lations, is implied in the grant of the franchise; and if this ordinance is construed to mean that it is left with the city officers to say, arbitrarily, whether or not the railroad company may tear up the streets to make repairs, it would be equivalent to subjecting the existence of the franchise to the will of the board of aldermen, and would be in violation of the constitution. But if it means that when repairs of the railroad become necessary, requiring the tearing up of the street, and rendering it for the time being unsafe or inconvenient for travel, the railroad people must, before doing so, report to the city authorities, and proceed in the matter under such reasonable police restrictions as they may prescribe, then it impairs no contract and violates no provision of the constitution; and we may add that, if that is what it means, the courts will hold the city to it, if it should attempt to use it to impair the railroad company's rights. It will not do for the railroad company to say that it has now the same rights that it had before it was taken into the city, for that is so only under conditions. The rights are the same, but they are to be adjusted to the changed situation, just as by the same rule are the rights of the people whose homes are embraced in the new city limits. Their vested titles are not violated, but in the manner in which they may use their property the city has something to say. As was said by our Kansas City court of appeals in this case, per Ellison, J.: 'Grant that before the extension the company had as much right to dig into and tear up the street as a citizen has to build a frame house anywhere on his land which is outside of a city; yet, in the like case, if the citizen's land becomes a part of a city by the extension of the limits, his right may become extinguished by the extension of the fire limits.' In a wise exercise of the police power of the state is shown one of the highest traits of good government. The supreme court of Wisconsin have said: "The character of a corporation in no sense exempts it from police supervision and regulation. Such an exemption could never be implied from mere grant of power, and would not be valid if expressly conferred. It is frequently and rightly said that sovereign authority cannot devest itself of its ordinary police power over persons, whether natural or artificial, any more than it can of the power to make laws or to punish crime.' Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. 422, 72 N. W. 1123. And again, in the same case, it is said: "The tendency of modern development is in the direction of greater, rather than more restricted, police power; and necessarily so, in order to meet the new damages and increase of old damages constantly occurring as natural incidents of advancing civilization.' As early as 1855 the supreme court of Vermont, speaking through Redfield, C. J., said: 'But it has sometimes been supposed that corporations possess a kind of immunity and exemption

*

from legislative control, extending to everything materially affecting their interest, and where there is no express reservation in their charters.' Then, after learned discussion of that subject, the court further said: 'We think the power of the legislature to control existing railways in this respect may be found in the general control over the police of the country which resides in the lawmaking power of all free states. * * That is a responsibility which legislatures cannot devest themselves of, if they would.' Thorpe v. Railroad Co., 27 Vt. 140. And in 1837 the supreme court of the United States, per Taney, C. J., said: "The continued existence of a government would be of no great value if by implications and presumptions it was disarmed of the power necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to privileged corporations.' Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge, 11 Pet. 548, 9 L. Ed. 824. The supreme court of Nebraska has expressed the law thus: 'Under the general police power of the state, the legislature has the authority to place new and additional burdens upon corporations, when such burdens are for the safety of the people and for the public good, although the power to do so may not be reserved in the charter. Of course, under the guise of the police power, property of corporations or individuals cannot be confiscated.' State v. Chicago, B, & Q. R. Co., 29 Neb. 417, 45 N. W. 470. In Boston Beer Co. v. Massachusetts, 97 U. S. 25, loc. cit. 33, 24 L. Ed. 989, 992, per Bradley, J., the court said: 'Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and public morals. The legislature cannot by any contract devest itself of the power to provide for these objects.' In Northwestern Fertilizing Co. v. Village of Hyde Park, 97 U. S. 659, 24 L. Ed. 1036, the plaintiff was a corporation chartered by the legislature of Illinois, authorized to locate its works in Cook county at a certain point, and manufacture fertilizer from the carcasses of dead animals. The location was an uninhabited spot when the corporation established its works and engaged in its peculiar industry. Afterwards the village of Hyde Park grew up, and extended its limits to include the fertilizer works. Then the village passed an ordinance forbidding the hauling of offensive matter through the village, which very materially interfered with the exercise of the corporation's franchise. The question before the court was as to the validity of the ordinance. That court said (97 U. S., loc. cit. 667, 24 L. Ed. 1039): 'We cannot doubt that the police power of the state was applicable and adequate to give an effectual remedy. That power belonged to the

states when the federal constitution was adopted. They did not surrender it, and they all have it now. It extends to the entire property and business within their local jurisdiction.' The same principle has been declared by this court. State v. Murphy, 130 Mo. 10, 31 S. W. 594. In that case the Laclede Gaslight Company claimed the right, under its charter, to excavate the streets of the city to lay electric wires underground, but the city interposed and forbade its doing so until it should comply with certain ordinances passed to regulate such matters. This court, per Macfarlane, J., said (130 Mo., loc. cit. 23, 24, 31 S. W. 597, 598): "The grant by the state to relator, though construed to include the right to use electricity for illuminating purposes in respect to such right, was taken subject to reasonable regulations as to its use, and the power to regulate has been delegated to the city of St. Louis. Under its general police power, the city has the right to require compliance with reasonable regulations as a condition to using its streets by electric wires.'

