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the vendor that the article sold is sound and for damages for personal injuries alleged to have fit for the use for which it was purchased.” been caused by the negligent sale of flour con

taining poison. The complaint, omitting formal This doctrine was approved in Nelson y.

parts, and except as to the names of the plainArmour Packing Co., 76 Ark. 352, 355, 90 s. tiff, is the same as that in the case of S. HeineW. 288, 289 (6 Ann. Cas. 237), where Judge mann v. Pattie Barfield, 207 S. W. 58. The Battle, speaking for the court, said:

court sustained a demurrer to the complaint, "In the sale of provisions by one dealer to

and entered a judgment dismissing the same.

In S. Heineman v. Pattie Barfield, supra, we another in the course of general commercial

mercial held that the complaint was sufficient to state transactions the maxim caveat emptor applies, and there is no implied warranty or representa

a cause of action. That case rules this. The

court erred in sustaining the demurrer, and for tion of quality or fitness; but, when articles of human food are sold to the consumer for im

such error the judgment is reversed, and the

cause is remanded, with directions to overrule mediate use, there is an implied warranty or

the demurrer. representation that they are sound and fit for food.”

[ocr errors]

See, also, National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92, 109 Am. St. Rep.

BARFIELD v. HEINEMANN. (No. 196.) 4 Ann. Cas. 1123; Doyle i Fuerst & (Supreme Court of Arkansas. Oct. 28, 1918.) Kraemer, 129 La. 838, 56 South. 906, 40 L. R. A. (N. S.) 480. Ann. Cas. 1913B, 1110: Elliott Appeal from Circuit Court, Jackson County ; on Contracts, $ 129; 15 Am. & Eng. Ency. of |D. H. Coleman, Judge. Law (2d Ed.) 1238; 11 R. C. L. 1119; Mechem | Suit by Creedy Barfield against S. Heineon Sales, 8 1356; 35 Cyc. 407; Catani v. Swift mann. From judgment of dismissal, plaintiff & Co., 251 Pa. 52, 95 Atl, 931, L R. A. 1917B. appeals. Reversod, and cause remanded, with 1272; Craft v. Parker, 96 Mich. 245, 55 N. W.

ker. 96 Mich 245 RN w directions. 812, 21 L. R. A. 139. See, also, note to Me

Ira J. Mack, of Newport, for appellant. Quaid v. Ross, 22 L. R. A. 187–193, and cases in note to Farrell v. Manhattan Market Co.,

WOOD, J. This suit was instituted by Cree15 L R. A. (N. S.) 884.

dy Barfield against the appellee for damages for

personal injuries. The complaint, omitting forThere is no reversible error in the record,

ra, mal parts, and except as to the name of plainand the judgment is therefore affirmed.

tiff and as to the amount of damages prayed, is precisely the same as that in the case of S. Heinemann v. Pattie Barfield, 207 S. W. 58.

The complaint alleged that Creedy Barfield was the father of R. H. Barfield and a member

of his family. The allegations of the complaint ADKISSON v. HEINEMANN. (No. 195.)

show that appellant's injuries were caused by (Supreme Court of Arkansas. Oct. 28, 1918.)

the same act of alleged negligence as that set

forth in the complaint of Pattie Barfield. Appeal from Circuit Court, Jackson County; The court sustained a demurrer to the comD. H. Coleman, Judge.

plaint in this case, and this appeal is prosecut. Suit by Mary Adkisson against S. Heinemann.

ed from a judgment dismissing the complaint. From judgment of dismissal, plaintiff appeals.

In Heinemann v. Pattie Barfield we held that

the complaint was sufficient to state a cause Reversed, and cause remanded, with directions.

of action. That case rules this, and the court Ira J. Mack, of Newport, for appellant. erred in sustaining the demurrer.

The judgment is therefore reversed, and the WOOD, J. Mary Adkisson, appellant, insti- cause remanded, with directions to overrule the tuted this suit against appellee, S. Heinemann, demurrer to the complaint.


tioner was ordered by said board to transcribe STATE ex rel. BYBEE V. HACKMANN, the evidence taken by him at the hearings beState Auditor. (No. 21288.)

fore said board, and to deliver to said board,

for the use of the members thereof, one orig(Supreme Court of Missouri. En Banc. inal copy and five carbon copies of said eviDec. 12, 1918.)

dence so transcribed ; and that your petitioner,

in obedience to said order of said board, did 1. STATES 187-STATE FUNDS-AUTHORITY furnish to said board one original copy and TO MAKE PAYMENTS.

