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Johnson, J.:
Enterprise Leasing Company of Kansas appeals the judgment entered in favor of Farm Bureau Mutual Insurance, Inc., which required Enterprise to reimburse Farm Bureau for the cost of defending and settling a claim against a Farm Bureau policyholder who was operating a vehicle rented from Enterprise. We disagree with the district court’s interpretation and application of K.S.A. 40-3104(f) to the facts of this case and reverse.
The undisputed facts are straightforward and uncomplicated. Max Miller rented a pickup truck from Enterprise, listing his wife, Karen, as an additional driver. Max did not purchase insurance through Enterprise; Enterprise held a certificate of self-insurance; the Millers had an automobile liability insurance policy through Farm Bureau. Karen had an accident while operating the rented pickup truck and was sued for the property damage inflicted on the other vehicle.
Farm Bureau defended the lawsuit, advanced funds to satisfy the judgment rendered against Karen, and took an assignment of Karen’s rights against Enterprise. Farm Bureau then filed a declaratory judgment action claiming that Enterprise was a self-insurer with a statutory duty to defend and settle the claim and pay the money judgment against Karen. Enterprise’s answer denied that it had any obligation to provide either liability insurance or self-insurance coverage while its vehicles were being operated under a contract of hire, except when the permissive user had no personal liability insurance. The matter then came before the district court upon Enterprise’s motion to dismiss, or in the alternative, for summary judgment. After its motions were denied, Enterprise moved for reconsideration and for additional findings of fact.
The district court found that K.S.A. 40-3104(f) required Enterprise to provide mandatory minimum liability coverage when the rental driver did not have: (1) a motor vehicle liability insurance policy, or (2) insurance coverage pursuant to a motor vehicle liability insurance policy and the person was driving with the consent of the self-insurer. The court found that because Karen had a liability policy, the issue was whether Karen had coverage pursuant to that policy. Summarily stating that the rental vehicle was not owned or leased by Karen, the court found that Karen’s Farm Bureau policy only provided excess coverage and that Enterprise was required by statute to provide primary liability coverage.
On appeal, Enterprise argues: (1) Karen’s policy with Farm Bureau provided primary coverage under the facts of this case; (2) the excess insurance clause in Karen’s personal policy cannot displace the provisions of K.S.A. 40-3104(f) and creates a duty to pay self-insurance benefits; (3) Enterprise is not obligated to pay defense costs in a suit against the renter; and (4) Enterprise has a right to indemnification from Karen.
However, we perceive the matter is resolved by determining Enterprise’s statutory obligation to provide liability coverage for its rental drivers and determining Farm Bureau’s contractual obligation to provide coverage for its insureds while driving a rental vehicle. The analysis requires that we interpret the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., and the Millers’ insurance policy issued by Farm Bureau, thus presenting questions of law over which we have unlimited review. See Taliaferro v. Taliaferro, 269 Kan. 722, 726, 7 P.3d 1241 (2000) (interpretation of a written instrument and interpretation of applicable statutes); Progressive Casualty Ins. Co. v. Farm, Bureau Mut. Ins. Co., 27 Kan. App. 2d 765, 766, 9 P.3d 565, rev. denied 270 Kan. 899 (2000) (interpretation of the “other insurance” clause of an automobile insurance policy).
ENTERPRISE’S STATUTORY OBLIGATION
The district court correctly rejected Farm Bureau’s argument that the KAIRA requires Enterprise to provide primary liability coverage for its rental drivers in all circumstances. At oral argument, Farm Bureau strenuously asserted that we must be guided by the provisions of K.S.A. 40-3104(a), which requires that “[e]very owner shall provide motor vehicle liability insurance coverage in accordance with the provisions of this act for every motor vehicle owned by such person.” Farm Bureau seems to intimate that: (1) K.S.A. 40-3104(a) requires all vehicle owners to provide primary liability coverage on owned vehicles; (2) Enterprise owned the pickup; (3) therefore, Enterprise must provide primary liability coverage on the pickup. The syllogism falters because K.S.A. 40- 3104(a) does not require every vehicle owner to provide primary coverage, or even any coverage, in all circumstances, but rather it requires that coverage be provided in accordance with tire other KAIRA provisions. For instance, K.S.A. 40-3107(h) permits an insurer to exclude liability coverage while the insured vehicle is being rented to others. Indeed, the Millers’ policy with Farm Bureau contains such an exclusion. Farm Bureau argued below that the legislature intended insurance companies and self-insurers to be treated the same, citing Overbaugh v. Strange, 254 Kan. 605, 612, 867 P.2d 1016 (1994). However, inexplicably, Farm Bureau then asserts K.S.A. 40-3104(a) precludes Enterprise from excluding coverage to rental drivers while allowing Farm Bureau to do so.
KAIRA does, in fact, treat self-insurers differently, as evidenced by a specific provision applicable to self-insured rental car companies:
“A self-insurer shall provide liability coverage subject to die provisions of subsection (e) of K.S.A. 40-3107 [minimum limits of Lability], and amendments thereto, arising out of the ownership, operation, maintenance or use of a self-insured motor vehicle in those instances where the lessee or the rental driver, if not the lessee, does not have a motor vehicle liability insurance policy or insurance coverage pursuant to a motor vehicle liability insurance policy or certificate of insurance or such insurance policy for such leased or rented vehicle. Such liability coverage shall be provided to any person operating a self-insured motor vehicle with the expressed or implied consent of the self-insurer.” K.S.A. 40-3104(f).
The rules of statutory construction are well settled. See State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001); In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). When read in conjunction with the other provisions of the KAIRA, including K.S.A. 40-3104(a), it is clear that a self-insurer may not entirely exclude coverage for a rental driver, but it is only required to provide liability coverage on rented vehicles when an authorized driver does not have his or her own liability coverage. The legislative history of the 1996 amendment to K.S.A. 40-3104(f) confirms this interpretation. The original version of House Bill 2652 required self-insurers to “provide direct and primary coverage,” but the legislature eliminated this language in favor of the current language.
In the rental agreement, Karen was specifically authorized to operate the pickup. By definition in Farm Bureau’s insurance policy, Karen was a named insured and, thus, had a “motor vehicle liability insurance policy.” Therefore, Enterprise was required to provide minimum property damage liability coverage for Karen’s accident if, and only if, Karen’s Farm Bureau policy did not provide coverage for the accident.
FARM BUREAU’S COVERAGE
Farm Bureau argued, and the district court agreed, that Karen did not have primary liability coverage under her personal insurance policy because of a policy provision that states:
OTHER INSURANCE
“If there is other applicable liability insurance on a loss covered by this Part, we will pay our proportionate share as our limits of liability bear to the total of all applicable liability hmits. Any insurance afforded under this Part for a vehicle you do not own or lease, however, is excess over any other liability insurance and shall be hmited to the difference between the liability hmits on the nonowned vehicle and the liability hmits on the described vehicle.” (Emphasis added.)
The district court found that Karen did not own or lease the pickup truck, thereby invoking the “other insurance” provision of the Farm Bureau policy. The district court then opined that because Karen only had “excess coverage,” she did not have “insurance coverage pursuant to a motor vehicle liability insurance policy” as contemplated in K.S.A. 40-3104(f) and, therefore, the self-insurer (Enterprise) had to provide primary coverage.
We disagree with the district court on two levels: (1) within the framework of Farm Bureau’s policy definitions, the pickup was a leased vehicle and the excess coverage policy provision was inapplicable; and (2) K.S.A. 40-3104(f) does not require the rental driver’s insurance coverage to be “primary coverage” to avoid the contingency triggering a self-insurer’s statutory obligation.
A. Applicability of Excess Clause
Farm Bureau’s excess coverage provision only applies to a vehicle “you” do not own or lease. The district court did not explain its finding that Karen did not lease the pickup. Perhaps the district court was persuaded by Enterprise’s rental agreement, which identified Max Miller as the “renter” and Karen Miller as an “additional driver”. Nevertheless, if we find that the pickup was leased by Farm Bureau’s insured, the excess coverage provision does not apply.
“An insurance policy should be construed to give effect to the intention of the parties. The test applied in determining that intention is not what the insured intended the policy to mean, but what a reasonable person in the position of the insured would understand it to mean. Wheeler v. Employer’s Mutual Casualty Co., 211 Kan. 100, 104, 505 P.2d 768 (1973). The terms of an insurance contract, as in the case of any written contract, must be considered as a whole. Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 468 P.2d 157 (1970).” Farm Bureau Mutual Ins. Co. v. Horinek, 233 Kan. 175, 179-80, 660 P.2d 1374 (1983).
Farm Bureau expresses its coverage utilizing the pronoun “you,” which the policy specifically defines to mean both Max and Karen. Max, an insurance contract “you,” signed an agreement to lease a vehicle which permitted Karen, another contractual “you,” to drive the vehicle. A reasonable person in the Millers’ position would not understand the excess coverage clause to be applied based upon which collectively defined “you” actually signed the rental agreement. Having affirmatively expressed coverage through broad promises, Farm Bureau had a duty to define limitations on that coverage in clear and explicit terms. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 327, 961 P.2d 1213 (1998). Accordingly, we find the pickup was a vehicle leased by Farm Bureau’s insured and, therefore, the excess coverage provision did not apply.
B. Interpretation of “insurance coverage”
More fundamental to the district court’s ruling was its apparent belief that the phrase “insurance coverage” in K.S.A. 40-3104(f) means “primary coverage,” i.e., Enterprise has to pay if Karen’s Farm Bureau coverage is not “primary” because of the excess coverage clause. We do not read that additional contingency into the statute.
Unquestionably, Farm Bureau was required by its policy and did, in fact, provide Karen coverage while she was operating the rental pickup. Even under Farm Bureau’s interpretation of the interplay of the self-insurer statute and its policy, Farm Bureau was liable for all property damage that Karen negligently caused with the rental pickup over and above the minimum property damage limit of $10,000 up to the policy property damage limit of $50,000. In other words, if Karen had demolished a vehicle worth $50,000, Farm Bureau would be arguing over whether it had to pay $40,000 or $50,000, not whether it had to cover Karen. This was not one of “those instances where the lessee or the rental driver, if not the lessee, does not have . . . insurance coverage pursuant to a motor vehicle liability insurance policy” contemplated by K.S.A. 40-3104(f). Karen did have coverage, subject only to the condition that any other applicable insurance pays first.
Here, there was not “any other liability insurance” applicable. K.S.A. 40-3104(f) presents an either/or situation: either there is no personal insurance coverage and the self-insurer pays, or there is personal insurance coverage and the self-insurer does not pay. Karen had insurance coverage; Enterprise was not required to provide any coverage; there was no other liability insurance over which Farm Bureau’s insurance could be in excess. Farm Bureau was responsible for the defense, settlement, and payment of the judgment against its insured without reimbursement from Enterprise.
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Marquardt, J.:
Tracy D. Boyd appeals her conviction of possession of cocaine. We affirm.
Officers Kevin Real and Paul Herman were conducting surveillance of a residence for suspected drug activity. They had arrested two individuals at the residence for possession of cocaine a week earlier. At approximately 1:30 a.m., a vehicle that had been parked in front of the residence drove away and made a left turn without signaling. The officers stopped the vehicle.
Officer Real asked the driver, Richard Lassiter, for his license and proof of insurance. At the same time, Officer Herman approached the passenger s side of the vehicle and obtained identification from Boyd.
Officer Real testified that Lassiter appeared “more nervous than most,” and Real asked him to exit the vehicle. When Lassiter was asked where he was traveling from, he gave the name of one of the individuals who had been arrested at the surveilled residence the previous week. Officer Real asked Lassiter if he had any illegal substances on him, and Lassiter responded negatively. Lassiter consented to a search of his person and no illegal substance was found. Officer Real asked Lassiter if the vehicle was his and, if so, whether he could search it. Lassiter responded affirmatively to both questions.
Officer Herman asked Boyd to step out of the vehicle after Lassiter consented to the search of his vehicle. Boyd testified that when she left the vehicle, she attempted to take her purse but was told by Officer Herman to leave it inside the vehicle.
This procedure lasted 4 or 5 minutes. When Officer Real searched the vehicle, he opened the center console ashtray and found a crack pipe. Boyd’s purse was searched after Officer Real discovered the crack pipe. Officer Real testified that Boyd’s purse was located on the floorboard between the driver and front passenger seat. Officer Real opened one of the pouches of Boyd’s purse and found a plastic bag containing off-white rocks which were later confirmed to be crack cocaine.
Boyd was arrested and charged with possession of cocaine. Boyd filed a motion to quash her arrest and suppress the evidence. After a hearing, the trial court denied Boyd’s motion to suppress, finding that Wyoming v. Houghton, 526 U.S. 295, 143 L. Ed. 2d 408, 119 S. Ct. 1297 (1999), controlled. The trial court stated that once the crack pipe was found, officers had probable cause to search anything within the driver’s reach.
The case was tried to the court. By agreement of the parties, the testimony from the suppression hearing was admitted as part of the bench trial. Boyd renewed her motion to suppress, which was denied. The trial court found Boyd guilty of cocaine possession and sentenced her to 12 months’ probation with an underlying prison term of 11 months. Boyd timely appeals.
Boyd claims that the trial court erred when it did not suppress the evidence found in her purse. She alleges that the search of her purse was illegal and violated her Fourth Amendment rights.
“ “When analyzing a district court’s suppression of evidence, an appellate court reviews the factual underpinnings of a district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review ” State v. Pritchett, 270 Kan. 125, 128, 11 P.3d 1125 (2000).
“On a motion to suppress evidence, the State bears the burden of proving the lawfulness of a search and seizure. Searches conducted without a warrant issued on probable cause are per se unreasonable under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, subject only to a few specially established and well-delineated circumstances. [Citation omitted.]” State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997).
Whether a search or seizure is illegal and unreasonable under the Fourth Amendment to the United States Constitution requires a balancing of individual privacy rights against legitimate governmental interests. Houghton, 526 U.S. at 299-300.
The general rule that warrantless searches and seizures are unreasonable has five exceptions: (1) consent; (2) hot pursuit; (3) incident to a lawful arrest; (4) stop and frisk; and (5) probable cause to search with exigent circumstances. State v. Box, 28 Kan. App. 2d 401, 404, 17 P.3d 386 (2000). Boyd does not question that Lassiter gave consent to the search and that his consent was voluntaiy.
The State argues that probable cause existed for the search of Boyd’s purse after Officer Real discovered the crack pipe in the vehicle’s console. Boyd contends that the police did not have probable cause to search her purse because they did not find illegal drugs when they searched Lassiter’s person.
There is no published Kansas case which addresses the search of a passenger’s possessions when the driver gives consent to search the vehicle.
A vehicle may be searched without a warrant if there is probable cause to support a belief that contraband may be found within the vehicle. United States v. Ross, 456 U.S. 798, 806-07, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982). Once probable cause is found concerning the existence of contraband within the vehicle, any container capable of containing the contraband or evidence thereof may be searched. State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993). Moreover, a showing of individualized probable cause for each container is not necessary, and a passenger’s personal be longings, just like the driver s belongings, may be searched. Houghton, 526 U.S. at 302.
In Houghton, a highway patrol officer stopped a vehicle for speeding and a faulty brake light. The officer noticed a syringe sticking out of the driver s shirt pocket. The driver was asked what the syringe was used for, and he indicated that it was for taking drugs. The officer asked the passengers for identification and instructed them to exit the vehicle. Meanwhile, in light of the driver s admission, the officer searched the passenger compartment of the vehicle for contraband.
During the vehicle search, the officer found a purse in the back seat in which he found methamphetamine and drug paraphernalia. The passenger who was the owner of the purse, Sandra K. Houghton, was arrested. The trial court denied Houghton’s motion to suppress the evidence found in her purse. The Wyoming Supreme Court reversed, finding that the search was unreasonable because the officer did not have probable cause to believe Houghton had contraband in the purse. The United States Supreme Court granted certiorari. Houghton, 526 U.S. at 297-99. The court found that Ross, 456 U.S. 798, did not limit its holding only to contents which belonged to the driver. Justice Scalia stated that if probable cause exists to search a vehicle, all containers within the vehicle capable of containing the object of the search can be searched regardless of ownership. Houghton, 526 U.S. at 301.
Probable cause to search a vehicle is established if, under the totality of the circumstances, there is a fair probability that the vehicle contains contraband or evidence. United States v. Edwards, 242 F.3d 928, 939 (10th Cir. 2001). At a suppression hearing, officers must offer testimony supporting an articulable suspicion of illegal activity or that contraband could be found within the vehicle. Edwards, 242 F.3d at 939.
Consideration of the totality of the circumstances dictates whether the search and seizure was illegal. Lassiter “appeared a lot more nervous than most,” and the vehicle had just left a residence where drug arrests had taken place the previous week. Neither Lassiter nor Boyd was under arrest when the search took place.
The trial court stated that probable cause to search Boyd’s purse was directly connected to the discovery of the crack pipe in the vehicle’s console. We agree.
In justifying the search of Boyd’s purse, the State relies on Lassiter’s voluntary consent to search the vehicle. An exception to the search warrant requirement is voluntary and knowing consent to search from the person whose rights are in question. State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.2d 453 (1997). Consent to a search operates to remove the taint of illegality of the seizure if voluntarily given. State v. Schmitter, 23 Kan. App. 2d 547, 556, 933 P.2d 762 (1997).
Boyd does not contest Lassiter’s consent to search the vehicle. However, Boyd argues that the consent did not cover the search of her purse. A third party who has common authority over the property at issue may give valid consent to search. Illinois v. Rodriguez, 497 U.S. 177, 179, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990). Kansas has adopted the “apparent authority” rule, which makes valid a consent to search when the facts available to an officer would warrant a person of reasonable caution to believe the consenting party had authority over the premises to be searched. State v. Ratley, 16 Kan. App. 2d 589, 595, 827 P.2d 78 (1992).
Boyd and the State differ on the issue of whether the officer had legitimate safety concerns for requesting Boyd to leave her purse in the vehicle. The safety issue is not dispositive of this case.
Boyd does not argue that the officers should not have been able to order her out of the vehicle; instead, Boyd likens her purse to “a piece of her outer clothing, which is subject to a heightened standard of privacy than something merely left in the vehicle.” We do not agree that an item of personal property is synonymous with a person’s outer clothing. The United States Supreme Court drew a distinction between the heightened privacy expectation against searches of one’s person and the reduced expectation of privacy for an item of personal property found in a car. Houghton, 526 U.S. at 303.
The State argues that a passenger, like Boyd, has diminished privacy expectations when balanced against the governmental interests of effective law enforcement. Moreover, a passenger “will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. [Citation omitted.]” Houghton, 526 U.S. at 304-05.
When assessing the balance between individual privacy and governmental invasion, the “touchstone” has always been reasonableness. Maryland v. Wilson, 519 U.S. 408, 411, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997). It was reasonable for the officers to require Boyd to leave her purse in the vehicle based on legitimate concerns regarding the contents of Boyd’s purse.
Finally, the State argues that regardless of whether the search is found to be legal, Boyd and her property would have been searched incident to arrest when police discovered the crack pipe. Here, the State is alluding to another noted exception to the general rule prohibiting warrantless searches. An automobile can be searched when it is done incident to the arrest of its occupant. State v. Van Wey, 18 Kan. App. 2d 260, 261, 850 P.2d 283 (1993).
In State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996), the Kansas Supreme Court stated that a search incident to an arrest must be done for at least one of the three reasons set forth in K.S.A. 22-2501. Here, officers did not express a belief that Boyd posed a safety threat. Secondly, Boyd did not attempt to escape and had complied with the officer’s instructions when she was told to leave her purse.in the vehicle. Thus, the State’s argument must rest on the search of Boyd’s purse to discover fruits, instrumentalities, or evidence of the crime incident to the possible arrest of Lassiter for possession of the crack pipe.
The State cites State v. Undorf, 210 Kan. 1, 499 P.2d 1105 (1972), in which officers stopped a car for speeding, disregarding a stop sign, and crossing the centerline. The officers observed the passenger holding a glass which appeared to contain liquor and an open bottle lying on the console between the seats. The driver was arrested and the car was impounded. Before it was towed, an officer searched the vehicle and found a suitcase full of liquor and a suitcase with drugs in the trunk. The passenger was also arrested and placed in a patrol car. En route to the county jail, an officer searched the passenger’s purse and found a loaded gun. Undorf is not support for the State’s argument that Boyd’s purse would have been searched incident to the arrest. Undorf was under arrest when they searched her purse; Boyd’s purse was searched before she was arrested.
Several other state courts have applied Houghton. The Supreme Court of Nebraska focused on Houghton when it determined that a passenger’s knapsack found in the vehicle’s passenger compartment could be searched incident to the arrest of the driver. State v. Ray, 260 Neb. 868, 620 N.W.2d 83 (2000). The court stated that a driver could hide contraband in a passenger’s belongings and a passenger has a reduced expectation of privacy with regard to the property that they transport in cars. 260 Neb. at 874.
In State v. Lopez, 198 Ariz. 420, 10 P.3d 1207 (2000), a passenger was removed from a vehicle and patted down for weapons. During the search of the vehicle, officers searched the passenger’s backpack and found ammunition and weapons before a further search disclosed cocaine. The Arizona Court of Appeals applied the reasoning from Houghton that a vehicle search incident to the arrest of the driver allows inspection of the passenger’s belongings. The court stated that because weapons and evidence of the arrestee’s suspected offense can be concealed in a passenger’s belongings, the needs of law enforcement in a search incident to arrest outweigh a nonarrestee’s privacy interest in belongings found within the passenger compartment. 198 Ariz. at 424.
The Supreme Court of Wisconsin in State v. Pallone, 236 Wis. 2d 162, 613 N.W.2d 568 (2000), upheld the search, stating that (1) the search was valid as incident to arrest of the driver; and (2) the search was proper because the officer had probable cause to search the vehicle for any container capable of concealing the object of the officer’s search. 236 Wis. 2d at 188. In addition to the valid arrest of the driver, the Wisconsin court found that probable cause existed to carry out a full search of the vehicle based on the driver’s behavior and statements that there was more liquor stored inside the vehicle. 236 Wis. 2d at 198.
The Supreme Court of South Dakota found that a passenger’s purse could be searched incident to the driver’s arrest for a probation violation. State v. Steele, 613 N.W.2d 825 (S.D. 2000). In Steele, the driver was arrested for violating the terms of his pro bation by refusing to take a breathalyzer test. The officers asked the passenger, Steele, to exit the vehicle so that they could search the vehicle. The officers refused to allow Steele to take her purse with her. When the officer asked Steele if he would find anything if he searched the purse, Steele responded affirmatively. The officer searched her purse and found drugs and drug paraphernalia inside. Steele was arrested.
Like Boyd, Steele argued that she did not voluntarily leave her purse in the car. The court addressed her argument by concluding that if passengers were allowed to remove belongings from a vehicle prior to its search, then the Belton rule would be nullified. Steele, 613 N.W.2d at 827. The Steele court upheld the search of Steele’s purse, stating: “A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are ‘in’ the car, and the officer has probable cause to search for contraband in the car.” 613 N.W.2d at 830.
In comparison with Boyd, all of the cases decided by other state courts contained factual scenarios where the initial search of the driver’s vehicle took place not because of the driver’s consent, but incident to the lawful arrest of the driver or based upon probable cause.
Moreover, in Ray and Pallone, the passengers provided information to substantiate the probable cause necessaiy to search the passenger compartment. Ray, 260 Neb. at 869; Pallone, 236 Wis. 2d at 169. Although the State contends that Boyd also told the officer about the cocaine in her purse prior to the officer’s search, it was determined during the suppression hearing that Boyd’s conversation with Officer Herman about the contents of her purse was after her purse had been searched.
We hold that under the totality of the circumstances, no illegal search or seizure of any item in a vehicle takes place when probable cause has been established and the officers receive voluntary consent to search from the driver of the vehicle.
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Elliott, J.:
William C. Huffmier, former Shawnee County undersheriff, appeals the summary judgment entered in favor of Joan Hamilton, former Shawnee County district attorney, on his state law tort claims and federal 42 U.S.C. § 1983 claim.