"The briefs of counsel are rich with learning on this subject, but we have quoted sufficient to show the state of law, and to guide us to a conclusion in this case. The ordinance in question is clearly a police regulation to protect the streets of the city. It was enacted before the city extended its limits, but when the limits were extended the ordinance covered all the territory taken in, and the inhabitants thereof, both natural and artificial. Hickman v. City of Kansas City, 120 Mo. 126, 25 S. W. 225, 23 L. R. A. 658. The city is charged with the duty of preserving its streets in a reasonably safe condition for the public use, the lives of its inhabitants and the safety of their property demand the performance of that duty, and the city could not devest itself of it if it desired to do so. If we say that the railroad company has a right to tear up the streets, without regard to the city's authority, then we have a power turned loose in the streets inconsistent with the particular sovereign power delegated by the state to the city, and liable to be destructive of the public safety. A private citizen sometimes has the right to dig up the street,-for example, if it be necessary to connect or repair a broken connection with a water main, a gas main, a sewer; and that right the city authorities cannot arbitrarily refuse, but the citizen must comply with the reasonable regulations, and obtain permission, and do the work as the ordinance requires. The corporation has as much right as the citizen, but no greater; that is, it has the right to dig up the street when necessary for its business, but, like the citizen, it must apply to the constituted authorities for leave, and act under reasonable regulations. It is argued by the learned counsel for the railroad corporation that the power to grant permission implies the power to refuse it, and thus puts the franchise at

the mercy of the city authorities. But there is a law over the city authorities as well as over the corporation, and the ordinance is to be construed as designed to effectuate a lawful, and not an unlawful, purpose. It means that the railroad company cannot dig up the streets without permission of the board of aldermen, but it also means that the board of aldermen cannot refuse permission, under reasonable regulations, when the railroad company needs it.

"Under the agreed statement of facts, the defendant should have been held guilty of violation of the ordinance. The judgment is reversed, and the cause remanded to the criminal court of Jackson county to be proceeded with according to the law as herein laid down. All concur."

R. B. Middlebrook and A. S. Marley, for appellant. D. B. Holmes, Frank Hagerman, and Willard P. Hall, for respondent.

PER CURIAM. The foregoing opinion delivered by VALLIANT, J., in division No. 1, is adopted as the opinion of the court in banc, all the judges concurring.

STATE v. VANDENBURG. (Supreme Court of Missouri, Division No. 2. Dec. 18, 1900.)

FALSE PRETENSES-INDICTMENT-VALIDITYALLEGATIONS SUFFICIENCY - VALUE OF REPRESEN

PROPERTY-AVERMENT-FALSE

TATIONS.

1. The fact that an indictment was drawn under an unconstitutional section of a statute did not render it invalid, where it constituted a good indictment under another section of the statute.

2. Rev. St. 1889, § 3564, provides that every person who, with intent to cheat or defraud another, designedly, by color of any false writing, or by any other false pretense, shall obtain from any person any money, personal property, right in action, or other valuable thing or ef fects whatsoever, shall be punished in the same manner as for feloniously stealing the money, property, or thing so obtained. Held, that an indictment alleging that defendant, with intent to unlawfully cheat and defraud S., did unlawfully, knowingly, feloniously, and fraudulently represent to S. that he was then and there an authorized insurance agent, and, as such pretended agent or representative of an insurance company, obtained from S. two notes, of the value of $36, and the defendant was not then and there the agent or representative of any insurance company, constituted a good indictment, under the statute.

3. Where an indictment charged that defendant induced plaintiff to deliver to him a certain valuable thing, to wit, a promissory note for $36, of the value of $36, the contention that the indictment failed to show that the note was of value cannot be sustained.

4. Where an indictment charged defendant with unlawfully, knowingly, and feloniously obtaining a note from S. by falsely representing himself to be the agent of an insurance company, the fact that the indictment also charged that defendant promised to secure an insurance policy for S., the promise to be executed in the future, did not render the indictment nugatory, as not charging a crime, since the material representation which led S. to part

with his property was that defendant was in fact an agent of the company at the time the representations were made, and the accompanying promise did not take away the criminal character of such representations.

