author: GRAVES, J. BROWN, J.

text:
    THE STATE ex rel. RANDOLPH COUNTY v. WILLIAM P. EVANS, State Superintendent of Public Schools.
    In Banc,
    February 9, 1912.
    1. SCHOOLS: Enumeration: Collateral Attack. The enumeration of children between the ages of six and twenty years within a school district, made by the board of directors in the manner prescribed by statute, is their official act, and cannot be collaterally attacked; for instance, the State Superintendent cannot attack the truthfulness or correctness' of that enumeration by determining that the enumeration is too large by a certain definite number and by reducing proportionately the amount of the State school moneys the county is to have. The official enumeration made by the board cannot be attacked or called in question except by a direct proceeding brought for the specific purpose of showing its inaccuracy or falsity. Until the enumeration is corrected by a direct proceeding, the State Superintendent must take it as the basis for a proper distribution of the State school funds.

      Held, by BROWN, X, dissenting, that school enumerations are not judicial determinations, and the State Superintendent can, at the time of apportioning to the counties their share of the State school moneys, dispute the correctness of a current enumeration of a district intentionally false, and require it to correct the error before permitting it to share in the fund. The law simply commands the school board to “take or cause to be taken, and forwarded to the'county clerk, an enumeration,” and its accuracy is verified only'by the oath of the enumerator, and on no sound theory can it be classified as a judicial determination.
    2. -: -: Distribution of State Moneys: State Superintendent: Correction. As to the annual distribution of the State school moneys among the counties of the State the duties of the State Superintendent are purely ministerial. No statute authorizes him to revise and correct enumerations made by school boards on the ground of fraud. Fraudulent enumerations may be investigated by the proper tribunal, and corrected; but the State Superintendent is not that tribunal.
    3. -: -: -: - — : Supervision Over Educational Funds: Sec. 10920, R. S. 1909. The words of Sec. 10920, R. S. 1909, declaring that the State Superintendent “shall exercise such supervision over the educational funds of the State as may be necessary to secure their safety and correct application and distribution according to law,” do not empower him to set aside or revise the findings of a district school board as to the number of children of school age in the district. They relate back and refer to his duties under section 10823, namely, to correct any error made in the apportionment of the next preceding year. In other words, the section only authorizes him to correct his own mistakes. The language falls far short of investing him with power to purge enumerations of fraud.

      Held, by BROWN, J., dissenting, that this statute empowers the State Superintendent to challenge any enumeration be believes to be incorrect or fraudulent.
    4. -: -: -: -: Withholding for One Year Overapportionment of Previous Years: Sec. 10823, R. S. 1909. The State Superintendent cannot undertake to adjust an over-apportionment to a school district for previous years by directing the county clerk to withhold any State moneys from that district for the current year. He cannot assume that the school enumeration in a certain city district has been too large for four years, and that the district by reason of that fact has received more than it was entitled to for the first three years, and try to equalize the matter by directing the county clerk to distribute all the moneys apportioned to the county for the current year to the other districts of the county. Section 10823, authorizing him to correct any error in the apportionment for the next preceding year, invests him with no such equity powers.

      ON MOTION TO STRIKE OUT.
    Motion sustained.

      F. E. Murrell and Willard P. Cave for relator.
    (1) The writ of mandamus is the proper remedy to compel officers of the State whose duties are ministerial to perform .such duties. State ex rel. v. Secretary of State, 33 Mo. 29-3; State ex rel. v. McG-rath, 92 Mo. 355; State ex rel. v. Lesueur, 103 Mo. 262; State •ex rel. v. Cook, 174 Mo. KX>; State ex rel. v. G-ordon, 231 Mo. 547; State ex rel. v. Roach, 230 Mo. 408. (2) The duties of the State Superintendent of Public ■Schools in making the apportionment of school moneys among the various counties of the State, as required ■by Sec. 10822, R. S. 1909, are purely ministerial. R. S. 1909, sees. 10822, 10827, 10790, 11008; Merrill on Mandamus, sec. 230; 26 Cyc. 160; State ex rel. v. Hudson, 239 Mo. 265; State ex rel. v. Meier, 143 Mo. 447; State ex rel. v. Cook, 174 Mo. 118; State ex re'l; v. Cheetham, 63 Pac. ("Wash.) 552; Jones v. Holzapfel, 68 Pac. (Okla.) 515; Haight v. Day, 1-John’s Ch. 18. (3) The enumerations made by the various school districts are quasi-judicial findings, based upon evidence taken by the enumerators and made under oath by such enumerators, and are not subject to attack except in direct proceedings, in a court having jurisdiction, to hear and try charges made as to the correctness of these findings. State ex rel. v. County Court, 137 Mo: App. 698; Township v. Carey, 27 N. J. L. 377; Young v. State Supt., 138 Ind. 206; People ex rel. v. Town Auditors, 126 N. Y. 528; State ex rel. v. Sberman, 35 All. (N. J.) 1060. (4) The power of the State Superintendent to make corrections as to preceding apportionments, is contained in Sec. 10823, R. S. 1909. This section doesn’t grant to him any judicial powers, but limits his authority to cases where, by clerical or similar mistake, this money has been paid to a county other than the one that should have been paid. The courts cannot supply omissions in legislation and give to the State Superintendent judicial powers. Sutherland on Stat. Const., sec. 235; State ex rel. v. Alt, 224-Mo. 513; State ex rel. v. School Dist., 90 Mo. 398; State ex rel. v. Cunningham, 153 Mo. 643; State v. Hernán, 70 Mo. 441.

      Elliott W. Major, Attorney-General, and Charles G. Revelle and John M. Dawson, Assistant Attorneys-General for respondent.
    (1) Section 10920, when construed in the light of constitutional and other statutory provisions relating to this subject, confers upon respondent the power which he seeks to exercise and warrants him in taking notice of the falsity of and correcting enumerations certified to him. State ex rel. v. City of Jvnoxville, 90 S. W. 289. A careful consideration of our laws governing this subject discloses that unless the State Superintendent of Public Schools is authorized to correct false enumerations and to see that the aforesaid controlling thought is carried into force, then no such authority is conferred upon any officer, and it is within the power of a designing enumerator, or school district, to pad their lists as they see fit, and thus lead to injustice and absurd consequences. In construing laws, the first and last duty of courts is to ascertain the intention of the lawmaker, and, in doing this, they must be governed by well settled rules applicable alike to a construction of the Constitution and statutes. All laws should receive a sensible construction. General terms' should be so limited in their application as not to lead to injustice, oppression, absurd consequences or a defeat of a legislative purpose. It will always, therefore, be presumed that the Legislature intended that its language should be so construed as to avoid results of this character. By section 10920 the State Superintendent of Public Schools is required to exercise supervision over the educational funds of the-State, and to do whatever is necessary to secure their safety and correct application and distribution, as decreed by law. In the case of State ex rel. v. City of Knoxville, supra, the city of Knoxville, by reason of its enumerators having made false reports as to' the scholastic population, whereby that city and its schools received from the State fund moneys in excess of the amount to which it was entitled, the Supreme Court of Tennessee held that the State was entitled to recover the excessive amounts so received and expendd by the city. The opinion in that case is an able and elaborate discussion of the principal question involved here, and we could well rest this cause upon what is there said. See, also, State ex rel. v. Superintendent, 36 La. Ann. 241; Louisville School Board v. Superintendent, 109 Ky. 9; Same, 102 Ky. 394; School Dist. v. Patterson, 10 Mont. 17; State ex rel. v. Perkins, 139 Mo. 118; State ex rel. v. Cartwright, 122 Mo. 267; Burkharth v. Stephens, 117 Mo. App. 425; Knox Co. v. Hunolt, 110 Mo. 73. (2) Section 10823, Revised Statutes 1909, is an additional and direct authority for respondent’s action. (3) The enumerations relied upon by relator are nullities, and, according to Sec. 10822, R. S. 1909, it is entitled to no portion of the school funds. If relator’s enumerations are of the nature and were taken for the fraudulent purpose alleged in respondent’s return, they are nullities and equivalent to no enumeration. It is fundamental that where a thing is permeated with the fraud of those who are in duty bound, as public officers, to act in good faith, the same is a nullity. State v. Cartwright, 122 Mo. 267; R. S. 1909, see. 10822.
   GRAVES, J.

Action by mandamus to compel the respondent to apportion to relator the full sum of $16,811.35 of the State’s school moneys. In the alternative writ it is charged that the county of Randolph for the year 1911 had a school population (persons between six and twenty years of age) of 9269, as shown by the enumerations of the several school districts in said county. The vital portion of the alternative writ reads:

“That by section 10822 of the Revised Statutes of Missouri for the year 1909 it is made the duty of the State Superintendent of Schools, during the month of July, 1911, to apportion the State public school funds applied for the benefit of the public schools among the different counties, from the enumerations and returns made to his office, by the county clerks of the various counties in this State, and to certify the amount so apportioned to the State Auditor and also to the county clerk of each county, including said county of Randolph. That by section 10822 it is made the duty of the county clerk to apportion said sum so certified to him among the several school districts in his county, according to the enumeration of children of school age in said districts as made to him and to his said office as county clerk. That although such is the plain duty of the said William P. Evans as such State Superintendent of Public Schools, and although such, return has been so made to him, the said William P. Evans, as State Superintendent, by the county clerk of Randolph county, said William P. Evans, acting as State Superintendent of Public Schools, arbitrarily threatens to deduct from said enumeration of persons of school age in said Randolph county a large number of such persons, to-wit, 4655, and threatens to withhold a large portion of the said moneys from said county of Randolph, to-wit, the sum of’$8442.86, and the said William P. Evans arbitrarily threatens to apportion to the said Randolph county as its portion of the State school funds only the sum of $8368.49 upon a basis of only 4614 children' of school age in said Randolph county, when said enumerations- and returns show - that the said county has for the year 1911 9269 school children between the ages of six and twenty years; and that the said William P. Evans has further arbitrarily and without authority of law notified the clerk of said Randolph county to cut put and refuse to make any apportionment whatever to the school districts of the city of Moberly, in said Randolph county, meaning and intending thereby to cut off such schools of the city of Moberly from any of the State school funds to be apportioned and distributed for the year 1911.”

