sonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and 'morals of the community. Even liberty itself, the greatest of all rights, is not an unrestricted license to act according to one's own will.' Crowley v. Christensen, 137 U. S. 86, 89 [11 Sup. Ct. 13, 15 (34 L. Ed. 620)]. In Mugler v. Kansas, 123 U. S. 623, 669 [8 Sup. Ct. 273, 31 L. Ed. 205], it appeared that certain distillery property in Kansas was purchased at a time when it was lawful in that state to manufacture and sell spirituous liquors, but which property, by reason of the subsequent prohibition of such manufacture and sale, had become of no value, or had materially diminished in

value. The owner insisted that by the necessary operation of the prohibitory statute his property was in whole or in part taken for public use without compensation. But this court said: "The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is notand, consistently with the existence and safety of organized society, cannot be burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case a nuisance only is abated; in the other unoffending property is taken away from an innocent owner.' In Sedgwick's Treatise on Statutory and Constitutional Law the author says that 'the clause prohibiting the taking of private property without compensation is not intended as a limitation of those police powers which are necessary to the tranquillity of any well-ordered community, nor of that general power over private property which is necessary for the orderly exercise of all governments. It has always been held that the Legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensation is made.' Pages 434, 435.

the police power for its destruction or otherwise disposal.

We are, however, cited to the case of River Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 6. This case reached this court by appeal from the St Louis Court of Appeals, and the opinion of that court is found in 7 Mo. App. 345. Many of the courts draw a distinction between garbage (which is concededly of small value even during the time between its creation, and the time of its decay or decomposition) and dead animals, which for certain purposes have some substantial value. In some cases it is held that a reasonable time (short time) should be given the owner to get what value there was in the carcass. We might distinguish the instant case from the Behr Case, supra, on the theory of there being substantial value to the carcass, but we deem that case out of harmony with the great weight of authority. The opinion of the Court of Appeals is more in line with modern authority on the subject.

The ever-present house fly and other flies will reach the carcass of dead animals as quickly as they reach the open garbage can. Germs of disease may be thus spread in thickly populated communities. Even the additional value of carcasses should not curb the police power in regulating their removal and disposition.

This case, in my judgment, should be overruled, to the end that we may get in line with the great trend of modern authority.

The right of plaintiff to an injunction is not otherwise questioned in the brief of respondents. The judgment nisi should be reversed, and the cause remanded, with directions to grant to plaintiff the injunction prayed.

It is so ordered. All concur.

STATE ex rel. HINES, Director General of Railroads, v. CALHOUN, Judge. (No. 21856.)

The Robb Case, supra, reviews a long line of cases covering both of the vital questions in this case, and where that case is unofficially reported in 4 Ann. Cas. 275, will be found a case note giving further citations.

[11] Of course, every ordinance in the exercise of the police power must be reasonable, but, as shown above, there is nothing in this Joplin ordinance which is unreasonable. The city had the right to contract with either one or more than one person to collect and dispose of its garbage. Nor is the value of garbage such as precludes the exercise of

15, 1920.)

Director General could have been had under section 1751, could he have been found there; the railroad having no line running into or through the city, or into any other county except Jackson, and having no "office or agent" in St. Louis for its "usual and customary busi. ness," the Director General not being such, this even though the amendment making the Director General defendant instead of the railroad was the same as institution of a new suit against him, in view of provision of Employers' Liability Act that common carrier includes a receiver or other person charged with duty of management and operation. 2. Railroads 52, New, vol. 6A Key-No. Series-Director General's orders not construable to oust courts of jurisdiction.

General Orders of the federal Director General of Railroads, Nos. 50 and 50-A, enabling orders designed to give the courts jurisdiction over the person of the Director General by proper service where they have jurisdiction of the subject-matter of the suit, but where the laws make no provision for service on the Director General, held not construable to oust any court of Missouri of jurisdiction of the subject-matter of any action over which the laws of the state give jurisdiction. 3. Railroads

22(1)-"Usual and customary business" of railroad company defined.

