reasons applicable alike to all citizens of every race and color, it was held that the plaintiff was not required to prove his case beyond a reasonable doubt. (It is not reported in what kind of place the discrimination occurred except by the general reference to the words quoted from the statute, -"inns, restaurants, eating houses.")

In Young v. Pratt (1919) 11 Ohio App. 346, where the proprietor of a restaurant refused to serve the plaintiff, a colored man, a meal, because of his color, it was held that it was error to instruct the jury that the plaintiff could not recover a penalty if he went there solely for the purpose of attempting to obtain a refusal, solely and only for the purpose of stirring up litigation, nor unless he was a bona fide guest or a bona fide patron.

In Hubert v. Jose (N. Y.) infra, where it was claimed that there was no proof that the plaintiff was a "citizen," the court, while holding that the question was not properly raised, took the view that the statute was available to any person "within the jurisdiction of this state."

Some of the cases raise the question of the liability of the proprietor for the act of the waiter.

It was held in Bryan v. Adler (1897) 97 Wis. 124, 41 L.R.A. 658, 65 Am. St. Rep. 99, 72 N. W. 368, that the refusal of a waiter in an eating house to wait upon a colored patron because of his color rendered the eating-house keeper liable, although he did not aid or abet the waiter in such action, to at least the minimum penalty provided by a law entitling all persons "to the full and equal enjoyment of the accommodation, advantages, facilities and privileges of inns, restaurants, saloons, . . . eating houses, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law, and applicable alike to all persons of every race and color."

In Hubert v. Jose (1912) 148 App. Div. 718, 132 N. Y. Supp. 811, where the plaintiff recovered a penalty under the Civil Rights Law, in that the

defendant, the keeper of an eating house, refused to serve him upon the express ground that he was a colored man, and it was claimed that there was no proof of any personal refusal by the defendant, the court said, inter alia: "But there is no dispute that the defendant was the proprietor of the place, that the refusal was made by the defendant's servant, who was a waiter in his employ, about the defendant's business at the time, and who came forward to the plaintiff. . If the waiter was acting contrary to the defendant's orders, without his knowledge or consent, not merely in a colorable way, then the defendant would be entitled to show such disobedience as relevant upon the authority of the servant to refuse the entertainment."

But in Hart v. Hartford Lunch Co. (1913) 81 Misc. 237, 142 N. Y. Supp. 515, an action brought to recover a penalty prescribed by the Civil Rights Law for refusal to serve a meal to the plaintiff, a colored man, because of his color, the actual refusal being by a waiter employed by defendant, the court reversed a judgment for the plaintiff on the ground of the refusal by the trial judge to charge two requests of the defendant, to the effect that (1) if the waiter was instructed to serve colored persons, and not to discriminate between white and colored persons, then a mistake or even a violation of the instructions would create no liability on the defendant's part; and (2) the defendant was and is not required to do more than instruct the waiter in good faith to afford all persons alike free and equal accommodations and full enjoyment of all the facilities and privileges afforded by it to white persons as well as negroes; and if it did this in good faith, and the jury finds it did so, the verdict must be for the defendant.

See also Beckett v. Pfaeffle (1916) 157 N. Y. Supp. 247, infra.

In Noble v. Higgins (1916) 95 Misc. 328, 158 N. Y. Supp. 867, where there was a refusal to serve the plain- . tiff at the defendant's restaurant, and it did not appear that the refusal

was on account of race, creed, or color, it was held that the plaintiff could not recover under the Civil Rights Law.

It was held in Cohn v. Goldgraben (1918) 103 Misc. 500, 170 N. Y. Supp. 407, where the plaintiff, a Hebrew, went to defendant's restaurant with a colored man, for the purpose of getting a meal, and service was refused them, as it was "against the rules of the house to serve a mixed party," it was held that the refusal to serve mixed parties at the same table when there was a willingness to serve the same people at separate tables was not a violation of the statute prohibiting the denial to any person of accommodations, etc., "on account of race, creed, or color."