The real amount of dispute between relator and respondent is the sum of $8442.86; which is the amount going to the Moberly School District in said county.

Relator in his return charges that the enumeration in said Moberly School District was fraudulently taken and returned, and that as thus taken and returned contained 1014 fraudulent and fictitious names. By paragraphs 7 to 14 of the return are set up the special‘defenses as above indicated. We need set out but one paragraph to present the matter. Paragraph 7 of the return reads:

“Respondent, for further return, says that in the year 1913 the board of directors of the school district of the city of Moberly, said district being located wholly within the county of Randolph, caused to be taken and forwarded to the county clerk of that county what purported to be a true and correct enumeration of the names of all persons over six and under twenty years' of age who were resident at that time within said district, and caused the same in due time to be certified to the county clerk of that county as the enumeration of persons of school age within said district, and that on or about the 31st day of July, 1911, the county clerk of said Randolph county made out and transmitted to respondent an abstract of the returns of the school districts, cities and towns ■ of said Randolph county, as made to him, and included in and as part of Ms said abstract of returns the enumeration made and returned to Mm by the school district of' the city of Moberly, an aggregate enumeration of 4655 persons between the ages of six and twenty years who were resident, during the year 1911, within said district of the city of Moberly, and in addition thereto there was an aggregate enumeration of 4614 persons between the school ages of six and twenty years who were resident within said districts, cities and towns in said county, other than the school district of the city of Moberly, making a total enumeration of 9269 persons of school age within said county, but respondent states and alleges the facts to be that the said enumeration for the school district of the- city of Moberly, so made and taken as aforesaid, and purporting to be a'true, correct and lawful enumeration of persons of school age resident within the school district of the city of Moberly, and upon wMch the county clerk based his abstract of returns to respondent, in so far as the same related to the school district of the city”of Moberly, was incorrect, false and illegal, and contained the names of numerous persons who were not between the ages of six and twenty years, and who did not reside within said school district, and the names of many persons who were dead, and further contained many false and fictitious names, and the names of many persons who were not entitled to be enumerated as resident of said school district; that said enumeration contained 1014 of such names and persons who were not, for the reasons herein stated, entitled to be enumerated as persons of school age within said school district, and that, as a matter of fact, there was at that time, and is at this time, but 3641 persons of school age resident within said district, and who were and are entitled to be enumerated as such. Respondent further states that he is unable to set out the names of the persons who were so, as aforesaid, wrongfully and illegally enumerated as persons of school age resident within said district, for the reason that said names are unknown to him, and relator has refused to furnish them.,’ ’

In other paragraphs, the respondent charges like frauds as to the several enumerations of this particular school district for the years 1908, 1909' and 1910', and claims that it is and was his duty not only to withhold from said Moberly School District the sum which would go to it from the alleged fraudulent and fictitious 1014 names on said list for the year 1911, but likewise to withhold from it out of the money really due to it for 1911 all moneys which it received by reason of the alleged frauds in the three previous years. To so do would leave the school district without any sum due for 1911.

Relator has filed a motion to strike out these paragraphs of the return, numbered 7 to 14, inclusive, on grounds therein stated. We need not note all of these, but only’ such as may be necessary. This we will do in the course of the opinion.

I. The year 1911, and the preceding years of 1908, 1909 and 1910 in our judgment, stand upon-, a different basis under the statutory law, but there is one question raised by the motion to strike out which is common to all. This question we take’first. In the motion it is urged that the verity of the enumerations for the Moberly School District cannot be attacked in this proceeding. That such would be a collateral attack upon the judgment of a judicial or quasi-judicial body. To our mind the term “quasi-judicial body” is more in line. In this contention we think the relator is right. In the case at bar there is no question that the enumeration returns as made by the school directors and the county clerk are regular upon their face, and this being true, such returns cannot be attacked in this a collateral proceeding. In this State, as well as in many others, school enumerations are the acts of duly and legally constituted bodies, i. e., the boards of directors of school districts. The duty is imposed by statute upon these boards, and the school census- or these enumerations are the result of action by the boards. Section 10790, Revised Statutes 1909, so far as material, reads:

“The board of directors of each district shall, between the thirtieth day of April and the fifteenth day of May of each year, take or cause to be taken, and forwarded to the county clerk, an enumeration of the names of all persons over six and under twenty years of age, resident within the district, designating male and female, white and colored, and age of each, together with the full name of the parent or guardian of each child enumerated.”

These enumerations when completed are the official acts of the board of directors, and as such cannot be attacked in a collateral proceeding, such as is the case at bar. An enumeration list is but the annual school census. Enumerators may be prosecuted criminally for a false .enumeration, and parents and guardians may likewise be prosecuted for giving false information. The whole proceeding is carefully hedged by the law, and after it is taken it is returned by the board of directors to the county clerk, and then becomes the basis for the distribution of the school funds due from the State. The point we make is that it is the act of the board of directors under the law.. That under the law such board has many things to-consider in determining what shall be the school census or enumeration. Among other things the question of residence has to be determined. The finding of the board cannot be questioned in a collateral proceeding, but like a judgment, can only be impeached in. a direct proceeding for that purpose.

Speaking on the subject of a city census, Ellison, J., of the Kansas City Court of Appeals, in the case of State ex rel. v. Cass County Court, 137 Mo. App. l. c. 708, says:

“Notwithstanding the return of respondents shows the proceedings of the county court and of the city of Pleasant Hill as herein indicated, yet it is insisted they are not concluded by the census, or the legal results which ordinarily follow it, for the .reason that they allege in the return that the census in point of fact was fraudulently taken, that is, it was padded with names of persons not inhabitants and that in reality there were not twenty-five hundred inhabitants of the city. The answer made by relator to this position is that the proceeding for taking the census, and the taking thereof, were had in and before a duly constituted body or tribunal especially empowered by law to do so, and that, as such, the result is not subject to collateral attack. Relator’s view is sustained by a long line of authority to be found in his briéf. Indeed, it is a fundamental rule of law that the acts of a body entrusted by law with the performance of certain specified proceedings which on their face are regularly taken, are not subject to attack except in a direct proceeding for that purpose. This rule applies as rigidly to special and inferior bodies as it does to superior courts. In most instances presumptions upholding proceedings in superior courts will not aid omissions in proceedings of those of inferior grade, but where the record of the latter, on its face, is regular, it is not subject to collateral attack. In such instance the matter of power -and dignity of the body does not enter into the question. [State ex rel. v. Wilson, 216 Mo. 301; Lingo v. Burford, 112 Mo. 149; Jeffries v. Wright, 51 Mo. 215; State v. Evans, 83 Mo. 319; Union Depot Co. v. Frederick, 117 Mo. 148; Light and Water Co. v. Lebanon, 163 Mo. 259; 1 Black on Judgments, sec. 273; Freeman on Judgments, sec. 523; Van Fleet on Collateral Attack, secs. 62, 468.]
“Therefore, -respondent’s allegation of fraud in the census was the assertion of matter which could not be made an issue in the present case. It was foreign matter, good enough in a case where such charge could be investigated, but which should not find place here where those concerned in such issue are not parties. It follows that the allegation of fraud in the census was not confessed by the relator’s motion for judgment. Matter not well pleaded need not be denied and is not confessed. [State ex rel. v. Adams, 161 Mo. 349, 363.]”

The statute empowers the board of aldermen or city council to take or cause to be taken a city census. In both cases, the statute imposes the duty upon a named body. In the one, it is the school board, in the other it is the city council. When completed, one becomes the school census for the district, and the other becomes the census for the city or toAvn. One is no more subject to collateral attack than the other

We are cited, however, to the earlier case of State ex rel. v. Cartwright, 122 Mo. App. 257. In that case the lower court did permit evidence to show that an enumeration of colored pupils was fraudulently taken, and in discussing the question in the Court of Appeals some language is used by Johnson, J., which lends color to respondent’s contention here. However, in that very case, Ellison, J., made the point we make in the case at bar. At the close of the opinion, 122 Mo. App. l. c. 268, it is said: “Judge Ellison is of the opinion that no fraud was shown, and that if there had been, the present action is not the proper mode of reaching it. ’ ’

When the Cass County case in 137 Mo. App. reached that court, the Cartwright case, supra, was urged as authority for the position that fraud could be shown as the respondent at bar now urges. From this position the Kansas City Court of Appeals evidently receded in the later case, if in fact it had ever intended to announce the doctrine in the Cartwright case. Upon this subject, in State ex rel. v. Cass County Court, 137 Mo. App. l. c. 709, it is further said:

“But it is said that fraud in taking a census has been allowed to be shown in a collateral proceeding such as this, and the cases of State ex rel. v. Wilder, 211 Mo. 305, and State ex rel. v. Cartwright, 122 Mo. App. 257, are cited in support of the statement. We cannot see where the former has any application whatever. There was no proof in that case of a census, while here each party sets forth the census in the pleading. In the latter case there had been two enumerations of school children by the school district clerk and the contest was as to which the school board should recognize. The first one was the subsisting enumeration when the right to the school was demanded and when the alternative writ of mandamus was applied for and granted. The majority of the court held that the first one taken was the subsisting enumeration which had been acted on theretofore by the board and that the latter was' a pretense to avoid the first after the accruing of the right to the school.' While here, as we have just stated, the one census; regular upon its face, is conceded by the pleadings.”

