author: BLAIR, J.

text:
    CITY OF KANSAS CITY v. PUBLIC SERVICE COMMISSION et al; KANSAS CITY RAILWAYS COMPANY, Appellant.
    In Banc,
    January 14, 1919.
    1. STREET CAR FARES: Power of Legislature to Change Contract Rates. Section 20 of Article 12 of the Constitution does not vest full power in a city to regulate street-car fares within its limits, nor does it interfere with the Legislature’s power to exercise the police power'to change such rates in a case in which the facts are- such as to call for alteration.
    2. -: Confiscation of Properties. Where the street-car company expressly states that it asks no increase in fares for the purpose of paying anything except operating expenses and fixed charges, there is no question of confiscation in the case.
    3. -: Reviewable by State Commission. Street-car rates fixed by city franchise and contract are reviewable by state agencies in the exercise of the police power to regulate rates.
    4. -: Statutory Power to Raise Rates. The statute (Laws 1913, p. 583, sec. 47) empowers the Public Service Commission to raise rates fixed by city franchise and contract.
    5. -: Interest Charges. Interest on the mortgage indebtedness of the street railway company, when the agreed Ave-cent fare does not yield enough revenue to meet it, was not deferred under the “cumulatiye” section of the franchise in this case, but under the sections concerning mortgages the interest payments were enforceable; and consequently, a showing that the company, after paying operating expenses and fixed charges, would still face a large total deficit, presents a case for the exercise by the Public Service Commission of the power to increase the rates.
    6. -: Wage Increase. The facts of this case demonstrate that an increase in the wages of conductors and motormen of the street railway of one cent an hour for each employee who received less than $1800 per year was reasonable, and necessary to a proper operation of the railway system.
    7. -: Interstate System: Power of State to Regulate. The interstate-commerce clause of the United States Constitution does not inhibit the State from regulating intra-state fares to be charged by a street railway company whose system embraces a city in this State and one which is situate just over the border line in another State, provided no direct burden is laid upon interstate commerce.
    8. POLICY OF LAW. The courts have no power or right to say what t]ie law ought to be. They have nothing to do with the policy of a constitutional law.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed and remanded.

      A. Z. Patterson and J. D. Lindsay for appellant, Public Service Commission; Clyde Taylor for appellant, Kansas City Railways Co; Prank Hayerman and R. J. Higgins of counsel.
    (1) Tbe continuous, successful operation of public utilities — particularly street car transportation- — during tbe war crisis is greatly important, not only to state and city, but to tbe nation, as evidenced by declarations of tbe nation’s highest officials. (2) Tbe power to regulate street railway rates is expressly given to the Commission, without reservation or exception. State ex rel. v. Pub. Serv. Com., 259 Mo. 728. (ST) Tbe power to regulate public utility rates is a branch of the sovereign police power of the State. Such power has not been abridged, and tbe State, acting tbrougbt the Public Service Commission, has tbe right to alter such rates, notwithstanding any ordinance provisions, and notwithstanding the provisions of Section 20 of Article 12 of the Constitution, or other law. (a) The power to regulate these rates is an exercise of the police power of the State. State ex rel. Sedalia v. Pub. Serv. Com., 275 Mo. 201; State ex rel. Fulton v. Pub. Serv. Com., 275 Mo. 67. (b) The decisions all bold that no city shall be held to have power to suspend the authority of the State to regulate rates (i. e., exercise police power) unless ’ the State has expressly, or by the very clearest implication, granted such power to the city. The state power to regulate is police power, and it is never held to be surrendered where the question is debatable. Milwaukee Elec. Ry. v. Wisconsin Railroad Com., 238 U. S. 179; Home Telephone Co. v. Los Angeles, 211 U. S. 273, 58 L. A. 176; Puget Sound Co. v. Reynolds, 37 Sup. Ct. Rep. 705. (c) Section 20, Article 12, of the Constitution of Missouri does not either expressly, or by such clear implication as to put the matter beyond dispute, delegate to cities authority to contract away the police power of the State to regulate fares. State ex rel. Sedalia v. Pub. Serv. Com., 275 Mo. 201. (d) The Sedalia and Fulton eases make no exception with respect to street car companies from the general rules annonuced therein, (e) The great weight of authority in other states sustains the propositions that, even where there is a constitutional provision such as Section 20, of Article 12, of the Missouri Constitution, the State may exercise police power to change street car rates imposed by franchises. Atlantic Coast Electric Ry. Co. v. Board of Public Utility Commrs., 104 Atl. 218; State Public Utilities Com. v. Railroad, 275 111. 570; Chicago v. O’Connell, 278 111. 591; Woodburn v. Pub. Serv. Com., 161 Pac. 391.

      E. M. Harbar, City Counselor, M. A. Fyhe and E. F. Halstead, Assistant City Counselors, for respondent.
    (1) At the time of the making of the franchise contract between respondent city and appellant railways company it was the settled law of this State, never since from any source until quite recently questioned, and so far as we know never questioned by this court, that the parties to said franchise contract had the right to make same. That the city could, without the consent or interference from any source whatever, determine under the provisions of Section 20, Art. 12, of the Constitution of this State, upon what terms or conditions, if at all, it would permit the use of its streets for a great, or any number of years to be occupied and used by a street railroad, and upon such terms and conditions imposed by the city being accepted become valid and binding upon each of the parties thereto, and éould only be changed or modified by consent of both. Hovelman v. Ry. Co., 79 Mo. 632; Faith v. Railroad, 105 Mo. 548; Railway v. Railway, 105 Mo. 571; State ex rel. Subway Co. v. St. Louis, 145 Mo. 551; Railway Co. v. Railway Co., 148 Mo. 645; State ex inf. v. Railway Co., 151 Mo. 183; Railway v. Kirkwood, 159 Mo. 252; National Subway Co. v. St. Louis, 169 Mo. 319; Kansas City v. Rv., 187 Mo. 155; Railway v. Railway, 190 Mo. 256; St. Louis v. Railway, 263 Mo. 439. The rule is general, without exception, that where a muncipality has the power to refuse the use of its streets to a public service company, the power to impose conditions, prescribe rates for such use, is vested in such municiaplity. Noblesville v. Gas Co., 157 Ind. 162; Shreveport Trac tion Co. v. Shreveport, 122 La. 147; City of Kala mazoo v. Kalamazoo Circuit Judge, 166 N. W. (Mich.) 998; Simons v. Tel. Co. 99 Md.141, 63 L. R. A. 727; Murphy v. St. Railway, 199 Mass. 279; New Orleans Gas Co. v. New Orleans, Í15 U. S. 650; Freeport Water Co. v. Freeport, 180 U. S. 587; Cleveland v. Cleveland City Ry. Co., 194 U. S. 517; Vicksburg v. Vicksburg Water Co., 206 U. S. 496; Cleveland v. Cleveland Elec. Ry., 201 U. S. 529; Home Tel. Co. v. Los Angeles, 211 U. S. 265; Louisville v. Tel. Co., 224 U. S. 649; Detroit United Ry. v. Detroit, 229 U. S. 39; McChord v. Railway Cos., 183 U. S. 483; Boertk v. Detroit, 152 Mich. 657; Muncie Gas Co. v. Muncie, 160 Ind. 97, 60 L. R. A. 822; Railroad v. Baltimore, 21 Md. 93; Pringree v. Mich. C. R. Co., 118 Mich. 314, 53 L. R. A. 274; Bessemer v. Water Co., 152 Ala. 391; Newark v. Gas Co., 65 Ohio, 210; Gas Co. v. Mendenhall, 142 Ind. 538; Richmond v. Indiana;, 168 Ind 82. Where snch power is given by the paramount law, the state constitution, to municipalities to consent or not consent to the use of its streets by street railroad companies, as by the constitution of this State, Pennsylvania, New York, South Dakota, then such municipalities have ample and full power to impose conditions as to rates, and this too without the consent or interference or authority of the Legislature in any way, and upon'such condition being accepted by street railroad company, it becomes a valid and binding contract which cannot be changed, abrogated or in any wise interfered with, except by the parties thereto, the very purpose of such provision in the Constitution being to put an end to the Legislature’s interference, the power to grant or refuse such consent, being a “gift directly from the Constitution, needs no help or permits any interference from the Legislature.” Allegheny v. St. Ry. Co., 159 Pa. 411; Plymouth v. R. R. Co., 168 Pa. 181; West Chester Borough v. Tel. Co., 227 Pa. 384; People v. O’Brien, 111 N. Y. 1; Kittinger v. Traction Co., 160 N. Y. 377; City v. Tel. Co., 25 S. D. 409; City v. Tel. Exchange Co., 189 Fed. 289; Motor Co. -v. City of Omaha, 147 Fed. 1; City v. Bovre & M. Tr. Power Co., 88 Yt. 304; Tel. Co. v., Commonwealth, 161 Ky. 543. Where, as here by the fundamental law, the Constitution, municipalities have been given the exclusive power to say whether or not a street railroad company shall occupy their streets, we most earnestly insist; being justified in such insistence not only by the frequent, timely and unanswerable utterances of this court, but substantially all others, that such sole power granted to muncipalities necessarily carries with it the right to fix, and this too without any interference from any other source whatsoever, the rate of fare to be charged by such street railroad for the privilege thus granted. McCullough v, Maryland, 17 IT. S. 421; Detroit v. Detroit Citizens Ry., 184 IT. S. 368; Milville v. St. Ry., 159 Pa. 411; Philadelphia v. R. R. Co., 143 Pa. 444; Plymouth Tp. v. Railway, 168 Pa. 181; Philadelphia v. Railway, 177 Pa. 382; West Chester Borough v.' Tel. Co., 227 Pa. 384; People v. O’Brien, 111 N. Y. 1; Kittinger v. Traction Co., 160 N. Y. 377; City v. Tel. Co., 25 S. 1). 409; City v. Tel. Exchange Co., 189 Fed. 289. As to the authority of city to impose conditions, where the right is given to it by constitution or statute to grant or deny the use of its streets, the rule is subsantially universal that in the granting of such right the city has the power to impose such condition as it sees fit. Railroad v. Leavenworth, 1 Dillon, 393; Commission v. Water Co., 70 N. J. Eq. 71; Mager v. Grima, 8 How. (49 U. S.) 400; Pasadena v. Terminal Co., 109 Cal. 315; Sutherland on Statutory Construction, sec. 391; Beach on Public Corporations, sec. 1314; 2 Lewis’ Sutherland Statutory Construction, sees. 508, 510, 511; Thorp on Public Officers, sec. 1342; State v. Railroad, 242 Mo. 355; State ex rel. v. Roach, 267 Mo. 316; Tranbarger v. Railroad, 250 Mo. 55; People v. Gillison, 109 N. Y. 389; Whitley v. Terry, 82 N. Y. Supp. 89; Gas Co. v. La. Co,, 115 U. S. 661. (2) The respondent city in entering into contract here was exercising its proprietary power, in pursuance of the power conferred upon it by the Constitution and its charter. The exercise of such powers is not subject to be destroyed by the police power of the State. State ex rel. Subway v. St. Louis, 145 Mo. 551; State v. Roach, 267 Mo. 316; Tranbarger v. Railway, 250 Mo. 46, 55; State ex rel. St. Louis v. Gas Co., 1Ó2 Mo. 472. (3) When at the time a contract is made the same is valid by the laws of the State, as then expounded by the departments of the governments and administered in its courts of justice, its validity and obligations cannot be impaired by any subsequent, even constitutional, ordinance, act of the Legislature or decisions of the courts. State v. Miller, 50 Mo. 133; Hunter v. Pittsburgh, 207 U. S. 179; Newburyport Water Co. v. Newburyport, 193 U. S. 561; Los Angeles v. Los Angeles City Water Co., 177 U. S. 558; Harmon v. Auditor, 123 111. 135; Marshall v. Selliman, 61 111. 221; Ohio Life Ins. and Trust Co. v. DeBott, 57 U. S. 429. (4) The State cannot by virtue of the police power, rescind, modify or deprive the city of the benefits accruing to it, under its contract with the street railway company. Secs. 25, 26, 53, Art. 4, Constitution; Secs. 2, 4, 5, Art. 12, Constitution; State v. Bishop, 128 Mo. 373; State ex inf. v. Ins. Co., 150 Mo. 113; Hammon v. Coal Co., 156 Mo. 232; State v. Webber, 214 Mo. 272; State v. Searcy, 20 Mo. 491; State ex rel. v. Roach, 267 Mo. 216; State ex rel. v. Laclede Gas Co., 130 Mo. 10; People v. Gillson, 109 N. Y. 389. (5) No authority is given or intended to be given by the Public Service Act of this State to’ permit the Public Service Commission to change contract rates. It is only where “ rates of fare have heretofore been authorized by statute,” not contract, that the Public Service Commission is authorized to change same. Public Service Commission Act, sec. 47, p. 583; Quinby v. Public Service Commission, 119 N. E. R. 433; State ex rel. Tacoma R. & P. Co. v. Public Servicé Commission, 172 Pac. 890. The Public Service Commission being a mere creature of the statute, can only exercise such powers-as are expressly conferred on it. Nothing should be left to inference or seek refuge in implication or the exercise of a discretion. United Railways Company v. Public Service Commission, 270 Mo. 442. (6) Even if power exists in the Public Service Commission to increase or change the rate of fare, the facts do not disclose such urgent emergency as to justify any increase, especially in view of Section, 27, Clause 2, of the franchise contract. Certainly no authority is given, attempted to or could be given, Public Service Commission to increase rates of fare for benefit of mortgage holders, in violation of franchise-contract agreed to by them and contained in each and every of said mortgages.
   BLAIR, J.

