author: RAILEY, C. PER CURIAM:

text:
    JAMES BORCHERS, Appellant, v. JOSEPH BREWER.
    Division One,
    June 1, 1917.
    1. PUBLIC ROAD: Dedication by Estoppel. A common law dedication of land for use as a public road is one that operates by way of estoppel in pais, instead of by dedication by grant. It is a dedication that arises, by operation of law, from the acts of the owner. It need not be evidenced by writing, or by any form of words. If the owner’s acts are such as indicate an unequivocal intention to appropriate the land to public use, then, upon acceptance by the public, the dedication becomes complete.
    .2. -: -: Pacts Which Establish Public Road. Where the road, which was not established by the county court, was, when opened and fenced in 1900, intended by the owners of the land to be a public highway; was afterwards worked by. citizens and road overseers on the theory that it was a public road; was used by the public and considered a public highway down to 1911, it was a public road, and the dedicator cannot lawfully interfere with its use by the public, or recover the ground by suit.
    3. -: -: Consent of Other Dedicators. Where a road entirely through a section was opened for public use in pursuance to an agreement between plaintiff, who owned the north half, and the owner of the south half, the plaintiff cannot interfere with the use by the public of the part bordering his land, without the consent of the owner of the said south half or his suc•cessors in title.
    Appeal from Nodaway Circuit Court. — How. William C. Ellison, Judge.
    Affirmed and remanded.

      Hine & Gross and Cook, Cummins $ Daivson for appellant.
    (1) To constitute a valid dedication of land to the public there must be a clear intention on the part of the owner to dedicate, for a dedication of land to public use depends upon the intention of the owner. Brinck v. Collier, 56 Mo. 160; Pierce v. Chamberlain, 82 Mo. 618. There must be a clear intention to dedicate. McGrath v. Nevada, 188 Mo. 107; State v. Hood, 143 Mo. App. 316; Vasson v. Dantel, 116 Mo. 384; Landis v. Hamilton, 77 Mo. 554; State v. Young, 27 Mo. 259; Morgan v. Durfee, 69 Mo. 463; State v. Wells, 70 Mo. 635; Price v. Breekenridge, 92 Mo., 378. (2) The fact that plaintiff: permitted the public to use the road does not constitute a dedication. Railway Co. v. Woodlard, 60 Mo. App, 631; Coberly v. Butler, 63 Mo. App. 556; State v. Guernsey, 9 Mo. App. 314; State v. Culver, 65 Mo. 607; Stacy v. Miller, 14 Mo. 478; State v. Young, 27 Mo. 260; 13 Cyc. 483.

      Breit & Roberts and Shinabargar, Blagg & Ellison for respondent.
    (1) It is admitted that to constitute a valid dedication of land to the public, there must be an intention on the part of the owner to dedicate. Elliott on Roads and Streets (3 Ed.), p. 160, par. 138. But the intent need not be actual, but may be only constructive, for the theory of common law dedications is referable to the equitable doctrine of estoppel. A. land-owner, even in the absence of an actual intent to dedicate, will not be permitted to deny that he has dedicated land to public use when he has induced the public, relying upon the apparent significance of his visible acts and conduct, to assume that the land has been dedicated to public use, to adjust their affairs to that supposed condition, and to act thereon to their prejudice. Elliott on Roads and Streets (3-Ed.), p. 160; Columbus v. Dakn,' 36 Ind. 330; Morgan v. Railroad, 96 U. S. 716; Indianapolis v. Kingsbury, 101 Ind. 200; Miller v.' Indianapolis, 123 Ind. 196; Gillespie v. Duling, 83 N. E. (Ind.) 730; Railway v. Christie, 100 N. E. 301; Fassion v. Landrey, 123 Ind. 136; Marion v. Skillman, 127 Ind. 130. (2) It has been said that dedications have been established in every conceivable way by which the intention of the party could be manifested. Baker v. Yanderburg, 99 Mo. 391; Elliott on Roads and Streets (3 Ed.), p. 199; Chicago v. Railway, 152 111. 561.
   RAILEY, C.

On March 3, 1911, plaintiff commenced, in the circuit court of Andrew County, Missouri, an action by injunction to restrain defendant from trespassing upon a strip of ground thirty feet wide, running north and south on the east side of his land, described as the southwest quarter of section 30, township 61, range 35, county and state aforesaid. After alleging repeated trespasses on the part of defendant, during the year 1909 and 1910, plaintiff asked for $500 damages, and prayed for a perpetual injunction against defendant. A temporary injunction was issued and defendant answered, alleging that on March 21, 1908, he bought and entered into possession of the northeast quarter and the west half of the southeast quarter of section 30 aforesaid; that at the time he purchased same, there was a road thirty feet in width west of and adjoining his land aforesaid, running along the entire west side of same, which said road was still there at the time of the filing of said answer; that it was a public road; that plaintiff obstructed the same by putting posts in the center thereof and at divers times stretched wire across the same; that he (defendant) removed said obstructions, in conjunction with others, as they were placed across said road during 1909 and 1910,-for the purpose of clearing said public road of said obstructions. He alleges that plaintiff had an adequate remedy at law and was guilty of laches in failing to assert his alleged rights sooner. Defendant, in said answer, prayed for the dissolution of said injunction and asked the court to enter a judgment restraining plaintiff from interfering with his use of said highway and from in any manner preventing him from having free and uninterrupted egress and ingress to and from said road.

In the Spring of 1900, plaintiff was the owner of and living upon the 160 acres aforesaid. The remaining three-fourths of said section, at that time, belonged to the Samuel estate. John S. Lemon of St. Joseph and Mr. Yates of Chicago, were executors of the Samuel estate, and had the power under the Samuel will to sell and dispose of said real estate. In 1898-9, the plaintiff lived on the northeast corner of his land. His house was then about seventy rods west of the thirty-foot road aforesaid, and about sixty roads south of the north line of his farm. The Fleming schoolhouse was located near the northwest corner of the northeast quarter of said section and a few rods east of said thirty-foot road. There was a public road running east and west along the north side of said section 30, and another public road running east and west along the south side of same. Plaintiff lived in said school district. There were two churches north and within two miles of the north line of said section. The nearest road running north and south west of said thirty-foot road was about one mile distant, and the nearest north- and-south road on the east was about three fourths of a mile from said thirty-foot road. Plaintiff had minor children who attended the Fleming school, and in going there, had to pass over a portion of the Samuel estate, then in pasture, where cattle were kept. It was important for plaintiff to obtain a roadway north, and he, in conjunction with others, attempted to have a public road opened north' and south through the center of said section 30 and through the center of the section south of section 30. A petition was presented to the county court, asking for the establishment of said two-mile public road, the north mile of which corresponds with the thirty-foot road in controversy. The county court refused to establish said two mile road, unless the petitioners therefor would secure the right of way. They failed to secure same, and said project was abondoned. Thereupon, plaintiff, in 1899, opened up negotiations with Mr. Lemon, as executor of the Samuel estate, for the construction of the thirty-foot road as it now stands. Plaintiff read in evidence a letter from executor Lemon, which will be considered in the opinion.

It appears from the evidence that in the Spring of 1900, plaintiff, after receiving the above letter from Lemon, and after having personally talked with him, in regard to opening the road in controversy, proceeded to construct a good and substantial fence on each side of his said road, as it runs north and south on the east side of his quarter section. He likewise built a bridge on said portion of road, and put the latter in good condition for public travel. George Yiolett, in behalf of the ■Samuel estate, extended the road in controversy, thirty feet in width, on the east side of the northwest quarter of said section 30, and built a good and substantial fence on each side of same. The plaintiff and Samuel estate thus constructed a thirty-foot road and put the same in good condition, immediately west of the center section line running north and south through section 30 aforesaid, and this constitutes the mile of road in controversy here.

Plaintiff testified that in the fall of 1900 he put a wire across the thirty-foot road on the east side of his farm to let his stock eat the grass on said land, but only kept the wire there for one day and removed it himself. It is not claimed that anyone else ever saw this wire or knew that it was placed as above.

