STATE ex inf. SUTTON, Pros. Atty., v. FASSE.

(Supreme Court of Missouri, Division No. 1. June 15, 1905.)

1. SCHOOL DIRECTORS - OFFICES-APPELLATE JURISDICTION.

The office of school director is an office within Const. art. 6, § 12, conferring exclusive appellate jurisdiction on the Supreme Court in cases involving the title to an office under this state.

2. SAME-PAYMENT OF TAXES.

Under Rev. St. 1899, §§ 9759, 9760, declaring that a school director must be a resident taxpayer and a qualified voter of the district, and must have paid a state and county tax within one year next preceding his election, it is not required that a director be a resident taxpayer of the district in which he is elected; but, if he has paid state and county taxes in another county, from which he removed to the county in which he is elected, within a year preceding his election, he is eligible.

3. SAME-BILL OF EXCEPTIONS—REVERSAL.

Where defendant's title to the office of school director was contested in quo warranto proceedings on the ground that he had not paid taxes within a year prior to his election, as required by Rev. St. 1899, §§ 9759, 9760, and there was no contention that he was not a citizen of the United States or lacked any other qualification, a judgment in favor of defendant will not be reversed for failure of the bill of exceptions to show that defendant proved he was a citizen of the United States.

Appeal from Circuit Court, Lincoln County; E. M. Hughes, Judge.

Quo warranto by the state, on the information of Robert L. Sutton, as prosecuting attorney, against William Fasse, to try defendant's title to the office of school director. From a judgment in favor of defendant, relator appeals. Affirmed.

Robert L. Sutton, in pro. per.. Martin & Woolfolk, for respondent.

LAMM, J. Quo warranto, on the information of the prosecuting attorney of Lincoln county, ex officio, to try the title of Fasse to the office of school director of district 1, township 48, range 2, of Lincoln county. Judgment was rendered below for respondent, and relator appealed to the St. Louis

88 S.W.-1

Court of Appeals, where, on January 20, 1903, the judgment of the lower court was affirmed (71 S. W. 745); the St. Louis Court of Appeals speaking through Goode, J. A rehearing was granted on the suggestion that the St. Louis Court of Appeals had no jurisdiction, and that this court, under section 12, art. 6, of the state Constitution, has exclusive appellate jurisdiction "in cases involving title to an office under this state." The St. Louis Court of Appeals, under the authority of State ex rel. v. Hill, 152 Mo. 234, 53 S. W. 1062, rightly concluded that the office of school director was an office under this state, and that it was without jurisdiction, wherefore it granted a new hearing and transferred the cause here for our determination.

We have examined the bill of exceptions, the briefs of counsel, and the opinion handed down, and, being persuaded that the opinion of Goode, J., correctly construed the statutes involved and applied the law to the facts, so that ultimate justice was attained, we adopt it as our own. That opinion is as follows:

"This is a quo warranto proceeding instituted at the relation of Robert L. Sutton, prosecuting attorney of Lincoln county, against the respondent, to oust the latter from the office of member of the board of directors of a school district in Lincoln county, to which office the evidence shows Fasse was elected on the first Tuesday in April, 1901. The information charges the respondent with unlawfully usurping the office, exercising the powers and performing the duties thereof since said date. An answer was filed alleging the lawful election of Fasse on said date by his receiving 26 out of the 38 votes cast by the qualified voters of the district voting at the election, and stating also his qualifications for the office.

"For a person to be eligible to the office of director of a school district in this state, he must be a citizen of the United States, a resident taxpayer and a qualified voter of the district, and must have paid a state and county tax within one year next preceding

Rev.

his election. It is also prescribed that he must take and subscribe to the oath of office within four days after his election. St. 1899, §§ 9759, 9760. Respondent's title to the office was assailed on the ground that he was not a resident taxpayer in the district in which he was chosen, and in support of that position appellant points to the fact, testified to by Fasse himself, that he paid no tax in the year 1900. His omission to do so was likely due to the circumstance that he had moved into Lincoln county the preceding year, to wit, 1899, from Warren county, where he had been residing since the year 1894. Prévious to the last-mentioned year he had resided and paid taxes in Lincoln county and in the very school district in which he was elected director. Fasse was a man in humble circumstances, having only some household goods, a mule, a cow, and a one-half interest in a "saw outfit" and engine. The testimony, however, shows that he had continually paid taxes on the small property he owned for years in Lincoln and Warren counties, according to his residence; but in the year 1900 the assessor of Lincoln county overlooked him, presumably on account of his recent return there. That he had paid a state and county tax in Warren county within one year preceding his election was proved by a tax receipt dated March 22, 1901; the election, as stated, occurring on the first Tuesday in April, 1901. This proof, therefore, satisfied the statute as to that qualification.

