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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 Almost every railroad case that we have, or while the same was in on, and had reaat least a great many of them, grow out of sonable grounds to believe that he was then accidents that happen on account of viola- and there in peril, then it was the duty of tions of company rules by conductors and the persons in charge of the train to exercise other trainmen, and we perceive no good ordinary care to avoid injury to him. (3) Or reason why the company should not be held if they believed that Wilder saw Noble hangresponsible for the acts and conduct of its ing on the side of the train, and that he was conductor in permitting children to get on in danger, and that Wilder, with knowledge or ride on his train to the same extent that it of his position, started the train, and failed would be responsible in other instances in to exercise ordinary care for the protection which injury or loss is occasioned by the of Noble after seeing his peril, if any there conductor's violation of the rules of the was, and should further believe that as a dicompany.

rect and proximate result of the failure of the [9] We are also of the opinion that it was conductor or other persons in charge of the competent to show that the father of Noble train to perform these duties Noble was inrequested the conductor not to permit him to jured, they should find for the plaintiff. (4) get on, or ride on, or go about, the train, They were further told that unless they beand this upon the ground that it furnished lieved from the evidence that Wilder habitunotice to the conductor of the habits of Noble, ally permitted and allowed Noble and other and that the practice he indulged in of trying infants in large numbers to catch onto and to ride on the train was against the wishes ride on his train, and for such length of time of his parents.

as that it became the common use and habit [10] The instructions are complained of, of Noble and other children, then the defendbut, according to the views we have ex- ant company, its agents and servants in pressed, they are free from substantial error. charge of the train, owed to Noble no lookout The jury were in substance told: (1) That duty, and they should find for the company, if they believed from the evidence that Con- unless they believed from the evidence that ductor Wilder, for some 2 years or more the persons in charge of the train saw his before Noble was injured, had daily and place of peril before it was started. continuously permitted and allowed, without On the subject of contributory negligence objection, large numbers of boys, including the jury were told that: Noble, to board and ride upon his train in his

“If you believe from the evidence that Noble presence and with his knowledge, and during Steele was warned of the danger of getting on, this time nu bers of boys, including Noble, off, and riding upon the train in and about did habitually and constantly board the Grays, and had sufficient intelligence, judgtrain of Wilder with his permission and ac- ciate the danger incident to doing so, yet he per

ment, and understanding to know and apprequiescence, then it was the duty of Wilder sisted in getting on and off and riding said train, and the persons in charge of the train on such action on his part amounted to contributhe occasion of Noble's injury to exercise or- tory negligence, such as bars his right of recov

ery, and you will find for the defendant comdinary care and keep a reasonable lookout

pany." 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.

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administrative bodies, yet before the land includSTATE, on Inf. of KILLAM, Pros. Atty., et ed can be burdened with a special assessment al. v. COLBERT et al. (No. 20384.)

for benefits, a notice and opportunity to be heard

must be accorded the landowners, in order that (Supreme Court of Missouri, Division No. 2. the Constitution's "due process of law" may be Jan. 5, 1918. Rehearing Denied

satisfied. Feb. 16, 1918.)

8. HIGHWAYS 90 ROAD DISTRICTS OR1. HIGHWAYS 90—ROAD DISTRICTS-Pow- GANIZATION-POWERS OF COUNTY COURT. ERS OF COUNTY COURT, ESTABLISHMENT. In incorporating a road district under Rev.