This ease involves the validity of the order of the Public Service Commission increasing street-car fare in Kansas City to six cents.- The order was made June 22, 1918; was reversed by the circuit court of Cole County September 7, 1918, and a special order granting an appeal to this court was made by tbe Chief Justice on the same day. The cause on appeal was argued and submitted November 11, 1918.

The Kansas City Railways Company operates the street-car system in the two Kansas Cities, Missouri and Kansas. Its petition to the Public Service Commission sets up that the company’s franchise requires (1) public service and (2) a six per cent return upon an agreed valuation; that it was “prepared with care upon correct tables of the average reasonable expense and revenue on the basis of a five-cent fare;” that from such revenue under normal conditions the property is reasonably certain to pay all necessary expenses, give all needful service, pay the six-per-cent return out of which bonded interest would be met, and yield a surplus; that operation under the franchise for' three years from July, 1914, paid expenses and interest and yielded a surplus of $400,000 per annum which inured to the city’s benefit; that the result of the nation’s entry into the war changed conditions radically and largely increased expenses to such an extent as to endanger the property and the rights of the public under the franchise. Details of increases are set forth. Increases in cost of labor, oil, coal, and interest and taxes are specified. It is alleged other increases will result and that none of these could have been in contemplation when the franchise was drawn, ratified and accepted; that a five-cent fare, while these abnormal conditions exist, will not yield revenue adequate to give “the city and those interested the full advantages of the franchise provisions of an up-to-date street railway system in a rapidly and constantly growing community, make additions and improvements called for, allow the company to earn, at the legal rate, interest upon the money invested, and meet the general demands, not of a franchise nature, for contributions for or towards public improvements and undertakings. “After return to. anything like pi’e-war normal conditions it again will be possible to carry ont the entire spirit of the franchise with the passenger revenue based upon that fare. The relief now sought is therefore temporary in nature, to continue so long as the Commission shall determine to be necessary to meet the abnormal situation.”

The prayer is for such increase of fare as may be fair and just in view of the changed conditions. This sufficiently epitomizes the petition.

The answer of the city need not be set out. It sufficed to raise all questions now presented, and particular averments will be referred to as occasion demands in the course of the opinion.

Considerable evidence was offered. The whole financial history of the company since the adoption of the franchise in 1914 was laid before the Commission. Estimates of operating expenses for the last nine months of 1918 were made. Some differences as to amounts expended and as to receipts and probable receipts appear. After an examination of the record and briefs and the opinion of the Public Service Commission we are of the opinion the Commission’s findings on these questions are correct. Those’ findings sufficiently appear in the opinion which follows.

After finding the facts, the Public Service Commission, speaking generally, held: (1) it had power to raise street-car fare in Kansas City, despite the franchise provisions and certain constitutional provisions relied upon by the city; and (2) that the facts made a case which called for the exercise of that power.

The Commission ordered (1) that the plea to the jurisdiction be overruled; (2) that the company might charge a six-cent fare from July 15, 1918, to July 15, 1919, and then should restore the five-cent rate — subject to the Commission’s power to terminate or extend this order; (3) that certain books of fares be placed on sale, and (4) that monthly reports of income and expenditures should be made to the Commission. The Commission retained full jurisdiction of the whole matter for the purposes, of supervision and modification of its order as justice might require. This sufficiently states the order for present purposes.

On writ of review to the circuit court the order was reversed. On the granting of the appeal here conditions imposed required the segregation and repayment of the increase in the fare in case of affirmance, and payment to the company in case the judgment was reversed and the order of the Commission allowed to stand.

I. The city’s first contention is that Section 20, Article 12, of the State Constitution vests full power in the city to regulate street car rates within its limits and devests the legislature and its agéncies of ri£$1t to interfere. That question was presented in the case of the City of St. Louis v. Public Service Com., ante p. 509, argued here on the same day this case was argued. After full consideration of the briefs and arguments of counsel in both these cases this court in that case held Section 20 had no such meaning as contended for by the cities and constituted no obstacle to the exercise of authority under the police power to change rates in a case in which the facts were such as to call for the exertion of such power. To that conclusion we adhere.

II. There is no question of confiscation in this case. Whether such question could be raised under a franchise like that before us is, therefore, not an issue. The company expressly states it asks no . i ,. „ ,,. increase for the purpose of paying anything except operating expenses and fixed charges.

III. The question whether rates fixed by franchise and contract are revisable by state agencies in the exercise of the police power to regulate rates has been settled by recent decisions of this court (State v. Public Service Commission, 204 S. W. 497; City of Fulton v. Public Service Commission, 204 S. W. 386; Kansas City Bolt & Nut Company v. Kansas City Light, Heat & Power Co., 204 S. W. 1074; City of St. Louis v. Pub. Serv. Co., reported at page 509 of this Report, and we are satisfied with tbe principles therein announced. Those principles answer the contention that a franchise or contract rate is, by the fact of being such a rate, put beyond the reach of the exercise of the constitutional power vested in the Legislature and its agencies to regulate, rates. That portion of the argument devoted to these questions need not be further considered.