The Cass County case is one -by an undivided court, and although the Cartwright case is urged upon the court, it is distinguished and not followed.

The exact question came up in New Jersey some years ago, Township of Morris v. Carey, 27 N. J. L. 377, and an elaborate discussion of the case law is therein found from the pen of Yeedenbtjegh, J. There the court reviews case after case, and reached the conclusion that school trustees in making and returning school enumerations acted judicially, and their acts could not be attacked for fraud, except in a direct proceeding. In other words, that in a collateral proceeding, as is the one we now have before us, such enumerations are final and conclusive. The New Jersey law required enumerations to be made as required by our law, and for the same purpose, i. e., as the basis of distributing school funds. In the New Jersey ease, .supra, the parties offered to prove fraud in'tke enumeration list. After showing by the case law that the work of the school trustees in taking and making a school enumeration was in a sense judicial, the learned justice says:

“The whole school money of the State is thus passed down to the township collectors, and they are ordered to pay it over to the town- superintendents; and then the town superintendents are ordered, by the statute (Nix. Dig. 735, sec. 17), to apportion the whole money so received among the several school districts, in the ratio of the number of children capable of attending school between the ages of five and eighteen, and to pay it over, on the orders of the .trustees, to the teachers; so that it will be perceived that the distribution of all the school funds, both State and township, in every county, township, and district of the State, is based upon this ascertaining of the children by the district trustees. The whole movement depends upon the finality of this ascertainment.' If this return be in its nature judicial, the county collectors, the township collectors, the town superintendents, can safely pay over the funds, respectively, as commanded by the statute. They perform merely ministerial functions, and are liable to indictment for not doing so; and the whole school system moves on harmoniously. If there be error in the ascertainment by the district trustees, so there may be error in even the highest tribunals; and probably no other tribunal could have been created by the Legislature to ascertain and adjudicate upon the children in each district having the requirements called for by the statute so appropriate as the district trustees. As regards fraud In the adjudication, that may also happen in the highest as well as the lowest tribunals; and the public, as in other cases, must he protected by future legislation and by the authors being held responsible to the voice of public opinion and to the criminal law. At any rate, there must be a finality, as regards error and fraud, somewhere, and from the very nature of the thing, I do not see where the Legislature could have placed this adjudication .more properly than where they have. ’ ’

In the same case Oreen, C. J., uses this language: “I 'am also of opinion that the circuit court did not err in rejecting the evidence offered by the plaintiffs to prove that the list of children made out by the defendants, and returned to the town superintendent, was false and fraudulent, on the ground that the truth or falsehood of such return cannot be inquired into collaterally. -Upon this point, I fully concur -in the elaborate opinion of Mr. Justice Vredenburgh.”

In Indiana there is a statute like ours, requiring school trustees, or as we call them school directors, to make an enumeration, which like ours must be subscribed and sworn to. The enumeration so taken and proved had to be filed with the county superintendent instead of the "county clerk as in this State. From the different district enumerations the county superintendent was required to make to the State Superintendent a county enumeration. In the case of Young, County Superintendent, etc. v. State ex rel. Morgan et al., 138 Ind. 206, we find that the county superintendent refused to make and certify the enumerations to the State Superintendent on grounds thus stated in the opinion:

“After filing these several repoits, the appellees, as such school trustees, demanded of the appellant that he make out and forward to the State Superintendent the enumeration provided for by section 4431, R. S. 1881, which he refused to do, alleging as a reason for such refusal that the enumeration made by the appellees was not correct; that it contained many more children than were entitled to school privileges in the city of Ft. "Wayne, and claiming the right to employ á competent person to make a new enumeration. Upon such refusal, this action was commenced to compel the appellant by mandate to perform the duty enjoined upon him by the provisions of said section 4431.”

Section 4431 referred to above was the section requiring the county superintendent to make report to the State Superintendent. The court held that the county superintendent had to accept, the enumeration which was duly returned by the trustees and had no power to investigate the alleged frauds.

In a later New Jersey case, State ex rel. v. Sheran, County Superintendent, 35 Atl. l. c. 1061, it is said: “Moreover, the only evidence laid before or available to him of the Oast published school census’ showed that Grlen Ridge was a distinct school district, having 344 schobl children; and the mandate of the statute is explicit that he should make the apportionment according to that census. His duty was purely miriisterial, and he could no more inquire into the legality of the constitution of the districts than he could into the accuracy of the enumerations. It is evident that such investigations would result only in a harmful disturbance of the system adopted for the support of the public schools.” The italics are ours. In that case it was sought to have the county superintendent ignore a certain school district ■ upon the ground of it being illegally organized.

If these enumerations are fraudulent no doubt they could be attacked and corrected in a-proper action, but so long as they exist the State Superintendent cannot reach them in this collateral proceeding. Until they are corrected in a proper proceeding he must take them as a basis for a proper distribution of the school money. This view of course disposes of the enumerations for all the years, and in effect disposes of the case, but there are other matters urged by the motion to strike ont which, we prefer to discuss, and these we take next.

' II. But to my mind there is another reason why the contention of respondent Evans cannot be sustained. His duties as' to the distribution of school funds are purely ministerial. No statute authorizes the State Superintendent to revise and correct enumerations on the ground of fraud. Such officer has been furnished with no legal machinery by which he can hold or have a hearing and adjudge the fact of fraud or’no fraud in enumeration' returns. He is not empowered to bring the interested parties before him. In fact the law makes no provision for him to make an investigation of the question of fraud. As indicated in the previous paragraph, I have no doubt that in a proper proceeding before a proper tribunal, with the proper parties before such tribunal, fraudulent enumeration lists may be purged of fraud, but the State Superintendent has not been constituted such a tribunal by law.

Nor can this court try the issue of such fraud in this collateral proceeding. It may be that the Legislature could invest the State Superintendent with powers in this regard, but up to this time it has not seen fit so to do. The Legislature, no doubt, thought that it had sufficiently hedged these enumerations from fraud by the criminal proceedings which it authorized and mentioned above.

The only statutes that are urged in support- of the respondent’s contention of his right, we will dismiss. These statutes are sections 10823 and 10920, Revised Statutes 1909, and read as follows:

“Sec. 10823. The State Superintendent of Public Schools is hereby authorized to correct any error made in the apportionment of the public school funds among the various counties of this State out of the public school fund of the year next following the date when -such mistake was made, and the amount set apart to any county for the purpose of correcting an error .shall be by him certified to the State Auditor and to the county clerk, and the State Auditor shall draw a warrant on the State Treasurer for the amount so- . certified' in favor of the treasurer of said county, and the county clerk shall apportion said funds to the various districts in said county as the funds of the.year in which said error occurred, and the county- treasurer may pay outstanding warrants for teachers ’ wages issued during the school year in which said error -occurred, not to exceed the correction made.
“Sec. 10920. He shall reside and the books and papers of his department shall be kept at the seat of government, where a suitable office shall be provided by the State, at which he shall give his attendance when not'absent oh public business. He shall exercise such-supervision over the educational funds of the State as may be necessary to secure their safety and correct application and distribution according to law. He shall also have power to require of county clerks or treasurers, boards of education or other school officers, recorders and treasurers of cities, towns and villages, copies of all records by them required to be made, and all such other information in relation to the funds and condition of schools and the management thereof as may be deemed important; and he shall cause as many copies of the law relating to schools, with instructions for carrying into execution of such laws, to be printed into a separate volume and distributed to each county in the State, for the use of school officers therein, and all the blanks that may be necessary for the supply of all officers provided for by this chapter, as often as any change in said laws may be made of sufficient importance, in the opinion of the Superintendent to require republication and distribution thereof; and all moneys necessarily expended in performance of the duties required in this section shall be allowed by the Auditor and paid out of the State Treasury. ' He shall also have authority to examine teachers and grant certificates of qualifications to those who pass a satisfactory examination, hut the applicant' shall not be charged any fee for such examination or certificate, nor shall the State Superintendent receive any fee or compensation therefor; and any person holding such certificate from him .shall be permitted to teach without further examination from other authorized examiners. Said certificate may be revoked by the State Superintendent for incompetency, cruelty, immorality, drunkenness or neglect of duty.’.’

The first of these sections we will have use ‘for under another point, but we cite it here for the- purpose of showing all the powers granted to the State Superintendent as to the distribution of public funds. The latter section is the one chiefly relied upon, and we have italicized the clause from which power is sought. Under that clause can it he said that power is given the Superintendent to adjudge enumeration lists to be fraudulent? We think supervision over the educational funds does not lodge with him power to set aside the findings of the school board as to the number of school children in the district. Such statute may be broad enough for him to see that proceedings are instituted to correct alleged frauds in this regard, hut we are not called upon to decide that question and do not decide it. To our minds, the words “correct application and distribution according to law” relates hack and refers to his duties under section 10823, supra. We have shown that by other sections the Legislature had sought in specific language to obviate- frauds in enumeration lists. It has provided for criminal prosecutions. Had the Legislature thought of conferring power upon the State Superintendent to purge enumeration lists - of fraud, it no doubt would have done so by specific provision. The subject was in the legislative mind and action was taken thereon, but that action empowered the courts to hear and punish offenders, and not the State Superintendent to hear and adjudge the question of fraud. The Legislature no doubt thought that the courts of the different counties were amply able to. take care of fraudulent enumerations. Courts are invested with the power to bring in proper parties and bring before it all the evidence, but no such power seems to have been given the State Superintendent. Before it can be said that the State Superintendent can pronounce an enumeration list fraudulent, specific authority for him to hear and determine that question should be found in the letter of -the statute. As stated before the law has furnished to this officer no machinery by which this question of fraud can be investigated. The law does not authorize him to pass judgment thereon. Section 10823, supra, ■ confers no such powers. The funds are apportioned by the State Superintendent. That section only authorizes him to correct his own mistakes, when he has apportioned to a county less than that which was due it. He does that by setting aside from all the funds a sufficient amount to correct his error of the year previous, and then proceeds to apportion among all the counties the remainder. This statute has no reference to such troubles as are now before us.

