of want of probable cause. In this we think the court erred. The subsequent indictment of plaintiff, standing alone, was prima facie evidence of probable cause, and, taken with the conflicting presumption of want of probable cause arising from his discharge by the magistrate, in no way aided that presumption, but we are of the opinion had a directly contrary result, and militated against that presumption to such an extent as to destroy it. Especially is this true since the evidence fails to disclose that the indictment was found by the procurement of defendant, and it is not questioned that it was found upon the same evidence as was adduced be by defendant upon the issue of probable | charged before the magistrate, aided the precause. Upon this state of facts, which, be- sumption of want of probable cause arising sides being matters of record, stands undis- from such discharge, and together were proof puted, and being all of the evidence introduced by either plaintiff or defendant upon the issue of probable cause, the court upon this issue instructed the jury as follows: "You are instructed that, where a man is arrested and discharged by an examining officer for want of probable cause, that would constitute a prima facie case of the want of probable cause for your consideration. But it is only to be considered such when taken together with all other evidence in this particular case. The evidence in this case shows, gentlemen of the jury, that in the first place the defendant in this case had the plaintiff arrested before an examining officer, Judge Payne, and in that examina- fore the magistrate. Plaintiff's subsequent tion he was discharged for want of probable acquittal was no evidence at all bearing on cause for holding him. The evidence fur- the issue of probable cause, and did not afther discloses the fact that the grand jury fect it one way or the other. Let us discuss indicted the plaintiff again upon the same each of these propositions: 19 Ency. of case, and that he was afterwards charged Law, 663, states the rule thus: "It has been with the same crime by the grand jury, and held that the finding of an indictment by the that he was afterwards tried and discharged grand jury is prima facie evidence of probunder instruction of the court for this par- able cause for the prosecution, unless the ticular crime. You are instructed, gentlemen jury believes that the indictment was proof the jury, that, if you believe from the cured by the false testimony of the defendevidence that the defendant in this case, ant, or by other improper means"-citing auhaving all the evidence before him at the thorities. This doctrine has also been firmtime of the original complaint, which was ly established by the great weight of aufiled in the commissioner's court, present-thority. In Jones v. Railroad, 131 N. C. 133, ed the same to the commissioner, and that 42 S. E. 559, the court says: "In Griffis v. he was afterwards summoned before the Sellars, 19 N. C. 492, 31 Am. Dec. 422, this grand jury, and the grand jury found a court, speaking through Chief Justice Ruffin, true bill against the plaintiff upon the same says: 'It is settled in this state that a disevidence, and that he was discharged by the charge by the examining magistrate imports court upon that evidence, you are authorized that the accusation was groundless. If the to find from the evidence that there was magistrate commit, or if the grand jury find want of probable cause in the arrest of the a bill, it has never been doubted that in law plaintiff." Was this instruction error, as that is evidence of probable cause, and calls contended by defendant? We think it was. for an answer from the plaintiff as to the parThe instruction, in effect, told the jury that ticular circumstances which impose it upon the discharge of the defendant by the ex- the plaintiff to go into the circumstances in amining magistrate was prima facie evi- the first instance. It is true that in these dence of want of probable cause, and that cases the evidence is deemed prima facie onthe subsequent finding of an indictment by ly." In Peck v. Chouteau, 91 Mo. 138, 3 S. W. the grand jury for the same offense, and his 577, 60 Am. Rep. 236, the court says: "Obacquittal, aided that presumption, and with jection is also made to the instruction which, it constituted proof of want of probable cause. in substance, is that the finding and return Let us analyze this charge and see if it of the indictment is prima facie evidence of correctly states the law. It is undoubtedly probable cause, and unless this proof is overtrue, as announced in the first sentence of come by evidence, either that the indictthis charge, that where one is arrested and ment was procured by false or fraudulent discharged by the examining magistrate, the testimony, or that, notwithstanding the findfact is prima facie evidence of want of prob- ing of said indictment, said defendant did able cause in a subsequent action of this not believe the plaintiff to be guilty of the kind. 19 Ency. of Law, 664, says: "The offense for which he had been indicted, the weight of authority is believed to favor the jury will find for the said defendant on the rule that the discharge of the plaintiff in ma- first count. This instruction has the sanclicious prosecution by the examining magis- tion of at least two former rulings of this trate is prima facie evidence of the want of court. Sharpe v. Johnston, 76 Mo. 670; Van probable cause for