4 About the year 1905 plaintiff removed his residence to the southeast corner of his farm, near the public road running east and west, and about fifty-five rods west of the road in controversy. All of his children, except one, were then past the school age. The plaintiff, his family and the public in general used the thirty-foot road clear through section 30 aforesaid, from 1900, when it was first opened, up to 1905, without objection upon the part of plaintiff or any one else, and said road was used by the public thereafter, up to time of trial below. Portions of the land formerly owned by the Samuel estate were sold at different times, and the purchasers thereof constructed houses along the road in controversy, and used the same in passing north and south over said section. After the plaintiff had removed his residence from the northeast corner of his farm to the southeast corner of same, and. after his children had ceased to attend the Fleming school, he thereafter concluded to close up the road in question, by fencing same and placing obstructions thereon. These obstructions were removed by defendant and others as often as they- were installed. Thereupon the present action was brought by plaintiff, and cross-petition filed by defendant.

Such other questions as may he necessary will bo considered in the opinion.

The' trial court found the issues against the plaintiff on the latter’s case, and entered its judgment in favor of respondent. The court likewise found the issues on behalf of defendant, as to the latter’s cross-petition, and perpetually enjoined plaintiff from pbstructing or fencing across said road, and enjoined him from interfering with defendant in his use of said road or highway, or in any manner preventing defendant from having the free use of same, etc. The temporary injunction formerly issued was dissolved.

Plaintiff in due time filed his motion for a new trial, which was overruled and the cause duly appealed by him to the Kansas City Court of Appeals. The latter, over the objection of respondent, transferred the cause to this court, on the ground that the title to real estate is involved herein.

I. The real issue in this case, when reduced to its last analysis, is whether or not the road in controversy became a public highway in the spring of 1900, when it was first opened for public use. In 1 Elliott on Roads and Streets (3 Ed.), sec. 125, the learned author correctly states the law as fol- , iOWS:

“A distinguishing difference between a statutory and common law dedication is said to be that the former operates by way of a grant, and the latter by way of an estoppel in pais rather than by grant.”

It is not claimed by respondent that any statutory dedication ever took place, but it is asserted that the road in controversy became a public highway in 1900, by common' law dedication. Judge Elliott, in 1 Roads and Streets supra, sections 137-8, says:

“An implied dedication is one arising, by operation of law, from the acts of the owner. It may exist without any express grant, and need not be evidenced by any -writing, nor, indeed, by any form of words oral or written. It is not founded oñ a grant, nor does it necessarily presuppose one, but it is founded on the doctrine of equitable estoppel. As said by the Supreme Court of the United States, ‘the law considers it in the nature of an estoppel in pais,’ and holds it irrevocable. It may be established by evidence of conduct, and in many ways. In one case it was declared that: ‘The authorities show that dedications have been established in every conceivable way by which the intention of the party could be manifested.’ If the donor’s acts are such as indicate an intention to appropriate the land to the public use, then, upon acceptance by the public, the dedication becomes complete.
“It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to the public use. If the intent to dedicate is absent, then there is no valid dedication. The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. Eegard is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose. If the' open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.”

Many authorities are cited in the above sections, which sustain the principles of law announced therein.

In Brinck v. Collier, 56 Mo. l. c. 164-5, cited by appellant, Judge Napton said:

‘ ‘ To constitute a valid dedication of land to the public, there must be a clear intention on the part of the owner to dedicate, which may be established in various modes, some of which are provided by statute, and others by such acts or declarations in pais as are satisfactory evidence of such design; and there must be an acceptance of sucJ' dedication by the public, either by user for a length of time, more or less, according to circumstances, or by its adoption by the public authorities. Greenleaf says there must be the act of dedication and the acceptance of it by the public. ‘If accepted and used by the public in the manner intended, it works as an estoppel in pais precluding the owner, and all claiming in his right, from asserting any ownership inconsistent with such use. The right of the public does not rest upon any grant by deed nor a twenty years’ possession; but upon the use of the land with the assent of the owner for such a length of time, that the public accommodation and private rights must be materially affected by an interruption of the enjoyment.’ ”

To the same effect are the following authorities: Pierce v. Chamberlain, 82 Mo. l. c. 622; Perkins v. Fielding, 119 Mo. 149; McGrath v. Nevada; 188 Mo. 102-3; Minium v. Solel, 183 S. W. l. c. 1040-1 (Mo.); 1 Elliott on Roads and Streets (3d Ed.), sec. 147-8; 3 Dillon on Municipal Corporations (5 Ed.), sec. 1074, et seq.; Fossion v. Landry, 123 Ind. 136; Town of Marion v. Skillman, 127 Ind. 130; McClaskey v. McDaniel, 37 Ind. App. 59; Seidschlag v. Town of Antioch, 207 Ill. 280; Township of Lovington v. Adkins, 232 Ill. 510; Bartlett v. Beardmore, 77 Wis. 356; Cincinnati v. The Lessee of White, 31 U. S. 431; Morgan v. Railroad, 96 U. S. l. c. 723; Noyes v. Ward, 19 Conn. l. c. 265, et seq. Many other authorities are cited in the test books as announcing the same principles of law.

Turning to the record, we find that in December, 1899, the Samuel estate, of which Lemon et al. were executors, with power of sale, owned all of section 30, township 61, range 35, except the southwest quarter of same, belonging to plaintiff.' .The letter from Lemon to plaintiff, hereafter set out, together with the undisputed facts, indicates a clear intention upon the part of the legal representatives of the Samuel estate, to give the north half of the road in controversy, and to have the same opened and left open as a public highway, in order that the' tenants and vendees of said estate might have the right to pass from said land to the east-and-west public roads on the north and south of said land. The purchasers from the Samuel estate were informed that the road in controversy was a public highway, and they built their homes fronting on said road relying upon that fact. The representatives of the Samuel estate, and their vendees of said land, always dealt with said road after it was opened as a public highway.

In 1899 plaintiff’s residence was in the northeast comer of his farm, and his children could not pass north to the Fleming school, in the northwest corner of the northeast quarter of said section, without going over the. land belonging to the Samuel estate, and passing through the pasture where cattle were kept. Neither was there any way for plaintiff and his family to attend either of the churches on the north of said land, without coming to the public road on the south and then traveling three-fourths of a mile east, or one mile west, where they could strike north and south roads, extending to the public road on the north side of said section. It will thus be seen that plaintiff, in 1898, was greatly in need of a road north from his house to the public road on the north. He, in conjunction with others, in said year, got up a petition to the county court, to have a public road opened through the centers- of sections 30 and 31, township 61, range 35, for two miles. The north mile of said proposed public road covered substantially the road in dispute. There was no controversy raised about the necessity or public utility of said two mile road, but the county court refused to establish same, because the petitioners would not pay for the right of way. The plaintiff was then anxious to secure the present road, and opened up negotiations in December, 1899, with Lemon, executor of the Samuel estate, for the purpose of securing said road. '

John Q. Fleming testified that, in 1899, plaintiff came to his residence, and induced him to go with appellant to St. Joseph to see Lemon about this road. He said to witness :

“If you will go with me to St. Joe I will pay the expenses, if you will see Mr. Lemon and * # # ' if you can get him to consent to open a road on the north half I will give the road on the south half. ’ ’

Witness understood it was to be a public'road. This witness went to St. Joseph as requested, and testified as follows:

“I know that my trip to St. Joe was to open this road, a mile right-of-way through there, for Mr. Borchers and the general public, according to my ppinion at that time. * * * Mr. Borchers says, ‘I am afraid for my little boys to go through there, with them bulls and cows and everything.’ * * *
“Q. He was then wanting, and you gathered from him that he at that time was making an effort to get, a public road opened through there? A. That was my opinion. ’ ’

After the St. Joe interview, plaintiff received, and read in evidence, the following letter from Mr. Lemon:

St. Joseph, Mo., Dec. 18, 1899.
Mr. Jas. Borcher,
Rosendale, Mo.
Dear Sir:—
I did not hear from Mr. Yates until Saturday last. He consents to opening the road, say 30 feet wide, on the East side of the W. % of Section 30 — Township 61 — Range 35 W. on the following conditions: The road to be opened full length, say one mile, and put in good condition for travel free of expense to the estate of George W. Samuel, deceased, and before offering it to the county to be inspected and approved by myself. In the event that the county does not accept it when tendered both you and the trustees of the estate are to decide as to keeping it open and maintaining it as a private road or closing it up. If this is satisfactory you can go ahead and open it up' as soon as it may suit Mr. Violet to arrange for the fences on that part owned by the estate.
Very respectfully,
John S. Lemon, Executor.

