“11. Because said judgment does not follow the petition in said cause, or the prayer thereof, and is not supported by the allegations of said petition;
“12. Because there is no finding of fact upon which any judgment can be entered;
“13. Because there is no inquiry, but judgment was entered on motion of relator, and the court had no jurisdiction to enter a final judgment on motion of relator;
“14. Because said judgment is so vague and uncertain that it cannot be determined what is decided or adjudged therein;
“15. Because said execution recites that State of Missouri at the relation of Seebert Gr. Jones, Circuit Attorney of the City of St. Louis, is plaintiff;' that said Seebert Gr. Jones is not now and has not been since the first Monday in January, 1913, Circuit Attorney of the City of St. Louis; that Hon. Thomas B. Harvey is now and has béen since said date Circuit Attorney of said city:
“16. Because said execution is void;
“17. Because said execution is so vague and uncertain that it cannot be determined in whose favor it is issued;
“18. Because said execution does not follow the judgment, under which it purports to he issued;
“19. Because said execution violates the Constitution of the State of .Missouri and Section 8 of Article XI thereof and directs the said sheriff to cause said judgment to he made for other than the School Fund of the City of St. Louis; the City of St. Louis is a separate political subdivision and treated as a county; the school fund of said city is the ' school fund of a county within the meaning of said section of the Con-sitution; the Board of Education of the City of St. Louis is the trustee and custodian of said school fund and is the only person entitled to receive any moneys belonging to said school fund; the judgment in said cause assessed a fine which by said section belongs to said school fund; no one is entitled to receive any fine except said board of education.
“Wherefore defendant moves the court to set aside, stay, quash and for naught hold said execution and that the court grant defendant such other and further relief as it may be entitled to.”

The motion to quash the execution was overruled and defendant was granted an appeal to this court.

The first question for determination is whether the constitutionality of a statute, upon which a judgment in a case is based, can be raised for the first time by a motion to quash the execution.

Appellant contends that such may be done and in support thereof cites cases of this court holding that a question concerning the constitutionality of a criminal statute, upon which a conviction has been had, may be raised for the first time after judgment in a proceeding under the Habeas Corpus Act.

We are not now called upon to discuss or determine. the soundness of the line of cases to which reference is above made, because tbe present proceeding was clearly a civil action. [State ex rel. Jones v. Scale Company, 253 Mo. 63, l. c. 67; Same Case, 182 Mo. App. 658.]

Tbe rule now firmly fixed in tbis State concerning tbe time for raising constitutional questions in civil cases was stated by Lamm, J., in the case of Lohmeyer v. Cordage Co., 214 Mo. 685, l. c. 689-90, as follows:

‘ ‘ But it must be taken as settled' law that in so grave a matter as a constitutional question it should be lodged in tbe case at tbe earliest moment that good pleading and orderly procedure will admit under tbe circumstances of tbe given case, otherwise it will be waived/ ’ citing cases.

To tbe same effect are tbe following cases: Ross v. Grand Pants Co., 241 Mo. 296, l. c. 299, and tbe many cases therein cited; Dubowsky v. Binggeli, 258 Mo. 197, l. c. 202.

In tbe case of Lobmeyer v. Cordage Co., supra, tbe statute, tbe constitutionality of which was sought to be assailed untimely, formed tbe very basis of tbe action, as is likewise true of tbe statute in tbe case at bar, and the case is for that reason very much in point.

It is also well settled by tbe foregoing cases that unless tbe constitutional question is timely lodged tbis court does not acquire jurisdiction of tbe appeal.

In tbe case at bar it is very apparent that tbe defendant first bad tbe opportunity of raising tbe, numerous constitutional questions, attacking tbe validity of the statute which forms tbe basis of tbe action, when tbe action upon tbe merits was pending and before judgment upon tbe merits.

. Applying tbe above rule it follows that tbe failure of appellant to thus timely raise tbe constitutional questions constituted a waiver of tbe same and that said questions are therefore not involved upon tbis appeal.

Since tbe grounds, other than tbe alleged constitutional ones, of tbe motion to quash, also do not present questions 'which will confer jurisdiction upon this court, it follows that we are without jurisdiction over the cause and that the same must be transferred to the St. Louis Court of Appeals.

It is so ordered.

All concur, Walker, Jnot sitting.