The duties of the State Superintendent under both of these statutes are .purely ministerial. They do not authorize him to pass judgment upon the-question of fraud in the enumeration lists.

III. It appears that the State Superintendent is refusing to pay to Randolph county any money for Moberly School District, because he avers that the surplus which it. received for the years 1908, 1909 and 1910, equals all that it would be entitled to in 1911, under a proper enumeration for 1911, and the three previous years. Grant it to be true that in the previous years the district had received more than it was entitled to, there is no warrant of law for the State Superintendent to correct or attempt to correct such error. Section 10823. refers to no such case, and this is his only warrant of authority. This money has been received and expended and it may be that by ■some equitable proceeding the status of the school district with reference thereto could be determined, but it can hardly be said that the State Superintendent has been clothed with the powers of courts of equity. As to these frauds, the State Superintendent is in legal effect rendering judgment against the district, issuing execution and then satisfying the execution and judgment. This, he cannot do. So that there is this additional reason as to why he should not withhold this particular portion of the fund in question.

Relator’s motion to strike out should be sustained in toto, and it is so ordered.

Valliant, G. J., Woodson and Ferriss, JJ., concur; Lamm, J., dissents; Brown, iT., dissents in opinion filed, in which Kennish, J., concurs.

DISSENTING OPINION. .

BROWN, J.

I concur in the views expressed by my associate, Judge Graves, in the majority opinion, so far as that opinion announces the law to be that respondent as State Superintendent of Public Schools is without power to withhold current funds from a school district because such district has through an intentionally false enumeration obtained at a prior apportionment more money than its just share of the school funds of the State.

The claim which would arise in favor of the State against a school district by reason of money received by such district through a fraudulent enumeration, is of a strictly equitable nature, and the relator not being clothed with any equitable jurisdiction or power to take testimony, would, have no authority to adjudicate a matter of that kind.

' When a ministerial officer is empowered to correct errors of some other officer, that power is usually construed to apply to clerical errors only. [Petition of Powers et al., 52 Mo. 218; Polk Co. v. Sherman, 99 Ia. 60.]

In my opinion the power conferred upon the respondent by section 10823, Revised Statutes 1909, to correct errors in the apportionment of former years, applies only to clerical errors made by the respondent himself, or to mistakes growing out of errors in enumerations certified to him and about which there is no controversy.

When a school district asserts that there is no error in its enumeration for former years ,(as in this case) the State Superintendent of Public Schools is powerless to act, even though such former enumerations were padded with fictitious names.

I dissent from .that part of the majority opinion which holds that school enumerations are judicial determinations and that respondent cannot in this action dispute the correctness of the school enumeration of the Moberly School District taken and certified in the current year, 1911.

It is true that the duties of -respondent are ministerial, but under section 10920, Revised Statutes 1909, he is expressly required to “exercise such supervision over the educational funds of the State as may be necessary to secure their safety and correct application -and distribution according to law.”

■ This section, in my judgment, empowers him to challenge any enumeration which he believes to be incorrect or fraudulent.

The case of State ex rel. v. Cass County, 137 Mo. App. l. c. 708, cited to support the doctrine that school enumerations are not subject to collateral attack, does not.sustain :the views expressed in-the majority opinion. The enumeration which the Kansas City Court of Appeals held could not be collaterally attacked in State ex rel. v. Cass County, supra, was taken by a .legislative body, to-wit, a city council under section 7239, Revised Statutes 1909; and as the law required it to be spread upon the records of the city council, it .clearly implied that the council should verify its accuracy before it became effective. The taking of the census under said section 7239 was one step toward determining whether or not the city of G-ranby should be governed by the “Local Option Law.” Therefore, it may properly be classed as a legislative proceeding and the same favorable presumptions indulged in favor of its validity. [Cox v. Mignery & Co., 126 Mo. App. 669.]

School enumerations stand on quite a different footing. The law, section 10790, Revised Statutes 1909, does not require school boards to examine, approve or make a record of enumerations, but simply commands such boards to “take or cause to be taken, and forwarded to the county clerk an enumeration,” etc. The accuracy of a school enumeration is only verified by the oath of the enumerator, and on no sound theory can it be classified as a judicial determination.

To sustain the doctrine that school enumerations are judicial determinations and, therefore, not subject to collateral attack, the majority opinion cites the cases of Lingo v. Burford, 112 Mo. 149; Jeffries v. Wright, 51 Mo. 215; State v. Evans, 83 Mo. 319; Union Depot Co. v. Frederick, 117 Mo. 148, and Light and Water Co. v. Lebanon, 163 Mo. 259.

The case of Light and Water Co. v. Lebanon, supra, simply holds that the passage of an ordinance by a city council must be proven by the journals of such council, and cannot be established by parol evidence; and consequently, it does not in any manner support the views expressed in -the majority opinion.

The ease of Lingo v. Burford, supra, involves a collateral attack on the judgment of a county court establishing a public highway after due notice had been given of the proceeding to open such highway; and is therefore in no respect similar to an ex parte school enumeration..

Jeffries v. Wright, supra, involves an attempt to impeach the judgment of a justice of the peace by oral evidence that the return upon which it was based was false.

State v. Evans, supra, embraces a collateral attack upon a judgment of the county court granting a saloon license.

The case of Union Depot Co. v. Frederick, involves a collateral attack on a judgment of a circuit court in a condemnation proceeding; so that all these cases- involve attacks upon proceedings distinctly judicial in their character; and, therefore, do not even tend to sustain the proposition that a school enumeration is a judicial determination.

The doctrine that school enumerations are judicial determinations appears to me to be largely a judicial fiction. The duties of school enumerators are entirely ministerial and the duties of the school boards are administrative and not judicial in their nature. It is true that school enumerators and school boards act under an official oath, but the same may be said of every other officer in the State, however humble.

Judicial duties are those which are ordinarily vested in the judicial department of the State. The proceedings of administrative boards- are not judicial in their nature. [State v. Hathaway, 115 Mo. 36; State ex rel. v. Ryan, 182 Mo. 349; 23 Cyc. 1613.]

In our own State, in the case of State ex rel. v. Cartwright, 122 Mo. App. 257, the correctness of a school enumeration was called in question in a proceeding by mandamus to compel the establishment of a separate school for children of African descent in a district containing more than fifteen colored children of school age. One of the grounds upon -which the writ was resisted was that the last enumeration showed only ten colored children of school age residing in said district; and in that case, the respondent, like-the relator here, contended that no evidence could be received to contradict or show the falsity of the official enumeration. In deciding that case, .the Kansas City Court of Appeals, in a well reasoned opinion, held that the correctness of the enumeration being-challenged, it was competent to receive oral evidence-to contradict it, and it being proven that many colored children residing in the district were fraudulently omitted from the enumeration, such enumeration was. permeated with fraud, and constituted no defense to the action.

In my opinion, that decision is sound law, and if' an enumeration may he attacked collaterally because the names of children of school age are fraudulently omitted therefrom, it must follow that the enumeration in the ease at bar may he attacked on the ground that it is padded with fictitious names or contains the names-of persons who should not have been included therein.

The case of Judges, etc., of Hickman County v. Moore, etc., 65 Ky. 108, involved the construction of. a statute which authorized the sheriff, upon a proper order of the circuit court, to employ extra guards at. the expense of the county, to protect the county jail.. The guards were employed under this order and their compensation • audited by the circuit court; hut notwithstanding their claims had been thus audited, the Supreme Court of Kentucky held that the county court could not be compelled by mandamus to levy a tax to-pay their claims against the county, because it was-proven that said guards had been unfaithful in allowing prisoners to escape from the jail which they were employed to guard.

If the audit of a claim by a circuit court is not such a judicial act as to bar inquiry in a proceeding by mandamus, then with much stronger reason, we should say a mere school enumeration is not such a judicial act as to be invulnerable to attack in the same kind of an action.

In the case of Van Akin v. Dunn, 117 Mich. 421, a contractor for certain drainage work for a county failed to perform his contract according to agreement, whereby the drainage was ineffective. However, the commissioner appointed to supervise the work and audit the contractor’s bills, approved the work and issued his order therefor against the county. An assignee of said order sought by mandamus to compel the payment of same by the treasurer of the county. In refusing to grant the writ, the Supreme Court of Michigan said: “The record clearly shows that Bolton did not perform his contract, and that he is not entitled to payment, and in this respect, his assignee is in no better position. The writ of mandamus is a discretionary writ and, while it may issue where there is a clear legal right, a court should always refuse it where the record shows the injustice of the relator’s claim. This it may do and should do in the interest of fair dealing and good morals, whenever the claim is tainted with fraud.”

“Mandamus is a discretionary writ, and those who invoke its aid must come into court with clean hands. It will not be issued to accomplish an illegal purpose.” [26 Cyc. 325.]

