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county treasurer of Jackson county and his therefor, would this or any other court hesibondsmen liable therefor, if not the county tate a moment in holding that the taxation court itself, as much so as if he or they of that money against him was unlawful, should take the money and pay it to assist that he was not responsible for the same, and in the prosecution of some felony in the state that the execution should be quashed? Cerof Kansas?

tainly not. And no one will contend to the This species of litigation, under the cir- contrary. cumstances is the only safeguard against There is another phase of this case, which such usurpation of authority to the illegal ex- in my opinion is worthy of serious considerapenditure of public money on the part of tion, and that is this: Suppose, for the sake those public agents who are intrusted with of argument, that Dr. Hyde is guilty of all the custody and expenditures thereof. More the matters charged against him by indictover it is just such cases as this which en- ment, which is nothing more or less (in so far courage peculation and fraud in public of- as this case is concerned) than a violation fice. If this court will tolerate such a bare- of the laws of the state, and he should be faced illegal expenditure of the public mon found guilty of the same, yet does his violaeys as is here attempted by evading the ques. tion of the law of God and man justify or aution on a question of procedure, then in the thorize the county court of Jackson county name of heaven why should we condemn the or the treasurer thereof to also violate the poor officers who are ignorant of the law | laws of the state in order to assist in the for doing likewise in other cases?

prosecution of a wrongdoer? I think not. With far greater plausibility and better The act of the one is just as clearly a breach taste, at least, the legal department of Jack of the law as the other, differing only in deson county might have mandamused the state gree, not in principle. This is self-evident, auditor and the state treasurer to set aside and has become a truism expressed in the this $15,000 for the purpose of paying the words, “Two wrongs can never make a fees of expert witnesses in that case, for the right.” reason that the state, and not the county, is

Moreover what great herculean master is primarily, not secondarily, responsible for the man Hyde, any way, that the great state any of the legitimate fees taxable in felony of Missouri with her millions of patriotic cases; but do not understand me by this lan. sons and dutiful daughters, and her billions guage to state or indicate that the state, even of treasures cannot grapple with him and under any circumstances, would be liable for bring him to justice without resorting to such expert fees, over and beyond the fees illegal means to accomplish that purpose ? prescribed by statute, for the truth is, as all The mere asking the question answers itlawyers and courts know, that there is not there is no substance in the proposition. a word or line, to be found in the common Besides that, I have no patience with those law or the statutes of this state, which in persons (who I am glad to say are few, and the remotest degree intimates, much less au- who are growing fewer every year) who bethorizes, either the state or a county to pay lieve that the doctors, surgeons, chemists, expert witnesses fees of any character. The and lawyers of Kansas City and the state of law recognizes no difference in the character Missouri have not the same intelligence, of witnesses, in so far as their fees are con learning, and professional ability and skill cerned, and should either the state or coun- as those of other states. ty officials undertake to or expend public I have always been impressed with the idea moneys for expert witnesses, beyond the sum that if this great commonwealth is capable fixed by statutes, they would so do right in of self-government, then it surely has the abili. the teeth of the statutes of this state, and ty to administer its criminal and civil laws thereby violate the law they are sworn to without calling upon outsiders for assistance, support. Besides, it is elementary that costs and that if that is not true, then I suggest of no kind can be legally taxed in any case, that it is about time to adopt some other civil or criminal, for or against the state or form of government. I am firmly of the opincounty or an individual without the taxing ion, as previously indicated, that the citizens clerk can point his finger directly to the stat- of this state have the intellectuality, ability, ute which expressly authorizes him to so do. and experience to govern and control each Will any of my learned Associates point his and every department of this state without finger to a law or statute that authorized calling for outside assistance. My observathis $15,000 to be paid to expert witnesses, tion and experience have been, especially reeither by state or county, or by the defend-garding the legal profession, and in no small ant, should he be convicted? And if convict-degree of that of the medical, that a comed, and if this requested appropriation is parison of the members of those professions legal, would it be contended for a moment, with those of other states, and of the United under the statutes of this state, that Dr. States, would not bring a single blush of Hyde would be liable to the state for its re- shame to any intelligent man or woman in payment, as legitimate fees taxable against this state. These general observations are so him? Certainly not. But suppose he should thoroughly true and in harmony with the genbe convicted and this $15,000 should be tax- eral knowledge of men and measure, it seems ed against him, and execution should issue to me that it is a grave reflection upon the

