author: BROWN, C.

text:
    CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. JAS. M. McCOOEY et al., Appellants.
    Division One,
    December 22, 1917.
    1. CHARTER OE RAILROAD: Interpretation. The charter of a railroad, organized for the purpose of constructing a line of railroad between a named point in Iowa and a named point in Missouri, must be construed with reference to tbe existing conditions to wbicb it referred, and its words will not be strained to fit an absurdity. Where the charter said “the railroad is to extend” from Keokuk, Iowa, to St. Louis, Missouri, “it being intended to purchase the railway” of another company “between Keokuk, Iowa, and Dardenne, Missouri, and construct and complete the same to St. Louis, Missouri,” it will not be held that the company had no power to construct a railroad between Keokuk and Dardenne; the company’s charter power to construct a railroad cannot be confined to ilie short distance between Dardenne and St. Louis.

      2. EMINENT DOMAIN: Power of Legislature and Courts. The power to take the property of the individual for public uses is inherent in the government which creates and protects by law the private ’ “ right, and resides in the Legislature, and may be exercised through such agencies as it may create, subject only to the restrictions of the Constitution, which limits the legislative discretion by declaring that whether the contemplated use be really public shall be a judicial question.
    3. -: Railroad: Necessity. A chartered railroad, including its construction, maintenance and operation, is a public use, and that being true the question for determination is whether the power of eminent domain conferred upon the company by the statute includes the right to condemn the particular land for the purpose stated in its petition. No fraud being alleged, the necessity for the taking is to be determined by the railroad company, and not by the courts.
    4. -:-: Map and Profile. The General Statutes of 1865 did not require the filing by a railroad company of" a map of its right of way, but only a map of “the route intended to be adopted,” and the statute of 1877 by using the word “roadbed” excludes the idea that the map should include the right of way; and the fact that the railroad company has for more than thirty years been operating its trains along a track within a few feet of the land sought to be condemned, and forming a part of a continuous line, demonstrates, without the aid of a profile map then filed, that the road had been located; and the fact that the map was not filed until after the work of construction was begun in the county does not affect the power of eminent domain conferred on the company by the statutes.
    5. -: -: -: Joint Use of Connecting Track: Right to • Construct After Expiration of Contract. The profile map showed the route intended to be adopted by plaintiff company, and also a gap of three-quarters of a mile near a bridge that was to be connected by the track of another railroad, and showed that plaintiff’s track, together with this link supplied by the other road, constituted a continuous line of 165 miles. The statute then and now in force authorized railroads to “contract with each other in any manner not inconsistent with the scope, object and purpose of their- creation and management,” and the plaintiff contracted with the other company for the joint use of this “gap” track, by which it became available for all purposes for which plaintiff was incorporated, and this .joint use continued for thirty years, and now at the point of this gap plaintiff wishes to condemn a narrow strip along the right of way of the other road and thus supply the link in its track. Another statute (Sec. 3212, R. S. 1909) provides that if a railway company “shall not finish its road and put it in operation in ten years from the filing of its articles of association, its corporate existence and powers shall cease.” Held, that plaintiff’s line at the point of the gap was, within the meaning of the statute, finished and in operation within the ten years allowed by it, and that said profile map was sufficient for the purpose of this condemnation proceeding.
    6. -: -: Joint Use of Connecting Track: Abandonment and Election: Future Power to Condemn. An arrangement between the plaintiff railroad company and another company by which for thirty years both companies used a small part of the latter’s track, which formed a connecting link in plaintiff’s track and thereby constituted it a continuous line, was not an abandonment by the plaintiff of its right, after the' arrangement ceased, to condemn land at that point and thus supply the link in its track, nor did it elect to stand forever upon the rights acquired by the arrangement, though its profile map filed showed this portion of the other company’s track to constitute a link in its track. The statute does not contain any limitation of time for the condemning by a railroad company of land made necessary by any condition relating to construction, protection or improvement, but on the contrary requires it to exercise the right whenever the public service requires it.
    Appeal from Hannibal Court of Common Pleas. — How. William T, Ragland, Judge.
    Affirmed.

      Nelson & Rigger for appellants; F. L. Schofield, of counsel.
    (1) Where private property is sought to be taken against the will of the owner under statutory authority all the statutory requirements must be fully and strictly complied with. Railway v. Davis, 197 Mo. 669; Railroad v. Leewright, 113 Mo. 667; Ells v. Railroad, 51 Mo. 200; St. Louis v. Koch, 169 Mo. 587; Williams v. Kirby, 169 Mo. 622; Railroad v. Young,. 96 Mo. 39. And the question of the existence of the power is a jurisdictional one and may be controverted at any stage of the proceedings. Hopkins v. Railroad, 79 Mo. 98; Railroad v. Campbell, 62 Mo. 585. When the power of eminent domain is sought to be exercised by a railroad company, it must act within the time limited to the company in its charter. Railroad v. St. Louis, 66 Mo. 250; Railway v. Railway, 129 Mo. 70. (2) It is believed that the only legislative authority conferred upon railroad corporations in this State to condemn rights of way for the main line of their roads is to be found in the following section of the statutes: R. S. 1909, sec. 3048, 3049, 3074, 3212. The right of condemnation asserted and pursued by the plaintiff in this case is not conferred or supported by any of the above sections nor, it is believed, by any other statutory authority. (3) The power to condemn here asserted is based upon the plaintiff’s succession in ownership and right, as assignee, of the'St. Louis, Keokuk & Northwestern Railway Company. But that company never acquired such power in respect of the property of the defendants here involved, (a) The articles of association of that company neither contemplated nor authorized the building of any railroad except an extension of the old Mississippi Valley & Western railroad from the town of Dardenne in St. Charles County to' the city of St. Louis, (b) The profile map of that company itself clearly shows that its railroad, built or proposed, did not pass over, run across or even approach these lands of the defendants here involved. Railway v. Davis, 197 Mo. 669. (e) The profile map fails to show any definite width by actual survey “laid out,” as required by statute. R. S. 1909, secs. 3048, 3049. (d) But, even if the profile map did show a definite width by actual survey for the right of way, and even if it did show the location of its railroad upon and across the property of the defendants, still, such right of condemnation expired by a failure to finish its railroad and put it into operation within ten years limited to it by the statute. R. S. 1909, sec. 3212. (4) Even if it be conceded that the St. Louis, Keokuk & Northwestern Railway Company had acquired and perfected a full right to enter upon and condemn the property of defendants prior to 1878, in that year said company entered into a contract with the Hannibal Bridge Company whereby it provided and secured for itself both a temporary traffic arrangement and.a definite provision for an ultimate permanent right of way of its own across these two city blocks over ground not owned by these defendants but owned by the Bridge Company. By so doing that Railway Company avoided the necessity and cost of condemning ' and paying for a right of way across said city blocks on defendants’ property, and it and its successor, the plaintiff company, having gone into possession of and used the rights acquired by this contract for more than thirty-five years, must now be held to have abandoned whatever right to condemn defendants’ property which said company may have had, if it ever had any such right. Railway v. Davis, 197 Mo. 676; Investment Co. v. Railroad, 108 Mo. 50. Furthermore the St. Louis, Keokuk and Northwestern Railway Company by so providing itself with a right of condemnation across these two blocks .on the right of way ground of the Bridge Company, elected to be satisfied with such narrow right of way so acquired. Neither that company nor its successor, the plaintiff company, after standing on this election for a period of thirty-five years, can now repudiate it. Railway v. Railroad, 135 Mo. 557. (5) The “right to condemn more land” for a right of way, necessarily impijes the existence 'of some present right of way which is to be widened to meet the need. In the case at bar the effort is not to widen a narrow right of way already existing, and owned by the condemning company ; but the effort is to acquire an entirely new right of way where no right of way existed before. No statutory authority can be found to authorize such a proceeding. (6) If the right to condemn “more right of way” across these two city blocks exists anywhere, it abides only in the Bridge Company whose present right of way borders on defendants’ land, and not in the plaintiff company which possesses no right of way whatever immediately adjacent to defendants’ lands. In such a ease, insofar as relates to the main line of road, ‘ ‘ the right of way is restricted to what was originally claimed; ” “ and whatever lien upon or right to the land it may have secured by locating its road and filing its map, will be confined to the quantity it elected to take.” Railway v. Railroad, 135 Mo. 557.

