court or jury may "allow the damages" to being the effect of evidence, the establishment the plaintiff. of a fact by evidence.

In Jones v. Prudential Ins. Co. of America,

173 Mo. App. 1, 155 S. W. 1106, the action was by an assignee of the policy and a verdict and judgment allowing him damages and attorney's fee for vexatious delay was affirmed by our court.

We see no error to the prejudice of the appellant in the instructions given at the instance of plaintiff or by the court of its own motion, nor any error in the refusal of the court to give the instructions asked by defendant.

The testimony was without contradiction that the value of the goods destroyed by the fire was in excess of the insured amount. [6] We are asked to inflict the penalty of 10 per cent. as for a vexatious appeal.

While we think that the defense in this case is on a very narrow technicality, seeking to avoid liability on account of what is claimed to be an erroneous classification, designating the building as a "dwelling" instead of as a "mercantile building," and so liable for a higher rate, the evidence is that the error was that of the clerk of one found to be the agent of the insurer, the error, if one, made in the face of a statement by the insured of the exact use of the building, we think that the defendant has been sufficiently penalized by the verdict and judgment and will not impose any additional penalty.

The judgment of the circuit court is affirmed.

NORTONI and ALLEN, JJ., concur.

STATE ex rel. CITY OF ELVINS et al. v.
MARSHALL et al. (No. 14376.)

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 37; Dec. Dig. § 30.*] 2. EVIDENCE (§ 12*)-JUDICIAL NOTICE-POPULATION OF TOWN.

In such a proceeding the county court must take judicial notice of the population of a town as determined by the municipal cen

sus.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 17; Dec. Dig. 12.*] 3. INTOXICATING LIQUORS (§ 30*)-LOCAL OPTION ELECTION-MUNICIPAL CENSUS COLLATERAL ATTACK.

The result of a municipal census taken by ing the legislative body of a town to take a a town under Rev. St. 1909, § 7239, authoriz census to determine whether the town has 2,500 inhabitants or more so as to be entitled to vote

separately from the remainder of the county to sold, is not subject to collateral attack. determine whether intoxicating liquors shall be

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 37; Dec. Dig. § 30.*] 4. PROHIBITION (§ 3*)-EXISTENCE AND ADEQUACY OF OTHER REMEDIES-ELECTION CONTEST.

Where the county court, in a local option proceeding, disregarded a census regularly tak en by a town under Rev. St. 1909, § 7239, authorizing the legislative body of a town to take a census to determine whether it has a population of 2,500 or more so as to be entitled to a local option election separately from the remainder of the county, the town was entitled to a writ of prohibition directed against the county court; the town not having a complete and adequate remedy by way of an election contest.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*]

Proceedings by the State, on the relation of the City of Elvins, and others against John Marshall and others, for a writ of prohibition. Writ awarded.

B. H. Boyer, of Farmington, for relators. Benj. H. Marbury, of Farmington, for respondents.

(St. Louis Court of Appeals. Missouri. June 2, 1914. Rehearing Denied June 17, 1914.) ALLEN, J. This is an original proceeding 1. INTOXICATING LIQUORS (§ 30*)-LOCAL OP-in this court, wherein relators seek a writ of TION-DISTRICT OR TERRITORY IN WHICH

ELECTION MAY BE ORDERED "PROOF."

prohibition against the judges of the county court of St. Francois county. The relators are the city of Elvins, a city of the fourth class situated within said county, the mayor thereof, and certain taxpaying citizens and residents of such city.

Under Rev. St. 1909, §§ 7238, 7239, providing that any incorporated city or town having a population of 2,500 or more is entitled to vote separately from the remainder of the county to determine whether intoxicating liquors shall be sold within its limits, and for the purpose of determining whether any town has On April 20, 1914, a petition was filed with 2,500 inhabitants, such body having legislative the county court, under the provisions of the functions therein may, under an ordinance thereof, take a census, and the result thereof statute relating thereto, alleging that the shall be entered on the records or minutes there- city of Farmington was, at such time, the of, and such entry, or a certified copy thereof, only incorporated city in such county having shall be proof of such fact, and shall be filed with the clerk of the county court, etc., where a population of 2,500 inhabitants or more, a city, pursuant to such statute, has caused and praying the county court to order and a census to be taken by virtue of an ordinance, call a "local option" election to be held in and adopted the same, the result thereof enter- and for all of said county outside of the city ed upon its records and filed with the clerk of of Farmington, and including the city of Elthe county court is binding upon the county court in a proceeding for a local option election, vins. precluding it from going behind the result as Under the provisions of sections 7238 and entered, since the entry of the result on the 7239, Rev. Stat. 1909, any incorporated city records of the city's legislative body "shall be proof of such fact," not merely evidence of the or town having a population of 2,500 inhabitfact of the population of the town; "proof" ants or more is entitled to vote separate and