In the case of Board of Supervisors v. Township Supervisor, 94 Mich. 386, the full board of supervisors of a county had ordered the levy of a tax for the pretended purpose of purchasing a county poor farm, 'but, in fact, the purchase was intended for a tannery. There being no law authorizing a tax levy for such last named purpose, certain township supervisors of the county refused to spread such tax upon their rolls, on the ground that while the order for its levy designated a lawful purpose, to-wit, the purchase of a poor farm, yet the real and secret purpose of levying the tax was illegal and unauthorized. The Supreme Court of Michigan held that the township supervisor, although acting under a plain statutory duty to levy and spread upon his rolls such tax as the county board had ordered, could not be compelled by mandamus to spread upon his rolls a tax which was fraudulent and ordered for an illegal purpose.

"Whether the enumeration under consideration is correct, as alleged by relator, or padded with fictitious names, as contended by respondent, I think the majority opinion which bars an inquiry into the disputed facts, is wrong and may encourage the padding of other school enumerations and the consequent unlawful diversion and withdrawing of the public school moneys from the State Treasury.

Kennish, J., concurs in the views expressed in this dissenting opinion.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. BUCHANAN COUNTY v. WILLIAM P. EVANS, State Superintendent of Public Schools.
    In Banc,
    February 9, 1912.
    For tbe reasons stated in State ex rel. Randolph County v. Evans, ante, page 95, the motion to strike out respondent’s return to relator’s writ of mandamus in this case is sustained.
    On Motion to Strike Out.
    Motion sustained.

      G. G. Ferrell, O. D. McDaniel and II. K. White for relator.

      Elliott W. Major, Attorney-General, and Charles G. Revelle and John M. Dawson, Assistant Attorneys-General, for respondent.
   GRAVES, J.

This ease involves a part of the same questions involved in the case of State ex rel. Randolph County v. Evans, decided at this term. In this case the State Superintendent of Schools admits that the enumeration of the St. Joseph School District for the year 1911 is correct, but charges that in previous years they were excessively fraudulent, and that said school district by reason of such frauds had received more than it is entitled to receive for the year 1911, and for that reason he declined to apportion to It any funds for the year 1911. The opinion in the Randolph County case should be read in connection with this case. For the reasons given in the Randolph County case, supra, page 95, the motion to strike out in this case should be sustained and it is so ordered.

Valliant, C. J., Woodson and Ferriss, JJ., concur; Lamm, Kennish and Brown, JJ., concur in result.


author: KENNISH, J. KENNISH, J.

text:
    ANNIE V. PARTELLO v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    February 9, 1912.
    1. JURY: Reading Non-Prejudicial Newspaper Article. Two of the jurors while the trial was pending had read an articl'e in a newspaper beginning: “A $50,000 suit-up again. The partello case in court for the second time. A jury’s verdict of $30,000 against the Missouri Pacific was excessive, even the plaintiff admitted — Supreme Court remanded it.” Held, that this part of the article was more prejudicial to plaintiff than to the defendant railway company, and the_ court did not err in overruling defendant’s motion, made while the trial was in progress, to discharge the jury.

      2. -: -: No Effort to Show Prejudicial Effect. Where • appellant hy an inquiry of the jurors while the trial was in progress, ascertained that two of them had read a newspaper article relating to the case, and then moved to discharge the jury for misconduct, without any attempt to show that they had formed an opinion therefrom that had or would influence them in making up their verdict, the action of the court in overruling the motion must he considered in the light of the facts at the time it was made, and not as if the conduct of the jurors were presented for the first time in the motion for a new trial. It would he unfair to permit a party to take the chance of a favorable verdict and failing in obtaining that to claim the existence of prejudice on the part of jurors, which he failed to show when he had an opportunity.
    3. INSTRUCTION: Considered on Former Appeal: Stare Decisis. The correctness of an instruction approved on a former appeal in the same case will not be considered on the second appeal. Having been approved then it became the law of the case, and will not be again considered.
    4. NEGLIGENCE: Passenger: Collision: Presumption of Negligence. Where the relation of passenger and carrier, a collision and the consequent injury of the passenger are shown, the law raises the presumption that the injury was the result of the carrier’s negligence, and therefore it is not error, when those facts are shown, to instruct the jury that “the law presumes that such injury to plaintiff was caused by defendant’s negligence.”
    5. -- — : Argument to Jury: Appeals to Sympathy and Prejudice: Based on Record. An attorney in addressing the jury does not go beyond the bounds of legitimate argument and is not guilty of misconduct if, basing his remarks on the facts in the record, and using dignified, decorous and decent language, he appeals to the sympathy of the jury, or condemns the motives of defendant’s defenses, or appropriates to himself and expresses the prejudice of his client towards defendant arising out of the case. It was not misconduct on the part of plaintiff’s attorney to state to the jury that it was a very serious charge to say that plaintiff had been living the life of an impostor and had, in addition to her sufferings, with uplifted hand before God, committed perjury, as defendant tried by its evidence to show, and thereby added gross insult to injury, if plaintiff had in fact been sorely and permanently injured, as she testified.
    6. EXCESSIVE VERDICT: $30,000: Second Trial: Reduced to $10,000. Plaintiff, a passenger on a railroad train, was injured by a collision. Prior to her injuries she was an active, sound, vigorous woman, in perfect health, the mother of children, in a high station in life; as a result of the collision, her womb was displaced, she was a great sufferer for many months, and a helpless invalid, and at the time of the second trial, five years later, a physical and nervous wreck, never free from pain and still suffering from her injuries. At the first trial, one year after the accident, the jury returned a verdict of $30,000, of which amount she voluntarily remitted $10,000. On appeal the judgment was reversed on the ground that the verdict could not he accounted for on any other theory than passion or prejudice. At the second trial the evidence was the same, except it tended to show that during the four years since the first trial she had continued to suffer, could eat no solid foods and could not sleep except when under the influence of opiates. The verdict was again for $30,000, and on the second appeal this is held excessive hy $20,000. [KENNISH and BROWN, JJ., dissenting.]

      Meld, hy KENNISH, J., dissenting, that an appellate court cannot, without usurping the province of the jury, hold that two verdicts, for practically the same amount, on the same state of facts, were both the result of the passion and prejudice of the jury; and that the only ground on which the court can legitimately reduce this second verdict for $30,000 to even $20,000 is the fact that plaintiff at the first trial by her voluntary remittitur reduced it to that sum.
    Appeal from Jackson Circuit Court. — Noto. W. A. Powell, Judge.
    Aepibmed (conditionally).

      Martim L. Clardy, Robert T. Railey, Edward J. White and Thomas L. Philips for appellant; Elijah Robinson and Karris Robinson of counsel.
    (1) As sliown by tbe result, the fact tbat tbe jurors read tbe article in tbe “Star” showing tbe amount of tbe former verdict, was prejudicial to tbe defendant and tbe court should have discharged tbat jury, as requested by defendant’s counsel, and im-. paneled a new jury to try tbe case. G-ibney v. Transit Co., 204 Mo. 704. (2) Tbe court erred in referring to tbe former opinion of tbe Supreme Court, in tbe presence of tbe jury in passing on tbe defendant’s objections to evidence; tbe court erred in refusing to discharge tbe jury after it came to tbe court’s attention that some of the jury had read newspaper articles, giving the amount of the former verdict and in refusing to exclude from the consideration of the jury, counsel’s statement that the defendant, “came here four years ago, and they come again today in this trial, to add gross insult to the injuries-they have done her.” Neff v. Cameron, 213 Mo. 350; Railroad v. Roberts, 187 Mo. 389; Railroad v. Pfau, 212 Mo. 398 ; Padgett v. Railroad, 159 Mo. 154; Devoy v. Transit Co., 192 Mo. 197; Green v. Railroad, 211 Mo. 18; People v. McCoy, 71 Cal. 395; Wendler v. Furnishing Co., 165 Mo. 527; Gibson v. Zeibig, 24 Mo. App. 65. (3) The court erred in giving the third instruction for plaintiff and in telling the jury that the law presumes that the injury to the plaintiff was caused by the defendant’s negligence and that the establishment of such fact, made out a prima facie case for the plaintiff. Bailey v. Railroad, 152 Mo. 449. (4) The verdict in the case was so grossly excessive as to show conclusively that the jurors were influenced by prejudice against the defendant or sympathy for the plaintiff, and that their verdict was not the result of a fair and impartial consideration of the evidence in the case, and for that reason the judgment ought to be reversed. Baker v. Stonebraker, 36 Mo. 338; Spohn v. Railroad, 87 Mo. 84; Ice Co. v. Tamm, 90 Mo-. App. 202; Adams v. Railroad, 100 Mo. 555; Cook v. Railroad, 94 Mo. App. 425; Whalen v. Railroad, 60 Mo. 323:; Adams v. Railroad, 100 Mo. 555; Nichols v. Glass Co., 126 Mo. 55; Furnish v. Railroad, 102 Mo. 438; Chitty v. Railroad, 166 Mo. 435; Gibney v. Transit Co., 204 Mo. 704; Waddell v. Railroad, 213 Mo. 20; Dean v. Railroad, 229 Mo. 425.
    ' Reed, Yates, Mastín & Harvey for respondent.
    (1) The law of this case has been fixed by the former appeal. The instructions upon this trial and upon the former trial are verbatim et literatim. No objections to testimony are raised. Every question of law in the case as to evidence and instruction is conclusively settled by that opinion. While counsel seem to desire to reopen some of these questions, we understand the law to be that the opinion on the former appeal is res adjudicata. The law of the case is in Partello v. Railway, 217 Mo. 645'. (2) The article printed in the Kansas City Star, dealing with the progress of the trial, could not have been prejudicial to the defendant. Counsel cite no authorities as to the effect of newspaper articles read by a jury during trial. Copeland v. Wabash, 175 Mo. 679. (3) The fact that two juries have tried this case and have each returned a verdict for the sum of $30,000 should be sufficient to convince the court that the plaintiff is most seriously injured. Our courts are not disposed fco turn an obliging ear to the claim of excessive damages and passion and prejudice on the. part of the jury upon a second appeal. Cases are rare indeed where a new trial has been awarded because of excessive damages after a second verdict. Porter v. Railroad, 71 Mo. 83; Loker v. Railroad, 94 Mo. App. 484; Goetz v. Ambs, 27 Mo. 134; Day v. Dry Goods Co., 114 Mo. App. 487. “The verdict of two juries, practically the same, ought to be conclusive oí the case.” Loker v. Railroad Co., 94 Mo. App. 485; Baker v. City of Independence, 93 Mo. App. 165. The verdict was not -excessive. The total loss of health by injuries which at once convert a healthy person into a permanent invalid cannot be compensated for by the payment of $30,000. Corby v. Tel. Co., 231 Mo. 417.
   KENNISH, J.