      Chester M. Dawes, O. M. Spencer and Mahan, Smith & Mahan for respondent.
    (1) Plaintiff has full power to condemn the property and the action of the trial judge in entering a judgment of condemnation was right. Secs. 3039, 3049, 3074, 3078, 2360, 2368, R. S. 1909; Bridge Co. v. Stone, 174 Mo. 49; State ex rel. v. Cook, 171 Mo. 360; Railway y. Lewright, 113 Mo. 660; Gray v. Railroad, 81 „Mo. 126. (2) Having acquired a right of way and used the Bridge Company tracks as a part thereof, plaintiff can lawfully condemn the adjoining property within its one-hundred-foot-wide right of way. Lewis on Eminent Domain (3 Ed.), secs. 403, 221; In re Railroad, 21 Atl. 969; Gardner v. Railway, 43 S. E. 867; Hopkins v. Railway, 51 Atl. 404; Childs v. Railway, 33 N. J. L. 323; Railway v. Railway, 71 N. E. 1019. (3) All of the evidence shows, and the court found, that plaintiff and its predecessors had for thirty-five years a lawfully-acquired and daily-used right of way from Keokuk to St. Louis across part of defendant’s property, and that the property sought to be condemned is within its hundred-foot wide right of way; and that plaintiff has the right to condemn it. This concludes defendants and the finding of the trial court will not be reviewed. State ex rel. v. Railway, 162 Mo. 399; Nickey v. Leader, 235 Mo. 43; Wellman v. St. Ry. Co., 219 Mo. 150; Brecker v. Fillingham, 209 Mo. 583.
   BROWN, C.

This proceeding was instituted in the circuit court for Marion County on February 15, 1908, by petition under what is now Section 2360, Revised Statutes 1909, to appropriate by condemnation a strip of land in blocks 33 and 50 of the city of Hannibal belonging to defendant, for the purpose of constructing and operating thereon a double-track railway. The strip lies east of and adjoining the right of way of the Hannibal Bridge Company thirty feet wide upon which it operates its tracks, and, in connection with that right of way, does not exceed the width of one hundred feet at its widest part. The petition stated, in substance, that the plaintiff was a corporation of the State of Illinois, doing business in Missouri, and owning a railroad in this State, of which the contemplated tracks across defendants’ land wouhl constitute a part; and that said tracks were necessary to facilitate the performance of its public duties. •_

Upon the filing of the petition in vacation commissioners were appointed to assess the damages, and upon the coming in of their report plaintiff: paid to the clerk the amount of their award, and proceeded with the construction of its road, which had been completed and was in operation at the time of the trial.

At the September term, 1908, and on the 29th day of that month, the plaintiff filed a second amended petition of which the object was the condemnation of the same land for the same purpose as in the original petition. The defendants answered, admitting the ownership of the land as charged and denying every other allegation. On the same day the cause was tried to a jury on this petition and answer, and a verdict was returned assessing the damages of the several defendants on account of their respective interests in amounts aggregating seven thousand five hundred dollars. As to this amount no question is made by defendants in their briefs. On the contrary, they say that the very basis of their contention is that “neither the plaintiff nor any of its antecedent corporations ever had any located right of way” whatever over these city blocks. Pursuant to this theory they filed, at the close of all the evidence, a motion which, omitting its title and signature is as follows:

“The defendants move the court to dismiss the proceedings for the reason that the petition does not state facts sufficient to constitute a cause of action and because the evidence in the cause fails to show any right on the part of the plaintiff to condemn the property as prayed in the petition.”

The facts pertinent to the issues so presented are that in June, 1875, the Mississippi Valley & Western Railway Company, a corporation formed by consolidation under the laws of Missouri and Iowa, of an Iowa corporation of the same name, and a Missouri corporation named the Mississippi & Missouri River Air Line Railroad Company, owned a railroad extending from the west end of the railroad bridge at Keokuk, Iowa, to Hannibal, Missouri, where it connected, at a point about eighteen hundred feet south of the west end of the railroad bridge over the Mississippi River at that point, with a track belonging to the Bridge Company, and called in the record the “Wabash track.” This track extended southerly from the point of connection forty-seven-hundredths of a mile, passing into the city, past the land in controversy, and, at the end of that distance, disappeared in a connection with a track belonging to the Missouri, Kansas & Texas Railway Company. Whatever business the Mississippi Valley & Western Railway Company may have had in Hannibal, including access to the bridge and transfer to other railways, was done by passing over this track. If it ever had any authority to construct or operate any railroad south of West Quincy, where the line authorized by its charter terminates, it does not appear in this record; nor does it appear that it ever located any railroad south of its connection with the Wabash track already mentioned.

On May 17, 1875, the St. Louis, Keokuk & Northwestern Railway Company was incorporated in Iowa “for the purpose of purchasing, constructing, maintaining ánd operating a railroad for public use in the conveyance of persons and property” from Keokuk to St. Louis, a distance of 165 miles. Section 3 of its Articles of Association is as follows: “Said road is to extend from the Keokuk and Hamilton Bridge Company’s bridge at Keokuk, Lee County, Iowa, to the Mississippi River and also the Missouri Pacific Railroad Depot at St. Louis, Missouri, and such other point in the city of St. Louis as the board of directors shall determine. It being intended to purchase the railway of the Mississippi Valley & Western Railway Company, between Keokuk, Iowa, and Dardenne, Missouri, and construct and complete the same to St. Louis, Missouri.”

At some time during the year 1876 it began the construction of its railroad from Hannibal south, beginning at a point of connection with the Missouri, Kansas & Texas track twenty-seven-hundredths of a mile south of the south end of the Wabash track we have described. It completed the line to Louisiana during the first year, and to a connection with the St. Louis, Kansas City & Northern at St. Peters (Dardenne) in 1879. Ever since its extension south from Hannibal and up to the institution of this proceeding, the road has been operated seventy-four-hundredths of a mile over the Wabash and Missouri, Kansas & Texas tracks described, there being no other tracks or right of way covering that distance.

In August, 1877, it filed in the office of the county clerk a profile map of its line in Marion County. The part pertinent to this case is in evidence and consists of a solid black line drawn from the north, showing the position of the Mississippi Valley & Western track to its point of connection with the “Wabash” track, from which it is continued with a dotted or broken line along the Wabash and Missouri, Kansas & Texas tracks, marked respectively with the names of those companies, to the point of connection of the latter with the new Keokuk & Northwestern track.

In 1878 (December 4th) it made a contract with the Hannibal Bridge Company by which the latter agreed to permit it to continue to operate its trains over the tracks of the Bridge Company formerly used by the Mississippi Valley & Western, in consideration of a rental of $125 per month, under reasonable rules to be prescribed by the Bridge Company, and certain privileges upon the tracks of the St. Louis, Keokuk & Northwestern. This instrument provided that the privilege granted might be revoked by the Bridge Company upon six months’ notice, and that upon such revocation the railway company might proceed to condemn a right of way twenty feet wide off the west side of the Bridge Company’s track to cover the gap left in its line by such revocation. It does not clearly appear in the record that the bridge approach included in the contract covered the Missouri, Kansas & Texas track, and it is not important.

The plaintiff company acquired the property of the St. Louis, Keokuk & Northwestern Railroad Company by mesne conveyances not necessary to mention, in 1901, and on February 9, 1908, filed a profile map or plat for Marion County, showing the actual survey, location and distance of its road through Marion County, and its contemplated tracks over the land sought to be condemned in this suit, and gave notice to the owners of the various tracts upon which its said tracks were located, including the defendants.

This plat was practically the same in other respects as the plat of the St. Louis, Keokuk & Northwestern plat filed in August, 1877, with the exception that each of the old connections with the bridge track was marked with tlie words and letters “end of St L., K. & N. W. R. ”

I. It is suggested by the appellant that the St. Louis, Keokuk & Northwestern Railway Company had no power, under its charter, to construct any railroad other than that over the short distance intervening between Dardenne, in St. Charles County, to St. Louis, They say that although the purpose expressed in its charter was to purchase, construct, maintain and operate a railroad from Keokuk to St. Louis, the expression of its intention “to purchase the railway of the Mississippi Valley & Western Railway Company, between Keokuk, .Iowa, and Dardenne, Missouri, and construct and complete the same to St. Louis, Missouri” was such an assertion that its predecessor owned a completed railroad all the way from Keokuk to Dardenne that it cannot be disputed by the fact that it had no road between Hannibal and Dardenne, nor any authority to build one. This -is a misconstruction of the words of the charter, which must, of course, be construed with reference to the existing condition to which it referred. The railroad from Keokuk to Hannibal was necessarily the railroad described in the charter as the line intended to be purchased, and its completion to St. Louis necessarily involved the construction of a line to the latter city from a connection with the purchased line at Hannibal, which was accurately described as being “between Keokuk and St. Louis.” The evidence is conclusive that whatever was done toward the completion of that line was done by authority conferred in the charter of the Keokuk & Northwestern Railway Company, and in compliance with the laws of this State. The interpretation of the language of the charter suggested by defendants would be straining the words to fit an absurdity. This charter, and the laws of this State giving it life to the same extent as if it were a domestic corporation, afford the rule which must govern us in this case. It is not denied that all their faculties have become vested in the plaintiff corporation, which occupies the same position with reference to this proceeding as would the Keokuk Company had its ownership continued.