good people of Kansas City and the state of|ty of this state should, illegally or otherwise, Missouri, with all of her institutions of learn appropriate funds to prosecute Dr. Hyde or ing, intelligence, culture, and wealth, to even any other person charged with a felony. suggest that there is not sufficient scientific Who is going to audit the account upon knowledge and experience in this state to de- which this money is to be paid on? Not the termine whether or not a certain person died state auditor, who has the exclusive authorof natural causes or from poison, or through ity under the laws to so do in all such cases, other unnatural means. This idea that the subject of course to the review of the courts. man over the hill has a farm better than any But this illegal expenditure of public money one this side, and that the lawyers and can never come before the courts of this state doctors in other states are more intellectual without the treasurer of Jackson county and learned than those of this state, has er- should refuse to pay the same, which, if done, roneously led many to believe that their would of course be at his risk, and in such next door neighbors are ignoramuses, if not case I apprehend the question of his misapwild and uncivilized Comanches, not worthy propriation of that money will, in some form, of consultation or respect. If counsel for the reach this court for adjudication. state will disabuse his mind of this fallacy, Under the conceded law; this expenditure and proceed to try Dr. Hyde under the laws of this $15,000 would be illegal, I believe it of this state and with the assistance of such would be wise to so state in this case, and witnesses as the law authorizes him to pro- thereby avoid all further litigation regardcure, he will find that his duty has been fully ing the matter, and obviate the risk of some discharged, and that justice has been duly ad- innocent person having the burden to bear in ministered according to law, and that the the near future. good people of Kansas City will be fully satis I, therefore, dissent from the entire espresfied with the result, whatever that may be, sions of the court and the various judges even though the courts of the country will not thereof, except I believe the judgment should permit him to resort to illegal means to pro- be reversed. cure outside assistance.

I do not know, nor do I care what the finan WALKER, J. (dissenting). Upon a careful cial condition of Dr. Hyde is, so far as this examination of the question here involved I case is concerned, yet, I am impressed witb | find that I cannot concur in the conclusion the idea that this great state should be satis- reached in the majority opinion, which, in fied with a prosecution of him, according to not expressly determining the question subthe laws thereof, without resorting to illegal mitted, gives tacit approval to the appropriameans; and, moreover, the presumption is tion and apportionment of $15,000 of the that the state is as able financially to try funds of Jackson county by its county court this case without outside assistance as Dr. for the proposed purpose of defraying the Hyde is to defend himself of the charges lodg- estimated expenses of conducting a criminal ed against him. To me this request for $15,- trial therein. The powers of a county as a 000 to be used in the prosecution of the de- subdivision of the state are clearly defined fendant smacks of persecution instead of and limited by law, and its administrative prosecution, and by this language I mean no agents, the members of the county court, have reflection whatever upon our able and efficient no authority except that clearly conferred by prosecutor, because I believe he, as I have law. frequently done, has let his zeal in what he The proposed appropriation being foreign believes to be a righteous cause to run away to the purposes for which counties are creatwith his better judgment, but that is no legal ed, and beyond the powers of the county reason why he or I should be sustained in do- court, upon the matter being brought to our ing those things which are not authorized by attention it becomes our duty to determine the law.