This case is an appeal from a judgment of the circuit court of Jackson county. The respondent is the wife of Major Partello of the United States Army. On the 9th day of October, 1904, respondent, with her husband and children, was a passenger on appellant’s train running from Kansas City, Missouri, to Ft. 'Leavenworth, Kansas. As the train was passing over the terminal tracks leaving Kansas City, the engine collided with an engine upon a switch track, moving in the opposite direction. The collision caused the train to stop suddenly, throwing the passengers violently forward. The respondent’s head and body struck against the back of the seat immediately in front of her. The blow and shock rendered her unconscious and she was removed on a stretcher, through a window of the car, and taken to the hospital for treatment. This suit was brought to recover damages in the sum of fifty thousand dollars for the injuries thus sustained. Upon a trial a jury returned a verdict for thirty thousand dollars. The defendant filed a motion for a new trial alleging, among other grounds, that the verdict was excessive. Before the court passed upon the motion the respondent remitted ten thousand dollars of the amount of the verdict thus secured. The motion was then overruled and a judgment rendered for the plaintiff in the sum of twenty thousand dollars. The defendant appealed to this court. On that appeal this court reversed and remanded the cause for a new trial on the ground that the verdict was excessive, notwithstanding the remittitur entered. The case was tried a second time and a verdict returned for the same amount as on the first trial, to-wit, thirty thousand dollars. The-defendant again appealed, and the case is now before us for decision upon appellant’s second appeal.

The decision of this court on the first appeal is reported in 217 Mo. 645, and a detailed statement of the facts will there be found. As it is conceded on this appeal that the testimony on both trials was sub- ' stantially the same, reference is now made to the opinion on the former appeal for a full statement of the facts, which need not be repeated. However, as it is earnestly contended by appellant that, “the record in the present case discloses no injury or damage to the plaintiff other than the bleeding at the nose and temporary shock occasioned by the collision and blow upon the nose, to which the collision of October 9,1904, bears any necessary or causal connection whatsoever; the record is barren of credible or competent evidence; either that there was any falling of the plaintiff’s womb .at or immediately following the time of the accident, or that the condition of the plaintiff’s womb and ovary with which she suffered subsequent to 1904 was occasioned by or in any manner whatsoever connected with the collision of October 9, 1904,” the following facts as to plaintiff’s injuries are taken from the case as reported in the former decision of this court:

“Plaintiff was removed through the car window on a stretcher and taken to St. Joseph’s Hospital, she being at the time in an unconscious condition. Describing her condition, after she regained consciousness, she said, ‘I felt as though I was hurt in some way in my lower parts and could not move them.’ Dr. Fulton and Dr. Hamel, two surgeons connected with the defendant railway company, came to see plaintiff on the day of the injury and administered strychnine, and put her womb back in place, Dr. Fulton forcing it back in place with a pack.
“Miss Carrico, the nurse who waited on plaintiff at the hospital, testified that when plaintiff came to the hospital she was in great pain and continually asked for something to relieve her. She saw Dr. Fulton examine plaintiff and force back her womb by means of a pack saturated with ichthyol oil. The doctors also applied antiphlogistine to the lower part of her abdomen, on the right side, which was greatly swollen, and this treatment was continued for weeks. During plaintiff’s stay at the hospital she was unable to sleep without the aid of an opiate, and she suffered from nervousness and nausea. She failed in flesh and during the first three weeks of her stay at the hospital she was out of bed once, when she was put in ap invalid’s chair and taken to the porch for a few minutes. After plaintiff had been at the hospital some two or three weeks, Dr. Lester Hall, who had been asked by the plaintiff’s husband to attend his wife, performed a minor operation on plaintiff. He found that in giving birth to her first child the perineum was lacerated, and he cut away the old scar tissue and sewed up the lacerated perineum.
“At the end of five weeks plaintiff left the hos-* pital and was taken in a carriage to the Coates House, in Kansas City, where she remained three days, and then took a night train for home, lying down in a sleeper as soon as she entered it. Reaching Ft. Reno, she was immediately put to bed, which she was unable to leave, even with the help of assistants, for two or three months afterwards, during which time a nurse constantly attended her. Dr.- A. M. Chase, an army surgeon stationed at Ft. Reno, was called in immediately upon Mrs. Partello’s arrival. He found her in a fainting condition, and gave her several hypodermic injections of strychnine, and did not' leave her for hours. She Nas partially unconscious; her extremities were cold and pulseless and she was without rallying power. In appearance, she was emaciated and sallow. A few days later Dr. Chase made a physicial examination of plaintiff, and found the womb fixed and the patient suffering from great tenderness of the abdomen. The broad ligaments supporting the womb, and the surrounding tissues, he found inflamed and enlarged. There was also a swelling in the abdominal region which lasted for weeks. In his opinion this condition was due to an acute injury, a blow or concussion. He visited her three times a day for a period of about two months, and continued to visit her at intervals up to the time of testifying; he thought that the injury received by plaintiff had almost destroyed her nervous system, and that her health and vigor were permanently impaired.
“Dr. J. H. Ford, assistant surgeon at Ft. Reno, testified that plaintiff, before her injury, was remarkably strong and robust and in excellent health. She had been accustomed, as the wife of the commanding officer, to attending the balls and social functions at the fort, and taking a leading part therein, and she was also fond of doing her own housework, although it was not necessary for her to do so. She had not suffered from any chronic disease or serious womb trouble. .The first time Dr. Ford saw plaintiff after the infliction of the injury was on November 15, 1904, at the Coates House, after she left the hospital and just prior to her return to Ft. Reno. To him ‘her appearance indicated that she had undergone some violent shock. ’ ‘ She had lost greatly in weight and was suffering from a nervous lack of strength.’ He further testified that her ill condition had steadily progressed, and that she was a nervous and physical wreck. He did not think it possible that she could ever be restored to health.
“Dr. John R. Snell, a physician living-in Kansas City, made an examination of plaintiff -juit before the trial and testified that he regarded Mrs. Partello as -a nervous wreck and that her ill condition was permanent.”

We will supplement the foregoing statement as to the injuries of plaintiff, based upon the testimony in behalf of plaintiff at the first trial, by a portion of the testimony showing her condition at the time of the second trial and during the years intervening between the first and second trials. Plaintiff, at the second trial, testified in part as follows:

“Q. Tell the jury, Mrs. Partello, whether or not at any time since your injury in 1904 you have been able to eat solid food? A. Not at all. I have tried ' to several times, and been desperately ill from it. I use nothing but liquid food.
“Q. What do you eat? A. Just milk, raw eggs, soups, cereals.
“Q. That has continued for how long? A. Five years and a few months.
“Q. I will have you tell the jury also what was your ability to sleep during this first year after you went from Kansas City? A. I couldn’t sleep at all, my nervous system was in such a state, without something to make me sleep, probably an hour at a time. .
“ Q. From what point in your side would this pain proceed? A. In my right-side.
“Q. Where with reference to the point at which you first felt it after you regained consciousness in the hospital? A. In my side.
“Q. Where was the pain that you then felt with reference to the one you first felt in Kansas City? A. The same pain.
“Q. Tell the jury whether or not that is the point from whence the pains that you have felt have always proceeded? A. It is.
“Q. While I am on that subject, I will ask you, Mrs. Partello, how long it was after this collision until the swelling in your side and the lower part of the abdomen subsided or went down? A. Nearly a year I couldn’t wear any clothes. It never has gone down entirely. My side is much larger than it ever was.
“Q. That swelling is greatest at what particular point? A. On my right side (indicating). . . .
“Q. How long did you remain at Ft. Reno after you were hurt? A. Over a year.
“Q. You lived there during the former trial of this case? A. I did.
“Q. When you returned there, after your trial, what was your physical condition? A. A perfect invalid.
“Q. Did you have any spells of acute sickness? A. All the time.
“Q. Following the trial up here? A. Oh, yes, I was confined to my bed.
“Q. When? A. After I went home I was continuously sick all the time. . . .
‘ ‘ Q. Going hack to the time of this collision I will ask you to tell the jury what sensation or feeling, if any, did you have in your womb when you regained consciousness? A. Yery, very sore.
“Q. And how long did that severe soreness continue? A. For a year afterwards.
“Q. Tell the jury whether or not you had ever had any soreness before that time in your womb? A. Never. . . .
“Q. You say that you had, after this accident, falling of the womb? A. I do.
“Q. Would it not go back to its proper place? A. It has never gone back.
“Q. It did not? A. Never has been in the right place since. . . .
- “Q. Now, Mrs. Partello, have you any objection to being examined by Dr. Cordier or Dr. Block or Dr. Ayers? A. None in the least.”-

The request of defendant for permission to have plaintiff examined was made on the first day of the trial. The defendant did not have the plaintiff so examined, but after the jury was instructed and counsel for plaintiff had begun the argument of the case, the defendant requested the court to permit Dr. Ayers to testify that he had called on the plaintiff to examine her and that she would not permit him to do so. The court refused the request thus made.

