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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."

This doctrine was approved in Nelson v. Armour Packing Co., 76 Ark. 352, 355, 90 S. W. 288, 289 (6 Ann. Cas. 237), where Judge Battle, speaking for the court, said:

"In the sale of provisions by one dealer to another in the course of general commercial transactions the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness; but, when articles of human food are sold to the consumer for immediate use, there is an implied warranty or representation that they are sound and fit for food."

See, also, National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92, 109 Am. St. Rep. 71, 4 Ann. Cas. 1123; Doyle v. Fuerst & Kraemer, 129 La. 838, 56 South. 906, 40 L. R. A. (N. S.) 480, Ann. Cas. 1913B, 1110; Elliott on Contracts, § 129; 15 Am. & Eng. Ency. of Law (2d Ed.) 1238; 11 R. C. L. 1119; Mechem on Sales, § 1356; 35 Cyc. 407; Catani v. Swift & Co., 251 Pa. 52, 95 Atl. 931, L. R. A. 1917B, 1272; Craft v. Parker, 96 Mich. 245, 55 N. W. $12, 21 L. R. A. 139. See, also, note to McQuaid v. Ross, 22 L. R. A. 187-195, and cases

in note to Farrell v. Manhattan Market Co.,

15 L. R. A. (N. S.) 884.

There is no reversible error in the record, and the judgment is therefore affirmed.

ADKISSON v. HEINEMANN. (No. 195.) (Supreme Court of Arkansas. Oct. 28, 1918.) Appeal from Circuit Court, Jackson County; D. H. Coleman, Judge.

Suit by Mary Adkisson against S. Heinemann. From judgment of dismissal, plaintiff appeals. Reversed, and cause remanded, with directions. Ira J. Mack, of Newport, for appellant.

WOOD, J. Mary Adkisson, appellant, instituted this suit against appellee, S. Heinemann,

been caused by the negligent sale of flour containing poison. The complaint, omitting formal parts, and except as to the names of the plaintiff, is the same as that in the case of S. Heinemann v. Pattie Barfield, 207 S. W. 58. The court sustained a demurrer to the complaint, and entered a judgment dismissing the same. In S. Heineman v. Pattie Barfield, supra, we held that the complaint was sufficient to state a cause of action. That case rules this. The court erred in sustaining the demurrer, and for such error the judgment is reversed, and the the demurrer. cause is remanded, with directions to overrule

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dy Barfield against the appellee for damages for WOOD, J. This suit was instituted by Creemal parts, and except as to the name of plainpersonal injuries. The complaint, omitting fortiff 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 show that appellant's injuries were caused by the same act of alleged negligence as that set forth in the complaint of Pattie Barfield.

The court sustained a demurrer to the complaint in this case, and this appeal is prosecutIn Heinemann v. Pattie Barfield we held that ed from a judgment dismissing the complaint. the complaint was sufficient to state a cause of action. That case rules this, and the court erred in sustaining the demurrer.

The judgment is therefore reversed, and the cause remanded, with directions to overrule the demurrer to the complaint.

STATE ex rel. BYBEE v. HACKMANN,
State Auditor. (No. 21288.)

(Supreme Court of Missouri. En Banc.
Dec. 12, 1918.)

1. STATES

187-STATE FUNDS-AUTHORITY TO MAKE PAYMENTS.

No state official can pay out the money of the state, except pursuant to statutory authority authorizing and warranting such payment. 2. OFFICERS 103-POWERS AND DUTIESIMPLIED AUTHORITY.

Whenever a duty or power is conferred by statute upon a public officer, all necessary authority to make such powers fully efficacious, or to render the performance of such duties effectual, is conferred by implication.

OF

3. TAXATION 450(1) — STATE BOARD EQUALIZATION-STENOGRAPHER'S FEES. Under Rev. St. 1909, § 11410, empowering the state board of equalization to take all evidence it may deem necessary to ascertain the true value of property, the board may employ

a stenographer to take such evidence.

