author: ROY, C. — PER CURIAM. —

text:
    EDWARD GREEN v. J. D. WHALEY, Administrator of the Estate of DAVID J. GREEN, Deceased.
    Division Two,
    May 26, 1914.
    lii/IONEY HAD AND RECEIVED: Notes. Where out of money deposited in the names of two brothers, but claimed by one, loans were made on notes payable to the other in order that, if he should survive, he would have support, and in case his brother should survive the notes would be his, the claiming brother surviving would have no action against the payee’s estate for money had and received, while the notes are in existence.
    Appeal from Lawrence Circuit Court. — How. F. C. Johnston, Judge.
    Reversed and remanded.

      J. M. McPherson for appellant; S. PL. Lattimore, C. PL. Huberich, George G. Butte, Bobert J. Boone and W. Cloud of counsel.

      Thomas Carlin, W. B. Skinner and I. V. McPherson for respondent.
   ROY, C. —

Action for money had and received. Verdict and judgment for plaintiff, and defendant has appealed.

Edward Creen, the plaintiff, and David Joseph Creen were brothers, born in Cermany. About 1893 the shoe business of “Creen Bros.” was carried on in Chicago. About 1900 Creen Bros, sold out of the shoe business, and went into the commission business in that city, it being principally poultry and eggs. In the spring of 1905 the business in Chicago was sold and resumed in Pierce City, Mo., under the same name. Soon after the removal to Pierce City, about $18,000 was deposited in different sums in the Pierce City National Bank to the credit of “Creen Bros.” A similar account had been kept in a Chicago bank. Soon after the brothers came to Pierce City, two loans were made out of the funds of Creen Bros, in the bank; one for $2300 and one for $500, the notes being payable to Edward Creen and David J. Creen, or the survivor. Afterward loans were made out of that fund on notes payable to David J. Creen, as follows:

August 19, 1905 .........................$1400
August 25, 1905 ......................... 2750
Sept. 1, 1905 ............................ 700
Sept. 5, 1905 ............................ 700
Sept. 7, 1905 ............................ 800

On September 28,1905, a check was drawn on that account payable to David J. Creen for $2000, which was used by him in making a loan of about $1000', the other thousand being used in the purchase of land which was conveyed to him. Those notes were all secured on real estate by deeds of trust in which Edward was made trustee.

The evidence for the plaintiff was to the effect that the plaintiff was the sole owner of the business of “Green Bros.”, both while in Chicago and in Pierce City; that David J. Green was weak minded, without financial means and dependent on the plaintiff, receiving a small salary from the plaintiff for what he did in connection with the business of “Green Bros.”1

Mr. Carlin, one of plaintiff’s counsel, testified that he attended to making the loans. There were others made out of the same fund on notes payable to-Edward Green. That the notes representing the two first loans which were made payable to both the brothers were kept by Edward in his possession. That David J. became dissatisfied and fearful that he, in .case of Edward’s death, would not be able to control the notes, and insisted that the notes should be made payable to him.

That Edward stated to Mr. Carlin in David’s presence-that the money was Edward’s and that the purpose in making the notes payable to David was to have it so that in case Edward should die first, the money would go to David. Mr. Carlin testified that Edward said that the $2000 check of September 28 was given to David to make loans, and that he (Edward) was not satisfied with the use David had made of it. ■

The petition was in fourteen counts, the first six counts being for the recovery of the amounts hereinbefore set out as for money lent to David. The counts from eight to thirteen inclusive were for money had and received based on the same items. The verdict was for the plaintiff - on those last-mentioned counts.

The notes payable to David J. Green were by him kept in his private box at the bank, and were there when he died, and were inventoried as a part of his estate. There is no allegation in the petition nor is there any evidence that any collections were ever made by the estate on the notes.

'The bill of exceptions does not call for the instructions-. The- motion for a new trial alleges that upon the whole record and proceedings in the case the verdiet and judgment should have been for the defendant; .also that the verdict is against the evidence and ■against the weight of the evidence.

Plaintiff claims that he loaned money on notes made payable to David J. Green, in order that, in case David was the survivor of the two, he (David) would have means of support, and that, in case plaintiff was the survivor, the notes should be his. If such were the facts, the plaintiff would have no cause of action against David’s estate for money had and received. The notes on which the money was loaned were still in -existence when David died. If the facts are as plaintiff contends, he would perhaps be entitled to the notes, but he is not entitled to a judgment for money had and received. Whether plaintiff would be entitled to a judgment for the amount of money out of the $2000 check invested by David in land we will not decide, as the judgment must be reversed for the reasons stated. It was held in Henderson v. Koenig, 192 Mo. 690, that assumpsit will lie whenever the defendant has received money which in equity and good conscience he ought to pay over to the plaintiff. Leaving ■out of consideration the check for $2000, D'avid did not receive any money from Edward. The money went into the notes. Out of the check for $2000 David made a loan for about $1000 in accordance with the ■alleged understanding between them. Having done so, his estate is not in equity under any obligation to refund the money. The verdict, except as- to the money Invested in the land, is without any evidence to support It. Wherefore, the judgment is reversed and the cause remanded.

Williams, G., concurs.

PER CURIAM. —

The foregoing opinion of Rot, €., is adopted as the opinion of the court.

Walicer, IP. J., and Broion, J., concur; Faris, J., in the result.


source: Caselaw Access Project

license: Public Domain

text:
    HARRY SHELTON, Administrator of the Estate of JOHN SHELTON, Deceased, Appellant, v. KIRKSVILLE LIGHT, POWER & ICE COMPANY.
    Division Two,
    May 26, 1914.

    1. NEGLIGENCE: Electric Wires: Duty of Company. The degree' of care required of electric lighting companies and the extent of risk assumed by the linemen are to be measured and determined in each case by the terms of the employment, the rules of the company as to the duties of linemen, or the custom of the company as to inspection of poles, wires, etc., or other special circumstances affecting the duties and obligations of one or both parties.
    2. -: -: Defective Insulation. Where an experienced lineman for a light company is furnished tape for replacing insulation and it is part of his duty required by the company to make such repairs in his daily labors, he assumes ,the risk of injury resulting from defective or decayed insulation on wires already strung, with which he comes in contact while stringing new wires on the same poles.
    Appeal from Knox Circuit Court. — Son. Charles ZL Stewart, Judge.
    Aeeikmed.

      L. F. Cottey, J. A. Cooley and Weatherby & Frank for appellant.
    Instruction 3 for defendant is erroneous in assuming as matter of law that it was the duty of deceased to discover and repair or report all defects in the defendant’s wires. It not only assumes as true what should have been left to the jury to find from the evidence, but it wholly ignores the master’s duty in the premises to use the highest degree of care, and casts the master’s duty on deceased, and further ignores the conflicting evidence as to just what were the duties of deceased. At the time he was killed deceased was not engaged in inspecting or repairing wires or reporting defects, nor had he been sent to make a dangerous place safe. He was sent up the pole by the superintendent to string a new wire under the immediate direction of the superintendent. Klein v. Transit Co., 117 Mo. App. 691; Browning v. Railroad,. 118 Mo. App. 449; Bond v. Railroad, 122 Mo. App. 207; Geismann v. Electric Co., 173 Mo. 654; Yon Trebra v. Gaslight Co., 209 Mo. 648.

      Campbell é Ellison, F. FL. McCullough and Higbee <£ Mills for respondent.
    (1) ' Deceased was the defendant’s lineman; he was inspector and repair-man. All the hazards of his employment were known to the deceased. The condition of the wires was open and visible to him, and the risks incident to the service were known to, and assumed by him. It was his duty to discover and repair defects. Defendant was not bound to send another man up to inspect the wires at the top of the poles before sending the deceased up to string the wires. Epperson v. Cable Co., 155 Mo. 346; Liven-good v. Lead Co., 179 Mo. 229; Bradley v. Tea & Coffee Co., 213 Mo. 325; Corby v. Telephone Co., 231 Mo. 437; Miller v. Tel. Co., 141 Mo. App. 469; Clothing Co. v. Pitts, 23 L. R. A. (N. S.) 1013. (2) When the deceased was at the top of the pole he was supreme. He was his own boss, and not under the charge of, nor subject to the control of his employers. The superintendent, for all practical purposes “might as well have been in China as at the foot of the pole. ’ ’ Shelton could see the condition of the wires better than anyone else. Rutledge v. Swinney, 170 Mo. App. 251; Booth v. Railroad, 217 Mo. 728. (3) Plaintiff’s evidence shows that the death of deceased was caused by his own negligence — his negligent manner of doing the work. The burden was upon the plaintiff to show that his death was caused by the defendant’s negligence. A verdict for plaintiff would be based, not on the evidence, but on mere speculation and conjecture. Byerly v. Light, Power & Ice Co., 130 Mo. App; 603; Goransson v. Mfg. Co., 186 Mo. 307; Warren v. Railroad, Í78 Mo. 134
   ROY, C. —

This is a suit for $10,000 damages by reason of the death of John Shelton. There was a verdict and judgment for defendant and plaintiff appealed.

The deceased was an experienced lineman in the employ of defendant and was, at the time of his death, engaged in stringing a new wire on a pole of defendant on which were five cross-arms and many wires carrying a deadly current of 2300 volts. Pie came in contact with those wires and was instantly killed. The petition alleged negligence in permitting the insulation on those wires to become and remain defective, decayed and insufficient. The answer pleaded contributory negligence, and alleged that the deceased was an experienced lineman and knew and assumed the risks incident to the employment. It also alleged that it was the duty of the deceased to inspect and keep in repair the wires at the point where he came in contact with them. The reply was a general denial.

