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been no conviction of defendant in Arkansas; bence no reversible error can be predicated pon the cross-examination aforesaid. Neither was there any error in giving the instruction No. 6. We do not think it can fairly be considered as referring to a conviction in any other criminal offense than the misdemeanor which had occurred some 25 years previously in St. Louis, and the court carefully and properly restricted the evidence of the conviction of a misdemeanor to the one purpose of affecting the credibility of the defendant as a witness, and forbade the jury considering it upon the question of his guilt of the crime for which he was being tried. This instruction was manifestly given as a protection to the defendant, and it could not have operated otherwise.

3. Objection is also made to the fourth instruction. That instruction is in these words: "You are instructed that it is not necessary to prove the defendant is guilty by the testimony of the witnesses who may have seen the offense committed. Guilt may be shown by proof of the facts and circumstances from which it may be reasonable and satisfactorily inferred. In determining whether the defendant is guilty or not, you should take into consideration all the facts and circumstances in evidence, the acts and conduct of the defendant, and his motive, if any, for doing or not doing the act charged as shown by the evidence; and if you find from all the facts and circumstances in evidence that there is no other reasonable conclusion than that he is guilty. you will so find; but to convict the defendant on circumstantial evidence alone the circumstances proven must be consistent with one another, and must, taken together, point so conclusively to his guilt as to exclude every reasonable hypothesis of his innocence." That part of the instruction complained of is as follows: "You are instructed that it is not necessary to prove the defendant guilty by the testimony of the witnesses who may have seen the offense committed." The argument of the defendant is that this is an implication that eyewitnesses saw the defendant commit the crime, but in this case it was not necessary to bring them into court. We can but regard this as a strained and hypercritical criticism of the instruction. If the article "the" before the word "witness" had been omitted, there could not possibly be any valid objection to the instruction. It would then have told the jury that it is not necessary to produce direct and positive evidence to convict one charged with crime, but that it is sufficient if facts and circumstances are proven from which no other reasonable conclusion than the guilt of the accused can be reached. The argument of the defendant against this instruction would be just as forcible if the word "the" had been omitted, because the inference that there were eyewitnesses, according to defendant's construction of the instruction, would still remain. In this case there were no eye

witnesses, and nothing to induce the jury to believe there were. Read as a whole, and considered altogether, the instruction conveyed simply the idea that it was not necessary, in order to convict, that his guilt should be established by direct evidence, but may be shown by proof of facts and circumstances from which no other reasonable conclusion than his guilt could be reached. The other instructions in the case, together with this fourth instruction, fully and fairly covered all the propositions of law arising in the case, and left nothing more to be desired.

We have gone carefully through the record in view of the serious charge against the defendant, and our conclusion is that he has had a fair and impartial trial, and that the sentence which the law pronounced must be executed; and it is so ordered.

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VALLIANT, J. For the following reasons I am unable to concur in opinion of the court in this case:

The act of 1874 (Laws 1874, p. 327) looks to the appointment and maintenance of a permanent police force for Kansas City. It prescribes the numerical standard of the force, or, rather, a rule by which the numerical strength shall be measured. That numerical standard once established, it is the duty of the board of police commissioners to keep the force up to it until the same is reduced according to law. The power to increase the number is given to the common council on the recommendation of the board of police commissioners, and in the same sentence the power is given the commissioners to reduce the force. The fixing of the numerical standard in the first place, its increase and its reduction, are all treated by the Legislature in one breath, as it were, and are all intended to apply to the one object—that is, the general standard of the force and they have no relation to the appointment or the discharging of individuals. In the exercise of the authority conferred in that sentence, the governmental agency to whom it is intrusted would say: The police force for Kansas City shall consist of so many officers and so many men; or it would say the force shall be increased to so many men, or that it be reduced to such a number. In the exercise of the power conferred in that sentence the government agency appoints no one; neither does it discharge any one. The power there conferred is rather in

the nature of legislative than executive function. It prescribes the standard of strength, but does not appoint to the office.

The language of the act is: "Sec. 6. To enable said board to perform the duties imposed upon them, they are hereby authorized and required, as speedily as may be, to appoint, enroll and employ a permanent police force for the City of Kansas, which they shall equip and arm as they may judge necessary." So far the act confers only power to appoint, equip, etc., the duty there prescribed is purely of administrative character, and it does not leave it to the commissioners to say of what number the police force shall consist, but the number or standard of measure is elsewhere in the act fixed, and until it is altered the police commissioners cannot lawfully refuse to appoint that number.