Counsel for appellant, in their brief, say:

“His efforts in that respect resulted in his finally getting the consent of Lemon to allow him to open a thirty foot way through his own land, and on north through the pasture, upon the conditions and terms contained in, the Samuel letter.” (Italics are ours.)

Thereupon plaintiff put a good fence on each side of the road through the east side of his land, and the Samuel estate put a good fence on each side of the north half of said road. It should be observed in passing, that the agreement between Lemon and plaintiff was, that the road was “to be opened full length, say one mile, and put in good condition for travel, ’ ’ etc.

In the Spring of 1900, said road was well fenced on each side and put in good condition the full mile across said section. After having opened this road, as above indicated, appellant said that in the fall of 1900 he put a wire across the road for one day to let his cattle eat the grass and that he removed it.

Plaintiff was recalled in rebuttal, and testified in his own behalf as follows:

“Q. Mr. Borehers, I believe you are making no. contention in this trial that, for a number of years after you opened this way, you ever attempted to keep the'traveling public off of it? A. No. I never made any such contention as that. * * *”
“Q. After you and Mr. Lemon opened the road, any part of the traveling public that wanted fo go through there had your permission to do so. A. Yes, sir.”

The undisputed evidence discloses that from the opening of this road in 1900, up to the time of trial, the public constantly used the same without objection. We find from the record that George Yiolett, Grover Violett, Warren Yiolett, Henry H. Rankin, Hal Fleming, Will Rankin, Carl Gibson, Jule Linck, John Bruner, Edward Foland, Edgar Brewer and Ellsworth Brewer, each testified to having worked upon some part of the road in controversy, either at the time it was being opened or at different times thereafter. It likewise appears from the evidence that some work was done by several different overseers on this road, after it was opened, and that some of the witnesses worked out their poll tax on the north half of same. The witnesses who did this work understood the road was a public highway and they worked thereon accordingly.

Sometime after the opening of the road, George Yiolett became the owner of all that part of section 30 lying east of the road in controversy. Ellsworth Brewer and J. S. Hunt each testified that plaintiff requested him to go and see Yiolett about having the road moved onto the center section line and giving fifteen feet of the road. Defendant testified that plaintiff wanted him to set the fence over and give half the road, which.he declined to do.

We have carefully read and re-read both the record and briefs in this case. Without going more into detail, we are well satisfied from the evidence that the road in controversy when it was opened in the Spring of 1900 was intended, both by plaintiff and Lemon, to be a public highway; that the road was worked by citizens and road overseers on the theory that it was a public road; that the public used said road and considered it a public highway. We are likewise satisfied from the evidence, that plaintiff had no thought of said road being a private one, until after he moved his residence to the southeast corner of his farm about 1904 or 1905, and after his children had ceased to attend the Fleming school.

We find from the evidence, that the road in controversy, has been a public highway ever since it was opened in the spring of 1900. The trial court was justified in finding the issues against the plaintiff and in enjoining him from interfering with defendant’s use of said road.

II. The action of the trial court in refusing plaintiff any relief and in restraining him from interfering with defendant’s use of said road was proper upon other grounds than those heretofore discussed: The letter from Lemon to plaintiff contemplates that a road clear across the section was to be constructed and put in good condition for travel, for the use of both plaintiff and the Samuel estate, as well as the purchasers of the land from said estate. It is evident that the executors of the Samuel estate were contracting for a permanent passway from the northern portion of section 30 to the public road on the south. It is likewise manifest that the plaintiff was contracting in 1900 for a permanent way north over said section. The work, according to plaintiff’s theory, was done pursuant to said letter. It does not appear that the Samuel estate or any of its successors in title are in favor of closing said road, but on the contrary, are opposed to its being closed. Under the contract providing for the construction of said highway, the plaintiff has no legal right to close said road. [Phelps v. Crites, 187 S. W. (Mo.) 3; Corless v. Eatherton, 187 S. W. (Mo.) 39; Bunch v. Wheeler, 210 Mo. 622; see other authorities cited in preceding proposition.]

III. On the record before us, the judgment of the trial court in behalf of defendant was for the right party; is accordingly affirmed and the cause remanded to said court.

Brown, G., concurs.

PER CURIAM:

The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All the judges concur; Bond,P. J., in paragraph 3 only and in result.


source: Caselaw Access Project

author: BOND, P. J.

license: Public Domain

text:
    CHARLES WILLIAMS, Executor of Last Will of THOMAS F. ACKERMAN, v. JOHN G. WEBER, Public Administrator, and ELLA M. KELLERMAN et al.; LOWELL CLINE et al., by I. A. ROLLINS, Guardian ad Litem, Appellants.
    Division One,
    June 1, 1917.
    HEIRS: Children of Deceased Adopted Child. Under the Statute of Descents (Sec. 332, R. S. 1909) declaring that the estate of a decedent shall go, “first, to his children, or their descendants,” an adopted child who dies prior to the death of the adopting parent stands in the same relation of heirship to the estate possessed by the adopting parent at the time of his death that a natural and lawfully born child would occupy under similar circumstances; and the children of such adopted child, who died before her adopting parents, take the same estate which their mother would have taken had she survived her adopting parents.
    Appeal from St. Louis County Circuit Court. — Eon. John W. MeElhinney, Judge.
    Reversed and remanded (with directions).

      J. G. Kishaddon, W. E. Eill and J oseph G. Williams for appellants.
    (1) The natural children of an adopted child who pre-deceased its adopting parents, are the heirs of such adopting parents of all property of which such adoptive parents died seized or possessed. Bernero v. Goodwin, 184 S. W. 74. In addition to the cases not cited in the above cited case we cite the following: Humphries v. Davis, 100 Ind. 274; Barnes v. Allen, 25 Ind. 226; Krug v. Davis, 87 Ind. 590; Warren v. Prescott, 84 Maine, 483; Ross v. Ross, 129 Mass. 243, 266; Sewall v. Roberts, 115 Mass. 262; Batchelder v. Walworth, 82 Vt. 7; Barnes v. Barnes, 132 Fed. 485; Gillian v. Guaranty Co., 186 N. T. 127. (2) There being no residuary devise in the will of Thomas F. Ackerman, a devise of personal property of which said testator died possessed to a person who died before the death of the testator, leaving no heirs,’is a lapsed legacy and goes to the heirs of the testator. R. S. 1909, sec. 546; Bramble v. Adams. 146 Mo. 88; Mortin v. Lachasse, 47 Mo. 593. (3) Such lapsed legacy goes to the heirs of the testator whether in his will said testator devised other property to said heirs or not. McQueen v. Lilly, 131 Mo. 9. (4) If, however, Susan Ackerman, the devisee of said personal property, joined with her husband in the execution of the deed of adoption, and then pre-deceased her husband, leaving no heirs, either liheal or collateral, unless the children of her adopted daughter may be considered such heirs, then the legacy did not lapse, but as she died intestate, what would have gone to her had she survived her husband, goes to the natural children of her adopted daughter. R. S. 1909, sec. 546.