Mr. J. W. Moore, defendant’s superintendent, called by plaintiff, was put on the stand and testified as to the circumstances of the death. On cross-examination he testified: “There was nothing I knew of concealed or hidden from Mr. Shelton. Everything was visible.' He could have told to a certainty whether or not there was insulation on the wires. He knew as to the primary and secondary wires. Knew their voltage. Pie was provided with tools; we are supposed to furnish the men with tools in doing their work. They are furnished tape; black tape used for wrapping wires. It’s insulating tape. It is used on joints that are bare and such places as that. If Mr. Shelton would have discovered a bare joint on one of the wires when he went up the pole, or on more than one of the wires, it would have been good practice to have repaired it, fixed it. I know of him using tape on joints before somewhere on the line. I directed him to look after these places along the line. That was one of the things that was his business to look after. As superintendent I got, information as to the condition of the wires, reported to me by people, employees, and what I saw and what people would telephone to me. The linemen would look after defects and report them to mé; that was a part of their business.”

The testimony for plaintiff also showed that the insulation was off the wires in places at or near the pole and cross-arms.

At the close of plaintiff’s evidence, and again at the close of all the evidence, the defendant asked an instruction in the nature of a demurrer to the evidence, which was refused. The cause was submitted on instructions for both sides, and there was a verdict for the defendant. '•

I. The demurrer to the plaintiff’s evidence should have been sustained.

Joyce on Electric Law, vol. 2, sec. 667, says: ‘ ‘ The degree of care required of the- company and the extent of risk assumed by the lineman are to be measured and determined in each case by the terms of the employment, the rules of the company as to the duties of linemen, or the custom of the company as to inspection of poles, or other special circumstances affecting the duties and obligations of one or both parties.”

That rule is indorsed by the following authorities: McGuire v. Bell Telephone Co., 167 N. Y. 208; McGorty v. S. N. E. Telephone Co., 69 Conn. 635; Cum. Telephone Co. v. Loomis, 87 Tenn. 504; Britton v. Central U. T. Co., 65 C. C. A. 598; Barto v. Iowa Tel. Co., 126 Iowa, 241; Krimmel v. Edison II. Co., 130 Mich. 613; New Omaha T. E. L. Co. v. Rombold, 73 Neb. 259; Consol. Gas. Co. v. Chambers, 112 Md. 324. So far as we can find no case holds the contrary. There is no case in this State sqnarely in point except Rutledge v. Swinney, 170 Mo. App. 251, which supports the rule above.stated.

In Roberts v. Telephone Co., 166 Mo. 370, the lineman was engaged in the work of inspecting and repairing at the time of the injury and it was held to be his duty to inspect for the. defect which caused the injury. In this case the deceased was not engaged in the work of inspection and repair; but under the above rule and the conceded facts in this case, he was bound to inspect for his own safety. He was required by the direction and rules and custom of the company to make such inspection. In Corby v. Telephone Co., 231 Mo. 417, the foreman was at the foot of the pole as the superintendent was in this case. But the injury in that case was by reason of a defective pole which it was the duty of the foreman to inspect. In this ease the defect was not in the pole, but in th.e insulation of the wires. Their inspection fell upon the lineman. He was in a better position to inspect than was the superintendent. His own witness testified that the company required him to make such inspection, that it was a part of his business,1 and that he was furnished with tape to repair the insulation.

Appellant says' that the duty to furnish a safe place in which the servant may work is an absolute, non-delegable one, and that the duty of inspection cannot be thrown on the servant. That rule may be conceded; but, like most general rules, it has its exceptions. Those exceptions are based on the special circumstances which do away with the reason of the general rule. In Knorpp v. Wagner, 195 Mo. l. c. 663, It was held that a drill man in a mine could be required to inspect his own drill holes for his own preservation, citing Livengood v. Lead & Zinc Co., 179 Mo. 229; Fisher v. Lead Co., 156 Mo. 479.

In Modlagl v. Iron & Foundry Co., 248 Mo. 587, it was held that a blacksmith was bound to repair his own tools. Woodson, J., said: “In the case at bar, the repair of the tools of the shop was simple and could be readily and easily made by any blacksmith. In fact, I never knew or never before heard of one blacksmith repairing these simple tools for another. What would be the sense in taking a broken or damaged tool from one blacksmith shop to another to have it repaired, or hand it to another smith in the same shop for that purpose, when both are engaged in precisely the same work, both for the master personally and for the master’s patrons. To hold in the case at bar, that the battered chisel, mentioned in the evidence, should have been taken to another shop or handed to another, Schuler, plaintiff’s fellow-servant in the same shop, for repairs, would not amount to respectable nonsense, yet if we follow the contention of counsel for plaintiff to its logical conclusion, that would be the inevitable result, or we would be forced to hold the defendant is liable in this case for having failed to do that nonsensical thing.”

That is language similar to that used in Consol. Gas Co. v. Chambers, 112 Md. l. c. 334, supra, where it was said: “Many other cases might be cited, but those above are sufficient to show the trend of the decisions, and others can be found referred to in the note and cases we have mentioned. While the facts necessarily differ in them, the general rule to be deduced from them may be thus stated; when the employer has no independent system of inspection of poles, cross-arms, steps, etc., and the lineman has no reason to believe that such inspection is made, he had no right to rely on the employer for such inspection, but must make such tests himself as may be necessary to ascertain whether it is safe to go upon them, and cannot hold the employer responsible for injuries received by him by such poles, cross-arms, or steps giving away, unless there was some defect in them when they were originally placed in position, or the employer had some knowledge of the defect, which was not communicated to the lineman — provided, of course, the lineman is not such an inexperienced person as is entitled to be instructed as to the danger. Of course, there may be some exceptions to such a general rule, but we find nothing in this record that would take the case out of it. There is more reason to apply such a rule to cross-arms than to poles, for there are usually so many more of them, and, as said in Flood’s Case, 131 N. Y. 603, inspectors ‘were not expected to climb up every pole and examine the arms thereon. Such an inspection would be manifestly impracticable and unnecessary.’ Indeed it is far safer for the linemen themselves to make the inspection and such tests as may be necessary for their safety, as they would do so at the very time they went upon them, while in many instances 'that would be impossible if separate inspectors were relied on.”

In Britton v. Central E. Telephone Co., 65 C. C. A. 598, Judge (now Justice) Lurton said, “The ease might be altogether different if skill of a kind not presumably required from a lineman in the usual course of his calling was necessary to apply the tests reasonably sufficient in such cases.”

In Krimmel v. Edison II. Co., 130 Mich. 613, it was said: “The rule as to the duty of the employer is well settled, but the trouble comes in the application of the rule in a given case. In none of the cases cited by counsel was it shown, as in this case, that it was the custom of the company to have the inspection made by the person injured, before he entered upon bis work, and that it was a part of bis duties to make the inspection.”

We therefore hold that the rule is as stated by Joyce, that the duty to inspect for his own safety may be imposed upon the lineman by the terms of bis employment or by the custom or rules of tbe company.

As defendant’s demurrer to the evidence should have been sustained, it is needless to discuss questions as to alleged error in the other instructions. The verdict was for the right party and should be upheld. [Bradley v. Tea & Coffee Co., 213 Mo. 320.]

The judgment is affirmed.

Williams, C., concurs.

PER CURIAM. —

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

All the judges concur.


author: FARIS, J. —

text:
    THE STATE ex rel. VITAL W. GARESCHE v. CORNELIUS ROACH, Secretary of State.
    In Banc,
    June 2, 1914.
    1. JUDICIAL NOTICE: Boundary of Judicial Circuit. The court will take judicial notice that the Eighth Judicial Circuit is composed wholly of the city of St. Louis, because that fact is embodied in a general law.
    2. -: --: Admitted by Demurrer. A charge that the Eighth Judicial Circuit is composed of the city of St. Louis is admitted by demurrer.
    3. STATUTORY CONSTRUCTION: General and Special Provisions. The general provisions of a statute must yield to special provisions, where the general expressions are inconsistent with the specific ones.
    4. -: -: Primary Election: Candidates for Circuit Judge: Place of Filing of Declaration. A statute requiring declaration papers of candidates for “circuit judges” to he filed • with the Secretar}' of State and “for officers to he voted for wholly within one county or in the city of St.. Louis, in the office of the county clerk or the office of the election commissioners of the city of St. Louis,” means that a candidate for circuit judge in the city of St. Louis, which city composes the Eighth Judicial Circuit, shall file his declaration with the Secretary of State. No other conclusion can be reached unless the words “circuit judges” are eliminated from the act; and those words being special and being inconsistent with those in the next clause, they must control.
    5. STATUTE: Title: Population: Present and Future. The title to an act, relating to “counties and cities having three hundred and fifty thousand inhabitants or more,” is not so narrow that it will not authorize an inclusion in the body of the act of “all counties and cities in this State which now .have and such as may hereafter have a population of three hundred and fifty thousand inhabitants or more.”
    6. -: -: No Designation of Repealing Sections. The statute will not be held to be unconstitutional because its title, which blazes forth that its purpose is the establishment of a nonpartisan judiciary in the circuit courts, does not recite that the act contains sections repealing other conflicting and inconsistent laws.
    7. -: -: Matters Ancillary to General Purpose. When the general purpose of an act is clearly set forth in its title, then all ancillary matters, germane and not inconsistent with that purpose, and necessary in order to give life and effect thereto, and without which necessary details its purpose would fail or be greatly impaired, are to be read by necessary implication into the title.
    8. SPECIAL LAW: Usual Classification by Population, etc. It is for the courts to determine whether or not 'an act is local. A classification of cities according to population is not alone determinative. The questions of whether it is local and whether it is necessary still remain,, for in spite of such classification, the Constitution does not permit a local or special law “where a general law may be made applicable,” and says that is a “judicial question” to be “judicially determined.”
    9. --: Nonpartisan Judicial Act: Local and Special. The Nonpartisan Judicial Act of 1913 (Laws 1913, p. 334) providing that in cities having 350,000 inhabitants or more, candidates for circuit judges shall be nominated by a convention of delegates chosen on the day of the general state-wide primary by the voters of each party, and that the names of candidates so nominated shall be printed on all tickets of all parties to be voted at the general election, is a special and local law, applying to only one city in the State, and that a general law on the subject could “be made applicable” is shown by the fact that the state-wide primary law, in pursuance to which circuit judges have been nominated, has been in force for years.
    10. -: -: -: Applicable to One Office. An act applicable to the nomination of candidates for one office in one city only, is a special law, and, there being in force in said city other laws providing other methods of nominating candidates for all other offices, is violative of the constitutional inhibition against the enactment of a special or local law “where a general law can be made applicable.”
    Mandamus.
    Writ allowed.