Original proceeding by mandamus by the State, on the relation of John Q. Bybee, against George E. Hackmann, State Auditor, to compel the audit of a stenographer's account. Alternative writ made peremptory.

A. T. Dumm, of Jefferson City, for relator. Edward W. Foristel, of St. Louis, for respondent.

FARIS, J. This is an original proceeding by mandamus to compel respondent, as state auditor, to audit for payment an account of the relator for services rendered by him as a stenographer in taking down in shorthand and transcribing the evidence heard by the state board of equalization. The petition filed herein upon application for our alternative writ makes clear the grounds upon which the relief prayed for is bottomed. Pertinent parts of that petition read thus: "Your petitioner says that pursuant to said constitutional and statutory provisions, above cited and quoted, the said state board of equalization, acting by and through its duly and legally constituted agent, the secretary of said board of equalization, on the 2d day of July, 1918, employed your petitioner as an expert shorthand reporter or stenographer to take stenographic notes of the evidence taken before said board and to transcribe the same, and that on the 9th day of July, 1918, the said state board of equalization, by order duly entered on the records of said board, duly approved the appointment and employment of your petitioner for the purposes aforesaid.

"Your petitioner alleges that, pursuant to said appointment and employment as aforesaid, he entered upon the duties of said employment on the 8th day of July, 1918, and continued to take the evidence at hearings before said board for 17 days thereafter, which, at $10 per day, amounts to the sum of $170; that your peti

tioner was ordered by said board to transcribe the evidence taken by him at the hearings be fore said board, and to deliver to said board, for the use of the members thereof, one original copy and five carbon copies of said evidence so transcribed; and that your petitioner, in obedience to said order of said board, did furnish to said board one original copy and five carbon copies of said evidence so taken and transcribed by him as aforesaid, charging therefor 15 cents per folio, or 45 cents per page, for said original copy, and 5 cents per folio, or 15 cents per page, for each of said five carbon copies; that there were 330 pages of said evidence, so taken and transcribed by him as aforesaid, which, at 45 cents per page for said original copy, amounts to $148.50; and that the five carbon copies, furnished for him as aforesaid at 15 cents per page for each copy, amount to $247.50; and that the items of said account of your petitioner for his services aforesaid more fully and particularly appear from an itemized statement hereto attached and made a part of this petition and marked 'Exhibit A.'

the items of said account, for the services ren"Your petitioner says that the total of all dered by him as aforesaid, is $566; and your petitioner says that he presented said account to said state board of equalization for its approval, and that on the 24th day of September, 1918, said board duly approved your petitioner's account in said sum of $566; and your petitioner says that said charges, so made by him as aforesaid, were and are the legal and reasonable charges for such services.

"Your petitioner says that, on the 27th day of September, 1918, he duly presented to and filed with the said George E. Hackmann, state auditor as aforesaid, said itemized statement and account (so approved by said state board of equalization, as aforesaid) in said sum of $566, for audit, allowance, and payment as a claim against the state of Missouri, and to be paid out of the moneys appropriated for the cost of assessing and collecting the revenue for the years 1917 and 1918, including the contingent expenses of the state board of equalization, said moneys being appropriated by act approved April 9, 1917, entitled 'An act to appropriate money for the cost of assessing and collecting the revenue for the years 1917 and 1918, including the contingent expenses of the state board of equalization, with an emergency clause,' and being section 1, page 46 of the Laws of Missouri 1917; that at the time your petitioner presented and filed said account with the said George E. Hackmann, state auditor as aforesaid, for audit, allowance, and payment, there was and is now in the state treasury, to the credit of the appropriation for the cost of assessing and collecting the revenue for the years 1917 and 1918, including the contingent expenses of the state board of equalization, more than sufficient money to pay said account for said sum of $566, and that it then and thereupon became the duty of the said George E. Hackmann, state auditor as aforesaid, to audit and allow said account in said sum of $566, and to draw his warrant upon the state treasury in favor of your petitioner for the payment of the same; but your petitioner says that the said George E. Hackmann, state auditor as aforesaid, wrongfully failed and refused, and 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 warrant upon the state treasury in favor of your petitioner for the payment of the same, in said sum of $566, or in any other sum."