II. Although it may savor of pedagogism, we must nevertheless approach every condemnation case from the time-worn and self-evident proposition that the power to take the property of the individual for public purposes is inherent in the government which croa^es and protects by law the private right. • That in governments like ours this power of eminent domain resides in the Legislature, and may be exercised through such agencies as it may create, subject only to the restrictions of the organic law, is equally axiomatic. [Telephone & Telegraph Co. v. Railroad, 202 Mo. 656; Railroad v. Union Depot Co., 125 Mo. 82; Bridge Co. v. Stone, 174 Mo. 1, 194 Mo. 175; City of Savannah v. Hancock, 91 Mo. 54.] Many cases to the same effect in other jurisdictions are collected in an exhaustive note to Grafton v. Railway Co., 22 L. R. A. (N. S.) 1. The general doctrine seems to be that the exercise of the right of eminent domain stands on the same footing as the power of taxation in the sense .that both emanate from the lawmaking power, and are attributes of political sovereignty, for the exercise of which the Legislature is under no necessity to address itself to the courts. In Telephone & Telegraph Co. v. Railroad, supra, l. c. 677, this court said: “Who is to determine the necessity, expediency and propriety of exercising this delegated right of eminent domain? Is it the courts, or the donee of this power?” This court, through the late Judge Vauliant, expressed the same idea in Light Co. v. Scheurich, 174 Mo. 235, l. c. 241, as follows: “It” (the right of eminent domain) “is a sovereign power to be used only by the sovereign or by one on whom the sovereign has conferred it for a particular use, and when conferred it is to be treated as an invasion of the rights of the individual whose property is to be taken and therefore to be strictly construed.” That is to say, the legislative power to exercise the right must be bestowed upon the selected agency in express terms or by necessary implications. [Telephone & Telegraph Co. v. Railroad, supra.]

The legislative discretion in this respect is limited, to be sure, by that provision of Section 20 of Article 2 of our Constitution which requires that “whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined without regard to any legislative assertion that the use is public.” That the plaintiff’s railroad, including its construction, maintenance and operation, is a public use within the meaning of this provision is not questioned nor is it open to question. The only question presented is whether the power of eminent domain conferred upon it by statute includes the right to condemn .this land for the purpose stated in the petition. If so, there being no fraud alleged, the necessity for the taking is a question which must be determined by the plaintiff, and not by the court. In considering this, we shall, as we have already intimated, and as we are invited to do by the parties in their briefs, ignore the several transfers made after the acquisition of title to the property by the St. Louis, Keokuk & Northwestern Railway Company, and assume that the plaintiff is simply standing in its shoes.

III. That the railway company, when this proceeding was begun, had been operating its trains between Keokuk and St. Louis along á track passing' within a few feet of this land, and forming a part ^s continuous line, would seem to be a visible demonstration that the road, had been located, which needs no aid from the “profile map” filed thirty years before, but the rule that the legislative power invoked by plaintiff must be clear and explicit, calls for an examination of the relation of this map to the power asserted.

At the time the Keokuk Company was incorporated and qualified to transact the business of its incorporation in this State, such corporation was authorized “to lay out its road, not exceeding one hundred feet in width, and to construct the same, and for the purpose of cuttings and embankments to take as much more land as may be necessary for the proper construction and security of the road” (G. S. 1865, p. 332, sec. 2, par. 3) and was required (Id., p. 337, sec. 12) before beginning the construction of its road or any part thereof into or through any county named in its articles of association, to make a map and profile of the route intended to be adopted by such company in such county, and to file the same in the office of the county clerk, and to give notice to every person occupying lands over which the route of the road is so designated, and which has not already been acquired by purchase or donation.

It will be noted that this law did not require the filing of any map of the right of way, but only of the route intended to be adopted. By act approved April 24, 1877 (Law 1877, p. 369, sec. 1) the present law (R. S. 1909, sec. 3074) it was specified that the map should show the actual survey, location and distance of the roadbed through each congressional section of the county. We think that the careful insertion of the word “roadbed” in this act excludes the idea that it was intended to include a map of the right of way, and left the power of the corporation with reference to the width of its road as expressed in the clause we have quoted from the General Statutes unaffected. That this was necessarily the legislative intent is also apparent from its provisions. The map is required to be filed before constructing any part of the road through the county. The construction contended for would prohibit any provision in land for protection against such infirmities as might develop in the ground during construction, and might render it impossible to modify its grade by additional cuttings and embankments to meet the growth of its traffic. It is not the policy of our laws that the wonderful growth of our country should be provided and paid for in advance and the cost charged upon the people as additional transportation expense, but that these facilities should go hand in hand with the prosperity of the country. Without determining whether or not the profile map has any connection with the right of plaintiff to maintain this proceeding, we hold that it is sufficient as an exhibit of the conditions then existing, and that the fact that it was not filed until after* the beginning of the work in Marion County does not affect the power of eminent domain conferred upon plaintiff by the statutes.

IY. At the time of the construction of its railroad south from Hannibal the Keokuk & Northwestern Railroad Company, instead of building its own track through that city,. made a written contract by which it was authorized to use a track of the Hannibal Bridge Company for a distance of about three-fourths of a mile, and ever since the completion of its line, and covering a period of about thirty years before the institution of this proceeding, it has moved all its traffic, including many trains daily between Keokuk and St. Louis, over this track. The bridge track so used was situated on the east side of a right of way thirty feet wide upon which it maintained two tracks for a portion of the distance, inclnding the track used by plaintiff and its predecessors. This contract gave the Bridge Company the right to terminate it at will upon notice and in case of such termination gave the Eailroad Company the right to condemn land for a track off the west side of the thirty foot strip. The petition states, in substance, that the business of the plaintiff now requires two tracks, for right of way for which this proceeding is instituted.

The statute in force since before the incorporation of the Keokuk Company (R. S. 1909, sec. 3212) provides that if the Eailway Company “shall not finish its road and put it in operation in ten years from the time of filing its articles of association ... its corporate existence and powers shall cease: Provided, that if a portion of its road shall be finished and in operation, it shall continue its corporate existence, with power to hold and manage the portion of its road so constructed, and for no other purpose. ’ ’ The defendants contend that, having failed to construct its road over the three-quarters of a mile covered by the use of the bridge track, the corporate powers of the Keokuk Company, including the right of condemnation, ceased, and it was without a charter covering that portion of its line. This leads necessarily to the consideration of the question whether under the provision of the statute we have just quoted it did “finish its road and put it in operation.” Section 3106, Eevised Statutes 1909, which has been in force since 1866, provides as follows: “All railroad corporations may contract with each other, or with other corporations, in any manner not inconsistent with the scope, object and purpose of their creation and management.” This section is comprehensive and has been comprehensively construed by this court in St. Joseph & St. Louis Railroad Co. v. St. Louis, Iron Mountain & Southern Railway Co., 135 Mo. 173. It includes in its categories all railroad-com panies and all subjects tending towards the carrying out of the purposes of their creation and management. It is frequently of interest to the public that two tracks should not be required where one is entirely sufficient for the service. [Joy v. St Louis, 138 U. S. 1.] And, as we have intimated in a previous paragraph, useless construction tends to increase the burden, of the public in transportation charges. Under this statute the Railroad Company has the right to contract with the Bridge Company that the track of the latter might be used for all purposes of operation required of the former by the laws which constituted its charter, so long as it should prove amply sufficient for the use of both; and when it should become insufficient it was the duty of each to provide such further facilities as the satifactory performance of its public duties might require. It is true that the instrument embodying the contract did not in this case constitute a lease. The power to regulate the use of the Keokuk Company by reasonable regulations was expressly reserved. It was an operating arrangement by which the track became available to the Keokuk Company for all the purposes for which it was incorporated, and the Bridge Company’s tracks thereby became a part of the Keokuk Company’s line from Keokuk to St. Louis to the same extent as if it had constructed it and granted to the Bridge Company the right to share in its use. The provision of the contract that should the right to use this track be withdrawn, the Keokuk Company might condemn twenty feet of ground on the west side of it held by the Bridge Company as a part of its right of way need not be considered in connection with this question. The railroad company was under no obligation to avail itself of the privilege, and the fact that a double track is now necessary to the transaction of its business charges it with the duty to employ its charier powers to furnish that facility.

We think that the “profile map” filed by the Keokuk Company in April, 1878, properly and plainly shows the situation as we have stated it. It shows the railroad constructed and to be constructed by that company and also that the gap of three-quarters of a mile was to be connected by the tracks designated as the Toledo, Wabash & Western and the Missouri, Kansas & Texas tracks, and that these together with the plaintiff’s track constituted a continuous line. We can see nothing in the statute specifying the character of the lines to be used in the profile of the roadbed. It was here necessary and proper to distinguish between all the tracks owned by the railroad company and those over which it merely had operating rights. We think the line at this point was, within the meaning of the statute, finished and in operation within the ten years allowed by this statute, and that the profile map in question was sufficient for the purpose of this proceeding.