Appellant assigns as errors: First, That two jurors, during the progress of the trial, read an article in the Kansas City Star relating to the case on trial and which stated the amount of the former verdict, and the refusal of the court, upon its attention being called to the fact, to'discharge the jury and impanel a new jury to try the case as requested by defendant; second, misconduct of counsel for plaintiff, in his argument to the jury, and the refusal of the court to sustain defendant’s objection thereto; third, That “the court committed error in giving plaintiff’s instruction number 5 on the measure of damages;” fourth, That the verdict was so excessive as to show that the jurors were influenced by prejudice against the defendant. In appellant’s reply brief an additional assignment is made for the first time, namely, that the court committed error in giving instruction numbered 3, at the request of the plaintiff.

I. During the introduction of plaintiff’s testimony counsel for defendant was permitted to ask the jurors if any of them had read articles relating to the case on trial, which had appeared in the newspapers' of Kansas City the day before. Two of the jurors answered they had read the article in the Kansas City Star. Counsel for defendant made a statement as to what the article in part contained, but it was not incorporated in the record at the time, nor does the record show that it was exhibited to the court. Neither were the jurors asked as to the effect, if any, the reading of the article had upon their minds. The court refused to discharge the jury as requested by the defendant and the defendant excepted.

The tenth ground of the motion for a new trial alleges that the court erred in refusing to discharge the jury on the defendant’s motion, when it was shown that two of the jurors had read the said newspaper article. No affidavit, identifying the newspaper article, was filed in support of the motion for a new trial.

Assuming that this ground of the motion was properly before the trial court for consideration, appellant’s complaint is without substantial merit. The article begins as follows: “A $50,000' suit up again. The Partello ease in court for the second time. A jury’s verdict of $30,000 against the Missouri Pacific was excessive, even the plaintiff admitted — Supreme Court remanded it” It is not claimed that the remainder of the article unfairly stated the facts as to defendant’s side of the case, and it is too obvious for argument that the part quoted was more prejudicial to the plaintiff than to the defendant. If the article had any tendency whatever to influence the jury it would be to convince them that a verdict for thirty, thousand dollars had been pronounced and was admitted to be excessive, and was not and would not be permitted to stand.

In the case of Copeland v. Wabash Railway Company, 175 Mo. 650, this court had before it for decision a question not dissimilar in its facts from that now under consideration. The case was being tried a second time. One of the jurors, during the trial, obtained a copy of a newspaper containing an article purporting to give the facts of the case on trial and malting reference to the result and the standing of the jury as to the amount of damages on a former trial. Discussing the question thus presented this court, 1. c. 679, said: “There is nothing said or intimated in this article with respect to the right of plaintiff to recover. It does not undertake to espouse his cause, or to attribute his injury to the fault or negligence of defendant, but simply gives an impartial statement of how the jury stood upon the former trial and a few facts connected with the accident; and does the fact that pending the trial some of the jurors read the article, furnish a sufficient reason for interference by this court, and for a reversal of the judgment upon that ground? We think not. The matters stated in the article, even if they had been published in either of the papers and read by the jurors before they were selected to try the case, would not have disqualified them, and certainly the reading of the article thereafter and while serving as jurors would not of itself be sufficient cause for setting aside -the verdict by the trial court, or for a reversal of the judgment by this court upon that ground. ’ ’

Following the above excerpt, this court reviewed a number of cases in which the same question was passed upon, supporting the conclusion of the court that the defendant was not entitled to a new trial upon the ground considered.

There is this difference between the Copeland case and the case at bar. It is stated by appellant in its brief that: “Defendant does not contend that the mere fact of the jurors having read the article referred to, when considered alone, would be sufficient reason for asking this court to reverse the judgment in this case, but does contend that the result of the trial shows that the jurors were influenced by having read that article.” In the Copeland case the alleged misconduct of the jurors was first called to the attention of the court in the motion for a new trial and the court at the hearing of the motion for a new trial was for the first time required to pass upon the question in the light of all the facts properly before it. In this case the question was raised by the defendant during the trial. It was competent for the defendant to have shown then by an examination of the jurors whether or not an opinion had been formed or whether the jurors had been or would be influenced by having read the newspaper article. This the defendant did not do. and it would not do to permit a party to take the chance of a favorable verdict and failing in that to claim the existence of prejudice of jurors, which he failed to show when he had the opportunity. Under the facts of this case, the question as to whether the court committed error is to he determined by its action when its ruling was made, upon the facts then before it, and not as though presented for the first time in the motion for a new trial. When the court made its ruling nothing was shown more than the mere reading of a newspaper article hearing upon the case by two jurors and that alone was not enough to warrant “the court in discharging the jury.

II. The alleged error in the giving of instruction numbered 5 for the plaintiff cannot now be considered. It is identical with an instruction given on the first trial and held to be a correct statement of the law by this court on the former appeal. That ruling has become the law of the case and the question there decided will not be again considered on a subsequent appeal. [Overall v. Ellis, 38 Mo. 209; Metropolitan Bank v. Taylor, 62 Mo. 338; Heinzeman v. Railroad, 199 Mo. 56; Ashby v. Gravel Road Co., 111 Mo. App. 79.]

III. Error is complained of in the giving of instruction numbered 3 for the plaintiff. That instruction is as follows:

" The court instructs the jury that if they find and believe from tire evidence that on the 9th day of October, 1904, the plaintiff was a passenger on one of the defendant’s cars, and that while the plaintiff was in the exercise of due care, the defendant by its agents and servants carelessly and negligently ran the train upon which the plaintiff was riding upon and against another engine then being used and operated upon the defendant’s said railway, and that thereby the plaintiff was injured, then the law presumes that such injury to plaintiff wás caused by the defendant’s negligence, and such facts if proven to the satisfaction of the jury by the preponderance of the evidence make out a presumptive case for the plaintiff, and you should find a verdict for the plaintiff unless you further believe from the evidence that notwithstanding this presumption the defendant at the time of the happening of the injury in fact had then fully performed or was then fully performing its duty as defined and stated in the other instructions herein toward the plaintiff as such passenger, or-that such injury to the plaintiff, if any, did not occur because of any failure of the defendant in such respect. ”

Appellant’s complaint against the foregoing-instruction is that upon a finding of the facts, hypothetically stated, as to the relation of passenger and carrier, collision, injury, etc., the instruction tells the jury that, “then the law presumes that such injury to plaintiff was caused by the defendant’s negligence, and such facts if proven to the satisfaction of the jury by preponderance of the evidence make out a presumptive case for the plaintiff,” etc., etc.

We are not disposed to consider the correctness of this instruction in the matter complained of, as an original proposition, for the reason that in the case of Logan v. Railway Co., 183 Mo. 582, this court had’ before it an instruction which contained the identical language to which exception is now taken. Passing' upon the question presented, the court, 1. c. 607, said: “We are unable to appreciate the contention of defendant, that, as the cause of the accident was known, it was error to instruct the jury concerning the presumption arising from the relation of passenger and carrier. Because of that relation between plaintiff and defendant at the time of the injury, when he showed that fact, the derailment of the car and his injury, he made out a prima facie case, while under any other circumstances the burden would have been upon him to show negligence, or circumstances from which negligence might be inferred in order to entitle him to recover; and it must logically follow that when plaintiff showed those facts the presumption was that the injury was occasioned by . the negligence of the defendant. If the law raises such a presumption it would seem not improper to so state in an instruction.” That case is decisive against appellant’s contention and we hold that the court did not commit error in the giving of said -instruction numbered 3.

IV. In the argument of the. case counsel for plaintiff, addressing the jury said: “This is a very grave and- serious charge, gentlemen, to make against anybody, not only that she had been living the life of an impostor all these years in relation to this case, but that upon .three several occasions she has sworn as a witness to testify with uplifted hand before Grod to tell the whole truth concerning the case, and she has added perjury to her other sins as connected with this case. Surely a more far-reaching charge could not be made against an individual, if she was injured on that October day and if she has been suffering through all these years as having been injuied. They came here four years ago and they come again to-day in this trial to add gross insult to the injuries that they have done her.” Counsel for defendant objected to the foregoing remarks “for the reason that they are not based on any evidence in this case and are an improper argument and are highly prejudicial to the defendant,” etc. The court overruled the objection and the defendant excepted.

The former trial and the testimony of the plaintiff thereon had been frequently. referred to when the plaintiff was on the witness stand. Expert witnesses testified in behalf of the defendant, whose testimony, if believed, would prove that plaintiff not only gave false testimony, but that she was an impostor and was attempting to deceive the jury as to her injuries. Other expert witnesses corroborated the plaintiff.