We affirm.
This case is collaterally related to the ouster of former Shawnee County Sheriff David Meneley. See State ex rel. Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2001).
For present appeal purposes, the factual background is undisputed. Hamilton filed a charge of criminal threat against Huffmier and filed an affidavit of probable cause to obtain an arrest warrant. At preliminary hearing, the district court dismissed the charge against Huffmier, finding the evidence was too weak, indirect, and indefinite to establish the charge.
Huffmier then filed the present case against Hamilton and others; he does not appeal the dismissal of the other defendants from the lawsuit.
Counts I and IV seem to contain the same state law tort claims of malicious prosecution; Count III alleged the state law tort claim of invasion of privacy; and Count II alleged Hamilton violated his First Amendment right to associate with others, in violation of 42 U.S.C. § 1983 (2000).
The trial court treated Hamilton’s motion to dismiss as one for summary judgment, since both parties referred in their briefs to the affidavit filed in the criminal case. See K.S.A. 60-212(b) and (c); Davidson v. Denning, 259 Kan. 659, 666-67, 914 P.2d 936 (1999).
The trial court dismissed the state law tort claims on the common-law doctrine of “absolute privilege.” See, e.g., Froelich v. Adair, 213 Kan. 357, 360, 516 P.2d 993 (1973).
With respect to the § 1983 claim, the trial court ruled, based on its interpretation of Kalina v. Fletcher, 522 U.S. 118, 139 L. Ed. 2d 471, 118 S. Ct. 502 (1997), that Hamilton enjoyed absolute immunity from the § 1983 claim. The trial court also ruled, sua sponte, that Hamilton enjoyed qualified immunity.
When, as here, summary judgment is based on undisputed facts, it is reviewable de novo on appeal. Ekan Properties v. Wilhm, 262 Kan. 495, 501, 939 P.2d 918 (1997). Whether a governmental official is protected by absolute immunity from a § 1983 claim is likewise reviewed de novo. Scott v. Hern, 216 F.3d 897, 908 (10th Cir. 2000). And we also review the trial court’s resolution of qualified immunity issues on summary judgment on a de novo basis. Farmer v. Perrill, 288 F.3d 1254, 1258 (10th Cir. 2002).
The state law tort claims
Huffmier argues Hamilton is not entitled to immunity from the state law claims under K.S.A. 2001 Supp. 75-6104(e), the discretionary function/duty exception to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. Hamilton did not raise this immunity as a defense; the issue was not argued to the trial court nor did the trial court rule on this issue. We do not review issues not presented to the trial court or considered by the trial court in issuing its ruling. See Dalmasso v. Dalmasso, 269 Kan. 752, 765, 9 P.3d 551 (2000).
Rather, the trial court ruled in Hamilton’s favor on the state law tort claims based on the Kansas common-law doctrine of absolute privilege in court proceedings. Huffmier does not argue this was in error, claiming the state law tort claims were decided adversely to him for the same reason the § 1983 claim was dismissed.
Such is not the case. The state law tort claims were dismissed pursuant to the state law doctrine of “absolute privilege” under Froelich, while the § 1983 claim was dismissed on the basis of the federal doctrine of absolute immunity and on the basis of qualified immunity, yet another federal defense to a federal claim.
State law defenses to state law claims are simply not the same as federal law defenses to federal claims. The issue of absolute immunity was discussed in McCormick only with respect to plaintiff s § 1983 claim, not his state law negligence claims. See McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, 35 P.3d 815 (2001).
Issues not briefed are deemed waived or abandoned. Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 (1999).
We therefore affirm the dismissal of Huffmier’s state law tort claims.
The absolute immunity issue
As noted, the trial court found Hamilton enjoyed absolute prosecutorial immunity from the § 1983 claim based on its interpretation of Kalina, 522 U.S. 118. Subsequent to the trial court’s ruling in the present case, our Supreme Court decided McCormick. In essence, McCormick ruled the trial court’s interpretation of Kalina was incorrect. See 272 Kan. at 634-36.
There is no difference between the relevant portions of the affidavit at issue in the present case and the one involved in McCormick. The trial court erred in finding Hamilton enjoyed absolute immunity from the § 1983 claim.
The qualified immunity issue
The trial court also ruled, sua sponte, Hamilton was entitled to qualified immunity from the § 1983 claim. It is error for a trial court to raise, sua sponte, nonjurisdictional issues. Frontier Ditch Co. v. Chief Engineer of Div. of Water Resources, 237 Kan. 857, 864, 704 P.2d 12 (1985); Limestone Farms, Inc. v. Deere & Co., 29 Kan. App. 2d 609, 615, 29 P.3d 457 (2001). Frontier Ditch clearly holds that “[wjhile the court may raise issues on its own motions, it is limited to issues of jurisdiction.” 237 Kan. at 864.
Qualified immunity is not a jurisdictional issue; rather, it is an entitlement not to stand trial or face other burdens of litigation. See McCormick, 272 Kan. 627, Syl. ¶ 3. It was error for the trial court to raise and decide this issue on its own motion.
We note that Hamilton has yet to file an answer in the present case, having filed only a motion to dismiss. Thus, the issue of qualified immunity had not been waived. See McCormick, 272 Kan. at 636.
In McCormick, the issue of qualified immunity was apparently raised in passing in the motion to dismiss. Quoting Saucier v. Katz, 533 U.S. 194, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001), the McCormick court held the qualified immunity issue was properly before the court:
“ ‘Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Ibid. As a result, ‘we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.’ Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).’ 533 U.S. at 200-01.” (Emphasis added.) 272 Kan. at 637.
It is unclear to us from the McCormick opinion whether the issue of qualified immunity was properly before the court because it was raised, though in passing, at the trial court level or because the issue should be resolved at the earliest possible stage of litigation. In any event, when a trial court chooses to address an issue not raised by the parties, we may similarly address it. See R. D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan. App. 2d 453, 456, 643 P.2d 1142, rev. denied 231 Kan. 801 (1982). Accordingly, due to the importance of resolving immunity questions as soon as possible, under the facts presented, we choose to address the qualified immunity issue.
Here, the trial court applied the heightened pleading standard of Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir. 1997), and found the petition did not allege a violation of a clearly defined constitutional right. Specifically, the trial court found Hamilton was entitled to qualified immunity because the issue of whether a prosecutor could sign an affidavit for an arrest warrant was not clear under Kansas law (McCormick had not yet been decided at the time the affidavit was signed).
The trial court’s rationale was wrong on a couple of fronts.
The heightened pleading standard requires the complaint/petition to contain “specific, non-conclusory allegations of fact sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law.” McCormick, 272 Kan. at 637 (quoting Van Deelen v. City of Eudora, Kan., 53 F. Supp. 2d 1223, 1232-33 [D. Kan. 1999]).
But the Tenth Circuit Court of Appeals, in analyzing the effect of Crawford-El v. Britton, 523 U.S. 574, 597-98, 140 L. Ed. 2d 759, 118 S. Ct. 1584 (1998), on the Breidenbach heightened pleading standard, concluded the rule could no longer be applied. Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). Both Crawford-El and Currier were decided before the trial court’s memorandum decision in the present case. The McCormick court followed the lead of the Tenth Circuit, holding that when a § 1983 violation is claimed, the heightened pleading standard is no longer applicable. 272 Kan. at 638.
The second error in the trial court’s analysis is that the uncertainty in the law regarding the effect of a prosecutor’s signing an affidavit of probable cause has no bearing on the issue of qualified immunity. Instead, the issue of qualified immunity requires an application of the two-part test set forth in Saucier, 533 U.S. at 200-01: First, do the facts alleged show the governmental official’s conduct violated a constitutional right? Second, was the constitutional right clearly established? See McCormick, 272 Kan. at 642.
Neither Kalina nor McCormick established a constitutional right regarding a prosecutor signing an affidavit; rather, the allegations in both of those cases were based on a violation of the right to be free from unreasonable seizures.
In the present case, Huffmier alleged his constitutional right of association was violated by Hamilton. The uncertainty of the law regarding the effect of a prosecutor signing an affidavit on her ability to assert immunity simply has no bearing on the question of whether Huffmier sufficiently alleged a violation of this First Amendment right.
Turning to the merits of the qualified immunity issue, the factual allegations, taken in a light most favorable to Huffmier, simply do not show Hamilton’s actions violated his right to associate freely with others.
We begin with a brief review of right to associate law, since many members of the bench and bar may not possess much familiarity with it.
The First Amendment to the United States Constitution accords special protection to two different forms of association: “intimate association” and “expressive association.” See Dallas v. Stanglin, 490 U.S. 19, 23-25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989); Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984).
Intimate association
The right to “intimate association” deals with the institution of marriage and familial relationships. See Roberts, 468 U.S. at 619. “The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family.” 468 U.S. at 619.
On the other hand,
“only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities— such as a large business enterprise — seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on tire State’s power to control the selection of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees.” 468 U.S. at 620.
Further, recognizing that many associations are made which lie between these two points, the Court noted that “[d]eterminingthe limits of state authority over an individual’s freedom to enter into a particular association therefore unavoidably entails a careful as sessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.” 468 U.S. at 620. Among the factors courts are to apply include “size, purpose, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.” 468 U.S. at 620.
Expressive association
The right of “expressive association” is the “right to associate for the purpose of engaging in those activities protected by the First Amendment- — speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.” Roberts, 468 U.S. at 618.
Analysis
In order to establish his First Amendment claim under § 1983, Huffmier must prove wrongful conduct by Hamilton and that the wrongful conduct had a chilling effect on his associational rights. See National Commodity and Barter Ass’n v. Archer, 31 F.3d 1521, 1531 n.4 (10th Cir. 1994).
In his petition, Huffmier contends Hamilton caused a frivolous and false charge to be filed against him in order to “punish Mr. Huffmier for being a friend of Dave Meneley and part of his staff, and to make Mr. Huffmier unavailable as a witness for Dave Meneley in his criminal prosecution.” The petition further alleges Hamilton “acted with a political malice toward and against plaintiff with a desire to gain an advantage in the public controversy with Dave Meneley. Further [she] acted with a motive to punish and harm plaintiff because of his association with him.”
We fail to see, even if the facts as alleged are true, and viewing them in a light most favorable to Huffmier, that Hamilton caused him to be unable to associate with anyone, much less deprived him of any “intimate” or “expressive” associations. There are no allegations Huffmier was deprived of a friendship with Meneley. In fact, he pled that he did maintain an association with Meneley.
We also doubt mere friendships are protected by the association clause.
We may affirm the trial court on grounds different than those stated by the trial court. Bergstrom, v. Noah, 266 Kan. at 875-76. Accordingly, the trial court’s dismissal of Huffmier’s § 1983 claim on qualified immunity grounds was appropriate and is affirmed.
The immunity with respect to Hamilton’s role in investigating the allegations brought forth in the affidavit
Finally, Huffmier also claims Hamilton does not enjoy absolute immunity from the § 1983 claim for her acts of investigation.
This claim is wholly derivative and dependent on the claim Hamilton violated Huffmier’s association rights by filing the affidavit. There is no allegation in the petition the investigation personally undertaken by Hamilton, if any, in and of itself violated his association rights. Cf., e.g., Buckley v. Fitzsimmons, 509 U.S. 259, 125 L. Ed. 2d 209, 113 S. Ct. 2606 (1993); Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001).
We previously held Hamilton is entitled to qualified, but not absolute, immunity on the claim she violated Huffmier’s association rights by filing the affidavit in which she personally vouched for the facts stated in the affidavit. This issue also fails.
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Knudson, J.:
In this medical malpractice case, the plaintiff Paul Watkins appeals from the grant of summary judgment to the defendant physicians, S. Desai and James McGovern. (At the request of the parties, the plaintiff s claim against Dr. Randall McAllister had previously been dismissed.) Two issues are raised: (1) Did the district court err in concluding the plaintiff failed to present expert medical testimony that the negligence of the physicians, if any, caused harm to the plaintiff; and (2) did the district court abuse its discretion in excluding depositions from consideration of the medical malpractice screening panel that had been convened under K.S.A. 65-4901 et seq. ?
We affirm. Summaiy judgment was properly granted to the defendants because the plaintiff failed to present expert medical evidence to establish legal causation. The trial court’s decision to strike depositions from the screening panel’s consideration is consistent with K.S.A. 65-4903 and Supreme Court Rule 142 (2001 Kan. Ct. R. Annot. 192).
Watkins filed a workers compensation claim for his back injury. Depositions were taken in that proceeding, including those of Doctors Desai and McGovern. A screening panel was convened under K.S.A. 65-4901 et seq. In providing information to the screening panel as required under K.S.A. 65-4903 and Supreme Court Rule 142, Watkins included his own written statement, depositions from various medical providers, including those taken from the defendants, and an employment contract between St. Francis Hospital and his employer. The defendants’ motion to strike all of these submissions from consideration by the panel was granted by the district court, and a motion for reconsideration was denied. Watkins appealed to the Court of Appeals, but that appeal was found to be interlocutory and dismissed for lack of jurisdiction. Ultimately, the screening panel found: (1) Dr. Desai’s examination and treatment of Watkins was within the applicable standard of care; (2) Dr. McGovern’s examination and treatment was below the applicable standard of care; and (3) Dr. McGovern’s treatment of Watkins did not contribute to the patient’s injuiy or damages.
Subsequently, in the medical malpractice litigation, the district court granted the defendants’ motion for summary judgment, finding that as a matter of law Watkins failed to produce expert testimony on the issue of causation. Watkins now appeals.
The Grant of Summary Judgment
Watkins argues the district court erred in granting the defendants’ motion for summary judgment. According to Watkins, the district court ignored the letter written by his expert witness, Dr. Bernard Abrams, and improperly viewed the remaining evidence in a light most favorable to the defendants in rendering its decision. Watkins maintains Dr. Abrams rendered an expert opinion on the issue of causation in his letter, and, therefore, the matter should proceed to trial for a juiy determination of causation.
“ ‘Summary judgment is appropriate when the pleading[s], depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
A medical malpractice claim requires the same elements of proof as any negligence action: (1) the existence of a duty; (2) breach of that duty; (3) injury; and (4) a causal connection between the duty breached and the injury suffered. Schmidt v. Shearer, 26 Kan. App. 2d 760, 764, 995 P.2d 381 (1999). Expert testimony is required in medical malpractice cases to establish the applicable standard of care and to prove causation. 26 Kan. App. 2d at 764. An exception to this requirement arises in cases where the lack of reasonable care or the existence of causation is apparent to the average layman from common knowledge or experience. Hare v. Wendler, 263 Kan. 434, 440, 442, 949 P.2d 1141 (1997). Here, Watkins does not dispute the district court’s finding that the common knowledge exception did not apply to relieve him of the duty to provide expert testimony regarding causation.
The sequence of events pertaining to Dr. Abrams’ participation in the case is important. Dr. Abrams first stated his opinion by letter, the relevant portions of which were as follows:
“None of these physicians apparently recognized the warning signs that this man could easily have a serious process in his lumbosacral spine that threatened the integrity of the Cauda Equina. Accordingly, he was not treated and a considerable delay ensued. It was only when he saw Dr. Sergio Delgado and had the MRI and was referred to Dr. Ebeling that he received appropriate diagnosis and treatment. The delay in his treatment resulted in a Cauda Equina syndrome.
“In conclusion, therefore, I believe that this patient’s care from these three physicians, Dr. McCallister [sic], Dr. Desai, and Dr. McGovern, was below the standard of care and resulted in increased injuiy to his Cauda Equina. This conclusion is with a reasonable degree of medical certainty.”
The deposition of Dr. Abrams was taken almost 2 years after he wrote the letter. In his deposition, Dr. Abrams testified the opinions stated in his letter addressed only the issue of whether the defendants deviated from the applicable standard of care. He explicitly testified he was without the necessary medical information to determine whether the defendants’ breach of the standard of care and the resulting delay in treatment caused any injuiy to Watkins. Further, Dr. Abrams explicitly stated he was unable to assess at what point Watkins’ injury would have been salvageable from a use standpoint.
More than a month later, Dr. Abrams signed an affidavit stating he had reviewed his deposition testimony, and his opinions concerning the defendants’ actions and inactions as Watkins’ treating physicians remained the same as those stated in his letter.
Watkins’ current attempt to use Dr. Abrams’ affidavit in conjunction with the letter to establish a genuine issue of a material fact must fail. Watkins attempts to explain away Dr. Abrams’ deposition testimony to the extent it differs from statements made in the letter, by claiming counsel for the defendants engaged in “word games” with Dr. Abrams during the deposition. A review of the portions of the deposition contained in the record reveals no such questionable conduct.
It is clear Dr. Abrams’ deposition testimony clarified the nature and extent of the opinions previously provided by letter. His subsequent affidavit contained no legal or factual justification for departure from the deposition testimony. The plaintiff s 11th hour attempt to use Abrams’ affidavit to refute or recant deposition testimony is legally insufficient to preclude the grant of summary judgment. See Gassman v. Evangelical Lutheran Good Samaritan Society, Inc., 261 Kan. 725, 731, 933 P.2d 743 (1997); Limestone Farms, Inc. v. Deere & Company, 29 Kan. App. 2d 609, 613, 29 P.3d 457 (2001). The district court correctly determined there was no genuine issue of material fact and did not err in its grant of summary judgment to the defendants.
The Screening Panel Issue
The record on appeal does not contain the depositions, statement, or contract ordered stricken by the district court. Without benefit of those materials, appellate review is unduly hampered. Inclusion of the documents in the appendix of an appellate brief is not sufficient. See Zeferjohn v. Shawnee County Sheriffs Dept., 26 Kan. App. 2d 379, 383, 988 P.2d 263 (1999).
The defendants argue the screening panel issue is moot, noting that decisions of a screening panel are nonbinding under Lawless v. Cedar Vale Regional Hosp., 252 Kan. 1064, 1071, 850 P.2d 795 (1993), and the district court’s grant of summary judgment was predicated upon failure of the plaintiff to present expert testimony on the issue of causation, an omission of proof not implicated by the decision to strike depositions. We find the defendants’ argument persuasive.
We will not consider Watkins’ claim of error based upon exclusion of his written statement and the employment contract. However, regarding the depositions of medical providers, including those of the named defendants in the malpractice litigation, we believe the issue raised is of public importance, capable of repetition. We choose to address this issue on its merits notwithstanding mootness and the failure to include the depositions in the record. See Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 1, 829 P.2d 561 (1992). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” 250 Kan. 621, Syl. ¶ 2. Conversely, if legislative intent is not explicit, “we can presume that when the legislature expressly includes specific items, it intends to exclude any items not expressly included in the specific list.'” In Re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). With these standards in mind, we turn to the substantive issue.
K.S.A. 65-4903 provides, in material part, that after a screening panel is convened, it shall consider “medical records and medical care facility records, contentions of the parties, examination of x-rays, test results and treatises.” Supreme Court Rule 142(d)(8) (2001 Kan. Ct. R. Annot. 195) states: “Oral testimony and the presence of the parties shall not be permitted.”
We conclude the district court properly struck the depositions from consideration of the screening panel First, a deposition is a form of oral testimony, explicitly excluded under Supreme Court Rule 142(d)(8). A deposition has been defined as “[t]he testimony of a witness taken upon oral question . . ., not in open court, . . . and reduced to writing . . ., and intended to be used in preparation and upon the trial of a civil action or criminal pros ecution.” Black’s Law Dictionary 440 (6th ed. 1990). Second, because the legislature listed specific items to be submitted in K.S.A. 65-4903 and did not include depositions, we presume the legislature intended to exclude depositions.
For all of the foregoing reasons, we conclude the district court did not err in striking Watkins’ submissions to the screening panel, nor did the court err in its grant of summary judgment for the defendants.
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Rogg, J.:
Anthony T. Cameron was convicted by a jury of felony fleeing or attempting to elude an officer. Cameron challenges the sufficiency of the evidence supporting his conviction and the use of his prior juvenile convictions to increase his criminal history. We affirm.
The only question raised by Cameron’s claim of insufficiency of evidence is the definition of “motor vehicle accident.” This is an element of the offense. We, therefore, focus on the evidence surrounding this narrow question of statutory interpretation.
Officer Robert Bachman was driving a marked patrol car, and he was in uniform with his badge displayed. Officer Bachman had been alerted to watch for a tan Buick which was being driven in his direction. Bachman had also been advised that there was an outstanding warrant for the driver of the car. When the Buick passed Bachman’s location, he pulled out into traffic and proceeded to follow it. Shortly thereafter, Bachman activated his emergency lights and siren in an attempt to stop the vehicle. The driver did not stop.
Bachman continued following the Buick with his emergency lights activated. According to Bachman, the main roads were “not too icy,” however, the side streets were “extremely icy.” Bachman testified that during the pursuit, the driver of the Buick ran several stop signs, crossed the center fine, ran a stop fight, and failed to signal on numerous turns. Bachman did not, however, relay all of these infractions to the dispatcher.
Eventually, the driver lost control of the Buick and hit a curb. Four occupants of the car immediately exited the vehicle and started running. The driver ran in one direction, and the three passengers ran in another. With the help of several officers, detectives, and United States marshals, the four occupants were apprehended. Bachman later identified Cameron as the person who exited from the driver’s side of the Buick. Due to the collision with the curb, the Buick sustained damage to the right front tire and the vehicle was leaking antifreeze. Bachman testified that the Buick was inoperable.
Cameron was charged with felony fleeing or attempting to elude an officer in violation of K.S.A. 8-1568(d)(l)(D). Following a jury trial, Cameron was convicted of that charge. The trial judge, for purposes of sentencing, found that Cameron’s criminal history score fell within the “A” classification. His criminal history score was the result of several prior juvenile convictions. Based on Cameron’s criminal history score, the trial judge sentenced him to a 16-month prison term.
Sufficiency of evidence
“In reviewing a challenge to the sufficiency of the evidence, our standard is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Robbins, 272 Kan. 158, 180, 32 P.3d 171 (2001).
Cameron argues that the prosecution failed to prove an element of felony fleeing or attempting to elude a police officer. See K.S.A. 8-1568(b)(l)(D). Of the jury instructions given by the trial court for the elements of the charge, Cameron only asserts that the prosecution failed to establish the element that he was “involved in [a] motor vehicle accident.”
Cameron’s argument that he was not involved in a motor vehicle accident hinges on the definition of “motor vehicle accident.” The term is not defined in the statute, and Kansas case law does not provide a precise definition. Longstanding rules of statutory construction provide:
“ ‘[C]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.’ State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).” State v. Sophophone, 270 Kan. 703, 712, 19 P.3d 70 (2001).
A fundamental rule of statutory construction is that the intent of the legislature governs. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). In addition, the words in a statute are given their ordinary and plain meaning. State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).
Cameron contends that Black’s Law Dictionary supplies the ordinary meaning of the term “motor vehicle accident.” Black’s Law Dictionary provides two definitions of the term “automobile accident.” The two definitions are basically the same in that they both define “automobile accident” as an incident occurring during the operation of an automobile which causes “injury to the person or property of another.” Black’s Law Dictionary 15 (6th ed. 1990).
Cameron’s insufficient evidence argument is based on the definition language “injury to the person or property of another.” At trial, the prosecution presented evidence that Cameron’s own motor vehicle had been damaged when it struck a curb. The prosecution did not, however, show any injury to the person or property of another. Cameron claims that an essential element of the crime of felony fleeing or attempting to elude an officer was not proved.
Not surprisingly, the prosecution takes a different view. The prosecution relies on the definition of “accident” as provided in the American Heritage Dictionary of the English Language. That dictionary defines “accident” as: “[a]n unexpected and undesirable event, especially one resulting in damage or harm.” American Heritage Dictionary of the English Language 5 (4th ed. 2000). Under that definition, the prosecution contends that the damage sustained by Cameron’s own vehicle established the element of a motor vehicle accident and, as a result, Cameron’s conviction is supported by sufficient evidence.