apart from the remainder of the county in as aforesaid, and to proceed accordingly in which it is situated to determine whether or ordering the election, we have little doubt. not spirituous and intoxicating liquors shall Respondents contend that such census was be sold within its limits. These sections were fraudulently taken for the purpose of presought to be repealed by the last Legislature, venting the city of Elvins from being includby what is known as the "County Unit Bill." ed within the remainder of the county (outLaws of Missouri 1913, p. 388 et seq. How-side of Farmington) in the holding of the loever, the operation of said last-mentioned cal option election; that it is a mere pretendact was suspended by the filing of referendum ed census or enumeration of the inhabitants petitions, and said law is now so held in sus- of such city, and was fraudulently "padded" pension pending a vote thereon by the voters with the names of persons not inhabitants of the state at large, whereby the provisions thereof. Likewise the regularity of the proof the statute of 1909, above referred to, still ceeding had by the board of aldermen of the remain in force and effect. See State ex city of Elvins in respect thereto is assailed. rel. Kemper v. Carter et al., 165 S. W. 773. But it appears that the census was taken unThe proviso to section 7239, supra, is as der and by virtue of an ordinance of the city follows: óf Elvins, and, when taken, was duly reported to the board of aldermen, and by the latter accepted and adopted as and for a proper census of said city, and that the result thereof was entered upon their records, and the same duly certified to the clerk of the county court, in accordance with the provisions of section 7239, supra.

"Provided, that for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section, such body having legislative functions therein may, under an ordinance thereof, take a census of the inhabitants of such town, and the result of such census shall be entered upon the journals or records thereof, and such entry, or a certified copy thereof, shall be proof of such fact, and shall be filed with the clerk of the county court of the county in which such town is situated."

The county court had before it the record of the proceedings of the board of aldermen relative to the census in question. It cannot be doubted that the ordinance authorizing and providing for the taking thereof is valid upon its face, and within the authority conferred by section 7239, supra. The statute is general in its terms, and quite indefinite as to the character of the census to be taken or the method to be pursued in the taking thereof. See Flowers v. Smith, 214 Mo. loc. cit. 140, 112 S. W. 499. It merely provides that the body having legislative functions in such city may, under an ordinance, take a census, and requires that the "result" thereof be entered upon its records and filed with the clerk of the county court.

It appears that during the year 1913 an ordinance was enacted by the board of aldermen of the city of Elvins, providing for the taking of a census of the inhabitants thereof, which census was taken by an enumerator, one C. R. Huddleston, appointed therefor, pursuant to the provisions of said ordinance, and the same together with the sworn "return" of such enumerator, setting forth the result of said census, was filed with the elerk of said city. The result of the census thus taken showed the city of Elvins to have a population of 2,521 inhabitants. And thereafter, on September 4, 1913, as appears by the record of the meeting of the board of al- In the case before us the entry in the jourdermen of that day, the "census report filed nal of the board of aldermen showing the reby C. R. Huddleston showing 2,521 was offi-sult of such census is quite informal, recitcially accepted by board," and the certified ing merely that the "census report filed by copy of said "return" of such census enumer- C. R. Huddleston showing 2,521 was officially ator, theretofore filed with the city clerk, was filed with the clerk of the county court. It appears that, at the time of the application to this court for a writ of prohibition, this requirement of the statute being to afthe county court had assumed jurisdiction over the subject-matter of the local option petition before it, and was proceeding therewith in disregard of the census taken by the city of Elvins as above mentioned, having inquired into certain charges of illegality and fraud in the taking thereof, and having found that such census "was false, fraudulent, and void, and not based upon any proper and legal list, count, or enumeration of the inhabitants of the city of Elvins."

The question, therefore, before us is whether or not the county court, in so proceeding, was exceeding its jurisdiction in the premises.

[1] As to the duty of respondents to accept the census of the city of Elvins, taken and

accepted by board." However, this appears to be a substantial compliance with the statute in this regard; the evident purpose of

ford proof that the legislative body of the city had acted upon and adopted the enumeration taken pursuant to the ordinance as and for an official census of the city.

The statute provides that such census may be taken "for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section," and that the entry of the result of such census in the records of the city's legislative body shall be proof of such fact.