IY. It is urged that the statute (sec. 47, p. 583, Laws 1913) does not empower the Public Service Commission to raise rates fixed by franchise agreement. This contention rests solely upon the statute. Whether the Commission could raise such rates for the mere purpose of securing to the utility a difference between what it received under the franchise rate and a reasonable return upon its investment is not involved in this case. Under this statute we have held that the Commission may permit a carrier to charge a rate higher than that fixed by statute. [State ex rel. v. Public Service Commission, 259 Mo. 704; State ex rel v. Public Service Commission, 270 Mo. l. c. 562.] The principal ground upon which this ruling was put was that any other construction would render the act “ shocking in its inequities and unfairness;” that to empower the Commission to control expenditures necessarily precluded the theory that it “was denied control of the income.” At most, in chosing between two meanings of not entirely unambiguous language, reason requires that to be chosen which will not render the act absurd and unenforceable in practice. That principle requires the same conclusion in this case as was reached in the cases cited. Those cases have been re-examined in the light of the hriefs and arguments now before us, and we find nothing which justifies a view that they are incorrect in their construction of the law;

The Commission is authorized to enforce orders for operation of the system in such manner as to render adequate service. That this cannot be done without income sufficient to pay operating expenses and fixed charges is apparent, without reference to the manner in which the indequate rate is fixed.

It was a matter of common knowledge that franchise street-car rates existed pretty generally. The Legislature passed the act in view of this situation. The construction urged by the city would render the act somewhat absurd and partially unenforceable. The more reasonable and natural construction is that given by the Commission and by this court in analogous cases. It is settled law that in such circumstances that meaning must be adopted which will not attribute absurdity to the Legislature and which will give the act its natural force.

V. The city insists that the facts do not, in view of the peculiar .franchise provisions, present a case for the exercise of the power to raise rates, even though it be conceded such power resides in the Public Service Commission. P

This makes it necessary to set out the facts developed in so far as they are relevant to the question the city raises. The contention is that the revenue produced by the five-cent fare is shown to be sufficient to pay all expenses and charges unconditionally payable under the franchise and will leave a balance of several hundred thousand dollars available ,to meet the expenditures asserted by the company and found by the Commission to be necessary to preserve the property and render adequate service. If the city is right in this contention, the order, in the state of this record, is wrong without regard to any question of the reasonableness of the return, if any, the company would receive out of the revenue for the period covered by the order. We say this be-cause the company expressly disclaims that it asks or wishes any increase in rates for the purpose of payment to it of any sum in excess of an amount equal to the sums it is required to pay and must pay out under the terms of the franchise and the mortgages securing the authorized and existing bonded indebtedness and those necessary to preserve the property and render adequate service. The real question presented by the city’s contention is whether interest 'on the mortgage indebtedness of the company is, when the franchise fare does not yield revenue sufficient to meet it, deferred under what the parties term the “cumulative” section of the franchise. The Commission’s findings are very nearly in accord with the city’s contention in respect of the particular facts relevant to the question raised.

Treating interest on mortgages as a fixed charge, the company estimates the total deficit for the calendar year of 1918 at $1,034,499.37. The city offered an estimate of $992,254, and made an estimate in its brief of $853,787.17, and another of $820,295.81. The Commission’s estimate is $860,564.99. The Commission finds that $739,000 of this is assignable to Missouri business and $648,546.00 to Missouri intrastate business. The Commission proceeds, with a wealth of detail, to discuss the whole of the evidence on the question. It tabulates the whole income and all expenditures since the adoption of the franchise, and discusses at length the contention of the' parties with respect to the various items. We think it unnecessary to set out the whole of this since the same legal result will flow from the adoption of any one of the estimates, as will presently appear. We are satisfied with the accuracy of the Commission’s estimate. We do not understand that its correctness in any important particular is seriously assailed as being unsupported by the preponderance of the evidence. In considering this deficit it is necessary to keep in mind that it takes no account of increased wages or of contingencies.

The Commission found that the “bond interest” for the calender year of 1918 would amount to $1,731,920. The city contends the payment of this interest is deferred by the “cumulative” section until such time as the revenue from the five-cent fare becomes again sufficient to pay it after paying other charges which cannot be deferred. If this contention is correct, and the deficit, including such interest, is only $860,564.99, then, the interest payments being deferred, the company would have in hand about the difference between the total interest and the total estimated deficit as estimated on the basis stated, or approximately $900,000, with which to meet wage increases, contingencies, etc. The Commission finds this sum to be $901,053.84. The city estimates it at $907,831.65. Of its estimate the Commission finds $680,057.77 to be assignable to Missouri intrastate business.

The franchise was submitted to and adopted by' the people of Kansas City and formally accepted by the company. It constituted a settlement of controversies which had long existed. It fixed the total value at something over $35,000,000 for the whole property in both Kansas and Missouri. The mortgage indebtedness was over $28,000,000, and the balance (about. $6,148,000) represented what are called intangibles. It provided for a five-cent fare. Section 27 provides for payment, in order, of:

“1. All expenses of management and operation, including all expenditures needful and necessary, to put, keep and maintain the property, and every part thereof, in first-class condition, and provide for the public first-class modern street car service.

“All taxes, license fees, or public charges and special assessments of every kind and character, including all public charges upon or for earnings, or incomes.

“2. . . . To the company, an amount equal to six per cent per annum, cumulative, payable semi-annually, upon the amount of the capital value from time to time determined and certified as herein provided. By the word ‘cumulative’ is meant that if the earnings for any six months are not sufficient to pay at such rate of six per cent, then such deficiency with interest thereon at the rate of six per cent shall be paid from future earnings, if any, when made.

“3. All liabilities for personal damages and injuries,” etc.

Section 27 further provides for the amortization of the $6,148,000 intangible value out of surplus and for the division, after amortization is complete, of the surplus between the city and company. Methods by which the city might acquire the property were provided.

The question now raised by the city is based upon these and the following franchise provisions:

“Sec. 1. The obligation of the company to the city created by this ordinance shall be the first and paramount obligation of the company prior and superior to any other obligation, lien or right upon or against any of its property or the earnings thereof.”

(Here appears Section 27, quoted above).

Section 30 (p. 35); “Any and every mortgage shall conform and be subject to the provisions of this ordinance. ’ ’

Same section, p. 36: “Every mortgage executed by the company must be expressly made subject to the terms and provisions of this ordinance, and must, before the same shall be valid, be approved by the city counselor in writing endorsed thereon.”

Same section, same page: “If such mortgage corn-forms, and is expressly made subject, to the terms of this ordinance, it shall be mandatory upon the city counselor to approve the same.”

Section 27, page 33: “All the terms, conditions and covenants in this contract contained, shall be construed as covenants running with the property in whatsoever manner the same may be mortgaged, sold, transferred or conveyed.”

In this connection the additional abstract states that at the time the property was taken out of the court of bankruptcy Judge Hook promulgated an order or plan of reorganization by the express terms of which “the present outstanding bonds and mortgages above referred to are expressly made subject to the terms, conditions and covenants contained in the franchise.” The franchise conditions and covenants run with fhe property. Every mortgage is expressly required to be made, and is made, subject to tbem. Such mortgages were in contemplation as a part of the reorganization and franchise scheme. The city contends that by reason of these facts the “cumulative” provision in the franchise (Sec. 27) thereby becomes one of the conditions and provisions of the mortgages and has the same effect upon the interest payments under the mortgages that it has upon the payment of the six per cent upon the total capital valuation as specifically provided in the “cumulative” section, i. e., that such interest payments (the contention is) are not enforceable, but are deferred in case the net income payable to the company under the six per cent franchise “cumulative” section is insufficient to enable the company to meet such interest payments as they fall due. Such we understand the position of the city to be.

It is not contended there is any clause in either the franchise or mortgages which expressly provides for deferring mortgage interest payments in any case. The argument is, in effect, that the quoted franchise provisions justify and require the conclusion that counsel draw that the “cumulative” section which expressly refers only to the company’s six per cent return, applies to and, in like circumstances, defers mortgage interest payments.

This position we do not think tenable. The franchise sets out in great detail the rights and interests of the city and the company. The city is given the right to purchase the property and the right to a substantial participation in the income above operating expenses, fixed charges and the return allowed the company. The city thus acquired a valuable interest. The franchise was drawn with a view to the protection of the rights of all concerned. The “cumulative” section makes no specific reference to anything save the six per cent income payable to the company on the agreed capital value. Its terms do not include anything else. It does not, either expressly or by necessary implication, refer to mortgage interest. The mortgages, it is pot disputed, expressly provide for the payment of interest at a stated per cent on fixed dates. The general rule is that words must be construed according to their plain and ordinary meaning. Such a construction in this instance defeats the city’s contention. Is there reason to think the case requires, in order to reach the real meaning of the parties, some other construction of the clauses in question? To give the mortgage interest provisions their plain and natural meaning in no wise affects the company’s or the city’s rights under the “cumulative” section referred-to or under any part of the franchise. It may be that if these interest payments fall due and are not met foreclosure proceedings will result, but such foreclosure cannot affect the city’s rights, since the purchaser could acquire nothing save the company’s interest. The franchise and the mortgages provide that the city’s rights under the franchise cannot be affected by foreclosure and that the purchaser must take subject to all of them.

