OPINION.
Corporation: Vested Charter Rights. The first constitutional point insisted upon in appellant’s brief is claimed to arise upon the fact that the railroad, now in the hands of appellant as lessee, was built in 1873 under a State charter, and neither then or during the Act of 1907 did the law require such corporations to construct outlets through their railroad beds or embankments for the flow of surface water, which kind of water was then considered a common enemy to be warded off his premises by any land-owner, provided in so doing he did not collect or accumulate and cast it in a large body or unreasonable quantity upon the property of adjacent land-owners.
BOND, J.(after stating the facts as above).
If we should concede these assumptions, for the argument, yet we cannot concur in the full conclusion which is drawn by appellant; to-wit, that such a state of the law became a part of the contract between the State and appellant’s lessor (hence appellant as a privy) which was irrepealable or unalterable for any cause or motive whatsoever.
No contract with the State, whether by charter or otherwise, and no prescriptive right can be invoked to thwart the exercise of its sovereign power and duty to take care of the health, morals or property of the people. If there be some phases of the police power which might be bartered away — as the right of taxation for a consideration — certainly there are others — *55including all the powers that are essential to the protection of the property, health and morals of its people — which no State can hind itself not to exercise by any form of agreement, whatever, and which cannot be obstructed by any lapse of time, or Statute of Limitations. For these reasons the police powers of a State are divisible into two classes: (1) Such rights of internal regulation of its affairs, as not to touch the vital question of health, morals, or property of the people — these, the State may part with, because their retention is not indispensable to the preservation of society; (2) All powers of government which regulate the public health, welfare and the property rights of its people — these, no State can strip itself of, for that would render it incapable of carrying out the prime purposes of its creation. The sanctity and import of this attribute of sovereignty are recognized in the Constitution of this State; to-wit, “The exercise of the police power of the State shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of indiviuals, or the general well-being of the State.” [Art. 12, sec. 5, Constitution of Missouri.] The only restrictions upon the exercise of this faculty are that its use shall be reasonably adapted to the ends for which it is given, and that it shall not infringe any right or privilege guaranteed by the Federal Constitution. The authorities and cases demonstrating these principles are uniform. [Cooley on Constitutional Limitations (7 Ed.), p. 395, note 2, et seq.; Ibid, p. 832, et seq.; Sloan v. Railroad, 61 Mo. l. c. 30; Mathews v. Railroad, 121 Mo. l. c. 310, 311; Campbell v. Railroad, 121 Mo. 346; Blackmore v. Railroad, 162 Mo. 461; Grannahan v. Railroad, 30 Mo. 546; Peters v. Railroad, 23 Mo. 107; McFarland v. Railroad, 175 Mo. l. c. 431; Cox v. Railroad, 174 Mo. l. c. 604, et seq.; Stone v. Mississippi, 101 U. S. 814; Gas Co. v. Louis*56iana Light Co., 115 U. S. 650; Railroad v. Mathews, 165 U. S. 1; Butchers’ Union Co. v. Crescent City Co., 11 U. S. 746; 8 Cyc. 863, et seq.]
The statute sued upon was enacted to prevent the property of citizens owning" lands traversed by railroads from being injured by the construction or maintenance of an embankment which would obstruct the flow of water and cause it to flood the farming land and destroy its crops. It was, therefore, an exertion of a police power of the inalienable class, and whether it affected the rights which appellant claimed from its lessor, is wholly immaterial to the validity of the act. We hold that this statute is impregnable to assault from the standpoint of the assumed vested right of the appellant to continue the maintenance and operation of its railroad contrary to its provisions. It did not destroy any vested right of appellant to maintain a solid embankment with no apertures therein for the passage of water, thereby injuring the property of others, for it had no such right, regardless of the charter or contract between the State and its lessor, or of the growth of prescription; and could not have been vested with such right without taking from the State its essential functions as a sovereign power for the purposes defined in our Constitution. [Constitution of Missouri, art. 2, sec. 4.]
Appellant makes some further attacks upon the constitutionality of the statute upon which this action is based, to the effect that the title of the amendatory act (Laws 1907, p. 169) was defective; that the act provided an excessive penalty, and failed to provide to whom it should be paid. All these, if they are not abandoned (as seems to be done in its reply brief) were resolved against the contention of appellant in the cases of Cox v. Railroad, supra; McFarland v. Railroad, supra; and Mathews v. Railroad, supra; and hence need not be again reviewed.
*57Existence of Drains. II. Appellant contends that there was no drain or water course with which to connect the railroad ditches or drain or openings under its embankment prescribed by the statute. Whether the weight of the evidence on this point was in favor of appellant is a matter with which we have no concern. There was testimony given by an engineer and some residents of the locality which tended to prove the existence of a drain or watercourse of a well-defined character, with which the railroad might have connected the openings under its embankment referred to in the statute. The question of the existence of that drain was submitted to the jury in an instruction requested by defendant and given by the court. [Record, p. 347.] Granting the evidence on this point was conflicting, the verdict of the jury is' conclusive.