      Spencer & Domiell and George B. Webster for relator.
    . (1) The so-called Non-partisan Judiciary Act of 1913 is unconstitutional because it violates article 4, section 28, of the Constitution, in that it purports to repeal existing laws without any indication of such repeal in its title. (2) The so-called Non-partisan Judiciary Act of 1913 is unconstitutional because it violates article 4, section 23, paragraph 32, of the Constitution in that it is a local or special law enacted “where a general | law can he made applicable.” Bridges v. Mining Co., 252 Mo. 53; Hays v. Mining Co., 227 Mo. 288; Hender- ; son v. Koenig, 168 Mo. 375; State v. Hill, 147 Mo. 63; State ex rel. v. Messerly, 198 Mo. 356; State ex rel. v. Turner, 210 Mo. 83; State v. Anslinger, 171 Mo. 611. 1(3) The so-called Non-partisan Judiciary Act of 1913, is unconstitutional because it violates article 4, section 53, paragraph 2, of the Constitution, in that it is a local or special law tending to regulate the affairs of» St. Louis City alone. Hays v. Mining Co., 227 Mo. , 302; Henderson v. Koenig, 168 Mo. 376; State ex rel. v. Turner, 210 Mo. 83; Bridges v. Mining Co., 252 Mo. 57; State v. Anslinger, 171 Mo. 611. (a) It does not relate to cities of the first class. R. S. 1909’, sec. 8524. (b) It does not refer to cities having special charter. Constitution,' art. 9, sec. 16. (4) The so-called Nonpartisan Judiciary Act of 1913 is unconstitutional because it violates section nine of the Bill of Rights, requiring that all elections shall be free and open. Wally v. Kennedy, 2 Yerg. 554. (5) The so-called Non-Partisan Judiciary Act of 1913 is unconstitutional because it is an attempt to partially repeal a general law by the enactment of a special and local law. Constitution, art. 4, sec. 53, par. 32; R. S. 1909, chap. 43, art. 4; Laws 1913, p. 334; Henderson v. Koenig, 168 Mo. 371; State ex rel. v. Messerly, 198 Mo. 355'; State v. Anslinger, 171 Mo. 600i

      John T. Barlcer, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent; Marion G. Early of counsel.
    (1) Definition and nature of remedy. 26 Cyc. 139'; High on Extr. Leg. Rem., p. 4, sec. 1. (2) The relator must specify the exact relief desired. State ex rel. v. Hollady, 65 Mo. 77; State ex rel. v. Railway, 77 Mo. 147; School Dist. v. Lauderbaugh, 801 *34M,o. 194. (3) A litigant seeking relief by mandamus must allege and show a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced- High on Extr. Leg. Rem., p. 12, sec. 9; 26 Cyc. 151; State ex rel. v. Lessueur, 136 Mo. 459; State ex rel. v. Williams, 99 Mo. 221; State ex rel. v. Boonville B. Co., 206 Mo. 74; State ex rel. v. McIntosh, 205 Mo. 610; State ex rel. v. Hudson, 226 Mo. 265; People v. Hatch, 33 111. 140; People v. Lieb, 85 111. 490; People v. Klokke, 92 111. 137; Swigert v. County of Hamilton, 130 111. 549 ; Mayor v. Aspen, T. & L. Co., 10’ Colo. 198; State v. Buhler, 90’ Mo. 570. (4) An act in general terms repealing all conflicting provisions of previous acts will have the effect to repeal any such conflicting acts. 2 Lewis’s Sutherland Stat. Const., p. 492; State v. Yardley, 34 L. R. A. (Tenn.) 671; State ex rel. v. Assurance Co., 251 Mo. 292. (5) Courts take judicial notice of the existence and tenor of the public laws of the State. Olive v. Alabama, 4 L. R. A. 40'; 7‘Ency. Evidence, p. 947. (6) The courts will take judicial notice of the population of the city of St. Louis. State v. Anslinger, 171 Mo. 600; State ex inf. v. Evans, 166 Mo. 347; State ex rel. v. Miller, 100 Mo. 439; Welch v. Mann, 193 Mo. 304; Major v. Ryan, 232 Mo. 77.
   FARIS, J. —

This is a proceeding by mandamus to compel the respondent, as Secretary of State, to receive and file the declaration of candidacy of relator upon the Republican ticket at the ensuing primary election, for the office of circuit judge of the Eighth Judicial (Circuit, which circuit is composed of the city of St. Louis.

This is a companion case to that of State ex rel. Garesche v. Drabelle et ah, as members of the Board of Election Commissioners, etc., likewise submitted at this term. The two cases, for reasons which'are obvious, will be considered together, and a mere memorandum made in the latter case when we shall have ruled this one.

The amended petition in the Drabelle case, apposite here for reasons hereafter to be set forth, omitting style and formal parts, is as follows:

“Vital W. Garesche, petitioner herein, represents to the court that he has attained the age of thirty years and more, is and has been a citizen of the United States for five years, has been for more than three years last past and is now a qualified voter of the State of Missouri, and is now and has been for years a resident of the Eighth Judicial Circuit of the State of Missouri, which consists of the city of St. Louis, and is in all other respects qualified to serve as. a circuit judge in said circuit.
“That heretofore, to-wit, on the 2nd day of February,. 1914, he filed with the Board of Election Commissioners of the city of St. Louis in compliance with section 5862, Revised Statutes 19091, a declaration paper in words and figures as follows:
“declaration papers.
“St. Louis, Mo., February 2nd, 1914.
“I, the undersigned, VITAL W. GARESCHE, lawyer, 6121 Westminster Place, a.resident and qualified elector of the 16th precinct of the 28th ward, of the city of St. Louis, Mo., do announce myself as a candidate for the office of circuit judge for the city of St. Louis, in the Eighth Judicial Circuit of Missouri, on the Republican ticket, to be voted for at the Primary Election to be held on the 4th day of August, 1914, in the city of St. Louis, and I further declare that if nominated and elected to shell office I will qualify.
“Vital W. Garesche,
“709 Wainwright Bldg.,
“St. Louis, Mo.
“RECEIPT FOR FILINS FEE.
“St. Louis, Mo., February 2nd, 1914.-
“Received from VITAL W. GARESCHE, of precinct 16th, Ward 28th, of the city of St. Louis, State of Missouri, the sum of twenty-five dollars, being filing fee in accordance with the Act of the Missouri General Assembly, approved June 1, 1909, relative to Primary Elections, and particularly in accordance with the provisions of such act. The filing fee being a deposit as evidence of good faith on the part of Vital W. Garesche in connection with his declaration as a candidate for the nomination as circuit judge, for the city of St. Louis, in the Eighth Judicial Circuit of Missouri on the ticket of the Republican party, the said Primary Election to be held on the 4th day of August, 1914. Thos. K. Niedringhatjs,
“Treasurer Republican State Committee.
“Notice — Name, occupation and address of applicant must be inserted in typewriting or print, and application must be signed by applicant.
“That before the filing thereof he paid to the treasurer of the Republican State Committee the sum of twenty-five dollars as provided by law and as shown in said declaration papers as hereinabove set out.
“That the said Board of Election Commissioners of the city of St. Louis consists of John W. Drabelle, .Chairman; Joseph A. Wright, secretary; Sidney S. May and Oscar E. Buder.
“That said Board of Election Commissioners refused to receive said declaration of your petitioner or to file the same.
“That your petitioner being in doubt as to the meaning of section 5862, Revised Statutes 1909, as to the place where said declaration should he filed also tendered and offered to file the same with the Secretary of State of the State of Missouri, and that the said Secretary of State-refused to receive or file the same.
“That petitioner is still in doubt under the wording of said section 5862 as to whether the said declaration ought to be filed with the Board of Election Commissioners or with the Secretary of State, and for that reason tendered and offered to file the same both with the Board of Election Commissioners and with the Secretary of State, and in this proceeding and in a similar proceeding brought by petitioner against the Secretary of State before this Honorable Court petitioner is seeking to determine inter alia the proper place provided by law for the filing of said declaration.
“That petitioner intends in good faith to submit himself before the people of the city of St. Louis at the primary election to be held August 4, 1914, as a candidate for the Republican nomination of circuit judge for the Eighth Judicial Circuit, which consists of the city of St. Louis.
“That-the refusal of the Board of Election Commissioners to receive and file petitioner’s declaration prevents him from thus submitting himself as a candidate at said primary election and leaves him without any other means of presenting himself at said primary as by law he has a right to do.
“That there was passed in 1913 (Laws 1913, p. 334) hy the Legislature of Missouri, a so-called nonpartisan judiciary law; which said law the respondents herein pretend and say repeals section 5862, Revised Statutes 1900', and relieves them of the duty of filing relator’s declaration of intention.
“Relator further states that said so-called nonpartisan judiciary law of 1913 is unconstitutional, invalid and void, because the same is in conflict with and violates:
“ (a) Article 4, section 28, of the Constitution of Missouri;
“(h) Article 4, section 53, paragraph 32, of the Constitution;
“(c) Article 4, section 53, paragraph 2, of the Constitution of Missouri;
“(d) Section 9' of the Bill of Rights of the Constitution of Missouri; .
“(e) Article 4, section 53, paragraph 33, of the Constitution of Missouri.
“And that the said non-partisan judiciary act of 1913 is invalid and of no effect for the further reason that said act is repealed by the general law subsequently passed at the same session of the Legislature relating to the same subject of elections. Said general law is set out in the Session Laws of 1913 at page 327.
“Wherefore the petitioner prays the court to issue its alternative writ of mandamus directed to John W. Drabelle, Joseph A. Wright, Sidney-S. May and Oscar E. Buder as the Board of Election Commissioners of the city of St. Louis, commanding them to show cause on a day certain, to he fixed hy the court, why they should not receive and file forthwith the aforesaid deolaration of the petitioner and why the said alternative writ on hearing should not be made absolute and for such further process, orders and judgments as to the court may seem meet and proper.”

