the policy, must mean the complete destruc- consideration in the case of Palatine Ins. Co. tion of the insured property by fire, so that v. Weiss, 22 Ky. L. Rep. 994, 59 S. W. 509. nothing of value remains of it, as distin- The evidence as to the condition of the walls guished from a partial loss, where the prop-left standing after the fire was conflicting. erty is damaged, but not entirely destroyed. Several witnesses for the insurance comThis does not mean that the materials of pany testified, in substance, that the foundawhich the building was composed were all tion and part of the walls left standing were utterly destroyed or obliterated, but that good and suitable for use in rebuilding the the building, though some part of it may be structures, while, on the other hand, witleft standing, has lost its character as a nesses for the plaintiff testified that the building, and instead thereof has become a walls left standing had been condemned by broken mass, or so far in that condition that the city inspecter of buildings, and were reit cannot properly any longer be designated quired to be taken down. The court apas a building; but the inquiry al- proved an instruction to the effect that the ways is whether, after the fire, the thing in- jury were to determine whether the buildsured still exists as a building." On the ing was destroyed totally by the application facts in that case the court held that, as a of the test that its "identity and specific matter of law, there was not a total loss, and character" had been changed. In reviewing apparently based its decision upon the prin- the authorities, the court cites the Wisconciple adopted in marine insurance cases. sin cases above noted, and Royal Ins. Co. v. The Ohio courts have also passed upon the McIntyre, 90 Tex. 170, 35 L. R. A. 672, 37 meaning of the words "total loss" in Penn- S. W. 1068, and said in reference to those ausylvania F. Ins. Co. v. Drackett, 63 Ohio St. thorities: "It is the opinion of the court 41, 57 N. E. 962, and, although the opinion that the words 'total loss' when applied to in that case was filed more than three years a building, do not mean that the materials subsequent to the decision in Royal Ins. Co. of which the building was composed were all v. McIntyre, 90 Tex. 170, 35 L. R. A. 672, 37 totally destroyed and obliterated. It is not S. W. 1068, no reference is made to that case, necessary that all the parts and materials or to the principles announced therein. The composing the building should be absolutely building_involved was a two-story frame and physically destroyed, but the inquiry alhouse. It does not appear from the opinion ways is, Does the insured building, after the to what extent the building was damaged, fire, still exist, preserving substantially its but the question of total loss was submit- identity, or has it become so broken and ted to the jury under certain instructions, disintegrated that it cannot be designated and in defining what was total loss the court as the structure which was insured?" It approved the following language: "A pol- will be observed that the court in this case icy of insurance is upon the building as had in mind two things: First, that it was such, and not upon the materials of which it the building, and not the materials in it, is composed. If you find that the identity which were covered by the insurance; secand specific character of the insured build- ond, that a total loss occurred when the ing was entirely destroyed by fire, then you parts remaining were so broken and disinmust find for the plaintiff." Again: “Al-tegrated that the original structure could though you may find that after the fire a large portion of the four walls were left standing, and that certain parts of the building were left untouched by the fire, still, if you find that the building has lost its identity and specific character, you may find that the building was totally destroyed." With special reference to the words "identity and specific character" the court states: "Taken in connection with the general charge, there could have been no misapprehension as to the meaning. The terms are not obscure, and convey as well as words can the idea to be expressed by them. A build-used to define total loss only in cases where, ing loses its identity and specific character when it has been so far destroyed by the fire that it can no longer be called a building, and the portions that remain cannot be utilized to advantage in rebuilding it. What remaining parts could be made available in rebuilding can only be determined by exercising a sound discretion in the light of the evidence." It will be observed that the court in this case approves the use of the words "identity and specific character" with reference to total loss, and yet states specifically that the question must be left to the jury to determine according to the facts of each particular case. The Kentucky supreme court has also had the question under not be identified or designated; but no rule was adopted by which such a test is to be applied. In many of the cases