"Appellant insists the requirement that a school director must be a resident taxpayer of the district means that he must have paid taxes for school purposes within the district. That contention cannot be adopted without enlarging the language of the statute and changing its intention. The meaning is that a person who is a qualified voter of the district and also a taxpayer is eligible. A qualified voter is defined in the same section to be one who, under the general laws of the state, would be allowed to vote in any county for state and county officers, and who has resided in the district 30 days preceding the school district meeting at which he offers to vote. Any person who possesses those qualifications is a qualified voter, as defined in section 9759 in regard to the qualifications of school director. If he is also a taxpayer (that is, a person owning property in the state subject to taxation and on which he regularly pays taxes), he is eligible to the office of school director, whether he has in fact paid a tax within such school district or not; otherwise, when a new district is formed, no one would be eligible to the office of school director, or, if territory is taken from one district and attached to another, no person residing in the newly attached part would be eligible to the office of school director in the district to which it is attach

ed until he first had paid a school tax therein. Provisions are made by the statutes for the formation of new districts, and also for changing the territory of districts. Rev. St. 1899, § 9742. The statutes bearing on the subject must not be so construed as to have unreasonable consequences, and the construction contended for by appellant, we think, would have. We are cited to the case of State ex rel. v. Rebenack, 135 Mo. 340, 36 S. W. 893, as holding that no one is eligible to hold office as a member of a school board unless he has paid a school tax in the district; but that decision dealt with a special statute referring to the city of St. Louis, which provided that no person should be eligible as a member of the school board of said city who had not 'paid a school tax therein for two consecutive years next preceding his election.' Rev. St. 1889, p. 2172, § 7. That language is different from the statute under consideration, and compelled the Supreme Court to decide as it did.

"Appellant further contends that Fasse did not show he was a citizen of the United States and that he qualified after the election by taking the oath of office. The state took this appeal and made up the bill of exceptions. We are satisfied the only contested issue below was whether Fasse was a taxpayer within the meaning of the statutes, and that no point was made about his lacking other qualifications. We are also convinced that he proved he was a citizen and that he was sworn into office in time, which proof was omitted from the bill of exceptions simply because there was no contention that he was disqualified by lack of citizenship or that he failed to take the official oath; in fact, as much was stated by the counsel for respondent in his brief, and also on argument in this court in the relator's presence, and was not denied by the latter. When the incumbent of an office is called on by the state to show his title thereto, the burden is on him to show it; but this rule of law is based on the assumption that public officers who are intrusted with the power to institute quo warranto proceedings will use their authority under a sense of official responsibility, as doubtless the relator did, and will not attempt to oust the incumbent of an office unless there is probable cause. would be wholly unjust to reverse and remand this case in order that the respondent may make proof of his citizenship and that he duly qualified as school director, in view of the undenied fact that proof of those facts was made, and that they were not controverted during the former trial. The judgment is therefore affirmed."

It

The judgment of the circuit court of Lincoln county, being for the right party, is, for the reasons formulated in the above opinion, accordingly in all things affirmed. All

concur.

MISSOURI PAC. RY. CO. v. KANSAS CITY & I. AIR LINE CO.

(Supreme Court of Missouri, Division No. 1. June 15, 1905.)

1. CONTRACTS-QUANTUM MERUIT.

In an action on a contract between railroad companies for the protection of a right of way, defendant company electing to stand on the contract cannot recover on a quantum meruit. 2. SAME-COUNTERCLAIM.

In an action on a contract for work and materials furnished in protecting the right of way of plaintiff on which defendant company, under the contract, had constructed its road, defendant company cannot sustain a counterclaim for work performed by it in protecting a portion of its own right of way not covered by the contract, on the ground that by so protecting its own right of way it conferred an incidental benefit on plaintiff and saved it from probable expense.