      Henry J. Higgenbottom, B. L. Matthews and Stevens & Stevens for respondents.
    (1) Under the law of descent of this State, where one heir inherits a share in an estate which his deceased parents would have inherited, he inherits not from the latter, but directly from the intestate. Barnum v. Barnum, 119 Mo. 67; Records v. Fields, 155 Mo. 325; Heady v. Kraus, 203 Mo. 119; Wardenbarger v. Payne, 162 Mo. App. 436; Hockaday v. Lynn, 200 Mo. 470. Conversely, where one dies leaving a widow and a child and the child dies, the widow inherits the property from the child as its heir. Lynn v. Williams, 68 Mo. 360. Sec. 332, R. S. 1909, does the same thing for the grandchildren of an intestate that section 546 does for the grandchildren of a testate: the latter makes the child of a deceased parent an original legatee of the grandfather and the former makes him an heir taking in his own right directly from the intestate, by virtue of their propinquity of blood. Wardenbarger v. Payne, 162 Mo. App. 434. (2) The word “kindred,” in our Statutes of Descent and Distribution, means “relatives by blood.” Hockaday v. Lynn, 20 Mo. 466; R. S. 1909, sec. 332; Bramell v. Adams, 146 Mo. 70; Clarkson v. Hatton, 143 Mo. 47; Jarboe v. Hay, 122 Mo. 354. The right of inheritance is purely statutory and he who claims a share in the inheritance must point to the law which transmits it to him. Goldstein v. Hammell, 236 Pa. St. 309. The statutes of adoption being in derogation of the common law, are strictly construed as against the adopted child. Sarazin v. Railroad, 153 Mo. 485; Beach v. Bryan, 155 Mo. App. 50; Furgeson v. Jones, 17 Ore. 204; Baker v. Clowser, 43 L. R. A. (N. S.) 1056; Thomas v. Maloney, 142 Mo. App. 197. The general statutes of inheritance are modified and set aside by statutes regulating the effect of adoption, only so far as there is some specific provision in the statutes of adoption inconsistent with the application in such cases of the general inheritance statutes. Like an invading force upon a hostile domain, the adoption law prevails only so far as its lines extend. Beyond those limits all remains under the original control. Baker v. Clowser, 43 L. R. A. (N. S.) 1056; In re Jobson, 164 Cal. 312, 43 L. R. A. (N. S.) 1065. (3) The Missouri statute of adoption is silent as to the children of adopted children. Laws 1856-7, p. 59, secs. 1-4; R. S. 1865, p. 478, secs. 1-4; R. S. 1879, secs. 599-602; R. S. 1889, secs. 968-971; R. S. 1899, secs. 5246-5249; R. S. 1900, sees. 1671-1674; Beach v. Bryan, 155 Mo. App. 53. Where the statute is silent, since nothing can be supplied except by inexorable implication, the right of inheritance must be determined by the Statute of Descent and Distribution and against the children of the deceased adopted child. Phillips Estate, 17 Pa. Superior Ct. 103; Goldstein v. Hammell, 236 Pa. St. 305; Reinders v. Koppelmann, 68 Mo. 482; Hockaday v. Lynn, 200 Mo. 456; Clarkson v. Hatton, 143 Mo. 47.
   BOND, P. J.

I. On February 28, 1887, Thomas F. Ackerman and Susan Ackerman, his wife, legally adopted a child whom they named Mary. She afterwards married one Ira C. Cline, and of this marriage seven children wére born, two of whom died in infancy; the other five who survived their mother .are designated herein as the Cline heirs.

After the death of his adopted daughter Mary, Thomas Ackerman executed his last will and testament by which he bequeathed to each of the Cline heirs one dollar ; to his wife Susan all of his personal property, absolutely, with a life estate in all real estate of which he might die possessed, with remainder over to the children of his sister, Elizabeth Perkins. His wife was named as executrix and Charles Williams named in her stead in case of her death or inability to act. She having died before her husband, his will as originally drawn was duly probated on November 28, 1908, Charles Williams qualifying as executor.

During the course of the administration of the estate, John G. Weber, administrator of the estate of Elizabeth Perkins, deceased, represented the interests of the heirs of said Elizabeth Perkins, Benjamin C. Lindsay claimed by right of purchase the interests of the heirs of James Ackerman, deceased, brother of the testator, and the Cline heirs presented their claims as heirs and legatees. One Alice Otter also presented a claim for services, which was allowed and paid, and a further claim by right of gift of a certain note for $1600, together with two interest notes for $45 each, secured by a deed qf trust.

When the executor presented his accounts for final settlement, the court found the amount in which the executor was indebted to the estate, but having been of counsel, refused to order distribution on account of ■ the above adverse claims to said fund. Thereupon the executor filed this bill in equity in the circuit court and prayed that the several claimants be compelled to interplead. Thé decree so ordered and commanded executor Williams to pay the fund of $11,239.47 into court.

Thereafter interpleas were duly filed and the court, having taken the case under advisement, rendered judgment against the Cline heirs and Alice Otter, and ordered the clerk of the court to pay one-half of the fund to inter-pleader John G. Weber, as administrator in charge of the estate of Elizabeth Perkins, deceased, and one-half to interpleader Benjamin C. Lindsay. The Cline heirs and Alice Otter appealed separately.

II. There,being no dispute as to the facts in this case, the main issue presented resolves itself into a question of law: whether the children of an adopted child, who died before her adopting parents, can take under the statute of descent the same estate which their mother would have taken had she outlived her adopting parents?

This question is determinable by a consideration of the first clause of the statute of descents, viz., “First to his children, or their descendants” (R. S. 1909, sec. 332), which has been interpreted in Bernero v. Goodwin, 267 Mo. l. c. 454 et seq., to include, under the terms “to his children” in the first subdivision thereof, an adopted child as well as a natural child. It necessarily follows from that ruling that the alternative terms of said statute, viz., “or their descendants,” likewise embrace the children of an adopted, as well as a natural child. Hence in case of the death of an adopted child prior to the death of the adopting parent, such child stands in the same relation of heirship to the estate possessed by the adopting parent at the time of bis or her death, that a’ natural and lawfully born child would occupy undpr similar circumstances. Applying this principle to the facts in the instant case, the result is that the Cline children, whose mother was lawfully adopted both by Thomas P. Ackerman and his wife Susan, are entitled to inherit the undisposed estate of either of her adopting parents at the time of their respective deaths, just as if they were natural and lawful grandchildren of the adopting parents of their mother. There was no residuary clause in the will of Thomas P. Ackerman; neither did his wife Susan Ackerman make any testament. It follows that the personal estate which was devised absolutely to his wife under the will of Thomas P. Ackerman, descended, upon the death of his wife, to the Cline children as the lawful “descendants” of Mary Cline, the adopted daughter of the deceased wife. The decision in the Benero case had not been rendered when this cause was submitted to the learned circuit judge. Under the authority of that case, the judgment against the Cline heirs is reversed and the cause remanded with directions to enter a judgment in their favor for the amount of the estate now subject to distribution. It is so ordered.

All concur.


author: BLAIR, J. BOND, P. J. GRAVES, J. WOODSON, J.

text:
    THE STATE ex rel. WABASH RAILROAD COMPANY et al., Appellant, v. PUBLIC SERVICE COMMISSION and C. H. PAYSON, Mayor.
    Division One,
    June 1, 1917.
    1. PUBLIC SERVICE COMMISSION: Order to Construct Passenger Station: No Substantial Evidence. If tbe order of tbe Public Service Commission is unsupported by any substantial evidence, it is unreasonable and must be nullified. Where the evidence before the commission does not tend to prove any defect or inadequacy in the present passenger depot which cannot be corrected by repairs, improvement or enlargement, an order of the commission requiring the railroad company to erect a new depot in a -new place is unreasonable.
    2. -: -: Offer to Construct. Plans submitted as those of the building the railroad company would be willing to construct at some time in the future when it deemed * itself in a financial condition to erect a new passenger depot, do not constitute an offer to erect a new building, although they were deemed acceptable by the city.
    3. -: Deference to Commission’s Binding: Burden of Proving Unlawfulness.

      Held, by BLAIR, J., that sections 123 and 124 of the Public Service Act, Laws 1913, p. 647, mean that a determination of a fact by the Public Service. Commission cannot be overthrown by a court until he who assails it discharges the burden of proving its unlawfulness or unreasonableness by clear and satisfactory evidence; that the court cannot put itself in place of the commission, try the matter anew as an administrative body, and substitute its findings for those of the commission: and that the direction to circuit courts, found in section 111, to review the orders and decisions of the commission “as suits in equity” is necessarily qualified by the specific provisions of said sections 123 and 124 which prescribe the weight to be given to such orders and decisions.

      Held, by BOND, P. J., that the findings of the commission are neither conclusive upon the court nor prima-faeie correct, but its orders and decisions are to “be tried and determined as suits in equity,” as is declared by section 111, and as was correctly held by Court in Banc in Railroad v. Pub. Serv. Comm., 266 Mo. 1. c. 340, and Lusk v. Atkinson, 268 Mo. 1. c. 117; and that sections 123 and 124 cannot be held to overthrow the specific and preclusive provision of section 111, which forms a special code applicable to the review of the commission’s orders.