We have looked at case law from other states in tire hope that it might be helpful. It does not offer a conclusive interpretation of the term “motor vehicle accident.” In Manhattan and Bronx Surface Transit Operating Authority v. Gholson, 98 Misc. 2d 657, 658-59, 414 N.Y.S.2d 489 (1979), the Supreme Court of Kings County, New York, determined that an assault which occurred inside a motor vehicle was not a motor vehicle accident. In doing so, the court examined the term “motor vehicle accident” and found that “[t]he term motor vehicle accident is not an enigmatic one. The words evoke an image of one or more vehicles in a forceful contact with another vehicle or a person, causing physical injury.” 98 Misc. 2d 658-59. The New York court’s definition contemplates an injury to the person or property of another and, as such, it supports Cameron’s definition from Black’s Law Dictionary.
In contrast, the Supreme Court of Washington indicated, in dicta, that the definition of “motor vehicle accident” may not include the requirement of injury to the person or property of another. Tyrrell v. Farmers Ins. Co., 140 Wash. 2d 129, 132-36, 994 P.2d 833 (2000).
We thus turn to Kansas statutes themselves to see if we can determine the legislative intent. “In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible.” Vega-Fuentes, 264 Kan. at 14.
K.S.A. 8-1568(b)(1)(D) states that fleeing or attempting to elude a police officer will be a felony offense if the driver was “involved in any motor vehicle accident or intentionally causes damage to property.” The legislature’s use of the word “any” appears to suggest that the statute is broad in scope. A reading of subsection (b)(1)(D) indicates that all types of motor vehicle accidents are within the scope of that subsection. K.S.A. 8-1568 falls under the chapter regulating automobiles and other vehicles. Within that same chapter, the language “motor vehicle accident or collision” appears. See K.S.A. 8-2,145(c)(2); K.S.A. 8-1567a(e)(2). The language “motor vehicle accident or collision” is not defined in the statute. Black’s Law Dictionary defines “collision” as the
“[sjtriking together of two objects, one of which may be stationary. Act or instance of colliding; state of having collided. The term implies an impact or sudden contact of a moving body with an obstruction in its line of motion, whether both bodies are in motion or one stationary and the other, no matter which, in motion.” Black’s Law Dictionary 264 (6th ed. 1990).
Based on the legislature’s differentiation between the terms “motor vehicle accident” and “collision,” an argument could be made that Cameron’s automobile was not in a motor vehicle accident but rather a collision.
It is common to refer to an event where only one vehicle is involved and damage occurs to that vehicle as a “one vehicle accident” or “one car accident.” The ordinary and plain meaning of “motor vehicle accident” as used in K.S.A. 8-1568(b)(1)(D) includes an event where only one motor vehicle is involved and damage to it occurs. See State v. Donlay, 253 Kan. at 134. We find that there was sufficient evidence to support Cameron’s conviction.
Criminal history
On appeal, Cameron challenges for the first time the use of his prior juvenile convictions to increase his criminal history score. Cameron argues that- the use of his prior juvenile convictions to increase his score — and, in turn, his sentence — was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Cameron acknowledges that he failed to raise this issue at the trial court level. “Generally, ‘[w]hen constitutional grounds are asserted for the first time on appeal, they are not properly before [this court] for review.’ ” State v. Conley, 270 Kan. 18, 30, 11 P.3d 1147 (2000) (quoting State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 [1996]).
However, in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), the Kansas Supreme Court recognized three exceptions to this general rule. Under Pierce, a newly presented issue may be considered on appeal if (1) the issue “involves only a question of law arising on proved or admitted facts and is determinative of the case,” (2) “consideration of the claim is necessary to serve the ends' of justice or to prevent the denial of fundamental rights,” or (3) “the district court is right for the wrong reason.” Conley, 270 Kan. at 30.
Cameron contends that the issue of his prior juvenile convictions should be dealt with on appeal because it is “necessary to serve the interests of justice or to prevent the denial of fundamental rights.” On more than one occasion, Kansas courts have relied on the Pierce exceptions to consider Apprendi arguments raised for the first time on appeal. See, e.g., State v. Graham, 273 Kan. 844, 854-54, 46 P.3d 1177 (2002); State v. Gould, 271 Kan. 394, 404-08, 23 P.3d 801 (2001); Conley, 270 Kan. at 31.
The prosecution asserts that the issue is controlled by the Kansas Supreme Court’s decision in State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002). One day after Cameron filed his brief, the Kansas Su preme Court announced its decision in Hitt. In that case, the court held:
“Juvenile adjudications are included within the historical cloak of recidivism and enjoy ample procedural safeguards; therefore, the Apprendi exception for prior convictions encompasses juvenile adjudications. Juvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the KSGA.” Hitt, 273 Kan. at 236.
Cameron’s issue is controlled by Hitt and, as a result, Cameron’s prior juvenile adjudications fall under the Apprendi prior conviction exception. As such, the trial court did not err in using the prior juvenile adjudications to increase Cameron’s sentence.
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Beier, J.;
Louis C. Johnson, individually and as administrator c.t.a. of the estate of Neva Johnson, appeals the district court’s dismissal of his claims against lawyer Edward F. Wiegers and Galloway, Wiegers & Heeney, LLP, for negligence and breach of fiduciary duty.
Louis Johnson is the surviving spouse of Neva Johnson. Before her death, Neva owned an Individual Retirement Account (IRA) valued at $250,621.92. In the event of Neva’s death, Louis had been designated the sole beneficiary of the IRA.
Neva had three adult children from a previous marriage, including Ruth Naaf. Ruth had been represented by Wiegers and his firm on past occasions, but the firm had never represented Neva. A week before Neva’s death from cancer, Ruth arranged for Wiegers to meet with Neva; as a result, Neva signed an IRA beneficiary designation form that limited Louis’ interest to his lifetime, with the remainder to be divided among Neva’s children. Subsequently, Ruth obtained yet another designation form from Neva that eliminated Louis entirely and made Ruth the sole beneficiary.
After Neva died, Louis filed Case No. 95-C-33, challenging Neva’s competence to sign the beneficiary designation forms and arguing Ruth and Wiegers had exercised undue influence to obtain Neva’s signatures. The estate was not a party to this litigation.
Ruth and Wiegers testified that Wiegers provided independent advice to Neva. The jury found that Neva was not competent to sign either of the forms and that Ruth had exercised undue influence. The jury also found that Neva did not receive independent advice from Wiegers. Louis thus regained his original status as sole beneficiary of the IRA.
Louis, both individually and as administrator, then filed this action against Wiegers and Wiegers’ law firm. Louis asserted that defendants were liable for damages based on negligence, that the law firm was vicariously liable for the negligence of Wiegers, and that Wiegers had breached his fiduciary duty.
In granting defendants’ motion to dismiss, the district court applied Young v. Hecht, 3 Kan. App. 2d 510, 597 P.2d 682, rev. denied 226 Kan. 793 (1979), and Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), and concluded Louis had failed to demonstrate he was the intended beneficiary of the transactions. He therefore could not establish that any duty was owed to him personally, and both his claims based on negligence and breach of fiduciary duty failed as a matter of law. In addition, the district court ruled, the same claims brought by Louis in his capacity as administrator failed because the estate suffered no damages.
The district court ultimately wrote:
“Plaintiff in his individual capacity was not, during the time of the changing of the beneficiary designations, or during the time of tire subsequent litigation, a client of the Defendants, but was, in fact, an adverse party. The Court further finds that the Plaintiff in his individual capacity was clearly not the intended beneficiary in the attempted change of beneficiary transactions.
“Regarding the Estate’s claims against Defendants, the Court in examining the facts alleged in the Petition notes that the Petition fails to indicate that the Estate of Neva Johnson was a party in Marshall County District Court Case No. 95 C 33. The Court can take judicial notice of its own files and confirms that the Estate of Neva Johnson was not a party in the litigation brought by Louis Johnson seeking a determination that the beneficiary forms were invalid. The Petition also notes that Neva Johnson owned an Individual Retirement Account in which Louis Johnson, and then potentially Ruth Naaf, Alice Behrens, and Boyd D. Clawson were beneficiaries. Nowhere in the Petition does it suggest that Neva Johnson’s estate was a beneficiary of the IRA. Therefore, the IRA would be administered outside the Estate of Neva Johnson.
“As such, it is fair inference to conclude regarding the negligence claim that the Estate of Neva Johnson paid no attorney fees or suffered any other costs as a result of Marshall County Case No. 95 C 33. Under the authority of Heyer v. Flaig, cited by the Kansas Supreme Court in Pizel v. Zuspann, the Estate of Neva Johnson has no standing to bring this action since it suffered no loss.
“Regarding the Estate’s claim against Defendants alleging breach of fiduciary duty, the Court notes that breach of fiduciary claims, as distinguished from breach of professional duty claims, are more appropriate when a professional is sued in another role, for example, as a trustee. See Morrison v. Watkins, 20 Kan. App. 2d 411, 421-22 (1995) (accountant sued as trustee). The Petition here only indicates that Defendant Wiegers, in his capacity as an attorney, was involved in this matter. Additionally, and as noted above, the IRA was not part of the Estate and the Estate has suffered no loss here. Thus, there is no claim for breach of fiduciary duty on behalf of the Estate.”
Upon appellate review of a district court’s order granting a motion to dismiss for failure to state a claim, this court must assume that the facts alleged by the plaintiff are true, along with any reasonable inferences to be drawn therefrom. McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, 634, 35 P.3d 815 (2001). We also are required to rely only on the pleadings and attached exhibits for the facts to be considered. Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 5, 20 P.3d 39 (2001).
Attorney’s Duty to Individual Third Party
Louis argues the district court erred by concluding that defendants did not owe him a duty in his individual capacity under a six-part balancing test set forth in Pizel. Defendants argue the court should not reach the balancing test because Louis was not an in tended beneficiary of the transactions. In the alternative, they argue, even if the test is applied, they did not owe Louis a duty.
To fully understand the appropriate circumstances for application of Pizel, we must first place it in precedential context.
We begin with a review of Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980). In Nelson, the Kansas Supreme Court noted the traditional rule that an attorney could be held liable for professional negligence only to his or her client. That rule, the court observed, could be relaxed when an attorney had rendered services foresee-ably injurious to some third-party beneficiary of the attorney-client contract. The rule could not be relaxed, however, to permit liability to a client’s adversary. See 227 Kan. at 287 (citing Tappen v. Ager, 599 F.2d 376 [10th Cir. 1979]). It is eminently sensible that a lawyer’s duty to his or her client leaves no room for an additional— and almost certainly conflicting — duty to the client’s adversary.
Enter Pizel, 247 Kan. 54. In that case, an attorney was sued by the potential beneficiaries of a failed inter vivos trust for legal malpractice in work done for the trust settlor. The jury found the attorney was at fault, but it also found that he did not breach his contract with the settlor and the plaintiffs were not third-party beneficiaries of the attorney-client contract.
On appeal, the Kansas Supreme Court considered whether a nonclient could recover on a claim of legal malpractice. The court first noted that “[allowing a nonclient to recover from an attorney for legal malpractice as a third-party beneficiary is based upon traditional contract principles.” 247 Kan. at 64. Noting that the jury specifically found the plaintiffs were not third-party beneficiaries, the court then determined it also had to consider whether to allow nonclients to recover under a legal duty owed directly to them. To do so, it adopted a six-part balancing test first set forth in California cases, a test “closely related to the analysis and policy reasons used to justify permitting a third-party beneficiary to recover in a contract action.” 247 Kan. at 64.
Relying upon Biakanja v. Irving, 49 Cal. 2d 647, 320 P.2d 16 (1958); Lucas v. Hamm, 56 Cal. 2d 583, 15 Cal. Rptr. 821, 364 P.2d 685 (1961); and Heyer v. Flaig, 70 Cal. 2d 223, 74 Cal. Rptr. 225, 449 P.2d 161 (1969), the court set forth the following factors to be balanced when attorney liability to a nonclient is considered: (1) the extent to which the transaction was intended to affect the plaintiffs; (2) the foreseeability of harm to the plaintiffs; (3) the degree of certainty that the plaintiffs suffered injuiy; (4) the closeness of the connection between the attorney s conduct and the injuiy; (5) the policy of preventing future harm; and (6) the burden on the profession of the recognition of liability under the circumstances. 247 Kan. at 65-68.
This court followed Pizel in the next noteworthy case in this area: Wilson-Cunningham v. Meyer, 16 Kan. App. 2d 197, 820 P.2d 725 (1991), rev. denied 250 Kan. 808 (1992). In Wilson-Cunningham, the husband in a divorcing couple died intestate before the attorneys filed the divorce decree. As a result, the wife received her spousal share of the husband’s estate. The husband’s children from another marriage sued the attorneys, arguing their failure to file the decree in a timely fashion resulted in a reduction in the children’s portion of the estate.
After the district court granted summary judgment in favor of the attorneys, we applied Pizel to determine whether the attorneys owed the children a legal duty. In discussing the first factor— whether the divorce was intended to “affect” the plaintiff children —we used the word “affect” to mean “benefit.” 16 Kan. App. 2d at 202-03. To us, it was difficult to understand how a divorce could be intended to benefit the heirs of one of the divorcing parties. In support of this point, we cited Haldane v. Freedman, 204 Cal. App. 2d 475, 22 Cal. Rptr. 445 (1962), in which the children of a divorced couple attempted to sue the divorce attorneys for negligence in wasting their mother’s estate and their potential inheritance. The Haldane court applied a test similar to that laid out in Pizel, concluding that the impact of the divorce on the children was not actionable. 204 Cal. App. 2d at 477-79.
In Wilson-Cunningham, we observed that nothing in the record supported the view that the husband intended to use his divorce as an estate planning device or that he articulated an intent that the divorce would have any effect on his children. In reviewing the other Pizel factors, we found that the harm to the children was not foreseeable, that it was not certain the children suffered injury, that allowing the children to proceed with their action would not prevent future harm, and that the burden on the legal profession would be unreasonable because an attorney with duties to both a divorcing parent and his or her children could face a crippling conflict of interest. 16 Kan. App. 2d at 203-05.
We concluded:
“In summary, the defendants should not be found to owe a legal duty to the plaintiffs for actions taken or not taken in their father’s divorce. Although a weighing of each factor in the Pizel multi-criteria test supports our conclusion, we believe the factor that the divorce was not intended to affect the plaintiffs is the most persuasive. While our reading of Pizel is that all six factors must be considered and none can be deemed conclusive, we believe it would be appropriate to deny liability solely on the basis that the legal representation in the divorce action was not intended to benefit Charles’ children. Cases where attorneys have been found liable to nonclients under the multi-criteria test do seem to place greater emphasis on this factor.” (Emphasis added.) 16 Kan. App. 2d at 205.
Our Supreme Court next addressed the issue of an attorneys liability to a third-party nonclient in Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 827 P.2d 758 (1992). In that case, a creditor bank and its debtor steel company brought a malpractice claim against the company’s law firm. The district court ruled under Nelson that the debtor/creditor relationship between the bank and the company was adversarial and precluded recoveiy by the bank, but it also relied upon the Pizel balancing test.
On appeal, the bank argued in part that the court erred in relying on Nelson because there was no evidence of an adversarial relationship; the rule precluding liability to a client’s adversaries should only apply to litigation adversaries, not to a party merely on the opposite side of a business deal. For its part, the law firm argued that the Pizel balance need not be performed because the adversarial nature of the creditor/debtor relationship ended the analysis. In its view, the nonclient should be required to make a threshold showing that one feature of the contract between the client and its lawyer was an intention to benefit the nonclient. If that threshold was unmet, the attorneys argued, the inquiry should end and no attorney liability to the nonclient should be allowed.
For reasons that are not abundantly clear, the court elected to rely on neither Nelson nor Pizel, although it recognized under Nelson that the relationship between a borrower and a lender usually is sufficiently adversarial so that a lawyer for one owes no duty to the other. Regarding Pizel, the court said only that “the geometry of the facts in the case at bar presents a different triangle,” 250 Kan. at 505, and found the existence of a duty in this particular case would rise or fall on whether the law firm intended the bank to rely upon the legal services performed.
In our later decision in Jack v. City of Wichita, 23 Kan. App. 2d 606, 933 P.2d 787 (1997), we renewed our focus on the original intention of the defendant and client regarding third parties.
In that case, the plaintiffs were homeowners who brought suit against the company who platted their land for failing to recognize the homes would lie in a flood hazard zone. The district court granted the defendant’s motion for judgment on the pleadings on die ground that the company owed no duty to the plaintiffs. On appeal, we affirmed, distinguishing Pizel because the plaintiffs could not demonstrate they were intended to be beneficiaries of the defendant’s work. 23 Kan. App. 2d at 609.
This review of the precedents demonstrates that Pizel is far from the only game in town for determining the existence of an attorney’s duty to a third-party nonclient affected by the attorney’s work. We harmonize the holdings of the various cases from the Supreme Court and our court to the best of our ability and hold that a three-step analysis is required: First, if the client of the attorney and the third party are adversaries, no duty arises under Nelson. Second, if the attorney and client never intended for the attorney’s work to benefit the third party, then no duty arises under Bank IV Wichita and Jack. Third, if it is possible to conclude that the attorney and client intended for the attorney’s work to benefit the third party, then the reviewing court must strike the Pizel balance to determine whether a duty arose in the particular circumstances at hand. See Pizel, 247 Kan. at 67-68; Wilson-Cunningham, 16 Kan. App. 2d at 201-202. In doing so, the court should read the word “affect” in the first element of the Pizel balance to mean “benefit.”
In this case, we do not need to proceed beyond the first step to determine that the dismissal of plaintiff s suit was appropriate.
The relationship between Louis on the one hand and Ruth on the other was adversarial. Although the jury found that Wiegers did not provide any independent legal advice to Neva, he certainly was acting as an attorney for Ruth; it was Ruth’s clear purpose to affect Louis negatively, not positively. She obtained the assistance of Wiegers and his firm in that endeavor and succeeded in persuading her mother to change the IRA beneficiary designation not once but twice to Louis’ detriment. As Nelson instructed us long ago, Wiegers’ and his firm’s duty to advise and assist Ruth in her quest for status as the sole beneficiary of the IRA left no room for a duty to preserve Louis’ interest in the account.
Claims Brought on Behalf of the Estate
Louis next argues the district court erroneously dismissed his claims brought in his capacity as administrator for Neva’s estate. The estate suffered damages, he argues, because it incurred additional expenses by being held open during the pendency of Case No. 95-C-33 and because punitive damages might have been possible. Louis also contends defendants owed a duty to the estate because they owed a duty to Neva as their purported client.
The arguments regarding damages have no merit. Thus we need not reach the argument regarding defendants’ duty to the estate.
The district court was correct in concluding that there could be no damages to the estate. After die deatii of the account holder, die contents of an IRA pass to the designated beneficiaries outside of the decedent’s estate. There was no need to hold the estate open pending the outcome of Case No. 95-C-33, and no punitive damages could possibly have flowed through it. See Kansas Estate Administration Handbook §1.11 (6th ed. 1999 Supp.).
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Green, J.:
This appeal arises out of the audit conducted by the Kansas Department of Revenue (the Department) on Lee Apparel Company, Inc. (Lee), Troutman Industries, Inc. (Troutman), and Blue Bell, Inc. (Blue Bell), collectively referred to as the taxpayers, for calendar years 1988 through 1990. As a result of its audit, the Department determined that the taxpayers, together with their parent company VF Corporation (VF), and VF’s numerous other subsidiaries, were engaged in a unitary business and should have determined their Kansas income tax liabilities using the combined report method. The Department recomputed the tax due and issued three corporate income tax assessments consisting of tax, penalty, and interest in the total amount of $2,907,448.
The taxpayers appealed to the Director of Taxation, contending that VF and its subsidiaries were not unitary. In addition, the taxpayers assert that the assessments for years 1988 and 1989 were barred by the statute of limitations. With the exception of the statutory penalties, which were abated, the Department’s assessments were upheld. The Director later denied the taxpayers’ petition for review.
When the taxpayers appealed the Director’s decision to the Board of Tax Appeals (BOTA), BOTA reversed the Director on both the unitary issue and the statute of limitations issue, which effectively invalidated the Department’s assessments.
On appeal, the Department contends that BOTA failed to clearly state and apply tire applicable legal presumptions. This issue was previously considered in In re Tax Appeal of Broce Construction Co., 27 Kan. App. 2d 967, 9 P.3d 1281, rev. denied 270 Kan. 898 (2000), and we will not reexamine the issue here. Instead, we adopt Broce s holding and note that BOTA failed to clearly state that it would presume the Department’s determination of unity was correct and that the taxpayers had the burden of proving otherwise. 27 Kan. App. 2d 980-81.
The Department additionally contends that BOTA’s order failed to comply with the Kansas Administrative Procedures Act (KAPA), K.S.A. 77-501 et seq. We agree that BOTA’s order failed to comply with K.S.A. 77-526(c) because the order failed to include separately stated findings of fact, conclusions of law, and policy reasons for its decision.
The Department raises two additional issues that merit considerable analysis. First, the Department argues that its assessments for the years 1988 and 1989 were not barred by the statute of limitations. We agree. Additionally, the Department maintains that the taxpayers, together with VF and VF’s other subsidiaries, were engaged in a unitary business for the years 1988 and 1989. We affirm in part and reverse in part.
VF is a Pennsylvania corporation with its home office in Wyomissing, Pennsylvania. VF is the world’s largest publicly owned apparel company, and its principal business is the designing, manufacturing, and marketing of apparel products.
Originally incorporated in 1899 as the Reading Glove & Mitten Manufacturing Company and later known as Vanity Fair Silk Mills, VF operated for many years as a manufacturer of lingerie and intimate apparel. In 1969, it changed its name to VF Corporation and expanded its operations by acquiring companies such as The H.D. Lee Co., Inc. (jeans, 1969); Kay Windsor (lingerie, 1971); Modem Globe (lingerie, 1984); and Bassett-Walker (fleecewear, 1984). In 1986, VF acquired Blue Bell (manufacturer of Wrangler and Rustler jeans, Jantzen and JanSport sportswear, and Red Kap and Big Ben occupational clothing).
VF is a holding company that owns, either directly or indirectly, all of the stock in Lee, Troutman, Blue Bell and numerous other subsidiaries. Many of these subsidiaries are engaged in apparel manufacturing, marketing, and retailing, although others perform functions that complement or support the apparel operations. In each year of the audit period, VF had 22 active subsidiaries, although not all of the same 22 subsidiaries were active in each of those 3 years.
The taxpayers were all in the business of manufacturing various types of apparel. Lee manufactured jeans and jeanswear products. Troutman manufactured Pepsi-branded apparel. Blue Bell had several divisions that manufactured jeans and occupational clothing. '
During the audit period, each of the taxpayers had business operations in Kansas. Lee is a Pennsylvania corporation with its home office in Merriam, Kansas. Troutman is a North Carolina corporation and maintained its home office in Lenexa, Kansas, before 1989 when it was merged into Lee. Blue Bell is a Delaware corporation with its home office in Greensboro, North Carolina.
Statute of Limitations
The Department argues that the tax assessments for tax years 1988 and 1989 were not barred by the statute of limitations. A statute of limitations does not run against the State unless expressly so provided, and all doubts as to whether it shall run are to be resolved in favor of the State. KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, Syl. ¶ 4, 941 P.2d 1321 (1997).
As to questions of law, BOTA exists to decide tax matters; therefore, its decisions should be given due consideration when it is acting within its area of expertise. Nevertheless, “’the determination of an administrative body on questions of law is not conclusive, and while persuasive, is not binding on the courts.’ [Citation omitted.]” Board of Johnson County Comm’rs v. Smith, 18 Kan. App. 2d 662, 664-65, 857 P.2d 1386 (1993). The appellate courts have unlimited review of questions of law. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
As the appellant, the Department has the burden of proving that BOTA’s actions were in error. K.S.A. 77-621(a)(l). The Department claims that it is entitled to relief because in finding that the 1988 and 1989 assessments were made outside the statute of limitations (1) BOTA erroneously interpreted and applied the law; and (2) BOTA’s decision is unreasonable, arbitrary, or capricious.