3. EXCESSIVE DAMAGES REMITTITUR-COSTS.

Where the motion for new trial assigned as ground that the damages were excessive, and the instruction was to find a specified sum with specified interest from specified dates, the plaintiff cannot avoid the costs of the appeal because the specific objection was not made in the trial court, and an opportunity there given to remit the excess of damages.

Appeal from Circuit Court, Jackson County; John W. Henry, Judge.

Action by the Missouri Pacific Railway Company against the Kansas City & Independence Air Line Company. From a judgment for plaintiff, defendant appeals. Affirmed on conditions.

Samuel W. Moore and Samuel W. Sawyer, for appellant. Elijah Robinson, for respondent.

MARSHALL, J. This is an action upon a contract entered into between the parties hereto on the 24th of October, 1891, and under which the plaintiff seeks to recover $9,160.78 for the work and labor done and materials furnished in protecting the right of way of the plaintiff, on which the defendant company, under the contract, had constructed its line also, from the inroads and ravages of the Missouri river. The plaintiff, also, in the second count of the petition, seeks to enter and take possession and oust defendant from the portion of the land upon which the defendant's track is laid, on the ground that under the terms of the contract the plaintiff was authorized to enter upon and remove the defendant's tracks from the plaintiff's right of way if the defendant failed to make the payments stipulated for in the contract. The answer of the defendant admits the doing of the work set out in the first count of the petition of the plaintiff, but alleges that it amounted to $8,074.22, and not to $9,160.78, as the plaintiff claims. The answer also admits the contract. The answer then contains a counterclaim, under which the defendant seeks to recover $15,088.06 from the plaintiff, which defendant claims is due to it for work done by the defendant under the terms of the contract, and which, by the con

tract, the plaintiff was obligated to do but refused to do. At the close of the whole case, the defendant asked the court to instruct the jury that the plaintiff was not entitled to recover. The court refused so to do, and the defendant excepted. At the request of the plaintiff the court instructed the jury that the plaintiff was entitled to recover $8,074.22, the amount admitted to be due by the defendant in its answer, with interest thereon from the 15th of July, 1897, to the date of the verdict, at the rate of 6 per cent. per annum, and further instructed the jury to find for the plaintiff on the defendant's counterclaim. The jury returned a verdict for the plaintiff for $9,722.20 on the plaintiff's cause of action, and also found for the plaintiff on the defendant's counterclaim. After proper steps, the defendant appealed.

The case made is this: Both companies are domestic railroad corporations. At the date of the contract here involved, the plaintiff owned a right of way adjacent to the Missouri river, in Jackson county, between Independence and Kansas City. The defendant was about to construct a railway between Independence and Kansas City, which would cross the plaintiff's right of way at a point about 1,500 feet west of the Big Blue river. On the 24th of October, 1891, the two companies entered into a contract, the preamble of which recited that the defendant company was desirous of, and was then constructing, a line of railroad connecting with the Kansas City Suburban Railroad near a point where said railroad crosses the plaintiff's road in Jackson county, thence to Independence, and that it was mutually advantageous to the parties hereto to avoid the crossing of the tracks of said companies, and that "such mutual purpose and advantage can only be gained by the location of the railway of the said Air Line Company, north of the tracks of the Missouri Pacific Railway Company, from said point of connection with the said road, to point east of where the Chicago, Santa Fé and California Railroad crosses overhead of Missouri Pacific Railroad Company's tracks; and whereas, the chief obstacle in so locating said track, is the imminent danger of encroachment upon it by the Missouri River by the erosions of its banks. * That for and in consideration of the mutual and reciprocal covenants, undertakings, promises and agreements, made by each of said parties, to, and with the other, and which are hereinafter stated, as well as for other good and valuable considerations; the parties hereto have come to an understanding and entered into an agreement, looking to the location, construction, maintenance and operation of the said second party's railroad on the first party's right of way, between the Kansas City and Suburban Belt Railroad and a point about four hundred feet east of the Chicago, Santa Fé and California Railroad, and looking to the protection of the second party's

tracks when there built, against damage by the Missouri River, the terms and conditions of which understanding and agreement are as follows."