      Held, by GRAVES, J., that the rulings of the commission, in these statutory certiorari proceedings, reach the court with - presumption of right action, and as prima-facie valid, just as does a judgment of a circuit court in a case appealed to this court, but this presumption and prima-facie case may be overcome by the evidence in the record, and sections 123 and 124 do not compel this court to consider the findings of the commission as otherwise than prima-facie lawful and reasonable. ■

      Held, by WOODSON, J., that when a case reaches the Supreme Court from the commission it shall be tried as a suit in equity, which means that the court will defer somewhat to the findings of the commission, but not abdicate its authority to make its own findings of fact.
    Appeal from Macon Circuit Court.- — Hon. Nat M. 8helton) Judge.
    Reversed and remanded.

      J. L. Minnis, N. 8. Brown and Guthrie & Franklin for appellants.
    (1) The order of the commission is unlawful and void, because the commission is without power to condemn the existing passenger depot at Macon and require appellants to erect in lieu thereof an entirely new structure. Where a railroad company has provided passenger depot facilities at a place on its line, and the complaint is that the facilities so provided are “inadequate,” then, under the provisions of the Public Service Commission Act, the commission’s power is limited to a finding of facts with respect to particulars in which such facilities are inadequate, and consequently the commission has no power, merely because an existing station is inadequate, to entirely. condemn the existing structure, and order a new one to be substituted therefor. Sees. 27, 43, par. 2 of 47, 49, Laws 1913, p. 570. (2) The order of the commission is invalid because it fails to advise appellants wherein the present station structure is inadequate, and fails to direct what particular repairs, improvements, changes or additions are required in order to make the present structure reasonably adequate. Par. 2 of See. 47, Laws 1913, p. 585. (3) The order of the commission is unlawful and unreasonable, because it denies to appellants tbe right to make such repairs, changes, additions and improvements in the present structure as will make the same adequate for the public service.

      Wm. G. Busby, Alex. Z. Patterson, Geo. N. Davis, and D. L. Dempsey for respondents.
    (1) Appellants’ assignments of error numbered 1, 2 and 3, and they are the only alleged errors complained of in this case, are all directed against the first order of the commission made September 24, 1914, which was superseded by the order of the commission on April 15, 1915, and are not applicable to the last order. (2) The construction of the Pubilc Service Law contended for by appellants in its three assignments of error is entirely too narrow and would leave the commission without right or power to provide for the public convenience and security by requiring proper appliances and service whére inadequate and improper appliances and service is now provided. The testimony clearly shows the present structure is inadequate from every standpoint, inconvenient, unsanitary, uncomfortable, illy lighted and dangerous. The extension of the men’s waiting room will not alleviate any of these conditions. A reading of the testimony will convince the court that the only fair inference and conclusion that can be drawn by this court is that the present building, by reason of the manner and place of its construction and the age of the structure is incapable of being repaired or modified to an extent that would insure the traveling public reasonable, convenient and comfortable facilities, Each' one of the three assignments of error was waived by the defendants when they, after the order of September 2'4, above referred to, and pending, the determination of their motion for rehearing thereon, came in and submitted to the commission detailed plans and specifications of a new depot which they were ready and willing to build at Macon. This offer of the defendant was accepted by the complainant and the city council of the city of Macon and it was pursuant to this offer of appellants and acceptance by complainants that the, order of April 15, 1914, was made.
   BLAIR, J.

-Relators appeal from a judgment of the Macon Circuit Court, affirming and holding reasonable and lawful an order of the Public Service Commission requiring relators to construct a new passenger depot at Macon, Missouri.

The complaint before the commission was filed by the mayor of the city of Macon and charged that the present Wabash depot at that city is inadequate for “the reasonable accommodation of the public at Macon,” and that a new and larger depot was necessary for the adequate service of the community and for its security and convenience. The evidence offered pertained solely to the facilities available for passenger traffic. There was evidence tending strongly to show that the depot platform, in view of the manner of its use, is for a part of its,length too narrow; that the men’s waiting room is not large enough; the steps leading to the south end of the platform are improperly constructed and, owing to their not being covered, at times become coated with ice; that the steps at the north end are in need of repairs or reconstruction; that a water tank near the north end of the platform some times overflows and creates a muddy or icy condition which renders passage from the platform inconvenient and, to an extent, dangerous; that sufficient lights are not provided, and that the toilets maintained are not sufficiently protected from freezing weather; that, owing to the smallness of the men’s waiting room, it is difficult to keep the waiting rooms in sanitary condition. Other facts necessary to a decision are referred to in the opinion.

I. The first question is as to the weight due the findings of the commission. The Legislature has committed to the Public Service nommission duties of very great im-' portance. The scope of its activities, the char-ac^er °f its powers and the gravity of the questions it may determine give to it an authority and a dignity which, in addition to the ability of its personnel, are to he carefully regarded when the reasonableness or lawfulness of one of its orders is drawn in question. We are, however, not left to infer our duty respecting the deference due its findings. Section 123 of the Act of 1913 (Laws 1913, p. 647), expressly provides that all “rates, tolls, charges, schedules and joint rates fixed by the commission shall be in force and shall be prima-facie lawful, and all regulations, practices and services prescribed by the commission shall be in force and shall be prima-facie lawful and reasonable until found otherwise in a suit brought for that purpose pursuant to the provisions of this act. ”

Section 124, Laws 1913, p. 647, provides that: “In all trials, actions, suits and proceedings arising under the provisions of this act or growing out of the exercise of the authority and powers granted herein to the commission, the burden of proof shall be upon the party adverse to such commission or seeking to set aside any determination, requirement, direction or order of said commission, to show by clear and satisfactory evidence that the determination, requirement,. direction or order of the commission complained of is unreasonable or unlawful, as the case maybe.”

That these provisions are valid cannot be successfully denied, and that they mean that the determination of a fact by the Public Service Commission cannot be overthrown by a court until he who assails it discharges the burden of proving its unlawfulness or unreasonableness by elegir and satisfactory evidence is the only construction of which the unequivocal statutory language is susceptible. Such is the construction given similar language in other states in like circumstances. [Hocking Valley Ry. Co. v. Public Utilities Commission of Ohio, 92 Ohio St. 9; State v. Great Northern Ry. Co., 130 Minn. l. c. 59; State ex rel. v. Fla. E. C. Ry. Co., 67 So. 906; State ex rel. Great Northern Ry. Co. v. Railroad Commission of Washington, 60 Wash. l. c. 226; Pittsburg, C., C. & St. L. Ry. Co. v. Railroad Commission, 171 Ind. l. c. 189; Settle v. Commission, 114 N. E. 1036.]

Further, no other position could be maintained. The commission’s findings and acts are neither legislative nor ■judicial. It is an administrative body. Ib acts at the direction of the Legislature. The courts cannot constitutionally “usurp legislative or administrative functions by setting aside a legislative or administrative order on their own conception of its wisdom. ” “ The Legislature never intended that the court should put itself in the place of the commission, try the matter anew as an administrative body, substituting its findings for those of the commission. A statute which so provided would be unconstitutional as a delegation to the judiciary of non-judicial powers.” [State v. Great Northern Ry. Co., 130 Minn. l. c. 59, 60; Hocking Valley Ry. Co. v. Public Utilities Commission, 92 Ohio St. 362.]

The direction to the circuit court to try suits brought to review the orders and decisions of the commission “as suits in equity” (Sec. 111, pp. 641, 642, Laws 1913) is necessarily qualified by the specific provisions referred to which prescribe the weight to be given such orders and decisions. The provision (Sec. 114, p. 644, Laws 1913) that “appeals shall be prosecuted as appeals from judgments of the circuit court in civil cases, except as otherwise provided in this act,” refers rather to the mode of prosecuting the appeal than to the weight to be given the commission’s findings. At all events, it does not conflict in any way with sections 123 and 124 of the act. These views are in conflict with Railroad v. Public Service Commission, 266 Mo. 333, and Lusk v. Atkinson, 268 Mo. 109, in which decisions no reference was made to sections 122 and 123 of the act. In view of these facts this case should be transferred to Court in Banc.