A proper stipulation filed in this case in substance provided: (a) that the petition in the Drabelle case should, mutatis mutandis, be considered as the petition in the instant case, and (b) that the petition for the alternative writ should be considered as though it were such writ. To the above petition, -standing for and in the legal shoes of the alternative writ, as by the above-mentioned stipulation provided, respondent demurred, for that the same “does not state facts sufficient to constitute a cause of action.” If the petition above set out (reading therein “Cornelius Roach, as Secretary of State,” in lieu of “Drabelle et al., as members of the Board of Election Commissioners, etc.” when and wherever necessary) states a cause of action, then the peremptory writ of mandamus should be issued in the instant case, and, as an inevitable corollary, refused in the Drabelle case.

I. It is frankly conceded, as well in the briefs as in the argument by learned counsel, on both sides, that the main question at issue is the constitutionality vel non of the act called by counsel the ‘Non-partisan Judiciary Act, ’ ’ and which we may likewise so style here for convenience. Counsel have been good enough to frankly eliminate all other contentions herein, except the inevitable one foreshadowed in the petition and arising from the ambiguity • contained in section 5862, Eevised Statutes 1909. When we have reached a decision upon the question of the validity under the organic law of the Non-partisan Judiciary Act, we must, in order to rule whether respondent in the instant case, or Drabelle and his associates, should be required to act, then construe and decide the obvious ambiguity in section 5862, supra. The latter question we meet in limine, since merely holding it not to be the duty of respondent Eoaeh in any event, to receive the declaration of relator, would be to dispose of the case on a sort of adventitious issue utterly indecisive of the vexing question of the constitutionality of the Non-partisan Judiciary Act.

The history of the general primary election law, in addition to its being such a law as we judicially notice, is a part of the political history of the State and we need not here refer at great length to it. Practically all elective officers in State and county and the city of St. Louis are to be subject to its provisions and to be chosen pursuant to its comprehensive scheme, as witness the first section thereof:

“ Hereafter all candidates for elective offices shall be nominated by a primary election held in accordance with this article. This article shall not apply to special elections to fill vacancies, nor to county superintendents of schools, to city officers not elected at a general state election, to town, village or school district officers.” [R. S. 1909, sec. 5855.]

It is manifest that so far as any good or evil may befall from our holding this ambiguity either way none such can happen. For it makes no difference utterly in the practical working out - of the contemplated primary election scheme whether we hold that declarations of candidacy of those desirous of running for judges of the Eighth Judicial Circuit, shall be filed with the Secretary of State or with the Board of Election Commissioners of the city of St. Louis. At least there is but the difference, perhaps, of a postage stamp between the one place of filing and the other. The cry-' ing need is to settle it once for all and fix thereby a rule of action, obviating- that thick doubt, which we were told by counsel in argument, has heretofore impelled every candidate for judge of the circuit court of the city of St. Louis to file declarations both with the Secretary of State and in the office of the Election Commissioners, hoping thereby to find the right and' proper place. Nevertheless, it ought t'o be settled by a logical and fair construction of the terms of the troubling statute and not by brutally forcing a. balance.

The statute, the ambiguous and contradictory terms of which have created the doubt mentioned, is-as follows:

“No person shall file more than one written declaration indicating the party designation under which his name is to be printed on the official ballot, and all declaration papers shall be filed as follows: 1. For State officers, representatives in congress, courts of appeals and circuit judges, and those members of the senate and assembly whose districts comprise more than one county, in the office of the Secretary of State. 2. For officers to be voted for wholly within one county or in the city of St. Louis, in the office of the county clerk of such county or the office of the election commissioners of the city of St. Louis.” [Sec. 5862, R. S. 1909.]

- Even a casual reading of the above section discloses a serious conflict in its provisions, not‘however in the language used in the section, but in that language when applied to a well-known fact which we judicially notice because embodied in a general law, that is, that the Eighth Judicial Circuit is composed wholly of the city of St. Louis. We must ourselves notice this fact (State v. Pope, 110 Mo. App. 520; Alabama Ins. Co. v. Cobb, 57 Ala. 547; Railroad v. Hyatt, 48 Neb. 161; 1 Chamberlayne, Mod. Ev., sec. 669), and the rules of statutory construction require us to presume, naught else appearing, that the Legislature also held it in mind when the statute was passed. Moreover, the petition herein standing per stipulation as and for the alternative writ, so charges and on demurrer the truth of all matters well pleaded in the petition is admitted.

The above section requires by specifically naming these offices that all candidates for “state officers, representatives in congress, courts of appeals and circuit judges” shall file their declarations of candidacy “in the office of the Secretary of State.” (All italics are ours.) It further provides generally that all declarations for nomination “for officers to be voted for wholly within one county, or in the city of St. Louis,” shall be filed in the office of the county clerk of such county, or in the office of the election commissioners of the city of St. Louis. Applying the rule of construction which requires the general provisions of a statute to yield to special provisions, where there is a conflict and where the general expressions in one part of a statute are inconsistent with the more specific provisions in another part of the statute (Rodgers v. United States, 185 U. S. 83; State ex rel. v. Hotel Co., 9 Mo. App. l. c. 453), we see that candidates for eircioit judges are required by a specific provision naming this office to file their declarations with the Secretary of State. We may gather from the whole law a fairly consistent legislative intent to divide the officers into classes, pursuant to which classification (which was as consistent as the facts will permit) those officers who ordinarily are elected from more than one county are required to file declarations with the Secretary of State, while those who ordinarily are elected from a single county are required to file declarations with the county clerk. The only provision which is in any way inconsistent with this view of the legislative intent, is that relating to a state senator whose district is composed of but one county. This legislative intent, save and except that such inconsistency as to place of filing declarations of candidacy of certain candidates for State senator still inheres, is accentuated by a reference to section 5860( of the same act. Here candidates for nomination for the office of circuit judge are specifically and again by naming the office, required to pay the fee required to the treasurer of the State central committee, while again county officers are put into another class and are required to pay such fee to the treasurer of the county central committee.

It was early announced as a rule of statutory construction in this State that effect shall if possible be given to the whole and every part of a statute. [Riddick v. Walsh, 15 Mo. 519; Macke v. Byrd, 131 Mo. 682; Scott v. Royston, 223 Mo. 568; State ex rel. v. Ryan, 232 Mo. 77; State ex rel. v. Harter, 188 Mo. 516; Strottman v. Railroad, 211 Mo. 227.] This rule is well-nigh universal in all jurisdictions and is without exception, save that the interpretation reached by the application of the rule should be reasonable and not‘out of accord with the legislative intent. [36 Cyc. 1128, and eases cited.]

Unless we say that candidates for nomination for circuit judge in the Eighth Judicial Circuit must file their declarations of candidacy with the Secretary of State and not with the Board of. Election Commissioners of the city of St. Louis, we are compelled to excise as meaningless from section 5862 the words “circuit judges.” For we cannot reach this conclusion till we cut out and cast away these words from clause one of the above section. It is persuasive but concededly not in any manner decisive, that still another general classification was in the legislative mind. That is, that county officers (and city officers elected at general elections) were put in one class and all other officers (again, except a State senator from a single county) were placed in another class.

These considerations induce us, while conceding the existence of some argument for the other view, to believe that the rules of statutory construction and the great weight of reason lies with the view that declarations of candidacy for nomination for circuit judge of the Eighth Judicial Circuit should be filed with the Secretary of State, and so we hold.