The protection of the city’s interest under the franchise was doubtless the object of making the mortgages subject to the franchise. It is the company’s interest only which is covered by the mortgage. It thus appears there was ample reason for making the mortgages subject to the franchise without our construing the cumulative section as urged by the city. In other words, there is no need of our giving the words of the franchise an unusual meaning in order to find some reason for requiring the mortgages to be made subject- to the franchise provisions. The franchise discloses ample reason for the incorporation of that requirement independently of the cumulative section. Therefore, any argument that mortgage interest payments must be held to be deferrable under the cumulative section or that the provision making the mortgages subject to the franchise has nothing upon which it can operate, is unsound.

Again, it is not contended the language of either the “cumulative” section or of the mortgages is ambiguous.On the contrary, it is plain and unequivocal. Very clearly the mortgages are made subject to the franchise. Just as clearly they provide for the payment of interest at fixed times. The cumulative section plainly provides for deferring, in given circumstances, the six per cent payments on capital value to the company, Just as plainly it entirely omits to make any such provision respecting mortgage interest payments. This franchise was the result of long and careful deliberation on the part of all concerned. Mortgages were in contemplation of all. There is nothing mysterious or complicated in the term mortgage. All parties must have known that when such an instrument provided in terms for interest payments on given dates those payments would become due regardless of the ability of the mortgagor to meet them — unless provision to the contrary was made. Is it conceivable that the framers of the franchise, had their intent been as the city contends, would have left such a vital matter to inference and argument from franchise provisions making no direct reference thereto but, in fact, in their ordinary meaning excluding such an idea? An affirmative answer would tend to impeach the soundness of judgment of all concerned.

Further, it is to be remembered the parties were engaged in launching a great public utility into new franchise waters. All were aware that one important feature was that a great deal of money be secured by mortgages on the company’s interest in the property. It was the concern of both city and company to secure a low interest' rate. The construction now given the “cumulative” section by the city would necessarily imply that the framers of the franchise intended that the security offered mortgagees should be one so hedged about that, under conceivable conditions, interest might not be paid for'years and, possibly not at all.

Another consideration is this: In case conditions arose, as they very conceivably. might,- such that the five-cent rate during the life of the franchise, would not, according to the franchise provisions, be sufficient to rpise sufficient revenue to pay the company the whole of the six per cent per annum upon agreed capital value, could the company enforce its claims for such deficit? Against what interest would it enforce it? And if this is a condition of the company’s right to income, does it, under the city’s argument, become a condition of the right of the mortgagees to interest and even to their principal? The city’s argument is that all the conditions of the “cumulative” section are conditions of the mortgages. It seems to us the argument proves too much, and therefore proves nothing.

We are driven to the conclusion that the mortgage interest payments become due and payable according to their plain language and are unaffected by the ‘ ‘ cumulative ” s ection.

It results that on the undisputed facts the case made before the Commission showed that, after paying operating expenses and fixed charges falling due during the year, the company would face a total'deficit of approximately $850,000 and a deficit of $648,546 on Missouri intrastate business.

Regardless, therefore, of the question of wage increase and contingencies and of any net return to the company on its interest, the system faced foreclosure and bankruptcy.

VI. It was shown that a wage increase was necessary to a continuance of proper operation of the system. It appeared without dispute that common labor in the community was paid a much higher wage than the company’s motormen and conductors; that some had left and others were about to leave the service of the company on account of the insufficiency of their pay to meet living conditions; that they were going to other employment where larger wages were paid and that this was resulting more and more in affecting the service injuriously. It was shown that an increase of one cent an hour for each employee who received less than $1800 per annum would add $105,000 to the year’s wage expense. It also appeared that the average wage previously paid (1917) motormen and conductors was about thirty and one-half cents per hour and that common labor was being paid, by some large employers, at the rate .of forty cents an hour. We do not find that the city contends a wage raise is unnecessary, not essential to the proper manning of the cars for adequate service. That contention of the company and finding of the Commission do not seem to be questioned. On this record we conclude the finding was correct.

The insistence of the city that the deferring of interest payments would leave large funds in the company’s hands was doubtless deemed by the city sufficient on this point. With that position we have already dealt.

VII. The suggestion that the interstate-commerce clause of the Federal Constitution invalidates the order of ■ the Commission is sufficiently met by Simpson v. Shepard (The Minnesota rate cases), 230 U. S. 352. In that case the right of the State to regulate intra-state rates, provided no direct burden was laid upon interstate commerce, was given full recognition. The Public Service Commission followed the rule in that case with respect to separate value of the intra-state property and income.

VIII. A portion of the brief is devoted to what we take to be an argument as to the policy of the law. With the question what the law ought to be we have no power or right to speak in this case. Our sole function is to declare what the applicable law is. We must take the law as it is and the facts as they are and apply the one to the other and announce our conclusion. This is our sole function under the Constitution. It is the only commission given us. Whether we differ from or agree with the policy of a constitutional provision of our law is of no moment in the performance of judicial duty.

The conclusions reached require a reversal of the judgment of the circuit court of Cole County and a remandment of the cause to that court with directions to set aside its judgment in this case and affirm the order of the Public Service Commission. It is so ordered.

All concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. MECHANICS-AMERICAN NATIONAL BANK v. STURGIS et al., Judges of Springfield Court of Appeals.
    In Banc,
    January 25, 1919.
    1. NEGOTIABLE NOTE: Material Alteration: Conflict in Opinion. In American National Bank v. Bangs, 42 MO. 450, it was ruled that a mere memorandum designating tile time and place Of paym.ent, placed upon the note after its execution as a mere notation for the convenience of the holder in collecting it and not intended to be a part of the contract itself, did not constitute a material alteraion as between the indorsee and maker; and consequently the ruling of the Court of Appeals that the cutting of£ of the end of a note by the maker, after it had been executed by an accommodation maker, thereby removing the words “payable at” from the phrase “payable at Oran, Mo.,” and by adding “Bk. of.” so that the phrase was made to read “Bk of Oran, Mo.,” thereby removing or destroying the place of payment, was a material alteration as between said accommodation maker and the indorsee, was not in conflict with the ruling in the Bangs case or any other decision of the Supreme Court.
    2. CONFLICT IN OPINIONS: Construction of New Statute. If the . points ruled by the Court of Appeals turned upon a late statute which had not been previously construed by the Supreme .Court, there is no such conflict in opinion -as gives the latter court jurisdiction upon certiorari. For instance, if the Court of Appeals ruled that relator was not a“holder in due course” within the meaning of certain sections of the Negotiable Instrument Law and the Supreme Court had not previously construed those sections, there is no conflict of decision, even though the ruling may be in conflict with prior decisions construing the Law Merchant.
    3. -: Facts Conclusively Established. For all purposes of review in an appellate court, the finding of a jury in a law case, if founded on substantial evidence, is conclusive, and is just as binding on such court as any conceded fact would be. Consequently, a statement in its opinion by a Court of Appeals that certain facts are “conceded” or “conclusively” established, where they were supported by substantial evidence and the verdict of a jury, does not conflict with Gannon v. Gas Light Co., 145 Mo. 1. c. 516, or any other ruling of the Supreme Court.
    4. -: Text-Book Law: Wrongful Decision. In a certiorari to a Court of Appeals, based on a claim that its ruling is in conflict with the last previous decision of the Supreme Court on a matter of law or equity, it is wholly beside the question for relator to urge that said ruling is in conflict with text-book law or the decisions of other states. Unless the Supreme Court has previously ruled contrary to the decision of the Court of Appeals, it has no jurisdiction to quash the opinion of the Court of Appeals, whether it be right or wrong. It is only when there is in fact a conflict, and the Court of Appeals is right and the Supreme Court is wrong, that text-book law and rulings from other jurisdiction, called to its attention by respondent, may be of value in aiding the Supreme Court to correct its own errors.
    Certiorari.
    Writ quashed.

      Leahy, Saunders ds Barth for relator.
    (1) Even uncontradicted testimony of a witness as to alleged facts does not create a conclusive presumption that such facts are true; it is still a question, of fact for the jury to determine whether or not such alleged facts are true. Gannon v. Laclede Gas Light Company, 145 Mo. 514, 520. The. court in this case confounds uncontradicted evidence with conceded facts, and, in any event, invades the constitutional province of the jury. Wack v. Railroad Co., 175 Mo. App. 127; Dorsey v. Railroad Co., 175 Mo. App. 160; Craig v. United Railways Company, 175 Mo. App. 626; Hill v. Dillon, 176 Mo. App. 200; Coffman v. Realty Company, 176 Mo. App. 699. (2) The court, in holding that the word “Bk of” in pencil on the note changed the place of payment and invalidated the note ignored both Sees. 10094 and 10095, R. S. 1909, and the case of American National Bank v. Bangs, 42 Mo. 450.' (3) The net result of this opinion is to hold that the words “Bk of” in pencil on the note would not have invalidated it prior to the Negotiable Instruments Act, which expressly provides that such alterations as against the holder in due course shall be immaterial, but that binder said act the note is vitiated. The court, in support of this conclusion, cites Sec. 10057, R. S. 1909. and argues that fhe addition of the words “Bk of” was a material and prejudicial change as to the maker of the note, who is generally and universally liable. The said section has no conceivable application to thé case at bar. This holding ignores the fact that the note was dated Oran, Missouri, and, in any event, was payable at Oran, Missouri, under the express provision of Sec. 10043, E. S. 1909, and if it should, be conceded, for the sake of the argument, that the words “payable a” were cut off, and that the note originally read “payable at Oran, Mo.,” still this point would be wholly immaterial, because, under the terms of the note, it would still be payable at Oran, Missouri, by virtue of its dating, “Oran, Mo., May 28, 1915.”