beyond a peradventure whether the appropriRegarding Dr. Hyde's guilt or innocence I ation is authorized. Certain citizens of have no opinion, nor am I acquainted with Jackson county, represented by an attorney him, yet the Constitution of this state guar- who is an officer of this court, submit this antees unto him a fair and impartial trial, question for our determination; and, while according to the laws of the state, and that circumstances may appear which give creI take the law to mean that he shall have a dence to the conclusion that counsel for the fair and impartial trial according to the laws defendant in the case in which this appro_riof the state, and to be prosecuted in the man-ation is proposed to be made seem to have her and by the means prescribed by the Code had a shadowy connection with the matter, of Criminal Procedure, and not by means this should not, and so far as I am concernfurnished by other public bodies. Literally ed will not, prevent an affirmative expresspeaking, this language might prohibit the sion of opinion as to whether this proposed employment of counsel to assist in the prose- use of county funds is supported by the statcution of a felony case, which I believe would ute. be wise, but I do not believe the Legislature It is almost too elementary to justify refso designed, yet I am firmly of the opinion erence thereto that a criminal prosecution is that the Legislature never contemplated or one in which the state is primarily interestintended that the county court of any coun-1 ed, and in which a county, unless expressly

empowered, has nothing to do; not only the | 4. NUISANCE (8 82*) PUBLIC NUISANCE Constitution but the entire Code of Criminal

PROCEEDING TO ABATE. Procedure prove the correctness of this con- ing to abate a powder factory as a public nui

Where the petition showed that a proceedclusion, and the supplemental or adjective sance was brought by the Attorney General in law in relation thereto, defining the manner the name of the state, and the evidence showed in which criminal costs must be determined that the Attorney General, after satisfying himand paid, is additional proof that it is the petition and authorized it to be filed, the fact

self as to the propriety of the suit, signed the state, and not its subdivisions, which is charg- that counsel for the property owners injured ed with criminal prosecutions, and the ex- by the powder factory prepared it and performpenses incident to same; but I “harp uponed the legal services in the trial court is no rea

son to dismiss the suit on the ground that it a moldered string,” as this truth is too well

was not prosecuted in the name of the real parestablished to need elaboration.

ties in interest. As to whether the case in which this ap [Ed. Note.-For other cases, see Nuisance, propriation is proposed to be made is one Cent. Dig. $ 195; Dec. Dig. & 82.*] in which more than ordinary expenses should 5. NUISANCE (8 81*) PUBLIC NUISANCE

RIGHT TO INJUNCTION, be incurred is a matter which should not

The maintenance of a powder factory and concern us in passing upon the question as magazine, deliberately established by defendant to the power of the county court in the prem- at a point on the outskirts of a populous city, ises. If by our inaction, this question hav- without the knowledge or assent of adjoining ing been submitted to us, we tacitly sanction landowners, will be enjoined as a public nui

sance, where the presence of the factory and this appropriation when the same is not au- magazine, in which explosions were likely to octhorized by law, we open the way by judicial cur, depreciated the value of surrounding proplegislation for inroads upon county treasuries erty to an amount much greater than the actual which cannot prove otherwise than wasteful elers on adjoining highways and railroads, even

value of defendant's plant, and endangered travand vicious.

though the injuries from explosions in the past I am therefore unqualifiedly of the opinion had not been of a serious nature, and defendant that the writ of injunction herein should be might lose the good will of its business if com

pelled to move. granted, that in so doing the court may place

[Ed. Note.-For other cases, see Nuisance, the seal of its disapproval upon this attempt Cent. Dig. 193; Dec. Dig. § 81.*] ed misuse of county funds.


Laches will not be imputed against the

state. STATE, by MAJOR, Atty. Gen., ex rel. HOP- Dig. S 221; Dec. Dig. $ 85.*]

(Ed. Note. For other cases, see Equity, Cent. KINS et al., v. EXCELSIOR POW

7. NUISANCE DER MFG. CO. (No. 15950.)



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ABATEMENT-LACHES. (Supreme Court of Missouri, Division No. 2.

Where surrounding property owners preMarch 24, 1914. Rehearing Denied pared their petition for the abatement of a powJune 23, 1914.)

der factory as a public nuisance, within two 1. NUISANCE (8 62*)-POWDER FACTORY.

months after the first serious explosion, and it While the meré fears of mankind will not was filed in the name of the Attorney General alone create a nuisance, yet the maintenance of a few days thereafter, there was no laches. a powder factory close to a railroad and several [Ed. Note.-For other cases, see Nuisance, populous villages constitutes a nuisance per se, Cent. Dig. $8 196–199; Dec. Dig. $ 84.*] where explosions are at any time liable to occur, and explosions doing damage outside of the fac Appeal from Circuit Court, Jackson Countory grounds have occurred in the past. ty; Thos. J. Seehorn, Judge.