five carbon copies of said evidence so taken No state official can pay out the money of and transcribed by him as aforesaid, charging

tate, except pursuant to statutory author- therefor 15 cents per folio, or 45 cents per page, ity authorizing and warranting such payment. for said original copy, and 5 cents per folio, or

15 cents per page, for each of said five carbon 2. OFFICERS 103–POWERS AND DUTIES

copies; that there were 330 pages of said evi. IMPLIED AUTHORITY.

dence, so taken and transcribed by him as aforeWhenever a duty or power is conferred by said, which, at 45 cents per page for said origstatute upon a public officer, all necessary au inal copy, amounts to $148.50; and that the thority to make such powers fully efficacious, or five carbon copies, furnished for him as aforeto render the performance of such duties ef said at 15 cents per page for each copy, amount fectual, is conferred by implication.

to $247.50; and that the items of said ac3. TAXATION 450(1) - STATE BOARD OF

count of your petitioner for his services aforeEQUALIZATION-STENOGRAPHER'S FEES.

said more fully and particularly appear from

an itemized statement hereto attached and made Under Rev. St. 1909, $ 11410, empowering

5 la part of this petition and marked Exhibit A' the state board of equalization to take all evi

"Your petitioner says that the total of all dence it may deem necessary to ascertain the

the items of said account, for the services rentrue value of property, the board may employ

dered by him as aforesaid, is $566; and your a stenographer to take such evidence.

petitioner says that he presented said account

to said state board of equalization for its apOriginal proceeding by mandamus by the

proval, and that on the 24th day of September, State, on the relation of John Q. Bybee, 1918, said board duly approved your petitioner's against George E. Hackmann, State Auditor, account in said sum of $566; and your petitionto compel the audit of a stenographer's ac- er says that said charges, so made by him as count. Alternative writ made peremptory. aforesaid, were and are the legal and reasonable

charges for such services. A. T. Dumm, of Jefferson City, for relator. "Your petitioner says that, on the 27th day

Edward W. Foristel, of St. Louis, for re- of September, 1918, he duly presented to and spondent.

filed with the said George E. Hackmann, state

auditor as aforesaid, said itemized statement and FARIS, J. This is an original proceeding account (so approved by said state board of by mandamus to compel respondent, as state

equalization, as aforesaid) in said sum of $566, auditor, to audit for payment an account of

for audit, allowance, and payment as a claim

against the state of Missouri, and to be paid the relator for services rendered by him as

out of the moneys appropriated for the cost a stenographer in taking down in shorthand of assessing and collecting the revenue for the and transcribing the evidence heard by the years 1917 and 1918, including the contingent state board of equalization. The petition expenses of the state board of equalization, said filed herein upon application for our alter | moneys being appropriated by act approved native writ makes clear the grounds upon

April 9, 1917, entitled 'An act to appropriate which the relief prayed for is bottomed.

money for the cost of assessing and collecting

the revenue for the years 1917 and 1918, inPertinent parts of that petition read thus:

cluding the contingent expenses of the state "Your petitioner says that pursuant to said board of equalization, with an emergency clause,' constitutional and statutory provisions, above

and being section 1, page 46 of the Laws of cited and quoted, the said state board of equali- Missouri 1917; that at the time your petitioner zation, acting by and through its duly and le- presented and filed said account with the said gally constituted agent, the secretary of said George E. Hackmann, state auditor as afore board of equalization, on the 2d day of July, said, for audit, allowance, and payment, there 1918, employed your petitioner as an expert was and is now in the state treasury, to the shorthand reporter or stenographer to take sten: credit of the appropriation for the cost of asographic notes of the evidence taken before said sessing and collecting the revenue for the years board and to transcribe the same, and that on 1917 and 1918, including the contingent exthe 9th day of July, 1918, the said state board penses of the state board of equalization, more of equalization, by order duly entered on the than sufficient money to pay said account for records of said board, duly approved the ap said sum of $566, and that it then and therepointment and employment of your petitioner upon became the duty of the said George E. for the purposes aforesaid.