in which these terms "identity" and "specific character" were used in the course of the discussion, the writer was defining the subject-matter of insurance, and endeavoring to distinguish the building, as such, from the materials of which it was composed. From a perusal of the principal insurance cases in this country, we think it is evident that the words "identity" and "specific character" have been according to the facts under consideration, there was substantially a total destruction of the thing insured. There never has been any successful attempt to define what is meant by these words, except in reference to the specific facts in each case. In one sense the specific character of a building is destroyed when the roof is removed, or the interior burned out, and the balance of the structure is left intact; the damage being comparatively slight. The identity of a building is not destroyed if, from the ruins, the original is recognizable; and yet the damage may be complete, and the loss total. While true that the subject of insurance is 'the building, and not the materials compos of what a prudent owner would do under such circumstances, it is proper to consider, not only the condition of the walls standing, whether they are suitable, in place, to be used as a part of the reconstruction, but also the relative value of such walls, in place, as compared with the cost of rebuilding. It does not follow that, because some part of the remnants may be utilized, in place, there is not substantial and total destruction and loss. The law will not take note of trifles in this respect. It follows that there must remain a substantial part of the building in place, which, with reasonable repairs, can be used in its reconstruction. What such substantial part is is a question of fact deperding upon the nature and cost of the structure and the character and condition of the remaining parts, and it was proper to submit to the jury in this case all evidence bearing upon that question, including the condition of the building as left by the fire and the cost of rebuilding. In view of a new trial we will refer to certain other rulings of the court. As to the relation which the engine house bore to the main structure, it seems to us that this one main building. There was one plant and one business, all being conducted from a central point. Conceding that the engine house was practically uninjured by the fire, the question was not whether it was in itself completely destroyed or only partially so, but whether the entire plant and structure was so affected, and for this reason the ruling of the court on this subject was correct. ing it, when does a building cease to be such, | be granted. In arriving at a determination within the meaning of the policy? The object of the contract is to indemnify the insured, and not permit him to speculate at the expense of the insurer; to compel the insurer to pay that indemnity in money or to restore the structure, and not permit speculation at the expense of the insured. If, then, as a reasonably prudent business proposition, the remaining portions of the building could be utilized, in place, for the purposes of reconstruction or repairing, the insurer must be permitted to exercise its option to either reconstruct, or pay the reasonable cost thereof, as found by the board of arbitrators. If, however, no part of the building remains which can be utilized, then the destruction is complete, and the loss total, and there is no call for arbitration. Where the line is to be drawn between these two conditions is, in each particular case, a question of fact. It adds nothing to say that total loss occurs when the identity and specific character of the structure is destroyed. We receive no aid from the suggestion that total loss ensues when the reconstructed building would be recognized as a new, rather than the old, structure. No light is thrown on the situation by the dec-story building was a mere appendage to the laration that total loss follows from the fact that the remnants constitute a mass of ruins, for amidst the ruins may remain a substantial part of the building. The question, being one of fact, must be determined by the same test applicable to other cases where it is necessary to adopt a standard of human conduct, and that is, What would a prudent person do under such circumstances? The rule stated in Royal Ins. Co. v. McIntyre, 90 Tex. 170, 35 L. R. A. 672, 37 S. W. 1068, is credited to the English case of Irving v. Manning, 6 C. B. 399. In that case a ship had been so damaged at sea as to require the expenditure of a larger sum to make her seaworthy than she would be worth after the repairs were made, and the court held the loss to be total, applying the following "The question of loss, whether total or not, is to be determined just as if there was no policy at all; and the established mode of putting the question when it is alleged that there has been what is perhaps improperly called a constructive total loss of a ship is to consider the policy altogether out of the question, and to inquire