Then follows a new sentence: "The number of policemen to be so appointed and employed, exclusive of officers, shall, at the first organization, be not exceeding the number now employed by the corporate authorities of the City of Kansas; but the common council of said city shall have the power to increase the police force at any time to any number recommended by the board of police commissioners; and said commissioners may reduce the present or any future number of police, as experience may warrant." In that sentence the power is given to the common council, on recommendation of the board, to increase, and to the board to reduce, the number of the force. The power committed to the council is of the same nature as that committed to the board-the one to increase, the other to reduce. Surely it was not intended to give the council the power to increase by adding certain individuals of its selection to the force; no more can it be said that it was intended to give the board power to reduce by discharging individuals. It meant that the council by ordinance should have the power to say that hereafter the police force of the city shall contain so many men, and in like manner the board shall by resolution say that hereafter the force shall consist of only so many men. The power conferred by the act is of the same nature in each case, and is to be exer cised in the same or similar manner.

Further down in the same section is this: "The policemen shall be employed to serve for three years, and be subject to removal only for the cause after a hearing by the board, who are hereby invested with exclusive jurisdiction in the premises." That sentence is emphatic and its object cannot be mistaken. It is designed to confer an important and valuable right on the policemen, The right there conferred is not visionary, but very substantial. It means that the policeman does not hold his office at the mere will of the commissioners, and it means that they shall not discharge him except for cause, after due trial. But if the commis

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sioners, under the name of reducing the force, have the power to discharge an individual, of what value is the clause in the statute saying that a policeman shalı not be discharged except for cause after trial? If the construction given the clause conferring the power to reduce the force by the majority opinion is correct, then the policeman is absolutely at the mercy of the board of commissioners, and the clause essaying to give him a right to serve his term unless upon charges and conviction is set at naught.

It is a rule that a statute should be so construed as to give effect to all its parts if possible. If we construe the clause empowering the board of commissioners to reduce the force to mean that it may by resolution or other proper form say, in effect, that hereafter the police force shall consist of only so many men in the same way that the common council may say that it shall be increased to so many men, then it is in perfect harmony with the clause conferring on the policeman the right to remain for his term, unless dismissed for cause after due trial.

In my opinion the relators were unlawfully discharged, and they are entitled to the relief prayed.

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1. CIVIL CONTEMPT-RIGHT OF APPEAL.

Under Rev. St. 1899, § 2696, declaring that in all cases of final judgment rendered upon any indictment an appeal to the Supreme Court shall be allowed the defendant if applied for during the term at which such judgment is rendered, a complaint informing the court of the violation of an injunction is not an information or indictment, and a judgment rendered thereon is not appealable under the section cited. 2. SAME-FINAL JUDGMENT.

Certain ticket brokers were enjoined from dealing in the return-trip part of a certain class of railroad tickets. They violated the injunction by selling some of such tickets, and complainants in the injunction suit instituted proceedings to have them punished for contempt. Rev. Št. 1899, § 806, provides that any party aggrieved by any judgment in any civil cause from which an appeal is not prohibited by the Constitution may appeal from any final judgment in the case. Section 1616 provides that every court of record shall have power to punish as for a criminal contempt willful disobedience of any process or order. Section 1617 limits the punishment which may be inflicted for contempt, and the following section provides that contempts committed in the presence of the court may be punished summarily, but in other cases the party charged shall be notified of the accusation, and have a reasonable time to make his defense. Held, that the order adjudging the brokers guilty of contempt was a final judgment in a civil cause, appealable under section 806.

In Banc. Three separate proceedings in prohibition by the state on the relation of the Chicago, Burlington & Quincy Railroad Company, the Chicago & Alton Railway Com

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pany, and the Chicago, Burlington & Quincy Railroad Company against Charles C. Bland and others, as the judges of the St. Louis Court of Appeals, to prevent respondents from proceeding further with appeals to the court mentioned from orders adjudging Herman Schubach and another guilty of contempt in disobeying an injunction issued in a suit by relators against said Schubach and another. Preliminary rule discharged and writ denied.