V. The real question in this case is raised by the assertion of the defendant that the arrangement with reference to trackage and right of way between the Keokuk Company and the Bridge Company constituted an abandonment by the former of the right to condemn the defendants’ property. In other words it elected to stand forever upon the rights so acquired. As authority for the position, they cite Joplin & Western Railway Co. v. Kansas City, Ft. Scott & Memphis Railroad Co., 135 Mo. 549; Kansas City Interurban Railway Co. v. Davis, 197 Mo. l. c. 676; and Roanoke Investment Co. v. Kansas City & Southeastern Railway Co., 108 Mo. 50. Before proceeding further with the question so presented we will notice these cases. The Joplin case was injunction to prevent defendant from constructing its track over a strip of land twenty-five feet wide adjoining the smelter of the Empire Zinc Company, to be used as a spur to serve that industry. The strip mentioned was all the land lying between that industry and a stxip twenty-five feet wide which' the plaintiff had purchased from the Zinc Company for the same purpose, and upon which it was already constructing its track and had filed its profile map. The defendant contracted with the Zinc Company for a conveyance of the intervening twenty-five feet and immediately took possession and prepared to build its track thereon. Afterward and on the same day plaintiff commenced proceedings to condemn for “main track and side track” the land for which, defendants had contracted, and brought this suit for injunction. This court said: “In view of those facts plaintiff must be held to have elected to take and hold twenty-five feet for its right of way instead of one hundred feet as authorized by the statute and. whatever lien upon or right to the land it may have secured j)y locating its road and filing its map will be confined to the quantity it elected to take.” The plaintiff’s contention was “that by adopting its route and making and filing its profile map, it became entitled to take by purchase or condemnation, and hold, for its right of way, one hundred feet of the land of the Zinc Company upon which a lien, or right, became impressed, which could not be defeated by the sale and conveyance by the owner to defendant.” The court said that it did not think the record required it to consider these questions and states that “the statute does not require that the right of way shall be one hundred feet wide, but gives the corporation power to take and hold land for that purpose not exceeding one hundred feet in width. The railroad company may take less, but it cannot take more than one hundred feet, except for the purpose mentioned. As between the corporation and the landowner and his grantees, the right of way is restricted to what was originally claimed. If it should be afterward found that additional land is required, the corporation would have to deal with those who might then be interested.” It will be seen from the above that the court refused, when it was presented, to discuss the question presented by defendants in this ease, and disposed of the case on the sole ground that by the location of its' road and filing of the profile map the plaintiff acquired no lien upon the strip of land it was authorized to take as the maximum of the right of way. That consequently the owner might convey it and that his conveyance would transform the transaction to one between the railroad company and the new owner. We can see no hint in this case of any intention to decide that the right of condemnation would be cut off as against any one so taking tbe title for bis own instead of a public use.

Tbe Interurban case is covered by the following paragraph in the syllabus: “The power given to a railroad company to condemn private property for its own use is to be exercised within strict limits. The law does not authorize the incorporating of a company with a roving commission to go anywhere in the State a^d condemn land in spots.” The only question was as to whether a charter authorizing the construction and operation of a road from Kansas City to Pleasant Hill, Missouri, had given the corporation the right to condemn land for the construction and operation of a railroad from a point in Kansas City to Swope Park. This court held that these were two separate propositions, and that it did not have that right. In the Investment Company case, which was injunction, it was held that the right of way had been abandoned and. the road built upon another line.

There is nothing in any of these cases, nor in any other Missouri case that we have been able to find, that supports the point to which they are cited. On the other hand there is much in the text books and in the adjudication in other jurisdictions against it. In Lewis on Eminent Domain (3 Ed.), sec. 403, the rule, with some of the reasons supporting it, is stated as follows: “In the absence of any restriction or limitation, the power to take private property may be exercised by the grantee from time to time as necessity requires. If this were not so, it would be necessary to anticipate all future needs at the outset. The company condemning would thus not only have to take and pay for property in advance, but it might be saddled with property which it would never use at all. On the other hand, either from taking too narrow a view of the future or from the growth of business beyond any reasonable anticipation, it might in a few years find itself unable property to discharge its duties to the public. Accordingly a railroad company, after having located and completed its road, may, as the expansion of- its business requires, and within the limitations imposed by statute, if any, take additional land for right of way.”

Mr. Nichols, in his excellent work on the same subject-just published, says: “After the railroad has been constructed, land may be taken for additional main tracks, if needed for expeditious public travel.” [P. 189.]

The English case of Ayr Harbour Trustees v. Oswald, 22 English Ruling Cases, 167, 8 App. Cas. 626, is directly in point. In that case, which was for condemnation of lands for roadway and wharves for access to a harbour, it was held in the House of Lords that the trustees of the harbour could not limit the amount of damages by an agreement that it would not erect certain structure that would embarrass the owner’s access to the harbour from his remaining lands. Lord Blackburn, who wrote the opinion, placed the decision on substantially the following grounds: The right to the appropriation depended upon the public use to which the lands were to be appropriated; that their appropriation under an act which made no provision for a restricted use was inconsistent with such limitations and the limitation void. While it is unnecessary for us to express any opinion upon that decision, which goes beyond the region we must traverse in the consideration of the case before us, we cordially approve the doctrine that it is not within the power of a railway corporation to barter away or otherwise surrender the powers granted it for, the benefit of the public, but they must remain ready to exercise them whenever the public interest requires it. They cannot exercise the rights granted them and at the same time repudiate the duties imposed as compensation -for those rights.

Our statute (R. S. 1909, sec. 3049) gives to the railway company the right “to lay out its road, not exceeding one hundred feet in width, and to construct the same; and, for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road.” No distinction is made in the matter of time or otherwise, between lands taken or held by grant or condemnation or between lands acquired outside the one hundred feet limit or inside it. Should the exigencies of the traffic require that the grade should be reduced by higher embankments and deeper excavations than could be constructed and maintained in the width limited, or if erosion by a water course or a necessity for drainage or any other condition requiring more lands for protection of the tracks against it should occur, the right to take the additional land is, so far as the words of the act go, subject to the same limitations as the right to take the original one hundred feet. We mention this for the purpose of pointing out that there is nothing in the words of the act which indicate a limitation of the time of taking land required by any condition relating to construction, protection or improvement. All these questions are left to be determined as the conditions occur. The only reasonable construction that can be placed upon this clause is that the one hundred feet is available everywhere, and always by either condemnation or purchase, while the ■power to take additional land must depend upon the emergency that calls it into being. This question, arising under similar statutes relating to the width of the right of way, has come before the courts of other states, which have always held in accordance with the view we have expressed. [Hopkins v. Philadelphia, Wilmington & Baltimore Ry. Co., 94 Md. 257; Childs v. Central Railroad Co., 33 N. J. L. 323; Chicago & M. Elec. Ry. Co. v. Chicago & N. W. Ry. Co., 71 N. E. l. c. 1019, column 2.] The Maryland case above cited is “on all-fours” with the case at bar, and the New Jersey case cannot be distinguished in principle.

The power with respect to the width of the road not only confers a right upon the public corporation, but imposes upon it the duty to exercise that right whenever the public service requires it. It has been said with what we consider much reason that “a municipal corporation to which the power of eminent domain has been granted cannot lawfully contract that the power will not he exercised in a particular manner, and a like rule applies to a private corporation. The power is given to he used when public necessity or convenience requires it, and when such an occasion arises private contracts cannot stand in the way.” [Nichols on Eminent Domain (2 Ed.), p. 77.]

The judgment of the circuit court is in accord with the principles above stated and it must therefore be and is affirmed.

Bailey, G., concurs.

PER CURIAM: — The foregoing opinion of Brown, 0., is adopted as the opinion ¿f the court.

All of the judges concur.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    THE STATE ex rel. SCHOOL DISTRICT NUMBER 87 v. F. E. SHUCK et al., Directors of SCHOOL DISTRICT NUMBER 51, Appellants.
    Division One,
    December 22, 1917.
    1. APPELLATE JURISDICTION: Revenue Laws. A mandamus proceeding, brought at the relation of a school district against the directors of another to determine''Whether the former is entitled to share in the state school funds, involves a construction of the revenue laws, and consequently appellate jurisdiction is in the Supreme Court.
    2. NEWLY ORGANIZED SCHOOL DISTRICT: Right to Share in State Funds. The Constitution says that “no school district, in which a free public school has not been maintained at least three months during the year for which the distribution is made, shall be entitled to receive any portion” of the income of the funds provided by the State for the support of free public schools; and the Act of 1911, Laws 1911, p. 400, says that no district which shall fail to make the report to the county clerk required by law, or that has failed to maintain a school for the time required, “shall be entitled to any portion of the public school fund for that year.” Held, that a school district, which was organized at the April meeting, by the division of an existing district, is not entitled to any portion of the state funds apportioned to the county by the State Superintendent on August 30th of the same year, but all the remaining part of the district so divided is entitled to the same portion of said fund as it would have been had not a part of its territory been set off and organized into said other district.
    3. -: -: Equitable Principles: Judicial Legislation. However fair it would seem that á proportionate part of the income from the state school funds should follow the children, on whose account it was apportioned, into a newly organized school district, the fact remains that the Constitution and statute forbid it, and the courts cannot permit it without indulging in judicial legislation.
    Appeal from Crawford Circuit Court. — Hon. L. B. Wood-side, Judge.
    Reversed and remanded (with directions).

