county treasurer of Jackson county and his therefor, would this or any other court hesibondsmen liable therefor, if not the county court itself, as much so as if he or they should take the money and pay it to assist in the prosecution of some felony in the state of Kansas? tate a moment in holding that the taxation of that money against him was unlawful, that he was not responsible for the same, and that the execution should be quashed? Certainly not. And no one will contend to the contrary. This species of litigation, under the circumstances 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 question of the law of God and man justify or aution on a question of procedure, then in the name of heaven why should we condemn the poor officers who are ignorant of the law for doing likewise in other cases? thorize the county court of Jackson county or the treasurer thereof to also violate the laws of the state in order to assist in the prosecution of a wrongdoer? I think not. The act of the one is just as clearly a breach of the law as the other, differing only in degree, not in principle. This is self-evident, and has become a truism expressed in the words, "Two wrongs can never make a right." Moreover what great herculean master is the man Hyde, any way, that the great state of Missouri with her millions of patriotic sons and dutiful daughters, and her billions of treasures cannot grapple with him and bring him to justice without resorting to illegal means to accomplish that purpose? The mere asking the question answers it— there is no substance in the proposition. Besides that, I have no patience with those persons (who I am glad to say are few, and who are growing fewer every year) who believe that the doctors, surgeons, chemists, and lawyers of Kansas City and the state of Missouri have not the same intelligence, learning, and professional ability and skill as those of other states. With far greater plausibility and better taste, at least, the legal department of Jackson county might have mandamused the state auditor and the state treasurer to set aside this $15,000 for the purpose of paying the fees of expert witnesses in that case, for the reason that the state, and not the county, is primarily, not secondarily, responsible for any of the legitimate fees taxable in felony cases; but do not understand me by this language to state or indicate that the state, even under any circumstances, would be liable for such expert fees, over and beyond the fees prescribed by statute, for the truth is, as all lawyers and courts know, that there is not a word or line, to be found in the common law or the statutes of this state, which in the remotest degree intimates, much less authorizes, either the state or a county to pay expert witnesses fees of any character. The law recognizes no difference in the character of witnesses, in so far as their fees are concerned, and should either the state or county 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 Missouri, with all of her institutions of learning, intelligence, culture, and wealth, to even suggest that there is not sufficient scientific knowledge and experience in this state to determine whether or not a certain person died of natural causes or from poison, or through other unnatural means. This idea that the man over the hill has a farm better than any one this side, and that the lawyers and doctors in other states are more intellectual and learned than those of this state, has erroneously led many to believe that their next door neighbors are ignoramuses, if not wild and uncivilized Comanches, not worthy of consultation or respect. If counsel for the state will disabuse his mind of this fallacy, and proceed to try Dr. Hyde under the laws of this state and with the assistance of such witnesses as the law authorizes him to procure, he will find that his duty has been fully discharged, and that justice has been duly administered according to law, and that the good people of Kansas City will be fully satisfied with the result, whatever that may be, even though the courts of the country will not permit him to resort to illegal means to procure outside assistance. I do not know, nor do I care what the financial condition of Dr. Hyde is, so far as this case is concerned, yet, I am impressed with the idea that this great state should be satisfied with a prosecution of him, according to the laws thereof, without resorting to illegal means; and, moreover, the presumption is that the state is as able financially to try this case without outside assistance as Dr. Hyde is to defend himself of the charges lodged against him. To me this request for $15,000 to be used in the prosecution of the defendant smacks of persecution instead of prosecution, and by this language I mean no reflection whatever upon our able and efficient prosecutor, because I believe he, as I have frequently done, has let his zeal in what he believes to be a righteous cause to run away with his better judgment, but that is no legal reason why he or I should be sustained in doing those things which are not authorized by the law. Regarding Dr. Hyde's guilt or innocence I have no opinion, nor am I acquainted with him, yet the Constitution of this state guarantees unto him a fair and impartial trial, according to the laws of the state, and that I take the law to mean that he shall have a fair and impartial trial according to the laws of the state, and to be prosecuted in the manner and by the means prescribed by the Code of Criminal Procedure, and not by means furnished by other public bodies. Literally speaking, this language might prohibit the employment of counsel to assist in the prosecution of a felony case, which I believe would be wise, but I do not believe the Legislature so designed, yet I am firmly of the opinion that the Legislature never contemplated or intended that the county court of any coun ty of this state should, illegally or otherwise, appropriate funds to prosecute Dr. Hyde or any other person charged with a felony. Who is going to