Johnson, Allen & Richards and Martin L. Clardy, for relator Chicago, B. & Q. R. Co. Edward S. Robert, Douglas W. Robert and Martin L. Clardy, for relator Chicago & A. By. Co. Chester H. Krum, Edward J. O'Brien, and Henry W. Bond, for respondents. McKeighan, Wood & Watts and J. M. Dickinson, amici curiæ,

LAMM, J. In 1903 the Burlington Company commenced two proceedings in equity in the circuit court of St. Louis, one against Schubach and one against Gildersleeve, and the Alton Company also commenced in said court its proceeding in equity against Gildersleeve, the life of each bill being for injunctive relief restraining said Schubach and Gildersleeve from dealing in the return-trip part of a certain class of railroad tickets issued severally by relators to accommodate travel to and from the Louisiana Purchase Exposition at St. Louis, and sold at reduced price in consideration of being nontransferable. See a case on all fours, Schubach v. McDonald, 179 Mo. 163, 78 S. W. 1020, 65 L. R. A. 136, 101 Am. St. Rep. 452, where the averments and a copy of a similar bill are set forth with particularity. Such proceedings were had in each of said causes as resulted in temporary restraining orders against said defendants severally. While said temperary injunctions were in force, and after they had been served upon defendants, plaintiffs in said suits, relators here, in their own several names and through their own counsel filed in said circuit court during its June term, 1904, verified complaints in said causes, causing the court to be informed that said Gildersleeve and Schubach, after injunction bonds filed and approved, and after service of the preliminary restraining orders, violated the terms thereof by carrying on the business of ticket brokerage by buying, selling, and dealing in World's Fair mileage, excursion and passenger tickets and return coupons thereof, and commutation passenger tickets or return coupons thereof, which were and had been issued by the plaintiffs severally for passage over their respective railroads, which said tickets were sold below regular schedule rates and under contracts with the original purchasers entered upon such tickets and signed by the original purchasers making them nontransferable and void in the hands of any other person than such original purchasers. Said complaints also caused the

court to be informed of divers and sundry specific instances of violations of said orders in names, tickets, dates, and amounts, and prayed the court to make an order requiring said Schubach and Gildersleeve to appear and show cause why all and every of them should not be punished for contempt of court in violating said injunction. Thereupon Gildersleeve and Schubach were ordered cited to appear and show cause, and they appeared and filed returns through counsel. Thereupon the matter of said complaints, citations, and returns came on for hearing, and thereafter the court entered its judgments, finding and adjudging Schubach and Gildersleeve guilty of contempt and adjudging Gildersleeve in one case to be committed to and be imprisoned in the common jail in the city of St. Louis for a period of 30 days from 2 o'clock p. m. on the 2d day of August, 1904, until 12 o'clock p. m. on the 1st day of September, 1904, or until he be discharged according to law; and in the other case adjudging him to pay to the sheriff of the city of St. Louis for the use of the public schools the sum of $300, together with the costs incurred in the proceeding, before the 1st day of October, 1904, and, if said fine and costs be not paid by the 1st day of October, 1904, that the body of said Gildersleeve be attached by the said sheriff, and that said Gildersleeve be committed to and imprisoned in the common jail in the city of St. Louis for a period of 30 days from the 1st day of October, 1904, or until he shall be discharged according to law; and in the other case adjudging Schubach to pay a fine of $250 and the costs of the proceeding, to be paid to the clerk of said court forthwith to the use of the public schools, and, if said fine is not paid forthwith, then the said Schubach to be committed to and imprisoned in the common jail in the city of St. Louis until such fine is paid; and further adjudging said Schubach to be committed to and imprisoned in the common jail in the city of St. Louis for a period of 10 days, or until he shall be discharged according to law -execution being stayed until October 2d. Afterwards proceedings were had in all said contempt cases, whereby the Honorable Charles C. Bland, one of respondents, as a judge of the St. Louis Court of Appeals, granted appeals to the St. Louis Court of Appeals, approved recognizances tendered, and stayed all proceedings pending said appeals. Thereupon relators filed here their three several suggestions for prohibition in substantially common form, setting forth the pendency of the injunction proceedings in the St. Louis circuit court, the issue of the temporary restraining orders, the filing and approval of the injunction bonds, the service of the restraining orders, the complaints causing the court to be informed of the violation of said orders, the citations and rules to show cause, the returns to said rules, the hearings had thereon in said circuit court, the several judgments finding said Schubach and Gilder