      Gallivan & Finch and Oliver & Oliver for respondents.
    (1) The statements of fact by the Court of Appeals is final and conclusive upon this court. State ex rel. v. Ellison, 256 Mo. 666; State ex rel. v. Ellison, 269 Mo.. 156; State ex rel. v. Eeynolds, 272 Mo. 596; State ex rel. v. Farrington, 272 Mo. 163. (2) The Supreme Court will not attempt to determine the correctness or incorrectness of the views of the Court of Appeals on certiorari, but simply and solely whether they conflict with a controlling decision of this court. State ex rel. v. Eeynolds, 272 Mo. 596; State ex rel. v. Eobertson, 197 S. W. 79; State ex rel. v. Ellison, 269 Mo. 156. (3) This court on certiorari will not deal “with the case proper on its merits or demerits.” State ex rel. v. Ellison, 272 Mo. 581; State ex rel. v. Ellison, 268 Mo. 238; State ex rel. v. Eeynolds, 272 Mo. 596; State ex rel. v. Ellison, 269 Mo. 156. (4) The opinion of the Springfield Court of Appeals in this case was a judicial construction of Sec. 10094 and 10095, E. S. 1909, and no interpretation has been put upon those sections by this court since their enactment. (5) The opinion of the Springfield Court of Appeals would not be disturbed by this court on certiorari even if it should conflict with ,the opinions of appellate courts of other states construing like sections. State ex rel. v. Eobertson, 197 S. W. 79; State ex rel. v. Ellison, 269 Mo. 156; State ex rel. v. Reynolds, 272 Mo. 596. (6) As a matter of fact, the construction given Sections 10094 and 10095 by the Springfield Court of Appeals is in accord with the construction placed upon the same sections by other courts of last resort. 1st National Bank v. Barnum, 160 Fed. 245; Elias v. Whitney, 98 N. T. Supp. 667; Berks Co. Trust Co. v. Lyte, 95 Atl. (Penn.) 719; Ford v. Brown, 114.Tenn. 467; Stanford v. Stanford, 100 Atl. (N. J. Eq.) 398; Dollar Trust Co. v. Crawford, 70 S. E. (W. Va.) 1089; McLeod v. Despain, 49 Ore. 536; Wood v. Arnold, 191 S. W. (Ark.) 760; Andrews v. Sibley, 107 N. E. (Mass.) 396; Bassick v. Aetna Explosive Co., 246 Fed. 1004; Tyler v. 1st Nat. Bank, 150 S. W. (Ky.) 665; Holbart v. Lauritson, 148 N. W. (S. D.) 19, 1915 A. L. R. A. 166. (?) The opinion of the Springfield Court of Appeals is in complete accord with the statute of the State, and the decisions of this court, rendered prior to the adoption of the Negotiable Instruments Laws, which were not modified by said statutes. Sees. 10022, 10094, 10095, R. S. 1909; Bank v. Fricke, 75 Mo. 179; Para-more v. Lindsey, 63 Mo. 66; Carson v. Lumber Uo., 270 Mo. 248; Collison v. Norman, 191 S. W. (Mo.) 60.
   FARIS, J.

This is an original proceeding by certiorari, whereby relator seeks to quash the record of the Springfield Court of Appeals in the case of Mechanics-American National Bank, Appellant, against M. Helmbacher, Respondent, for that, as it is averred, the opinion filed therein by the Court of Appeals is in certain behalves in conflict with the last previous rulings of this court.

The facts in the above case (which for brevity we shall call the Helmbacher case), as these facts were found by the learned Court of Appeals, are thus set fourth in the opinion of that court:

“This is a suit on a promissory note for $1,500, dated May 28, 1915, payable on or before January 1, 1916, interest at eight per cent. This note is as follows:

“ ‘$1,500. Oran, Co., May 28, 1915. “ ‘On or before Jan. 1st, 1916 after date, we promise to pay to the order of C. D. West, trustee, fifteen hundred 00/100 dollars, for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of eight per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest until paid. (Signed) Peter Dirnberger. M. Helmbaeher.

“ ‘Bk. of “ ‘t Oran, Mo.

“ ‘Due Jan. 1st, 1916.’

“Indorsed on back: ‘C. D. West, Trustee.’

“Upon trial, before the court and a jury, judgment below was for the defendant, and plaintiff appealed.

“The payee of the note as originally written was C. D. West. Plaintiff claims to be the holder in due course, for value, and without notice of any infirmities. The defense is that since the signing and delivery of said note it has been materially altered, mutilated, and changed in this manner: (1) That the relation of the parties to the instrument has been materially changed by inserting after the name of the payee, 0. D. West, the word ‘trustee’ without the knowledge or consent of the defendant; (2) that the end of the note has been cut off, thereby cutting off “Payable a’ in said note, and inserting ‘Bk of’ over ‘Oran, Mo.,’ and it is claimed this changed the place of payment; (3) and that some ■ memorandum or writing has been cut off the end of said note, which memorandum or writing rendered said note non-negotiable; (4) that the note was executed on condition that certain merchandise and other property, including some real estate, assigned by Dirnberger to C. D. West as trustee for the benefit of creditors, would be returned to Dirnberger, and that this property was not returned, and that there was therefore no consideration for the note.

“It seems that Dirnberger, who had been conducting a grocery store, had not prospered, and was being pressed by creditors. In this situation be made an assignment, and C. D. West, adjuster for tbe Credit Men’s Association of St. Louis, was made tbe assignee. Tbe defendant signed the note with Dirnberger as accommodation maker. Tbe note was filled out by defendant at bis residence on a blank form taken from bis blank note book at which time it was signed by Dirnberger and defendant, and was delivered to Dirnberger. ' A blank from defendant’s note book was introduced at tbe trial, and by comparison tbe portion cut off clearly appears from tbe photographic copies in tbe record. Shortly thereafter Dirnberger delivered tbe note to H. E. Robocker, credit manager of Adam Roth Grocery Company. Robocker soon thereafter delivered tbe note to West, who on June 5, 1915, discounted the same at plaintiff bank, and tbe proceeds were deposited to bis credit as trustee for Dirnberger, and paid out to the creditors of Dirnberger. Robocker testified that when be received. tbe note from Dirnberger it was in tbe same condition as at tbe trial, except tbe £Bk. of’ was not on it, and it did not then, of course, bear tbe endorsement of C. D. West, trustee. C. L. Allen, assistant cashier of plaintiff bank, testified that when be discounted the note for bis bank it was in tbe same condition as at tbe trial. West testified that be did not think tbe ‘Bk of’ was written on tbe note when be received it from Robocker, but that tbe word ‘trustee’ was in tbe note when be received it. It is conceded that tbe word ‘trustee’ was written, and that tbe end of tbe note was cut off and ‘Bk. of’ inserted, after defendant signed the note, and all this without his knowledge or consent. Two questions arise upon this record: (1) Is plaintiff a holder in due course? (2) Did the addition of ‘trustee’ and ‘Bk of’ and cutting off ‘Payable a’ under tbe circumstances so change the relation of tbe parties and tbe place of payment as to amount to a material alteration?”

After setting out tbe facts of tbe case thus, tbe Court of Appeals proceeded to apply to these facts tbe provisions of tbe Negotiable Instrument Law, [Laws 1905, pp. 243, et seq.] Having so applied its construction of divers sections (Secs. 10030, 10094, .10095, and 10022, E. S. 1909) thereof to what it found to be the facts of the Helmbacher case, it held: (a) that plaintiff bank was. not a “holder in due course,” and (b) that (1) the addition of the word “trustee” following the name of the payee, (2) the addition of the words “Bk of,” designating the place of payment, in conjunction with (3) the cutting off of some inch or more from one end of the note, which destroyed the words “payable at,” changed the place of payment and constituted such “material alterations” thereof as to prevent plaintiff’s recovery as against an accommodation maker.

In reaching the conclusion first supra, the Court of Appeals felt constrained to construe Section 10022, Eevised Statutes 1909, in respect of what constitutes a' “holder in due course;” and it based its opinion that the changes of the note in the modes stated constituted “material alterations,” upon its construction of Section 10094 and 10095, Eevised Statutes 1909.