Hackmann, state auditor as aforesaid, to andit "Your petitioner alleges that, pursuant to and allow said account in said sum of $566, said appointment and employment as aforesaid, and to draw his warrant upon the state treashe entered upon the duties of said employment ury in favor of your petitioner for the payment on the 8th day of July, 1918, and continued to of the same; but your petitioner says that the take the evidence at hearings before said board said George E. Hackmann, state auditor as for 17 days thereafter, which, at $10 per day, aforesaid, wrongfully failed and refused, and amounts to the sum of $170; that your peti- | does still wrongfully fail and refuse, to audit

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and allow said account, and to draw his war- 1 at the expense of the state? If such board rant upon the state treasury in favor of your of equalization (hereinafter, for brevity, callpetitioner for the payment of the same, in said ed simply the board) has any such authority, sum of $566, or in any other sum."

this authority must be bottomed on some

statute. For it is fundamental that no offiThe return to our writ is signed and was

cer in this state can pay out the money of filed herein by private counsel, and not by

the state, except pursuant to statutory authe chief law officer of the state. However,

thority authorizing and warranting such payabsent any objection, we assume, of course, i

ment. Lamar Tp. V. Lamar, 261 Mo. 171, ample authority in private counsel to ap

169 S. W. 12, Ann. Cas. 1918D, 740. But it pear here and represent respondent, even

is also well-settled, if not fundamental, law though the statutes in such cases made and

that, whenever a duty or power is conferred provided might lead us to expect to see the

by statute upon a public officer, all necessary state auditor represented by the Attorney

authority to make such powers fully efficaci. General in a case like this. Be all this as

ous, or to render the performance of such may be, this return serves to make clear the

duties, effectual is conferred by implication. issues, and the whole of them, involved in

Hannibal, etc., Railroad, v. County Court, 36 this controversy. So much of this return as

Mo. 303; Walker v. Linn Co., 72 Mo. 650; seems meet to this end reads thus:

Sheidley v. Lynch, 95 Mo. 487, 8 S. W. 434. "Now comes George E. Hackmann, state [3] So much being true, it is urged that, auditor, respondent herein, and for his return since the statute which defines the duties of to the writ of mandamus heretofore issued says

the board provides that it may "take all evithat relator ought not to have this writ of

dence it may, deem necessary," it follows by peremptory mandamus, and for reason thereof states that the employment of relator by the

necessary implication that a stenographer state board of equalization was not pursuant

may be employed to take and transcribe the to or authorized by any statutory or constitu

evidence which the board deems necessary to tional provision of the state of Missouri, and

| be taken. We think this contention must be was not authorized by law.

sustained, for this statute reads thus: "Respondent states that the charge made by

"The state board of equalization shall have relator for the services rendered, to wit, the sum of five hundred and sixty-six dollars ($566.

power to send for persons and papers, to ad

minister oaths through its officers or agents, 00), is not a legal charge against the state of Missouri, and no portion of said charge is legal

and to take all evidence it may deem necessary

to ascertain the value of the property in the or authorized by law, but respondent admits

different counties in the state." Section 11410, that the said sum of five hundred and sixty-six

Rev. St. 1909. dollars ($566.00) is the reasonable value for the services performed. .

It will be observed that the above statute "Respondent denies that it at any time became the duty of respondent to audit and allow does not say that the board shall hear evisaid account in the sum of five hundred and dence, but take evidence, and this duty of sixty-six dollars ($566.00), or any other sum, taking evidence is left to the discretion of or to draw his warrant upon the state treas- the board; for by this section the broad ury for the payment of same.

"power" is conferred upon the board "to “Respondent admits that he refused, and still take all evidence it may deem necessary" in refuses, to audit and allow said account, and

the performance of its duty “to ascertain the to draw his warrant upon the state treasury

value of the property in the different counfor the payment of same; but respondent states that bis said refusal is not wrongful, but that

ties in the state." While, of course, the word he refused to audit and allow said account, and "take," as here used, does not unequivocally

w his warrant upon the state treasury mean to take down, or to write down (37 in favor of relator, for the reason that the Cyc. 665), it is yet toward this view a much said claim of relator is not a proper and legal stronger word than "hear" would have been, claim against the state, that the employment of had it been employed. Construing the above relator by the state board of equalization was

section, in order to get at its meaning in without authority or warrant of law, and that respondent had no legal right or authority to

pari materia with other provisions of the audit said account or to draw a warrant upon

article, which prescribes in detail the duties the state treasury for same."

of the board, we see that by the require

ments of section 11412, Rev. St. 1909, the Upon the coming in of this return relator, evidence which (if the board deem necessary) averring its insufficiency as a matter of law, it may take will inevitably consist largely in moved for judgment upon the pleadings. figures representing taxable values, and Therefore, since the return expressly admits might well consist in figures representing the that the sum demanded is a reasonable values of practically the whole of the farms charge for the services rendered, the case and the acreage of each of the 114 counties is at issue upon a single clear-cut question in Missouri, as well as of the divers classes of law.