The "usual and customary business" of railroad company, within Rev. St. 1909, § 1754, providing that suits against such companies operating through two or more counties may be commenced in any county where they usually keep an office or agent for the transaction of their usual and customary business, is the receipt of freight and passengers at various points on its road, and to transport and deliver them at other points thereon, and to issue bills of lading, the sale of tickets, and keeping the books and accounts of the company relating to such business transactions.

Prohibition by the State, on the relation of Walker D. Hines, Director General of Railroads, against John W. Calhoun, Judge, etc. On relator's motion for judgment on the pleadings. Preliminary writ made permanent.

The suit out of which this proceeding grew was instituted in the circuit court of the city of St. Louis by Joseph Sharamitaro, administrator of the estate of Leo Sharamitaro, deceased, to recover damages caused by the alleged negligence of the Union Pacific Railroad Company, a corporation, for injuries received by the deceased, which resulted in his death. A summons was issued out of clerk's office of the circuit court of the city of St. Louis, and directed to the sheriff of Jackson county, Mo., for service. Service was duly had upon the agent of the defendant's company, in said county; that being the only county in the state into which the defendant's road ran or in which it did business. A return of the petition and service of the summons was made by said sheriff tol

the circuit court of the city of St. Louis. Upon the motion of railroad company, said service was quashed. After the quashing of said return, the plaintiff filed an amended petition in the same court, making Walker D. Hines, Director General of Railroads, a party defendant, and on or about May 19, 1919, a summons was issued for said Walker D. Hines, directed to the sheriff of the city of St. Louis for service, and in pursuance thereto the said sheriff on said day made the following return upon the summons:

"Executed this writ in the city of St. Louis, Missouri, this 19th day of May, 1919, by delivering a copy of the writ and petition as furnished by the clerk to Walker D. Hines, Director General of the Railroads, defendant herein."

Thereupon the defendant, Hines, filed the following motion in the cause:

"Your relator further avers that thereafter, on the 2d day of June, 1919, defendant Walker D. Hines, Director General of Railroads, appearing for that purpose only, filed a motion to quash such service and dismiss said cause on the ground that said court by such pretended service acquired no jurisdiction of the subject of the action, nor of the defendant Walker

D. Hines, Director General of Railroads, and on June 25th thereafter, such special motion of defendant Hines to quash such return of service and dismiss said cause was by the circuit court of the city of St. Louis, over the objections and exceptions of said defendant Hines,

overruled.

"Your relator also avers that by the terms and provisions of section 1754, Revised Statutes of Missouri 1909, suits against railroad corporations can only be brought and maintained in counties through which the railroad being operated by such railroad company runs, or in counties where such railroad company shall have or usually keep an office or agent for the transaction of its usual and customary business; that, as above set out, neither the Union Pacific Railroad Company nor Walker D. Hines, Director General of Railroads operating the Union Pacific Railroad, at any time kept within the limits of the city of St. Louis, Mo., an office or agent for the transaction of their usual and customary business, and also, as above stated, the Union Pacific Railroad Company at no time operated a railroad running into or through said city of St. Louis of St. Louis county, Mo.

"Because of all of which your relator says that the said circuit court of said city of St. Louis, by the pretended service above set out and the return of the sheriff thereon, acquired no jurisdiction of the subject of the action nor of the person of Walker D. Hines, Director. General of Railroads, in charge of and operating the Union Pacific Railroad, and, having quashed the pretended service had upon the Union Pacific Railroad Company, said court was also without jurisdiction to make said Walker D. Hines, Director General of Railroads, a party defendant to the action, or cause any summons to be issued for such Director General to the sheriff of the city of St. Louis, Mo., or otherwise.

"Relator has attached hereto the petition in

in charge of the operation, control, and management of said Union Pacific Railroads, and that, as such Director General of Railroads, the said Walker D. Hines is and was at all times herein mentioned amenable to said act of Congress and the provisions thereof.