Under the issues and evidence thus before the jury, was counsel for plaintiff guilty of misconduct in making the remarks complained of? It must be admitted that the language used was not indecorous, abusive or indecent, and further that it was based upon the facts in evidence. Counsel for appellant assume in their brief that an attorney goes beyond the bounds of legitimate argument and is guilty of misconduct if, basing his remarks on the facts in the record, he appeals to the sympathy or prejudice of the jury, even though it be in dignified and decorous language, free from abuse or offensive epithet. We do not agree with that view of the law. In the case of Franklin v. Railroad, 188 Mo. l. c. 545, this court said: “A misstatement by an attorney in his argument to the jury of a material fact is ground for reversal of a judgment in his favor; but when the remarks complained of do not amount to a misstatement of a material fact, but rather the venting of offensive epithets, it is not .ordinarily a ground for reversal, -but should be corrected by the trial court as a breach of decorum and an offense against the dignity of the court.” In the case of Brown v. Swineford, 44 Wis. 282, the following language was used by Judge Ryan and has been widely approved by.the courts and text-writers, namely: “It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client; but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. But an advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s prejudices against his adversary as far as they rest on the facts in his case. But he has neither duty nor right to appeal to the prejudices, just or unjust, against his adversary, dehors the very case he is to try. The very fullest freedom of speech within the duty of his profession should be accorded to counsel; but it is 'license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. ’ ’ And in the case of Tucker v. Henniker, 41 N. H. 317, a case also which has received general approval, discussing the same subject, the court said: “In his .addresses to the jury it is his privilege to descant,upon the facts proved or admitted in the pleadings ; to arraign the conduct of the parties to impugn, excuse, justify or condemn motives, so far as they are developed, in evidence; assail the credibility of witnesses when it is impeached by direct evidence or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance upon the stand or by circumstances.” [1 Thompson on Trials, sec. 965; Evans v. Town of Trenton, 112 Mo. 390.]

According to these authorities, arraigning the conduct or impugning the motives of an adversary, or appealing to the prejudice against him, in decorous language, is condemned only when it does not rest on the facts of the case. And were the rule otherwise, very few verdicts in hotly contested cases with conflicting testimony would stand.

There was a sharp' conflict between the testimony of the plaintiff and the witnesses who corroborated her, and the testimony of the witnesses for the defendant. If the testimony of the defendant’s witnesses was true then that of plaintiff was false and that was all that was assumed by counsel in the remarks complained of. On the other hand, if plaintiff was telling the truth, then it cannot be said that counsel was not within his rights in calling attention to the meaning of the attack upon the veracity of his client. Under the doctrine of the authorities cited we hold that counsel for plaintiff was not guilty of misconduct in the language used and the court did not err in overruling the defendant’s objection.

Y. It is finally insised that defendant is entitled to a new trial for the reason that the verdict is excessive and that the jury was influenced by passion and prejudice. The first verdict was for thirty thousand dollars. A remittitur was entered by the plaintiff for ten thousand dollars and judgment was then rendered for plaintiff for twenty thousand dollars. This court held that amount excessive and defendant was awarded a new trial on that ground.

It is the province of the jury to find the amount of damages in eases of this class, and while this court will interfere and grant a new trial when the damages are so large as to warrant the inference that the verdict was the result of passion and prejudice, it has always been disposed to defer to the fact that two juries; with better opportunity to pass upon the question, have found the damages at about the same amount. In the early case of Goetz v. Ambs, 27 Mo. l. c. 34, this court said: “The judgment on the first verdict in this case was reversed because the damages allowed by the jury were thought to be excessive. [See 22 Mo. 170.] On the last trial the verdict was for a greater amount than on the first, and it is now argued that the objection which was fatal to the first judgment applies with greater force to this one. But, in our opinion, the fact that one judgment has been reversed on account of excessiveness of the damages is the best reason why the second should not be reversed for a like cause. Whilst the estimate of damages in actions of this kind is the proper office of the jury, the court thought that the evidence did not justify so large a verdict, and that justice would be promoted by giving the defendant a new trial before another jury. A second trial has taken place and a larger verdict has been returned, without any imputation on the conduct of the jury, and something is due to the opinion of two juries. Another interference by the court would not only be an unwise exercise of its power, but would seem to be a usurpation of the province of the jury; and we have no assurance that if another new trial were granted the defendant would be more fortunate than he has been. ’ ’ And in the case of Minter v. Bradstreet Co., 174 Mo. l. c. 504, the court said: “But it is insisted that ‘the verdict is grossly excessive, and the result of passion and prejudice against the defendant.’ It is true the verdict is large, but it is the second one in the case.” The Kansas City Court of Appeals, in the case of Loker v. Elec. Ry. Co., 94 Mo. App. l. c. 485, discussing the question of the ex-cessiveness of the verdict, said: “The verdict of two juries, practically the same, ought to be conclusive of the case.” [See, also, Porter v. Railroad, 71 Mo. l. c. 83.] In the recent case of Shohoney v. Railroad, 231 Mo. l. c. 141, Lamm, J., speaking for the court, on the same subject, said: “If the verdicts had been the same, that would be some evidence both were fair.”

If the testimony in behalf of the plaintiff is to be believed, and that was a question for the jury, she was an active, vigorous woman, in the enjoyment of perfect health, before she met with the accident on appellant’s train. Since then she has been a physical and nervous wreck, never free from pain and suffering from her injuries. In view of the fact that two juries have returned verdicts in the same amount, we cannot say that the verdict at the second trial was the result of passion and prejudice.

However, as plaintiff entered a remittitur of ten thousand dollars of the sum recovered in the first trial, thus recognizing twenty thousand dollars as compensation for her injuries, we are not disposed to allow a judgment on the second trial to stand for an amount in excess of that sum. Accordingly it is ordered that the judgment herein shall be affirmed for the sum of twenty thousand dollars, as of the date of the return of the verdict and the rendition of the judgment, and to bear interest from that date, if the plaintiff shall, within ten days from this date, remit the sum of ten thousand dollars as of the date of said verdict. Otherwise the judgment will be reversed and the cause remanded for a new trial. It is so ordered.

PER CURIAM, — The foregoing opinion of Kennish, J., in Division Two in this case, is adopted by this court as its opinion here, with this modification:

Plaintiff is required to enter a remittitur of $20,000 upon her verdict and judgment of $30,000’, as and of the date when the same was entered and such judgment will he permitted to stand for the sum of $10,000, as and of the date of its original entry. Such remittitur shall he entered within ten days from this date and upon the entry of the same the judgment thus reduced is affirmed. If plaintiff decline within said time to enter such remittitur, then this cause is reversed and remanded.

Vallicmt, C. J., Lamm, Graves and Ferriss, JJ., concur; Woodson, J., is of the opinion that we should only reduce the judgment by the sum of $15,000; Brown and Kennish, JJ., adhere to the ruling upon this question by Division Two as stated in the opinion of Kennish, J.; Kennish, J., files separate opinion on this per curiam opinion, dissenting therefrom.

DISSENTING OPINION.

KENNISH, J.

I consider the per curiam order, requiring the plaintiff, as a condition to an affirmance of the judgment, to remit two-thirds of the amount of the verdict returned on a second trial of this case, so at variance with established principles of our juris- ■ prudence that I am not disposed to allow it to pass without comment.

On the first trial the jury returned a verdict in favor of plaintiff for thirty thousand dollars. This court then said that such a verdict ‘cannot he accounted for on any other theory than passion or prejudice,” and for that reason, and that alone, the cause was reversed and remanded for a new trial. A second 'trial was had and a different jury of twelve men to whose judgment the issues were submitted, who saw the plaintiff’s helpless and incurable condition, who saw and heard the plaintiff and the many witnesses who testified, four years after the first trial and five years after the injury, returned a verdict for the same amount. The judge before whom the case was tried refused to hold the verdict excessive. By the per curiam order herein, considered in connection with the result o.f the first trial, this court in effect says to the plaintiff, “You shall take one-third of what two juries have said was compensation for your injuries, or nothing.” This is the inevitable consequence, for, although the per curiam opinion says to the plaintiff, “You shall take only such a sum, or a new trial,” it is obvious that a new trial is not compensation for injury, and as human life has a limited period of existence (a good part of plaintiff’s has passed since this case began) and the court goes on, the foregoing statement is not an exaggeration of the situation presented by the facts of this case. Juries may return verdicts, but if an appellate court, with equal regularity, will set them aside, it does not take a prophet to foretell what will be the end of such a contest. It is shown by the authorities cited in the opinion herein that an appellate court can well say that passion and prejudice entered into and, vitiated one verdict, but it cannot say that as to subsequent verdicts, when different juries, on the same facts, reach the same result. In view of the constitutional guaranty of the inviolate right of trial by jury in such cases as the one in hand and of the fact that the amount of the recovery is of the essence of such right, and assuming the good faith and impartial judgment of this second jury as we must, there being nothing in the record to the contrary, the question arises, indeed projects itself, Who is the final arbiter of the compensation, in a case of unliquidated .damages, the jury or an appellate court? If the latter, as the ruling in this case must be construed) then what becomes of the inviolate right of trial by jury? The only purpose of a suit is to obtain the redress prayed for, in this case compensation for the injuries sustained, and if the court assumes the right to have the last word, and in the end to substitute its judgment for that of an honest jury, it may well be asked, What is the function of a jury in a case at law, or rather, what is left of it?

It is provided by section 1994, Revised Statutes. 1909': “The court may award a new trial in any issue, upon good cause shown; but not more than one new trial of the same issue shall be granted to any one party.” And by section 2023, Revised Statutes 1909: ‘ ‘ Only one new trial shall be allowed to either party, except, first, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.”

It was with misgivings that the court, so far as the writer was concerned, made it a condition of affirmance, in the opinion herein, that a remittitur of ten thousand dollars should be entered, and such condition was imposed only because of the fact that plaintiff, in a former trial, had entered such a remittitur and thus acknowledged such a sum as full compensation.

The case now presents these facts: Two trials have resulted in a verdict for plaintiff, each in the sum of thirty thousand dollars. The record, on the first appeal, was held free from error, except that the verdict was excessive, and on that ground alone a new trial was granted. On the second appeal the record is again held free from error, except as to the amount of the verdict, and a new trial is allowed on the same ground, unless plaintiff relinquishes two-thirds of the compensation awarded by the jury. I must confess my utter inability to harmonize such views as to the power and scope of our judicial functions with the foregoing statutes and the constitutional guaranty of the inviolability of the right to a jury trial.