Appeal from circuit court, Lincoln county. John Vandenburg was indicted for obtaining a note by means of false and fraudulent pretenses, and from an order sustaining a demurrer to the indictment, and from a judgment in favor of defendant, the state appeals. Reversed.

The Attorney General and Sam B. Jeffries, for the State. Norton, Avery & Young, for respondent.

BURGESS, J. At the October term, 1899, of the circuit court of Lincoln county, defendant was indicted for obtaining a promissory note for $36.30 from one John Schloeman, dated at Troy, Mo., on the 2d day of May, 1899, made payable to the order of T. J. Hamlett six months after date, and signed by said Schloeman, by means of false and fraudulent pretenses. At the same term of the court at which the indictment was found defendant demurred thereto for the following grounds of objection, to wit: First, because the indictment does not follow the form prescribed by said statute; second, because said statute is unconstitutional and void; third, because the indictment fails to show that any property or thing obtained by defendant as charged in said indictment had any value; fourth, because it is shown by the indictment that the property or thing obtained or charged to have been obtained by defendant was obtained by reason of a contract or promise to be executed or carried out in the future by defendant. The demurrer was sustained, and judgment rendered thereon in favor of defendant. state appeals.

The

The defendant is not represented in this court, but, judging from the objections taken to the indictment by the demurrer, the contention seems to be that the indictment was drawn under section 3826, Rev. St. 1889; that that section is unconstitutional, and the indictment must, of course, be held invalid. But, however this may be, it makes no difference under what particular section of the statute the indictment may have been drawn, nor the infirmities of such section or of the indictment thereunder, provided it be good under some other section of the statute which is valid. Section 3564, Rev. St. 1889, provides that "every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain

from any person any money, personal property, right in action or other valuable thing or effects whatsoever,

* shall, upon conviction thereof, be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained." Now, the indictment charges

that defendant, "with the intent then and there unlawfully and feloniously to cheat and defraud one John Schloeman, then and there unlawfully, knowingly, and feloniously did falsely and fraudulently represent, state, and pretend to the said John S. Schloeman that he, the said John Vandenburg, was then and there the authorized agent and representative of the New England Mutual Life Insurance Company of Boston, Massachusetts, a corporation duly organized, incorporated, and existing under the laws of the state of Massachusetts, and that he, the said John Vandenburg, had full right and authority from said corporation then and there to transact the business of life insurance for and on behalf of said corporation, and to sell, and to contract for the sale of, life insurance policies of said corporation, and to collect and receive the premiums thereon for and on behalf of said corporation, in such manner as he, the said John Vandenburg, saw fit, and that he, the said John Vandenburg, was then sent to the said John Schloeman by the said corporation for the purpose of selling to him, the said John Schloeman, a life insurance policy of said corporation, which said corporation was then and there a good and solvent institution, then doing, and authorized by law to then and there do, the business of life insurance in the state of Missouri, and was then and there so represented to the said John Schloeman by the said John Vandenburg. And the said John Schloeman, believing the said false and fraudulent representations, statements, and pretenses so made as aforesaid by the said John Vandenburg to be true, and being deceived thereby, was induced by reason thereof to then and there enter into a contract and agreement with the said John Vandenburg whereby he, the said John Schloeman, then and there agreed to purchase of the said John Vandenburg, as such pretended agent and representative of said corporation, a life insurance policy of said corporation, insuring the life of him, the said John Schloeman, in the sum of one thousand dollars, and to pay therefor the sum of thirty-six and 60/100 dollars per annum as premiums thereon, and to then and there sign and deliver to the said John Vandenburg a promissory note for the sum of thirty-six and 60/100 dollars, payable to the order of T. J. Hamlett, and for the payment of the first annual premium on such life insurance policy; and he, the said John Vandenburg, then and there promised and agreed with the said John Schloeman that the said corporation would, within a few days next thereafter, write, sign, execute, issue, and deliver to the said John Schloeman, in proper and legal form, such life insurance policy, insuring the life of him, the said John Schloeman, in the sum of one thousand dollars, for and in the consideration of the annual premiums to be by him, the said John Schloeman, paid as aforesaid. And the said