sleeve contemners and adjudging fines and imprisonments against them, the granting of appeals by Judge Bland, and then (selecting one as a sample of all) the petition proceeds as follows, in part: "Said petitioner further states that the proceedings instituted as aforesaid by the Honorable Charles C. Bland, Richard L. Goode, and Albert D. Nortoni, judges as aforesaid, of the St. Louis Court of Appeals, are a direct encroachment upon the authority and jurisdiction of the circuit court of the city of St. Louis, in that no appeal was allowable from any order in contempt thereof, or committing any person for contempt of court in disobeying an order of said St. Louis circuit court, and that under the Constitution and the laws it is made the care of this court that the said Hon. Charles C. Bland, Hon. Richard L. Goode, and Hon. Albert D. Nortoni, judges of the St. Louis Court of Appeals aforesaid, and the said St. Louis Court of Appeals, keep within the bounds and limits of the jurisdiction prescribed to them by the laws of the state; and that the St. Louis Court of Appeals has no jurisdiction in said matter, for the reason that there is no law providing for an appeal from a judgment for contempt." On the filing of said petitions for prohibition and an exhibition here of exemplifications of the records of the Circuit Court and of Judge Bland's orders granting appeals, this court issued a preliminary rule to show cause in each case. Thereafter respondents filed their returns to said rules in common form as follows: "Now come Charles C. Bland, Richard L. Goode, and Albert D. Nortoni, and, making return to the writ of prohibition herein, show unto the court here that in the matter concerning which they have been cited to appear they proceeded with and were proceeding in the proper exercise of the appellate jurisdiction in such matters conferred upon them by law, and that there is no valid reason in law why the rule heretofore made upon them should be made absolute. Wherefore they pray that the said rule may be discharged." The causes were heard together in this court, were argued orally by distinguished counsel with candor and ability, and submitted on briefs, in which the only question presented is whether a judgment of a superior court of record, fining and imprisoning a defendant for violating a temporary injunction, is appealable.

If such judgment be not appealable, then the attempt of the St. Louis Court of Appeals to draw to itself jurisdiction is in excess of its power, and the writ will lie. If, per contra, such judgment be appealable, then the St. Louis Court of Appeals has jurisdiction, and is proceeding within the constitutional orbit of its power, and the writ will not lie. This court, ex gratia, permitted the Illinois Central Railroad Company, through its counsel, McKeighan, Wood & Watts, to appear, file a brief, and argue orally, amici curiæ.

It may simplify and aid the consideration

of the case to state the several contentions of counsel thus: By relators' counsel proper it is contended that not only is there no statute allowing a contemner an appeal from a judgment finding him guilty of contempt, but that, if such statute exist, it is unconstitutional, in that by submitting such matter to review in another court it would impinge upon the inherent common-law power of a superior court of record to punish for contempt. By one of the counsel appearing amicus curiæ it is conceded that a statute allowing an appeal in such case would be constitutional, but it is contended that no such statute exists in this state. By respondents' counsel it is conceded that the right to an appeal, if any, must be spelled out in the statute; and it is contended that when such right is so located no constitutional or inherent right in a lower court is interfered with in giving it force; and, furthermore, respondents' counsel put their finger on statute law, which they insist grants the right to appeal.

Contempts have been divided into civil and criminal, into direct and constructive, into contempts which affect alone the dignity of the court and those which affect the beneficial rights of a party litigant, and there is a class of contempts in which both elements appear. There are many contempts which are punishable as crimes malum in se, and others malum prohibitum, and which are of such a dual sort as to subject to punishment by distinctively criminal process as well as by contempt proceedings. In many cases contempts are designated as "criminal" where an attempt at classification may not have been in mind, but the court had in view, by the use of the word, merely an epithet which might fill a wholesome office as a deterrent. An examination of the authorities will show that the line of demarcation between the different classes of contempts is often shadowy, and does not run true, and that the learning on the question abounds with fine as well as superfine distinctions. It will be found, further, that the earlier decisions in some of the states relating to the right of review in an appellate court in contempt cases have been somewhat modified by a judicial inclination towards discovering reasons in favor of review in constructive or indirect contempts. It will be found, too, that the earlier doctrine of the Supreme Court of the United States, denying the right of appeal or writ of error in contempt cases, has been modified by express statute, and this modification has been recognized, and the statutes given effect, in the later decisions of that tribunal. It will be found, also, that where no statutory right of appeal exists or writ of error lies, appellate courts have been astute and diligent in granting relief by inspecting records under writs of certiorari or habeas corpus. See, for instance, Ex parte O'Brien, 127 Mo. 477, 30 S. W. 158; State v. Leftwich, 41 Minn. 42, 42 N. W. 598; In re Watts & Sachs, 190

T. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933. And, lastly, it will be found that the right of appeal has been granted in many states of this Union in indirect contempt cases, and that Do respectable authority exists expressly declaring such statutes unconstitutional, inoperative, or void, although the point has been many times pressed by ripe counsel before great judges.