In Beckett v. Pfaeffle (1916) 157 N. Y. Supp. 247, where the actions were to recover for a violation of the Civil Rights Law, it appears that the plaintiffs went into defendant's restaurant, ordered tea and cake, agreed to pay the price therefor, and, after waiting some twenty minutes without being served, left the restaurant. No reason was advanced by them why they were not served except their own inference, drawn from the fact that they were colored persons, and the alleged unreasonable lapse of time. The waitress explained the delay by the fact that it took some time to make the tea and attend to other matters. The appellate court reversed judgments for the plaintiffs on the ground that the evidence was not convincing

that there was a refusal to serve the plaintiffs, or that any discrimination was practised against them by reason of their color. The uncontradicted testimony was that the defendant, who was not present, instructed the waitress not to discriminate against any person.

Miscellaneous.

It may be noted that in Coger v. North West Union Packet Co. (1873) 37 Iowa, 145, the right of a colored passenger on a steamer to equal dining accommodations with other passengers was held secured under the Constitution and laws, and a rule of the carrier requiring colored passengers to take their meals in the pantry or on the guards of the boat was held unreasonable, and a recovery was allowed where a colored passenger was denied service at the tables in the cabin, and was forcibly removed therefrom.

It may be further noted that in Shelton v. Chicago, R. I. & P. R. Co. (1918) 139 Tenn. 378, L.R.A.1918D, 707, 201 S. W. 521, it was held that a statute requiring separate or partitioned coaches for the white and negro races does not prevent the adoption by the carrier of a rule for the serving of meals to the respective races at different times in one dining

car.

For what is a "restaurant," "café," or "victualing house," within the Sunday law, see the annotation in 9 A.L.R. 428. B. B. B.

Eminent domain

tinuance.

(— Mo. —, able to pay by reason of the institution of the proceeding to condemn, and set forth a schedule of the items thereof. The school district filed a general demurrer to the petition, which was sustained by the trial court. Appellant stood upon its petition, and, from the resultant judgment, the case is here on appeal. The petition is long, but need not be set forth; nor is extensive reference to the facts therein stated necessary, and only so much will be attempted as suffices to make plain the nature of the question to be decided, and the circumstances under which it

arose.

The appellant is an incorporated company and the original owner of a large number of lots constituting a platted addition to Kansas City, known as Meadow park addition, comprising a tract of about 80 acres. The addition was established with the purpose, the petition states, of making it "a comfortable, agreeable, and first-class residential district," and in conveyances made by the company to purchasers of lots certain restrictive covenants and agreements were imposed upon the grantees and their assigns as to the character of building and occupancy permitted. These covenants may be found fully set forth in the opinion of this court in Peters v. Buckner, 288 Mo. 618, 17 A.L.R. 543, 232 S. W. 1024.

On the 11th day of December, 1920, the school district instituted its suit in the circuit court to condemn blocks 3 and 4 of this addition, owned by appellant, as a site for a public schoolhouse. The suit was against appellant and against all other owners of lots in said addition, and the object sought was to condemn the site, and also to condemn the rights or easements of appellant and of all other owners of lots arising out of the aforesaid restrictive covenants. The condemnation proceeding advanced to the appointment by the circuit court of commissioners to assess the damages. Then and therein arose a controversy between appellant and other

lot owners on the one side, and the school district and the circuit court on the other, as to whether the rights or easements arising out of the aforesaid covenants should be considered in assessing damages. That phase of the controversy was settled in the original proceedings instituted in this court by appellant and others, in Peters v. Buckner, supra. Thereafter the condemnation proceedings were resumed in the circuit court. It is alleged in the petition that the commissioners, instructed as to the law in accordance with the ruling of this court in the Peters Case, had agreed among themselves as to the amount of damages to be allowed to each property owner, amounting in the aggregate to a much larger sum than was anticipated by the board of directors of the school district; that, pending preparation of the report thereof, certain members of said board of directors interfered, and procured other persons to do so, by protests, so that said commissioners were embarrassed, and made no report, and were discharged by the court; and thereafter, on December 21, 1921, said school district, through its counsel, without notice to appellant, dismissed said condemnation proceeding. The petition al leges that appellant has estimated and claimed the sum of $160,000 as the value of the property rights which were sought to be appropriated, and states, upon information and belief, that said commissioners, if not interfered with, would have reported and allowed to plaintiff the sum of $100,000 as damages. The total amount demanded by appellant in this action is made up of the sum of $8,000, for services of its attorneys in the condemnation proceeding and in prosecuting the mandamus suit in this court; $127.66, for traveling and other expenses incurred in the mandamus suit; $900, for the time and services of the executive officers of appellant company; and $35, for plats and blueprints used in the condemnation proceeding.