I. Eelator calls our attention to a number of cases ruled by us, which it ably and strenously urges are in conflict with the rulings of the Court of Appeals upon the points supra. Touching all of these cases except one (American National Bank v. Bangs, 42 Mo. 450), general reference will be made hereinafter, since in the view we are constrained to take of the case all these cases, with the exception noted, may be discussed and harmonized, or distinguished together. The facts in the Bangs case, supra, were briefly these: Bangs and another, one Deady,.seemingly partners, made a note to “Fritsch & Simonton, New York,” for one thousand dollars, dated October 10, 1866, and due three months after date.The payee assigned and endorsed this note before maturity to the plaintiff therein, which being compelled to sue thereon, lost below and brought the case here by writ of error, Dehors the body of said note, and pccupying in that behalf a position in all respects similar to that of the words “payable at” upon the note in the Helmbaeher case, there was printed the word “Due,” followed by a blank, or blank space. In this blank, after the making and delivery of the note, there was written the words “at Goodyear, Bros. & Durand’s, New York, Jan. 10-13,” thus making this line to read “Due at Goodyear, Bros. & Durand’s, New York, Jan. 10-13.” Upon this state of facts it was successfully urged nisi ■ and contended here, that the note was void as against the makers. This court upon that point said:

“The question, then, is, whether these words attached to the foot of the instrument are to be taken as a part of it or only a private' memorandum, which can in no way affect the liability of the makers. It will be found upon an examination of the authorities upon this question that where such words are not incorporated in the body of the contract itself, nor in any manner annexed to the instrument by the maker for the purpose of fixing a place of payment, they are to be taken as a mere memorandom, and therefore immaterial. . . . The memorandum in this case does not increase or vary in any respect the liability of the defendants, and therefore presents no obstacle to the recovery of the plaintiff. It is admitted that in cases where there was a contest between the holder and indorser, such an addition or memorandum, without the knowledge and consent of the latter, has been held sufficient to discharge him. But as to the makers themselves, the question is altogether different. This opinion has proceeded upon the idea that the words in question were simply a memorandum made at the bottom of the note after its execution, and not intended to be a part of the contract itself. Such appears to be the fact, so far as the case is presented here by the record, but we will not assume it to be so for the purpose of entering up judgment in this court.”

In other words, this court ruled that if such a memorandum was only intended to be a mere notation for the convenience of the holder in collecting the note, and not intended to be a part of the contract itself, the addition of the memorandum did not constitute a material alteration as between the indorsee and the maker. It was intimated that this question of intention could be cleared up by testimony upon another trial; for the court expressly refused to foreclose it by a judgment here, but sent the case back to be retried.

So far as counsel upon either side have pointed out and so far as we have been able to find, the Bangs case is the last previous ruling upon the materiality of a memorandum such as was made in that case and in the Helmbacher case. The rule announced in the Bangs ease seems so consonant with reason and good sense, that we ought not to go back fifty years to abrogate it; a fortiori at a time when in ■ effect it is urged, that the high cost of paper has driven those dealing in negotiable instruments to the custom of making such memoranda— as place or person of convenient collection, and the computation of interest — upon the very faces of the instruments themselves. But reading the whole opinion of the Court of Appeals in the Helmbacher case, we do not get the view that the learned court held that such a pencil memorandum as “Bk. of” which was put on as a mere notation of the name of a convenient collecting agent, was of itself alone sufficient to constitute a “material alteration” of the note. Rather do we incline to the view that what was meant was that the shearing off of the words “payable at,” taken in connection with the addition of the words “Bk. of,” together constituted a material alteration within the eaning of Section 10095, Revised Statutes 1909. There are, it is true, some expressions in the learned opinion which considered alone and without the whole context might on first blush incline us to a different view. But in summing up toward the close of the opinion the Court of Appeals says: “It appears that Dirnberger added the word “Trustee” after defendant had signed the note, and without defendant’s knowledge and consent, as the word trustee is in Dirnberger’s handwriting. . By elimination it would appear that Dirnberger cut off the end of the note and thereby destroyed or removed the place of payment.” (Italics ours.) For the latter reason alone, we think this contention of relator should be disallowed.

II. Relator urges upon our attention a number of other cases which it contends are in conflict with other views held in the Helmbacher case. But the difficulty we meet in agreeing with the latter contention of relator arises from the fact, foreshadowed above, that the Court of Appeals ruled the points alleged to conflict with our prior decisions pursuant wholly to its construction of certain sections of the Negotiable Instrument Law. This law was not enacted till 1905 (Laws 1905, pp. 243, et seq); all of the cases called to our attention were ruled long prior to the latter date. Neither the exhaustive research of learned counsel for relator, nor our own somewhat careful examination of the authorities, has found for us any case wherein wre have construed the particular sections- of the Negotiable Instrument Law upon which the questions turned, which were held in judgment in the Helmbacher case. . It is persuasive that the learned Court of Appeals, as it frankly confesses, was likewise unable to find any case wherein any appellate court in this State had theretofore construed said Sections 10094 and 10095, Revised Statutes 1909. [Mechanic’s American National Bank v. Helmbacher, 199 Mo. App. l. c. 178.] Since then, the points raised upon the record before the Court of Appeals in the Helmbacher case turned upon new and theretofore unconstrued statutes, they were matters of first impression in this State and no conflict with any prior decision of ours was possible. The Court of Appeals had the right to construe the above sections of the Negotiable Instrument Law in such wise as it saw fit and to say authoritatively (till after we shall have ruled the precise point, or principle) what those sections mean, and to what state of facts they are applicable, Indeed, as we have heretofore had occasion to suggest, they even had the right to construe these sections erroneously; which right to decide wrong is inherent in all courts, as a casual glance at any table of overruled cases will make manifest. Our own prior decisions, urged upon us as conflicting with the Helmbaeher case, followed the Law Merchant and not the subsequently enacted Negotiable Instrument Law. Eegardless, therefore, of whether there is or is not a conflict, and whether the Court of Appeals is or is not right (touching which ■$-e do not rule), statutes have intervened and we have no authority to interfere. For these reasons we are compelled to disallow this contention of relator.

III. It is urged, however, by relator that the statement in the opinion of the Court of Appeals that “it is conceded that the word ‘trustee’ was written and that the end of the note was cut off and ‘Bk. of’ inserted, after defendant signed the note and all this without his knowledge or consent,” is in conflict with the rule announced in Gannon v. Gas Light Co., 145 Mo. l. c. 516-517, where it was said by this court:

“The plaintiff was entitled to have the jury determine the credibility of the testimony offered, even though she offered nothing to contradict that offered in behalf of defendant, and it is not to bé assumed by the court as a matter of law that evidence is true, satisfactory or convincing to 'the body called ■ upon to hear it, from the mere fact that no one by words contradicts what has been uttered.”

While we do not find that plaintiff, or its learned counsel, did make the concession stated, but gather on the contrary from other parts of the opinion that the fact whether such alleged alterations were made before or after the instrument was signed by Helmbacher, was denied throughout; it is yet apparent from other parts of the opinion that the use of the word “conceded” was a mere slip of the pen. For elsewhere in the course of the opinion it is said: “The note sued on by the most casual inspection shows that the words ‘trustee’ and ‘Bk. of’ were written in this note in a different handwriting and in different ink to that in which the balance of the note was written [‘Bk. of’ was in pencil] and the evidence shows conclusively that these additions were made at a different time to that when the balance of the note was written.” Again it is said in the opinion: “It appears that Dirnberger added the word ‘trustee’ after defendant had signed the note and without the defendant’s knowledge or consent, as the word ‘trustee’ in the face of the note is in Dirnberger’s handwriting.”

We do not think that the finding and statement of the Court of Appeals that the evidence showed “conclusively,” or that it was “conceded” that the changes alleged to have been made in the note were so made after Helmbacher signed it, are in conflict with the rule quoted above from the Gannon-Gas Light case. In the Gannon case it was strenously contended here that the trial court erred in not taking the case from the jury for that the evidence offered by defendant explained conclusively when and how the electrically charged wire fell, and that this explanation irrefutably negatived defendant’s liability.' This court held that such refusal to sustain the demurrer offered to the evidence upon the whole case was not error, because the plaintiff had the right to take the jury’s finding upon the credibility of the evidence offered by the defendant in explanation of how and when the wire fell. In the Helmbaeher case the defendant testified that the note was not cut off nor was the word “trustee” written therein when he signed it. No one, it seems, categorically denied this testimony upon the trial. Relator correctly insists that under the rule in the Gannon case the plaintiff had the right to have the jury pass upon the credibility of defendant’s testimony. Unquestionably, the Gannon case holds this. But the learned Court of Appeals was dealing with a condition and not a theory. The jury had passed upon the credibility of Helmbacher’s testimony; had seen fit to believe it, and the trial court had in overruling the motion for a new trial set the seal of his approval upon the finding of the' jury upon that point. In considering whether it was, or was not, a fact that the note was unchanged when Helmbacher signed it, the Court of Appeals had the right to impute absolute verity to the jury’s finding upon this question and to say that it was conclusively proven that the changes were made in the note after Helmbacher signed it. For all of the purposes of review in the appellate court, the finding of a jury in a case at law, wherein such finding is bottomed on substantial evidence, is “conclusive” and is just as binding upon the appellate court as any “conceded” fact would be. [In re Lankford’s Estate, 272 Mo. 1.] The Gannon case dealt with a theory advanced by the appellant therein; the Helmbacher dealt with a condition brought about by the finding of the jury, and the approval of that finding by the trial court. We think this contention of conflict is therefore untenable.

IV. In conclusion, we may add that it is, so far as concerns relator, wholly beside the question to urge text-book law and the decisions of sister states in a case brought up to us from a Court of Appeals by certiorari for quashal. Unless we have prior the filing of the opinion by a Court of Ap-

peals ruled in conflict with the opinion of which quashal is sought, we have no constitutional power to interfere with the decisions of the Courts of Appeals, moving within their constitutional orbits of jurisdiction, whether such decisions be right or wrong. Until we have ruled upon the question, or until another Court of Appeals has upon a given point held a different view and the case has been certified up to us, the errors of any judge of a Court of Appeals, however grievous are so far as this court is concerned, political questions solely. [Majestic Mfg. Co. v. Reynolds, 186 S. W. 1072.] Of course, as has often happened, if there is in fact a conflict and the Court of Appeals is right upon the point and we are wrong, text-book law and rulings from other jurisrictions, called to our attention by the respondent, may be of value in aiding us to correct our own errors.

