Metropolitan Life Ins. Co. v. Underwood. by the robbers, being made immediately after the injury, while defendant was still lying on the track and calling for help and for a physician, is part of the res gestae, and as such is competent evidence of the truth of the facts there stated by defendant, independent of the testimony of defendant in his deposition. Other suggestions have been made by appellant, which we have considered, but need not be referred to specifically. Suffice it to say, we find all the circumstances in the record may consist with the integrity of the defendant's account respecting his injury. We think the truth of the case is with him. X. It is most vigorously argued that the presumption is against the defendant, because he failed to go upon the witness stand and testify on his own behalf at the trial of the case. But, as we have already seen, his deposition was taken and read in evidence by the plaintiff. It covered over three hundred pages of the record, and in it the defendant was fully interrogated, and fully testified, as to all the material facts and circumstances bearing on the case. There was, therefore, no reason for his going upon the witness stand and testifying again. Under such circumstances, the rule, that there is a presumption against a party charged with fraud who fails to testify and defend himself against such charge, does not apply, because he has not failed to so testify and defend himself. His deposition when read by his adversary is as efficacious for his defense as if he had gone upon the witness stand and testified on his own behalf to the matters contained therein. He is not required to testify twice to prevent a presumption arising against him from failing to testify once. [Lamport v. Assur. Co., 272 Mo. 19, 1. c. 39; Clapp v. Kenley, 277 Mo. 391-2.1 Being satisfied of the truth of the defendant's testimony as to the manner of his injury, we not only hold, that plaintiff has failed to make out a case, under its petition, but that defendant has sustained the allegations of his cross-bill. State ex inf. Hales v. Walker. The judgment below is, therefore, in all things affirmed. PER CURIAM:-The foregoing opinion by SMALL, C., is adopted as the opinion of Court in Banc. All of the judges concur, except Woodson, C. J., who dissents. THE STATE ex inf. JOHN R. HALES, Prosecuting Attorney, ex rel. E. D. WALKER et al., Appellants, v. H. M. HARPER et al. In Banc, November 20, 1923. 1. SPECIAL ROAD DISTRICT: Organization: Notice to Non-Res ident Landowners: Constitutional Statute. The statutes authorizing the creation of a special road district in a county under township organization (Secs. 10937 to 10960, R. S. 1919) are not unconstitutional because they do not require notice of the proceedings to incorporate the district to be given to non-resident owners of land to be included in the district. Although the proceeding is an exercise of judicial power, it is not a denial of due process of law to include within the district at the time of its incorporation the lands of persons who reside outside the district, without giving them notice, although the statute requires notice to landowners resident within the district. 3. : : Legislative Creation. Special road districts are public corporations, and the Legislature can create them, as it can other municipal or public corporations, in such manner as it deems expedient or necessary, and grant them powers of taxation which do not exceed the limits prescribed by the Comstitution. No notice of any kind of an application to the county court for the incorporation of a special road district is required by the Constitution, and therefore only such notice must be given as is prescribed by the statutes, and they do not require that notice be given to persons owning land within the district who reside outside of its proposed territorial boundaries. : -: Signing of Petition. A petition for the incorporation of a special road district is not defective simply because the petitioners signed their names in the body of the petition, instead of at its end. The important thing is whether each signer intended to become a party to it. Besides, the legislative act providing for 4. 5. State ex inf. Hales v. Walker. the creation of such a district was intended to promote a great and beneficent public good, and should be liberally construed to the end that the purpose be not thwarted by mere irregularities in the form of things. Notice: Containing Names of Three Persons. Where the statute (Sec. 10938, R. S. 1919) requires that the notices of the filing of a petition for the incorporation of a special road district "shall contain the names of at least three signers of said petition," notices containing the correct names of two petitioners, and the correct surname and the wrongful given name of one other, the date of the filing of the petition, the boundaries of the proposed district and other details required by the statute, are substantial compliance with the statute, and are sufficient to uphold a judgment incorporating the district, because it is apparent that no one could be misled by such a clerical error. -: Changing Boundaries: Amended Petition. Where remonstrances are filed to the incorporation of a special road dis trict, the county court may change the boundaries and exclude certain lands included in the original petition, without the filing of an amended petition. It is only when no remonstrances are filed (Sec. 10938, R. S. 1919) that an amended petition must be filed before the county court can make an order incorporating the district with boundaries different from those stated in the original petition. [Distinguishing State ex inf. v. Colbert, 273 Mo. 205-8.] Appeal from Bates Circuit Court.