John Schloeman, believing the said false and fraudulent representations, statements, and pretenses so made as aforesaid by the said John Vandenburg to be true, and being deceived thereby, was further induced by reason thereof to then and there sign and deliver to the said John Vandenburg a certain valuable thing, to wit, a promissory note for the sum of thirty-six and 60/100 dollars, of the value of thirty-six and 60/100 dollars, and made payable to the order of T. J. Hamlett, in accordance with and in pursuance of the contract and agreement so entered into by the said John Schloeman with the said John Vandenburg as aforesaid, which said promissory note, as delivered to the said John Vandenburg by the said John Schloeman as aforesaid, is of the tenor following, to wit: $36 60/100. Troy, Mo., May 2nd, 1899. Six months after date I promise to pay to the order of T. J. Hamlett thirty-six 60/100 dollars, at Troy, Mo., with interest at the rate of 8 per cent. after due until paid. Value received. John Schloeman.' And the said John Vandenburg, by means and by use of the said false and fraudulent representations, statements, and pretenses so made as aforesaid, then and there unlawfully, knowingly, and feloniously did obtain from him, the said John Schloeman, the promissory note aforesaid, the property of him, the said John Schloeman, then and there being, with intent then and there unlawfully and feloniously to cheat and defraud him, the said John Schloeman, of the same, whereas in truth and in fact the said John Vandenburg was not then and there the authorized agent or representative of the said corporation, and he, the said John Vandenburg, did not have any right or authority then and there to transact the business of life insurance for or on behalf of said corporation, or to sell, or to contract for the sale of, life insurance policies of said corporation, or to collect or receive the premiums thereon for or on behalf of said corporation, in any manner whatsoever, and he, the said John Vandenburg, was not then or at any time sent to the said John Schloeman by the said corporation for the purpose of selling to him, the said John Schloeman, a policy of life insurance of said corporation, and he, the said John Vandenburg, then and there well knew that he, the said John Vandenburg, was not then and there the authorized agent or representative of the said corporation, and that he, the said John Vandenburg, did not have any right or authority then and there to transact the business of life insurance for or on behalf of said corporation, or to sell, or to contract for the sale of, life insurance policies of said corporation, or to collect or receive the premiums thereon for or on behalf of said corporation, in any manner whatsoever, and that he, the said John Vandenburg, was not then or at any other time sent to the said John Schloeman by the said corporation for 60 S.W.-6

the purpose of selling to the said John Schloeman a life insurance policy of said corporation,-against the peace and dignity of the state." It will thus be seen that the indictment is in almost the exact language of the statute. The false pretenses are set out in detail, upon which it is charged that defendant relied, that they were false, and that defendant knew them to be so, and made feloniously and willfully, and with the intent to defraud Schloeman, who believed the statements to be true, and, relying upon them, executed the note and delivered it to defendant.

It is incorrect to say that the indictment fails to show that the note alleged to have been obtained by defendant, as charged, had any value; for, after alleging that the note was a valuable thing, it avers it to be "of the value of thirty-six and 60/100 dollars." That a promissory note is a valuable thing, within the meaning of the statute, was expressly decided by this court in State v. Porter, 75 Mo. 171.

The further point is made that the note charged to have been obtained by defendant was obtained by reason of a contract or promise to be executed or carried out in the future by defendant, and that by reason thereof defendant was not guilty of any offense. It may be conceded that a false representation or promise as to a future event is not a false pretense, within the meaning of the statute; but "where a false representation of an existing or past fact, calculated to induce the confidence which led the prosecutor to part with his property, is accompanied by or blended with a promise to do something in the future, this is a sufficient false pretense, although the promise, as well as the false statement of fact, operated upon the mind of the prosecutor in inducing him to part with his property." 12 Am. & Eng. Enc. Law (2d Ed.) 812. In Strong v. State, 86 Ind. 208, it was held that an indictment which charged that the defendant on, etc., at, etc., by falsely pretending to be a member of a certain Masonic lodge in Ohio, and that he was on his way to his father-in-law's funeral, and was out of money to travel, and by exhibiting a forged receipt from the Ohio lodge for dues, obtained from another lodge of Masons a sum of money named, upon a promise to repay the same, with intent to defraud said other lodge, knowing said pretenses to be false and the receipt to be forged, was good on motion to quash. In course of the opinion it is said: "We think the count under consideration made it sufficiently obvious that the most material and most important representations made by the appellant were as to facts assumed to be then existing, and that the appellant's promise to repay the money was only incidentally made, to give a favorable coloring to his representations as to his alleged membership in Mercer lodge, at St. Mary, in Ohio, and as to the genuineness of the receipt at the time exhibited by him;