[Ed. Note.-For other cases, see Nuisance, Proceeding by the State by Elliott W. MaCent. Dig. $$ 153–157; Dec. Dig. $ 62.*]

jor, Attorney General, on the relation of J. 2. NUISANCE (8 64*)—PUBLIC NUISANCE-FOR- S. Hopkins and others, against the ExcelsiEIGN CORPORATIONS-LICENSES.

A license under Rev. St. 1909, § 3037, ad- or Powder Manufacturing Company, to abate mitting a foreign corporation to do business the defendant's powder factory and magawithin the state, does not remove it from the zine as a public nuisance. From a judgment law relating to nuisances, and a foreign corpora- denying an injunction, relators appeal. Retion, licensed to manufacture powder, will be enjoined from carrying on its business not

versed and remanded. withstanding it is lawful, where such business

This is a proceeding to abate the defendendangers persons within the vicinity. [Ed. Note.--For other cases: see Nuisance, dynamite magazine as a public nuisance, by

ant's powder factory, powder magazine, and Cent. Dig. & 138; Dec. Dig. $ 64.*] 3. NUISANCE (8 62*)—“PUBLIC NUISANCE."

injunction. The trial court found for the deThe maintenance of a powder factory and fendant and dismissed the bill. The petition magazine which endangered public highways is broad enough to cover any theory of the and railroads, as well as neighboring villages, case shown by the evidence, and prays that deis a "public nuisance," which is defined as an offense against public order by unlawfully do- fendant be enjoined “from manufacturing or ing any act which annoys, injures, endangers, storing any powder, dynamite or other high or interferes with the rights or property of a explosives in any of its said buildings or on whole community or neighborhood.

its said lands, or any part thereof, or on any [Ed. Note:-For other cases, see Nuisance, other lands in the neighborhood in which the Cent. Dig. 88 153–157; Dec. Dig. 8 62.*

For other definitions, see Words and Phrases, same are situated, and the plaintiff further vol. 6, pp. 5799–5804.]

prays for any and all other orders, judgments,

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

decrees, and relief to which in justice and money." Mr. Sloan was a witness for dein equity it may be deemed to be entitled, fendant and did not deny the statement. Mr. and for the costs of this suit." The answer Johnson still owns about a hundred acres states that defendant was, on August 3, 1905, adjoining the railroad west of defendant's licensed as a foreign corporation to do busi- land. The land thus purchased is south of ness in this state as a manufacturer of, and Kansas City, about two miles from the terdealer in, blasting and sporting powders and minus of the street car tracks. It is half high explosives, and that such license is still a mile long north and south, bounded west in effect; that the location of defendant's by the “Frisco" Railroad. plant was selected by it as the best that could On September 6, 1904, the defendant conbe had in the western part of Missouri, the tracted with the railroad company for the eastern part of Kansas, and the northwest- construction of suitable switch tracks on de ern part of Arkansas; that the industries fendant's grounds, and agreed to make cerof that territory are such as to require a tain stated payments to reimburse the raillarge amount of blasting powder, the manu- road company for the expense of such confacture of which is alleged to be necessary struction. That contract contained the folfor the public welfare and defense; that lowing: there is no other blasting powder factory in "Provided, however, that in case the powder Missouri; that the nearest railroad had con- company is prevented, by fire, accident, or instructed switches to defendant's plant for its said plant over said tracks at any time with

junction, from making shipments to and from commercial purposes, and that defendant's in said period of two (2) years from the time buildings are at such distances from each of commencement of operation of said powder other as to prevent one from being exploded plant, then said period during which said refund by another, and that such buildings are lo- is to be made shall be extended for a term equal