Under Rev. St. Mo. 1909, $10612, as added St. 1909, § 10612, as added by Laws 1913, p. by Laws 1913, p. 678, as to formation of road 678, the county court acts judicially in deterdistricts, requiring that a petition signed by the mining whether it has jurisdiction, and whether owners of a majority of the acres of land with the land proposed to be included in the district in the proposed district setting forth the pro- will be benefited, and such determination must posed name "of the district, and giving the precede the incorporation, and its jurisdiction boundaries thereof," shall be filed, and that no- must appear affirmatively from the record, and tice shall contain the names of at least three it therefore does not have the legislative power signers of the petition and “set out the bound to make any change in the boundaries of the aries of the said proposed district,” and shall district which the public good requires in the notify all owners of land to make remonstrance, absence of amendment of the petition or reand providing that the court shall hear the pe- monstrance filed. tition and remonstrance, and make any change 9. HIGHWAYS 90 – ROAD DISTRICTS — ORin the boundaries which the public good necessi

GANIZATION-POWERS OF COUNTY COURT. tates, and if after such changes are made it shall appear to the court that the petition is signed St. 1909, § 10612, as added by Laws 1913,

In incorporating road districts under Rev. by the owners of a majority of all the acres of p. 678, construction thereof requiring judiland within the district as changed the district cial determination whether the lands will be sball be incorporated, and providing that if benefited, and prohibiting change from boundno remonstrance is filed the court shall make aries as stated in the petition in the absence an order incorporating the district with the of amendment or remonstrance, not inconboundaries given in the petition, or with such sistent with section 10611, generally authorboundaries as may have been given in an amend- izing organization of districts of any dimened petition, the court is not authorized to make sions that may be deemed necessary or advisable. any change which does not conform to the petition as amended, in the absence of remon

10. HIGHWAYS 90-ROAD DISTRICTS-ORstrance, and an order incorporating a district

GANIZATION-POWERS OF COUNTY COURT. with different boundaries than those stated in St. 1909, $ 10612, as added by Laws 1913, p.

In incorporating road district under Rev. the petition was invalid, where there was no 678, where the county court in the absence of remonstrance and no amended petition. 2. Courts m33—COUNTY COURT-VALIDITY formed a district with boundaries different from

amendment of the petition or of remonstrance OF ACTS.

those stated in the petition, its act was not a All facts necessary to confer jurisdiction and make valid an act of the county court, when trict being affected by the variance in the order

mere irregularity; all the property in the disacting in its judicial capacity, must affirma- from the petition, and the order, being inseptively appear upon the face of its record.

arable, could not be in part valid if in part void. 3. HIGHWAYS 90 ROAD DISTRICTS COUNTY COURT-VALIDITY OF ACTS.

11. HIGHWAYS Cm 90ROAD DISTRICTS-OR

GANIZATION-POWERS OF COUNTY COURT. In proceeding for incorporation of a road district, while the county court had authority sustained on the theory that the district formed

In such case, the proceeding could not be to pass upon the facts showing whether it had jurisdiction, its finding of jurisdiction was not was actually that described in the petition, and conclusive, since jurisdiction must not only have not that described in the order. existed in the first place, but the acts of the court must have been within its jurisdiction,

Appeal from Circuit Court, Lincoln Coun4. QUO WARRANTO Cm 8 — INCORPORATION OF ty; Edgar B. Woolfolk, Judge. ROAD DISTRICTS-FUNCTION OF WRIT.

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. 5. HIGHWAYS @90 – ROAD DISTRICTS - IN- and others, against W. Y. Colbert and oth

County, at the relation of T. J. Higginbotham CORPORATION-POWERS OF COUNTY COURT.

Where the county court in incorporating a From the decree rendered, plaintiff aproad district exceeded its jurisdiction by incor- peals. Reversed and remanded, with direcporating with different boundaries than those

tions. stated in the petition, or amendment, in the absence of remonstrance, the entire proceeding was David E. Killam, Pros. Atty., of Troy, void.

Rufus L. Higginbotham, of Bowling Green, 6. CONSTITUTIONAL LAW Om 62-DELEGATION Sutton & Huston, of Troy, and Hostetter & OF POWERS.