II. It may be conceded the Public Service Commission has power, in a proper case, to order the construction of a new depot. [Sec. 49, p. 588, Laws 1913.] The question in this case is whether the order made is reasonable and lawful. The evidence does not tend Prove any defect or inadequacy which cannot be corrected by repairs, improvements and enlargement of the present depot. There is no evidence that it is physically impossible or even difficult to make the changes necessary to meet the objections made to the present structure. It does not appear that there is any legal obstacle to the changes proposed. There is no evidence tending to show that the company’s right of way is too narrow to accommodate the improvements desired and necessary or that the enlargement of the building and widening of the platform will in any way infringe upon any street or interfere with any other property. It conclusively appears that every objection made to the depot, except those to its age and appearance, can be met without erecting a new building in a new place. In these circumstances it is necessary to hold that the order is unreasonable since it is unsupported by any substantial evidence. A like situation arose in St. L., I. M. & S. Ry. Co. v. State, 28 Okla. 372, and a like conclusion was reached. In that case additional evidence was taken, and the order for the new building finally was sustained, but that evidence was such as to show that the repairs tendered could not actually and lawfully be made. Such evidence is not present in this record.

III. It is suggested that appellant made an offer to construct a new building of specified materials and design, and that this was accepted by the city and approved by the commission. The record does not support ^is contention. The plans submitted were tendered as those of the building appellant would be willing to construct at some time in the future when it ■deemed itself in a financial condition to erect a new building. This does not constitute an offer in the sense counsel use the term.

The judgment is reversed and the cause remanded-

Bond, P. J., and Graves and Woodson, JJ., concur in seperate opinions.

BOND, P. J.

(concurring.) — The facts in judgment in this case are stated and disposed of in the prefatory paragraph and in the subsequent second and third paragraphs of the opinion of Judge Blair, which portions of the opinion also make a complete and correct disposition of the case, and also of all the points suggested in the printed briefs of counsel, which, as far as I am able to gather, do not present a hint of the contention discussed in paragraph one of the opinion. Indeed it was to be hoped that this ghost was laid by the unanimous decision of the Court in Banc (Railroad v. Pub. Serv. Com., 266 Mo. l. c. 340, 341, et seq.) cpvering the point suggested in that paragraph of the opinion and the reconsideration of that point in the same case, to-wit:

“ It is urged that we were in error in holding that we would not be bound by the findings of fact made by- the commission in this case. The original opinion holds these cases must be heard as cases in equity. Prom that opinion we do hot desire to depart. The act says that they shall be heard. That means that we will consider the evidence de novo. In equitable procedure this court is not bound by the findings of fact made by the chancellor nisi. .We may yield to the judgment of the commission on facts (if the- circumstances of the cause, so appeal to us) as we may yield to the judgment of the chancellor nisi in equity, upon the facts, but not otherwise. There is no substance therefore in this ground of the motion for rehearing.” [Ibid. 346.]

To the above per curiam every member of the court agreed, the only point on which Judge Woodson differed being his view that in the exercise of its supervisory power this court might go further and even direct the order to be made by the commission.

The conclusions reached by the Court in Banc in that case and subsequently stated in Lusk v. Atkinson (268 Mo. l. c. 117, 118) were based upon the peculiar and specific provisions of section 111 of the act creating the Public Service Commission. [Laws 1913, p. 641.] The language of a portion of that section is significant and conclusive of the correctness of the view expressed by this Court in Banc in the cases above cited. The concluding clause of this section is to-wit:

“No court of this State, except the circuit courts to the extent herein specified, and the Supreme Court on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the executing or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties. The circuit courts of the State shall always he deemed open for the trial of suits brought to review the orders and decisions of the commission, as provided in this act, and the same shall be tried and determined as suits in equity.” (Italics ours.)

The conclusions reached by the Court in Banc in those eases were not made without a consideration of all the provisions of the Act of 1913, bearing on the scope of review of the action of the Public Service Commission, but after repeated arguments in which the strenuous contention of counsel for that body was that its action in making the finding of facts was conclusive, absent the showing of a want of its jurisdiction or power, to act. This contention necessarily embraced the assumption that the action of the commission was prima-facie correct, for it could not be conclusive and at the same time not be primafacie valid. My recollection is clear that the other sections of the statute cited in paragraph one of the principal opinion in this case were not overlooked by the learned counsel for the commission, but were referred to arguendo in the full discussion made by them in other cases affecting that body, prior to the determination by this Court in Banc of the extent and manner of its review of findings of fact o'f the Public Service Commission, when brought under its supervision according to the preclusive provisions set forth in section 111 of the Public Service Commission Act, supra. In deference to the conclusions of this court, counsel for the commission did not re-agitate the matter in their briefs in the instant case.

While the view expressed in paragraph one of the principal opinion has no relevancy whatever, as is shown by that opinion, to the proper disposition of the present appeal and, therefore, affords no justification for sending this case to Banc, yet it is not sustainable in my judgment if it should hereafter become a vital question for consideration in disposing of a case which might turn on that point. The two sections relied on in that paragraph of the opinion (secs. 123, 124, Laws 1913) cannot be held by any sound construction to overthrow the specific and preclusive provision of section 111, which furnishes the only method and the precise extent to which the orders and judgments of the commission are to be considered on appeals, with complete details of every step to be taken in the exercise of such power for review, thus forming a special code applicable to the review of the orders of that body.

Neither is there any support for the view expressed in paragraph one of the principal opinion in the cases cited from foreign jurisdictions. In the case of H. V. Ry. Co. v. Commission, 92 Ohio St. 9, it distinctly appeared that the contention was that the orders of the commission in that case “were against the manifest weight of the evidence,” to which the court replied: “We have carefully examined all the evidence and considered it in the light of the conflicting claims of the parties in reference to it, and we are not able to say that the findings of the commission are against the evidence.” [Ibid. l. c. 16.] And again the court said: “Much testimony was offered touching tins question and as already indicated we are not able to say that from an analysis of it the finding of the commission was not sustained by the evidence.” [Ibid. 1. c. 22.] It is to be noted, furthermore, that the court in that case was not dealing with any such provision defining the scope of review (as in equity) as is found in our statute.

The next case is State v. Railway, 130 Minn. 1. c. 59. The statute of, that State, unlike ours, simply provides for review of the orders of the commission as of the “trial of civil actions” and that the findings of fact by the commission are prima-facie reasonable and the burden of re-proof is upon appellants. In that State, also, there is no such express and preclusive provision as is contained in our act.

The case of Pittsburg, C., C. & St. L. Ry. v. Commission, 171 Ind. l. c. 189, seems not to be in point. It merely refers to an early decision in Minnesota and without making any reference whatever to any local statute of Indiana, rules that the order of the Indiana commission is prima-facie valid.

The case of State ex rel. v. Railroad Commission of Washington, 60 Wash. l. c. 226, is clearly not in point.

The case of Settle v. Commission, 114 N. E. 1036 et seq., is another Ohio ease expressed by a per curiam to the effect that an examination of the record showed that the “ order of the commission was not unlawful and unreasonable,” citing the case in 92 Ohio St. supra.

It is plain to a demonstration-that these rulings based on local statutes wholly dissimilar to ours, have hot even persuasive authority.

The Public Service Commission Act of this State was made up largely of detached paragraphs from the laws of several other states. Such a composite is naturally lacking in the harmony of a well-rounded scheme of constructive legislation. The courts have, therefore, been called upon, by interpretation and construction, to mould and fashion the Public Utilities Act into workable shape, so as to carry into effect the important object of safeguarding full control by the State of the corporations enfranchised by it, to the end that their public duties may be enforced. That sedulous care has been given to this task is apparent from the decisions of this court.

Since the point in judgment in this case does not involve the views expressed in paragraph one of the opinion of Judge Blair, I see no ground whatever for transferring the present case to Bane, and concur in all of his opinion except the views expressed in paragraph one.

GRAVES, J.

(concurring.) — I concur in the second paragraph of this opinion and in the result reached. To what extent I concur in the first paragraph, that which follows will indicate.

I think that paragraph one of the opinion of Woodson, C. J., in Railroad v. Public Service Commission, 266 Mo. l. c. 340, practically declares the law. My individual views are expressed in the per curiam on the motion for rehearing, because I prepared such per curiam. The contention in that case made, was that the findings of the commission were final and conclusive upon this court. To this contention the court refused to agree, and I am satisfied with that ruling. In my judgment the rulings of the commission, in these statutory certiorari proceedings, reach us with the presumption of right action upon the part of the commission, and as prima-facie valid, hut this presumption and prima-facie case may be overcome by the showing made in the record, and if so the duty of this court to so declare is clear. I do not understand that the opinion of Woodson, C. J., controverts these views, because' he says that we will give such findings just such consideration as we give the findings of a chancellor nisi in equity cases. In the per curiam opinion in that case, 266 Mo. l. c. 346, to which we all agree, we said:

“The original opinion holds these cases must be heard as cases in equity. Prom that opinion we do not desire to depart. The act says that they shall be so heard. That means that we will consider the evidence de novo. In equitable procedure-this court is not bound by the findings of fact made by the chancellor nisi. We may yield to the judgment of the commission on the facts (if the circumstances of the cause so appeal to us) as we may yield to the judgment of the chancellor nisi in equity, upon the facts, but not otherwise. There is no substance therefore in this ground of the motion for rehearnig.’’