The return to our writ is signed and was filed herein by private counsel, and not by the chief law officer of the state. However, absent any objection, we assume, of course, ample authority in private counsel to appear here and represent respondent, even though the statutes in such cases made and provided might lead us to expect to see the state auditor represented by the Attorney General in a case like this. Be all this as

may be, this return serves to make clear the issues, and the whole of them, involved in this controversy. So much of this return as seems meet to this end reads thus:

"Now comes George E. Hackmann, state auditor, respondent herein, and for his return to the writ of mandamus heretofore issued says that relator ought not to have this writ of peremptory mandamus, and for reason thereof states that the employment of relator by the state board of equalization was not pursuant to or authorized by any statutory or constitutional provision of the state of Missouri, and was not authorized by law.

"Respondent states that the charge made by relator for the services rendered, to wit, the sum of five hundred and sixty-six dollars ($566.00), is not a legal charge against the state of Missouri, and no portion of said charge is legal or authorized by law, but respondent admits that the said sum of five hundred and sixty-six dollars ($566.00) is the reasonable value for the services performed.

"Respondent denies that it at any time became the duty of respondent to audit and allow said account in the sum of five hundred and sixty-six dollars ($566.00), or any other sum, or to draw his warrant upon the state treasury for the payment of same.

"Respondent admits that he refused, and still refuses, to audit and allow said account, and to draw his warrant upon the state treasury for the payment of same; but respondent states that his said refusal is not wrongful, but that he refused to audit and allow said account, and to draw his warrant upon the state treasury in favor of relator, for the reason that the said claim of relator is not a proper and legal claim against the state, that the employment of relator by the state board of equalization was without authority or warrant of law, and that respondent had no legal right or authority to audit said account or to draw a warrant upon the state treasury for same."

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| at the expense of the state? If such board of equalization (hereinafter, for brevity, called simply the board) has any such authority, this authority must be bottomed on some statute. For it is fundamental that no officer in this state can pay out the money of the state, except pursuant to statutory authority authorizing and warranting such payment. Lamar Tp. v. Lamar, 261 Mo. 171, 169 S. W. 12, Ann. Cas. 1918D, 740. But it is also well-settled, if not fundamental, law that, whenever a duty or power is conferred by statute upon a public officer, all necessary authority to make such powers fully efficaci. ous, or to render the performance of such duties, effectual is conferred by implication. Hannibal, etc., Railroad, v. County Court, 36 Mo. 303; Walker v. Linn Co., 72 Mo. 650; Sheidley v. Lynch, 95 Mo. 487, 8 S. W. 434.

[3] So much being true, it is urged that, since the statute which defines the duties of the board provides that it may "take all evidence it may deem necessary," it follows by necessary implication that a stenographer may be employed to take and transcribe the evidence which the board deems necessary to be taken. We think this contention must be sustained, for this statute reads thus:

"The state board of equalization shall have Power to send for persons and papers, to adand to take all evidence it may deem necessary minister oaths through its officers or agents, to ascertain the value of the property in the different counties in the state." Section 11410,

Rev. St. 1909.

It will be observed that the above statutė does not say that the board shall hear evidence, but take evidence, and this duty of taking evidence is left to the discretion of the board; for by this section the broad "power" is conferred upon the board "to take all evidence it may deem necessary" in the performance of its duty "to ascertain the value of the property in the different counties in the state." While, of course, the word "take," as here used, does not unequivocally mean to take down, or to write down (37 Cyc. 665), it is yet toward this view a much stronger word than "hear" would have been, had it been employed. Construing the above section, in order to get at its meaning in pari materia with other provisions of the article, which prescribes in detail the duties of the board, we see that by the requirements of section 11412, Rev. St. 1909, the evidence which (if the board deem necessary) it may take will inevitably consist largely in figures representing taxable values, and might well consist in figures representing the values of practically the whole of the farms and the acreage of each of the 114 counties in Missouri, as well as of the divers classes of personal property therein and in the city of St. Louis. It is too plain for argument that no memory is equal to the task of retaining the figures so representing such val