The Legislature may confer upon certain Haley, of Bowling Green, for appellants. officers, boards, commissions, and courts power John L. Burns and Dudley & Williams, all to carry out in detail the legislative will, to of Troy, for respondents. promulgate rules and regulations, to ascertain facts upon which the operation of a statute would depend, or carry through certain pre

WHITE, C. This proceeding was begun scribed procedure by which to put in force cer- by an information in the nature of a quo tain statutes in limited districts.

warranto filed in the circuit court of Lincoln 7. CONSTITUTIONAL LAW Cm 290(3) DUE county by the prosecuting attorney of that PROCESS OF LAW-SPECIAL ASSESSMENT,

While the authority merely to lay off special county, at the relation of 25 persons whose taxing districts may be granted by the Legisla- | names are given, challenging the right of the ture to certain boards, or councils, or other respondents to exercise the functions of com

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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 The record does not show that a remonLouisville road district of Lincoln county," strance was filed to the petition, nor that setting out in detail the facts which, as they the petition was amended so as to conform claimed, showed the organization of such dis- to the territory embodied in the district covtrict and their authority to serve as such ered by the order. Recitals in the order incommissioners. On the trial of the cause the dicate that no remonstrance was filed, and records of the county court of Lincoln coun- the petition was not amended. It does not ty, relating to the attempted formation of appear by the record thus introduced nor by the Silex and Louisville road district, under other evidence that the parties, the relators, sections 10611 to 10625C, Laws 1913, pp. 677 or any of them, were present at the time to 695, together with the petition and notice of the hearing of the matter before the counin said matter, were offered in evidence. ty court, or that there was any hearing oth

The petition in the proceeding set out the er than the consideration of the petition and boundaries of the proposed road district, notice. The authority for the order as stating that it included in the aggregate 11,- shown in its recitals is based upon the pe360 acres; set out a description of the sev. tition and the notice in the form in which eral tracts of land included in it, with the they were filed and served, as above set pame of the owner and the number of acres forth. The circuit court decided the district 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. From that judgment, reutory notice, dated on the day the petition lators appeal. was filed, signed by the clerk of the county [1] I. It is claimed by the relators in this court, setting forth the same boundaries as case that the county court was without jurisstated in the petition, with the same number diction to incorporate the district with the of acres (11360), was directed to the several boundaries changed froin those stated in the parties named as landowners in the petition. petition and notice, so as to exclude a large Proof of the proper service of notice also part of the land in contemplation by the pewas made. The order of the county court in- titioners for the formation of the district in corporating the district was made May 17, the first place. The statute under which the 1915, being the first term following the filing proceeding was tad (section 10612, Laws of the petition and the publication of the no- | 1913, p. 678) requires that a petition signed tice. It recites, among other things, that by the owners of a majority of the acres of the court finds the petition and notice were land within the district proposed to be orin due form and the notice duly served, "and ganized, and setting forth the proposed name that the court has duly acquired and has ju- of the “district, and giving the boundaries risdiction of the subject-matter of this cause thereof,” etc., shall be filed in the oflice of the and of all the persons interested therein, and clerk of the county court 30 days before the of all the lands located within the boundary beginning of the regular term of said court, of said district.” The order then recites: and requires the clerk to give notice, setting

"The court further finds from the evidence forth the manner in which the notice is to be adduced that the public good requires and makes given: necessary that the boundaries of the said pro

"Said notices shall contain the names of at posed district as set out in the petition and least three signers of said petition and set out notice should be changed, but that such changes the boundaries of the said proposed district, in the boundaries proposed shall not be so as to and shall notify all owners of land in said proembrace any land not included in the notice giv: posed district, who may desire to oppose the en by the clerk of this court; that after such formation thereof, to appear on the first day of changes in the boundaries are made, the court such regular term of court and file their written further finds that such petition is signed and in remonstrance thereto." writing consented to by the owners of more than a majority of all the acres of land within the

The section then provides for the filing of district as so changed, and that said district remonstrances in writing which are required and the boundaries thereof as changed are in all to state the objections of remonstrators to the respects suitable and proper, and that district formation of the district, and at the term of ought and should properly be incorporated and established by the name, and with the bound-court following: aries so changed, as aforesaid.”