audit the account upon which this money is to be paid on? Not the state auditor, who has the exclusive authority under the laws to so do in all such cases, subject of course to the review of the courts. But this illegal expenditure of public money can never come before the courts of this state without the treasurer of Jackson county should refuse to pay the same, which, if done, would of course be at his risk, and in such case I apprehend the question of his misappropriation of that money will, in some form, reach this court for adjudication. Under the conceded law; this expenditure of this $15,000 would be illegal, I believe it would be wise to so state in this case, and thereby avoid all further litigation regarding the matter, and obviate the risk of some innocent person having the burden to bear in the near future. I, therefore, dissent from the entire expressions of the court and the various judges thereof, except I believe the judgment should be reversed. WALKER, J. (dissenting). Upon a careful examination of the question here involved I find that I cannot concur in the conclusion reached in the majority opinion, which, in not expressly determining the question submitted, gives tacit approval to the appropriation and apportionment of $15,000 of the funds of Jackson county by its county court for the proposed purpose of defraying the estimated expenses of conducting a criminal trial therein. The powers of a county as a subdivision of the state are clearly defined and limited by law, and its administrative agents, the members of the county court, have no authority except that clearly conferred by law. The proposed appropriation being foreign to the purposes for which counties are created, and beyond the powers of the county court, upon the matter being brought to our attention it becomes our duty to determine beyond a peradventure whether the appropriation is authorized. Certain citizens of Jackson county, represented by an attorney who is an officer of this court, submit this question for our determination; and, while circumstances may appear which give credence to the conclusion that counsel for the defendant in the case in which this appropriation is proposed to be made seem to have had a shadowy connection with the matter, this should not, and so far as I am concerned will not, prevent an affirmative expression of opinion as to whether this proposed use of county funds is supported by the statute. It is almost too elementary to justify ref erence thereto that a criminal prosecution is one in which the state is primarily interested, and in which a county, unless expressly PROCEEDING TO ABATE. empowered, has nothing to do; not only the | 4. NUISANCE (§ 82*) PUBLIC NUISANCE Constitution but the entire Code of Criminal Procedure prove the correctness of this conclusion, and the supplemental or adjective law in relation thereto, defining the manner in which criminal costs must be determined and paid, is additional proof that it is the state, and not its subdivisions, which is charged with criminal prosecutions, and the expenses incident to same; but I "harp upon a moldered string," as this truth is too well established to need elaboration. As to whether the case in which this appropriation is proposed to be made is one in which more than ordinary expenses should be incurred is a matter which should not concern us in passing upon the question as to the power of the county court in the premises. If by our inaction, this question having been submitted to us, we tacitly sanction this appropriation when the same is not authorized by law, we open the way by judicial legislation for inroads upon county treasuries which cannot prove otherwise than wasteful and vicious. I am therefore unqualifiedly of the opinion that the writ of injunction herein should be granted, that in so doing the court may place the seal of its disapproval upon this attempted misuse of county funds. ing to abate a powder factory as a public nuiWhere the petition showed that a proceedsance was brought by the Attorney General in the name of the state, and the evidence showed that the Attorney General, after satisfying himpetition and authorized it to be filed, the fact self as to the propriety of the suit, signed the that counsel for the property owners injured by the powder factory prepared it and performed the legal services in the trial court is no reason to dismiss the suit on the ground that it was not prosecuted in the name of the real parties in interest. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 195; Dec. Dig. § 82.*] 5. NUISANCE (§ 81*) RIGHT TO INJUNCTION, -- PUBLIC NUISANCE magazine, deliberately established by defendant The maintenance of a powder factory and at a point on the outskirts of a populous city, without the knowledge or assent of adjoining landowners, will be enjoined as a public nuimagazine, in which explosions were likely to ocsance, where the presence of the factory and cur, depreciated the value of surrounding property to an amount much greater than the actual elers on adjoining highways and railroads, even value of defendant's plant, and endangered travthough the injuries from explosions in the past had not been of a serious nature, and defendant might lose the good will of its business if compelled to move. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 193; Dec. Dig. § 81.*] 6. EQUITY (§ 85*)-LACHES-STATE. Laches will not be imputed against the STATE, by MAJOR, Atty. Gen., ex rel. HOP- Dig. § 221; Dec. Dig. § 85.*] [Ed. Note.-For other cases, see Equity, Cent. KINS et al., v. EXCELSIOR POW- (Supreme Court of Missouri, Division No. 2. 1. NUISANCE (§ 62*)-POWDER FACTORY. While the mere fears of mankind will not alone create a nuisance, yet the maintenance of a powder factory close to a railroad and several populous villages constitutes a nuisance per se, where explosions are at any time liable to occur, and explosions doing damage outside of the factory grounds have occurred in the past. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 153-157; Dec. Dig. § 62.