We conclude that our writ herein was improvidently issued and ought to be quashed. Let it be so ordered.

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


author: BOND, C. J. BLAIR,. J.

text:
    CARRIE KLOCKE, Appellant, v. LOUISE KLOCKE et al.
    In Banc,
    January 25, 1919.
    NOTA BENE: An opinion in this case by White, C., was adopted by Division Two. By order of that Division the case was subsequently transferred to Court in Banc. Pending such transfer the divisional opinion was inadvertently certified to the Reporter for publication and published in 273 Mo. 150. This publication must be considered as expunged from that volume of the Missouri Reports.
    1. WIDOW: Husband Dying Without Children: Right to Half of Land: Election. Under Sec. 351, R. S. 1909, providing that when the husband shall die without children or other descendants capable of inheriting, his widow shall be entitled “to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely,” subject to the payment of his debts, the widow is entitled to one-half his estate, subject to his debts and subject to the terms of a compulsory election in case, in addition to her rights under said Section 351, she is also entitled to be endowed under Section 345. Where she has the two rights, she must elect; where she does not have dower under Section 345, the law elects to give her the one-half absolutely. Where dower as defined by Section 345 is non-existent, she takes the half given her by Section 351 as a substitute. Held, by BLAIR, J., that, as the widow in this case filed her election to take under Section 351, whether, in the absence of such election, she would have taken, automatically, under said section, is a question not arising on the recprd, whose decision therefore should be deferred until it is presented.
    2. -: Interpretation of Statute. No construction of a statute should be adopted which tends to shear a widow of her right to dower or of any beneficient provision granted in lieu of dower.
    3. -: Vested Remainder: No Election. Where, the husband owned a vested remainder in land, but died, without descendants capable of inheriting, during the pendency of the life estate and without ever having been in possession, his widow was not entitled to dower under Section 345, and consequently she was not required by Section 353 to elect to take a half interest in his lands given to her by Section 351 as a substitute for dower.
    4. -: Right to Half of Husband’s Land: Dependent on Preexisting Dower. A widow’s right to one-half of her childless husband’s estate, absolutely, subject to debts, under Section 351, is not dependent upon a pre-existing right to dower under Section 345. [Overruling Von Arb v. Thomas, 163 Mo. 33, and Klocke v. Klocke, 273 Mo. 150.]
    5. OVERRULING PRECEDENT: Rule of Property. The doctrine of the rule of property should not prevent the abolition of a precedent not sustainable in reason and in contravention of the terms of a statute relied upon to support it, and wh’ch has wrought injustice in every instance of its subsequent application.
    6. -:-Interpretation of Another Statute: Prospective Operation. If the decision which the court is asked to overrule construed a statute other than the one under judicial interpretation, the question of the propriety of adhering to the former decision for the preservation of intervening property rights is not present, for .no property rights acquired under that construction could be invalidated by a change of construction. In such case, the effect of overruling the former decision is prospective only.
    Appeal from St. Louis Circuit Court. — Hon. John W. McElhivmey, Judge,
    Eeversed and remanded.

      Wm. L. Bohnenkamp for appellant.
    (1) The plaintiff in this case as the widow of Henry Klocke, deceased, who died without any child or children or other descendants in being capable of inheriting, takes an undivided one-half of the property “belonging to her husband at the time of his death, .absolutely,” being the property described in the petition. E. S. Mo! 1909, sec. 351; Ferguson v. Gentry, 206 Mo. 190; In re'Ferguson’s Estate, 206 Mo. 203’; Spurlock v. Bennett, 183 Mo. 531; Waters v. Herboth, 178 Mo. 166; Perry v. Strawbridge, 209 Mo. 621-. (2) The opinions in the Von Arb case and of No. 2 in the case at bar carries with it its own refutation. They will not stand the light of analysis. See Von Arb v. Thomas, 163 Mo. 33, and Klocke v. Klocke, 273 Mo. 150: (3) The opinion of the court in the Von Arb case and again the opinion rendered in the case at bar by Division Two put a construction on Section 353 that renders it unconstitutional in that in the light of such construction it becomes class legislation. State v. Kimmel, 256 Mo. 369; State v. Baskowitz, 250 Mo. 107; White v. Railroad, 250 Mo. 577; State v. Miksicek, 225 Mo. 577; Kansas City v. Grush, 151 Mo. 135; State v. Walsh, 136 Mo. 107; State v. Julow, 129 Mo. 176; State v. Loomis, 115 Mo. S”07; State v. Hermann, 75 Mo.-340; State v. Tolle, 71 Mo. .645; State ex rel. v. Miller, 100 Mo. 447; Ewing v. ILoblitzelle, 85 Mo. 64. (4) It is the settled policy of our laws and the rule of our appellate courts, in construing laws that concern the rights and interests of widows, to favor such rights and to give such interpretation as will protect the widow. Davis v. Davis, 5 Mo. 183; Keeney v. McVoy, 206 Mo. 42; Finnell Estate v. Howard, 191 Mo. App. 218; Chrisman v. Linderman, 202 Mo. 614; Wyatt, Admr. v. White, 192 Mo. App. 554; Estate of Messersmith, 264 Mo. 619; Spurlock v. Bennett, 183 Mo. 531; Gilroy, v. Brady, 195 Mo. 209; Adams v. Adams, 183 Mo. 408; Greene v. Huntington, 46 Atl. 883, 72 Conn. 106; Ferguson v. Gentry, 206 Mo. 190; In re Ferguson’s Estate, 206 Mo. 203.

      George. W. Wolf and Clarence L. Wolf for repondents.
    (1) Secs. 345, 351, 353, 354, 355, R. S. 1909, in the Dower Act, and directly involved in this controversy, are cognate sections supplementary to each other, and being in pari materia must be considered and construed together, as parts of one whole and complete legislation on • the subject. Weindel v. Weindel, 126 Mo. 651. Such sections of a statute as are in pari materia must be treated as one section, and that construction adopted which will give effect to- all of them. City of Carthage v. Carthage Light Co., 97 Mo. App. 20; State ex rel. Mc-Clanahan v. De Witt, 160 Mo. App. 307. While in interpreting a statute, the court must ascertain and expound the intention of the Legislature from the words and context of the statute, other sections in pari materia, especially when part of the same act, may be looked to for aid in arriving at its true meaning. State ex rel. v. Scale Co., 182 Mo. App. 664. In determining the legislative intent the whole body of the law must be considered, and not selected portions thereof. Gantt v. Brown, 238 Mo. 577. A familiar canon of construction is that every word of the statute, where it can be consistently done, is to be given force and effect, especially if they are in harmony with the Legislature’s intention as collected from the entire act. Hegberg v. Railroad, 164 Mo. App. 557. (2) Sections 351, 353 and 354 presuppose the existence of the right of dower in the widow, as a condition precedent to her right to elect to take one-half under Section 351. The right of election rests for its statutory basis upon the right of dower. In other words, no dower — no election. This is clearly manifest, from the words used in Section 354: “When a widow shall be entitled to dower as provided by Sections 351, 352 and 353,” etc. Secs. 353-354, R. S. 1909; Dower Act 1825 and 1835; G. S. 1865-6 and all subsequent revisions; Stokes v. O’Fallon, 2 Mo. 29; Griffith v. Walker, 3 Mo. 137; Hamilton v. O’Neil, 9 Mo. 11; Hornsey v. Casey, 21 Mo. 548; Moran v. Stewart, 122 Mo. 297; Moran v. Stewart, 132 Mo. 75; Newton v. Newton, 162 Mo. 186; Von Arb v. Thomas, 163 Mo. 42. The widow’s election-dower provided for in the several sections of the Dower Act is, in effect, nothing more that a “substitute” for her common-law dower. Adams v. Adams, 183 Mo. 408; Keeney v. McVoy, 206 Mo. 42; Perry v. Strawbridge, 209 Mo. 630; Newton v. Newton, 162 Mo. 186; Von Arb v. Thomas, 163 Mo. 33. (3) Election by widow under Section 351 is absolutely essential in order to vest title. Matney v. Graham, 50 Mo. 559; Crowl v. Crowl, 195 Mo. 338; Wash v. Wash, 189 Mo. 352; Allen v. Hartnett, 116 Mo. 278. (4) The creation of a new and absolute estate in fee in the widower, by the Widower’s Act of 1895 (now Section 350), giving Mm one-half of his deceased childless wife’s estate without election on his part, did not necessarily or impliedly create a new or like estate in the widow of a deceased childless husband, hut left her dower and election rights intact,' unimpaired and unchanged, as provided by the several dower sections and as they have been on the statutes ever since 1825 and 1835. The very purpose of said Widower’s Act of 1895 was to make provision for the husband when he had no curtesy. Perry v. Strawbridge, 209 Mo. 630. It was wholly foreign to the intent of the Legislature in passing said act to make like provision for the wife when she had no dower. If the lawmakers had so intended they would have said so. (a) Repeals of laws by implication and inference are never favored. Nor can the Legislature amend or repeal an existing statute by inference from an act subsequently passed. Hawkins v. Smith, 242 Mo. 720. (b) A later statute does not repeal an earlier one by implication, nor by express provision that it repeals former acts inconsistent with it, if they can both be given effect without clear repugnancy or unreasonableness. Nichols v. Hobbs, 197 S. W. 258.
   BOND, C. J.