the proceedings complained Sickle v. Brown, 68 Mo. 627. The statement of"-citing authorities. But the instruction that the finding and return of the indictment goes further and tells the jury that the subse- is prima facie evidence of the probable cause quent indictment and acquittal of plaintiff, is no more than that the burden of proof to 557; plaintiff." In Sharpe v. Johnston, 76 Mo. | referring to them, citing Williams v. Van 660, the court said: "It may be further observed that the action of a grand jury in finding a bill of indictment, or the commitment of the prisoner by the examining magistrate, is prima facie evidence of probable cause"-citing Sharpe v. Johnston, 59 Mo. Van Sickle v. Brown, 68 Mo. 627; State v. Railey, 35 Mo. 168; Brant v. Higgins, 10 Mo. 728; Graham v. Noble, 13 Serg. & R. (Pa.) 233; Bacon v. Towne, 4 Cush. (Mass.) 217. In Brown v. Griffin, Cheves (S. C.) 32, the court said: "Where the grand jury have returned a true bill upon the charge made, such finding amounts to a judicial recognition that probable cause does exist. Hence arises a rule that a plaintiff, suing for damages in such a case, must prove the absence of probable cause; and, if he fails to do so, such judicial recognition is prima facie proof of a probable cause." It is useless to multiply authorities upon so well-established a doctrine, but we cite in addition Firer v. Lowery, 59 Mo. App. 92, and Barber v. Scott, 92 Iowa, 52, 60 N. W. 497. Meter, 8 Mo. 339, 41 Am. Dec. 644, Townshend on Slander, 709, and cases cited, and 2 Greenleaf on Ev. § 455." In Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L. R. A. 474, the court said: "We recognize, as does the Court of Appeals, the conflict of authority upon the question, but we are of the opinion that the weight of authority and the better reason are in favor of the proposition that in such a case the acquittal of the plaintiff of the criminal charge is not evidence tending to show want of probable cause. We cite some of the recent cases: Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Allen v. Codman, 139 Mass. 139, 29 N. E. 537; Willard v. Holmes, 142 N. Y. 493, 37 N. E. 480; Eastman v. Monastes, 32 Or. 291, 51 Pac. 1095, 67 Am. St. Rep. 531. See, also, note to Ross v. Hixon, 26 Am. St. Rep. 155." In Cloon v. Gerry, 13 Gray (Mass.) 201, Mr. Justice Shaw, speaking for the court, said: "In every case of an action for malicious prosecution or suit, it must be averred and proved that the proceeding instituted against the plaintiff has failed, but its failure has never been held to be evidence of either malice or want of probable cause, much less is it conclusive of those things." Thus it will be seen that the court instructed the jury that two presumptions, the one arising from plaintiff's discharge by the examining magistrate, and the other from his subsequent indictment for the same offense, aided each other, and together made evidence of want of probable cause. In so charging we think the court fell into error, and that, instead of the two presumptions aiding each other, we repeat that we are of the opinion that they had the directly opposite effect, and militated to the extent of destroying each other. And why should they not? In order to maintain this action it was incumbent on the plaintiff to prove want of probable cause; that is, that the prosecu tion of which he complains was not based upon such facts and circumstances, known to defendant at the time, sufficient in the.nselves to lead him, as a reasonable and cautious man, to believe the plaintiff probably guilty of the crime charged, but was actu ated by malice or some improper or sinister motive. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116. This he undertook to do, not by going into the facts and circumstances known to defendant at the time, and which But the court further says, in effect, that if plaintiff was acquitted of the charge in the indictment, that fact, coupled with his discharge before a committing magistrate and his subsequent indictment for the same offense, would furnish proof of a want of probable cause. This latter part of the charge is wholly erroneous, and was no evidence whatever of a want of probable cause, and, being no evidence whatever bearing upon that issue, would add nothing to the presumption of want of probable cause arising from the fact of plaintiff's discharge before the examining magistrate, or to the presumption of probable cause arising from the finding of the indictment. 26 Cyc. 40, lays down the rule thus: "An acquittal is merely one of the essentials of plaintiff's case, usually sheds no light on other facts, and of itself, does not show want of probable cause."