Under K.S.A. 79-3230(a) (Ensley 1989), the statute in effect for the 1989 tax year, the Department was required to assess income taxes within 3 years after the taxpayers’ returns were filed or when the taxes as shown thereon were paid, whichever was the later date. For the tax year 1988, the period of limitations was 4 years. K.S.A. 79-3230(a) (Ensley 1984). The Department concedes that its assessments dated October 20, 1993, were issued more than 3 years after the taxpayers’ 1989 returns were filed and more than 4 years after the 1988 returns were filed.
However, the Department relies on K.S.A. 79-3230(e) (Ensley 1989) in arguing that its assessments are not barred by the statute of limitations. The statute provides:
“(e) Before the expiration of time prescribed in this section for the assessment of additional tax or the filing of a claim for a refund, the director of taxation is authorized to enter into an agreement in writing with the taxpayer consenting to the extension of the periods of limitations as defined in this act for the assessment of tax or for the filing of a claim for refund, at any time prior to the expiration of the period of limitations. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. An agreement between the taxpayer and the internal revenue service providing for the extension of the period for assessment of federal income taxes shall constitute an agreement with the director of taxation to extend the period for assessment of income taxes under the provisions of the Kansas income tax act. A copy of all such agreements and extensions thereof shall be filed with the director of taxation within 30 days after their execution.” (Emphasis added.)
The above-quoted statutory language was also in effect for the 1988 tax year. K.S.A. 79-3230(e) (Ensley 1984).
Although K.S.A. 79-3230(e) was amended in 1997 to eliminate any reference to extension agreements between a taxpayer and the IRS, the amendment was not retroactive. The taxpayers, however, argue that the amendment did not change the existing law but rather clarified the Department’s longstanding policy that it could not reopen an audit period when the IRS issued an extension for the assessment of federal income taxes. The taxpayers’ argument, however, is contrary to our rule of statutory construction that “[w]hen the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citation omitted.]” Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 471, 970 P.2d 60 (1998), cert. denied 528 U.S. 812 (1999). As a result, we find that the issue of whether the Department’s assessments were timely is controlled by K.S.A. 79-3230(e) (Ensley 1989) because that version of the statute was in effect during the tax years in question. However, K.S.A. 79-3230(e) (Ensley 1989) has not been interpreted by a Kansas appellate court and, as a result, whether the Department’s assessments were timely under that statute is an issue of first impression.
The Department claims that its assessments for tax years 1988 and 1989 were timely because the taxpayers entered into agreements with the IRS to extend the period for assessment of federal income taxes with respect to tax years 1988 and 1989. The IRS was authorized to assess taxes for those years at any time on or before December 31, 1994. As such, the Department argues that its assessments issued on October 20, 1993, were timely because the assessments were made before the December 31, Í994, federal deadline.
Rejecting the Department’s position and determining that the assessments were made outside the statute of hmitations based on the pohcies and practices of the Department, B OTA’s order stated:
“[T]he Department had a long-standing policy not to extend the statute of limitation based solely on a federal extension.
“The Board finds that the 1989 amendment would apply to the tax assessments issued here. The law and the practice at the time tíre taxes were paid was that there was only a three year window of opportunity for the Department to audit and issue an assessment, and that the agreement with the I.R.S. would not be extended to the Department. It is true that the 79-3230(e) was later amended to delete the provision concerning the I.R.S. amendment. However, the testimony of the witnesses indicates that the amendment was to clarify the statute and to codify the existing practice. Furthermore, the testimony indicates that tire provision in 79-3230(e) prior to tire amendment was thought by the Department to be of dubious legality. Therefore, the assessments for the 1988 and 1989 should be abated.”
As noted previously, the taxpayers rely heavily on the Department’s long-standing policy to not reopen an audit period when the IRS issued an extension for assessment of federal income taxes. The taxpayers malee an alternative argument that even if the Department could reopen an audit period when the IRS issued an extension, the federal waiver did not extend the state hmitations period except to address changes resulting from the federal review. The taxpayers point out that the Department’s assessments were not prompted by a federal adjustment. Instead, the Department assessed the additional tax based upon a determination that the taxpayers were unitaiy, which is not a federal issue.
To support its position that a federal extension should not affect the state limitations period except to address changes resulting from federal review, the taxpayers cite Kelly-Springfield Tire v. Bd. of Tax Rev., 414 N.W.2d 113 (Iowa 1987), aff'd sub nom., Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19 (1988). The Kelly-Springfield court addressed whether the Iowa Department of Revenue’s right to assess additional tax liability during an extended 6-month period following a federal audit was unlimited in scope or limited to corrections resulting from action taken in a federal review. The statute in question provided in pertinent part:
“Notwithstanding the periods of limitation for examination and determination heretofore specified, the department shall have six months to make an examination and determination from the date of receipt by the department of notice from the taxpayer of the final disposition of any matter between the taxpayer and the internal revenue service with respect to the particular tax year.” Iowa Code § 422.25(1) (1977).
The Kelly-Springfield court found that under the statute, the Iowa Department of Revenue was restricted from assessing additional tax liability unless the federal audit altered circumstances affecting the taxpayer’s Iowa tax liability. 414 N.W.2d at 115-16.
The taxpayers’ reliance on Kelly-Springfield, however, is misplaced because the statute addressed in that case is substantially different from K.S.A. 79-3230(e) (Ensley 1989). Instead, the statute addressed in Kelly-Springfield is analogous to K.S.A. 79-3230(f) (Ensley 1989), which provides:
“Any taxpayer whose income has been adjusted by the federal internal revenue service is required to report such adjustments to the Kansas department of revenue by mail within 180 days of the date the federal adjustments are paid, agreed to or become final, whichever is earlier. Such adjustments shall be reported by filing an amended return for the applicable taxable year and a copy of the revenue agent’s report detailing such adjustments. . . .
“Notwithstanding tire provisions of subsection (a) or (c) of this section, additional income taxes may be assessed and proceedings in court for collection of such taxes may be commenced and any refund or credit may be allowed by the director of taxation within 180 days following receipt of any such report of adjustments by the Kansas department of revenue. No assessment shall be made nor any refund or credit shall be allowable under the provisions of this paragraph except to the extent the same is attributable to changes in the taxpayer’s income due to adjustments indicated by such report.”
Clearly, K.S.A. 79-3230(f), not K.S.A. 79-3230(e), authorizes the Department to assess state taxes based on federal income adjustment. The plain language of K.S.A. 79-3230(f) provides that assessments may be issued thereunder only to the extent they are attributable to federal income adjustments. In contrast, K.S.A. 79-3230(e) imposes no restrictions on the scope of the Department’s ability to assess taxes, provided such assessments are issued within the extended time period agreed upon between the taxpayer and the IRS.
The Department points out that K.S.A. 79-3230(e) is similar to the statute addressed in Dept. of Rev. v. Gen. Motors Acceptance, 188 Ariz. 441, 937 P.2d 363 (Ct. App. 1996). The statute addressed in that case provided:
“If a taxpayer agrees with the United States commissioner of internal revenue for an extension or renewals of the period for proposing and assessing deficiencies in federal income taxes for any year, the period for mailing a notice of a proposed income tax deficiency is four years after the return was filed or six months after the date of the expiration of the agreed period for assessing deficiencies in the federal income tax, whichever period expires later.” Arizona Rev. Stat. Ann. § 42-113(B)(7) (1991).
The GMAC court held that this statute permits the Arizona Department of Revenue to assess state tax deficiencies during the extended limitation period that are unrelated to adjustments made by the IRS in the taxpayer’s federal income tax liability. In so holding, the GMAC court rationalized:
“In contrast to the statute at issue in Kelly-Springfield, A.R.S. section 42-113(B)(7) does not provide for a discrete six-month assessment period that begins upon [the Arizona Department of Revenue’s] receipt of notice that a federal audit has altered the taxpayer’s federal tax liability. Instead, section 42-113(B)(7) provides that when a taxpayer enters into an extension agreement with the IRS, a concurrent extension of the state assessment limitation commences, and that extension lasts during the entire agreed federal extension and ends six months thereafter. The extension arises under [the statute] regardless of whether the federal audit yields any tax adjustment.” 188 Ariz. at 445.
The GMAC court further noted that where a taxpayer enters into an extension agreement with the IRS “it is reasonable to accord [the Arizona Department of Revenue] a similar extension for that tax year regardless of whether the two agencies pursue the same lines of inquiry.” 188 Ariz. at 445.
The rationale applied in GMAC is persuasive. Similar to the statute addressed in that case, K.S.A. 79-3230(e) (Ensley 1989) does not reference federal income adjustments and does not in any way limit the scope of the Department’s ability to assess taxes, other than to require that the assessments be made within the period agreed upon by the taxpayers and IRS. Rules of statutory interpretation prohibit this court from reading the statute “to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.” Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001). Moreover,
“[t]ax statutes will not be extended by implication beyond the clear import of the language employed therein; their operation will not be enlarged so as to include matters not specifically embraced. [Citation omitted.] Where there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorably to the taxpayer. [Citation omitted.]” Board of Leavenworth County Comm’rs v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 905, 933 P.2d 698, mod. on reh. on other grounds, 261 Kan. 1082, 941 P.2d 1388 (1997).
Reasonable doubt does not exist as to the meaning of K.S.A. 79-3230(e) (Ensley 1989). The plain language of the statute provides that when a taxpayer enters into an extension agreement with the IRS, a concurrent extension for the assessment of state tax liability commences. Moreover, the statute clearly provides that the state extension lasts for the entire agreed upon federal extension. Furthermore, the plain language of K.S.A. 79-3230(e) (Ensley 1989) does not limit the state assessments to federal income adjustments. Instead, the assessments allowed under the statute are unlimited in scope.
The taxpayers suggest that the Department should be estopped from relying on K.S.A. 79-3230(e) (Ensley 1989). This argument is without merit because the doctrine of equitable estoppel does not operate against the State or against the State’s governmental agencies in respect to taxation. See Harvey County Comm’rs v. School District, 139 Kan. 457, 459, 32 P.2d 812 (1934).
Because the taxpayers entered into an agreement with the IRS to extend the period for assessment of federal income taxes with respect to tax years 1988 and 1989, the Department’s assessments for those tax years issued during the federal extension were timely under K.S.A. 79-3230(e) (Ensley 1989). As a result, we reverse BOTA’s determination that the Department’s assessments of tax liability for tax years 1988 and 1989 were time barred.
Unitary Business
The Department additionally argues that BOTA erred in determining that die taxpayers and the VF Group were not engaged in a unitary business during the audit period. “BOTA orders are subject to judicial review pursuant to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.” In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d 377, 380, 838 P.2d 354 (1992), rev. denied 252 Kan. 1092 (1993). K.S.A. 77-621 provides:
“(c) The court shall grant relief only if it determines any one or more of the following:
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed, in light of the record as a whole, which includes tifie agency record for judicial review, supplemented by any additional evidence received by tire court under this act.” (Emphasis added.)
“Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, Syl. ¶ 2, 891 P.2d 422 (1995).
As noted previously, the Department, as the appellant, has the burden of proving that BOTA’s actions were in error. K.S.A. 77-621(a)(1). The Department claims it is entided to relief because in finding that the taxpayers did not engage in a unitary business (1) BOTA erroneously interpreted and applied the law; (2) BOTA’s action was not based on substantial evidence; and (3) BOTA’s action was unreasonable, arbitrary, or capricious.
In defining a unitary business and adopting the test to be applied in determining a unitary business, our Supreme Court in Crawford Manufacturing Co. v. State Comm. of Revenue and Taxation, 180 Kan. 352, Syl. ¶¶ 1, 2, 304 P.2d 504 (1956) stated:
“A multistate business is a unitaiy business for income tax purposes when the operations conducted in one state benefit and are benefitted by the operations conducted in another state or states. If its various parts are interdependent and of mutual benefit so as to form one integral business rather than several business entities, it is unitaiy.”
“Whether a multistate business is separate or unitaiy depends upon the manner in which its business is conducted. The essential test to be applied is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such a relationship, the business is unitary.”
See In re Tax Appeal of Panhandle Eastern Pipe Line Co., 272 Kan. 1211, Syl. ¶ 12, 39 P.3d 21 (2002); In re Tax Appeal of A.M. Castle & Co., 245 Kan. 739, Syl. ¶¶ 2, 3, 783 P.2d 1296 (1989); Pioneer Container Corp. v. Beshears, 235 Kan. 745, Syl. ¶¶ 3, 4, 684 P.2d 396 (1984); In re Tax Appeal of Broce Construction Co., 27 Kan. App. 2d 967, 971, 9 P.3d 1281, rev. denied 270 Kan. 898 (2000). The test is referred to as the dependency or contribution test. Castle, 245 Kan. at 743.
“In determining whether two or more business entities actually constitute a unitaiy business for state income taxation purposes, the application of the . . . [test] is much more difficult than the definition of the test itself.” 245 Kan. at 744. The Department has promulgated K.A.R. 92-12-72 to assist in determining whether the activities of a corporation or group of corporations constitute a single trade or business. In K.A.R. 92-12-72, it is recognized that “[t]he determination of whether the activities of the taxpayer constitute a single trade or business or more than one (1) trade or business will turn on the facts in each case.” Although each case must be determined on its own facts, there is “a strong presumption that the activities of the taxpayer constitute a single trade or business” when:
“(a) . . . all of its activities are in the same general line.
“(b) A taxpayer is almost always engaged in a single trade or business when its various divisions or segments are engaged in different steps in a large, vertically structured enterprise.
“(c) A taxpayer who might otherwise be considered as engaging in more than one (1) trade or business is properly considered as engaged in one (1) trade or business when there is strong centralized management, coupled with the existence of centralized departments for such functions as financing, advertising, research, or purchasing. Thus, some conglomerates may properly be considered as engaged in only one (1) trade or business when the central executive officers are normally involved in the operations of the various divisions and there are centralized offices which perform for the divisions the normal matters which a truly independent business would perform for itself, such as accounting, personnel, insurance, legal, purchasing, advertising, or financing.” K.A.R. 92-12-72.
Nevertheless, our Supreme Court in Castle stated that the factors under K.A.R. 92-12-72 were not the only factors to be considered. The Castle court pointed out that “[o]ther factors also must be considered in reaching a determination of whether [businesses] were unitaiy in their operation. The entire record must be examined in the light of tire [dependency or contribution] test adopted in Crawford and Pioneer.” Castle, 245 Kan. at 744.
If a taxpayer is engaged in a unitaiy business, then the Department may require the taxpayer to file state income tax returns using the combined report formula method. K.S.A. 79-32,141. This filing method “calculates the local tax base by first defining the scope of the ‘unitary business’ of which the taxed enterprise’s activities in the taxing jurisdiction form one part.” Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 165, 77 L. Ed. 2d 545, 103 S. Ct. 2933 (1983). In other words, the first step is to determine what “property, income, or receipts are properly includable in the ‘pie’ of which the state is attempting to take its fair ‘shoe’ by means of an apportionment formula.” 1 Hellerstein & Hellerstein, State Taxation, p. 8-56 (3d ed. 2000). Accordingly, before applying the combined report formula apportionment method of accounting, it is first necessary to determine the apportionable tax base by determining the scope of the unitary business.
Here, the Department was precluded from requiring the taxpayers to file under the combined report formula method because BOTA found that the taxpayers did not participate .in a unitary business. Specifically, BOTA found that “[a]n examination of the evidence does not show that there is the requisite dependency or contribution within the Vanity Fair group such that the Taxpayers are unitary.”
Proper Application of the Unitary Business Principle
On appeal, the Department argues that VF and its subsidiaries were unitary. Before addressing the factual issue of whether the taxpayers participated in a unitary business, we find it necessary to discuss the legal questions of whether the Department properly applied (1) the presumption that business operations are unitary if they are engaged in the same general line of business; and (2) the dependency or contribution test. We note that while it is difficult to determine whether corporations are unitary, application of the test for unity in the present case is especially arduous because the taxpayers are subsidiaries in a large corporate conglomerate.
We issued an order to show cause notifying the parties that we intended to raise, sua sponte, the issue of whether the Department properly applied the dependency or contribution test, and afforded the parties a fair opportunity to brief the new issue and present their positions to the court before the issue was finally determined. See State v. Punkett, 230 Kan. 596, 601, 640 P.2d 1198 (1982).
The Department concluded that VF and its subsidiaries constituted a unitary business and, as a result, the apportionable tax bases were the gross income from the entire VF Group. At the hearing before BOTA, the Department’s auditor testified that the unitary finding was based on the Department’s determination that VF was unitary with its subsidiaries and that all of its subsidiaries were unitary with each other. The Department’s auditor testified as follows:
“Q Are you suggesting that each one of the subsidiaries is unitary with VF, as well as being unitary with each other subsidiary?
“A Ah, yes.”
During his testimony, the auditor emphasized that the finding of unity among the subsidiaries was largely based on the fact that the subsidiaries were engaged in the same line of business:
“Q ... [0]n what criteria do you determine who would be excluded from the unitary group?
“A Probably subsidiaries that are in a completely different line of business.
“Q So if they are in the same line of business, you have a presumption that they have got to be in the unitary group, regardless of what their connections are between each other or between the sub and the parent?
“A I would say if they’re all in the same general line of business, I would probably presume they’re unitary with each other.
“Q Is it possible that somebody could be in the same line of business, but there is autonomy as between the subs themselves and/or the sub and the parent?
“A Anything is possible.”
A. Same Line of Business Presumption
The Department argues that the taxpayers participated in a unitary business because the corporations from the VF Group were engaged in the same general line of business. The Department cites the following language from Broce to support its argument: “[B]ecause the taxpayers’ business activities were all in the general line of asphalt paving and resurfacing, the taxpayers engaged in a unitary business during the audit period. See K.A.R. 92-12-72(a).” 27 Kan. App. 2d at 973.
This statement, however, must be read in the context of the entire opinion. The Broce court stated that the taxpayers were unitaiy not only because their business activities were in the same general line but also because of other factors listed. 27 Kan. App. 2d at 972-76. In addition to finding that the taxpayers were in the same general line of business, the Broce court found that the taxpayers were dependent upon or contributed to the multistate business based on centralized management, overlapping officers and directors, intercompany financing and loan guarantees, intercompany exchanges of capital assets, intercompany transfers of employees, and common administrative functions. 27 Kan. App. 2d at 973-75.
After discussing the previously mentioned factors, the Broce court stated in die very next paragraph that “[w]hile additional facts evidencing the interrelationship of Broce Kansas, Broce Oklahoma, and Woodward are contained in the record, we believe the foregoing is sufficient to demonstrate that the taxpayers constituted a unitary business under the dependency or contribution test.” 27 Kan. App. 2d at 975-76. The Broce court, like the Castle court, clearly recognized that a finding under K.A.R. 92-12-72(a) that the taxpayers’ business activities were in the same general line, standing alone, was not determinative of whether the taxpayers were unitary. Because the Castle court stated that other factors must be considered along with the entire record to determine whether the operation of the portion of the business within the state was dependent upon or contributoiy to the operation of the business outside the state, the Department’s argument that the VF Group was unitary mainly because the corporations were in the same line of business is flawed.
B. Dependency or Contribution Test
In determining that the taxpayers, VF, and VF’s outside subsidiaries were unitary, the Department focused on showing that VF was dependent upon or contributoiy to its subsidiaries and that the taxpayers had a relationship with several of VF’s outside subsidiaries. Although VF was the parent corporation of the taxpayers and the outside subsidiaries, VF was not a Kansas taxpayer. In applying the dependency or contribution test in Castle, our Supreme Court determined that because the operations of the business in Kansas were dependent upon and contributory to the operations of the businesses outside the state, the unitary test set forth in Crawford and Pioneer had been satisfied. Castle, 245 Kan. at 748. As a result, the proper application of the dependency or contribution test in this case is whether the operation of the portion of the business within Kansas by the taxpayers was dependent upon or contributory to the business outside the state by VF and by VF’s outside subsidiaries.
Factual Application of the Unitary Business Principle
We now turn to the facts of this case and consider the controlling issue of whether substantial evidence supports BOTA’s determination that the taxpayers did not participate in a unitary business during the audit period.
“The Due Process and Commerce Clauses of the [United States] Constitution do not allow a State to tax income arising out of in terstate activities — even on a proportional basis — unless there is a ‘ “minimal connection” or “nexus” between the interstate activities and the taxing State and “a rational relationship between the income attributed to the State and the intrastate values of the enterprise.” ’ [Citations omitted.]” Container, 463 U.S. at 165-66. As a result, the in-state activities must be integrated with the out-of-state activities so as to form one business. In Crawford, our Supreme Court declared that “[v]arious portions of a business may be carried on exclusively in different states without destroying its unitary character if the integral parts are of mutual benefit to one another.” Crawford, 180 Kan. 352, Syl. ¶ 3. See In re Tax Appeal of Panhandle Eastern Pipe Line Co., 272 Kan. 1211, Syl. ¶ 12.
In determining that the taxpayers participated in a unitary business, the Department’s auditor cited the following connections among the corporations: (1) Lee and other VF subsidiaries made a 5 percent royalty payment to The H.D. Lee Co., Inc. (a wholly owned subsidiary of VF that held the Lee trademark), for use of the Lee label; (2) Lee Finance (a wholly owned subsidiary of Lee) loaned money to VF subsidiaries for acquisitions and expansions; (3) Bassett-Walker (a wholly owned subsidiary of VF) manufactured shirts using the Lee label for name recognition; (4) BassettWalker and Jantzen (a VF subsidiary) manufactured products for each other; (5) all of the VF subsidiaries used the Market Response System (MRS) (a system implemented by VF whereby the subsidiaries could exchange information regarding product development, manufacturing, and inventory); (6) all of the subsidiaries were linked to the central main frame computer and charged a fee; (7) VF’s vice president was transferred to Lee to “straighten out this subsidiary”; (8) VF Factory Outlet, Inc. (a wholly owned subsidiary of VF), sold products from all of the VF subsidiaries; (9) VF International Division, Inc. (a wholly owned subsidiary of VF), sold all VF’s subsidiaries’ goods overseas; (10) VF did all the federal taxes, internal audits, benefits plans, and so forth for the subsidiaries; (11) Modern Globe (a wholly owned subsidiary of VF) marketed Lee branded shirts; (12) there was a large amount of inter-company payables and receivables; (13) 5 to 6 percent of all sales were intercompany; and (14) VF’s 1991 annual report stated: “Our divisions will continue to cooperate whenever possible to make the most efficient use of corporate assets.”
As discussed previously, under the dependency or contribution test, the Department needed to show that the taxpayers and the outside corporations were interdependent and of mutual benefit so as to form one integral business. Although the Department argues that the entire VF Group was unitary based on a few relationships among the subsidiaries, the Department’s auditor admitted at the hearing before BOTA that a few connections among the subsidiaries did not necessarily establish that the entire VF Group was unitaiy.
In determining that the entire FV Group was unitaiy, the Department interwove evidence that the taxpayers were dependent upon or contributory to the operations of VF and that the taxpayers had connections with some of VF’s outside subsidiaries with evidence that some of VF’s outside subsidiaries were dependent upon or contributory to the operations of VF. The Department confused evidence that some of the outside subsidiaries were dependent upon or contributoiy to the operations of VF and that the taxpayers had connections with some of VF’s outside subsidiaries as proof that the taxpayers were dependent upon or contributory to the operations of VF and to the operations of all of VF’s outside subsidiaries.
Instead of proving that the taxpayers were unitaiy with VF and with all of VF’s outside subsidiaries, the Department asks us to accept its argument without the adequacy of supporting evidence. The record is lacking of objective evidence that VF and all its outside subsidiaries operated as a unitaiy business. As a result, the evidence is also lacking that the taxpayers were dependent upon or contributoiy to the operations of all of VF’s outside subsidiaries.