"The court shall hear such petition and re

monstrance, and shall make any change in the Then follows a description of the land in- boundaries of such proposed district as the pubcluded within the boundaries of the district lic good may require and make necessary, and as changed, leaving out a large part of the if, after such changes are made it shall appear

to the court that such petition is signed or in land included within the boundaries set out writing consented to by the owners of a main the petition and notice. The land left jority of all the acres of land within the disout in the order is stated by the appellant to trict as so changed, the court shall make an orbe 2,000 acres; the respondents claim it is such order shall set out the boundaries of such

der incorporating such public road district, and only 1,220 acres. However, it is unquestion- district as established.” ed that it is a large tract, some of it con The section then directs: tiguous to the proposed road marked on the

"If no remonstrance shall have been filed, or plat submitted to the court showing the all remonstrances filed are overruled by the

court, the court shall determine whether such plated in any remonstrance; that is, a change petition has been signed by the owners of a of which there is no notice on file. majority of the acres of land in the district, and, if so, shall make an order incorporating

The second contingency, the one with the district with the boundaries given in the which we have to deal, is where no rewonpetition, 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 there- says: of shall in writing consent thereto, or shall ap “The court shal} determine whether such pear at the hearing," etc.

petition has been signed by the owners of a

majority of the acres of land in the district, Then follow sections of the act which make and, if so, shall make an order incorporating provision for the appointment and election of the district with the boundaries given in the commissioners after the incorporation of the forth in' an amended petition signed by the own

petition, or with such boundaries as shall be set district, their organization, the levy of taxes, ers of a majority of the acres of land affected the iss:iance of bonds, petitions for road im- thereby; and such amended petition may be provements, and the hearing of objections and filed at any time before the order establishing

the road district." exceptions to such improvement, and the opportionment of the tax against the property of

It is possible that the Legislature had in the district, in accordance with its value, and mind here that the filing of an amended petithe benefits to be received from the construction setting forth different boundaries from tion of the road according to its distance those contained in the original petition from the road so constructed, the issuance of should be a change of which all parties intax bills, making of contracts for the con- terested must take notice. But the court is struction of the road, etc. This statute shows not authorized to make “any change" in that two contingencies are provided for on such case which does not conform to the the hearing of the petition:

petition as amended. The district in this First, where remonstrances are filed the case was incorporated with boundaries encourt nears 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 in the original petition and notice, upon the county court under this section is the forma- land remaining in the district. And so far tion of the district, and the only question as the record shows the change was made which would come before the court in the first when relators had no opportunity to be contingency, if the district should be incor- heard in opposition to it. porated, would be whether the boundaries

[2] It has been held frequently that a should be as set out in the original petition county court when acting in a judicial caor changed on consideration of the remon- pacity acquires jurisdiction only by strict strances. A remonstrance could not, in any compliance with a statute which gives it auevent, cover any other objection than one of thority to act; and it is a rule that all the these two: Either that the public good did facts necessary to confer jurisdiction and not require the formation of the district at make valid an act of the county court must all, or that its formation should include land affirmatively appear upon the face of its bounded differently from that stated in the record. petition. The Legislature doubtless had in [3] II. It is argued by respondents that mind that when a remonstrance is filed, sug- the county court had authority to pass upon gesting a change in the boundaries, every pe- the facts showing whether or not it had jutitioner and everybody who had notice of the risdiction, and, having found the facts in proposed formation of the district is construc- favor of its jurisdiction, the finding is contively notified of what is on file, and what is clusive. This finding of the court was to be heard and determined by the court. We mere conclusion from the finding that a propare not called upon to determine in this case er petition was filed and proper notice serv. whether the county court would have authori. ed. And it may be conceded that the county ty to organize a district in such case with court did have jurisdiction of the subjectbounda ries changed from those set in the pe- matter and of the parties interested, autition, and also different from any contem- thorizing it to incorporate a road district.