-citing authorities, 19 Am. & Eng. Ency. of Law, 665, states it thus: "Some cases seem merely to hold that the acquittal in a criminal prosecution of the plaintiff in the subsequent suit for damages is not alone prima facie or per se sufficient evidence of want of probable cause. But the better doctrine is believed to be that such fact is no evidence whatever of a lack of probable cause for the prosecution, and is not admissible in such connection * -citing authorities. In Boeger v. Langen-actuated him in waging the prosecution, but berg, 97 Mo. 390, 11 S. W. 223, 10 Am. St. Rep. by introducing a record, in effect, that the 322, the court said: "Regarding the third examining magistrate had already detercount, the plaintiff showed an acquittal by mined that fact in his favor, which deterjury on an information brought by the prose-mination he relied upon as sufficient proof in cuting attorney, at defendant's instance, this case, until overcome by competent and against plaintiff. It is claimed that the acquittal tends to establish want of probable cause in moving that prosecution. This contention is so clearly contrary to the satisfactory evidence. At the same time he introduced as proof of malice an indictment, found presumably at the next sitting of the grand jury in that jurisdiction, charging him discharged by the examining magistrate, | fendant as sheriff, under an execution, plainshowing conclusively to our minds that the tiff claiming that the sheriff conveyed him magistrate took one view of the probable no title, because he had failed to properly guilt of defendant, and the grand jury an- advertise the sale. The court said: "The other; that 1 man thought there was want plaintiff points out certain defects and omisof probable cause for the prosecution and 12 sions in the return, chief among which is men were of the opinion that probable an omission to show that the execution sale cause therefor existed, and the finding of was duly advertised in some newspaper in each was attended with that presumption. the county, and he contends that, in conIt comes irresistibly to our minds that, as sequence thereof, his title is invalid. The the burden of proof on this issue was upon burden of proof, however, is on the plainthe plaintiff, to sustain which he introduced tiff and it does not follow that the sale in evidence testimony, from which arose two was not advertised, because the return fails conflicting presumptions, those presumptions to show it. The return does not purport on counterbalanced each other, and there was its face to be a statement of everything that nothing proved on the issue of probable was done in the service of the execution, and cause, and the court should have so instruct- we do not find any language in it which imed the jury. . plies that the sale was not advertised. It We are not without authority to support may be argued that the presumption is that this conclusion. Cases of conflicting pre- everything that was done appears in the sumptions, both in civil and criminal cas- return, because the officer is directed to rees, are not unusual. Lowery v. People, turn the writ with his doings thereon. But it 172 Ill. 466, 50 N. E. 165, 64 Am. St. Rep. may likewise be argued that the presump50, was a prosecution for bigamy. At the tion is that the defendant did not sell betrial the second marriage was conclusively fore advertising the sale, because the statute proven, and not controverted, and that de- makes it his duty to advertise before selling. fendant resided with her, in the state of Both presumptions are equally strong and Illinois, as his wife for about a year. The therefore all we can say is that the return evidence as to the first marriage consisted does not show whether the sale was daly of testimony that defendant and the alleged advertised or not. Consequently it was for first wife lived together as husband and the plaintiff to show the omission to adwife in Chicago previous to the second mar- vertise by extrinsic evidence, and he adriage, and while so living together he called duced no such evidence." Sarah H. Yarnell her his wife, and said they had been mar- v. Kansas City, Ft. Smith & Memphis R. R., ried in Milwaukee, and showed what pur- 113 Mo. 570, 21 S. W. 1, 18 L. R. A. 599, was ported to be a marriage certificate. De- an action for damage for the death of plainfendant was convicted, and on appeal the tiff's husband, alleged to have been caused court in reversing the case, said: "Where by the negligence of the defendant railroad the relation of husband and wife is assumed, company. Speaking of conflicting presumpthe law generally presumes in favor of a tions, the court said: "This record is utterlawful marriage, but where it is charged ly barren of any testimony showing, or tendthat two successive marriages have taken ing to show, how or in what way Yarnell place, the presumption in favor of the legali- came to his unfortunate death. His localty of each is equal, and actual marriage ity at the time his daughter and Wall left must be proved. In this case, the presump- him on entering the cars, whether he was tion that would ordinarily obtain in favor on the bottom step of the car, or on the car of the first marriage is met by an equal platform, or on the depot platform, is entirepresumption in favor of the legality of the ly unknown; and it is equally unascertained second marriage, and therefore it was incum- and unascertainable whether his death rebent on the prosecution to show the first sulted from an attempt to alight from the marriage to be a marriage in fact." Again, cars while in motion, and he was thus in Squire v. State, 46 Ind. 459, the court, thrown beneath them and killed, or whether, in speaking through Mr. Justice Buskirk, having alighted, he ventured too close to the quotes approvingly from Bishop in his work cars and was struck by them as they starton Statutory Crimes, in section 611, p. 403, ed, and hurled to his death. It has been where he says, speaking of presumptions suggested that it will be presumed that arising in prosecutions for bigamy, in sub- Yarnell was in the exercise of 'due care.' stance, that in cases where seven years have This may be granted; but, while indulging not elapsed at the time of the trial, the this