II. This view brings us to a consideration of the constitutionality of the Non-partisan Judiciary Act, which'is the chief question in the case and one to which the point discussed in paragraph one is. only ancillary. If this act is invalid under the Constitution, or if, as urged upon us, essential features rendering it wholly nugatory have been repealed by the subsequent passage of a general act whose provisions (Laws 1913, sec. 1, p. 328) are in fatal conflict therewith, then the General Primary Election. Law (Sec. 5855 to Sec. 5888', R. S. 1909) still governs the filing of relator’s declaration of candidacy and our peremptory writ of mandamus should issue. *

Upon the question of unconstitutionality a bare reference to the petition discloses that five separate reasons are set up wherein it is urged this act offends the fundamental law. We quote and let the pleader speak, thus:

“Relator further states that said so-called nonpartisan judiciary law of 1913 is unconstitutional, invalid and void, because the same is in conflict with and violates:
“ (a) Article 4, section 28, of the Constitution of Missouri;
“(b) Article 4, section 53, paragraph 32, of the Constitution;
“(c) Article 4, section 53, paragraph 2, of the Constitution of Missouri;
“ (d) Section 9 of the Bill of Rights of the Constitution of Missouri;
“(e) Article 4, section '53, paragraph 33, of the Constitution of Missouri.”

Pretermitting the inevitable doubt, which we merely raise without deciding, whether an act of the Legislature of any State could possibly offend the organic law so diversely and we may say so nearly universally and unanimously, we will proceed to examine them. For convenience, and brevity, the view we now hold of the case regarded, we consider first whether the act contains more than one subject, and 'whether that subject is clearly expressed in the title. [Sec. 28, art. 4, Constitution 1875.] For convenience of reference we set out below the title of the act, the first four sections thereof in full; and a brief analysis of the substance of the other sections thereof. These follow:

“An Act to provide for the manner of nominating and electing candidates for judges of the circuit courts in counties and cities having three hundred and fifty thousand inhabitants or ■more and to establish a nonpartisan judiciary in said courts.
“Section 1.- For the purpose of establishing a non-partisan judiciary in state circuit courts' in all counties and cities in this State which now have and such as may hereafter have a population of three hundred and fifty thousand inhabitants or more, it is provided that at the general primary election held for the purpose of nominating candidates for State, city or county offices, each political party presenting a ticket at such primary shall select from each ward within such circuit or circuits one delegate to a nominating convention to be held as hereinafter provided for each one thousand votes or fraction thereof cast within said ward for the candidate of such political party for the office of Governor of-the State at the last general election, and there shall be printed or written upon all ballots at such .primary under the caption: ‘for delegates to non-political judicial convention’ the name or names of such proposed delegate or delegates to be voted upon and the persons receiving the highest number of votes at such election shall be elected in this order according to the number of votes received as such delegates. The persons so selected by all political parties as such delegates shall meet in convention within ten days after the holding of such primary election and,there nominate a candidate or candidates to. be voted on at the general election to fill every snch judicial office to be filled within such circuit.
“See. 2. Names of candidates for said judicial offices so chosen shall be printed upon the general election ballot of each political party and following the names of such candidates upon the ballot shall be printed the office to be filled and nothing shall be printed or written or otherwise appear upon such ballot to indicate the political party, if any, to which any of such candidates belong or affiliate: It is further provided, that of the total number of such judicial offices to be filled not more than one-half the candidates therefor shall be nominated from any one political party: Provided, that when an uneven number of judicial offices are to be filled the odd candidate for such office may be nominated from any political party.
“Sec. 3. Except as otherwise provided in this act the provisions of the general laws of the State of Missouri relating to the nomination and election of candidates for public offices in cities and counties having' more than three hundred and fifty thousand inhabitants are hereby made applicable to the nomination and election of candidates for said judicial offices.
“Sec. 4. Any person who desires to become a candidate for the office of such judgeship and otherwise qualified therefor as by the laws of this State provided, shall upon filing a petition with the board of election commissioners of such city or county signed by not less than five per cent of the total number of votes cast for the office of Governor at the last preceding general election, declaring his intention to become a candidate for such office have his name printed up.on the official ballot at such general election and all votes cast for such candidate shall be received, canvassed and counted in the same manner as provided for in respect to all other candidates upon such ticket.”

There are two other sections, numbered 5 and 6, the substance of whose provisions is that appointments to fill vacancies in said office shall be made without regard to the politics of the appointee, and repealing all acts and provisions in conflict. [Secs. 5 and 6, p. 335, Laws 1913.]

We do not think that the title of this act is subject to the criticism made against it by relator. Considering the last clause of this title first, we see that it sets forth in no unmistakable terms its paramount purpose, which is “to establish a non-partisan judiciary in said courts,” that is to say, in circuit courts in counties and cities having 350,000 inhabitants or more. Turning to the body of the act we find the population limitation elaborated into applying the provisions of the act to “all counties and cities in this State which now have and such as may hereafter have three hundred and fifty thousand inhabitants or more. ’ ’ To find a fatal constitutional fault with this title for such a reason, that is, for that the body thereof is by the words italicized broader than the title, would be to take too strained and narrow a view of it, after we have resolved in its favor all reasonable doubts as the law requires us to do. [State v. Thompson, 144 Mo. 314; State v. Baskowitz, 250 Mo. l. c. 88; State v. Watts, 111 Mo. 553.] But we need not again go into the reasons against this constricted view; it is stare decisis. Titles to acts which like this failed to specifically provide for other cities and counties to come into the class as they might attain the requisite population, nevertheless, have been held good. [Ex parte Loving, 178 Mo. 194; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Marion County Court, 128 Mo. 427; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. Tolle, 71 Mo. 645; Ex parte Lucas, 160 Mo. 218.] Upon this point Barclay, J., said in the case of State ex rel. v. Marion County Court, supra:

“We think a fair reading of the proviso permits the interpretation that it is designed to apply to counties that may have the stated population at any time after the statute takes effect.
“That idea is not expressed in so many words; but, as the law is of .continuing operation, and employs the present tense — 'having’ such a population — and a prospective effect is to be given to a statute, where its language does not exclude that construction, we consider that the interpretation above indicated is reasonable, and should be accepted to sustain the action of the lawmaking department.
“Where a statute is fairly.susceptible of a construction in harmony with tile. Constitution that construction should be adopted, in obedience to several canons for the guidance of courts in dealing with this subject.”

The use of the words “non-partisan judiciary” as the chief desideratum of this act was in itself a sort of signboard advising all and sundry of the revolutionary object of the enactment. That it did not in the title thereof specifically state that it repealed inconsistent acts and acts in conflict with its provisions, we do not consider as either important or controlling. Nor has our attention been called by the industry of learned counsel to any authority holding that the failure of the title of an act to recite'that the act’s provisions repeal other inconsistent and conflicting laws, will of itself condemn the act . within the purview of the constitutional provision under consideration. Here the title, to an extent, may be said to have gone out of its way to recite that its main and cardinal purpose was “to establish a non-partisan judiciary.” Inevitably then no member of the Legislature, acting within the presumption of knowledge of the condition of the law in such behalf then existing, can' be said to have been misled by this, title. If we are not to offend by muddy prolixity, it would seem that when the general purpose of an act is- clearly set forth in its title, then all ancillary matters, germane to and not inconsistent with the general purpose and which are necessary, or necessary details, in order to carry out and give life and effect to such purpose, and without which its purpose would fail, are to he read by necessary implication into the title of the act. ' Something like this we find to he the rule, for it was said in State ex rel. v. Miller, 100 Mo. l. c. 445 (quoting from the still earlier case of Ewing v. Hoblitzelle, 85 Mo. 64), that:

“ ‘Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, then the subject is single, and if it is sufficiently expressed in the title the statute is valid.’ Substantially the same. rule had been laid down in several previous eases, [City of St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State v. Miller, 45 Mo. 495; City of Hannibal v. County of Marion, 69 Mo. 571; State ex rel. v. Mead, 71 Mo. l. c. 268.] The act in question fixes the number of directors in cities of over three hundred thousand inhabitants, prescribes their qualifications, and determines how and for what length of time they shall be electéd. All these matters are closely related, and under the rule before stated constitute but one subject.”

It is illuminating to note that the title of the act under discussion in the case of State ex rel. v. Miller, supra, was, “An Act fixing the number of directors in public school boards, in certain cities, and providing for election of such directors, and for districting said cities therefor.” [Laws 1887, p. 272.] This act, like the instant one, contained six sections, and likewise like- the instant one, the sixth section repealed all conflicting .acts and parts of acts. [State ex rel. v. Miller, 100 Mo. l. c. 444.]

The object sought by this constitutional provision and the rule by which we may determine in a general' way when,.that object and therefore when the letter of the Constitution is violated, is thus stated in the case of St. Louis v. Weitzel, 130 Mo. l. c. 616:

“The evident object of the provision of the organic law relative to the title of an act was to have the title, like a guideboard, indicate the general contents-of the hill, and contain but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.”

This rule has been quoted by1 this court many times with entire approval. [State ex rel. v. Weithaupt, 231 Mo. l. c. 459; State ex rel. v. Assurance Companies, 251 Mo. l. c. 294; State v. Distilling Co., 236 Mo. l. c. 260; State v. Bengsch, 170 Mo. l. c. 105; State ex rel. v. Vandiver, 222 Mo. 206; State v. Cantwell, 179 Mo. l. c. 260.] In the case of State v. Cantwell, supra, at the page cited above, Fox, J., said:

“It was not necessary for the law-making power, in the title of the act, to designate the purposes of it. The evils it is intended to remedy may be deduced from the provisions of the act itself. That the title should contain but one subject and it should he clearly expressed, by no means can he construed that” the title must designate the purposes of the act. The object to be obtained by the provision of the Constitution that there shall be hut ‘one subject and it shall be clearly expressed,’ was ‘to prevent surprise upon the lawmakers by the passage of bills, the object of which is not indicated by their titles, and also to prevent the combination of two or more distinct and unconnected matters in the same bill. ’ ’

We need not pursue this point further at the expense of time and space. We feel no doubt that the title of this act is safely within the Constitution, so far as sufficiency thereof is concerned, and we disallow the point to relator.

