Almost every railroad case that we have, or at least a great many of them, grow out of accidents that happen on account of violations of company rules by conductors and other trainmen, and we perceive no good reason why the company should not be held responsible for the acts and conduct of its conductor in permitting children to get on or ride on his train to the same extent that it would be responsible in other instances in which injury or loss is occasioned by the conductor's violation of the rules of the company.

derstand the limits of the conductor's author- | exercising ordinary care for his own safety. ity. They doubtless took it for granted, as his age and experience considered, they boys might well do, that as the conductor should find a verdict in his behalf. (2) They was in charge of the train, he had the right were further told that if they believed that to let anybody ride at any time or in any the persons in charge of the train saw Noble manner that he saw proper. on the train, or attempting to get on, and while the same was in motion, and had reasonable grounds to believe that he was then and there in peril, then it was the duty of the persons in charge of the train to exercise ordinary care to avoid injury to him. (3) Or if they believed that Wilder saw Noble hanging on the side of the train, and that he was in danger, and that Wilder, with knowledge of his position, started the train, and failed to exercise ordinary care for the protection of Noble after seeing his peril, if any there was, and should further believe that as a direct and proximate result of the failure of the conductor or other persons in charge of the train to perform these duties Noble was injured, they should find for the plaintiff. (4) They were further told that unless they believed from the evidence that Wilder habitually permitted and allowed Noble and other infants in large numbers to catch onto and ride on his train, and for such length of time as that it became the common use and habit of Noble and other children, then the defend

[9] We are also of the opinion that it was competent to show that the father of Noble requested the conductor not to permit him to get on, or ride on, or go about, the train, and this upon the ground that it furnished notice to the conductor of the habits of Noble, and that the practice he indulged in of trying to ride on the train was against the wishes of his parents.

charge of the train, owed to Noble no lookout duty, and they should find for the company, unless they believed from the evidence that the persons in charge of the train saw his place of peril before it was started.

On the subject of contributory negligence the jury were told that:

[10] The instructions are complained of, but, according to the views we have ex-ant company, its agents and servants in pressed, they are free from substantial error. The jury were in substance told: (1) That if they believed from the evidence that Conductor Wilder, for some 2 years or more before Noble was injured, had daily and continuously permitted and allowed, without objection, large numbers of boys, including Noble, to board and ride upon his train in his presence and with his knowledge, and during this time numbers of boys, including Noble, did habitually and constantly board the train of Wilder with his permission and acquiescence, then it was the duty of Wilder and the persons in charge of the train on the occasion of Noble's injury to exercise ordinary care and keep a reasonable lookout for Noble in order to ascertain whether he was on or about the train, and to exercise Finding in the record no error prejudicial ordinary care to avoid injury to him. And to the substantial rights of the railroad comif they believed that Noble was injured while pany, the judgment is affirmed.

"If you believe from the evidence that Noble Steele was warned of the danger of getting on, off, and riding upon the train in and about Grays, and had sufficient intelligence, judgment, and understanding to know and appreciate the danger incident to doing so, yet he persisted in getting on and off and riding said train, such action on his part amounted to contributory negligence, such as bars his right of recovery, and you will find for the defendant company."

administrative bodies, yet before the land includSTATE, on Inf. of KILLAM, Pros. Atty., et ed can be burdened with a special assessment

for benefits, a notice and opportunity to be heard must be accorded the landowners, in order that 2. the Constitution's "due process of law" may be satisfied.

Information in the nature of quo warranto A quo warranto proceeding is the, appropri- by the State, on the information of David E. ate direct attack upon the validity of the coun- Killam, Prosecuting Attorney of Lincoln ty court's order incorporating a road district. County, at the relation of T. J. Higginbotham 5. HIGHWAYS 90 ROAD DISTRICTS -- INCORPORATION-POWERS OF COUNTY COURT. and others, against W. Y. Colbert and othWhere the county court in incorporating a ers. From the decree rendered, plaintiff aproad district exceeded its jurisdiction by incor- peals. Reversed and remanded, with direcporating with different boundaries than those stated in the petition, or amendment, in the absence of remonstrance, the entire proceeding was void.