presumption, it must not be forgotten presumption of death of the absent spouse that every one is presumed to properly acdid not obtain, and that the presumption of quit himself of his engagements and his innocence of the accused taken with that pre- duty (Lenox v. Harrison, 88 Mo. 491, and sumption neutralized each other. Foster v. cases cited), and that carriers of passengers Berry, 14 R. I. 601, was an action in assump- are by no means outside of the pale of this sit to recover $100 paid by plaintiff to de- favorable presumption. So that the result fendant for certain real estate, purporting is that one presumption rebuts and neutrato be sold and conveyed to plaintiff by de-lizes the other, like the conjunction of an corporation created "to own, acquire, construct, The Shawnee Light & Power Company, a maintain, equip and operate buildings, machinery and plants for the purpose of generating and supplying electricity and gas for illuminating, heating, and manufacturing purposes," and whose charter authorizes it "to make and perform contracts of any kind and description," may enter into a valid contract with a paving company to provide for paving along the line of track of a street railway corporation with which such first corporation has a contract, running for a period of 20 years to furnish power; such contract being within the authority granted in its charter, and not prohibited by public policy or any statute. acid and alkali." Miller v. Chicago & C. Ry. | 2. CORPORATIONS (§ 447*)-CONTRACTS-ULTRA Co. (C. C.) 41 Fed. 898, was a case where VIRES. plaintiff had been arrested by defendant for burning its depot, and, after being held by the examining magistrate to answer to the grand jury, a bill by it was ignored. He' then sued defendant for malicious prosecution. On a demurrer to the evidence, in considering the two conflicting presumptions thus arising, the court held, as we have done in this case-that is, that they destroyed each other, and the burden of proof being on the plaintiff, it devolved on him to proceed further with his proof on this issue the court, speaking through Mr. Justice Philips, said: "So we may say that the plaintiff has not made out a prima facie case here by showing that the bill was ignored by the grand jury, in view of the fact of the precedent action of the committing magistrate in finding that there was probable cause. In other words, that those two prima facie inferences counterbalance each other. Then it devolved upon the plaintiff to go further, and show, not only that this charge was false in fact, but that at the time it was instituted by the prosecutor there was no reasonable ground to suppose that the defendant was guilty." [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1786; Dec. Dig. § 447.*] 3. CORPORATIONS (§ 426*)-OFFICERS-RatifiCATION OF Acts. Such contract when executed by the presi dent of the light and power company, who [Ed. Note. For other cases, see Corporations, Error from District Court, Pottawatomie Shawnee Light & Power Company, and oth- Hence, we are of the opinion that the court erred in so instructing the jury, and also in refusing to give the following instruction asked for the defendant: "You are instruct-ers, against Charles T. Derr and others, ed that the fact of the finding of an indict-partners, doing business as the Oklahoma Paving & Construction Company. Judgment ment by the grand jury, upon the same for plaintiffs, and defendants brought error Oklahoma, whence the cause was transferred to the Supreme Court of the territory of to the Supreme Court of the state of Oklahoma. Reversed and remanded, with instructions. charge on which the defendant filed a complaint against the plaintiff neutralizes the effect of the discharge by the United States commissioner, and that the fact of his discharge by the United States commissioner cannot be taken by this jury to be prima facie evidence of a want of probable cause." It follows that the judgment of the lower court should be reversed, and case remanded for new trial, and it is so ordered. All the Justices concur. DERR et al. v. FISHER et al. On February 25, 1905, the plaintiff J. C. Fisher, as receiver of the Shawnee Light & Power Company, a corporation, commenced his action against C. J. Becker, as city clerk of the city of Shawnee, and C. C. Pottenger, as city treasurer of said city, and the Oklahoma Paving & Construction Company, a partnership, composed of Charles T. Derr, John A. Derr, and Frank A. Derr, the petition alleging that on the 10th day of No (Supreme Court of Oklahoma. Sept. 12, 1908. vember, 1904, the plaintiff was duly ap On Rehearing, Dec. 21, 1908.) 1. CORPORATIONS (§ 447*)-POWERS-EXPRESS pointed receiver of the property of the Shawnee Light & Power Company in an action pending, wherein J. H. Draughn was plaintiff and the Shawnee Light & Power Company defendant, and that he qualified and entered upon the duties of such receiv ership; that C. J. Becker and C. C. Pottenger are the duly elected and qualified clerk and treasurer of the city of Shawnee, Okl., and that the Oklahoma Paving & Construction Company is a partnership composed of Charles T. Derr, John A. Derr, and Frank A. Derr, engaged in the business of paving the streets of cities in Oklahoma Territory; part; * that the city of Shawnee had contracted in his possession or under his control and with the Shawnee Light & Power Company, issued to him the said plaintiff, and that agreeing to take certain street