"Fifth. For further answer, respondent states that, under the act of Congress approved March 21, 1919, entitled, 'An act to provide for the operation of transportation systems while under Federal control,' it is expressly provided that 'Carriers, while under federal control, shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws, or at common law, * * *' and that, by virtue of such authority, the Director General of Railroads, under said General Orders No. 18-B and 18-A, has provided as follows, to wit: "It is, therefore, ordered that all suits against carriers, while under federal control, must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose.'

"That it appears from the face of the petition filed in said cause of Sharamitaro, Administrator, v. Union Pacific Railroads, that the plaintiff therein was appointed by the probate court of the city of St. Louis, Mo., the duly acting administrator, and was at the time of said suit in charge and control of said estate as said administrator at the time of his said appointment, and the institution of this said suit is and was in the city of St. Louis, Mo.

"Sixth. Further answering, respondent stated that, under General Orders No. 50 and 50-A of the Director General of Railroads, it was provided, in part, as follows, to wit:

"That actions at law, claim for death or injury to a person arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit or proceeding but for federal control might have been brought against the carrier company, shall be brought against the Director General of Railroads, and not otherwise. That the pleadings in all such actions at law or proceedings now pending against any carrier company for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad or other carrier, may, on application, be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom.'

"That said plaintiff administrator in said suit has amended his said cause of action by substituting and adding thereto the said Walker D. Hines, Director General of Railroads, as party defendant, upon which amendment summons was duly issued by the clerk of the said court and service made, as will appear from the face of said return, which is set forth in the application for this writ.

"Seventh. Respondent further states that by the provision of section 1751, Revised Statutes of Missouri 1909, which were in force at the time said action was commenced and which in part provide that suit may be brought by summons in the county within which the plaintiff resides and the defendant may be found, in that it conclusively appears by the return of the

sheriff that said Walker D. Hines, Director General of Railroads, defendant in said action, was personally served within the jurisdiction of the court wherein the plaintiff resided at the time said action was commenced.

"Eighth. Respondent further states that after the filing of said petition in said cause as aforesaid, and the personal service upon the defendant Walker D. Hines, Director General of Railroads, in charge of the operation, man-, agement, and control of said Union Pacific Railroad, a party defendant, submitted to the court a pleading in the nature of a motion to dismiss said cause of action and to quash the return of the sheriff made thereon, in which motion said defendant alleged that the court had no jurisdiction over the subject-matter of the cause and no jurisdiction to issue any summons for said defendant Walker D. Hines in his representative capacity for said Union Pacific Railroad, and that said action so instituted in the jurisdiction of said court was in direct violation of General Orders No. 50 and 50-A, above referred to, issued by said Director General of Railroads, copies of which orders were attached to said motion and made a part thereof; that by said action, that is, the filing of said motion to dismiss said cause of action and to quash the return of the sheriff thereon, and by reference to matters which, dehors the record, constitute a general entry of appearance by said Director General of Railroads as aforesaid, to the jurisdiction of said court and has been held by this honorable court on numerous occasions.

"Ninth. Further answering, respondent denies that said action so pending in said circuit court is governed by the provisions of section 1754, Revised Statutes of Missouri 1909, entitled 'Suits Against Corporations-Where' Commenced,' for the reason that said suit by reason of the substitution and amendment whereby said Director General of Railroads is made a party defendant and as such in charge of the operation, management, and control of the Union Pacific Railroad, is not a suit against a corporation, but is a proceeding commenced under section 8663 of the United States Compiled Statutes Ann. 1916, against a receiver or receivers or other persons charged with the duty of the management and operation of the business of a common carrier; that said Director General of Railroads under the acts of Congress and the proclamation of the President of the United States is a receiver or other person in a representative capacity charged with the duty of the management and operation of the business of a common carrier, and is therefore subject to personal service as by the statutes of Missouri in such cases made and provided.

"Tenth. Further answering, respondent states that the said Director General of Railroads has attempted by said General Orders 50 and 50-A, heretofore issued, and above referred to, to state when and how and upon whom process of a state court may be served in actions wherein said Director General of Railroads is a party defendant; that said orders of said Director General of Railroads in so far as they attempt to designate a different manner of service of process than is set out in the statutes of the State of Missouri, are void and of no effect as they attempt to set aside and nul