to the time said powder company is prevented cated around the sides of a hill covered with from making shipments as aforesaid." timber, and that the danger of explosion in The mills and magazines of the defendant any of the buildings is exceedingly slight; by their positions form a line something like that there is no danger from explosion ex- the letter “S” with the top to the north. Be cept on defendant's ground, and that it keeps ginning at the northeast there is a row of on hand only so much powder and dynamite four "wheel mills” running west by south as is necessary to supply the trade; that de- about 200 feet apart. In them the materials fendant manufactures only black blasting for making powder are mixed and ground powder, which is the least dangerous explo- together. Three hundred feet south by east sive manufactured; that it employs a large of the most westerly wheel mill is the press, number of men, and conducts its plant with where the product of the wheel mills is presscare and caution, in accordance with the ed into cakes. Three hundred feet south by most approved methods; that the defendant's west of the press is the "corning mill," where plant is not a nuisance or source of danger, the cakes are ground into powder. About the but is a lawful work under said license; same distance south by east of the corning that defendant's plant represents an outlay mill is the glaze mill or “glaze," where the of over $100,000, and that defendant has powder is finished. About 300 feet east by built up a business worth over $250,000, all south of the glaze is the packing house, of which would be destroyed by an injunction, where the powder is packed in 25-pound metthereby depriving it of its property without al cans. The same distance south by west due process of law, and would take or dam- of the packing house is the powder magaage said property without compensation, con- zine, where it is stored by the side of the trary to the state and national Constitutions railroad switch track ready for shipment. (specifying the sections). It alleges that the Four hundred feet southwest of the powder suit is not prosecuted in the name of the magazine, and 150 feet east of the railroad, real parties in interest, and states that those is the dynamite magazine. The offices, powreal parties are the relators named in the er house, warehouses, an other buildings petition. The reply denied "each and every used in connection with them are in the allegation of new and affirmative matter set northwest corner of defendant's land. А up and contained in the answer."

tramway connects all those buildings except Mr. Gorman, president of the defendant the dynamite magazine. All the product of company, after investigating the question as the corning mill during the day is placed in to freight rates, the demand for explosives cylinders or barrels in the glaze. Those and a suitable site, selected 55 acres belong- barrels turn on solid metal shafts 442 inches ing to Peter Johnson, one of the relators, in diameter and 8 or 10 feet long. They and his brother, as the best location for turn from 6 o'clock p. m. until as late as such a plant, and through Mr. Sloan, a real 6, 10, or 11 o'clock the next morning. The estate man, purchased it at $100 an acre, friction thus caused polishes the powder and some time in the summer of 1904. Mr. John- produces heat, which dries it. son testified that at the time he sold the The Kansas City Southern Railroad Comland he asked the agent who came to pur- pany runs its trains over the Frisco track, chase it what it was being bought for, and and altogether there are about 15 regular thst be received the answer, “That is none trains over it a day, 8 of them being passenof your business as long as you get the ger trains. A public road known as the San

ta Fé Trail, not extensively traveled, nor in Q. (interrupting). What do you mean by thatvery good repair, touches the northwest cor- an upper berth in the Pullman? A. Yes, sir; ner of defendant's land, being the southern it was blown loose from the wall, and fell on

some of the passengers. One lady passenger entrance and exit to and from Holmes Park, was pinned down and couldn't get loose. That a village a little over a quarter of a mile was about all the serious damage. Then I from the defendant's glaze. Prior to the walked to the rear end, and about all the damage

was the glass blown out of the windows, and opening of the defendant's plant, Holmes this Pullman blown down; but there was no Park contained about six residences, a pub- serious damage there. Then I walked back to lic schoolhouse, a post office, and a “flag sta- the head part of the train and found the pastion" on the railroad. Since then the num

sengers more or less cut with glass, women and

children, but there were none of them, I thought ber of residences has about doubled, and at the time, seriously hurt. There was one lady there is a station agent, a boarding house, who had glass in her eye, I never could tell how and blacksmith shop. Over a mile and a much; and our porter was cut, and also one of quarter southeast of defendant's glaze is the self. I wasn't blown up, and the force came

the brakemen; I was hurt in the stomach myvillage of Hickman's Mill, with a store, post down." office, church, and several residences. A