Act of God. III. Appellant assigns as error, that the injuries suffered by plaintiff were caused by an extraordinary and unprecedented flow of water. There was testimony tending to show that the overflow of the Missouri River in 1908 carried its waters out of its banks in some places, and arose to the dimensions of what might be termed a flood. If this was the sole and only efficient cause of the injury to plaintiff’s property, the rule invoked by appellant might have some application. [Powers v. Railroad, 71 Mo. App. l. c. 543; Ellet v. Railroad, 76 Mo. 518.] Plowever, there was testimony from which the jury were at liberty to infer that this was not the only agency which inflicted the loss complained of by plaintiff, but that the negligence of plaintiff co-operated in that result. The rule is well, settled in this State that, where the negligence of the defendant concurs with an inevitable accident to produce injury, the person so damaged is entitled to recover. [Wolf v. Express Co., 43 Mo. 421; Davis v. Railroad, 89 Mo. 340; Warehouse *58Co. v. Railroad, 124 Mo. App. 545; Prince & Co. v. Compress Co., 112 Mo. App. l. c. 65.]
Instructions. IV. Appellant complains of instruction numbered 2 given on behalf of plaintiff in that it did not require the jury to find that there were other ditches, drains or watercourses with which the statutory openings required of defendant could be connected; or, if there were any such, that they were sufficient to carry off the overflow. This point seems to be based on the failure of the court to insert after the words “to connect with other ditches, drains or watercourses” the terms “if any.” The instruction is further complained of in that it did not expressly require the jury to find that such connecting ditches, drains or watercourses would be sufficient to carry off the flood water. And it is thirdly complained, that the instruction submitted to the jury whether appellant constructed suitable drains and ditches “along each side of its roadbed.” Appellant does not set out the instruction in its brief, but a reference to the printed record discloses that its language might give rise to the contentions made by appellant. Hence, the question is, are these informalities or faults in the instruction sufficient ground for reversing this judgment? The record discloses that by instruction No. 8, requested and given on behalf of defendant, the jury were 'specifically directed, that if there was a depression just north of the M., K. & T. Railway track at North Jefferson which might have served as a drain or ditch, and that the Chicago & Alton Railroad might have made an opening in its track leading into such a depression, still they must find for the defendant, if they believed that the flood of water was so great that an opening through defendant’s embankment which should be only large enough to conduct a quantity of water which would have been carried off by said depression, would not prevent the flooding of plaintiff’s *59land. If there was any error in the instruction complained of, then the same error was contained in instruction numbered 8 given for defendant; and, hence, the defendant is not in a position to secure a reversal on that account. The instruction given for appellant was clear, complete and accurately definitive of its rights, and supplied any omissions and imperfections in that contained in instruction numbered 2 given for plaintiff as to the first criticism made by appellant. As to the.second criticism, it is enough to say that instruction numbered 1 given for plaintiff was supplementary of the omission complained of, and did require the jury to find that the draining of surface water was obstructed or made necessary by the railroad embankment before appellant could be required under the statute to make the statutory openings through its track. Neither as to the third criticism was there any reversible error. For if it be true that the instruction referred to the duty of the railroad to construct suitable ditches and drains on each side of its roadbed, still the undisputed evidence shows that plaintiff’s lands were lying only on one side of the road, and the contention on the trial was as to the existence of such ditches and drains on that side only. We do not think that the jury could have been misled by this inaccuracy, especially in view of the other instructions which confined. the view of the jury exclusively to the matter in issue. We rule this point against appellant.
Testimony: Conclusions. V. Appellant finally complains that one of the witnesses was permitted to give his conclusions as to the proper place for openings through defendant’s embankment, instead of a statement of the facts upon which they rested. We find by an inspection of the printed record, that when the „ , . , ,, , question was first asked the court overruled the objection of appellant on the ground that an answer to the question might be necessary to convey *60“a correct idea of the whole situation.” The succeeding question put to this witness, however, required him to state exactly the point or place where such an opening could have been constructed. In reply he did mention the particular places where two openings could have been put, which would have carried off the water. We conclude, therefore, that appellant was not prejudiced by the previous general question since the wit-, ness made a competent answer to a succeeding specific question.
The judgment herein is affirmed.
PER CURIAM. — The foregoing opinion of Bond, J., in Division is adopted as the opinion of the Court in Banc, by reducing so much of the judgment as rests upon a penalty from $50Q to $100.
Brown, Bond, Walker and Paris, JJ., concur; Woodson, J., not sitting; Lamm, C. J., and Graves, J., dissent in toto.