      A. H. Harrison for appellant.
    (1) Mandamus was not the proper remedy as the relator had an adequate remedy at law, and the rule is well settled that mandamus will not lie, unless the relator shows a clear right to the relief which he seeks to enforce. State ex rel. v. Buhler, 90 Mo. 570; State ex rel. v. Port, 180 Mo. 109; State ex rel. v. Thurman, 232 Mo. 164. The relator was not entitled to the remedy of mandamus till its claim was reduced to a judgment. State ex rel. v. Clay County, 46 Mo. 236; Mansfield v. Puller, 50 Mo. 340; Cloud v. Pierce City, 86 Mo. 370. (2) A school district is not entitled to any portion of the state funds until a free public school shall have been maintained therein for at least three months during the year for which the distribution is made. Constitution, art. 11, sec. 2. The apportionment and disposition of the public school fund is to be made in accordance with constitutional and statutory requirements on the subject. 35 Cyc. 822; Veal v. County Court, 15 Mo. 412; State ex rel. v. School District, 90 Mo. 395. The law makes no provision for the state apportionment to be given to a new district created, and in the absence of such law it was error to give any portion of the funds to District 87. District No. 6 v. District No. 5, 18 Mo. App. 266; State ex rel v. School District, 90 Mo. 395. District 87 was not entitled to any of the state apportionment for the reason that it had not maintained a school for the previous year, and had not filed any report showing the total number of days’ attendance of all pupils. Laws 1911, sec. 1, p. 398; Joint School Dist. No. 8. v. School Dist. No. 5, 92 Wis. 608. (3) The law fixes the property that shall be taken into consideration in determining the rights of the new district in the property of the old district, and that is the school house and accumulated cash or other property from taxes collected in the territory from which the new district hás been formed. Sec. 10839, R. S. 1909. The law does not contemplate a division of the apportionment of the State school funds where a district is divided; the only property that can be divided is that pointed out in the statute. District No. 6 v. District No. 5, 18 Mo. App. 266; State ex rel. v. Henderson, 145 Mo. 338; State ex rel. v. School District, 90 Mo. 395; School District v. Weber, 75 Mo. 558. The relator having been paid funds belonging to appellants, the appellants are entitled to the funds returned, or as in the present case plead the same as a set off. Sec. 1866, R. S. 1909; School Board v. School Board, 36 La. Ann. 806; Spydell v. Johnson, 128 Ind. 235; Onedia v. Madison County, 136 N. Y. 260; Lusk v. Perkins, 48 Ark. 238; Cope v. Collins, 37 Ark. 649; Floer v. State, 133 Ind. 453; Sternberg v. State, 48 Neb. 299; State v. Slocum, 34 Neb. 368.

      Harry Clymer for respondent.
    (1) Mandamus is the proper remedy to compel the performance of the ministerial duty of any public officer. State ex rel. v. Roark, 34 Mo. App. 332; State ex rel. v. Oliver, 116 Mo. 194. The amount to be paid to District Number 87 was agreed upon at a joint meeting of the boards of directors held at the school house in the old district on July 10, 1912. This was the legal and proper way to ascertain what amount was due to District Number 87. Sec. 10839, R. S. 1909. There is no merit in appellants’ contention that the claim should have first been reduced to a judgment. The amount due to District Number 87 was agreed upon in the way and manne'r provided by law, and the time when such payment should be made was fixed, and relator’s right to that money is as clear as the judgment of any, court could have made it. State ex rel. v. Gilbert, 163 Mo. App. 686. When a board of directors of a school district fail and refuse to perform any statutory duty mandamus is the proper remedy to compel the performance of such' duty. State ex rel. v. School Directors, 74 Mo. 21; State ex rel. v. School Board, 131 Mo. 514. (2) At the joint meeting held on July 10, 1912, the only property that was, or could have been taken into consideration, was the school house, school property and the accumulated cash arising from taxes collected and then in the county treasury. Sec. 10839, R. S. 1909; State ex rel. v. Ins. Co., 152 S. W. 620. (3) It was the plain intention of the Legislature that such funds should be for the purpose of assisting in maintaining a school in each district for the succeeding year. The board of directors of relator complied with Section 10790 and filed the enumeration with the county clerk in May, 1912, and also filed their estimate of the amount of levy for various purposes, as required by law. The clerk of relator did not make a report under the Act of 1911, for the reason that his district was not formed or organized until after the school election held in April, 1912, consequently it did not exist during the school year of 1911 and 1912, and no such report could be made. (4) The construction of the Act of 1911 relative to the apportionment of public funds, should accord with common sense and reason, and it should not be construed so as to require impossible or unreasonable things. Cole v. Railroad, 47 Mo. App. 628; State ex rel. v. Railroad, 105 Mo. App. 213; St. Louis v. Christian Bros. College, 165 S. W. 1059. (5) The relator in State ex rel. v. District, 90 Mo. 395, was seeking to compel the payment of a part of the public funds to the new district, and that was the only issue involved. That is not the issue in this ease. In this case the relator is seeking to compel the issuance of a warrant for the balance of the indebtedness which it was agreed was due to relator from District Number 51 for relator’s interest in the school house and school property and money on hand in the county treasury arising from taxes collected on property in the territory from which the new district had been formed. (6) This is one of the cases in which every principle of right and justice sustains the contention of the relator, and the law is said to be a rule of action commanding what is right and prohibiting what is wrong. There can be no sensible reason given why the children who attended school in. the old district during the school year of 1911 and 1912, and who were afterward cut off into a new district, and whose attendance went to make up the average daily attendance in District Number 51 for that year, should be deprived of the benefit of any of the public funds for the succeeding year. The Legislature never intended such an unjust, oppressive and absurd thing.
   RAILEY, C.

The opinion of the Springfield Court of Appeals, certifying the cause to this court, will be found reported in 184 Mo. App. 511. The case was certified here, because it became necessary to construe the revenue laws of our State, and the Court of Appeals was without jurisdiction to do so. Upon an examination of the record, we find that the statement made by Robertson, P. J., of the Court of Appeals, as to the facts and issues in the ease, is substantially correct, and is hereby adopted as our statement, to-wit:

“At the regular annual school meeting of School District Number 51 of Crawford County, held April 2, 1912, there was submitted and carried a proposition to divide and detach therefrom a portion thereof and to form a new district, which was numbered 87, under Section 10837, Revised Statutes 1909, and thereafter, on July 10, 1912, the board of directors of the two districts, in pursuance of Section 10840, met to divide the property as required by Section 10839, and after an agreement had been reached the directors of District 51 issued and delivered to the directors of said District 87 the following: ‘We, the undersigned directors of School District Number 51, Township 38, Range 4 and 5, Crawford County, Missouri, acting for aforesaid district, hereby agree to pay to District Number 87, Township 38, Range 4 and 5, the sum of one hundred and sixty dollars for their interest in school property and money in treasury in said district Number 51. Said sum to be paid as follows: one hundred dollars cash' and sixty dollars by the first of January, 1913. If said sixty dollars be not paid when due, to bear interest from maturity at the rate of five per cent per annum.’
“The cash payment was made. When- the apportionment, $80.77, from the office of the State Superintendent of Schools for the year 1912, reached the office of the county clerk August, 1912, under Section 10822 (amended, Laws 1911, p. 398), it was by the clerk paid to the county treasurer on the 31st day of that month, $40.39 to the credit of District 51, and $40.38 to the credit of District 87. The latter district, not having any school house, had no school or attendance for the year ending June 30, 1912, and made no report to the county clerk as provided for in said Section 10822, as amended, but District 51 made the report upon which the apportionment from the office of the State Superintendent was based. This report showed the ‘length of school term in days, 160.’ The attendance therein disclosed was shown by the testimony to have been divided about equally between the two districts. The children in District 87 had the right, under Section 10843, to attend the school in District 51 until June 30, 1912. When the directors of District 51 learned of the division of the State funds being made in the manner aforesaid they remonstrated and after-wards tendered to the directors of District 87 the balance of sixty dollars agreed to be paid on the division of July 10th, above quoted, less the amount the county clerk had turned over to the county treasurer, out of said state funds. No adjustment of the controversy having been reached, the directors of District 87 petitioned for and obtained from the circuit court an alternative writ of mandamus to require the directors of District 51 to pay the sixty-dollar balance provided for in said writing of July 10th, after it was dne and after demand had been made therefor. The directors of District 51 made return to the alternative writ, alleging in defense the facts as we have detailed them and alleging and renewing the tender of the sixty-dollar balance, less the amount paid to the county treasurer out of said state apportionment. A trial resulted in a peremptory writ being awarded, and respondents there, appellants here, have appealed. There is no dispute about the facts necessary to a decision.”