*] PROCEEDING FOR 7. NUISANCE (§ 84*) [Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 196-199; Dec. Dig. § 84.*] Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge. Proceeding by the State by Elliott W. Major, Attorney General, on the relation of J. 2. NUISANCE (§ 64*)-PUBLIC NUISANCE-FOR- S. Hopkins and others, against the ExcelsiEIGN CORPORATIONS-LICENSES. or Powder Manufacturing Company, to abate the defendant's powder factory and magazine as a public nuisance. From a judgment denying an injunction, relators appeal. A license under Rev. St. 1909, § 3037, admitting a foreign corporation to do business within the state, does not remove it from the law relating to nuisances, and a foreign corporation, licensed to manufacture powder, will be enjoined from carrying on its business not-versed and remanded. withstanding it is lawful, where such business endangers persons within the vicinity. [Ed. Note. For other cases, see Nuisance, Cent. Dig. § 138; Dec. Dig. § 64.*] 3. NUISANCE (§ 62*)-"PUBLIC NUISANCE." The maintenance of a powder factory and magazine which endangered public highways and railroads, as well as neighboring villages, is a "public nuisance," which is defined as an offense against public order by unlawfully doing any act which annoys, injures, endangers, or interferes with the rights or property of a whole community or neighborhood. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 153-157; Dec. Dig. § 62.* For other definitions, see Words and Phrases, vol. 6, pp. 5799-5804.] Re This is a proceeding to abate the defendant's powder factory, powder magazine, and dynamite magazine as a public nuisance, by injunction. The trial court found for the defendant and dismissed the bill. The petition is broad enough to cover any theory of the case shown by the evidence, and prays that defendant be enjoined “from manufacturing or storing any powder, dynamite or other high explosives in any of its said buildings or on other lands in the neighborhood in which the its said lands, or any part thereof, or on any same are situated, and the plaintiff further 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 money." Mr. Sloan was a witness for defendant and did not deny the statement. Mr. Johnson still owns about a hundred acres adjoining the railroad west of defendant's land. The land thus purchased is south of Kansas City, about two miles from the terminus of the street car tracks. It is half a mile long north and south, bounded west by the "Frisco" Railroad. On September 6, 1904, the defendant contracted with the railroad company for the construction of suitable switch tracks on defendant's grounds, and agreed to make certain stated payments to reimburse the railroad company for the expense of such construction. That contract contained the following: "Provided, however, that in case the powder company is prevented, by fire, accident, or inits said plant over said tracks at any time withjunction, from making shipments to and from in said period of two (2) years from the time of commencement of operation of said powder plant, then said period during which said refund is to be made shall be extended for a term equal to the time said powder company is prevented from making shipments as aforesaid." decrees, and relief to which in justice and in equity it may be deemed to be entitled, and for the costs of this suit." The answer states that defendant was, on August 3, 1905, licensed as a foreign corporation to do business in this state as a manufacturer of, and dealer in, blasting and sporting powders and high explosives, and that such license is still in effect; that the location of defendant's plant was selected by it as the best that could be had in the western part of Missouri, the eastern part of Kansas, and the northwestern part of Arkansas; that the industries of that territory are such as to require a large amount of blasting powder, the manufacture of which is alleged to be necessary for the public welfare and defense; that there is no other blasting powder factory in Missouri; that the nearest railroad had constructed switches to defendant's plant for commercial purposes, and that defendant's buildings are at such distances from each other as to prevent one from being exploded by another, and that such buildings are located around the sides of a hill covered with 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. Becept 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 suit is not prosecuted in the name of the real parties in interest, and states that those real parties are the relators named in the petition. The reply denied “each and every allegation of new and affirmative matter set up and contained in the answer." Four hundred feet southwest of the powder magazine, and 150 feet east of the railroad, is the dynamite magazine. The offices, power house, warehouses, and other buildings used in connection with them are in the northwest corner of defendant's land. A tramway connects all those buildings except the dynamite magazine. All the product of the corning mill during the day is placed in cylinders or barrels in the glaze. Those barrels turn on solid metal shafts 41⁄2 inches in diameter and 8 or 10 feet long. They turn from 6 o'clock p. m. until as late as 6, 10, or 11 o'clock the next morning. The friction thus caused polishes the powder and produces heat, which dries it. Mr. Gorman, president of the defendant company, after investigating the question as to freight rates, the demand for explosives and a suitable site, selected 55 acres belonging to Peter Johnson, one of the relators, and his brother, as the best location for such a plant, and through Mr. Sloan, a real estate man, purchased it at $100 an acre, some time in the summer of 1904. Mr. Johnson 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 that he received the answer, "That is none of your business as long as you get the and altogether there are about 15 regular trains over it a day, 8 of them being passenger trains. A public road known as