of personal property therein and in the city [1, 2] That question simply stated is this: of St. Louis. It is too plain for argument Has the state board of equalization author- that no memory is equal to the task of reIty under the law to employ a stenographer taining the figures so representing such val

207 S.W.- .

ues, and of comparing them with other val. 13. INTOXICATING LIQUORS C. 138-DELIVERY ues of like taxable property or commodities IN LOCAL OPTION TERRITORY-RIGHTS OF in other, or in all, of the counties of this

CARRIER. state. If the work of taking evidence which

Since the adoption of the Webb-Kenyon is clearly permissible under this statute is

| Act (U. S. Comp. St. 1916, $ 8739) and the susto be of any use in the duty of comparing

tention of its constitutionality by the Supreme

Court of United States, carriers have no right and equalizing taxable values, such evidence

to transport and deliver intoxicants into a must of necessity be put in some such perma

state in contravention of its local laws. nent form as to permit of careful examina

Faris, J., dissenting. tion and study thereof. No method is knowa by which this may be done except by having it taken down in writing, and certainly no

Appeal from Circuit Court, Adair County; method of taking evidence down in writing

Charles D. Stewart, Judge. is more expeditious, or as economical in time M. T. Warden was convicted of delivering and expense, as that of taking it down in intoxicating liquors in local option territory, shorthand and afterwards transcribing it. and appeals. Affirmed. Attending to another phase of conserving

J. L. Minnis, of St. Louis, and Higbee & time, the question in the last analysis might well resolve itself into the seemingly simple

Mills, of Lancaster, for appellant.

Weatherby & Frank, of Kirksville, for reproblem, whether the board should employ a stenographer at $10 a day to write down

spondent. evidence in shorthand, or whether the board, neglecting to this extent other manifold

BOND, C. J. I. This is a prosecution for official duties of its component members,

members the violation of an ordinance of the city of should stay in session at $25 a day while

Kirksville, which is framed in the language its secretary is taking down the necessary

of sections 7227, 7228, and 7229 of the Revisevidence in longhand. Viewed from any

ed Statutes of 1909. angle, the refusal to audit this account can

The complaint on behalf of the city, filed not be upheld, in the face of the statute we by its prosecuting attorney before one of the quote and of the light shed thereon by the police judges of the city, charged that de nature of the duties incumbent by law upon

fendant, on December 4, 1914, "did then and this board.

there willfully and unlawfully keep, store Without more, we are of the opinion that | for, and deliver to another person than him, the alternative writ heretofore issued by us the said M. T. Warden, to wit, for and to the should be made peremptory. Let this be said Wabash Pharmacy, certain intoxicating done, and let our peremptory writ issue.

liquors, to wit, 10 barrels of whisky, 1 keg of alcohol, one keg of gin, and one keg of wine,"

etc. BOND, C. J., and WALKER, WOODSON,

After the conviction of defendant in the poand WILLIAMS, JJ., concurred.

lice court and appeal therefrom, the cause was tried in the circuit court of Adair county upon certain agreements and oral testimony showing the due adoption of the ordinance in

question by the city of Kirksville, and that CITY OF KIRKSVILLE v. WARDEN. the local option law was in force in said city (No. 19397.)

from and after December 23, 1907; that one

Noah Eitel, desiring to open and conduct a (Supreme Court of Missouri, in Banc. Nov. 27, drug store in said city under the name and 1918.)

style of the Wabash Pharmacy, for the pur

pose of purchasing suitable stock in trade, 1. COMMERCE 14 - POWER' OF STATES

about the 1st of December, 1914, made a trip WEBB-KENYON ACT-EFFECT.

to Quincy, Ill., where he purchased, in addiEffect of decision of United States Supreme

tion to store fixtures 10 barrels of whisky, 2 Court validating the Webb-Kenyon Act (U. S. ;

barrels of gin in jars, 1 keg of wine and Comp. St. 1916, 8 8739) is to leave interstate shipments of intoxicating liquors subject to reg.