what a prudent uninsured owner would have done in the state in which the vessel was placed by the perils insured against. If he would not have repaired the vessel, it is deemed to be lost." Reference is also made to the views expressed by Justice Campbell in Brady v. North Western Ins. Co. 11 Mich. 426, approving the English doctrine. The trial court did not submit the case to the jury upon this theory of the law. Total loss was not conclusively established by the evidence. The requests of appellant fairly presented the law upon that subject, and should have been given, assuming that by "above ground" was meant "above foundation." Ohage v. Union Ins. Co. 82 Minn. 426, 85 N. W. 212. For this error a new trial must test: As we understand the evidence, the north wall was double, composed of two single walls, which had been fastened together with iron bolts, one of which belonged to the building under consideration and the other to an adjoining building, which was also damaged by this fire. In the course of the examination of the witness. respondent asked this question: "Considering that double wall-that north wall--as a wall to be used for two buildings of the character of the two buildings which stood there before the fire, in your opinion how much of that wall could safely and properly remain as a double wall for the two buildings?” This question was objected to as incompetent and irrelevant, and the answer was received over the objection. Appellant's theory seems to be: Conceding that the portion of the double wall which remained after the fire was not of sufficient strength to sustain buildings similar to those which formerly stood upon it, yet, taken together, the two walls would be sufficient to support the building in question, if reconstructed, and that appellant would have a right to the use of such double wall for that purpose. It seems apparent that appellant is entitled to no greater rights in that part of the double wall which remained after the fire than it had in the wall as it was constructed and used prior thereto. If, in fact, it was a double wall, bolted together, for the purpose of mutual support, to that part of the both buildings. The ruling of the court was correct. building, each wall was dependent upon the other for its solidity, and it would follow that, if a fire damaged the walls so that new Objection was made and exception taken ones would have to be built in part, the rela-to the order of the court in directing that the tive rights of the parties would remain the jury should view the premises. We have same. Neither one could assume to absorb discussed this question in another case dethe entire strength of the remaining double cided concurrently herewith (Northwestern wall for the purpose of its own building, Mut. L. Ins. Co. v. Sun Ins. Office (Minn.) and hence, if the single wall belonging to 88 N. W. 272, and it will be unnecessary to appellant was not of sufficient strength, consider it here. standing alone, to support a reconstruction, then there was a total destruction of appellant's wall, and for that purpose it was proper to show that the double wall remaining was not of sufficient strength to support The order denying the motion for judgment notwithstanding the verdict is affirmed, and the order denying the motion for a new trial is reversed, and a new trial 'granted. 1. A proposed amendment to the Con- 3. 4. inally for felony or misdemeanor otherwise than by indictment or information is self-operating from the time it takes effect. The adoption of a law authorizing the prosecution of crimes already committed, by information, is not forbidden by the constitutional provisions against er post facto laws. A statute prescribing the procedure is not necessary to permit the filing of informations under a constitutional amendment forbidding the prosecution of criminals except by indictment or information, although prosecution by information was not authorized prior to the amendment, since the common-law information may be resorted to. NOTE. For a case in this series holding that constitutional amendments take effect from the time of their ratification, see Seneca Min. Co. v. Secretary of State (Mich.) 9 L. R. A. 770. As to constitutionality of statute changing mode of procedure from indictment to information, see Re Wright (Wyo.) 13 L. R. A. 748, and State v. Tucker (Or.) 51 L. R. A. 246. As to what are ex post facto laws generally, see Anderson v. O'Donnell (S. C.) 1 L. R. A. 632, and note; State v. Cooler (S. C.) 3 L. R. A. 181, and note; Re Tyson (Colo.) 6 L. R. A. 472; Com. v. Graves (Mass.) 16 L. R. A. 256; People v. Hayes (N. Y.) 23 L. R. A. 830; French v. Deane (Colo.) 24 L. R. A. 387; People er rel. Chandler v. McDonald (Wyo.) 29 L. R. A. 834: Re Miller (Mich.) 34 L. R. A. 398; State v. Caldwell (La.) 41 L. R. A. 718; State 5. 6. Leave of court was not necessary at common law to authorize the filing of an information for the prosecution of a criminal. An information charging one with crime may be filed in vacation. 