The plaintiff is the widow of Henry Klocke, who died childless and intestate in October, 1913. At the time of his death said Henry Klocke was seized of a vested remainder in fee (subject to a life estate in his mother, Wilhelmina Klocke)' in forty-one acres of land devised to him under the will of his father, George Klocke, who died in 1904, after having made a will specifically devising to his four children all of his real estate, subject to a life tenure in their mother. Wilhelmina Klocke (the mother) died in March, 1914, • and • two months thereafter plaintiff brought this suit to partition the land belonging to her husband, between herself and his three surviving sisters, alleging that she is entitled to one-half thereof, and each of the defendants is entitled to one-sixth thereof. The defendants answered, admitting the devise of the land in question to the husband of plaintiff, and his death, intestate and without children, but averred that he never was in possession of the said real estate on account of the intervening life estate of his mother, wherefore plaintiff was not entitled to dower and hence not entitled to elect to take one-half of said real estate in lieu of dower. The answer prayed for affirmative relief by a decree adjudging and determining the title between the parties.

Upon the hearing the court found the issues in favor of the defendants and that plaintiff had no right, title, interest, share or estate, as the surviving widow of Henry Klocke, in the real estate in controversy.

Plaintiff duly appealed to this court.

I. The only question presented by this appeal is whether, upon the conceded facts, plaintiff is entitled under Section 351, Revised Statutes 1909, which provides that “when the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: . . . second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband’s debts.” A widow’s right to dower at common law, many statutory substitutes therefor, and the correlative right of a husband whose wife has died without children or other descendants, are all defined in the present re-' vision. (R. S. 1909, secs. 345 to 357, inclusive.) Those to be carried in mind in construing the one under review are: Section 345, declaratory of common law dower — i. e. a life estate in one-third of the land of which the husband was seized during marriage; Section 350, giving the husband absolutely one-half of the estate of a wife dying without children or descendants; and Section 353, requiring election between Sections 345 and 351.

The close interrelation of these statutes require them to be construed in pari materia. As a whole they express the legislative purpose to provide for the rights and estate accruing to one spouse upon the death of the other in the circumstances posited in the several sections of the statute which together make up a general scheme of legislation. The undisputed facts show that the plaintiff would not have been entitled to dower at common law nor under the construction given to Section 345, Revised Statutes 1909, declaratory of the widow’s dowable right to “the third part of all the lands whereof her husband . . . was seized of an estate of inheritance at any time during the marriage, to which she shall not have relinquished her right of dower,” etc., the reason being that under the construction given to this statutory provision the widow of an owner of a vested remainder in fee, who died before the expiration of the life estate, would not be entitled to dower because her husband was not in actual possession of the land during his life. It is clear, therefore, that if the rights granted to a widow under Section 351 quoted above are only created in those widows who are also endowable at common law, the plaintiff in this case cannot recover.

After full and careful consideration of the terms and intent evidenced by the totality of these statutes, we are convinced that no such thought was in the minds of the legislators, or expressed by any of the enactments touching the point under review. The plain and obvious purpose of the statute in question (See. 351) as evidenced by its terms, was to vest in the widow of' a man who died under the hypotheses of the statute, the absolute right to “one-half” of the estate “belonging to him at the time of his death,” subject to the terms of a compulsory election in case, in addition to her . rights under Section 351, she should also be entitled to be endowed under Section 345, declaratory of her common law right to dower. Where she has the two rights, she must ele-ct; where she' does not have common law dower, then the law elects to give her, absolutely, the estate, between which and common law dower she would be compelled to elect if she had both. Where the two estates exist she must yield one to take -the other, hut where only one exists, she must have that alone. In other words, where dower, as defined at common law, is non-existent, she takes the other provision made by law as a “substitute.” This is the exact and felicitous term employed by Scott, J. (Hamilton v. O’Neil, 9 Mo. 13), and adequately expresses the idea that, failing dower, the widow is provided with a statutory “substitute” for that right. It is trite but true that no construction or interpretation of a statute should be adopted which tends to shear a widow of her rights to dower or of any beneficient provision granted in lieu of dower. [Keeney v. McVoy, 206 Mo. 42; Finneli Estate v. Howard, 191 Mo. App. l. c. 218; Chrisman v. Linderman, 202 Mo. l. c. 614.] In the present case all the husband left was a landed estate, the title to which, was vested in him in fee, subject to the physical possession of the tenant of an intervening life estate. Under this status the property belonging to him, under the rulings of this court, was not the subject-matter of dower. [Ellis v. Kyger, 90 Mo. 600; Crecelius v. Horst, 89 Mo. 356; Garrison v. Young, 135 Mo. 203.] We must assume that the Legislature had a prevision of such happenings and, in order that the wife in such cases should not be cut off entirely, enacted the statute vesting her with an absolute estate in one-half of what belonged to her husband at his death, irrespective of the conditions necessary to strict dower. And, having made this provision a substitute for dower, then to prevent a cumulation of both dower and its substitute, provided by another statute (Sec. 353) that the widow should elect whether she would take under the statute giving common law dower (Sec. 345) or under the statute which vested a statutory substitute (Sec. 351.) This is not only a natural and reasonable view of the purpose of the Legislature, but is the fair and logical import of the section giving the widow a right of election. The text of that section is, viz: “When the husband shall die without a child or other descendant capable of inheriting, the widow shall have her election to take her dower, as provided in • Section 345, discharged of debts, or the provisions of Section 351, as therein provided.” [R. S. 1909, sec. 353.] This language does not abridge the estate of a dowerless widow, for it has no application whatever unless the widow is a dowress and also entitled to one-half of what belonged to her husband at his death. The premise of the statute is that she shall be entitled both to dower (Sec. 345) and the different provision 'made by the Legislature in Section 351. Upon that premise alone the statute bases its conclusion requiring the widow to choose which she will take. It does not seem this could be plainer if the language of a statute is any index of its meaning. We therefore hold that Section 351 creates an estate other than dower which can only be defeated where the widow, being also entitled to dower under Section 345, fails to exercise her right of choice between the two estates (Sec. 353) and is, therefore, relegated to her rights to dower under Sections 345, 347 and 348.

In close analogy to this conclusion is the construction given to a later statute providing that when a wife shall die in similar circumstances, the husband “shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts. [R. S. 1909, sec. 350.] The two sections (350, 351) are intended to form, when taken together, “one law establishing the relative rights of the husband and wife in the property of each other under the same conditions.” [Waters v. Herboth, 178 Mo. l. c. 171.] This later statute has been construed to vest an estate,' according to its terms, in the husband, although he might not have had any curtesy in his wife’s land. [Perry v. Strawbridge, 209 Mo. 621; Ferguson v. Gentry, 206 Mo. 189.] Unless it was the intention of the Legislature to discriminate in the same circumstances in favor of husbands over wives, the same construction ought to be applied to a similar provision for the benefit of the wife, although she might never have had any right to common-law dower in her husband’s estate.

II. In the case of Von Arb v. Thomas, 163 Mo. 33, it was held that a widow’s right to the benefit of Section 351 depended on a pre-existing right to dower under Section 345. That ruling, as has been seen from an analysis of the language and legal intendment of Section 353, is logically untenable. The error arose from the view that a duty of election between the two estates, made the existence of one depend upon the existence of the other. That view is incompatible with the statute which granted the substitute independent of the original estate, only requiring where both existed that the beneficiary should elect. It could not, in these circumstances, be correctly held that the latter estate was created by any other method than the statutory grant. A contrary notion in the Yon Arb case necessarily infected the conclusion reached therein. It follows that that decision must be overruled.

The doctrine of rule of property should not weigh with us in the abolition of a precedent not sustainable in reason and in contravention of the terms of the statute relied upon to support it, and which has wrought injustice in every instance of its subsequent application. In such cases the argument ab inconvenienti is stripped of all force, if the law is a growing science, adapting itself to the demands of social justice and the dictates of right reason. In addition to these general motives for the correction of judicial error, the present case does not present the question of the propriety of adhering to a former decision for the preservation of intervening property rights acquired thereunder, for the reason that the decision which is overruled in this case, was one which construed a “statute of descents.” No property rights acquired under that construction of the statute could be invalidated by a change of construction in a subsequent decision. In that respect the overruling of a previous decision construing a statute or constitution differs from the effect of the overruling’ of a decision on other topics. In the latter case the effect of the subsequent decision is retrospective and is the same as if there never had been any prior ruling. In the former case (made by the record before us) the effect of our decision is prospective only. The principle governing the case at bar, which is an exception to the general rule, is thus correctly stated: “The true rule in such cases is held to be to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative repeal or amendment; that is to say, make it prospective but not retroactive. ” This is the language of 7 R. C. L., p. 1010, par. 36, and supported by a citation of Federal and "State cases. It follows that the concrete case does not fall within that class of cases where it becomes necessary, before overruling a former decision under which property rights have vested, to choose between the relative evils likely to ensue.

The judgment of the circuit court is reversed and the cause remanded to be proceeded with in a manner not inconsistent with this opinion. It is so ordered.

All concur, except Far is, J., who dissents: Blair, J., concurs in separate opinion.

BLAIR,. J.

(concurring). — In this case the widow filed her election. Whether in the absence of such an election, she would have taken, automatically, under Section 351, is a question not arising on this record. I think a decision of that question should be deferred until it is presented. In the rest of the opinion I concur.