In fact, the main example of unity cited by the Department that connected the taxpayers with VF and with all of VF’s outside corporations was MRS. MRS was a business philosophy initiated by VF’s president to enable VF to “produce better, more market-responsive apparel on a more timely basis and at lower costs.” VF’s subsidiaries had MRS implementation teams which formulated recommendations for improving business operations and customer service. By 1990, MRS was in place, in varying degrees, in each of VF’s divisions. This allowed the various VF subsidiaries to exchange relevant information about apparel designing, manufacturing, and marketing.
Although the taxpayers and the other VF corporations were in the same general line of business, the dependency or contribution test, as discussed previously, must be satisfied. To be unitary, the VF corporations must be “interdependent and of mutual benefit so as to form one business rather than several business entities . . . .” Crawford Manufacturing Co. v. State Comm. of Revenue and Taxation, 180 Kan. 352, 359, 304 P.2d 504 (1956). MRS was not an integral part of the operations of the VF corporations so as to make all the corporations interdependent and of mutual benefit to one another.
Nevertheless, MRS can be considered together with other evidence to determine whether the taxpayers’ business operations were dependent upon or contributory to VF or to one or more of VF’s outside subsidiaries or both so as to constitute one integral business. The Pioneer court held that corporations were unitary in part because the executive staff of the parent company furnished its business experience and operational expertise to the subsidiary. Pioneer Container Corp. v. Beshears, 235 Kan. 745, 749, 684 P.2d 396 (1984) Because MRS was VF’s concept and was implemented at its direction, the system links the taxpayers with VF and with all of VF’s outside subsidiaries.
VF not only implemented MRS but also performed numerous administrative functions for the taxpayers. One of the administrative functions undertaken by VF was a blanket insurance policy that covered various forms of risk for itself and its subsidiaries. In addition, VF maintained both a pension and profit-sharing plan in which its subsidiaries could participate. Substantially, all employees of VF’s subsidiaries were covered by the pension plan. One of VF’s wholly owned subsidiaries provided the other subsidiaries with a centralized computer system. In addition, VF did federal taxes for the subsidiaries and performed internal audits. The expenses incurred by VF for those administrative functions were allocated to its subsidiaries in the form of a management fee. Although VF passed administrative expenses to its subsidiaries, the subsidiaries benefitted from economies of scale as they were able to acquire such things as insurance through VF for less than what the subsidiaries could have obtained elsewhere. Shared administrative functions are referenced in K.A.R. 92-12-72(c) as relevant to the unitary inquiry. See In re Tax Appeal of A.M. Castle & Co., 245 Kan. 739, 747, 783 P.2d 1296 (1989).
In addition, substantially all of the borrowing to support the operations of VF and its subsidiaries was done by VF. VF made loans and advances to many of its apparel manufacturing subsidiaries, but most notably to Lee. VF’s loans and advances to Lee averaged $530 million per year during the audit period. In addition, interest paid by Lee to VF totaled an average of $45 million per year. VF also made substantial loans and advances to Blue Bell and made loans and advances to Troutman totaling $4,396,000 during the audit period. Intercompany financing and loan guarantees have been cited as factors in determining whether corporate operations are unitary. See Castle, 245 Kan. at 746; In re Tax Appeal of Broce Construction Co., 27 Kan. App. 2d 967, 974, 9 P.3d 1281, rev. denied 270 Kan. 898 (2000).
Another factor frequently cited in support of a finding of unity is interlocking officers and directors. Castle, 245 Kan. at 745-46; Pioneer, 235 Kan. at 749; Broce, 27 Kan. App. 2d at 974. Here, a core group of managers served both VF and many of VF’s subsidiaries, including the taxpayers. Moreover, VF’s board of directors held regular meetings that were attended by its board members and often by officers of VF and its subsidiaries. In contrast, the board of directors of both Lee and Blue Bell did not hold actual meetings, but rather transacted business by written consent. See Castle, 245 Kan. at 746 (parent company held quarterly board meetings where management policies and decisions were explored in detail, whereas the subsidiary’s board generally acted by written consent).
In addition to interlocking directors, the taxpayers also benefit-ted from a group of vice presidents who were employed by VF and functioned as senior advisors to the subsidiaries and furnished a link between each subsidiary and VF. The taxpayers, however, ve hemently disagree with the Department’s contention that they benefitted from strong centralized management. It is important to remember that strong centralized management is merely one of many factors to be considered in determining whether corporate operations constitute a unitary business. See K.A.R. 92-12-72. Even if VF did not contribute to the taxpayers’ operations by providing strong centralized management, other indicators of a unitary business existed.
For example, unity of ownership, a factor often mentioned in finding a unitary business, was present in this case. Castle, 245 Kan. at 745; Pioneer, 235 Kan. at 749; Crawford, 180 Kan. at 361. VF, either directly or indirectly, owned all the stock in the taxpayers. In addition, as owner of all the stock in the taxpayers, VF had control over the election of directors for the taxpayers. As directors of the taxpayers’ corporations, they would be responsible for the management of the corporations and the hiring of the officers and management personnel. This was cited as a unitary factor in Castle, 245 Kan. at 746.
Based on the previously stated factors, we find that the taxpayers’ functions were dependent upon and contributory to the operations of VF. It is evident that the taxpayers’ business operations with VF met both prongs of the test for a unitary business. As a result, the record does not support B OTA’s conclusion that the operations of the taxpayers with VF did not constitute a unitary business during the audit period. To the contrary, the overwhelming substantial evidence leads to the conclusion that the taxpayers and VF participated in a unitary business.
Although we found that the taxpayers were not unitary with the outside subsidiaries as a whole, substantial evidence existed that the taxpayers were integrated with some of the out-of-state subsidiaries so as to form one business. The Department cited intercompany sales by VF Factory Outlet (VFFO) as evidence of unity. The Department stated that the taxpayers contributed to VF’s vertically structured enterprise by selling goods to VFFO. See K.A.R. 92-12-72(b). During the audit period, approximately 7% to 11% of Lee’s total annual sales were to VFFO. On the other hand, VFFO purchases from Lee accounted for 38% to 39.3% of VFFO’s total an nual purchases. In 1988, approximately 32% of Troutman s total sales were to VFFO. Although Blue Bell’s sales to VFFO were substantially less than Lee’s and Troutman’s sales, Blue Bell nevertheless participated in VF’s vertically structured enterprise by manufacturing goods for VFFO. The taxpayers contributed to the operations of VFFO by supplying it with inventory. At the same time, the taxpayers were dependent upon VFFO as a market for their goods. Significant intercompany sales was cited in Crawford and Castle as a factor supporting the finding that the taxpayer’s operations were unitary.
Another example of the taxpayers’ dependency on other VF subsidiaries is evidenced through the use of trademarks. The Lee trademark is held by The H.D. Lee Co., Inc. (H.D. Lee), a wholly owned subsidiary of VF. Lee paid an average of $26 million annually in royalties to H.D. Lee for use of the Lee label. A similar arrangement existed between Blue Bell and Bassett-Walker, Inc. (Bassett-Walker), another wholly owned VF subsidiary. BassettWalker manufactured goods bearing the Wrangler label and made royalty payments to Blue Bell. In addition, Troutman made royalty payments to VF, and other VF subsidiaries made royalty payments to Lee. The arrangements benefitted all of the parties involved inasmuch as there was obvious mutual interdependence between the holder of a trademark and those who utilized it. The trademarks made the products more attractive to consumers, thereby increasing sales, which in turn generated increased royalty income for the holders of the trademarks.
The taxpayers were also dependent on VF subsidiaries for intercompany financing and loan guarantees. For example, Lee Finance, Inc. (Lee Finance), a wholly owned subsidiary of Lee, financed corporate acquisitions. In fact, Lee Finance enabled VF to acquire Blue Bell by providing loans to replace Blue Bell’s preacquisition debt. During the audit period, Blue Bell paid Lee Finance an average of $40 million in interest per year.
As a result, we determine that the taxpayers, VF, VFFO, H.D. Lee, and Lee Finance were interdependent and of mutual benefit so as to constitute one integral business. The taxpayers, VFFO, H.D. Lee, and Lee Finance were dependent upon VF for account ing services, management expertise, financing, product development, and marketing. VF and VFFO were dependent upon the taxpayers to supply apparel to VFFO and to VF’s other subsidiaries. This resulted in a steady source of supply for VFFO and for VF’s other subsidiaries. A steady source of supply was cited as a unitary factor in Castle. 245 Kan. at 746. Lee was dependent upon H.D. Lee for use of the Lee trademark. Blue Bell was dependent upon Lee Finance for borrowing capital. As a result, the operations of the taxpayers were dependent upon or contributory to the operations of VF, VFFO, H.D. Lee, and Lee Finance outside the state and met the test of a unitary business.
We determine from a review of the entire record that BOTA correctly determined that the taxpayers were not unitary with the entire VF Group. Nevertheless, we determine that the record does not support B OTA’s conclusion that the operations of the taxpayers, VF, VFFO, H.D. Lee, and Lee Finance did not constitute a unitary business. On the other hand, substantial evidence existed that the previously mentioned corporations were interdependent and of mutual benefit to one another so as to form one integral business.
Affirmed in part and reversed in part. | [
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Marquardt, J.:
W.H. and B.H. (the Hs) appeal the trial court’s decision granting J.L. and D.L. (the Ls) temporary custody of and consent to adopt J.A. We reverse and remand with directions.
J.A. was bom on December 16,1998, to K.A., a mentally incompetent female. At the time of J.A.’s birth, K.A. was unable to. identify the father. A petition was filed requesting that J.A. be adjudicated a child in need of care. The Kansas Department of Social and Rehabilitation Services (SRS) was granted temporary custody of J.A. On March 22, 1999, J.A. was adjudicated a child in need of care. J.A. was placed in the Hs’ home when he was 6 weeks old, after another foster family could not handle J.A.’s persistent crying. J.A. thrived and was happy in the Hs’ home for 2 years.
A paternity test revealed that the Ls’ son is J.A.’s father. The Ls’ son is mentally incompetent and unable to care for himself. The Ls’ son notified the Ls of J.A.’s birth in January 1999. The Ls were granted visitation with J.A. in August 1999.
In August 1999, the State filed a motion to terminate the parental rights of K.A. and the Ls’ son. The Hs and the Ls were granted interested party status in the case. In February 2000, the trial court terminated the parental rights of J.A.’s parents.
The trial court granted SRS the authority to consent to J.A.’s adoption. Adoption staffing meetings were held at Lutheran Social Services (LSS) to determine the appropriate placement for J.A. LSS selected Dr. Maureen Ruh, Psy.D., a licensed clinical psychologist, to evaluate J.A.’s attachment to the Ls and the Hs. Even though Dr. Ruh recommended that the Ls be allowed to adopt J.A., the LSS staff determined it was in J.A.’s best interests that adoptive placement be with the Hs. The factors LSS considered were: (1) the Ls indicated that they would raise J.A. as their grandchild rather than their child; (2) J.A. was attached to both the Ls and the Hs; however, J.A. has stronger emotional ties with the Hs because he has been with them since he was 6 weeks old; (3) J.A. is well adjusted in his placement with the Hs and to move him could put him at high risk for attachment difficulties in the future; and (4) the Ls indicated that J.A.’s position in the family would be, in part, to carry on the family legacy, which raised concern about the motivation for adoption and the pressure this could put on J.A.
An evidentiary hearing was held in January 2001 on the Ls’ motion to modify custody and to have J.A. placed in their home. The trial court determined that the Ls should be allowed to adopt J.A.
At the time of the hearing, W.H., the foster father of J.A., was a 45-year-old farmer who worked at a family farm implement dealership. W.H. had one biological daughter who was 24 years old and resided outside the home. W.H. testified that he had high blood pressure and diabetes but was in good health. B.H., the foster mother, was 34 years old, had two biological children, a 9-year-old daughter and a 14-year-old son, who resided in the home. She was a nurse and was scheduled to complete a social work degree in May 2001. B.H. identified her only health problem as being asthmatic. The Hs were married in 1986. They were foster parents to five children, including J.A. The Hs testified that the entire family wanted to adopt J.A.
At the time of the hearing, J.L., J.A.’s grandfather, was a 67-year-old monument dealer. J.L. was in good health but acknowledged that he had taken medication in the past for an enlarged prostate and had Type II diabetes. D.L., J.A.’s grandmother, was a 66-year-old homemaker. She testified that she was in good health but acknowledged she underwent a triple by-pass surgeiy 8 years ago and had asthma. The Ls were married in 1955. The Ls have five adult children, ranging in age from 41 to 37 years old, and four grandchildren in addition to J.A. D.L. indicated that J.A’s biological father would be a part of J.A.’s life if the Ls were allowed to adopt him.
The trial court received the testimony and reports of experts who evaluated J.A. Dr. Joanne Lyon, Ph.D., a licensed psychologist, was hired by the Hs. Dr. Lyon testified that it is not good to remove a child from an environment in which he is thriving.
Dr. Ruh was hired by LSS to assess the emotional attachment between J.A. and the Hs and the Ls. Dr. Ruh concluded that the Ls should be allowed to adopt J.A.
The trial court heard testimony of members of the LSS adoption staff. Meridee Westjorde, an SRS social worker, believed it was in J.A.’s best interests that he be placed with the Hs. Lisa Haslett, a social worker, performed home visits in the Hs’ and the Ls’ homes. Haslett testified that she did not agree with Dr. Ruh’s recommendations. Haslett testified that she did not see J.A.’s attachment to the Hs as being anxious and attributed any anxiety to the process, not to the relationship. Ruth Santner, a LSS supervisor, thought J.A. should be placed with the Ls. The guardian ad litem supported allowing the Hs to adopt J.A.
On March 30, 2001, the trial court found that both interested parties brought love, caring, and stability to J.A. The decision to grant the adoption to the Ls was based on the fact that the Ls were family and the Hs could not “bring blood.”
The Hs filed a timely notice of appeal. The Hs also filed a motion requesting that SRS be given temporary custody of J.A. and that J.A. remain in the Hs’ home pending the appeal. Prior to the docketing of the appeal, the Ls filed a motion to dismiss the appeal, alleging that the Hs did not comply with K.S.A. 38-1591(e), which required the notice of appeal to be verified. The trial court held that the failure to file a verified notice of appeal under K.S.A. 38-1591(e) was jurisdictional and the Hs’ voluntary appearance in the proceedings constituted personal service under K.S.A. 38-1591(e). The trial court dismissed the appeal. The trial court also denied the Hs’ oral motion to amend the notice of appeal, finding that more than 30 days had passed since the judgment became final. The Hs filed a motion to alter or amend the trial court’s dismissal of their appeal, which was also denied.
The Hs filed a motion in this court, pursuant to Supreme Court Rule 5.051 (2001 Kan. Ct. R. Annot. 33), to have their appeal reinstated. The Ls’ opposed reinstatement of the appeal. The motion was granted on June 29, 2001.
Trial Court Dismissal of the Appeal
The Hs contend that the trial court did not have jurisdiction to dismiss their appeal. Both sides recognize that there is no case law on this issue; thus, it is a matter of first impression.
Whether jurisdiction exists is a question of law over which this court has unlimited review. Maggard v. State, 27 Kan. App. 2d 1060, 1062, 11 P.3d 89, rev. denied 270 Kan. 899 (2000).
The Ls contend that this court does not have jurisdiction to hear the Hs’ appeal because the notice of appeal did not contain a verification as required by K.S.A. 38-1591(e). The Ls did not cross-appeal; however, because this issue is jurisdictional, we will consider it.
“Every notice of appeal, docketing statement and brief shall be verified by the interested party if the party has been personally served at any time during the proceedings. Failure to have the required verification shall result in the dismissal of the appeal.” (Emphasis added.) K.S.A. 38-1591(e).
Rule 5.051 states in relevant part as follows:
“The district court shall have jurisdiction to dismiss an appeal where the appellant has filed the notice of appeal in the district court but has failed to docket the appeal with the clerk of the appellate courts. Failure to docket the appeal in compliance with Rule 2.04 shall be deemed to be an abandonment of the appeal and the district court shall enter an order dismissing the appeal. The order of dismissal shall be final unless the appeal is reinstated by the appellate court having jurisdiction of the appeal for good cause shown on application of the appellant made within thirty (30) days after the order of dismissal was entered by the district court.”
The Hs contend that Rule 5.051 only provides the trial court with jurisdiction to dismiss an appeal when a docketing statement has not been timely filed and does not grant jurisdiction for the trial court to dismiss an appeal for any other reason. They contend that the most appropriate method for challenging an unverified notice of appeal is by a motion to the appellate court after the appeal has been docketed.
The Ls rely upon Carson v. Eberth, 3 Kan. App. 2d 183, 592 P.2d 113 (1979), to support their argument. In Carson, this court recognized that the trial court has the authority to dismiss the appeal until the appeal is docketed. However, Carson held that the trial court’s authority is limited to those cases where the appeal is not timely docketed. 3 Kan. App. 2d at 185. Neither K.S.A. 38-1591(e) nor Rule 5.051 gives the trial court express authority to dismiss an appeal for failure to file a verified notice.
A finding that the trial court did not have jurisdiction, however, would appear to conflict with established case law recognizing that the trial court retains jurisdiction until an appeal is docketed. See Honeycutt v. City of Wichita, 251 Kan. 451, 836 P.2d 1128 (1992); Hundley v. Pfuetze, 18 Kan. App. 2d 755, 858 P.2d 1244, rev. denied 253 Kan. 858 (1993). In Honeycutt and Hundley, the issue was whether the trial court had the authority to address post-trial motions after the filing of a notice of appeal.
We hold that the trial court’s limited authority under Rule 5.051 allows it to dismiss an appeal only when a docketing statement has not been filed.
Verification of the Notice of Appeal
Even though we found that the trial court did not have jurisdiction to dismiss the appeal, there is still a question whether the lack of verification of the notice of appeal deprives this court of jurisdiction.
The Hs assert that they are not required to file a verified notice because they were not “personally served” as required under K.S.A. 38-1591(e). The trial court found that the Hs had been personally served because they appeared voluntarily at proceedings. “Personal service shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served.” K.S.A. 2001 Supp. 60-303(d). “An acknowledgment of service on the summons is equivalent to service. The voluntaiy appearance by a defendant is equivalent to service as of the date of appearance.” K.S.A. 2001 Supp. 60-303(e).
The Hs contend that K.S.A. 2001 Supp. 60-303(e) does not apply to them because K.S.A. 38-1534(a) provides its own definition for personal service as used in the Kansas Code for Care of Children (KCCC), K.S.A. 38-1501 et seq. Unlike K.S.A. 2001 Supp. 60-303(e), the language of K.S.A. 38-1534 does not contain a provision which recognizes an appearance by a party as being the equivalent of service. The Hs rely upon the proposition that when a general statute and more specific statute conflict, the more specific statute prevails unless it appears the legislature intended to make the general statute controlling. See State v. Smith, 268 Kan. 222, 231, 993 P.2d 1213 (1999); Tongish v. Thomas, 251 Kan. 728, 731, 840 P.2d 471 (1992).
Conversely, the Ls contend that K.S.A. 2001 Supp. 60-303(e) is applicable because the KCCC refers to Chapter 60 when the KCCC is silent on an issue of procedure. The Ls cite no authority for this assertion.
Also, the Hs contend that K.S.A. 2001 Supp. 60-303(e) does not apply because under that statute, the voluntary appearance by a “defendant” is required. The Hs are interested parties, not defendants. K.S.A. 60-301 requires the clerk of the court to issue a summons for service upon each defendant. However, under K.S.A. 38-1533, a summons and copy of the petition need only be served upon the child by serving the guardian ad litem, the parent(s) who have legal custody or who may be ordered to provide child support, the person with whom the child is residing, and any other person designated by the county or district attorney.
The Hs also claim that they have not been “personally served” because K.S.A. 2001 Supp. 60-303(e) only equates a voluntary appearance with service and does not equate a voluntary appearance with “personal service.” Under K.S.A. 2001 Supp. 60-303(d) and K.S.A. 38-1534(a), personal service requires that a copy of the process be delivered to the person.
The minutes of the March 22,2000, Senate Judiciary Committee meeting on Sub. S.B. 633 indicate that K.S.A. 38-1591(e) was designed to alleviate the problem of attorneys who were bound to proceed with appeals in termination cases even if the parent was disinterested or could not be located. It required the parent(s) to “acknowledge their wish to continue appeal at every level of appeal or the appeal shall be dismissed.” Senate Judiciary Committee, March 22, 2000.
We find that K.S.A. 38-1591(e) does not require verification of the notice of appeal when a party is not personally served with process. This appeal is appropriately before this court for review.
Abuse of Discretion
The Hs contend that the trial court abused its discretion by narrowly focusing on the Ls’ biological connection to J.A. without considering other factors to determine J.A.’s best interests.
In an adoption case, after parental rights have been terminated, the court must consider all the facts and circumstances to determine what custody placement is in the child’s best interests based upon the child’s ongoing physical, mental, and emotional needs. In In re R.P., 12 Kan. App. 2d 503, 505, 749 P.2d 49, rev. denied 243 Kan. 779 (1988), this court stated: “In [K.S.A.] 38-1584(c)(3), the legislature has expressed the policy that preference for adoption should be given to a relative of the child. This policy, however, must be balanced with the policy To make the ongoing physical, mental and emotional needs of the child the decisive consideration.’ ”
A trial court’s determination of the custody of children is reviewed for abuse of discretion. In re L.A.M., 268 Kan. 441, 445, 996 P.2d 834 (2000). In the absence of such abuse, the trial court’s decision will not be disturbed on appeal. In re A.F., 13 Kan. App. 2d 232, 234, 767 P.2d 846 (1989). Discretion is abused when no reasonable person would take the view adopted by the trial court. In re Marriage of Whipp, 265 Kan. 500, 508, 962 P.2d 1058 (1998). The party asserting abuse of discretion bears the burden of showing such abuse. In re L.A.M., 268 Kan. at 445.
K.S.A. 38-1584 states:
“(a) The purpose of this section is to provide stability in the life of a child who must be removed from the home of a parent, to acknowledge that time perception of a child differs from that of an adult and to malee the ongoing physical, mental and emotional needs of the child the decisive consideration in proceedings under this section. The primary goal for all children whose parents’ parental rights have been terminated is placement in a permanent family setting.
“(b)(1) When parental rights have been terminated and it appears that adoption is a viable alternative, the court shall enter one of the following orders:
(4) In making an order under (b)(1) . . . , the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting such custody to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties.”
The trial court applied the preference set forth in K.S.A. 38-1584(b)(4) and stated:
“The legislature recognized the power of family by setting a preference for a relative over others when in the child’s best interest. However, blood alone does not insure a child’s best interest.
“In this case the respondent is indeed fortunate to have two viable placements for permanence when so many children go wanting for any permanent placement.
“The Court finds that the [Ls] bring more to the equation then [sic] just blood. They bring love, caring, stability and family. The [Hs] are wonderful foster parents and are to be lauded for their service. They bring love, caring and stability. They can not however bring blood.”
Even though the trial court’s decision alludes to the best interest of the child, it appears that it only looked at the preference for a relative and completely ignored all the other important facts in this case. The trial court did not list any facts on which it relied for its decision, other than “blood.” It is hard to believe that the trial court could have decided that the Ls were the appropriate adoptive parents when the histories of the two families show marked differences in the results of their parenting.
LSS had worked with J.A., the Ls, and the Hs from the beginning and took into consideration all of the professional opinions to support their preference that the Hs be allowed to adopt J.A. They focused on the strengths and needs related to parenting.
When discussing J.A.’s adoption, the Ls acknowledged that they are older than parents generally are for such a young child. The Ls’ two daughters testified that in the event something happened to the Ls, they would raise J.A. There is nothing in the record on appeal to indicate that a family assessment was done on the Ls’ daughters to determine whether they would be appropriate persons to raise J.A.
In contrast, the LSS family assessment of the Hs stated:
“This family has many strengths and much to offer a child in need of a family. They are involved and connected to one another. There is a good deal of love and respect in the home. The parents have a strong and stable marriage and are invested in their children. Family members have fun together, and all are very interested in adopting. They also have a strong and available network of extended family and enjoy being with them. There is no reported history of sexual, physical or emotional abuse or neglect in the nuclear or extended family. There is not reported history of substance abuse on the part of any family members.”