138-DELIVERY

Since the adoption of the Webb-Kenyon Act (U. S. Comp. St. 1916, § 8739) and the sustention of its constitutionality by the Supreme Court of United States, carriers have no right to transport and deliver intoxicants into a state in contravention of its local laws. Faris, J., dissenting.

ues, and of comparing them with other val- 13. INTOXICATING LIQUORS 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 is clearly permissible under this statute is to be of any use in the duty of comparing and equalizing taxable values, such evidence must of necessity be put in some such permanent form as to permit of careful examination and study thereof. No method is known by which this may be done except by having it taken down in writing, and certainly no method of taking evidence down in writing is more expeditious, or as economical in time and expense, as that of taking it down in shorthand and afterwards transcribing it.

Attending to another phase of conserving time, the question in the last analysis might well resolve itself into the seemingly simple problem, whether the board should employ a stenographer at $10 a day to write down evidence in shorthand, or whether the board, neglecting to this extent other manifold official duties of its component members, should stay in session at $25 a day while its secretary is taking down the necessary evidence in longhand. Viewed from any angle, the refusal to audit this account cannot be upheld, in the face of the statute we quote and of the light shed thereon by the nature of the duties incumbent by law upon

this board.

Without more, we are of the opinion that the alternative writ heretofore issued by us should be made peremptory. Let this be done, and let our peremptory writ issue.

BOND, C. J., and WALKER, WOODSON, and WILLIAMS, JJ., concurred.

CITY OF KIRKSVILLE v. WARDEN. (No. 19397.)

Appeal from Circuit Court, Adair County; Charles D. Stewart, Judge.

M. T. Warden was convicted of delivering intoxicating liquors in local option territory, and appeals. Affirmed.

J. L. Minnis, of St. Louis, and Higbee &
Mills, of Lancaster, for appellant.
Weatherby & Frank, of Kirksville, for re-
spondent.

BOND, C. J. I. This is a prosecution for the violation of an ordinance of the city of Kirksville, which is framed in the language of sections 7227, 7228, and 7229 of the Revised Statutes of 1909.

The complaint on behalf of the city, filed by its prosecuting attorney before one of the police judges of the city, charged that defendant, on December 4, 1914, "did then and there willfully and unlawfully keep, store for, and deliver to another person than him, the said M. T. Warden, to wit, for and to the said Wabash Pharmacy, certain intoxicating liquors, to wit, 10 barrels of whisky, 1 keg of alcohol, one keg of gin, and one keg of wine,"

etc.

After the conviction of defendant in the police 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 the local option law was in force in said city 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.)

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1. COMMERCE 14- POWER OF STATES WEBB-KENYON ACT-EFFECT.

-

Effect of decision of United States Supreme Court validating the Webb-Kenyon Act (U. S. Comp. St. 1916, § 8739) is to leave interstate shipments of intoxicating liquors subject to regulation of the respective states as provided by the terms of such act.

2. INTOXICATING LIQUORS 236(1)-DELIV-
ERY IN LOCAL OPTION TERRITORY ·
DENCE

EVI

In prosecution for violation of ordinance framed in language of Rev. St. §8 7227-7229, evidence held to show delivery of intoxicants by defendant to another in local option territory within the terms of section 7227.