I. The moneyed consideration, involved in this litigation, is small, but the principles of law which control the ease are of vital importance to the public, as they call for the construction of the revenue and school laws of the State.

We are satisfied from the record, that the division of property between Districts 87 and 51, on July 10, 1912, did not include any part of the $80.77 apportioned by the State Superintendent of Public Schools, and paid over to the county clerk of Crawford County, Missouri, on August 30, 1912, for distribution. It is undisputed that the amount found due in’the above settlement was $160; that $100 of said amount was paid by District 51, and that the remaining $60 was to be paid on January 1, 1913, and if not paid when due to draw interest from maturity at the rate of five per cent per annum. If nothing further appeared, except the refusal of District 51 to pay the above $60, relator would be entitled to maintain this action and the judgment of the trial court would, accordingly, be affirmed. On the other hand, if District 87, through the error of the county clerk in distributing the $80.77, received $40.38 of same which legally belonged to District 51, then the latter does not owe the above $60, but simply the difference between said sum and the $40.38, to-wit, $19.62. Appellant admits its liability for the last named amount, and tendered the same to relator. Hence, if we find that relator’s demand of $60 should he credited with said $40.38, it will necessarily lead to a reversal of the cause.

The clerk of District 51, between June 15th and June 30th, 1912, rna'de his report to the county clerk of Crawford County, as required by the Act of 1911, Laws 1911, page 398 and following. This report contained the data which it was necessary for the State Superintendent to have, in ■ order to fix the apportionment for said district of the State school fund, which was to be distributed under the above law. It conceded that the clerk of District Number 87 made no report to the clerk of Crawford County, required by the above Act of 1911, as the district then had no school building, nor did it have any school or attendance for the year ending June 30, 1912. The $80.77, apportioned by the State Superintendent, and paid to said county clerk on August 30, 1912,. was based on the report made by the clerk of District 51 to said county clerk, and was not based on any action taken by District 87. The above sum was for the school years of 1912 and 1913. The county clerk, after corresponding with the State Superintendent of Public Schools, concluded that as District 87 had been unable to file the report required by law it was equitably entitled to practically one-half the above sum collected from the State, and, hence, paid over to the Treasurer of said county, for the benefit of District 87, the above sum of $40.38.

We are cited to no provision of law which authorized the county clerk to distribute the above sum to District 87. It is contended that the distribution made by-the county clerk was equitable, just, and should be sustained. In considering this question we are confronted with a certain provision of our Constitution and a statute which appear as serious obstacles in the way of following the rule of reason relied on by relator.

Section 2 of Article 11 of our Constitution reads as follows:

“The income of all the funds provided by the State for the support of free public schools shall be paid annually to the several county treasurers, to be disbursed according to law; but no school district, in which a free public school has not been maintained at least three months during the year for which the distribution is made, shall be entitled to receive any portion of such funds.”

The Act of 1911, Laws 1911, at page 400, provides, that:

“. . . No district, city, or town which shall have failed to make this report to the county clerk herein-before required, shall be entitled to receive any portion of the public school funds. . .' . Provided, further, that no district, city or town that shall have failed to afford the children thereof the privileges of" a free school for at least eight months during the year ending the 30th day .of June previous to the said distribution, provided a tax of forty cents on the one hundred dollars ’ assessed valuation, together with the public funds, will maintain the same, shall be entitled to any portion of the public school fund for that year. (Italics ours.)

It stands admitted that District 87 maintained no school during the year 1912, prior to the receipt of said $80.77, by the county clerk, in said year. We find no exception in the above section of our Constitution, nor in the Act of 1911, supra, which inure to the benefit of relator, in construing its rights, in respect to above matter. In our opinion, the rule of reason contended for by relator, cannot be successfully invoked and applied to overturn the plain provisions of above section of the Constitution and the Acts of 1911, supra. We are therefore of the opinion, that District 87, was not legally entitled to the $40.38 heretofore mentioned; that the same lawfully belonged to District 51, and should be credited on the $60 formerly due relator.

' II. The rule of reason, in eases of this character, was considered in the two cases of the State ex rel. v. School District No. 15, 90 Mo. 395, and Rice v. McClelland, 58 Mo. 116. In the former, at pages 398-9, we said:

“It would seem to be fair that the fund should follow the children, on whose account it was apportioned, into the new district; but the statute makes no provision for such cases, and we are not at liberty to make a law to accord with what may appear to us to be an equitable distribution. The difficulty here met is perhaps removed by the Act of March 4,1885 (Laws 1885, p. 237), changing the date at which the appointment is made, but it does not affect the present case. Our attention is not called to any law by which the relators are entitled to the relief demanded, and the .judgment is affirmed. ’ ’

The page of the Act of 1885 referred to in the above quotation, should be 244 instead of 237. Judge Black, in the views above expressed, reached the same conclusion that we have, in respect to the right of the court to indulge in judicial legislation. The same principle was announced in the Rice case supra. The views expressed in both the above cases are sustained by the opinion of Judge Marshall in Joint School District No. 8 v. School District No. 5, reported in 92 Wis. 608.

The Rice case was decided in 1874, and the opinion of Judge Black, supra, was written in 1886. The General Assembly of this State has been in session many times since the above cases were decided, and the law has been permitted to remain substantially as it now exists, without affording any relief to a new district, under the circumstances here presented, in the way of securing a part of the State funds, without having made a report to the county clerk, as required by law.

In passing, it should be remembered, that the Legislature has afforded some compensation to newly formed districts by the passage of the Act of 1885, Laws 1885, pp. 237-8, where the following proviso was appended to Section 7028, Revised Statutes 1879, as follows:

“Provided, that the children in such newly created district have the right to attend school in their original districts until the thirtieth day of June following.”

This provision is still contained in the present law, and will be found as a part of Section 10843, Revised Statutes 1909.

"Without prolonging this discussion, we are of the opinion, that the rule of reason, contended for by relator, would not warrant the court in indulging in judicial legislation, and especially so, in view of the plain provisions of the above section of our Constitution, as well as those of thé Act of 1911, heretofore quoted.

III. Appellant tendered to plaintiff $19.62, being the difference between the $60 formerly due relator and the $40.38 wrongfully paid to it, which belonged to district 51. Balancing The latter tendered to relator all that was legally Accounts, chie him.

We accordingly reverse and remand the cause with directions to the trial court to dispose of the ease in accordance with the views heretofore expressed.

BrowrifC., concurs.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WOODSON, J.

text:
    NED WINKLER v. MARY AGNES WINKLER, Plaintiff in Error.
    Division One,
    December 22, 1917.
    1. JURISDICTION: Divorce: Non-residence of Plaintiff: Motion to Set Aside Decree: Presumption. A plaintiff in a divorce suit must be a resident of this State in order to be entitled to sue in the courts of this State; and it will be presumed, upon the hearing of a motion to set aside a decree, filed by defendant during the same term the decree was rendered, that sufficient evidence was introduced by plaintiff to show he was a resident of this State, since-'the court is one of general jurisdiction, proceeding according to the course of the common law, and all the evidence and proceedings therein were still in the breast of the court when the motion to set aside was ruled.
    2.--: -: -:■ -: Burden: Substantial Evidence. The burden is on defendant, who has filed a motion to set aside a decree granting to plaintiff a divorce, to show that plaintiff at the time the decree was rendered was not a resident of this State; and the question being one of fact, a finding by the court that plaintiff was a resident is conclusive upon defendant upon a writ of error, unless the evidence fails to justify such finding.
    3. DIVORCE: Timely Writ of Error: Within Sixty Days. Neither the Supreme Court nor the Court of Appeals, in view of Section 2380, Revised Statutes 1909, can entertain a writ of error sued out of the one or the other to have reviewed the order of judgment of a circuit court overruling a motion to set aside a decree of divorce, filed during the term at which the decree was rendered, unless said writ has been issued within sixty days after the order was made or judgment was rendered. So that where a decree of divorce was rendered, upon constructive notice and default, in favor of plaintiff, and during the term defendant filed her motion to set aside the decree, charging that plaintiff was not a resident of this State, which was by the court overruled at a succeeding term, from which order defendant took an appeal to the Court of Appeals and which she later dismissed, a writ of error sued out of said court eight or nine months, after her motion had been overruled and twenty months after the decree had been rendered, gave to said court no jurisdiction to reverse, amend or modify the order or judgment. And this ruling is not contrary to Dorrance v. Dorrance, 242 Mo. 625, deciding that an independent and direct suit in equity will lie to set aside and ,nullify a decree of divorce obtained by fraud, nor was Section 2380 held in that case to be unconstitutional.
    Error to Andrew Circuit Court. — Hon. Alonzo D. Burnes, Judge.
    Aeeirmed.