Proof is defined to be "the effect of evidence; the establishment of a fact by evidence." See Black's Law Dictionary (2d Ed.) "Proof." The statute does not declare that such entry shall be evidence merely of the fact of the population of a city or town, to

by the provisions of the section, nor prima of power and dignity of the body does not enter facie proof thereof, to be overthrown by the into the question. State ex rel. v. Wilson [216 effect of other evidence adduced. And al-Mo. 215] 115 S. W. 549; Lingo v. Burford, 112 Mo. 149 [20 S. W. 459]; Jeffries v. Wright, though it is not specifically declared that such 51 Mo. 215; State v. Evans, 83 Mo. 319; Union shall be conclusive proof thereof, a reasona- Depot Co. v. Frederick, 117 Mo. 148 [21 S. W. ble interpretation of the statute would seem 1118, 1130, 26 S. W. 350]; Light & Water Co. v. Lebanon, 163 Mo. 250 [63 S. W. 809]: 1 to be that the Legislature intended to make Black on Judgments, § 273; Freeman on Judg such entry, or a certified copy thereof, bind- ments, § 523; Van Vleet on Collateral Attack, Therefore respondent's allegation ing upon the county court in a proceeding of §§ 62, 468. this character, precluding it from going back of fraud in the census was the assertion of matter which could not be made an issue in the of the same, where the city, pursuant to the present case." statute, has caused a census to be taken by virtue of an ordinance, and adopted the same and the result thereof has been entered upon the records of its legislative body.

Again, the taking of such census was also within the authority conferred by section 9639, Rev. Stat. 1909, applying to cities of the fourth class, as well as to other towns and cities. The last-named section provides for the taking of a municipal census, and further provides that:

"After said census is returned,

courts of this state shall take judicial notice of the population of such city or town."

In State ex rel. v. Mitchell, 115 S. W. 1098, the same doctrine is announced by this court as in the Cass County Case, supra, so far as concerns the right to collaterally attack the city's census. While both of these cases are in effect overruled as to another question involved by the decision of the Supreme Court in State v. Jaeger, 240 Mo. 1, 144 S. W. 103, the latter in no wise weakens their authority as to the matter here under consideration. in the Jaeger Case, contrary to the rulings all in the Cass County and Mitchell Cases, supra, it was held that a census taken and filed after the day upon which the county court ordered the holding of the election did not in any manner affect the status fixed by the order. This was because of the wording of the statute under consideration, as will appear by reference to the opinion originally written by Hon. Edgar P. Mann, acting as special judge of the Springfield Court of Appeals, and adopted by the Supreme Court. The question now under discussion was not there involved; but it is significant that in the course of the opinion the census of a city, in cases of this character, is twice referred to as the legal standard of determination, whereby the population of such city is to be determined by the county court.

[2] Our courts have constantly taken judicial notice of the population of cities of the state, as determined by such municipal censuses. See State ex rel. v. Dolan, 93 Mo. loc. cit. 471, 6 S. W. 366; State ex rel. v. Wofford, 121 Mo. loc. cit. 71, 25 S. W. 851. And if the appellate courts and courts of general jurisdiction throughout the state are required to take judicial notice of such a census, surely a county court must do likewise. And such was held to be the case, in a proceeding of this character, in State ex rel. v. Cass County Court, 137 Mo. App. 698, 119 S. W. 1010.

[3] And to the charges of fraud in and about the taking of the census, it may be said that the proceedings respecting the taking thereof, and the adoption of the same as and for an official census of the city, and which upon the face thereof appear to be regular, and in substantial compliance with the statute, were had in and before a duly constituted tribunal, to wit: The board of aldermen of the city of Elvins, directly empowered by law to act in the premises. From which it appears that the result is not subject to the collateral attack which respondents now seek to make upon it.

In State ex rel. v. Cass County Court, supra, 137 Mo. App. loc. cit. 708, 119 S. W. 1013, the Kansas City Court of Appeals, through Ellison, J., as to this very matter, said:

"Indeed it is fundamental rule of law that the acts of a body intrusted by law with the performance of certain specified proceedings which, on their face, are regularly taken are not subject to attack, except in a direct proceeding for that purpose. This rule applies as rigidly to special and inferior bodies as it does to superior courts. In most instances presumptions upholding proceedings in superior courts will not aid omissions in proceedings of those of inferior grade. But where the record of the latter, on its face, is regular, it is not subject to

We are referred by respondents to the opinion of the Springfield Court of Appeals in State ex rel. v. Wooten, 139 Mo. App. 221, 122 S. W. 1103. That was a proceeding by mandamus to compel the issuance of a dramshop license to the relator, and constituted an indirect attempt to contest the validity of a local option election theretofore held under an order of the county court. And if what was there said, on motion for rehearing, is to be taken to mean that a county court has jurisdiction to inquire into a city census, where the proceedings had by the city's legislative body are regular upon their face, and in substantial compliance with the statute, such appears to be in contravention of the statutory provisions above referred to, and in conflict with State ex rel. v. Wofford and State ex rel. v. Dolan, supra, as well as with what is said in State ex rel. v. Jaeger, supra.