style of the Wabash Pharmacy, for the purpose of purchasing suitable stock in trade, about the 1st of December, 1914, made a trip to Quincy, Ill., where he purchased, in addition to store fixtures 10 barrels of whisky, 2 barrels of gin in jars, 1 keg of wine and 1,500 pounds of glass flasks and 1,000 pounds of drugs and sundries; that he caused the waybill for one barrel of whisky to designate Kirksville as the point of delivery, and another way bill for 9 barrels of whisky to designate the point of delivery as Greentop, a few miles north of Kirksville; that all of the whisky specified in both waybills reached Kirksville about December 4, 1914, whereupon the consignee, Noah Eitel, under his tradename 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 drayman, who proceeded to the station where the car stood on a side track, and took out 3 barrels of the whisky. Thereupon the defendant appeared and directed him to return 2 of the barrels to the car, as they had been waybilled to Greentop, and only 1 barrel had been receipted for by Noah Eitel in the name of the Wabash Pharmacy at Kirksville. The drayman then delivered the 1 barrel billed to Kirksville to the Wabash Pharmacy, and on the next day the 9 other barrels were brought back from Greentop and also delivered to the Wabash Pharmacy.

The trial resulted in a conviction of the defendant and a fine of $300, from which an appeal was duly taken to this court.

II. The first point in the brief of counsel for appellant is to the effect that this was an interstate shipment and there was no evidence of delivery at Kirksville; wherefore instruction No. 2, submitting the issue of the delivery by defendant of one barrel of intoxicating liquor in the city of Kirksville, on December 4th, should not have been given.

[1] As far as the question of interstate shipment is concerned, it is enough to say that the protection of intoxicating liquors by the commerce clause of the Constitution has been withdrawn since the adoption of the Webb-Kenyon Act, which was considered by the Supreme Court of the United States in a recent case and held to be a legitimate exercise of the power of Congress to regulate commerce. The effect of that decision, validating the Webb-Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699 [U. S. Comp. St. 1916, § 8739]), is to leave interstate shipments of intoxicating liquors subject to regulation of the respective states as provided by the terms of that act. Clarke Dist. Co. v. West. Md. Ry. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845.

[2] Neither are we able to assent to the view that there was no evidence of a delivery by the defendant of one barrel of whisky and other intoxicating liquors on December 4th. A careful examination of the abstract, particularly of the additional abstract and the original transcript on file in this court, discloses that defendant inquired, prior to the purchase of the stock in trade for the proposed Wabash Pharmacy, whether he could deliver whisky which might be purchased for the benefit of that store, and was told by the prosecuting attorney that he

could not; that the defendant was actually present when one barrel of whisky was delivered to the drayman for the Wabash Pharmacy on December 4th and made no other objection to such delivery than that it should not include other whisky which had been billed to Greentop, and that he not only witnessed the delivery of that barrel which had been shipped to Kirksville, but took a receipt for such delivery from the Wabash Pharmacy signed by Noah Eitel.

[3] III. It is insisted by the learned counsel for appellant that the court erred in refusing other instructions on behalf of defendant. An examination of the instructions referred to in this assignment does not disclose any error in their refusal, since the adoption of the Webb-Kenyon Act and the sustention of its constitutionality by the Supreme Court of the United States. Under that act, common carriers have no right to transport and deliver intoxicating liquors into any state in contravention of its local laws.

IV. The offense in this case fell strictly within the terms of section 7227 of the Revision of 1909, which it has been pointed out by this court it was the duty of the prosecuting attorneys of the various counties to enforce whenever applicable by proceedings like the present. State ex rel. v. Woolfolk, 269 Mo. loc. cit. 397, 190 S. W. 877.

The penalty imposed was the minimum provided by section 7229 (R. S. 1909). Prosecutions in cases like the present, falling within the purview of sections 7227, 7228, and 7229 (R. S. 1909), have been repeatedly sustained by this and the Courts of Appeals. State v. Burns, 237 Mo. 217, 140 S. W. 871; State v. Rawlings, 232 Mo. 544, 134 S. W. 530; State v. Lane (App.) 193 S. W. 948; Gum v. Frisco Ry. Co. (App.) 198 S. W. 494, 496, par. 2, and cases cited.

Finding no reversible error in this case, the judgment is affirmed. It is so ordered.

PER CURIAM. The foregoing opinion of BOND, C. J., in division No. 1, is adopted as the opinion of the court in Banc.

WALKER, WOODSON, and WILLIAMS, JJ., concur.

FARIS, J., dissents and thinks case should be transferred to the proper Court of Appeals.

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