WHITE, C. This proceeding was begun by an information in the nature of a quo warranto filed in the circuit court of Lincoln county by the prosecuting attorney of that county, at the relation of 25 persons whose names are given, challenging the right of the respondents to exercise the functions of com

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

missioners of a special road district. The boundaries of the district and the direction respondents filed their return alleging that of a road in contemplation from Silex to they had been duly elected, had qualified, and Louisville. were acting commissioners of the "Silex and Louisville road district of Lincoln county," setting out in detail the facts which, as they claimed, showed the organization of such district and their authority to serve as such commissioners. On the trial of the cause the records of the county court of Lincoln county, relating to the attempted formation of the Silex and Louisville road district, under sections 10611 to 10625c, Laws 1913, pp. 677 to 695, together with the petition and notice in said matter, were offered in evidence.

The record does not show that a remonstrance was filed to the petition, nor that the petition was amended so as to conform to the territory embodied in the district covered by the order. Recitals in the order indicate that no remonstrance was filed, and the petition was not amended. It does not appear by the record thus introduced nor by other evidence that the parties, the relators, or any of them, were present at the time of the hearing of the matter before the county court, or that there was any hearing other than the consideration of the petition and notice. The authority for the order as shown in its recitals is based upon the petition and the notice in the form in which they were filed and served, as above set forth. The circuit court decided the district

From that judgment, re

The petition in the proceeding set out the boundaries of the proposed road district, stating that it included in the aggregate 11,360 acres; set out a description of the several tracts of land included in it, with the name of the owner and the number of acres of each tract, and was signed by proper was properly incorporated, and dismissed form by 35 or 40 of such owners. The stat- the information. utory notice, dated on the day the petition | lators appeal. was filed, signed by the clerk of the county court, setting forth the same boundaries as stated in the petition, with the same number of acres (11360), was directed to the several parties named as landowners in the petition. Proof of the proper service of notice also was made. The order of the county court incorporating the district was made May 17, 1915, being the first term following the filing of the petition and the publication of the notice. It recites, among other things, that the court finds the petition and notice were in due form and the notice duly served, "and that the court has duly acquired and has jurisdiction of the subject-matter of this cause and of all the persons interested therein, and of all the lands located within the boundary of said district." The order then recites:

"The court further finds from the evidence adduced that the public good requires and makes necessary that the boundaries of the said proposed district as set out in the petition and notice should be changed, but that such changes in the boundaries proposed shall not be so as to embrace any land not included in the notice given by the clerk of this court; that after such changes in the boundaries are made, the court further finds that such petition is signed and in writing consented to by the owners of more than a majority of all the acres of land within the district as so changed, and that said district and the boundaries thereof as changed are in all respects suitable and proper, and that district ought and should properly be incorporated and established by the name, and with the boundaries so changed, as aforesaid."

[1] I. It is claimed by the relators in this case that the county court was without jurisdiction to incorporate the district with the boundaries changed from those stated in the petition and notice, so as to exclude a large part of the land in contemplation by the petitioners for the formation of the district in the first place. The statute under which the proceeding was had (section 10612, Laws 1913, p. 678) requires that a petition signed by the owners of a majority of the acres of land within the district proposed to be organized, and setting forth the proposed name of the "district, and giving the boundaries thereof," etc., shall be filed in the office of the clerk of the county court 30 days before the beginning of the regular term of said court, and requires the clerk to give notice, setting forth the manner in which the notice is to be given:

"Said notices shall contain the names of at least three signers of said petition and set out the boundaries of the said proposed district, and shall notify all owners of land in said proposed district, who may desire to oppose the formation thereof, to appear on the first day of such regular term of court and file their written remonstrance thereto."

The section then provides for the filing of remonstrances in writing which are required to state the objections of remonstrators to the formation of the district, and at the term of court following:

"The court shall hear such petition and remonstrance, and shall make any change in the boundaries of such proposed district as the public good may require and make necessary, and if, after such changes are made it shall appear to the court that such petition is signed or in writing consented to by the owners of a jority of all the acres of land within the district as so changed, the court shall make an orsuch order shall set out the boundaries of such der incorporating such public road district, and district as established."

ma

Then follows a description of the land included within the boundaries of the district as changed, leaving out a large part of the land included within the boundaries set out in the petition and notice. The land left out in the order is stated by the appellant to be 2,000 acres; the respondents claim it is only 1,220 acres. However, it is unquestioned that it is a large tract, some of it contiguous to the proposed road marked on the "If no remonstrance shall have been filed, or

The section then directs:

plated in any remonstrance; that is, a change of which there is no notice on file.