      Booher & Williams for plaintiff in error.
    (1) The court had no jurisdiction to render the original decree in favor of plaintiff, he being a resident of Illinois. Kruse v. Kruse, 25 Mo. 68; Dorrance v. Dorrance, 242 Mo. 625; Hamil v. Talbott, 81 Mo. App. 216. Physical residence in a particular place will not of itself constitute domicle without the mental determination of making the place a home. Shirk v. Shirk, 75 Mo. App. 574. (2) Nothing short of an actual residence in the State where the suit is brought with the intention of establishing a perminent residence will give jurisdiction. 14 Cyc. 586; Commonwealth v. Kendal, 38 N. E. 504; Andrews v. Andrews, 188 N. E. 14; Breeman v. Kitzman, 99 N. W. 171. (3) It is the fact of residence for one whole year next before the filing of petition that gives jurisdiction. Where neither party is in fact a resident of this State in good faith the court has no jurisdiction. Bell v. Bell, 181 N. S. 175; Streitwolf v. Streitwolf, 181 N. S. 179. (4) The trial court must have understood that Sec. 2381, R. S. 1909, prevented the granting of a new trial, but no petition for review was necessary, as this motion to set aside the decree was made during the same term, and the court had full control during that term. Woodward v. Woodward, 84 Mo. App. 328. It was conceded in Dorrance v. Dorrance, 242 Mo. 625, by respondent, that the questions could have been raised by motion during same term. (5) The petition did not state that the defendant was a non-resident of this State. The affidavit was “fatally defective because it failed to state in what court the case was pending, where the defendant should appear or the time when the defendant should appear and defend the cause,” or the “object and general nature of the petition.” Kunzi v. Hickman, 243 Mo. 116.

      Hine & Cross for defendant in error.
    (1) Since the decision in Dorrance v. Dorrance, 242 Mo. 648, a defendant that was served by publication can file a motion to set aside a decree obtained by fraud or a motion to review said decree. Said decision holds that under Section 2380 the defendant can appeal or sue out a writ of error to have the ruling on the motion to set aside reviewed, but said section also requires that the appeal be taken or the writ of error be issued within sixty days after the order was made or the judgment was rendered. In this case defendant filed her application for an appeal to the Kansas City Court of Appeals, in which court the case was docketed and set for hearing at the October term, 1913. She prepared briefs and dismissed her appeal on tbe day it was set for hearing, and on the same day applied for a writ of error. Since that was more than sixty days after the order was made, her writ was not issued in time, and this court cannot review the rulings of the trial court. (2) The testimony is clear, substantial and strong that plaintiff’s residence was in Missouri from December, 1910, until his action for divorce was brought, that he was a resident of Andrew County where it was brought, that he requested defendant to come with him from Chicago to Missouri for the purpose of making her home with him and that she absolutely refused. (3) The trial court heard and saw the witnesses and found as a fact that plaintiff was a bonafide resident of Missouri, and that the divorce was legally and regularity granted.
   WOODSON, J.

This is a branch of a case to be presently mentioned, originated in the circuit court of Andrew County by the plaintiff in error, by the filing of a motion to set aside and vacate a decree of divorce rendered in that court, wherein Ned Winkler, the defendant in error, was plaintiff, and Mary Agnes Winkler, the plaintiff in error, was the defendant. The trial court, after hearing the evidence, overruled the motion, and the latter appealed the cause to the Kansas City Court of Appeals; but subsequently thereto she dismissed the appeal and within one year after the rendition of the judgment, but more than sixty days thereafter, sued out of that court a writ of error. When the cause again reached the Court of Appeals, and after argument and submission, the court wrote an opinion stating that a constitutional question was involved, and certified it here under the mandate of the Constitution.

Many of the facts of the case are undisputed, which I will here state:

The plaintiff and defendant in error were married June 26, 1900, in Buffalo, New York; after residing there for some time they moved to Kansas City Missouri, where they lived for four or five years, during which, time the defendant in error was in the employ of P. C. Thompson Company, a manufacturing concern in one of the Eastern States. For three or four years before their separation they lived in Chicago, Illinois, he being the Western sales manager for the concern before mentioned, with headquarters in Chicago, where he had charge of an office1 in which a clerical force was employed, and from which the Western business required him to make frequent and at times prolonged trips into the States of Illinois, Wisconsin, Kentucky, Iowa, Missouri, Oklahoma, Kansas, Nebraska and both Dakotas.

On September 8, 1911, he instituted a suit for divorce against his wife, Mary Agnes Winkler, in the circuit court of Cook County, Illinois, in which lie alleged that he was an actual resident of Cook County. She was personally served with summons, but later the suit was dismissed by him. On December 19, 1911, he brought the divorce suit out of which this proceeding arose, in the circuit court of Andrew County, Missouri, and had the defendant therein, the plaintiff in error here, served by publication in a weekly newspaper published in the town of Bolckow, in said Andrew County, but she had no actual notice of the suit until after a judgment for divorce by default had been rendered against her. The judgment was rendered February 24, 1912. Shortly after the divorce was granted the plaintiff there remarried, and of that union a little girl has been born.

The February term of the Andrew County Circuit Court was adjourned until April 20, 1912, and on April 8, 1912, during the vacation of said' February term of said court, the term at which said judgment had been rendered, the defendant there filed her motion to set aside the judgment for the reasons stated in the motion, which are as follows:

“First. Because this court had no jurisdiction to hear and try said cause.
“Second. Because the plaintiff herein practiced a fraud upon the court in alleging in his petition that this court had jurisdiction in said cause, in this, the plaintiff alleged in his said petition and under oath testified that he was a resident of Andrew County, and had resided in the State of Missouri for one whole year prior to the filing of his petition herein, when as a matter of fact, plaintiff, was at the time of the filing of the petition herein and for more than four years prior thereto and since said time, a resident of the city of Chicago, in the State of Illinois.
“Third. That each and all of the allegations in plaintiff’s said petition contained are false, except the allegation of marriage. That it is not true as alleged in said petition that this defendant had disregarded her duties as the wife of plaintiff and had offered plaintiff such indignities as to render his condition in life intolerable; that she had not called plaintiff vile names; that she did not fly into a rage and threaten to do herself bodily harm and take her life; that she did not threaten the life of this plaintiff; that she did not throw various household articles at him; that she did not strike him over the head with a knife nor strike him terrific blows in the mouth with her fists; that she did not tell him and accuse him of keeping other women; that she did not refuse to go to the State of Wisconsin to live with plaintiff, nor refuse to come to the State of Missouri to live with plaintiff; that she did not use vile language to plaintiff’s relatives, nor in the presence of their neighbors and friends.
“Fourth. That on the 18th day of September, 1911, plaintiff filed a petition for divorce in the circuit court of Cook County, State of Illinois, directed to the October term, 1911, thereof, in which said petition this plaintiff under oath alleged and charged that at that time he was an actual resident of said Cook County, Illinois, and had been a resident of that State for one year prior to that date.
“Fifth. That this defendant had no knowledge of the filing of the petition herein in this court. That in order to keep defendant from learning or knowing that this suit had been instituted this plain-tiff caused the order of publication to be published in an obscure newspaper published at the town of Bolckow; that this plaintiff knew at all times the place of residence of this defendant and concealed from her the fact that he had instituted this suit against her.
“That defendant first learned of the judgment and decree entered herein on the-day of March, 1912.”

This motion was continued until the November term, 1912, of said court, when it was overruled. The record then shows the taking of the appeal from the order overruling the motion, the dismissal of the same, the suing out of the writ of error, and the certification of the cause to this court as before stated.

The plaintiff in error introduced evidence tending to prove that she and the defendant in error at the time he brought the suit in the Andrew County Circuit Court for divorce were, residents of Chicago, Illinois, and have been ever since; that they lived together and cohabited as man and wife until shortly prior to the granting of the divorce, and that plaintiff in the divorce suit was not a resident of Missouri at the time of its institution, nor on the date of the trial thereof.