The Hs also contend that because the factors to be used in determining what custody placement is in a child’s best interests are not clearly set forth in the KCCC, this court should look to K.S.A. 2001 Supp. 60-1610(a)(3)(B), which sets forth factors to be considered in determining child custody or residency in divorce proceedings. Although K.S.A. 2001 Supp. 60-1610(a)(3)(B) provides some guidance as to what is in a child’s best interests, a number of the factors would not apply to a determination under the KCCC. Thus, rather than apply factors from a statute that deal with custody between two parents, we believe the more sound approach is for a court to consider all of the facts. In an adoption case after parental rights have been terminated, the court must determine what custody placement is in the child’s best interests for the child’s ongoing physical, mental, and emotional needs. See K.S.A. 38-1584(a).
The primaiy goal for all children whose parents’ parental rights have been terminated is placement in a permanent family setting. K.S.A. 38-1584(a). We hold that the trial court’s consideration of what custody placement is in J.A.’s best interests, should include the following:
1. The child’s attachment to the parties;
2. whether there has been any history of sexual, physical, emotional, or substance abuse on the part of any family member;
3. age and health of the parties;
4. whether the child would have siblings close to his age;
5. motivation of the parties for wanting to adopt;
6. potential permanence of the relationship between the child and adopting parents;
7. emotional needs of the child;
8. parenting skills, strengths, and weaknesses; and
9. special needs of the child.
The Hs assert the Ls’ testimony that the natural parents’ desire to have the Ls adopt J.A. is self-serving and reflects unsupported statements made by J.A.’s mentally incompetent parents. The parental rights of J.A.’s natural parents were terminated. After a biological parent’s rights have been terminated, that parent’s preference for who should adopt the child should not be considered.
Thus, after reviewing the trial court’s decision, we find that it is impossible to determine the reasoning for its decision. The trial court did not articulate facts sufficient to support its position and, therefore, we find an abuse of discretion. The case is hereby reversed and remanded to the trial court for another hearing. We think that the better practice in sending it back to tire trial court is for another judge to hear the case and make the necessary findings.
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The opinion of the court was delivered by
Valentine, J.:
This is an application for a writ of mandamus brought originally in this court- by the Saint Joseph and Denver City Railroad Company to compel the Board of County Commissioners of Nemaha county to issue $125,000 of the bonds of said county to said railroad company in payment for a like amount of the capital stock of said railroad company for which it is alleged the county has already subscribed. Many important questions are involved in this case, one of which is the constitutional validity of an act of the Legislature approved February 10th, 1865, authorizing counties and cities to make such subscriptions, and to issue their bonds in payment therefor. (Laws of 1865, ch. 12, p. 41.) This question has been very ably argued on both sides, and if we err in our decision it is our own fault. Our decision is in the affirmative. We think the said act is constitutional and valid.
Before this case was argued or submitted to us, a case from Leavenworth county involving the same question was submitted; (The Board of County Commissioners of the County of Leavenworth v. Edward Miller, ante, p. 479;) and since this case was submitted another case from Morris county supposed to involve the same question has been submitted; (Morris, et al., v. The Comm’rs of Morris County, post, p. 576.) So far as the constitutional validity of said act, or of similar acts; is concerned, we have considered all of these three cases together; and we now render our decision in this case and in that of Commissioners of Leavenworth Co. v. Miller at the same time. In the case last mentioned we give our reasons at length for holding said ch. 12, laws of 1865, to be valid, and it is not necessary to repeat them here. In this case we care fully refrain from expressing any opinion at this time upon the other questions involved. "We shall reserve the consideration of such questions until the return of the alternative' writ of mandamus, when an issue may be formed and the facts found, so that we may know the exact questions in the case.
The alternative writ is allowed.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant was charged in the court below with burglary and larceny. He was tried for both offenses, but was found guilty of larceny only. After conviction he moved the court to arrest the judgment for the following reasons: First, That the facts stated do not constitute a public offense; s'scoñd, that the verdict of the jury in the ease is an acquittal of the defendants; third, that the verdict does not convict him of any offense described in the information.” The court sustained the motion, discharged the defendant, and. rendered a judgment against the plaintiff for costs; to all of which the county attorney for the State excepted, and now appeals to this court.
. The information consisted of one count only; and the defendant was charged with both offenses in this count. This was proper: (§ 72, Gen. Stat., 331.) The defendant was charged with breaking and entering a dwelling house in the day-time, with the intent to commit the larceny charged in the information, which is burglary in the third degree under the statute: .(§§69, 63, 61, Gen. Stat., pp. 331, 330, 329.) And the defendant was also charged with stealing certain goods of the value of fifty dollars from the said dwelling house, which is grand larceny: (§§ 78, 81, Gen. Stat., 332,333.) Theverdictof the jury wasasfollows: “We the jury sworn and empanneled in this action do upon “ our oaths fk " Charles I). Brandon guilty of grand larceny “ to the amount of fifty dollars.” We have no doubt but that a defendant, charged with both burglary and larceny, may be found guilty of the larceny only: (§ 122, Gen. Stat., 840; 2 Arch. Cr. Pr. & PL, 328, 341; 1 Russell on Cr., 839, 840, 841; 1 Wharton Am. Cr. L. §560, et seq; id., § 617; 2 id., §§ 1615,1616; 3 Chitty Cr. L., 1114,1115; Roscoe Cr. Ev., 367, 368.) And the verdict in this case is undoubtedly sufficient as a verdict for grand larceny. The judgment and order of the court below are reversed? and the cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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'The opinión of the court was delivered by
Valentine, J.:
In this case there are five assignments ■ of error; but as the plaintiff in error seems, from the brief filed by his counsel, to have abandoned all but the ■ third assignment, we shall not consider the others. We ■ may, however, in passing, say that we do not consider the other assignments as tenable.
In the court below, the defendant in error, James Laughlin, was plaintiff, and the plaintiff in error, W. M. .Johnson, was defendant. An attachment was issued in the case against the property of the defendant below on the grounds, as stated in the affidavit therefor, “ that said -Johnson has assigned his property, or a part thereof, with the intent to defraud, hinder, and delay his creditors, • and that said defendant has property and rights in action ■which he conceals.” The defendant filed an affidavit denying these grounds, and moved the court to dissolve - the attachment. Whether these grounds were true or not seems to have been the sole question before the court below. The motion was heard on affidavits. No oral ■ evidence was introduced. The court overruled the motion to dissolve the attachment, and this ruling the defendant below claims was erroneous. We think the . evidence, taking the whole of it together, was sufficient ■ to sustain the order of the .court below overruling said •motion. The said Johnson executed an instrument in writing, which purported to convey all his property to "Nelson Case for the benefit of his (Johnson’s) creditors. ' There was some evidence on the face of this instrument fending to show that it was executed for the purpose of defrauding Johnson’s creditors, but probably not enough to prove said fact, or to render the instrument void for that reason. There was also evidence aliunde which tended to show that said assignment was fraudulent and void. And there was certainly sufficient evidence to show that at least one of the sales made by Johnson, just prior to the said assignment, was made for the purpose of defrauding his creditors. This last evidence was sufficient to sustain the attachment. If a party assign any ' s portion of his property for the purpose of defrauding his creditors, that is sufficient to sustain an order of attachment.
The order oí; the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question presented by the record is this: Will an appeal lie from the decision of a board of county commissioners, rejecting the application of the Probate Judge for an allowance in addition to the fees given by law ? The Probate Judge has certain fees, fixed by statute; § 4, ch. 39, Gen. Stat., p. 477; and further, §85, ch. 25, Gen. Stat., p. 273, reads, “and he shall receive such fees as are by law allowed him, and shall receive such other compensation as may be allowed by the county commissioners, not to exceed five hundred dollars per annum.”
This language gives to the county commissioners the discretion, to allow something out of the county treasury to the probate judge, in case his legal fees do not appear to them adequate compensation. . It is a discretion vested in them, and can be exercised by no other tribunal. An appeal, if allowed, would in effect take from this discretion, and vest it in others. Judge Gholson, in the case of Com'rs of Geauga Co. v. Ranney, et al., 13 Ohio St., 392, used this language : “It cannot be properly claimed that from the exercise of a mere discretionary power, vested in the board of county commissioners, an appeal might be taken to the court of Common Pleas, under the general language of the law allowing and regulating such appeals.” With that opinion we agree.
The order dismissing the appeal is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J..:
This is a proceeding in error brought to review the action of the district court of Shawnee county, sustaining a motion for a new trial. The case made gives a statement of the pleadings, omits the testimony and instructions, and recites the verdict. It then says: “ The defendant then moved the court to grant it a new trial upon various grounds, among others the following: “1st, Irregularity in the proceedings of the jury; 2d, Misconduct of the Jury.”
On the hearing of the motion the court received the affidavit of a juror to show the alleged misconduct, over the objection of plaintiff. The motion for a new trial was sustained. Whether the court erred in receiving the affidavit of the juror, is a question which we do not feel called upon to decide on the record as presented; because, if error, it does not appear that it has resulted to the prejudice of the plaintiff. Other grounds than the misconduct of the jury were presented in the motion for a new trial. There may have been abundant reason in those other grounds for setting aside the verdict, and for aught that appears in the record the court acted on those grounds. Even if we should examine the question presented by counsel and find error, we should still be unable to say that such erroneous ruling was the ground of disturbing the verdict. This is akin to the case of a record presenting only part of the testimony, or a portion of the charge. McCreary v. Cockrill, 3 Kas., 37. Upon the case before us we cannot disturb the order of the district court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on an account and to enforce a mechanic’s lien for the amount of such account. An attachment was also issued in the case on an affidavit of the plaintiffs. The defendants moved the judge of the court below, at chambers, to dissolve the attachment, and the motion was sustained. There are two questions in this case: First, Can a motion to dissolve an attachment be made before the district judge, at chambers, without first filing the same with the clerk of the court ? Second, Can an order of attachment he issued in an action on an account, and to foreclose a mechanic’s lien ? Both of these questions must he answered in the affirmative. When an order of the district judge, at chambers, sustaining or dissolving an attachment is made, it, together with the motion, is then filed with the clerk of the court, and becomes a part of the record.
The second is the principal question in the case. Under § 190 of the civil code, (Laws of 1870, p. 171,) the plaintiff may have an attachment in every “ civil action ior the recovery of money. The enforcement of a mechanic’s lien is, under said code, a “ civil action: ” § 634, Gen. Stat., p. 756, and is “ for the recovery of money.” The debt upon which the action is brought is the real subject of the action, and the mechanic’s lien is simply subservient and auxiliary thereto; and the judgment rendered in such an action is not merely a judgment of foreclosure, but it is a personal judgment against the debtor for the amount of the debt, with interest, and the property upon which the lien exists is ordered to be sold to satisfy said judgnient: civil code, §399, Gen. Stat., p. 705; Laws of 1870, p. 175, §13. If this was purely a suit in equity to foreclose a mechanic’s lien, a suit in which no personal judgment could be rendered, probably an attachment would not lie; but as it is not such a suit, as it is an action in which a personal judgment is allowed by law, a judgment that will not only reach the property upon which the mechanic’s lien exists, but will also reach all the property of the judgment-debtor not exempt by law from execution, a judgment upon which an ordinary execution may be issued, there seems to be no good reason why an attachment may not be issued in this case as in other cases. The language of the statute is certainly broad enough. Will it be supposed that such a judgment, as the one rendered in mechanic’s lien cases, would not, when rendered, be a lien, the same as other personal judgments, upon all the real estate of the judgment-debtor subject to execution, that which is free from the mechanic’s lien as well as that which is subject to it ? Will it be supposed that the plaintiff would not have the same right to an attachment and garnishment upon such a judgment, after the property subject to the mechanic’s lien had been exhausted, as he would have upon any other judgment? The language of the code prescribing in what actions trials by jury may be had, is precisely the same, so far as it affects this case, as the language prescribing in what actions attachments may be issued: Comp. Laws, 168, § 274; Gen. Stat., 680, §266; id., 664, §190; Laws of 1870, p. 171, § 4. Trials by jury and attachments are both allowed in “ actions for the recovery of money.” It is conceded that under said code parties are not entitled as a matter of right to a trial by jury in ordinary equity proceedings. It is therefore claimed by counsel for defendants, that the plaintiffs are not entitled to an attachment in this case. The logic of counsel fails, because'this is not an ordinary equity proceeding.. It has already been decided by this court, that in an action to. foreclose a mortgage, where the plaintiff claims a personal judgment for money, the defendant is entitled to a jury trial. The equitable action of foreclosure is, in such a case, converted into a legal action. This court has also decided that in an action to foreclose a mechanic’s lien, if the plaintiff fail in establishing the lien, he is nevertheless entitled to a personal judgment for the amount due to him: Haight v. Schuck, 6 Kas., 192. This decision would be erroneous if the foreclosure of a mechanic’s lien were purely an equitable action, or if the enforcement of the lien were the main object of tbe action, for in such a case, if the lien should fail, the action would go with it.
It seems to be conceded by the defendants that the affidavit upon which the attachment was issued is sufficient ; hence the motion to dissolve the attachment was not based upon.any supposed deficiency in the affidavit, but it was based upon a fact (that the action was “ to foreclose a mechanic’s lien,”) to be shown by the other papers in the case: GeD. Stat, 673, §229. The defendants chose to rest their motion to dissolve the attachment upon the sole ground that an attachment does not lie in an action to foreclose a mechanic’s lien. ^hey did not attempt to show that the lien itself was a sufficient security for the plaintiffs’ claim, and they objected to the plaintiffs showing that it was not a sufficient security. They objected to the plaintiffs showing that in fact they had no lien at all, and therefore that they had no security whatever, and the judge below sustained the objection. It will be conceded that if it had been shown that the lien itself was a sufficient security for the plaintiffs’ claim, it would have been the duty of the court below, or judge, to dissolve the attachment. In fact, it is even probable that when the question is properly raised it devolves upon the plaintiff to show that the lien is not a sufficient, security, or else it will be the duty of the court or judge to dissolve the attachment; It can hardly be supposed that the law intends to give to the plaintiff a double security. ■ The order of the judge below must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
A judgment was rendered before a justice of the peace of Labette county in favor of Margaret Ingersoll, the defendant in error, and against W. M. Johnson, (assignor of plaintiff in error,) for $200 and costs; a transcript of the judgment was filed in the office of the clerk of the district court of said county; execution was issued thereon and returned^ unsatisfied; an affidavit of J. D. McCue, one of the attorneys of Margaret Ingersoll was filed in said clerk’s office, setting forth that he had good reason to believe and did believe that Nelson Case (the plaintiff in error) had property of and was also indebted to said ~W. M. Johnson; an order of garnishment was issued and served on said Case; written interrogatories were also filed in said clerk’s office, and served on said Case. In answer to said interrogatories said Case filed the following:
“ 1. I have both personal and real property under my control which was assigned to me by the said W. M. Johnson for the benefit of his creditors. Said real property consists of town lots in Oswego, and interests in buildings and lots. Said personal property consists of said office furniture, and a few choses in action.
“ 2. I am not indebted to said W. M. Johnson in any sum whatever.
“ 8. The said assignment from W. M. Johnson is of all his property, personal and real, not exempt by law from attachment, for the benefit of all his creditors in proportion to their respective claims. The appraised value of said property is about $11,500. Said assignment was made April 21st, 1870.”
Upon this answer the court below found “that said assignment was fraudulent and void as against the rights ■of said plaintiff,” and ordered and adjudged that said Case pay said judgment. No copy of the assignment is given with the answers of the garnishee. If the evidence submitted to the court below showed that said assignment was void for any reason, then of course the judgment or rather order of the court below was correct; but if it did not so show, then the order war erroneous. There does not. seem to have been any evidence submitted to the court below except the said answers of the said garnishee. In fact, under the statutes no other evidence could be submitted except by consent of parties: (Civil code, Gen. Stat., 728, §503; id., 669, §215; id., 670, §218; Drake on Attachment, § 659, and cases there cited.) The ■only remedy of the plaintiff, if the garnishee failed to answer, or if his answers were not satisfactory, was to sne the garnishee; (civil code, § 219.) His remedy was not to introduce other evidence than that of the garnishee to show that the garnishee had property of or was owing the judgment-debtor; but it was to commence an original and independent action. For these reasons, if reasons were necessary, we cannot presume, against the record, that any evidence except the answers of the garnishee was heard or examined by the court below. We think the court below erred. An assignment of property for the benefit of creditors is not necessarily and per se void. (Gen. Stat., ch. 6,p. 94, et seq.) And there is nothing in the answers of said garnishee that shows that said assignment is void.
It seems scarcely necessary for us to say, that property held by an assignee, under a valid assignment for the benefit of creditors, is not subject to attachment or garnishment for the assignor’s debts.
We take no notice of “Exhibit B,” appended to the record, but which does not seem to form any part of the record. It purports to be a copy of a deed of assignment from W. M.-Johnson and wife to Nelson Case; but it is-not in any manner authenticated, and does not seem to form any part of the case.
The judgment and order of the court below against Nelson Case, garnishee, is reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
A temporary injunction .was granted by the judge of the court below, to restrain the plaintiffs in error, as Treasurer and Sheriff of Saline county, from collecting certain taxes, assessed and levied against the defendant in error. The plaintiffs in error claim that the order granting the temporary injunction was erroneous, and they desire to have it reversed by this court. The said temporary injunction was granted upon the theory that the said taxes were illegal and void. It is claimed by the defendant' in error that the taxes are illegal and void because the assessment upon which they are founded was illegal and void. The irregularity in the assessment that they complain of, is, that a deputy county clerk of Saline county, and not the county clerk thereof, acted as one of the “ board of appraisers and assessors,” to assess the property of the Railway Company.
Section 2, .of ch. 124 of the laws of 1869, (p. 245,) provides, “ That the county clerks of the several counties in this State, in which any railroad now has or hereafter may have its track and roadway, or any part thereof, shall constitute a board of appraisers and assessors for the property of such railroad company.” Under this act, all railroad property is to be assessed by county clerks, and the act nowhere provides that the assessment may be made by deputy county clerks. Hence the defendant in error claims that said assessment was void.
Section 41 of the act relating to counties and county officers, however, (Gen. Stat., 263,) provides that “Every county clerk shall appoint a deputy in writing, under his hand, and shall file such appointment in his office; and sirch deputy, in case of the absence or disability of such clerk, or in case of a vacancy in his office, shall perform all the duties of such clerk during such absence, or until such vacancy shall be filled.” This language seems too plain to need any judicial construction. It authorizes deputy county clerks to perform all the duties of county clerks, and it makes no difference what those duties may be called, whether ministerial, discretionary, or judicial. A county clerk in this State is not merely a “ clerk,” as the name would seem to indicate, but he is also substantially the auditor of the county; (Gen. Stat., 264, §§50 to 69;) and the assessor of the county for all property that may be omitted by the regular assessor; (Gen. Stat., 266, § 53; see also Gen. Stat., 1041, § 65;) and he may administer oaths and affirmations, and take acknowledgments of deeds, mortgages, etc.; (Gen. Stat., 267, §60;) and all these powers and duties were conferred upon him by the same act of the legislature which authorized him to appoint a deputy. The logic is irresistible, that when the legislature authorized the deputy county clerk to perform all the duties of the county clerk, they meant, at least, that he should perform all the duties of the county clerk which they had expressly enumerated in the same act by which they conferred upon the deputy county clerk such' authority. If such be true, then as the deputy county clerk is authorized to act as assessor in the place of the county clerk in assessing property that has been omitted by the regular assessor, by what system of reasoning can it be claimed that the deputy county clerk has no power to act as assessor in the place of the county clerk in assessing railroad property ? The principal, if not the only reason, given why the deputy county clerk cannot so act is, that the assessment of property is not a ministerial act, and therefore that it cannot be performed by a deputy. It is even claimed that the assessment of property is a judicial act. Authorities have been cited to show that none but a ministerial officer can appoint a deputy unless specifically authorized so to do by statute. But no authority has been cited, and none can be cited, to show that an officer, other than a ministerial officer, cannot appoint a deputy if authorized so to do by statute. (Com. Big., Officer, B, 1 and 2: Bac. Abr., Offices and Officers, L.) Even a judicial officer, if the constitution and the statutes should authorize the same, could appoint a deputy. But whether this is so or not is of but little consequence so far as this case is concerned; for we have already decided, and we think correctly, that an assessor is not a judicial officer, and the assessment of property is not, in any just sense, under our constitution, the exercise of judicial power. (Auditor v. Atchison, T. & S. Fe R. R. Co.. 6 Kas., 500.) It is true that it is the exercise of judgment and discretion; but it requires more than this to constitute it the exercise of judicial power.
Almost every officer of every kind must exercise some judgment and some discretion, but that alone does not make him a judicial officer. The exercise of judgment and discretion is not peculiarly and exclusively the province of the judiciary, but it is also in an eminent degree the province of the executive and legislative branches of the government. Every appraiser of, the property of a decedent’s estate; of real estate taken in execution, or attachment; of real estate in an action of partition; of school lands, or of strays, must exercise the same amount and kind of judgment and discretion that an assessor does when he assesses the same kind of property for taxation ; and yet no person ever thought of calling such an appraiser a judge or a court; and no ope ever supposed that such an appraiser was exercising the functions of a judicial tribunal. If such appraisers do exercise judicial functions, then of course they must be courts, or judges of courts, for under our constitution, all the judicial power of the State is vested in courts. (Art. 3, §1.) We have no doubt but that a deputy county clerk may perform any act that a county clerk can in the absence or disability of the county clerk; and therefore,’ we think the assessment of the said property of the said railroad company was legal and valid.
A question concerning the constitutionality of the act under which said assessment was made, also arises incidentally in this case; but as the counsel for the defendant in error does not desire to raise that question in this case, and as it has been raised and discussed in another case now before us, (The Mo. River Ft. Scott & Gulf Railroad Co. v. Morris and Wheaton,) we shall reserve any comments that we may desire to make upon that question, until we come to consider said case. It may, however, not be out of place here to say, that we believe the said act to be constitutional, so far as it affects any question arising in this case.
The order of the j udge of the court below, granting the temporary injunction, must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The first question for us to consider isr whether Burton has any just cause for complaining of the action of the court below. We are unable to-discover any such cause. Ko judgment was-rendered against him, although the findings of the jury, as far as they went, were against him; and: he has no ground for claiming a judgment in his favor.. He moved for a new trial and the court granted his motion; and why he should now come to this court •complaining, we cannot imagine.
II. The next question is, whether Shoemaker has any •cause for complaint. He claims that the court helow ought also to have granted him a new trial, first, because the special findings of the jury were not sufficient to sustain the judgment; second, because the special findings of the jury were not sustained by sufficient evidence; third, because the court erred in the instructions to the jury; fourth, because the court erred in the admission of testimony.