The first stipulation of the contract contains a conveyance by the plaintiff to the defendant of an easement or right of way for defendant's railroad over a portion of the plaintiff's right of way beginning at the point 400 feet east of the right of way of the Chicago, Santa Fé & California Railroad, which point is marked "A" on the plat attached to the contract, and extending westwardly about 1,077 feet to a point marked "B" on the plat, and also from a point marked "C" on the plat, and extending westwardly to a point marked "D" on the plat for a distance of about 2,900 feet. From the points B to C, a distance of about 3,000 feet, the plaintiff did not grant an easement to the defendant to place its railroad on plaintiff's right of way, but the defendant acquired a right of way of its own, lying to the north of the plaintiff's right of way, and between the plaintiff's right of way and the Missouri river. The contract does not disclose why this condition existed, nor is any reason given why the defendant did not acquire the right to run its road over and upon the plaintiff's right of way between said intermediate stations, as well as at other points along the route; but the fact is that between said points B and C, for a distance of about 3,000 feet, the defendant acquired its own right of way and constructed its road thereon.

The second clause of the contract is as follows:

"Whereas the right of way and roadbed of the party of the first part, between said points, are now in danger of being wholly or in part washed away by the waters of the Missouri River; and whereas, when the party of the second part shall have built its road on said first party's right of way as herein provided for, said danger from said waters will then be common to both parties hereto, the party of the first part in consideration of that fact, and for the consideration aforesaid, has undertaken, promised and agreed, to promptly do, from time to time, all work which may be necessary and proper (unavoidable and unforeseen accidents or causes excepted) to protect the said second party's roadbed, when so built, on said strips or right of way, from danger of being injured or damaged by the waters of said river, and the said second party [the defendant herein] shall be under no obligation of law to do any of such work, but the party of the second part, has promised and agreed, and does hereby promise and agree, to pay to the party of the first part, one-half of the actual cost of doing such work, and in estimating the cost of such work, the first party shall not claim any profit either on the material furnished or on the labor employed, or charge for the transportation of such ma

terial a greater freight rate than charged for other material carried over its lines for its own use.

"Said work of protection shall be divided into two classes; the one class to be called 'Emergency Work,' the other, 'Permanent Work.' All emergency work shall be done whenever necessary or whenever in the opinion of the party of the first part, or its agents, an immediate necessity shall have arisen for some protection against the then immediate and impending danger of injury or damage by the encroachment of the Missouri River. For the expense of doing such emergency work, bills shall be rendered monthly, to the party of the second part, for its half of the cost of such work done during the previous month and shall be paid within thirty days after the receipt thereof. The plans and location of the 'permanent work,' such as the constructing of dykes and other like permanent structures for the purpose of diverting the current and force of the Missouri River from impinging against and encroaching upon the right of way, shall be designed and the costs estimated in advance of the beginning of such work by the engineers of the two parties to this agreement.

"Party of the second part shall pay upon monthly estimates for the work of the previous months, in like manner for the permanent work as for the emergency work."

The contract also contained a stipulation for the forfeiture of all rights thereunder by the defendant in case it failed to promptly pay its half of the cost of maintenance provided for by the contract.

Under this contract the defendant constructed its railroad upon the parts of the defendant's right of way herein described. From time to time between the date of the contract in 1891 and the month of June, 1896, the plaintiff did the necessary work of protecting the right of way from the inroads of the river, and each month rendered a bill to the defendant for one-half of the cost thereof, which the defendant paid. Between June, 1896, and June, 1897, the plaintiff did other work of like character, and rendered bills to the defendant for one-half thereof, aggregating $8,074.20, but the defendant failed to pay the same, and the plaintiff's suit is to recover said sum.

The defendant's counterclaim is based upon the contract, and predicates a right to recover $15,088.06, being one-half of the amount expended by the defendant in doing work for the protection of the portion of its right of way and track lying between the points B and C. The particulars of the defendant's claim are that in 1894 the river began to make rapid encroachments on the land lying between the bank of the river and the defendant's right of way, between points B and C, and for five or six days about 15 or 20 feet a day of said land was being carried away by the river. The defendant requested the plaintiff to take steps to protect