The defendant in error introduced evidence which tended to prove the following additional facts:

“That for about a year before the defendant in error separated from his wife, plaintiff in error was very abusive and threatened his life on divers occasions; that on the 12th day of October, 1910, defendant in error received from his employer a letter directing him to change his residence to some point in Western Missouri, and considered St. Joseph, Missouri, the most practical point; that after receiving said letter, defendant in error talked with his wife and requested her to move to Missouri with him; that she refused to do so; that within a short time thereafter, as soon as defendant in error could arrange matters in Chicago, he left Chicago and came by way of St. Louis, Missouri, to St. Joseph, and took up his residence at the St. Charles Hotel, and lived there until the first of January, 1911; at that time he changed his home from the St. Charles Hotel in the city of St. Joseph and took np his residence at 419 Isadore Street, where he rented rooms from Mrs. Mattie Swinson, who had at that time three or four rooms in her home which she rented out.

Defendant in error lived at 419 Isadore Street, St. Joseph, Missouri, until about the first of December, 1911, at which time he changed his residence from St. Joseph to Savannah, Andrew County, Missouri; that he made several trips to Chicago during the latter part of the year 1910 and early part of 1911; that defendant in error, desiring to procure a divorce, employed a firm of attorneys in Chicago to institute proceedings for divorce, and at that time defendant in error was of the opinion that he had to file his suit for divorce in Chicago because his wife was living in the city of Chicago; that the said petition and affidavit was prepared by the firm of attorneys and was signed by the defendant in error without having any knowledge of its contents, simply making the affidavit as a matter of form, and said affidavit was acknowledged on the 8th day of September, 1911, and filed in the circuit court of Cook County on the 18th day of September, 1911; that on or about the first of December, 1911, defendant in error learned that he could not procure a divorce in the State of Illinois because he was a resident of Missouri, and upon learning that fact .he immediately dismissed his suit in the circuit court of Cook County, Illinois, and on the 19th day of December, 1911, instituted a suit in the circuit court of Andrew County, Missouri, praying for a decree of divorce from the plaintiff in error.

That the defendant in error was a resident of Andrew County, Missouri, at the time of the institution of the divorce suit, and had been a resident of the State of Missouri for several years prior thereto, and was such at the date of the trial; that he and the plaintiff in error did not live and cohabit together as man and wife for several years prior to the institution ox the divorce suit.

Before closing this statement of the case, the following regarding the state of the record is necessary:

Counsel for defendant in error complains that the record does not contain the evidence introduced by him at the trial of the divorce case, and for that reason it is incomplete and that this court has not before it all of the. evidence that was before the trial court at the time it passed upon the motion to vacate the decree; while upon the other hand, if we correctly understand, counsel for plaintiff in error insist that none of that evidence was before the trial court at the time it passed upon said motion to vacate the decree, and was therefore properly omitted from the bill of exceptions.

It should be borne in mind that the motion to set aside and vacate the decree of divorce having been filed during the same term of the court at which it was rendered preserved in the breast of the court all the proceedings which theretofore had been taken in the ease and carried them over to the term at which the motion was disposed of, which of course included the evidence introduced at the trial of the divorce case.

I. It is first insisted by counsel for plaintiff in error that the decree of divorce rendered by the circuit court of Andrew County in the case of Ned Winkler, the defendant in error, against Mary Agnes Winkler, the plaintiff in error, is null and void, because that court, £ac^g ¿igdosed by this record, acquired no jurisdiction over him, he being at the time a resident of the State of Illinois, and cite in support thereof Kruse v. Kruse, 25 Mo. 68, and Dorrance v. Dorrance, 242 Mo. 625.

While it is true, as those cases hold, that the plaintiff in a divorce proceeding must be a resident of this State before he or she is entitled to sue in the courts of this State, yet it doeis not necessarily follow therefrom that said decree must be set aside, for the reason that the record shows that the motion to set aside the decree was filed during the same term of the court at which it was rendered, while the evidence and all the proceedings had therein were still in the breast of the court, and that being a court of general jurisdiction proceeding according to the course of the common law, we must indulge in the presumption that the court would not have rendered the decree for divorce had not the evidence introduced shown that plaintiff therein was a resident of this State, as the law requires.

Moreover,. the burden of showing that the plaintiff in that suit was a nonresident of this State, as charged in the motion to vacate, rested upon the defendant therein, which she undertook to do; but fortunately for her in this proceeding, the plaintiff in that case introduced evidence in opposition to the motion and tending to show that he was a resident of this State at the time of bringing the suit and had been for several years prior thereto. So under the evidence introduced by the respective parties a question of fact was presented for the court to determine, which it did in favor of the defendant in error. That finding is conclusive upon the plaintiff in error, unless the evidence preserved in this record convinces us that the trial court erroneously decided that question. After carefully reading the record, which is quite lengthy, covering about one hundred and fifty pages, we are perfectly satisfied that the evidence fully warranted the finding of the court as to the residence of the plaintiff, and we do not, therefore,- feel justified to disturb that finding.

We, therefore, decide this insistence against the plaintiff in error.

The ruling just announced would justify an affirmance of the judgment of the circuit court, but for an equally good reason we will in the next paragraph of this opinion indicate why the judgment should be affirmed, upon another ground.

II. Counsel for defendant in error contend that the motion to set aside and vacate the decree in the divorce case was properly overruled for the reason that the writ of error in this branch of the ease was not issued within sixty days after the rendition of the decree in the divorce suit, or' the overruling of the motion to set aside the. decree, as provided for by Section 2380, Eevised Statutes 1909, which reads as follows:

“No final judgment or order rendered in cases arising under this article shall be reversed, amended or modified in the supreme or any other court, by appeal or writ of error, unless such appeal shall-have been granted during the term of court at which said judgment or order appealed from was rendered, or unless such writ of error shall have been issued within sixty days after the order was made or judgment rendered.”

The language of this statute is plain and unambiguous; it provides that neither the Supreme Court nor the Court of Appeals shall revise, amend or modify any final judgment arising under this article (relating to divorces) on appeal or writ of error, unless the appeal is taken during the term of the court at which the judgment was rendered, or unless the writ of error is issued within sixty days after the judgment was rendered.

While the record in this case shows that the defendant in the divorce case took her appeal within the time prescribed by • the statute, yet she dismissed that appeal before the Court ■ of Appeals decided the .case, and then sued out this writ of'error, which was some twenty months after the rendition of the decree in the divorce suit, and eight or nine months after the motion to set aside and vacate that decree had been overruled.

Clearly the plaintiff in error has complied with neither the letter nor the spirit of that statute, nor do her counsel, as I understand them, contend that she has done so, but insist that the case of Dorrance v. Dorrance, 242 Mo. 625, holds that said statute is unconstitutional. If that is the contention of counsel, then they are in error as to the holding in that case. The question there was not as to the validity of that statute, but the question was, would an independent and direct proceeding in equity lie to set aside and nullify the decree of divorce alleged to have been obtained by fraud, etc., after the expiration of the time fixed by the statute for taking the appeal or suing out the writ of error therein mentioned. In other words, was the procedure provided for by that statute exclusive?

The majority opinion held that an independent proceeding in equity would lie in such a case, without resorting to an appeal or writ of error within the time provided for in said statute, while the minority opinion held that the exclusive remedy for the party who felt himself aggrieved by the decree of the trial court was by an appeal taken or writ of error sued out within the time prescribed by said statute. But conceding the majority opinion correctly declares the law as to the right of the aggrieved party to resort to an independent bill in equity in such cases, which 1 do because the majority so says, still that case has nothing to do with the case at bar; this is not an independent action in equity, but is a proceeding by motion filed in the original divorce case, to set aside the decree rendered therein, which was overruled by the trial court and thereafter the mover, the defendant there, first sought to remedy her conceived grievance by appealing from the decree and order overruling her motion to vacate, to the Kansas City Court of Appeals, and subsequently dismissed the appeal and sued out this writ of error; and this being a proceeding to set aside a final decree in a divorce case falls fully within the provisions of the statute before quoted, which must control in this case.

While it is true there is quite a lengthy discourse upon the question of due process of law within the meaning of the State and Federal constitutions, yet I was then and am now entirely unable to see or understand in what manner that question affected that case; certainly it has nothing to do with this case. According to the statute the plaintiff had one of two ways to have the action of the trial court reviewed, namely, by appeal or writ, of error, and according to the Dorrance case she had a third, a bill,in equity; but having elected to proceed under the statute allowing an appeal or writ of error, and having brought her case here by the latter means, she was bound by the provisions of said Section 2380, limiting the exercise of that right to a period of sixty days from and after the rendition of' the judgment. This court has so frequently held that an appeal must be taken or a writ of error sued out within the time prescribed by statute, it would be- more than useless to cite cases in support thereof.

The plaintiff in error, having, elected to proceed by writ of error, is necessarily bound by the statute just mentioned, which prescribes that the writ must be issued .within sixty days after the rendition of the judgment, which confessedly in this case was not done.

III. While there are a number of constitutional questions properly presented by this record, yet the view we have taken of the case renders it unnecessary for us to pass upon them.

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

All concur, except Bond, P. J., absent.