First: Are the special findings of the jury sufficient to sustain the judgment of the court below ? We think they are. It is true that they d© not of themselves contain all the iacts necessary to sustain the Judgment; hut the essential facts not found by the jury are admitted by the pleadings. If a jury, in any case, find specially all the facts put in issue by the pleadings, their findings form, as we think, a good special verdict. (Gen. Stat., 684, § 285.) For what purpose should the jury to find facts which are not put in issue by the pleadings ? and upon what evidence would they find them ? •Gould evidence be introduced to prove facts, not in issue in the case? And if the jury should find such facts without evidence, would not their verdict be set aside because •not sustained by sufficient evidence ? Could a verdict of a jury, general or special, be anything else except a finding or a decision of the jury upon some issue or issues presented to them ? If the jury were required to reiterate what the parties had agreed upon in their pleadings it would be a misuse of language to call such reiteration a “ verdict.” It is our opinion that it is not necessary nor proper that a special verdict should contain facts ad mitted by the pleadings. (Barto v. Himrod, 8 N. Y., 483, 485; 7 Abbott’s Pr., 90.) In this ease both parties admitted by tbeir pleadings that Charles M. Boyd was originally the owner of the' lots in controversy; and both-parties, by their pleadings, claim to hold under him, and therefore it was not necessary for either party to go-beyond him to prove their title. (9 Iowa, 554; 16 Iowa, 10; 27 Iowa, 374; 33 Mo., 249; 2 Greenl. Ev., § 307; Tyler on Eject., 700.) The plaintiff claims that she succeeded to the rights of Charles M. Boyd by virtue of his death without issue, and she being his widow; the defendant Shoemaker claims that he succeeded to Charles M. Boyd’s rights, or rather to his right of possession, by-virtue of being the tenant of John P. Boyd, and by virtue-pf the deed alleged to have been executed by Charles M. and the plaintiff to John JR. Boyd. The issues for the jury to try were, who did succeed to the rights of Charles M. Boyd ? The jury tried these issues and found a special verdict upon them. They found that Charles M. Boyd was dead; that he died without issue; that the plaintiff." was his widow; that she never signed said deed, and that" the deed was never delivered by her husband to John E. Boyd. Hence, under the statutes of Kansas the plaintiff" became and was the absolute owner of the said lots, and was therefore entitled to the judgment that was rendered: Comp. Laws, 698, §8; (Gen. Stat., 394, §20.) No question has been raised in this court or elsewhere, whether • the jury should not have found whether said Charles M. Boyd, in his life executed a will or not. Such a finding-would have been proper; but as the burden of proving-that a will had been executed, if such was the fact, rested upon the defendant, and as he did not at any time claim nor offer to prove that such was the fact, we could not reverse the judgment for a want of such finding, even if the question had been specifically raised in this court. '{Gen. Stat., 655, § 140.) Although the judgment is against but one of the defendants, yet the verdict responds to both the pleas, and the findings are against both of the defendants. But if the findings did not go 'far enough ■with respect to Burton : suppose that the jury had found •the further fact, that Charles M. Boyd was the owner of the lots in fee-simple at the time of his death; then the -verdict would have been sufficient as against both of the defendants, for.all the other findings were against Burton, as well as against Shoemaker, and the judgment should •then have been against both. Under our statutes we suppose there can be no doubt, but that the court was authorized to render a judgment against one of the defendants, and leave the action to proceed against the -other. (Gen. Stat., 680, 704, §§ 268, 396.)
Second: Are the special findings of the jury sus-tained by sufficient evidence ? As the question comes to this court, we think they are. The evidence was con-flicting, but there was some evidence to sustain every finding, and there was no such preponderance of evidence against any finding as would warrant this court in reversing the judgment of the court below for that reason only: (5 Kas., 58, 82, 84, and cases there cited.)
Third: Bid the court err in its instructions to the jury ? The court submitted certain interrogatories to the jury, and the principal, if not the only objection to any portion of the charge urged in this court is the objection urged to that portion of the charge which instructed the jury with reference to the sixth interrogatory. We do not perceive any error in the instruction sufficient to reverse the j udgment of the court below. The instruction that “the instrument under which the defendants ffiaim title cannot be set up as a deed of gift,” was cor reet; and although it may have been an abstract proposition of law, without application to this case, and therefore error to give it, yet we cannot see how it misled the jury; and if it did not mislead the jury then the defendant has no reason to complain. If it is true, as stated in the brief of counsel for the defendants below, that “ the parties to the action did not set up or claim, or attempt to show from the evidence that the deed to John R. Boyd was a deed of gift,” then the instruction was unnecessary. Sometimes however the argument of counsel makes an instruction necessary that would not otherwise be necessary.
The instruction that “ to constitute a delivery so as to make the paper offered in evidence by the defendants, dated 14th May, 1867, operate as a deed, Charles M. Boyd must have parted with all control over it for the purpose, and with the intent that John R. Boyd should take under it,” was the correct rule of law for this case. The counsel for defendants below ■claim that this instruction goes too far, that it is not necessary to constitute a sufficient delivery of a deed that the grantor should part with all control over it. But such is the general rule; and if there are any exceptions this case certainly does not fall within them. The grantor must have parted with all control over the deed in this ■case, or else it was not delivered at all. If the evidence of the defendants below was true, the grantor did part with all control over the deed; and if it was not true, he did not deliver the deed at all. There was no evidence •offered or given that tended to prove that he both delivered the deed, and at the same time continued to retain any control over it. But the jury must have found that the evidence of the defendants tending to show a delivery, was not true. If there was a mistake anywhere it must. have been with the jury, and not with the charge of the court.
The instruction that “ if the deed was in the possession of Charles M. Boyd at the time of his death, the presumption is that it never was delivered; and un]ess the defendants show by a preponderance of the evidence that it was delivered to John R. Boyd, the jury must answer this interrogatory in the negativ’e,”' is not, if construed properly an erroneous statement of the law. It is true, that a construction may be put upon this instruction which would render it erroneous; but such construction, taking the whole charge together, would be a forced construction, and not the proper one to give to it. The court did not mean to say that if the deed was found in the possession of Charles M. Boyd, at the date of his death, the presumption would be, notwithstanding the other evidence, that the deed was never delivered ; but the court simply intended to say, that if the-deed was found in the possession of Charles M. Boyd, at the date of his death, the presumption would be, aside-from, or in the absence of,.other evidence, that the deed was never delivered; and this we think was a correct statement of the law. The burden of proving the delivery of a deed always rests upon the party claiming that it was delivered, and -never upon the other party. In the case at bar the burden of proving that the deed from Charles M. Boyd to his brother J ohn R. was delivered to said John R. Boyd, rested upon the defendants, and not upon the plaintiff; and it devolved upon the defendants to prove this fact by at least a preponderance of the evidence. ~We know of no exception to this rule. It is possible that in some cases a bare preponderance of the evidence is not sufficient to prove a fact; but we know of no case where less than a preponderance is sufficient. Proof that the deed was executed, and that it remained in the possession of the grantor, was no evidence that the deed had ever been delivered; but on the contrary, it was some evidence that the deed had not been delivered. The authorities referred to by counsel for the defendants below, have no application to this deed. Where the evidence shows that an instrument in writing was executed by both parties, and that it remained in the possession of one of the parties, the jury may, in some eases, from such evidence, find that the instrument was delivered; and where the evidence shows that an instrument was executed by one of the parties only, and that the maker of the instrument acknowledged on the face of the same, and before subscribing witnesses, that he “ signed, sealed and delivered” the same, the jury maybe allowed to find, that the instrument was delivered. But the deed in this case was executed by one of the parties, the grantor only, and there was no acknowledgment upon its face that it had ever been delivered, and therefore, aside from' other evidence, we think it would have been error to allow the jury to find that the deed was delivered.
The instruction that “ the relationship existing between Charles M. Boyd and John It. Boyd is a circumstance the jury may consider; and if Charles M. Boyd remained m possession of the property from the date of the alleged sale to his death, as before, exercising acts of ownership inconsistent with the alleged sale, it is a circumstance the jury have a right to consider, in determining whether or not there was a sale as claimed by the defendants,” was not erroneous. The court did not comment upon the facts further than it had a right to do, and it instructed the jury that they were the exclusive j udges of the facts.
Fourth: John R. Boyd testified that he paid $1,800 for the said lots. The plaintiff then introduced evidence to show that said John R. Boyd was a man of very limited means, and that he had not that much money or property. The defendants then introduced *• x ** the testimony of John R. Boyd, and another witneBSBj to prove that the income of John R. Boyd was probably about $500.00 per month. The plaintiff then introduced the books of the United States Assessor and Collector to prove what the amount of his income, on which he was assessed and paid taxes, was. The defendants excepted to this evidence. We think the court did not err in admitting it. It tended to prove the amount of John R. Boyd’s income, although in fact it may have been weak evidence. But if it did not show the full amount of his income, it was probably principally his own fault; and the defendants hold under him. But we think the evidence would be good evidence'anywhere as tending to prove the amount of Boyd’s income.
We do not think it necessary to notice any of the other questions attempted to be raised in this case. We have found no error in the case that affects the substantial rights of the defendants below, an.d therefore the judgment of the court below must be affirmed.
Kingman, C. J., concurring.
Brewer, J., did not sit in the case. | [
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The opinion of the court was delivered by.
Brewer, J.:
This is an original proceeding in this court, brought by the relator to compel the approval of a bond filed by him under section two of the act providing for contesting the location of county-seats, (ch. 27, laws of 1869,) and also the publication and the giving of notice to the district judge, provided in section three of said act. The relator is an elector of Ottawa county. The defendants are respectively clerk and deputy clerk of the district court of said county. The vote concerning the removal of the county-seat was held on May 21st, 1870 ; the result declared by the county commissioners, JMay 28th, 1870.
Two bonds were filed by the relator, one dated May 28th, and the other June 2d, 1870. Both bonds were filed, but neither was approved. The sufficiency of the one dated June 2d, 1870, in matter of form, has been heretofore determined by this court, on a motion to set aside and quash the alternative writ issued herein. The sufficiency of the sureties remains to be decided. Upon that point we have proof of the admissions of respondents, that the reason for refusing to approve, was, a supposed defect in the form of the bonds; and the testimony of one witness concerning the actual pecuniary condition of the sureties; and from this we are satisfied of their sufficiency. Several defenses are set up in the answer filed herein, but no proof was offered in support of them by respondents. The peremptory writ must issue.
All the Justices concurring. | [
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By the Court:
Brewer, J.,
having heard the case in the court below, and therefore not sitting in the case in this court, and the other two Justices being divided in opinion, (King-man, C. J., holding that the judgment of the court below should be affirmed, and Valentine, J., holding that it should be reversed,) the order of the court below, dismissing the appeal, is therefore affirmed.
— The following opinion in favor of reversing the order dismissing the appeal, was filed by
Valentine, J.:
The plaintiff’s appeal was regular in every respect, except that the appellant gave “ no notice in writing” of the appeal, as required by Rule 15, to the defendant. This rule is not an act of the legislature, nor a rule of the district court; but it is a rule of the -Supreme Court, adopted by the Supreme Court at the January Term, 1885, for the government of the district courts. (2 Has., xii.)
The first question is, whether the Supreme Court had any power to adopt any such rule ? In this country it is universally acknowledged and insisted upon, that the people are the original source and fountain of all civil and political power; that neither the whole government, nor any department thereof, possesses any inherent power; that the people are sovereign, and the different departments of the government are simply agencies, through 'which the people exercise that sovereignty; and that all the power that can be exercised by any department of the government is merely delegated power which it derives from the people. The State government derives its powers from the people solely by virtue of the State-Constitution. This constitution is the letter of attorney or chart of authority from the people to the government and to the different departments thereof. Hence, in order to ascertain what power is delegated to the government, and to each of its departments, we must look to the constitution itself.
The delegated power of the government is divided into three great branches, the legislative, the judicial, and the executive; and these three branches include all the delegated power of the government. What is not delegated, remains with the people: § 20, Bill of Bights. The legislative power is delegated to the legislature; (§1, Art. 2, Const.;) the judicial power to the judiciary; (§ 1, Art. 3, Const.;) and the executive power to the executive officers of the government; (§§1, 3, Art. 1, Const.) Under this grant of power it seems to be well settled that it is the peculiar province of the legislature to make the laws, of the judiciary to construe and expound them, and of the executive to execute and enforce them. Wayman v. Southard, 10 Wheaton, 46; Greenough v. Greenough, 11 Penn., 494; Martin v. Hunter’s Lessee, 1 Wheaton, 304, 327 to 333; Bates v. Kimball, 2 D. Chipman, (Vt.,) 81, 88; Dash v. Vankleck, 7 Johns., 498, 508; Fletcher v. Peck, 6 Cranch, 136; Merrill v. Scherburne, 1 N. H., 203, 204; State of Penn. v. Wheeling, 18 Howard, 440; Osborne v. Bank, 9 Wheaton, 866; Cooley on Const. Law, 90; Blackw. on Tax Titles, 9, 10, 15.
The great weight of authority seems to be that these three great powers or branches of power of government —the legislative, the judicial, and the executive — are distinct and separate from each other: (11 Penn., 494; De Chastellux v. Fairchild, 15 Penn., 20; 2 D. Chipman, 87, 89; 1 N. H., 204; 18 How., 440; 16 Pet., 60, 61; Blackw. on Tax Titles, 16, 17;) that they include all the delegated power of the State; (§ 20, Bill of Bights;) and that each is delegated to its appropriate department, and can be exercised by no other department: (See authorities above cited, and Taylor v. Place, 4 R. I., 354; People v. Draper, 15 N. Y., 543; Taylor v. Porter, 4 Hill, 144.) This latter proposition must be understood as subject to the exceptions expressly enumerated in the constitution, such as the trial of impeachments, etc. When the people said in the language of the constitution, (§ 1, Art. 2,) that “ The legislative power of the State shall be vested in a House of Representatives and Senate,” they meant all the legislative power. If they did not, how much less did they mean ? And did any of it go to the Supreme Court ?
These three powers having each once been delegated by the people of the State to their respective departments, cannot again be delegated, but each Inust be exercised by the department to which it properly belongs. Delegata potestas non potest delegari. Bradley v. Baxter, 15 Barb., 122; Thorne v. Cramer, 15 id., 112; Barto v. Himrod, 8 N. Y., 483; Parker v. Commonwealth, 6 Penn. St., 507; Maize v. The State, 4 Ind., 343; Wayman v. Southard, 10 Wheaton, 1, 42 : U. S. Bank v. Halstead, 10 id., 51; C. W. § Z. R. R. Co. v. Com’rs Clinton Co., 1 Ohio St., 87; Rice v. Foster, 4 Harr., 479; Santo v. The State, 2 Iowa, 165, 203; Geebrick v. The State, 5 Iowa, 491.
While the legislature possess all the legislative power of the State, and while it is true that they cannot delegate any portion of that power to any other body, tribunal, or person, yet it is generally found impracticable for them to exercise this power in detail. They may •do so if they choose, or- they may enact general provisions and leave those who are to act under these general provisions to use their discretion in filling up the details. They may mark oat the great outlines, and leave those who are to act within these outlines to use their discretion in carrying out the minor regulations. But even in this respect it is thought by Chief Justice Marshall that there is a limit to the power of the legislature. (10 Wheaton, 43.) For instance, the legislature may enact general provisions for the district court, and allow the district court to use its discretion in filling up the details; or they may enact general provisions for the governor and allow Mm to use Ms dicretion in filling up the details; but they cannot enact general provisions for the district courts, or the governor, and authorize the supreme court or any other body or person except the district courts and the governor respectively to fill up the details. The legislature cannot authorize any person to fill up details in an act under which such person will never be called upon to act. ■ Nor can they authorize any person to fill up details in any case in which they do not themselves expressly enact all the outlines. If they should attempt any legislation of this kind it would be an attempt to delegate legislative power to others, a thing which they cannot do. If the legislature should confer upon the district court some particular jurisdiction, for instance jurisdiction in quo warranto, and should provide that the trial should be by-jury, but should make no provision for drawing, summoning, or empanneling the jury, this omission would not deprive the court of such jurisdiction which is expressly given; but the court would have a discretion in drawing, summoning and empanneling the jury: (5 Has., 222, 223;) and would probably have power to adopt rules regulating such discretion; but the supreme court could have no power in such a case, to prescribe rules regulating ' the discretion of the district court. Whenever the legislature have occupied the whole ground themselves, and supplied all the details as well as all the outlines, the courts, or others acting under such laws, have no room for the exercise of any discretionary power, but are confined within the strict letter of the law. And in such cases it will hardly be contended that courts have any authority to make rules even for their own courts, Parties to an action may in such cases claim as a matter of strict right just what the law gives them, and courts are bound to give it to them. Whenever the law prescribes just what shall be done in a certain case, and the courts, by a rule, say that such thing shall not be done, or that something different shall be done, they attempt, by a rule, to repeal the law and to make a law themselves. It will hardly be claimed that where the court cannot dispense with the law in a single case, that it can, by a rule, dispense with the law in all such cases.
With reference to the case at bar, the legislature have enacted that a party shall have a good appeal if he file his appeal bond with the justice within ten days after the judgment is rendered, and file his transcript in the district court on or before the second day of the next term thereafter; (Comp. Laws of 2862, p. 634, §§ 203-, 204, 205, 206;) and the district court has no discretion in the matter. It must'simply obey the law. The legislature have chosen tó occupy and cover the whole ground themselves, and to enact all the details as to how a party shall obtain a good appeal; and the party appealing, if he comply with the law, has a right to be heard, and the district court has no right, either with or without a rule, to say that he shall not be heard. The district court cannot by a rule repeal the law, nor enact another and more stringent law upon the same subject; and much less can the supreme court do so for the district court.
In any case it is only where the courts are clothed with discretionary powers, that they may make rules; and then probably only in a few cases, and for their own courts; for it may well be asked, if the legislature in its wisdom, and for the purpose that justice may be the better and more surely done, clothe the courts with certain discretionary powers, by what right can the courts by a rule limit that discretion, and thereby defeat the will of the legislature ? It certainly cannot be done where the legislature intend that the courts shall exercise their discretion upon the circumstances of each particular case, in contradistinction to a general discretion for all cases; for if the courts say that they will not so exercise their discretion, but will decide all cases alike, notwithstanding the differences of the circumstances, they virtually repeal and abrogate the law, and defeat the will and intention of the legislature, which is the soul and spirit of the law. Courts may in some eases exercise a degree of judicial discretion in the granting or refusing of a new trial; but has any body-ever supposed that they could therefore make new rules for the granting or refusing of new trials ? The reason is, that in such .cases, the courts are required to exercise their discretion upon the circumstances of each particular case. Courts can probably never make rules except where they are clothed with a general discretion for all cases, in contradistinction to a special or particular discretion for each particular case; for instance, a court may by a rule, (where the statute is silent) fix an hour for meeting each day; or may set apart a certain hour each day, or a certain day each week, for the hearing of motions and interlocutory matters; or may fix certain days for trials by the-court, and trials by jury, and trials of criminal cases, and trials of civil eases. But in all cases the rules of the court must be so liberal that the enforcement of them in any case will never operate as an abuse of judicial discretion., And in any ease the power of the court to make rules is rather to be tolerated than encouraged. In any case the making of rules by a court even, (in the language of Justice McLean, 16 Peters, 60,) “ in the use of a discretion essential to its existence,” is not a judicial act, but is an act that borders very closely upon legislation. To declare what the law is or was, belongs to the judiciary, but to declare what it shall be in the future belongs to the legislature. The judicial power of the State acts upon past conduct and declares what the law was at the time of the happening of the act complained of; the legislative power of the State prescribes the rule by which human conduct shall be governed in the future.
Courts can never in any manner make laws; neither by making rules for the government of future actions, nor by adjudications upon past actions or past conduct. u The judicial department has no will in any case. J udicial power contradistinguished from tbe power of the laws has no existence. Courts are the mere instruments of the laws, and can will nothing. When they are said to exercise a discretion it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; but always for the purpose of giving effect to the will of the legislature; or in other words to the will of the law.” (Per Marshall, C. J., in Osborne v. U. S. Bank, 9 Wheaton, 866.) “ In the ordinary use of language, it will hardly be contended that the decisions of the courts constitute laws. They are at most only the evidence of what the laws are, and are not themselves laws. They are often reexamined, revised, and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a State are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws.” (Per Story, J., in Swift v. Tyson, 16 Peters, 1, 18.)
Courts as judicial tribunals can never act at all, not even judicially, except when called upon to do so by a forty in some judicial proceeding. They can act only in the decision of cases or in the decision of questions connected with or arising in a case, and then there must be parties plaintiff and defendant. (State of Penn. v. Wheeling & Bel. Br. Co., 18 How., 440; Osborne v. U. S. Bank, 9 Wheaton, 819.) A farie proceedings, and proceedings for contempt of court, are apparent but not real exceptions to the last proposition. While courts are limited /. in their power to make rules for themselves, they can never make rules for other courts. It is true that courts have not always observed this principle. It is true that courts have in rare cases attempted to adopt rules for other courts. But this fact militates but very littlé against the truth of the principle. The principle has been seldom violated. And when courts attempt to make rules they very naturally act very much as the legislature does under like circumstances. They consider more what law or rule ought to be made than their power to make it.
But returning to the subject. If the legislature says that the district courts shall in certain cases be clothed with certain discretionary power, where does the supreme court get their authority to say that the district court shall not be clothed with such discretionary power by making rules limiting that discretion ? It is not in the nature of things for one court to exercise discretion for another court; and if it cannot, who will say that it can, as a judicial act or otherwise, make rules limiting or regulating the discretion of another, court ? An attempt to do so is an attempt to legislate. It is claimed however that the legislature have authorized the supreme court to make rules for the district court; but this the legislature could not do if they would. The making of rules is not a subject of judicial power, as has already been shown; and the legislature cannot bring under the judicial power a matter which from its nature is not a subject for judicial determination. (Murray v. Hoboken Land Imp. Co., 18 How., 284; Auditor of State v. A., T. and S. Fe R. R. Co., 6 Kas., 500.) The said power to make rules is a legislative power, that has been once delegated by the people to the legislature, and cannot therefore be again delegated.- The legislature could just as well confer power upon the governer, or upon a special commissioner, pr upon any justice of the peace of the State, to make rules for the district court, as to confer such power upon the supreme court. The statute under which it is claimed that the legislature have conferred the power upon the supreme court to make rules for the district courts reads as follows:
“ Sec. 612. The judges of the supreme court shall during the mouth of the first June after this code shall take effect, and every two years thereafter, meet at the capitol of the Territory [State,] and revise their general rules, and make such amendments thei’eto as may be required to carry into effect the provisions of this code; and shall make such further rules consistent therewith as they may deem proper. The rules so made shall apply to the supreme court, the district courts, and the probate courts.” Comp. Laws, 1862, p. 230.
It may well be doubted whether this section confers upon the supreme court the power that it is claimed that it does. It would be just as reasonable a construction of this section, to say that it simply confers power upon the judges of the supreme court, to make rules for their own court only, and such rules only as will apply to their own court, leaving the latter part of the section to make such rules applicable to the district courts and probate courts, if -in their nature they can be made applicable to such courts. For instance: If there were appeals coming from justices of the peace and other courts to the supreme court, in the same manner as appeals from justices of the peace to the district courts, then the supreme court, under the first part of the section, could make rules with reference to appeals for its own court, and the latter part of the section would make such rules apply to the district courts also. This construction-however, would hardly make the section itself constitutional or valid: (Wayman v. Southard, 10 Wheaton, 47, 48, 49, 50.) Rule 15 is not made for the supreme court at all, and can have no application to either the supreme court or probate courts, as the latter part of said section provides. It is a rule made for the district court alone. If said section 612 can be construed so as to authorize the supreme court to make rules of any kind for the district court, yet it certainly cannot be construed to authorize any such rule as this. The legislature had themselves already covered the entire ground with reference to appeals. "They had left no discretion in the courts. They had already said what should constitute a good appeal, and no court in the State could say otherwise.
If said section will bear the construction claimed for it, then so far as it affects the district courts it was repealed by implication long before said Rule 15 was adopted. Said section was passed by the Territorial legislature in 1859, and was enacted for the old Territorial Supreme Court and District Courts, both of which had gone out of existence long prior to the time that this rule was adopted. When the State was admitted into the Union, the State Courts were organized with new powers and new jurisdiction. Said section however, was kept in force so far as it did not conflict with the State Constitution, and the laws made thereunder. The first State legislature passed an act entitled “ an act to organize and define the jurisdiction of the Supreme Court,” approved May 21st, 1861. This act provided that “the Supreme Court shall have power to prescribe rules,” for their own court of course, “ and change the same and provide for their publication,” (§ 2, ch. 66, Comp. Laws, 460,) without giving to the supreme court any power whatever to make rules for the district courts, and without making the supreme court rules applicable to the district courts. The same legislature in organizing the State district courts gave the paramount and exclusive authority to the district courts to make their own rules in. the following language: “ The said distinct courts shall have full “power to classify and distribute business therein, as may “ be necessary; to make rules and regulations for the practice therein, until otherwise provided by law,” etc., (Sec. 2, ch. 68, Comp. Laws, 464.) This act was approved April 24th, 1861. It will be seen from these two-acts that the legislature never intended to give to the supreme court of the State, the power claimed for it, or the power that may possibly have been given to the supreme court of the Territory.