lights and to plaintiff be adjudged entitled to the said warpay therefor the sum of about $500 per rants whether delivered to Derr or which are month; and that the said city had issued still held by the treasurer of the said city." warrants for each of the months during the The material part of the contract to which life of said contract up to the 1st day of reference is made in the petition is as folJune, 1904, in payment of the obligations lows: "This memorandum of agreement made incurred thereunder. The petition then con- and entered into by and between the Shawtinues as follows: "That six of the said nee Light & Power Company, a corporation, warrants, aggregating the sum of $2,500 to party of the first part, and Chas. T. Derr, wit, warrants issued June 1, 1904, July 1, Jno. A. Derr, and Frank A. Derr, copartners, 1904, August 1, 1904, September 1, 1904, Ocas the Oklahoma Paving & Construction Comtober 1, 1904, November 2, 1904, were 1s- pany, parties of the second part, witnesseth sued by the said city upon the said dates that, whereas, the Shawnee Light & Power and delivered by the said city clerk, C. J. Company has a contract with the city of Becker, to the Oklahoma Paving & Con- Shawnee to furnish said city with electric struction Company, one of the defendants light and has an income from said city from herein, and that the said warrants were de- said source, in excess of five hundred livered to the said Oklahoma Paving & Con- ($500.00) dollars per month; and whereas, struction Company under a pretended con- the said parties of the second part, having tract executed by the Shawnee Light & Pow- entered into a contract with the Shawnee er Company and the said Oklahoma Paving Traction Co., to put down paving and pave & Construction Company, by the terms and between the rails and a distance of two (2) conditions of which the said Shawnee Light feet outside of each rail in the same form & Power Company contracted and agreed to and manner that the streets of Shawnee are pay certain indebtedness owing by the Shaw-now paved by the said parties of the second nee Traction Company, another and separate * and whereas, the said Shawcorporation, to the Oklahoma Paving & Con- nee Light & Power Co., party of the first struction Company for paving certain por- part hereto, is interested in procuring same tions of Main street, between the rails and to be done by the said parties of the second for two feet on either side of the rails of part hereto, and for the said Shawnee Tracthe said Shawnee Traction Company's tion Co.: Therefore, it is hereby agreed tracks." Thereafter, and on the 19th day of by and on the part of the Shawnee Light & March, 1906, the plaintiff, after having first Power Co. that the said parties of the secreceived permission of the court, filed an ond part hereto shall receive from the city amendment to his said petition, as follows: of Shawnee each month, the sum of five hun"That, in addition to the allegations of his dred ($500.00) dollars, together with interest original petition, he states that the said J. J. thereon at the rate of 7% per annum from Henry, who executed the pretended contract the tenth day of July, 1904, which sum shall for the Shawnee Light & Power Company, be paid by said city to said parties of the which said contract is exhibited to the orig- second part or to their order, before any inal petition, was at the time he attempted amount is paid to the said Shawnee Light & to execute the same the president and treas- Power Co. * The mayor and the city urer of the Shawnee Light & Power Com- council are hereby directed to issue a warpany, and was also president and treasurer rant to the said parties of the second part, of the Shawnee Traction Company, and that or to their order for the said payments as the said Derr well knew when the same hereinbefore provided, and deduct the same was pretended to have been executed that from the amount due by the said city of the said Henry was president and treasurer Shawnee to the said Shawnee Light & Power of both of the said companies, and that he Company." A demurrer was filed to the petihad no authority to execute contracts for the tion by the Oklahoma Paving & Construction Shawnee Traction Company except by direc- Company, and, on being overruled, an answer tion of its board of directors, and had no was filed in which was admitted the allegapower or authority to execute the contract tions set up in plaintiff's petition, except in question or any contract which was for that portion which reads as follows: "But the benefit of the traction company without that the said contract was ultra vires and the board of directors of the said Shawnee void, and the said Shawnee Light & Power Light & Power Company authorizing the Company had no authority to enter into said same, and the said Derr, defendant, and all contract, and the said Oklahoma Paving & of the other defendants, knowing full well Construction Company well knew that the that the said Henry was president of both of said contract was ultra vires and void, and the said corporations, well knew that he was beyond the powers of the said Shawnee Light not authorized to execute the said contract & Power Company, and there was no confor Shawnee Light & Power Company. Where- sideration for the said contract; the said fore, in addition to the prayer in the original Shawnee Light & Power Company not owpetition, the plaintiff prays that the said ing the said Oklahoma Paving & Construc |