III. We come next to consider whether this is a special or local law, and if so whether as reMtor most insistently and strenuously contends, it violates paragraph 32 of section 53 of article 4 of our Constitution.

We judicially notice the population of the city of St. Louis (State v. Anslinger, 171 Mo. 600; State ex rel. v. Miller, 100 Mo. l. c. 450; State ex inf. v. Evans, 166 Mo. 347; State ex rel. v. Ryan, 232 Mo. l. c. 91); as also, and under the provisions of the act under examination, the further fact that the provisions of'this act at this time apply only to the city of St. Louis and to the Eighth Judicial Circuit. [State ex rel. v. Miller, supra; State v. Anslinger, 171 Mo. l. c. 610.] We are keenly mindful that other things hereafter more in detail adverted to, being equal, classification according to population has been held time and again to be sufficient to remove an act otherwise special, into the category of general laws. [State ex rel. v. County Court, 128 Mo. l. c. 442; State ex inf. v. Continental Tobacco Co., 177 Mo. 1; State ex rel. v. Bell, 119 Mo. 70.] But in order that an act, which is local and special and which applies only to one political subdivision of the State out of one hundred and fifteen, and to only one judicial circuit out of thirty-seven, may evade the ban of the Constitution that “in all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any ease is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject” (Par. 32, sec. 53, art. 4,. Constitution), there must be something more than the mere outward seeming of a general law.

Manifest beyond cavil it is that the' above danse of onr Constitution prohibits the passage of an act which, while wholly local, has artfully appended to it a sort of permitted classification, which normally would make the act, artificially at least, a general law. If the makers of our organic law, had by omitting the above clause, seen fit to confer upon the Legislature the power to determine the necessity of a local law, or the applicability of a general law, then the Legislature by -means of the classification by population, or by other arbitrary classifications long held permissible, could have rendered practically nugatory all of the remaining thirty-two paragraphs of limitations contained in section 53. For we note that this section begins by providing that ‘ ‘ the General Assembly shall not pass any local or special law” affecting some thirty-two or more specified matters. Under this language- then the very first thing that the courts must determine is whether the act attacked is local. If the Legislature could utterly foreclose judicial inquiry merely by the expedient of appending to a local act one or more of the well settled and legally permissible earmarks of classification, the courts would never be able to get anywhere in such an inquiry, because if' compelled to rule the question from outward signs alone the legal answer would always be that the act is not local and therefore not within the prohibited matters. We would-have always to beg the question in order to escape this legal cul-de-sac and be -compelled to assume that the act was local, instead of proceeding to demonstrate such fact judicially. For the defense always would be that, since the act carried both in title and in the body of the act a legally permissible classification, differentiating it- as a general law from local laws, therefore and by that token it is a general law ánd so cannot be -reached by the limitations in section 53 which prohibits local laws. Under a Constitution such as ours- and having a clause which takes from the Legislature, and confers upon the courts, the power to determine as a judicial question whether a law is local or special, and if special whether it was necessary or not, and even if necessary, whether a general law could have been made applicable, something more is required than the mere outward observance in an act of the arbitrary rules of classification by which, in a proper case, the question of whether a law is local or general is determined. [State ex rel. v. Miller, 100 Mo. l. c. 448; Murnane v. St. Louis, 123 Mo. l. c. 491; State v. Anslinger, 171 Mo. 600; Owen v. Baer, 154 Mo. l. c. 468.] In the case of State ex rel. v. Miller, supra, at page 448, it was said:

“The rule that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things is a special law, is but a statement of a general rule and was only intended as such when laid down in Wheeler v. Philadelphia, 77 Pa. St. 338, as will be seen from the-context of the opinion. A law which applies to certain school corporations only may be general, or it may be special. Much depends upon the particular matter of which the Legislature is treating. To make such a law general there must be some distinguishing peculiarity which gives rise to a necessity for the law as to the designated class. A mere classification for the purpose of legislation without regard to such necessity is simply special legislation of the most pernicious character and is condemned by the .Constitution. Mere differences which would serve for a basis of classification for some purposes, amount to nothing in a classification for legislative purposes, unless such differences are of a character as, in the nature of things, to call for and demand separate laws and regulations. The underlying principle is well stated by Chief Justice Beasley, in State ex rel. Richards v. Hammer, 42 N. J. L. 435, where he says: ‘But the true principle requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. There must be a substantial distinction, having a reference to the subject-matter of the proposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justify the restriction of the legislation. Principles of this sort can be best elucidated by examples. I have already given a sample of a merely arbitrary classification, founded on no causal relation between the subject-matter of such legislation and the things so classified. A sample of the other, or legitimate, kind, would be signified, in á law that should give to all cities in the State situated on tidewater the privilege of using such waters in connection with their sewers.’ ”

But we are not here compelled to judicially determine the necessity of a special law, or the applicability or lack thereof, of a general law providing for the nomination and election of circuit judges. The Legislature when it passed the general state-wide primary election law in 1909 (Laws 1909', p. 481), resolved any existing doubt on that point in favor of the feasibility of such a law for the whole State. On this proposition as to when and under what circumstances the question of the applicability of a general law to the situation to be met is resolved beyond cavil in favor of such applicability, a well-known law writer says: “If a general law exists which is applicable to a subject, the question whether such a law can be made applicable is resolved. The Legislature has by the enactment of a general law practically decided the question. Hence, if, while such a general law is in force, a special or local law is passed affecting the same subject and modifying the general law, the question of its validity is judicial; it will be held invalid in the case supposed, for, an applicable general law being’ in existence, it is no longer a question whether such a law can be made applicable; therefore the special or local law is prohibited.” [1 Lewis’s Sutherland on Statutory Con. (2 Ed.), sec. 191.]

Upon the point of the validity of a classification according to population, though upon a phase differing slightly from that here under discussion, but apposite thereto, nevertheless, this same writer says: “The reason upon which classification is founded is that cities of widely different population have different needs and conditions which render necessary corresponding differences in their corporate powers and in the number, character, powers and duties of the officers by whom the municipal government is to be conducted and its necessities provided for. Where the reason ceases to operate classification by population ceases to be valid.” [1 Lewis’s Sutherland Stat. Con. (2 Ed.), p, 388.]

That special or local acts may be constitutionally valid when concededly applicable to the -city of St. Louis alone and though such acts relate to primary and general elections in that city, is clear; for this court has several times had occasion to pass upon such laws and has held them good. [State ex inf. v. Fleming, 147 Mo. 1; State ex rel. v. Mason, 155 Mo. 486.] But having now upon the statute books such laws for that city (Cf. Secs. 6013 et seq., R. S. 1909; Secs. 6189 et seq., R. S. 1909) providing methods of holding primary elections (when not affected or abrogated by the general primary election law mentioned, supra); as also special laws providing for the registration of voters and for the holding of general elections therein (See Sec. 5810; R. S. 1909); as well as, having applicable to that city .and in full force there the provisions of sections 5855 et seq., so far as the terms of the latter law, as set out in said section 585-5-, extend, it is difficult to see the constitutional phase of necessity for the non-partisan judiciary act. Nor is it difficult to see that a non-partisan judiciary act may he as readily provided by a general law for the whole State as for the city of St. Louis alone.

IY. In addition to this vice, the Non-Partisan Judiciary Act violates another cardinal rule in another ordinarily valid classification. For while we bave held that laws affecting St. Louis only may be passed to govern and regulate primary elections and general elections held there (State ex inf. v. Fleming, supra; State ex rel. v. Mason, supra), we have never held, so far as we have been able to find, that such a special law could be passed for that city, to govern the filling of only one office and the selection and eléction of but one sort of officers therein; 'when at the same time there are in force in said city other laws providing other methods of filling all other offices. “The governing rule,” said Judge Macearían®, “has been that a statute which relates to persons and things as a class is a general law, while a statute which relates to par-. ticular persons or things of a class is special.” [State ex rel. v. Tolle, 71 Mo. l. c. 650; State ex rel. v. Herrmann, 75 Mo. 354; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. Marion County Court, 128 Mo. 427.] Here an act concededly affecting alone the city of St. Louis, instead .of legislating upon the single subject of nominations for all officers, or of primary elections for all officers, or of general elections for all officers to be chosen at the April elections or at the November general elections, as is permissible (see eases cited supra), selects out of that subject or class/ of things one particular thing, viz., a candidate for circuit judge. We do not think we need to pursue the subject further. For illustration: If an act were passed prohibiting the killing of wild ducks between the 15th day of January and the first day of November in all counties in this State which 'now contain or which may hereafter contain 19,448 inhabitants, we could mayhap judicially notice and ascertain that it applied to New Madrid county. It would have some of the indicia of a general law, but would any one contend for a minute that such an act would not violate paragraph 32 of section 53, of article 4, forbidding the passage of a local law where a general law may be made to apply (State v. Anslinger, supra), or that it would not likewise violate the provisions of our Constitution forbidding “class legislation?” Yet the Non-Partisan Judiciary Act is in practically every respect similar in constitutional defects to the supposed case. As we would hold in the case supposed by the illustration, we so hold in this.