Nor do I think that sections 123 and 124 of the Act of 1913 (Laws 1913, p: 647) compel this court to consider the findings of the commission in a manner different from the rule above indicated. The first section, supra, has no reference to court procedure at all. It simply says that the orders of the commission are prima-facie lawful and reasonable. So is a judgment of a circuit court when appealed from to this court. There is the presumption of right action upon the part of the circuit court, until error is pointed out.

But this section has no reference to procedure in á statutory certiorari to determine the reasonableness of the order. If the commission fixed a given rate for freight, and I was resisting the payment of that rate, then the order of the commission would be prima-facie lawful in that proceeding. So too as to telephone and other rates, as well as other orders.

If in the case mentioned last above the order of the commission was offered to show the lawfulness of the rate, I could at least respond, if I might not go further, by showing that the rate had been declared unlawful and unreasonable by some court. So in my judgment this section does not affect the matter at all, but if it did, reasonable effect is given thereto by the rule we have established.

Now as to section 124. The rule we have established does no violence to this section. If this section applies to procedure here, our rule proceeds upon the theory that it must clearly appear that the order is unlawful or unreasonable. The section evidently applies to many kinds of attacks upon the order of the commission, and is not confined solely to the attack made by the statutory certiorari which brings cases, such as the present, to the circuit courts.

The majority opinion in Lusk v. Atkinson, 268 Mo. 109, uses some rather broad and forceful language, but when fairly interpreted, I take it, does not go further than Railroad v. Commission, 266 Mo. l. c. 340 and 346.

All considered I think the rule established in Railroad v. Commission, 266 Mo., supra, is correct.

WOODSON, J.

(concurring) — The question of practice mentioned in the opinion in this case, in paragraph one, is a moot one; its decision not being necessary for a proper disposition of the case. For the same reason I am unable to see upon what legal ground the cause can be transferred to Court in Banc. But independent of this, since my associates are freely dealing with obiters, I may add that section 111, Laws 1913, p. 641, is too plain in meaning to require or permit construction. It stands separate and alone, as one of procedure in this court, and in express terms provides that when a case reaches this court from the Public Service Commission it shall be tried as a suit in equity. There is no phrase in the law better known, or which has a more definite legal meaning, than it has. That statute contains no language akin to the idea that the findings of the commission are prima-facie evidence of their correctness on procedure in this court. The equity practice is, and for centuries has been, for this Dourt to defer somewhat to the findings of the. chancellor, Decause of his better position to see .the witnesses, and observe their conduct and demeanor upon the witness stand; but we have never abdicated our authority to make our own findings of fact, when deemed proper, from the record sent up. This is the sense in which the Legislature used the phrase mentioned, and that- meaning should be carried out by this court.

I therefore concur in the result of the conclusions reached.


author: WOODSON, J.

text:
    THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. EDWARD C. SMITH et al., Appellants.
    Division One,
    June 1, 1917.
    1. CONSOLIDATED SCHOOL DISTRICT: Sufficient Notices and Plats. The notices and plats of the proposed consolidated school district required by the statute to be posted are designed to furnish a means by which the voters of the community can inform themselves of what lands and taxpayers will be included in the district if formed, who will be entitled to vote upon the proposition, the accessibility of the school to patrons and pupils, and the time and place of holding the election; and unless such information can be derived from the notices and plats they are insufficient, and the election would bé void.
    2. -: -: As Shown by Percentage of Voters. The fact that almost all the qualified voters of the proposed consolidated school district were present at the time and place designated in the notices and voted on the proposition, and that no complaint that any one was misled by the notices or plats is made, is some evidence that they were sufficient.
    3. -: -: Heavy Black Lines. Heavy black lines drawn upon the face of a complete map of the numbered townships, with arrows on the margins pointing to the .boundaries, should be held to indicate and constitute the outline or boundaries of the proposed consolidated district upon a plat captioned “Plat of Proposed Consolidated District No. 2 of Platte County,” although it contains no words stating that the boundaries are indicated by the heavy black line. They are at least a substantial compliance with the statute, which is all that is required.
    4. -: Existing Districts Abolished. By the formation and organization of a consolidated school district all existing common . school districts whose territory is embraced within its boundaries are abolished, and their directors cannot thereafter exerciso the functions of their offices.
    5. -: Forfeiture: Failure to Provide for Eight Months’ School. The corporate existence of a consolidated school district can be questioned only by the State in a direct proceeding instituted for that purpose; and it cannot be held in a quo warranto instituted by the Attorney-General to oust school directors of a common school district whose territory has been included in the consolidated district, that the legal existence of the consolidated district has been forfeited for its failure to provide for an eight months’ school.
    Appeal from Platte Circuit Court. — Son. A. D. Burnes, Judge.
    Affirmed.

      James S. Bull and George W. Bay for appellants.
    (1) Defendants did not assert the right to the same office; each claimed his right by a separate election and qualification to a separate and distinct office of one hoard of directors. Therefore the right to challenge their authority to act did not come within the provisions of Sec. 2633, Revised Statutes 1907, and the defendants were right in raising this question in their separate answers. State ex rel. v. Yallins, 140 Mo. 535. (2) The proceedings for the organization of the consolidated district failed to sufficiently indicate whether the entire territory shown on the plat, or only that portion within the heavier and crooked lines thereon, was intended to embrace said district. Therefore no consolidated district was lawfully formed. Laws 1913, p. 722, sec. 3; School District v. District, 94 Mo. 618. (3) If Consolidated District Number Two ever had legal existence, it was forfeited by its failure to provide for an eight months’ school for the period of one year. B. S. 1909, sec. 10776; State ex rel. v. Claxton, 263 Mo. 701.

      Frank W. McAllister, Attorney-General, for respondent; Guy B. Park, N. B. Anderson and J. G. L. Harvey of counsel.
    (1) It was proper to join the three directors as defendants in one office. Such has been the practice. Sec. 1732, B. S. 1909; State ex rel. v. Stone, 152 Mo. 202; State ex rel. v. McClain, 187 Mo. 409; State ex rel. v. Claxton, 263 Mo. 701; State ex rel. v. Wetherby, 45 Mo. 17; State ex rel. v. McBeynolds, 61 Mo. 203; State ex rel. v. Small, 131 Mo. App. 478. Sec. 2633, B. S. 1909, has no application to this case, such section relating only to the statutory quo warranto whereas this is a common-law proceeding. State ex rel. v. Beecher, 160 Mo. 78. (2) The plat posted by the superintendent of schools complied with the statute. In any event substantial compliance only is required, and a liberal rule is applied in determining whether there has been substantial compliance. State ex inf. v. J ones, 266 Mo. 201;' State ex rel. v. Job, 205 Mo. 34; State v. Morgan, 187 S. W. 57; State ex rel. v. Cloud, 192 Mo. App. 322. As to what constitutes a compliance with the clause requiring plat to be posted is determined in State ex rel. v. Glaves, 186 S. W. 687. (3) If the districts were regularly consolidated, such consolidation automatically destroyed the corporate existence of the component districts. Section 6 of the Buford Act so provides, and the entire act contemplates such destruction of the old districts. (4) The corporate existence of the consolidated school district can only be raised by the State in a direct proceeding instituted for that purpose. Black v. Early, 208 Mo. 307; State v. Woods, 233 Mo. 380; Bank v. Bockefeller, 195 Mo. 51; State ex rel. v. Birch, 186 Mo. 219.
   WOODSON, J.

This is a proceeding by quo warranto, instituted in the circuit court of Platte County by the Attorney-General, against the defendants, to oust them from the office of school directors of School District No. 26 of that county. The trial resulted in a judgment of ouster, and after taking proper preliminary steps, the defendants appealed the cause to this court.