the San ta Fé Trail, not extensively traveled, nor in very good repair, touches the northwest corner of defendant's land, being the southern entrance and exit to and from Holmes Park, a village a little over a quarter of a mile from the defendant's glaze. Prior to the opening of the defendant's plant, Holmes Park contained about six residences, a public schoolhouse, a post office, and a "flag station" on the railroad. Since then the number of residences has about doubled, and there is a station agent, a boarding house, and blacksmith shop. Over a mile and a quarter southeast of defendant's glaze is the village of Hickman's Mill, with a store, post office, church, and several residences. A rock road runs east and west a quarter of a mile north of defendant's plant. The evidence shows that the foot of the runway at the glaze is 361⁄2 feet above the railroad, which is 450 feet distant. And from the foot of that runway to the "top of the hill" eastward is 432 feet. The photographs in evidence show an undulating landscape on and around defendant's land, but do not show precipitous hills or bluffs. There is considerable forest growth at intervals on and around defendant's land. The land around the powder works is used for farming, pasturage, and dairying, the farms averaging 90 acres or more in size. The wheel mills, press, glaze, corning mill, packing house and powder magazine are of cheap balloon construction, made of light framing, with iron siding and roofs. But the glaze and wheel mills have expensive concrete floors, and the machinery of the glaze is expensive. Q. (interrupting). What do you mean by thatan upper berth in the Pullman? A. Yes, sir; it was blown loose from the wall, and fell on some of the passengers. One lady passenger was pinned down and couldn't get loose. That was about all the serious damage. Then I walked to the rear end, and about all the damage was the glass blown out of the windows, and this Pullman blown down; but there was no serious damage there. Then I walked back to the head part of the train and found the paschildren, but there were none of them, I thought sengers more or less cut with glass, women and at the time, seriously hurt. There was one lady who had glass in her eye, I never could tell how much; and our porter was cut, and also one of the brakemen; I was hurt in the stomach myself. I wasn't blown up, and the force came down." A plate glass was broken in a store window at Grandview, four miles away. Some of those large metal shafts were thrown across the road and across the railroad onto an adjoining farm. One of them was thrown more than a quarter of a mile. Fragments of ma terial, metal and wood, were thrown on adjoining farms, a large piece of iron falling on a house 1,700 feet away, breaking two rafters. Another fell a quarter of a mile still further away. The explosion cracked a cistern at a house in Hickman's Mill. It broke windows, doors, plastering, flues, being more or less violent according to distance, within a radius of several miles. The windows in the schoolhouse at Holmes Park were shattered in such a way as would have been dangerous to the pupils had school been in session, and the flue was shattered so that it was rebuilt. The defendant put in evidence a list of 38 persons to whom it paid small sums for damages caused by the explosion, amounting to $348.07. Mr. L. W. Holmes, a merchant of Holmes Park, was a witness for the defendant. He received $34.59 damages to windows and plastering in his store and residence. Mr. Harrington, the blacksmith of Holmes Park, was also a witness for defendant. He received $15.85 for damages. Mr. G. W. Kemper, another such witness got $14.35 for damages to a house in Holmes Park. By the explosion of the glaze the corning mill and pack house were burned; and the press and powder magazine were damaged, the roof of the latter falling upon the kegs of powder. The list of persons who were paid damages contained the names of persons living in all directions from the powder works. The defendant began manufacturing in May, 1905. The evidence is silent on the subject as to what any one except the defendant knew of the purpose of the defendant to manufacture or deal in explosives prior to the beginning of manufacturing. Prior to November 12, 1908, there were six explosions of wheel mills and one of the corning mill. Owing to the comparatively small amount of powder in those mills at any one time, and to its loose, unconfined condition, those explosions did no substantial damage outside of defendant's grounds. On the last-mentioned date, about 6 o'clock a. m., just as a passenger train was going by defendant's grounds, the glaze exploded. It then contained eight barrels or cylinders each containing about 100 kegs of powder, in all 20,000 pounds. The damage done to the train and passengers was shown by the tes-appreciably diminished after the resumption timony of the conductor as follows: "Some of our lights were all blown out, the window lights, and I tried to get outside by way of the door, but the doors were twisted so I couldn't open it then. Then I crawled through the vestibule window and walked along the side of the train to the head coach, and then I went in and lit my lantern. We had no lantern lights lit at that time, or any other lights in the train. Then I lit my light and walked through the train. I found the passengers cut with fine glass, more or less; all of them, cut with fine glass. I walked right back through the Pullman, and found that a berth was blown down. The evidence tends strongly to show that the attendance at the Holmes Park school of the powder mill in February after the explosion. The average amount on hand daily in the powder magazine during the year 1908 was 16,517 kegs. In 1909 it was 11,264 kegs. The dynamite magazine was built of double walls of boards, 15 inches apart, filled between with cinders, and the dynamite was stored in it a car load of 20,000 pounds at a time. About the time of that explosion the defendant purchased 40 acres of land adjoin |