We reach this conclusion with the utmost regret, since the subject sought to be accomplished by this act is most commendable and one devoutly to be wished. That the judiciary of the State, who sit in judgment upon the lives and liberty and property of all of the citizens, might with much bettering of the law’s enforcement be lifted out of politics and be no longer required to be beholden to any party for their places, is conceded almost of all men. But conceding the need (and personally for myself admitting sympathy with such a movement), should we say by solemn inference and in the very face of the Constitution that this need is larger in the city of St. Louis'than it is in Kansas City, or Springfield, or Joplin, or Camden county? Ought we — still in the very face of the Constitution — to work a great reform if so great need for reform exist, in spots? Again, if there be so crying a need for a remedy (of which we express no opinion), it is yet poor surgery I opine to cut off a single finger in the hope of curing a crooked elbow.

Other questions are raised, and other attacks for constitutional invalidity are urged, but having reached the conclusion on the grounds stated that the act is unconstitutional, we need not here and now pass upon these other questions mooted; contenting us with saying that some of them raised by the petition, but not herein discussed, seem to present seriously debatable questions.

It results that the peremptory writ of mandamus prayed for herein should issue. Let this be done.

Woodson, Brown and Walker, JJ., concur; Lamm, C. J., and Graves, J., concur in paragraphs one and two and in the result; Bond, J., dissents as to paragraphs one, three, four and to the result.


text:
    THE STATE ex rel. VITAL W. GARESCHE v. JOHN W. DRABELLE et al., as Members of Board of Election Commissioners.
    In Banc,
    June 2, 1914.
    For the reasons stated in State ex rel. v. Roach, ante, page 541, the peremptory writ of mandamus prayed, for herein is denied.
    Mandamus.
    "Whit denied.

      Spericer & Donnell and George B. Webster for relator.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondents; Marion G. Early of counsel.
   FARIS, J. —

This is a companion case to that of State ex rel. Garesche v. Roach, decided at this sitting and reported at page 541 of this report. Respondents herein compose the Board of Election Commissioners of the City of St. Lonis; otherwise the facts in the two cases are precisely similar.

For the reasons set out in the Roach case, supra, it follows that the peremptory writ of mandamus prayed for herein should be denied. It is so ordered.

Woodson, Broivn and Walker, JJ., concur; Lamm, G. J., and Graves, J., concur as marked in Roach case; Bond, J., dissents as marked in Roach case.


author: WOODSON, P. J. —

text:
    JEFFERSON D. SMITH, Appellant, v. VIRGINIA V. EGAN et al.
    Division One,
    June 2, 1914.
    1. NEAREST BLOOD KIN: As Used in Deed. The words “nearest blood kin” used in a deed, without any other words of limitation or restriction, mean the father and mother.
    2. -:--: Conveyance to Daughter and Nearest Blood Kin. Under a deed by parents to a daughter and “to her nearest blood kin,” without any other words of limitation or restriction, the title, on the daughter’s death without children or other descendants, went to her surviving parents, and not to her brothers and sisters, since her parents were the “nearest blood kin.”
    Appeal from Saline Circuit Court. — Hon. Samuel Davis, Judge.
    Affirmed.

      Harvey & Bellamy for appellant.
    (1) Mary Margaret Smith, even though non compos mentis, was capable of taking as grantee in the deed to her from her mother and father, Nancy J. and Paschal E. Smith. 'Washburn on Real Property (3 Ed), p. 240; Tiedeman on Real Property, sec. 797; 91 Am. & Eng. Ency. Law (2 Ed.), p. 131. (2) ' The deed from Nancy J. and Paschal E. Smith to Mary Margaret Smith was placed on record and the burden of proof is on defendants to show that such deed was not delivered to her or to some third person for her benefit. There is no evidence in the record to that effect. Burke v. Adams, 80 Mo. 504; Standiford v. Standiford, 97 Mo. 231; Sneathen v. Sneathen, 104 Mo.. 202; Coulson v. Coulson, 180 Mo. 709; Cobk v. Newby, 213 Mo. 271; Chambers v. Chambers, 227 Mo. 262. (3) The deed from Nancy J. and Paschal E. Smith is not testamentary in its character. If the grantor intended that the title should pass, eo instanti, upon execution to the grantee, it is a deed and this although the enjoyment is postponed until after the death of the grantor. If the instrument pass a present interest in the property, it is sufficient. 9 Am. & Eng. Ency. Law (2 Ed.), 91; O’Day v. Meadows, 194 Mo. 588; Dozier v. Toalson, 180 Mo. 552; Sims v. Brown, 158 S. W. 624. (4) “A covenant to stand seized to uses occurred where the owner of a freehold estate covenanted to hold the legal title in trust for the use of his child, wife, or kinsman; and this trust was enforced in equity, but only in case the consideration was blood or marriage. The statute of uses executed the use, and thereafter this covenant came to be used as a form of conveyance.” 9 Am. & Eng. Ency. Law (2 Ed.), P1. 101; 24 lb., pp'. 435-6; R. S. 19091, sec. 2876. The deed in controversy had a covenant to stand seized to the use of Mary Margaret Smith and her nearest blood kin, reserving a life estate in the-donors. They expressly provided in this deed that they would stand seized to their own use during their natural lives and the natural life of each of them, -and after the decease of both of them, to the use of said Mary Margaret Smith and her nearest blood kin-, such blood kin, as we interpret it, to be those at the decease of the donors, notwithstanding Mary Margaret' Smith should die before they died. (5) But suppose we concede that Nancy J. and Paschal E. Smith intended by their said deed that if Mary Margaret Smith should die before both or either of them, then those who answered to the description of the nearest blood kin to said grantee at the date of her said death should take the remainder, would said Nancy J. and Paschal E. Smith be the nearest blood kin of their said daughter? We have been unable to find any authority in our State which has so held. We admit that many of our sister States have followed the civil law rule and held that' the father and mother are the nearest blood kin of a deceased son or daughter, to the exclusion of the brothers and sisters. But our courts have not so determined. And why should they? Is there any more justice or equity in following the rule of the civil rather than of the common law or of our Statute of Descents and'Distributions ? Our legislature, in the enactment of Sec. 2872, E. S. 1909, which abolishes estates in fee tail, provided that “the remainder shall pass in fee simple absolute to the persons to whom the estate tail would, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.”

      Huggins £ Huggins and Virgil V. Huff for respondents.
    (1) The delivery of a deed is essential to its operation as a conveyance, and the grantee must have accepted it. Hall v. Hall, 107 Mo. 107. (2) The act of delivery must be with the intent, on the part of the grantor, to divest himself of title, and it must have been accepted by the grantee with the intent to take the title as indicated in the deed. McNear v. Williamson, 166 Mo. Mo. 367; Bunn v. Stuart, 183 Mo. 383. (4) The act of recording must be accompanied by evidence of other acts or declarations showing an intention to deliver the deed, before a delivery can be presumed. Griffin v. McIntosh, 176 Mo. 397; 13 Cyc. 569, par. (C); 2 Jones, Beal Prop., sec. 1293. (5) To constitute a deed, the actual title to the land must pass, in praesenti. The instrument in question fails to meet this requirement. . If the instrument indicates . what the maker wishes done with his property after his death, it is testamentary. Christ 'v. Kuehne, 172 Mo. 125; Murphy v. Gabbert, 166 Mo. 601; Aldridge v. Aldridge, 20.2 Mo. 575; Griffin v. McIntosh, 176 Mo. 397; Terry v. Glover, 235 Mo. 552; Sims v. Brown, 252 Mo. 66. (6) Before the death of Mary Margaret Smith it was’ uncertain who would be her “nearest blood kin” at the time of her death, which uncertainty rendered the remainder over after the life estate limited to her contingent. At her death this uncertainty became certain, and the contingent remainder in her “nearest blood kin” when it becáme certain who they would be, became immediately a vested remainder in these persons. Tiedeman, Beal Prop., p. 323, par 403; 2 Wash-burn Beal Prop. (6 Ed.), par. 1556; Dickerson v. Dickerson, 211 Mo. 488; Tindall v. Tindall, 167 Mo. 225. (7) It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. Byrne v. France, 131 Mo. 639; Chew v. Kellar, 100 Mo. 362; Tindall v. Tindall, 167 Mo. 226. (8) The terms “nearest blood kin,” when used as an ultimate limitation in -a conveyance of real estate, simpliciter, that is, without reference to any other description or designation, does not refer to those who take under the Statute of Descents and Distributions, but to those persons who are nearest in degree of consanguinity as computed by the civil law. Elmsley v Young, 2 M. & K. 870; Withy v. Mangles., 10 Clark & Finnelly Reports, 215; 2 Jarman on Wills, p. 112, par. 953, p. 114, par. 955; Swasey v. Jacques, 144 Mass. 136-, 59 Am. Rep. 65 ; Locke v. Locke, 45 N. J. Eq. 97; Fargo v. Miller, 150 Mass. 225, 5 L. R. A. 660; Blagge v. Balcli, 162 U. S. 464; Keniston v. Mayhew, 169 Mass. 166; Redmond v. Burroughs, 63 N. 0. 245; Davenport v. Hasel, Busby’s Eq. (N. 0.) 29; In re Evirett’s Estate, 195 Pa. St. 454; Adee v. Campbell, 79 N. Y. 52; 2 Kent Com., 423, 424, 414; Van Cleve v. Van Fossen, 73 Mich. 345; Wetter v. Walker, 62 Ga. 145; Harraden v. Larabee, 113 Mass. 431; Jones v. Oliver, 3 Ired. Eq. 369, 371; Simmons v. Gooding, 5 Ired Eq. 382, 390; *2 Underhill on Wills, p. 836, sec. 626. (9) Paschal E. Smith and Nancy J. Smith, father and mother of Mary Margaret Smith, were at the time of her death, nearer of kin than her brothers, sisters, or the descendants of deceased brothers and sisters. 4 Kent Com. (14 Ed.), 393, 401, 413; Swasey v. Jaques, 144 Mass. 136.
   WOODSON, P. J. —

This is an action of ejectment to recover the possession of one-ninth interest in eighty acres of land situated in Saline county.' The petition was in the usual form, and the answer was a general denial and an equitable defense. The judgment of the circuit court was in favor of the defendant, and the plaintiff appealed the cause to this court.