-Hon. C. A. Calvird, Judge. AFFIRMED. John R. Hales, W. B. Dawson and Silvers & Silvers for appellants. (1) The law under which the alleged district was formed is unconstitutional, being contrary to Section 30, Article 2, providing that no person shall be deprived of property without due process of law; in this, that said statute does require persons owning property or lands within the proposed boundaries of the district, but who reside outside such boundaries, to be notified of the proceedings to incorporate such district. Notice is required to resident owners of land only. Sec. 10938, R. S. 1919; State ex inf. Hales v. Walker. State ex inf. v. Colbert, 273 Mo. 198. The proceeding to incorporate a special road district is a judicial proceeding, and, therefore, requires notice to all parties in interest. State ex inf. v. Colbert, 273 Mo. 198; Kansas City v. Duncan, 135 Mo. 584; Barber Asp. Pav. Co. v. Ridge, 169 Mo. 376. (2) As a first step to the acquisition of jurisdiction by a county court to incorporate a special road district, there must be filed a petition signed by the required number of landowners residing within the proposed district. In the plain, "ordinary and usual sense," a signing of a document is accomplished by placing one's name at the foot or bottom of the instrument. Anderson's Dict. of Law; See "Signature," Bouvier's Law Dict. (Raule's 3rd Rev.); Catlett v. Catlett, 55 Mo. 330; Walton v. Kendrick, 122 Mo. 522. (3) Insertion of the names of two signers of the alleged petition in the notice given of application to incorporate a special road district, instead of three, does not conform to the statute as to notice required of the filing of such petition and time of hearing thereon. In cases where constructive service is provided for by statute, such statute must be strictly observed and notice served in the precise manner and form prescribed by such statute. State ex rel. v. Myers, 126 Mo. App. 544; Priest v. Capitain, 236 Mo. 446; Ohlmann v. Saw Mill Co., 222 Mo. 67; Wright v. Hink, 193 Mo. 130; Bick v. Maupin, 146 Mo. App. 596; Gardner v. Robertson, 208 Mo. 610. (4) When the county court changed the boundary lines of the proposed special road district and attempted to incorporate a district with boundary lines materially different from those in the petition and notice, without an amended petition or further notice, said court lost jurisdiction over petitioners and all concerned, and such order as was entered was void. Sec. 10938, R. S. 1919; State ex inf. v. Colbert, 273 Mo. 198; State ex inf. v. Smith, 271 Mo. 176; School Dist. v. School Dist., 94 Mo. 618. State ex inf. Hales v. Walker. DeArmond & Maxey for respondents. (1) The law under which the district was formed is not unconstitutional, nor contrary to Section 30, Article 2, in that persons owning property inside the district but residing outside are not required to be notified of proceedings to form such road district. In re Twp. Organization, 55 Mo. 295; Harris v. Bond Company, 244 Mo. 664; St. Louis v. Allen, 13 Mo. 400; Taylor v. Carondelet, 22 Mo. 110; Coyne v. Rugh, 225 S. W. 985; Bank v. Clark, 252 Mo. 20. (2) The proceeding to incorporate a special road district is a legislative act, which clothes county courts with certain duties in carrying out the same. Cases supra; State ex rel. Dome v. Wilcox, 45 Mo. 464; Embree v. Road District, 257 Mo. 593. (3) As the first step in organization of this road district a petition properly signed was duly filed. 2 Cyc. 27, 207; 7 Cyc. 614; State ex rel. v. Andrae, 216 Mo. 637. (4) given was sufficient compliance with the law. v. Westport, 116 Mo. 582; State ex rel. v. Mo. 637; State ex rel. v. Job, 205 Mo. 1; v. Speer, 223 S. W. 661; Atkeson v. Lay, (5) A remonstrance having been filed, the county court was by law given power to "make any changes in the boundaries of such proposed district as public good may require and make necessary." R. S. 1919, sec. 10938. The notice State ex rel. Andrae, 216 State ex rel. 115 Mo. 538. SMALL, C.-Quo warranto to test the liability of the corporate existence and powers of the Lone Oak Special Road District of Bates County. The relators or plaintiffs are taxpayers and also constitute the township board of Osage Township, which township is a part of said road district. The defendants are the commissioners of said road district. The answer to the information sets up the organization of said road district by a judgment of the county court of said county on February 17, 1920, in compliance with Article 13, Chapter 98, Revised Statutes 1919, being an act of the Legislature approved May 22, 1919. The reply put the allegations of the answer in issue and pleaded further: First, that said act of the Legislature |