with

court, the court shall determine whether such petition has been signed by the owners of a majority of the acres of land in the district, The second contingency, the one and, if so, shall make an order incorporating the district with the boundaries given in the which we have to deal, is where no remonpetition, or with such boundaries as may be set strance has been filed or all remonstrances forth in an amended petition signed by the own have been overruled by the court-that is, ers of a majority of the acres of land affected thereby; and such amended petition may be where remonstrances are left entirely out of filed at any time before the making of the order consideration, with nothing on file for the establishing a road district, but the boundaries court to consider in the formation of the disproposed for the district shall not be so chang-trict except the petition; then the statute ed as to embrace any land not included in the notice given by the clerk, unless the owner thereof shall in writing consent thereto, or shall appear at the hearing," etc.

Then follow sections of the act which make provision for the appointment and election of commissioners after the incorporation of the district, their organization, the levy of taxes, the issuance of bonds, petitions for road improvements, and the hearing of objections and exceptions to such improvement, and the opportionment of the tax against the property of the district, in accordance with its value, and the benefits to be received from the construction of the road according to its distance from the road so constructed, the issuance of tax bills, making of contracts for the construction of the road, etc. This statute shows that two contingencies are provided for on the hearing of the petition:

says:

"The court shall determine whether such petition has been signed by the owners of a majority of the acres of land in the district, and, if so, shall make an order incorporating the district with the boundaries given in the petition, or with such boundaries as shall be set forth in an amended petition signed by the owners of a majority of the acres of land affected thereby; and such amended petition may be filed at any time before the order establishing the road district."

in the original petition and notice, upon the land remaining in the district. And so far as the record shows the change was made when relators had no opportunity to be heard in opposition to it.

It is possible that the Legislature had in mind here that the filing of an amended petition setting forth different boundaries from those contained in the original petition should be a change of which all parties interested must take notice. But the court is not authorized to make "any change" in such case which does not conform to the petition as amended. The district in this First, where remonstrances are filed the case was incorporated with boundaries encourt hears the petition and the remon- tirely different from those set out in the pestrances, and, if the public good requires it, tition; and no amended petition was filed. makes a change in the boundaries of the Those who were notified of the proceeding in proposed district, and incorporates it with the first instance were informed that a cersuch change. Evidently the change to be tain number of acres (11,360) would bear the made in such case would be only after all burden and expense of such roads as might the parties for or against the change might be built. To this no one objected. As the have opportunity to be heard before the road district was incorporated a large part court. All parties are notified of the original of this land, in quantity 10 or 15 per cent., boundaries of the district as shown in the the value not being given, was left out, placoriginal petition and notice. It will be notic-ing an additional burden, not contemplated ed that the only action to be taken by the county court under this section is the formation of the district, and the only question which would come before the court in the first contingency, if the district should be incorporated, would be whether the boundaries should be as set out in the original petition or changed on consideration of the remonstrances. A remonstrance could not, in any event, cover any other objection than one of these two: Either that the public good did not require the formation of the district at all, or that its formation should include land bounded differently from that stated in the petition. The Legislature doubtless had in mind that when a remonstrance is filed, suggesting a change in the boundaries, every petitioner and everybody who had notice of the proposed formation of the district is constructively notified of what is on file, and what is to be heard and determined by the court. We are not called upon to determine in this case whether the county court would have authority to organize a district in such case with boundaries changed from those set in the petition, and also different from any contem

[2] It has been held frequently that a county court when acting in a judicial capacity acquires jurisdiction only by strict compliance with a statute which gives it authority to act; and it is a rule that all the facts necessary to confer jurisdiction and make valid an act of the county court must affirmatively appear upon the face of its record.

[3] II. It is argued by respondents that the county court had authority to pass upon the facts showing whether or not it had jurisdiction, and, having found the facts in favor of its jurisdiction, the finding is conclusive. This finding of the court was a mere conclusion from the finding that a proper petition was filed and proper notice served. And it may be conceded that the county court did have jurisdiction of the subjectmatter and of the parties interested, authorizing it to incorporate a road district.