The facts are practically undisputed and are as follows:

On and long prior to March 26, 1899, Paschal E. Smith and Nancy J. Smith were husband and wife, and were the parents of ten children — -three of whom were dead, all leaving surviving children. Another one of them was named Mary Margaret Smith, who was an invalid and an imbecile. The plaintiff and defendant were also their children.

Upon the date mentioned Paschal E. Smith and his wife, Nancy J. Smith, signed and acknowledged a certain deed, the one in controversy in this suit. This deed describes two hundred and eighty acres of land, eighty of which is the land in controversy. The consideration expressed in the deed is one dollar, “and the further consideration of love and affection.”

This deed, as previously stated, was from Nancy J. Smith and Paschal E. Smith as parties of the first part, and Mary MargaretHmith as party of the second part, and recites that the parties of the first part “remise, release and forever quitclaim unto said party of the second part,” 280 acres of land therein described, with the following clause therein, to-wit: “It is expressly understood and agreed that said parties of the first part will henceforth stand seized of the lands above' described, with all the privileges and appurtenances to the same belonging for the use and purposes following, to-wit: to the use of the said parties of the first part during their natural lives and the natural life of each of them, without impeachment of waste and after the decease of both of the said parties of the first part to the use of Mary Margaret Smith and to her nearest blood kin.” The habendum clause contains this language: “To have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto-belonging unto the said party , of the second part, and to her nearest blood kin forever. ’ ’

This deed was duly recorded, but this record contains no direct evidence that it was delivered to Mary Margaret Smith, the grantee, or that the grantors knew that it was recorded.

Mary Margaret Smith died without issue, September 9, 1899. Her father, Paschal E. Smith, died February 16', 1903, and her mother, Nancy J. Smith, died July 5, 1907.

Shortly after Mary Margaret Smith departed this life, her father and mother, the grantors, in the deed previously mentioned, divided said two hundred and. eighty acres of land among’ four of their other children, and in so doing they conveyed to the defendant, Virginia V. Egan, the eighty acres in controversy, by deed dated December 11,1899.

I. The appellant contends that the deed of March 26, 1899, from Paschal E. Smith and wife, to Mary Margaret Smith, their daughter, vested in her and her nearest blood kin forever, the remainder of the entire two hundred and eighty acres of land described therein, and that the deed of Paschal E. Smith and wife, dated December 11, 1899, conveying the eighty acres in controversy to their daughter, the respondent, was inoperative because they had previously conveyed the title thereto to Mary Margaret Smith, and he being her brother, he inherited from her one-ninth of the two hundred and eighty acres, and consequently is entitled to one-ninth of the eighty involved in this suit.

Counsel for respondent contends:

“First, that there is no evidence to show any delivery of the deed to Mary Margaret Smith; and that there being no evidence to show that either Mr. Smith or Mrs. Smith ever recorded the deed or knew of its record, the subsequent deeding of the property to their other children negatives any delivery or knowledge thereof.
“Second. ' That the said deed is testamentary in its character and consequently inoperative as a deed.
“Third. That if the title passed under said deed to Mary Margaret Smith, then at her death, her father, Paschal E. Smith and her mother, Nancy J. Smith, were her nearest blood kin and met the terms of said deed; and the full title immediately, upon the death of their daughter, Mary Margaret Smith, fully vested in her said father and mother.”

In support of these respective contentions counsel have presented and discussed many legal propositions in support thereof; but in the view we take of the case it will be necessary to decide but one of them, for the reason it completely disposes of the entire case.

Counsel for appellant take the position that the words “to the use of Mary Margaret Smith and to her nearest blood kin” found in the granting clause of the deed, and the following contained in the habendum clause thereof, viz.: “To have and to hold the same, with all the rights, immunities, privileges and appurtenances- thereto belonging unto -the said party of the second part and to her nearest blood kin forever,” are words of inheritance within the meaning of our Statute of Descents and Distributions; and, therefore, they should be construed: to mean that the father and mother and the brothers and sisters of Mary Margaret Smith were equally close or near blood kin to her, and that when she died they inherited the two hundred and eighty acres of land in equal parts.

Counsel frankly admit that they have been unable to find any authority supporting their position; but insist that the father and mother bear no closer blood relationship to their children than do brothers and sisters bear to each other.

We cannot lend our concurrence to that contention. A child is of the blood and flesh of the father and mother, and of course that is the closest blood relationship that exists. [4 Kent Com. (14 Ed.), 396, 401, 413; Swasey v. Jaques, 144 Mass. 135.]

As well stated by learned counsel for respondent:

“The terms ‘nearest blood kin,’ when used as an ultimate limitation in a conveyanjce of real estate, simpliciter, that is, without reference to any other description or designation, does not refer to those who take under the Statute of Descents and Distributions, but to those persons who are nearest in degree of consanguinity as computed by the civil law.”

This view of the law has been announced by many courts of this and other countries. [Elmsley v. Young, 2 My. & K. l. c. 87; Withy v. Mangles, 10 C. & F. 215; 2 Jarman on Wills (6 Ed. — Sweet), pp. 1604-1607; Swasey v. Jaques, 144 Mass. 135, 59 Am. Rep. 65; Locke v. Locke, 45 N. J. Eq. 97; Smith v. Campbell, 19 Ves., Jr., 400, G. Coop. 275; Fargo v. Miller, 150 Mass. 225, 5 L. R. A. 690; Blagge v. Balch, 162 U. S. 439, l. c. 464; Keniston v. Mayhew, 169 Mass. 166; Redmond v. Burroughs, 63 N. C. 242, l. c. 245; Davenport v. Hassel, Busbee’s Eq. (N. C.) 29; In re Everitt’s Estate, 195 Pa. St. l. c. 454; Adee v. Campbell, 79 N. Y. 52; 2 Kent Com. 423, 424, 414; 4 Kent Com. (14 Ed.), 395, 401, 413; Van Cleve v. Van Fossen, 73 Mich. 342; Wetter v. Walker, 62 Ga. 142; Haraden v. Larrabee, 113 Mass. 431; Jones v. Oliver, 3 Ired. Eq. 369, 371; Simmons v. Gooding, 5 Ired. Eq. 382, 390; 2 Underhill on Wills, p. 836, sec. 626.]

Entertaining these views of the law governing this case it must necessarily follow therefrom that upon the death of Mary Margaret Smith, whatever title she had in the two hundred and eighty acres of land, under the express terms of the deed conveying it to her, passed to and became vested in her father and mother, and that the deed executed by them on December 11, 1899, conveyed the eighty acres in question to their daughter, the respondent in this case.

We are, therefore, of the opinion that the judgment of the circuit court should be affirmed; and it is so ordered.

All concur.


text:
    MINNIE A. WERTH et al. v. WILLIAM F. FRYE et al.; HENRY B. SEAMAN, Appellant.
    Division One,
    June 2, 1914.
    APPEAL: Lost Petition. Where the original petition, filed in a ease has been lost, it is the duty of appellant to make timely application for leave to file a substituted petition, or at least to have abstracted the'petition; and if neither is done, the appeal must be dismissed.
    Appeal from Shannon Circuit Court. — No». W. N. Evans, Judge.
    Dismissed.
    N. Ghouieau Dyer for appellants.
    J. IF. Chilton- send S. L. Ciarle for respondents.
   WOODSON, P. J. —

This cause was submitted to this court upon what purports to be the abstract of the record and brief, of appellants, and taken as submitted by respondents, they filing neither.

The second paragraph of the statement of the abstract of the record reads as follows:

“The original files in this case seem to have been lost and, never having been served with a copy of the petition, this appellant, Henry B. Seaman, is unable to set out in this abstract a verbatim copy of the petition but, no point having been made on the pleadings, it will be sufficient for the determination of this case to state that the petition was in the usual form, alleging, in substance, that the plaintiffs are the owners in fee-simple and claim title to the following described real estate situated in Shannon County, State of Missouri, to-wit:”

Then follows the description, the conventional allegations under old section 650, and the nsnal prayer.

The rules of this court require that the appellant make a true abstract of the record proper and of the bill of exceptions filed in the case. This so-called abstract of the record is a most flagrant violation of those rules. The petition, which is the foundation of all litigation, both in law and at equity, in this ease has not been abstracted, but confessedly it is lost or destroyed, which I take as the reason why counsel has not abstracted it; but that is no valid excuse why it should not have been abstracted. If counsel desired this court to review the ruling of the trial court, he should, upon the discovery of the loss or destruction of the petition, have made timely application to the court for leave to file a substitute petition under the well-known rules of practice and procedure in this State. Having failed to pursue that' practice, and not having abstracted the petition upon which all of the record proper and the bill of exceptions filed in the cause rest, we must, as a matter of .necessity, rule that there is no case proper here; and therefore are powerless to pass upon the case.

Upon this state of the record there remains nothing for this court to do except to dismiss the cause for failure to comply with the rules.

It is so ordered.

All concur.