7. The use of the initials, instead of the full given name, of the prosecuting attorney, does not invalidate an information charging the commission of crime. The information was signed "N. C. Hickcox." This was sufficient. State v. Kinney, 81 Mo. 101; 1 Bishop, Crim. Proc. 13th ed. § 698. Provisions as to prosecutions by information are self-enforcing. All negative or prohibitory clauses in a constitution are self-enforcing. St. Joseph Bd. of Public Schools v. Patten, 62 Mo. 444; Ex parte Snyder, 64 Mo. v. Bates (Utah) 43 L. R. A. 33; and Murphy v. Com. (Mass.) 43 L. R. A. 154. As to self-executing constitutional provisions, see Willis v. St. Paul Sanitation Co. (Minn.) 16 L. R. A. 281, and note; Beard v. Hopkinsville (Ky.) 23 L. R. A. 402; Hickman v. Kansas (Mo.) 23 L. R. A. 658; St. Louis, A. & T. R. Co. v. Fire Asso. of Philadelphia (Ark.) 28 L. R. A. 83; Wachingtonian Home v. Chicago (Ill.) 29 L. R. A. 798; Anderson v. Whatcom County (Wash.) 33 L. R. A. 137; Illinois C. R. Co. v. Ihlenberg (C. C. App. 6th C.) 34 L. R. A. 393; Russell v. Ayer (N. C.) 37 L. R. A. 246; Searle v. Lead (S. D.) 39 L. R. A. 345; State Bd. of Tax Comrs. v. Holliday (Ind.) 42 L. R. A. 826; Louisville & N. R. Co. v. Com. (Ky.) 43 L. R. A. 541; and McHenry v. Downer (Cal.) 45 L. R. A. 737 was 58; Cummings v. Winn, 89 Mo. 56, 14 S. W. | $13.65 in his pocketbook made his way into 512; Hickman v. Kansas, 120 Mo. 110, 23 L. R. A. 662, 25 S. W. 225; Householder v. Kansas City, 83 Mo. 488; Sheehy v. Kansas City Cable R. Co. 94 Mo. 574, 7 S. W. 579; Keith v. Bingham, 100 Mo. 300, 13 S. W. 683; Law v. People ex rel. Huck, 87 Ill. 385; Hills v. Chicago, 60 Ill. 86; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Donahue v. Graham, 61 Cal. 276; Steinback v. Norwood, 57 Cal. 647; DeTurk v. Com. 129 Pa. 151, 5 L. R. A. 853, 18 Atl. 757; Illinois C. R. Co. v. Ihlenberg, 34 L. R. A. 393, 21 C. C. A. 546, 43 U. S. App. 726, 75 Fed. 873, 34 L. R. A. 396; Willis v. Mabon, 48 Minn. 140, sub nom. Willis v. St. Paul Sanitation Co. 16 L. R. A. 285, 50 N. W. 1110. The terms "information" and "indictment," used in the Constitution, are to be understood in their common-law sense. Ex parte Slater, 72 Mo. 102; State v. Kelm, 79 Mo. 515. The provisions became operative when the result of the canvass was announced,-December 20, 1900. Phelps v. State, 15 Tex. App. 45; Real v. People, 42 N. Y. 277; Duluth v. Duluth Street R. Co. 60 Minn. 178, 62 N. W. 267. An amendment providing for prosecution by information for felonies is not an ex post facto law. Re Wright, 3 Wyo. 478, 13 L. R. A. 748, 27 Pac. 565; Ex parte Bethurum, 66 Mo. 550; State v. Thompson, 141 Mo. 410, 42 S. W. 949; Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570; Cooley, Const. Lim. chap. 9, p. 326; Thompson v. Missouri, 171 U. S. 383, 43 L. ed. 206, 18 Sup. Ct. Rep. 922. The information at common law was an accusation exhibited against a person for a criminal offense by the attorney general or the solicitor general, and at his direction and under his oath of office, and without oath. 4 Bl. Com. pp. 308-310; 1 Chitty, Crim. Law, pp. 845, 846; 1 Bishop, Crim. Proc. § 144; State v. Kelm, 79 Mo. 515; State v. Briscoe, 80 Mo. 643. The attorney general, at common law, need not ask leave of court to file an information. the barn of Mr. Swillum, which was in the 4 Bl. Com. p. 309; 2 Bishop, Crim. Proc. meat shop, and bought some meat, and paid § 142. for it with a $5 bill, and received the change. Messrs. Boyle, Priest, & Lehmann and The defendant admitted this, but testified Walter H. Saunders, amici curiæ. Burgess, Ch. J., delivered the opinion of the court: Defendant was convicted in the circuit court of Moniteau county of robbery in the first degree, and his punishment fixed at five years' imprisonment in the penitentiary, under an information filed by the prosecuting attorney of said county in the office of clerk of the circuit court in vacation. He appeals. On the evening of November 15, 1900, M. L. Moad, a farmer residing in said county, made his appearance in California very much under the influence of liquor, and with that he got it from his wife. She testified he came home that evening, and got it, and went after the meat. He said he left Moad and went home, and got the money, and returned, and bought the meat. Moad, soon after the occurrence in the alley, went into the saloon, so Swillum testified, and then passed out again. About an hour later, Swillum, after returning from his supper, found Moad sitting in a stooping position on the ground in the rear of his saloon, and invited him in, and he came. Swillum said Moad remarked, when he came in before supper, he felt like vomiting, and Swillum told him, in that event, he had better retire; and Moad adopted the suggestion and retreated from the saloon. When Moad came into the saloon the second time he took a seat, and staid until about 11 o'clock, and then complained, on leaving, to Swillum, that he had been robbed. The counsel for the defendant moved to quash the information, alleging various reasons, and among others that the information was not properly signed by the prosecuting attorney, and