But, under the authorities, it must not only [6-8] III. Respondents argue at great have acquired jurisdiction, but must act length that the authority of the county court within the limits of the jurisdiction so ac- to make any change "the public good may quired. If, having jurisdiction of the sub- require," mentioned in connection with reject-matter, it proceeded to render a judg-monstrances, implies the right to depart ment in excess of its jurisdiction, then the from the description in the petition without judgment is a nullity. It could incorporate amendment. In support of this position a road district defined in the petition and in they contend that the authority to establish the notices served, but the road district a district is a legislative function, delegated which it actually ordered incorporated was to the county court, and therefore a change not that one at all, but another one entirely. of boundaries from those set out in the petiIt did not conform to the original petition, tion could be made without an opportunity nor to any amended petition, and was in for the persons affected to be heard. Doubttotal disregard of the statute under which less the legislative authority could establish the court purported to act. If 90 per cent. and incorporate a district for purposes of of the land had been left out, and the entire special improvement and taxation, and deburden of constructing the contemplated termine, without notice or hearing, what roads in the district had been cast upon 10 per cent. of the land, provided it was an amount sufficient to warrant the incorporation of the district, the result would be the same in principle as leaving out 10 per cent. of the land.

land would be benefited and appropriately included in it. That would be a "legislative determination" of that result.

The rule that a purely legislative function, under the constitutional division of powers, cannot be delegated by the lawmaking branch of government, is still adhered to pretty consistently in this state. See Mer chants' Exchange v. Knott, 212 Mo. 616, loc. cit. 641, 642, 111 S. W. 565, and cases cited there. It is outside the scope of our inquiry to attempt a survey of the undefined territory occupied by the supposed exceptions to this rule. But a few general observations are pertinent because of the argument advanced. Cases involving the powers of cit

[4] Respondents cite several cases in support of their position. All these are cases where the facts found by the court to give it jurisdiction are either specifically found in every respect, or else there is a finding in general terms from which the specific facts necessary to confer jurisdiction are presumed to have been found, and in all the cases cited there were collateral attacks upon the judgments. A quo warranto proceeding is a direct attack upon, and in fact the appro-ies are not in point here. Certain limited priate direct proceeding by which to attack, the validity of the county court's order incorporating the district. State ex rel. v. Wilson, 216 Mo. loc. cit. 275, 115 S. W. 549; State ex inf. Fleming, 158 Mo. loc. cit. 561, 59 S. W. 118; State ex rel. v. Mining Co., 262 Mo. 503, 171 S. W. 356.

[5] In this case the record shows exactly what the county court found in order to confer jurisdiction; that is, that the petition was in due form and the notice regularly served. There was no finding of any facts which would confer jurisdiction to make the change in the boundaries of the district; that is, no finding that there was an amended petition or a hearing on remonstrances. The county court justified its change of the boundaries, not upon the finding of jurisdictional facts, but upon "evidence adduced to show that the public good required it." Although it had jurisdiction of the cause in the first instance, in exceeding the statutory authority, in going beyond the authority given it by the petition and notice, it exceeded its jurisdiction and rendered the entire proceeding void. State ex inf. Rosenberger v. Bellflower, 129 Mo. App. 138, 108 S. W. 117; Seafield v. Bohne, 169 Mo. 537, loc. cit. 547, 69 S. W. 1051; State ex rel. v. Campbell, 120 Mo. loc. cit. 402, 25 S. W. 392; State ex rel. White v. Small, 131 Mo. App. loc. cit. 476, 109 S. W. 1079; State ex rel. Campbell v.

legislative powers possessed by municipal corporations of a certain class may be referred to the Constitution, art. 9, § 17, whether the authority given there be regard ed as a direct constitutional grant to cities, or special authority granted the Legislature in providing for the government of cities. It would hardly be appropriate to say that the Legislature, in enacting forms of government for cities, as authorized by the Constitution, delegates its own peculiar functions to such cities. Pash v. St. Joseph, 257 Mo. 332, loc. cit. 341, 165 S. W. 710; Kansas City v. Mastin, 169 Mo. 80, loc. cit. 91, 68 S. W. 1037; Kansas City v. Ward, 134 Mo. 172, loc. cit. 186, 35 S. W. 600.

The Legislature may confer upon certain officers, boards, commissions, and courts power to carry out in detail the legislative will, to promulgate rules and regulations, to ascertain facts upon which the operation of a statute would depend, or carry through certain prescribed procedure by which to put in force certain statutes in limited districts. 6 R. C. L. § 177; 12 C. J. 809. Such powers sometimes are spoken of by the courts as powers delegated by the legislative authority when the word is used to designate the purpose to be accomplished rather than the function exercised in accomplishing it. Merchants' Exchange v. Knott, 212 Mo. 616, loc. cit. 633, 636, 111 S. W. 565; State v.