A plate glass was broken in a store window rock road runs east and west a quarter of a at Grandview, four miles away. Some of mile north of defendant's plant. The evi- those large metal shafts were thrown across dence shows that the foot of the runway at the road and across the railroad onto an adthe glaze is 3644 feet above the railroad, joining farm. One of them was thrown more which is 450 feet distant. And from the foot than a quarter of a mile. Fragments of maof that runway to the “top of the hill” east- terial, metal and wood, were thrown on adward is 4342 feet. The photographs in evi- joining farms, a large piece of iron falling dence show an undulating landscape on and

on a house 1,700 feet away, breaking two around defendant's land, but do not show rafters. Another fell a quarter of a mile still precipitous hills or bluffs. There is consid- further away. The explosion cracked a ciserable forest growth at intervals on and tern at a house in Hickman's Mill. It broke around defendant's land. The land around windows, doors, plastering, flues, being more the powder works is used for farming, pas- or less violent according to distance, within turage, and dairying, the farms averaging a radius of several miles. The windows in 90 acres or more in size. The wheel mills, the schoolhouse at Holmes Park were sbatpress, glaze, corning mill, packing house and tered in such a way as would have been danpowder magazine are of cheap balloon con- gerous to the pupils had school been in sesstruction, made of light framing, with iron sion, and the flue was shattered so that it siding and roofs. But the glaze and wheel

was rebuilt. mills have expensive concrete floors, and the

The defendant put in evidence a list of 38 machinery of the glaze is expensive.

persons to whom it paid small sums for damThe defendant began manufacturing in

ages caused by the explosion, amounting to May, 1905. The evidence is silent on the sub- $348.07. Mr. L. W. Holmes, a merchant of ject as to what any one except the defendant Holmes Park, was a witness for the defendknew of the purpose of the defendant to ant. He received $34.59 damages to windows manufacture or deal in explosives prior to and plastering in his store and residence. the beginning of manufacturing. Prior to Mr. Harrington, the blacksmith of Holmes November 12, 1908, there were six explosions Park, was also a witness for defendant. He of wheel mills and one of the corning mill. received $15.85 for damages. Mr. G. W. Owing to the comparatively small amount of Kemper, another such witness got $14.35 for powder in those mills at any one time, and damages to a house in Holmes Park. By to its loose, unconfined condition, those ex- the explosion of the glaze the corning mill plosions did no substantial damage outside and pack house were burned; and the press of defendant's grounds. On the last-mention- and powder magazine were damaged, the roof ed date, about 6 o'clock a. m., just as a of the latter falling upon the kegs of powder. passenger train was going by defendant's The list of persons who were paid damages grounds, the glaze exploded. It then con- contained the names of persons living in all tained eight barrels or cylinders each con. directions from the powder works. taining about 100 kegs of powder, in all

The evidence tends strongly to show that 20,000 pounds. The damage done to the the attendance at the Holmes Park school train and passengers was shown by the tes

appreciably diminished after the resumption timony of the conductor as follows:

of the powder mill in February after the ex"Some of our lights were all blown out, the

plosion. window lights, and I tried to get outside by way of the door, but the doors were twisted so I

The average amount on hand daily in the couldn't open it then. Then I crawled through powder magazine during the year 1908 was the vestibule window and walked along the

16,517 kegs. In 1909 it was 11,264 kegs. The side of the train to the head coach, and then I went in and lit my lantern. We had no lantern dynamite magazine was built of double walls lights lit at that time, or any other lights in the of boards, 15 inches apart, filled between with train. Then I lit my light and walked through cinders, and the dynamite was stored in it a the train. I found the passengers cut with fine car load of 20,000 pounds at a time. glass, more or less, all of them, cut with_fine glass. I walked right back through the Pull

About the time of that explosion the deman, and found that a berth was blown down. 'fendant purchased 40 acres of land adjoin

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