also, that these last-named representations were the ones mainly, if not entirely, relied on by Scott and Woody." In Thomas v. State, 90 Ga. 437, 16 S. E. 94, it is held that the offense of cheating and swindling may be committed by a false representation of a part or existing fact, although a promise be also a part of the inducement to the person defrauded to part with his property. In the case of State v. Fooks, 65 Iowa, 196, 21 N. W. 561, it is held that where a person borrowed money on the false pretense that his brother was to arrive with money for him, coupled with a promise to use it in payment of the sums borrowed, it amounted to a pretense that he had the money, as an existing fact, and that he was guilty of obtaining the money under false pretense. So, in State v. Dowe, 27 Iowa, 273, it is held that a promise combined with a false pretense does not take away the criminal character of the act. The same rule is announced in State v. Janson, 80 Mo. 98; Com. v. Wallace, 114 Pa. St. 405, 6 Atl. 685; State v. Thaden, 43 Minn. 325, 45 N. W. 614; State v. Gordon, 56 Kan. 64, 42 Pac. 346; State v. Nichols, Houst. Cr. Cas. 114. Bishop, in the eighth edition of his work on Criminal Law (volume 2, § 424), in speaking of this character of offense, says, "It would be difficult to find in actual life any case wherein a man parted with his property on a mere representation of fact, whether true or false, without an accompanying promise." Now, while, by the terms of the contract, defendant was not to deliver to Schloeman the policy of insurance for some days after the contract was entered into and the note delivered to defendant, Schloeman would not have executed the note but for defendant's statements and pretense that he was agent at that time for the insurance company by which the policy was to be issued, when it is averred that he was not such agent. Here the pretense that defendant was agent for the company was an existing fact, and, although coupled with a promise by him to deliver to Schloeman the policy in the future, did not take away the criminal character of the act.

Our conclusion is that the indictment is good, and that the demurrer thereto should have been overruled. The judgment is reversed and the cause remanded.

GANTT, P. J., and SHERWOOD, J., con

cur.

STATE v. SCHILB.

(Supreme Court of Missouri, Division No. 2. Dec. 18, 1900.)

EMBEZZLEMENT-FRAUDULENT INTENT-IN

STRUCTIONS-EVIDENCE.

1. On a prosecution for embezzlement, an instruction authorizing a conviction without requiring the jury to find any fraudulent intent of accused in converting the property to his own use is erroneous, for no one can be con

victed of a felony in the absence of an intent to do a criminal act.

2. Where an agent for the sale of realty without the owner's consent secures from the purchaser notes payable to himself, for the purchase money, which he afterwards collects, and, with criminal intent, converts the proceeds to his own use, he is guilty of embezzlement; for, being the agent for the sale of the land, it was immaterial that the money may have been paid on one of the notes executed by the purchaser to the agent without authority from the owner, as it was part of the purchase money, and as such belonged to the owner.

3. On a prosecution for embezzlement of money by an agent for the sale of realty, evidence that he purchased personalty from the grantee. which he appropriated to his own use, and agreed to credit its value on the notes given for the realty, is inadmissible, since a charge for embezzling money cannot be sustained by proof of the embezzlement of personalty.

Appeal from circuit court, Cooper county; T. B. Robinson, Judge.

Frederick K. Schilb was convicted of embezzlement, and he appeals. Reversed.

W. M. Williams, C. D. Corum, and J. W. Jamison, for appellant. The Attorney General and Sam B. Jeffries, for the State.

BURGESS, J. At the January term, 1900. of the circuit court of Cooper county, defendant was convicted of the crime of embezzlement under an indictment theretofore preferred by the grand jury of said county. There were three counts in the indictment. but the first count was dismissed by the state. In the second count the defendant is charged with the embezzlement of $40 in money, which is alleged to have come into his possession as the agent of one Harrison C. Harris. The third count charges him with the embezzlement of a note for $100, payable to the order of defendant, Frederick K. Schilb, and signed by Oliver and Esther C. Risher, which he received and held as agent of said Harris. Defendant was found guilty under both counts, and his punishment fixed at two years' imprisonment in the penitentiary under each count. He appeals.

The facts, briefly stated, are that some time prior to the 1st of May, 1898, the defendant was engaged in the real-estate business in Cooper county, and one Harrison C. Harris, of that county, then being the owner of a 40-acre tract of land in said county, placed it in the hands of defendant for sale, agreeing to pay him $20 if he succeeded in so doing. Thereafter defendant sold the land to one Oliver Risher for the sum of $200; Risher to assume the payment of a mortgage then on the land for $100, to pay $25 of the purchase money in cash, $75 in one year, and the remaining $100 in two years. Subsequently Harris and wife executed a deed conveying the land to Risher, and delivered it to the defendant. According to Harris' evidence, who testified as a witness on the part of the state, defendant was to sell the land, and go security for Risher on the note to be given for the purchase money. That Schilb was to collect the money. That he had the