"While there were several questions presented to the trial court, there are hut two pressed upon this court for determination. This very much simplifies the facts, and renders it unnecessary to burden the opinion with the pleading or jjreliminary steps taken to bring the case to issue; also eliminates all facts not bearing directly upon the questions here presented. The undisputed .facts are as follows:

On February 24, 1914, there was presented to the school superintendent of said county, a petition signed by sixty resident citizens of School Districts Nos. 20, 21, 25, 26,32,33 and 34. On receipt of said petition the superintendent of schools visited and investigated the needs of the community from which the petition came, and determined the boundaries of the proposed consolidated district. Thereupon a special meeting of the qualified voters of the proposed consolidated district was called for the purpose of considering the question of consolidation, the date of the election being fixed for March 19th, notice of which' election was duly given by posting within the proposed district ten notices in public places, stating the place, time and purpose of the meeting; the notice was given fifteen days prior to the election; the superintendent also caused to be posted within the proposed district five plats thereof; the superintendent filed a copy of the petition and of the plat with the county clerk, and took one to the polls; the meeting was called to order by the superintendent, and C. V. Hull was elected chairman, and W. P. Woodson secretary; tellers were appointed and the result of the election was 123 for consolidation, and 104 against; whereupon a board of directors for the consolidated district was elected; the proceedings of this meeting were certified by the chairman and secretary to the county clerk, and also to the superintendent of schools— all in accordance with the statutory requirements.

So far as the regularity of the proceedings to consolidate the several school districts is concerned the only attack made thereon by the defendants is that the plats posted by the superintendent of schools (“Exh. C,” and “Exh. 0,”) hereto attached and made a part of this statement, do not comply with the statutory requirement.

These plats are supposed to be the same, with slight variations; the object of the introduction of both'is not clearly shown.

The proposed consolidated district occupied portions of townships 53 and 54, portions of which were located in ranges 34 and 35. An examination of the exhibits referred to discloses that the superintendent made a complete map of townships 53 and 54; (that by clerical error he designated Township 53 as Township 54, but there is no point made on such error)’; that he then drew the heavy dark lines appearing on the plats indicating the boundaries of the proposed consolidated district within the two townships, except where creeks which are shown on the-plat constituted the boundaries, and on the margin of the plat a pointer was placed directed towards the lands embraced within the boundaries as above detailed.

The evidence showed that the school directors of District No. 26 and their duly elected successors had continued to exercise the functions of office subsequent to the election and up to the time of the institution of this action, and were “lawfully in the offices they claimed, unless those offices were abolished by virtue of the consolidation of the district.” On the part of relator it was shown that the directors of the consolidated school district employed a teacher, but the salary had not been paid because the county treasurer would not honor the warrants of the consolidated school district.

It aso showed that no consolidated school had in fact been conducted in the territory alleged to have been organized as said Consolidated School District Number 2, from the time of its organization to the time of the trial in the circuit court. Said exhibits are as follows:

I. The first legal proposition presented to this court for determination is stated by counsel for appellants in the following language:

“The proceedings for the organization of the consolidated district failed to sufficiently indicate whether the entire territory shown on the plat, or only that portion within the heavier and crooked lines thereon, was intended to embrace said district. Therefore no consolidated district was lawfully formed. ’ ’

In support of this proposition we are cited to Section 3, page 722, Laws 1913, and School District No. 1 v. School District No. 4, 94 Mo. 612, l. c. 618.

Said section in so far as is here material, relates to the calling of a special election to vote on the proposed consolidation and the plat to be posted therein, and reads as follows: “He [the superintendent of schools] shall make this call by posting within the proposed districts ten notices in public places, stating the place, time and purpose of such meeting. . . . The county superintendent shall also post within said proposed district five plats of the proposed consolidated district at least fifteen days prior to the date of the special meeting.”

The purpose of the call, as stated in the statute, is to notify the voters of the proposed district of the time, place and purpose of the election to be held. This is to call to their minds the proposition whether or not the proposed consolidated district shall be formed; and the object of posting the plat is to inform the voters of the proposed district the boundaries thereof. Prom that they may be informed as to the territory, the taxpayers, and the patrons to be embraced therein. Such knowledge has a material bearing upon the minds of the voters and the election to be held in the following particulars :

(1) What property will be included in the proposed district? (2) Do the people thereof want such a school? (3) Will the taxes to be levied upon the property therein be sufficient to support the school? And (4) the convenience of the school to the patrons thereof.

No one could or would vote at the' election if not included in the proposed district, nor would anyone vote for the consolidation who was not in favor of the school or who believed the taxes would be insufficient to support the same, or that the school would be too inconvenient for their children; therefore, unless the notice is given, as required by statute, which will cause the voters to investigate the matter, the election would be void. [School District No. 1 v. School District No. 4, supra.]

And for similar, if not for stronger reasons, the election would be void if the plats mentioned were not properly made and posted, as required by the statute. .

This brings us to the discussion of the question as to whether or not the plat as posted was a sufficient compliance with the statute.

In answering this question it should be borne in mind, as previously indicated, that the object of the statute requiring the plats to be made and posted, is to give the voters an opportunity to investigate the wisdom of the proposed organization of the district. And as a further preliminary observation, I might add that no complaint is lodged here, or was made in the court below, that the voters were in fact misled or deceived by the plats or otherwise, as to the propositions, they were voting upon;. but upon the contrary, the record shows that one hundred and twenty-three voted for the consolidation and one hundred and four voted against it, making a total of two hundred and twenty-seven votes cast at the election, which, according to uncontradicted statements made in open court in the argument of the cause, was practically the entire vote of the consolidated district.

Now, as to the plat itself: The record discloses that the proposed consolidated district occupies parts of townships 53 and 54, portions of which are located in ranges 34 and 35; that the superintendent in preparing the plat made a complete map of said Townships 53 and 54, according to the Congressional survey; that he then drew along and over the face of the same, heavy, dark lines, as shown by said exhibits, indicating thereon the boundaries of the proposed consolidated district, except where creeks constituting portions of the boundary are shown on the plat by meandering lines; and on the margin of the plat an arrow points toward the lands embraced within the boundaries as above detailed and indicated upon the original plat, omitted from the exhibit..

Under the facts and circumstances disclosed by this record, clearly the dark, heavy and meandering lines mentioned, appearing upon the plat introduced in evidence indicate and constitute the boundary lines of the proposed consolidated school district mentioned in the pleadings and evidence.

Counsel for appellants have not indicated what other purpose those lines could perform; nor is it claimed that the voters of the district did not understand that they consituted the boundaries of the district, but upon the contrary, this record conclusively shows that they did so understand them, and voted accordingly.

If this plat is not a literal compliance with the statute, it cannot be successfully contended that it is not a substantial compliance therewith; and that is all the law requires. [State ex inf. v. Jones, 266 Mo. l. c. 201; State ex rel. v. Job, 205 Mo. l. c. 34; State ex inf. v. Morgan, 268 Mo. 265; State ex rel. v. Cloud, 192 Mo. App. 322; State ex rel. v. Glaves, 268 Mo. 100.]

The evidence showed that the school directors of School District No. 26, and their duly elected successors, had continued to exercise the functions of their office ever since the election held on March 19, 1914, to consolidate said school district; but under the view of the law, as expressed, said School District No. 26 was abolished by virtue of said consolidation; that is the express provision of Section 6, page 723, Laws 1913.

Upon that state of facts we must and do hold that the appellants are unlawfully holding the office of school directors of said School District No. 26, there being no such district when this suit was instituted, and they are therefore illegally performing the functions thereof.

II. The second ground assigned for a reversal of the judgment of the circuit court is stated by counsel for appellants as follows:

“If Consolidated District Number Two ever bad legal existence, it was forfeited by its failure to provide for an eight months’ school for the period of one year. [R. S. 1909, sec. 10776.]”

In answer to that assignment it is sufficient to state that the law is well settled in this State, that the corporate existence of the consolidated district can only be questioned by the State in a direct proceeding instituted for that purpose. [Black v. Early, 208 M.o. l. c. 307; State ex inf. v. Woods, 233 Mo. 380; Bank v. Rockefeller, 195 Mo. l. c. 51; State ex rel. v. Birch, 186 Mo. l. c. 219.]

For the reasons stated, the judgment of the circuit court is affirmed.

All concur.