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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 gond 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 land would be benefited and appropriately per cent of the land, provided it was an included in it. That would be a "legislative amount sufficient to warrant the incorpora- determination" of that result. tion of the district, the result would be the The rule that a purely legislative funcsame in principle as leaving out 10 per cent. tion, under the constitutional division of powof the land.

ers, cannot be delegated by the lawmaking [4] Respondents cite several cases in sup- branch of government, is still adhered te port of their position. All these are cases pretty consistently in this state. See Mer. where the facts found by the court to give it chants' Exchange v. Knott, 212 Mo. 616, loc, jurisdiction are either specifically found in cit. 611, 642, 111 S. W. 565, and cases cited every respect, or else there is a finding in there. It is outside the scope of our inquiry general terms from which the specific facts to attempt a survey of the undefined terrinecessary to confer jurisdiction are presum-tory occupied by the supposed exceptions to ed to have been found, and in all the cases this rule. But a few general observations cited there were collateral attacks upon the are pertinent because of the argument ad. judgments. A quo warranto proceeding is vanced. Cases involving the powers of cit. a direct attack upon, and in fact the appro- ies are not in point here. Certain limited priate direct proceeding by which to attack, legislative powers possessed by municipal the validity of the county court's order in corporations of a certain class may be recorporating the district. State ex rel. v. ferred to the Constitution, art. 9, § 17, Wilson, 216 Mo. loc. cit. 275, 115 S. W. 549; whether the authority given there be regard. State ex inf. Fleming, 158 Mo. loc. cit. 561, ed as a direct constitutional grant to cities, 59 S. W. 118; State ex rel. v. Mining Co., or special authority granted the Legislaturo 262 Mo. 503, 171 S. W. 356.

in providing for the government of cities. [5] In this case the record shows exactly It would hardly be appropriate to say that what the county court found in order to con- the Legislature, in enacting forms of governfer jurisdiction; that is, that the petition ment for cities, as authorized by the Constiwas in due form and the notice regularly tution, delegates its own peculiar functions served. There was no finding of any facts to such cities. Pash v. St. Joseph, 257 Mo. which would confer jurisdiction to make the 332, loc. cit. 341, 165 S. W. 710; Kansas City change in the boundaries of the district; v. Mastin, 169 Mo. 80, loc. cit. 91, 68 S. W. that is, no finding that there was an amend- 1037; Kansas City v. Ward, 134 Mo. 172, ed petition or a hearing on remonstrances. loc. cit. 186, 35 S. W. 600. The county court justified its change of the The Legislature may confer upon certain boundaries, not upon the finding of juris- officers, boards, commissions, and courts dictional facts, but upon "evidence adduced power to carry out in detail the legislative to show that the public good required it.” will, to promulgate rules and regulations, to Although it had jurisdiction of the cause in ascertain facts upon which the operation of the first instance, in exceeding the statutory a statute would depend, or carry through authority, in going beyond the authority giv- certain prescribed procedure by which to en it by the petition and notice, it exceeded put in force certain statutes in limited disits jurisdiction and rendered the entire pro-tricts. 6 R. C. L. § 177; 12 C. J. 809. Such ceeding void. State ex inf. Rosenberger v. powers sometimes are spoken of by the Bellflower, 129 Mo. App. 138, 108 S. W. 117; courts as powers delegated by the legislative Seafield v. Bohne, 169 Mo. 537, loc. cit. 547, authority when the word is used to designate 69 S. W. 1051; State ex rel. v. Campbell, 120 the purpose to be accomplished rather than Mo. loc. cit. 402, 25 S. W. 392; State ex rel. the function exercised in accomplishing it. White v. Small, 131 Mo. App. loc. cit. 476, Merchants' Exchange v. Knott, 212 Mo. 616, 109 S. W. 1079; State ex rel. Campbell v. loc. cit. 633, 636, 111 S. W. 565; State v. Heege, 37 Mo. App. loc. cit. 348.

Thompson, 160 Mo. 333, loc. cit. 343, 344,

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