Authorities covering the whole range of the common and statute law on the subject of contempts have been industriously collated by counsel, and may be found cited in their briefs. In may be possible the last word has not been spoken, but it would not advance any interest of the science of jurisprudence to now assume the bootless task of undertaking to distinguish the cases, to discriminate between them, or strive to harmonize them, when possible, or point out their discordant notes. It is settled law that every constitutional court of common-law jurisdiction has the inherent power to punish for contempt, and cannot be shorn of such power by statute. It is settled law that contempt cases are sui generis, that one court may not try a case of contempt against another, that contempt proceedings are summary, that there is no constitutional right to trial by jury, and that no change of venue will lie. But the right to have a review of a conviction for indirect contempt, committed by disobeying an order made in a pending civil case and punished in a lower court, by appeal or writ of error, is a different proposition, and one by no means new in Missouri. In considering it, it may be assumed as elementary that the right of appeal in civil cases did not exist at common law, and is a mere creature of statute; and this is true of the right of appeal in criminal cases as well. State v. Thayer, 158 Mo. 36, 58 S. W. 12. The statute providing for appeals in criminal cases (section 2696, Rev. St. 1899) reads: "In all cases of final judgment rendered upon any indictment, an appeal to the Supreme Court shall be allowed the defendant, if applied for during the term at which such judgment is rendered." It will be seen at a glance that an appealable judgment in a criminal case is limited to a final one, and to one rendered upon an "indictment." This section was held not to allow an appeal from a final conviction on an information. State v. Brown, 153 Mo. 578, 55 S. W. 76. Subsequently the latter case was overruled in banc (State v. Thayer, supra), in which it was held that the above section, read with other sections of the Code of Criminal Procedure, should be construed as allowing an appeal from a conviction on an information. Now, in repeated adjudications we have defined the word "information" as used in our Constitution and laws. See, for example, State V. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115, in which we said: "The terms 'information' and 'indictment,' as used in the Constitution, are to be understood in their com

mon-law sense. Ex parte Slater, 72 Mo. 102; State v. Kelm, 79 Mo. 515. In the Kelm Case it was held that the term 'information,' as used in article 2 of section 12 of the state Constitution of 1875, was to be understood in its common-law sense; that is, a criminal charge which at common law is presented by the Attorney General, or, if that office is vacant, then by the Solicitor General of England, and in this state by the prosecuting attorneys of the respective counties, who exercise the same powers as are exercised by the Attorney General or Solicitor General of England-that is, the power to present informations under their official oaths." It is obvious that by no sort of allowable legal construction can the complaints in these cases informing the court of the violations of its injunctions (loosely termed "informations," and colloquially spoken of as such) be read to mean "informations" or "indictments" under the foregoing definition and the precision satisfactory to the legal mind, and it follows that, if the proceedings against Gildersleeve and Schubach are to be considered criminal cases in the technical sense, then, whatever their remedy, it cannot be by appeal.

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But this view falls short of disposing of the matter. Turning to the statute upon civil appeals (section 806, Rev. St. 1899), the pertinent part reads: "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to the court having appellate jurisdiction, from or from any final judgment in the case. And the question at once arises whether the character of the judgments against Gildersleeve and Schubach will permit them to be brought within the letter and spirit of said section. If they cannot be, it unerringly results that no right of appeal exists. The subject of contempts is recurred to in more places than one in our statutes, and provisions relating to the same are practically as old as the statutes themselves. In the act regulating the granting of injunctions, passed in February, 1825 (Rev. Laws Mo. 1825, p. 441, § 6). the following appeared: "Sec. 6. Be it further enacted, that if any person, against whom a writ of injunction shall be issued, shall, after the service thereof, be guilty of a disobedience to and a breach of the said injunction, it shall be lawful for the judge granting the same, or if the same were granted in open court, then for any judge of that court, in vacation, to issue an attachment against the said person for a contempt; and upon his being brought before the said judge, unless he shall disprove or purge the said contempt, the said judge may, in his discretion, commit him to gaol until the sitting of the court in which the said injunction is pending, or take bail for his appearance in the said court at the next term thereof, to answer for the said contempt, and

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