because it was filed in vacation of the court, and because the offense was a felony, and when it was committed the Constitution required all felonies to be prosecuted by indictment, and because the information was not sworn to by the officers, and because it was not supported by the affidavit of any citizen. The information, leaving off the style of the cause, is as follows: mitted on the 16th day of November, 1900, and it becomes important in the outset to determine when the constitutional amendment took effect,-whether before or after the commission of the offense. The provision of our Constitution with respect to amendments reads as follows: Section 2. General Assembly may Propose Amendments-Submitted to Vote. "The general assembly may, at any time, propose such amendments to this Constitution as a majority of the members elected to each house shall deem expedient; and the vote thereon shall be taken by yeas and nays, and entered in full on the journals. The proposed amendments shall be published with the laws of that session, and also shall be published weekly in some newspaper, if such there be, within each county in the state, for four consecutive weeks next preceding In the Circuit Court of Moniteau County, the general election then next ensuing. The Missouri, January Term, 1901. proposed amendments shall be submitted to N. C. Hickcox, prosecuting attorney with a vote of the people, each amendment sepain and for the county of Moniteau, in the rately, at the next general election therestate of Missouri, under his oath of office, after, in such manner as the general assemand upon his best knowledge, information, bly may provide. If a majority of the qualiand belief, informs the court that Charles fied voters of the state, voting for and against Kyle, on the 16th day of November, 1900, any one of said amendments, shall vote for at the county of Moniteau and state of Mis- such amendment, the same shall be deemed souri, in and upon one M. L. Moad unlaw-and taken to have been ratified by the people, fully and feloniously did make an assault, and shall be valid and binding, to all intents and fourteen dollars of the lawful money of the United States, of the value of fourteen dollars, the property of the said M. L. Moad, from the person and against the will of the said M. L. Moad, then and there, by force and violence to the person of the said M. L. Moad, feloniously did rob, steal, take, and carry away, against the peace and dignity of the state. N. C. Hickcox, "By the law of England, informations by the attorney general, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands or goods, or both. 4 Bl. Com. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself." Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935; 1 Bishop, New Crim. Proc. §§ 141, 142. And not until the amendment of § 12, art. 2, of the state Constitution, adopted at the general election held on the 8th day of November, 1900, by which it is provided that "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies," could a person be prosecuted criminally in this state for a felony otherwise than by indictment, "except in cases arising in the land and naval forces, or in the militia when in actual service in time of war or public danger;" but since that time they have been, and are now, concurrent remedies. The of fense charged in the information was com and purposes, as a part of this Constitution." As a general rule a constitutional amendment takes effect from the day of its ratification by the voters to whom it is submitted for that purpose. Re Deckert, 2 Hughes, 183, Fed. Cas. No. 3,728. But an exception to this rule is when a different provision is made by law. It will be observed that § 2, supra, provides that "if a majority of the qualified voters of the state, voting for and against any one of said amendments, shall vote for such amendment, the same shall be deemed and taken to have been ratified by the people, and shall be valid and binding, to all intents and purposes, as a part of this Constitution," which, when taken by itself, is so clear that the amendment was in force and effect from the time it was ratified by the vote of the people as to leave no room for construction. "The rule of the common law is that every law takes effect immediately upon its passage, unless some other time is therein prescribed for that purpose." Real v. People, 42 N. Y. 270. In 1894 there was submitted to the qualified voters of the state of Florida for ratification an amendment to § 9 of article 16 of the Constitution of that state, and the question as to the time when it took effect and became operative as part of the state Constitution was before the supreme court for An Advisory Opinion to the Governor, 34 Fla. 500, 16 So. 410. Section 1 of article 17 of the Constitution prescribed the manner in which amendments to that instrument should thereafter be made, as follows: "Either branch of the legislature, at a regu lar session thereof, may propose amendments to this Constitution; and if the same be agreed to by three fifths of all the mem |