1,500 pounds of glassflasks and 1,000 pounds ulation of the respective states as provided by

of drugs and sundries; that he caused the the terms of such act.

waybill for one barrel of whisky to desig

nate Kirksville as the point of delivery, and 2. INTOXICATING LIQUORS 236(1)-DELIV

| another waybill for 9 barrels of whisky to ERY IN LOCAL OPTION TERRITORY -- Evi

designate the point of delivery as Greentop, DENCE.

a few miles north of Kirksville; that all of . In prosecution for violation of ordinance framed in language of Rev. St. 88 7227-7229,

10 the whisky specified in both waybills reached evidence held to show delivery of intoxicants by

Kirksville about December 4, 1914, whereupdefendant to another in local option territory on the consignee, Noah Eitel, under his tradewithin the terms of section 7227.

name of Wabash Pharmacy, turned over the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

waybill designating that destination to a , could not; that the defendant was actually drayman, who proceeded to the station where present when one barrel of whisky was dethe car stood on a side track, and took out 3 livered to the drayman for the Wabash barrels of the whisky. Thereupon the de Pharmacy on December 4th and made no fendant appeared and directed him to return other objection to such delivery than that it 2 of the barrels to the car, as they had been should not include other whisky which had waybilled to Greentop, and only 1 barrel had been billed to Greentop, and that he not only been receipted for by Noah Eitel in the name witnessed the delivery of that barrel which of the Wabash Pharmacy at Kirksville. The had been shipped to Kirksville, but took a drayman then delivered the 1 barrel billed to receipt for such delivery from the Wabash Kirksville to the Wabash Pharmacy, and on Pharmacy signed by Noah Eitel. the next day the 9 other barrels were brought [3] III. It is insisted by the learned counback from Greentop and also delivered to sel for appellant that the court erred in rethe Wabash Pharmacy.

fusing other instructions on behalf of deThe trial resulted in a conviction of the de fendant. An examination of the instructions fendant and a fine of $300, from which an ap referred to in this assignment does not dispeal was duly taken to this court.

close any error in their refusal, since the II. The first point in the brief of counsel adoption of the Webb-Kenyon Act and the for appellant is to the effect that this was an sustention of its constitutionality by the Suinterstate shipment and there was no evi-preme Court of the United States. Under dence of delivery at Kirksville; wherefore that act, common carriers have no right to instruction No. 2, submitting the issue of the transport and deliver intoxicating liquors indelivery by defendant of one barrel of intoxi- to any state in contravention of its local cating liquor in the city of Kirksville, on De- laws. cember 4th, should not have been given.

IV. The offense in this case fell strictly [1] As far as the question of interstate within the terms of section 7227 of the Revishipment is concerned, it is enough to say sion of 1909, which it has been pointed out by that the protection of intoxicating liquors by this court it was the duty of the prosecuting the commerce clause of the Constitution has attorneys of the various counties to enforce been withdrawn since the adoption of the whenever applicable by proceedings like the Webb-Kenyon Act, which was considered by present. State ex rel. v. Woolfolk, 269 Mo. the Supreme Court of the United States in a loc. cit. 397, 190 S. W. 877. recent case and held to be a legitimate exer- The penalty imposed was the minimum cise of the power of Congress to regulate provided by section 7229 (R. S. 1909). Prosecommerce. The effect of that decision, vali-cutions in cases like the present, falling with dating the Webb-Kenyon Act (Act March 1, in the purview of sections 7227, 7228,' and 1913, c. 90, 37 Stat. 699 (U. S. Comp. St. 1916, 7229 (R. S. 1909), have been repeatedly sus

8739]), is to leave interstate shipments of tained by this and the Courts of Appeals. intoxicating liquors subject to regulation of

State v. Burns, 237 Mo. 217, 140 S. W. 871; the respective states as provided by the terms State v. Rawlings, 232 Mo. 544, 134 S. W. of that act. Clarke Dist. Co. v. West. Md. 530; State v. Lane (App.) 193 S. W. 948; Ry. Co., 2A2 U. S. 311, 37 Sup. Ct. 180, 61 L. Gumy Frisco Rv. co. (ADD) 198. S. W. 494. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. | 496. par. 2. and cases cited. 1917B, 845.

Finding no reversible error in this case, Neither are we able to assent to the the judgment is affirmed. It is so ordered. view that there was no evidence of a delivery by the defendant of one barrel of whisky

PER CURIAM. The foregoing opinion of and other intoxicating liquors on December

BOND, C. J., in division No. 1, is adopted as 4th. A careful examination of the abstract,

the opinion of the court in Banc. particularly of the additional abstract and the original transcript on file in this court, discloses that defendant inquired. prior to WALKER, WOODSON, and WILLIAMS, the purchase of the stock in trade for the JJ., concur. proposed Wabash Pharmacy, whether he could deliver whisky which might be pur- FARIS, J., dissents and thinks case should chased for the benefit of that store, and was be transferred to the proper Court of Aptold by the prosecuting attorney that he peals.


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