In the state of the pleadings the question here is whether the school district is liable to appellant at all. The school district of Kansas City is organized and exists under the provisions of article 15 of chapter 102, Rev. Stat. 1919, governing districts in cities of 75,000 and less than 100,000 inhabitants. Under § 11,403 of that article the school district is a body corporate, and may sue and be sued. The condemnation proceeding was undertaken under authority of § 11,428, wherein it is provided that if a desired site for school purposes is not purchasable through failure to agree on the price, or otherwise "the board may, in the name of the district, proceed to condemn the same in the same manner as provided for condemnation of right of way in article 2 of chapter 13 of the Revised Statutes."

Said article 2 contains the provisions governing condemnation proceedings by railroad, telegraph, and other corporations therein mentioned. There are numerous decisions of the appellate courts of this state, beginning at an early time, dealing with the right of corporations, after instituting such a proceeding, to discontinue the same, and with the question of their liability to the property owner who has incurred expense or loss by reason thereof. The liability of a railroad company under these conditions has been sustained in the following cases: North Missouri R. Co. v. Lackland, 25 Mo. 515; North Missouri R. Co. v. Reynal, 25 Mo. 534; Leisse v. St. Louis & I. M. R. Co. 2 Mo. App. 105, 5 Mo. App. 585, 72 Mo. 561; Sterrett v. Delmar Ave. & C. R. Co. 108 Mo. App. 650, 84 S. W. 150; Kirn v. Cape Girardeau & C. R. Co. 124 Mo. App. 271, 101 S. W. 673; St. Louis R. Co. v. Southern R. Co. 138 Mo. 591, 39 S. W. 471; Gibbons v. Missouri P. R. Co. 40 Mo. App. 146; St. Louis & G. R. Co. v. Cape Girardeau & T. B. Terminal R. Co. 126 Mo. App. 272, 102 S. W. 1042.

In the early cases mentioned, the right to discontinue the proceeding

was a question in issue. It was held that the right existed and in the later decisions the only question is as to whether terms may be imposed, or of liability beyond payment of costs. The right is recognized by the general condemnation statute. Rev. Stat. 1919, §§ 1793 and 1796. Under § 1793 it is provided that the costs, up to and including the filing and copying of the report of the commissioners, are to be paid by the applicant for condemnation, and costs of subsequent litigation are to be paid as the court in its discretion may deem just. This provision has reference to costs proper, those fixed by law, and has no reference to expenses incurred by the property owner for fees paid out to counsel, or other like expenses incurred in making his defense. St. Louis v. Meintz, 107 Mo. 611, 18 S. W. 30. In that case there was a provision of the charter of the city concerning costs, similar to the statute above mentioned. The case decides little more than that counsel fees are not costs in a condemnation proceeding.

There are cases wherein it was held or said that a municipal corporation, upon abandonment of a condemnation proceeding, became liable to the property owner for expenses so incurred. St. Joseph v. Hamilton, 43 Mo. 282; Owen v. Springfield, 83 Mo. App. 557. In St. Joseph v. Hamilton, the question was not involved. At page 288 of 43 Mo., it was said: "I have no doubt that the city may dismiss its proceedings at any time before final judgment in the circuit court; and then the only liability that would be incurred would be the expenses." But this was clearly outside of the issues before the court.

In Simpson v. Kansas City, 111 Mo. 237, 20 S. W. 38, the plaintiff sued the city for damages sustained and trouble and expense incurred in defending against a condemnation proceeding which the city abandoned. The gravamen of plaintiff's charge was that the proceeding was wrongfully and vexatiously prolonged to the interference of plain