In Flowers v. Smith, 214 Mo. loc. cit. 141, 112 S. W. 499, to which we are referred by respondents, it is said that:

"If the affidavit of the enumerators is the only thing on file in the office of the city clerk, and no action was taken by the council accepting

COFFMAN et al. v. SALINE VALLEY R. CO. right of way, to raise its embankment above

Judgment for plaintiffs, and defendant ap-, whom the contract was originally entered inpeals. Affirmed.

Giboney Houck, Lane & Alexander, and Davis & Hardesty, all of Cape Girardeau, for appellant. Thomas B. Whitledge, of St. Marys, and John V. Noell, of Perryville, for respondents.

NORTONI, J. This is a suit for damages accrued on account of a breach of contract. Plaintiffs recovered, and defendant prosecutes the appeal.

1910-Bernard S. Pratte formally executed to plaintiffs a written assignment of his right of action for damages, past, present, and future, and for such damages as had accrued to him against defendant on account of the breach of said contract and all rights of action thereunder or thereabout to these plaintiffs. Plaintiff's thereupon instituted this suit for damages, and, as before said, recovered against defendant as for a breach of the contract, in that, though it had constructed its railroad and embankment in 1906, it wholly failed to erect the embankment, as required by the contract, above the high-water mark along Saline creek, and because of this the fields were inundated through an overflow from the creek, and the damages sued for suffered.

to by defendant, conveyed the lands involved to plaintiffs Patrick H. Coffman, Augusta C. Rond, and Robert A. Brown. Although this deed is of date July 25, 1910, it appears to have been acknowledged and delivered on the following day, that is, July 26, 1910, and on the same day Pratte, the grantor, assigned the contract here sued upon to these plaintiffs. From this it appears that plaintiffs succeeded to both the title of Pratte and wife in the lands and to his rights under the conThe damages sued for were occasioned by tract as well. A couple of weeks afterward means of the overflow of certain fields, where--that is to say, on the 10th day of August, by crops were destroyed and certain top soil washed from a portion of the cultivated lands. Besides this there is a question made with respect to a right to recover compensation for rebuilding a fence which it appears belonged to defendant, but was washed over upon plaintiffs' cultivated lands. The lands overflowed are situated adjacent to Saline creek. Plaintiffs' vendor and assignor, Bernard S. Pratte, formerly owned these lands, and on the 28th day of August, 1905, entered into the written contract with defendant railroad company which is here sued upon. By this contract Pratte agreed to convey to the railroad company a right of way for its railroad across such lands along and adjacent to Saline creek, and in consideration therefor defendant railroad company agreed and undertook to construct a solid embankment along the line referred to in the contract for its railroad, which was to be built above high-water mark so as to protect the lands from overflow, and Pratte was accorded the right to join certain other levees thereto. The contract authorized the railroad company to take immediate possession of the right of way referred to for the purpose of constructing its railroad thereon and this it did. The railroad was completed some time in the year 1906, but it appears the embankment was not built as required by the contract; that is, up to the high-water mark. On the contrary, the evidence tends to prove that it was built several feet below that, and because of this the overflow from Saline creek passed over the railroad embankment in the spring of 1910, and inundated Pratte's fields, so as to destroy his growing crops thereon, and to wash away a considerable amount of the top soil on a portion of his land. Among other things, this flood dislodged and removed a large portion of the railroad right of way wire fence from its position, rolled it up, and deposited it in the fields. In order to protect his remaining crops and possessions, and to the end of mitigating damages thereto, Pratte removed the fence from where it was deposited in the fields on his lands and rebuilt it along the right of way, at an expenditure of about $260. One of the items of damages sued for relates to this matter. By a general warranty deed, dated on the 25th day of

It appears that, though Pratte assigned his right of action for all damages suffered by the overflow and because of the breach of the contract to construct a solid embankment above the high-water mark to these plaintiffs, as above stated, that he retains some interest in the proceeds of the recovery. What his interest therein is does not definitely appear, but the case concedes that he is still interested therein in some amount.

[1] It is first argued the judgment should be reversed, for the reason the suit is not brought in the name of the real party in interest. The suit proceeds in the name of the three plaintiffs who succeeded to Pratte's rights in the lands by virtue of his deed, and who succeeded to the right of action for damages under the written assignment thereof above described. Obviously there is no merit in this argument, for the subject-matter of the assignment is a mere chose in action arising out of contract, and the assignee may sue thereon though the title were passed to him for no other purpose than that of collec tion.

[2] Moreover, if Pratte is interested in a portion of the recovery, these plaintiffs are to be regarded as the trustees of an express trust under the Code provision, and the suit is properly brought by them, and it remains for them to account to Pratte. Defendant is immune from further prosecution, on account of the same cause of action as that involved in the assignment here. See West Plains