The substance of Rule 15 was to require that the parties should on appeals from justices of the peace, file new pleadings in the district court, and to fix the time when such pleadings should be filed. Before said Rule T5was adopted, it was generally believed by the bench and bar of the State that the law did not require that new pleadings should be filed in the district court, although it seems from the decision in the case of Tarleston v. Brily, 3 Kas., 433, that they were mistaken. The “ notice” was required to be given so that the appellee would know when to file his pleading. No other sufficient or adequate-reason can be given for requiring the notice. After said Rule 15 was adopted by the supreme court the legisla ture repealed the substance of the rule by enacting that “ No petition, answer, or other pleading, shall be neees- “ sary in the district court in cases of appeal from justices “ of the peace, when the amount in controversy is lesa “ than one hundred dollars.” (§ 9, ch. 47, Laws of 1867, p. 78.) The amount in controversy in this case was less than one hundred dollars; and when said rule was adopted justices of the peace did not have jurisdiction in cases where the amount in controversy exceeded one hundred dollars. When by the action of the legislature, the reason and grounds which gave rise to the rule were removed, the rule itself of course ceased to operate. Gessante ratione legis cessat, ei ipsa lex. (Contra, Robitaille v. Furguson, 4 Kas., 556.) The construction given to this-rule in the court below was a very strict and rigid • construction. A rule of the court at best is not a law. A rule must always be liberally construed, so as to promote justice, and never strictly or rigidly construed so as to-defeat justice. A rule is not to be inflexibly adhered to-like a law, nor is it entitled to the same respect by the courts. If in any case the operation or the enforcement, of a rule should work injustice, its operation for that case-must be l. ..upended. Besides, the notice required by this' rule is not for the purpose of giving the court jurisdiction, for the court on an appeal has aB complete jurisdiction over both the parties and the subject matter of the action, and as ample authority to hear and determine the case without the notice as with. (3 Kas., 436; 5 Kas., 277.) The notice is only for the purpose of giving actual notice to the appellee of a fact of which the law conclusively presumes that he already has constructive notice. Failure to comply with the rule in this respect should therefore not be governed by the rigid and inflexible rules relating to summonses, and to notices which, are required for the purpose of giving the court jurisdiction. When the appellee made a general appearance in this ease in the court below, and consented to a continuance of the case, he waived the notice. The court could then see that the appellee not only had constructive notice of the appeal, but he also had actual notice thereof. He had a 11 that this over-precautionary rule required that he should have. Even if this rule had been established by law, and even if the notice required by it were necessary to give the court jurisdiction of the case, still the appearance of the defendant in the court below was a waiver of the notice, and would have given the court jurisdiction to hear.and determine the case. The appeal should not have been dismissed, and the judgment of the court below ought therefore to be reversed. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant in error, Frederick GL Wolff, and one Joseph Kellam, bet two hundred dollars each on a horse-race, each betting on his own horse, and deposited the money with the plaintiff in error, James S.. Cleveland, as a stakeholder. The horses were to run five heats, but before the last heat was run, and before it was determined which of the parties had won, or would win, the said Wolff became dissatisfied, refused to let his-horse run the last heat, demanded of the said stakeholder his part of the said money, and notified him not to pay it to any one else. The last heat was run by Kellam’shorse alone; Kellam was declared to be the winner, and the stakeholder paid all the money over to Kellam. Wolff’ then sued the stakeholder for the money he had deposited with him.
The only question that has been raised in this court,, or that was raised in the court below, is, whether the stakeholder is liable. At common law, all betting or wagering contracts, which affected injuriously the interests, feelings, or character of third persons, or led to indecent evidence, or were contrary to public policy, or tended to immorality, or a breach of some law, were held to be void; and such is now the law. Formerly, in England, it was supposed that a great proportion of the wagering contracts were not subject to any of said objections, and were therefore not void, but valid. Such is not the case in this country, and at the present day. Now, as a rule, all betting or wagering contracts are considered as inconsistent with the interests of society, at variance with the laws of morality, against public policy 7 and therefore void. The contract between the parties to •the wager being void, the stakeholder is held to be the mere agent or bailee of the respective parties, and he holds the money deposited with him subject to their •orders. If his authority be not revoked, he may pay it over to the winner without rendering himself liable to an action; but if his authority be revoked by either party before he pays the money over to the winner, he must then ■return the money to the parties respectively who deposited it with him, and he cannot pay it to any one else' Under the decisions of adjudicated cases, it seems that the stakeholder is not held to be in pari delicto with the ¡persons who are the parties to the wagering contract. He does not share in their guilt. That portion of the transaction with which he is connected is innocent; or at most, it is not in violation of any statute, and if in contravention of public policy or morality at all, it is so slightly so that in a suit like this, the rule that the law will leave all who share in the guilt of an illegal or immoral transaction where it finds them, has no application-The betting is wrong, but the depositing the money in ■the hands of an agent or bailee, to be paid out by him in accordance with the instructions of the depositors, seems do be an innocent transaction. Were it otherwise, another rule might prevail. Were it illegal to deposit -the money, then the rule applied in the case of Dolson v. Hope, (ante, p. 161,) that “courts cannot become auxiliary to the consummation of violations of the law,” and the rule applied in some of the cases referred to by counsel for plaintiff in error, would have some application in this case. (But see Jennings v. Reynolds, 4 Kas., 110, and Comp. Laws, 335, § 242.)
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin brought by defendant in error to recover the possession of two hogs. The petition alleges ownership and right to possession in plaintiff, and wrongful detention by defendant. The answer, containing no denial, alleges a seizure and taking-up under the stray law. A demurrer to the answer was sustained, and no amendment being asked, judgment was rendered in favor of the plaintiff for possession, and one cent damages. To reverse that judgment this proceeding in error is brought.
The answer alleges that the property was taken up by the defendant on the 8th of June, at 5 p. m., and taken from him on the 10th of June, by the writ of replevin herein. It alleges the performance by defendant of all the steps necessary to make a lawful “ taking up ” under said laws, except the giving of a bond as required by § 6, of ch. 105, (Gen. Stat., p. 1003,) and that the property was replevied without any demand. The question turns on fhe construction to be given to said § 6. Is a party taking up a stray required to give bond ? If so, when must he give it ? The statute, requires the person proposing to take up a stray to “ enter into bonds, with sufficient sureties to the State of Kansas, for the use of the owner, in double the value of the property.” The condition of the bond is not set forth. The language is plain, free from ambiguity, and requires a bond. "Whether that bond shall be an absolute obligation, or one with a condition which may be supposed to express the intention of the legislature, is a question upon which we express no opinion till the matter is fairly presented. The sufficiency of a bond is one question; tbe existence of one, another. Here no bond was given. We hold that the statute requires one. When must that bond be given? Section six reads as follows:
“Sec. 6. No person shall take up any horse, * * * swine, or other animal, under the provisions of this article, unless he be a citizen and householder, and enters into bonds, with sufficient sureties to the State of Kansas, for the use of the owner in double the value of the property proposed to be taken up, to be ascertained by the justice before whom the person wishes to post such stray, which bond shall be filed and preserved by such justice.”
A literal construction of this statute would seem to require the giving of the bond before the seizure of the stray. But such construction would practically nullify the statute. It seems to us the difficulty can be avoided by considering this section as prescribing the conditions upon which a party may avail himself of the provisions of this law, rather than as declaring the time at which those conditions must be performed. “ No person shall take up, * * * unless he be a citizen and householder.” That is, only citizens and householders can avail themselves of the provisions of this article. “ Unless he enter into bonds; ” that is, one condition is the giving of a bond. Against this view is the clause, “ in double the value of the property proposed to be taken up.” If these words, “ taken up,” refer simply to the manual seizure, as they do when used in other sections of this act, then there is great difficulty. But if they are used in a more enlarged sense, as referring to the completion of all the steps which the law imposes on the taker-up, then the difficulty ceases. In support of this last view is the fact that this section contemplates that the value of the property shall be ascertained by a justice of the peace, but fails to provide how such justice shall proceed to ascertain the value, while section nine requires the party, at the expiration of ten days, to go before á justice and institute proceedings which result in an ascertainment of the value. Is it not more reasonable to suppose that the legislature had in view this value, thus to be ascertained by prescribed proceedings before a justice, as the basis of the required bond, than that they contemplated another ascertainment of value, at a different time, perhaps by a different justice, and with no method of procedure prescribed? It seems to us this is the proper construction. It supports the statute, and renders it practical to comply with its requirements. The basis of the bond, then, being the value ascertained by the justice at the expiration of ten days from the seizure, the bond is not required until that time. The demurrer was improperly sustained, and the judgment of the court below must be reversed.
Kingman, C. J., concurring.
Valentine, J., dissenting. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The defendants in error, plaintiffs below, are the children and heirs-at-law of William S. Hart, who died in November, 1861. In October, -1861, Hart borrowed from the plaintiff in error, M'. B. Lyons, a land warrant belonging to his brother William Lyons, of Ohio, and located it upon a certain quarter section of lanc^ in the name of said William Lyons. It was borrowed to be replaced by another warrant in three loeeks, and if he did not replace it in three months, then the land was to .belong to William Lyons. M. B. Lyons was the agent of William as to the warrant; but it seems that M. B. Lyons had no authority to make such a disposition of the warrant, and that Hart was made aware of that fact when he borrowed it. The land was so entered in pursuance of an agreement between M. B. Lyons and Hart, and the certificate of location was delivered to M. B. Lyons, who retained it until after the expiration of three months after the location, and then transmitted it to William Lyons, in the State of Ohio. The legal title to the land remained in William Lyons until the 18th of July, 1866, and on that day he and his wife by deed of general warranty conveyed the land to M. B. Lyons. This conveyance was duly filed for record on the 21th of November, 1868. On the 7th of November, 1868, M. B. Lyons conveyed the land by deed of general warranty to plaintiff in error J ohn Clifton, which deed was filed for record on the 24th of November, 1868. Hart having died one month after he borrowed the warrant, and without replacing it, his family consisting of his widow and her children, the defendants in error, continued to reside on the land until the death of his widow in March, 1863. After the death of the widow, and until the 19th of March, 1866, the said land was occupied by tenants holding under contracts with the administrators of said Hart. Subsequently to the 19th of March, 1866, Amanda A. Bodenhamer, eldest daughter of said Hart, and her husband, and Henry H. Hart, son of Hart deceased, occupied said land and cultivated it up to the time when this action was decided in the court below, claiming it all the time as the children and heirs-at-law of William S. Hart deceased. The other defendants in error, Mary, John, and Elizabeth Hart, minor children of William S. Hart deceased, made said place their home, but not residing continuously thereon ; and the Bodenhamers and Henry H. Hart were living upon the land when Clifton bought it. On the 14th of March, 1863, M. B. Lyons was appointed administrator of the estate of William S. Hart, and joined in a lease of said land, after his appointment, whereby said land wa3 leased as land belonging to the estate; and while he was acting as the administrator he always treated the land as belonging to' the estate of William S. Hart, up to the 22d of June, 1867, at which time, and nearly a year subsequently to the deed from William Lyons to himself, in an account filed in the probate court of said county, in his settlement as administrator he charged said estate with the taxes on said lands paid by him for the years 1862,' 1863, 1864 and 1865, three of the receipts for which were taken in the nanle of Sarah Hart. One of the facts found by the court below was as follows: “ That John Clifton at the “time of his said purchase of said lands from M. B. “ Lyons, had constructive notice of the claim and title of “ Hárt’s heirs in and to the said lands; that he had “ actual knowledge of the residence thereon of said Wil- “ liam H. Bodenhamer; and that he had actual notice “ that the heirs of William S. Hart claimed some title “ and interest to and in said lands.” M. B. Lyons paid his brother $325 for the land, and Clifton paid M. B. Lyons $350 in hand, and gave his note for $450 more, for the land. The note was secured by mortgage on the land, which mortgage has never been recorded. The lands were worth $1,500 when Clifton purchased. Neither of the Lyons ever asked for another warrant in lieu of the one loaned to Hart. Neither of them ever" claimed rent, nor did they-ever notify the widow or heirs to leave the land, or make any effort to obtain possession. The land warrant'when loaned was worth $160. The case was tried by the court, and the foregoing is a brief synopsis of the findings of fact by the court. As conclusions of law the court found as follows:
“1st. That the plaintiffs herein, as the heirs-at-law of said William S. Hart deceased, are in equity the owners of said lands in the said petition of the plaintiffs set forth, and that said lands are charged with and subject to a lien and incumbrance of $325, and interest thereon at the rate of .seven per cent, per annum from the 18th of July, 1866, in favor of the holder of the legal title thereto.
“ 2d. That the said defendant John Clifton has the legal title to said lands; that he acquired the same with .notice of the plaintiffs’ equitable title thereto, and that he holds the same in trust for the said plaintiffs.
“ 3d. That the said legal title to the said lands ought to be conveyed to the said plaintiffs by the said defendant John Clifton, upon the payment to the said John Clifton by the said plaintiffs of the said sum $325, and interest as aforesaid.”
The district court gave judgment for the plaintiffs below, in accordance with said findings and conclusions of law; and this.court is asked to reverse the judgment and dismiss the petition.
Before entering upon the main questions involved in the record,' it becomes necessary to consider and settle two points made by the plaintiffs in error. Be* fore answering they made amotion to compel the plaintiffs to separately state and number their causes of action in the petition. This the court refused to do, and probably correctly; but no exception was taken to the ruling of the court, and therefore' if it was error it was waived. Again, the plaintiffs in error claim that their demurrer should have been sustained to the petition because there was a misjoinder of defendants in this, that "William Lyons was a necessary party, or, if not, then M. B. Lyons was an improper party. But an examination of the demurrer discloses the fact that the demurrer did. not make the misjoinder of parties defendant one of the grounds thereof; so that this alleged error does not really exist.
It is also claimed that' the finding of the court as to the notice to Clifton of the claim of Hart’s heirs, as above set forth, is not justified by the evidence. The ' ° v testimony on this point is embodied in the bill n . -i . _ or exceptions; ana it appears from the testi mony of Bodenhamer that while he was living upon the land, Clifton and his son came to look at the land and asked him if he wanted to sell it. Bodenhamer said, “ No, he had no right to sell as it belonged to Hart’s heirs.” This conversation was in September 1868, and before Clifton bought the land, and was on the premises which were then occupied by Bodenhamer as the husband of one of the heirs of Hart. The improvements made by Hart, his widow, and heirs, were visible. It is true, that Clifton, while admitting the visit to the premises denies any mention by Bodenhamer as to the title, or any claim of Hart’s heirs. If the issue rested here, we . should be compelled to uphold the finding of the court below, on well-known and firmly settled principles; but the fact does not rest on so well-balanced testimony alone. Bodenhamer and Clifton had other conversations after Clifton purchased. So far as Bodenhamer claimed the land for Hart’s heirs, in these conversations, it was no notice. But in one of these conversations, Bodenhamer, according to his own testimony, asked Clifton “ if Lyons, when he sold him the land, did not tell him that the heirs of Hart were living on the land, and claiming it.” Clifton answered “it did not make any difference about that; he knew all about that, before, and it did not make any difference; that his title'was good.” This, Clifton as positively denies; but Mr. Northway, who heard this conversation at Mapleton, fully corroborates Bodenhamer. With this testimony, and the intrinsic evidence of the facts themselves, we are left in little doubt that the finding of the court is abundantly supported by the evidence, that Clifton purchased with notice of the claim of Hart’s heirs to the land. Whether he had a correct idea of j ust what that claim was, how it originated, and what was its value in law, is very doubt ful; but that lie knew that the land was occupied by Hart’s heirs, that the improvements were made by Hart and his heirs, claiming a right of possession and title in some way, there can be no doubt. The simple fact that he purchased the land of a man familiar with its value, for about half its value, with deferred payments large enough to cover any possible loss, should the title he obtained prove defective, is significant of notice of some adverse claimant thereto. Further; when a man purchases land occupied by another, he is apt to inquire how it is held, and when and for what reason he may obtain possession. Concurring then in the conclusion of the court below, that Clifton purchased with notice, he stands in no better attitude than M. B. Lyons. He knew Lyons’ title, what equities existed in favor of Hart’s heirs, and must be adjudged to hold the same title that M. B. Lyons had, and no better. What that title exactly was, it may be more difficult to define, by a set formula, than to comprehend.
The land warrant was “loaned” by the agent, M. B. Lyons, and was “ borrowed ” by Hart. These are facts found by the court — on what testimony we do u t " not know, as the record does not disclose, as ^ does not show the evidence on any point save the notice to Clifton. Where there is a loaning and borrowing, secured by a lien on real estate, the transaction is usually a mortgage, and is generally so held, even if the contract in terms does not make it so; thus, a deed in fee simple is held a mortgage if the court can ascertain that the consideration of the deed was money loaned, and the land is only held as security. In this case there would be no difficulty in holding the transaction a mortgage if Hart, at the time of the entry, had held the title to the lfind. The title was still in the gov ernment; and his possessory right was held in subordination to the right of the government to dispose of the land. There is an unerring indication of what the parties believed the transaction to be. William Lyons held the legal title, yet he did not' pay the taxes, did not ask. possession, or rent, for more than five years; and on the 18th of July 1866 sold the land to his brother and agent for $325. How M. B. Lyons considered the title is fully ' shown: He rented it as belonging to the estate; he charged the estate with the taxes; and when he became the holder of the legal title, he withheld it from record for.over two years, and until after he had sold it. It is worthyNf remark that, as administrator, he charged the estate, in a settlement, thereof,, with the taxes on the land nearly a year after he became the owner thereof. At that time he evidently held the legal title as security for the amount of the land warrant loaned to Hart. To infer otherwise would bo to suppose that his purpose was-to violate a trust he was administering as a sworn duty,, and against infant children little acquainted with and less able to protect their rights. We will not do him this wrong. The original transaction, then, being a loan,., and • so regarded by the parties, and each acting with confidence in the honesty and integrity of the other, the legal title was to be held as security by the party making-the .loan until he was made good by the borrower. There is no reason to doubt that the •whole business would have been closed up as agreed, had not the death of Hart,, within a month, prevented him from carrying out hisagreament. The judgment of the court below was in exact conformity with this arrangement of the parties, as near as the condition of things rendered possible ; and it; is a judgment that commends itself to the sense of justice of every individual, and we think is upheld by the prin pies of law. We have seen that the transaction was not a mortgage in the correct acceptation of that term. There was no writing between the parties; therefore there was no express trust: Sec. 1, p. 1096, Gen. Stat. But we think there was plainly and fairly a trust which resulted from the transaction itself by implication of law. Such a trust is not necessarily in writing, but most generally must arise from the act of the parties. In this case the court has found that Hart “ borrowed ” the land warrant, to be replaced in three months. It was then his; he was not to return, but to replace it; the security therefor being that William Lyons was to hold the legal title to the land till the land warrant was replaced. This state of facts the plaintiff in error claims brings the ease within the provisions of § 6 of ch. 114, Gen. Stat., and vests the title in William Lyons, free from any trust to Hai-t or his heirs. This might be the casé did not that section make its provisions subject to the provisions of the two next sections, one of which is as follows :
•“ Seo. 8. The provisions of the section next before the last shall not extend to cases * * * where it shall be made to appear that, ,b.y agreement, and without any fraudulent intent, the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land, or some interest therein, in trust for the party paying the purchase money, or some part thereof.”
Now it can hardly be denied that the agreement between Hart and M. B. LyonB comes fairly within this last quoted clause of § 8, if it be admitted that the land warrant was loaned to Hart. The force of this was felt by the learned counsel for the plaintiffs in error, who sought to evade its force by contending that the warrant was not loaned at all, as it does not appear that William Lyons knew of the transaction. Still, it was a loan, and it is so found by the court. It is true that the court also finds that William Lyons did not know of the transaction at the time; but his agent did, and made the arrangement with Hart, understandingly. The principal has confirmed the action of his agent,'for although he lived all the time in Ohio, and it is found by the court that he had no knowledge of the terms of the loan of the land warrant to Hart, otherwise than is shown by the findings of the court, yet the facts, as found, that he paid no taxes, while he owned the land up to July, 1866; that he claimed no rent; that his brother, who bought it at a very low price, rented it as belonging to Hart’s estate, hardly leave room for believing that he did not know all about the trade. His agent had full notice; and it would hardly be questionable that he did not give his principal some definite information of how he became the owner of the land. If this be so, he has ratified the loan of the warrant by claiming to hold the legal title obtained through and by means of that loan. But while we have much confidence in holding that Wm. Lyons held the title in trust by express agreement under the third clause of § 8 of statute “ concerning trusts and powers,” passed in 1868, and remaining unchanged, still we can with certain assurance hold that, if there was no express agreement that Lyons should hold the title in trust for Hart, that then there was a trust arising by implication of law, out of the whole arrangement betweeh-the parties. Suppose Hart had lived, and within the three months had replaced the land warrant, and it had been accepted by M. B. Lyons, the agent, could "William Lyons have been compelled to surrender the legal title to the land to Hart ? Certainly, a court in the exercise of its equity power would have compelled him to do so, and because he held it in trust, and good faith required it; and this conclusion marks the .character of the arrangement when it was made, and "that character is not changed by the lapse of • time, or by the acts of the parties. Hart was bound to ■replace the warrant, by his agreement, land, or no land. ■He had some interest and some right in the land. The counsel for plaintiffs in error, knowing this, says it was a •“ conditional sale.” This suggestion is disposed of when we consider that Lyons had no land to sell until after the contract was made and the warrant had become Hart’s by the loan thereof to him. Two cases strikingly illustrative of this case are cited in the brief of defendants in error : Boyd v. McLean, 1 Johns. Ch. R., 582, and Millard v. Hathaway, 27 Cal., 139. In each of these cases the money which had been paid for the land had been borrowed of the trustee by the plaintiff, and title taken in the name of the trustee to secure the repayment of the loan ; and in each of the cases the borrower of the money had never had the money in his possession, it going direct from the trustee to the vendor; and in each of the cases there was no written agreement betweén the parties; and in each of them, as in this, did the trustee deny the trust and claim the land. In neither of the cases did the plaintiff make out as strong a case as Hart’s heirs have, and yet in both the defendants were held as trustees, and compelled to surrender the legal title. Further authorities are found in support of this point in ■defendants’ brief. We are sure that good conscience, fair dealing, and the law, all require that the judgment ■ be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The district court overruled the demurrer to the petition, and gave judgment against the defendants. The objection urged against the correctness of this judgment is, that it appears from the recognizance sued on that there are two of “ the above bounden ” of the name of William Gay, and it cannot be told from the recognizance which one is meant. The allegations of the petition show that it was William P. Gay that was bound over by the justice of the peace; that he is the one who' was charged with larceny, and, having waived an examination, held for further trial thereon in the district court. The petition makes profert of the recognizance, and makes it a part of the petition. A good cause of action is stated, if evidence is admissible, outside the recognizance itself, to show that William P. Gay was the party accused, and for whom the recognizance was given. The evidence, if admissible at all, is record evi- ' dence, being the proceedings before the justice m the case. This question is decided m the ease of O’Brien v. The People, 41 Ill., 456. The accused in that case was described in the body of the recognizance as John Empie, and the recognizance was signed by Sylvester Empie. It was contended by O’Brien, his bail, that the recognizance was for the appearance of John Empie, and the recognizance, forfeited for the nonappearance of Sylvester Empie would not authorize a judgment against O’Brien; but the court held that under proper averments in the scire facias it might be shown aliunde that “ Sylvester ” who signed the instrument was the same who was described in the body thereof by the name of “John.” To the like effect are the cases of Graves v. The People, 11 Ill., 542, and Garrison v. The People, 21 Ill., 538. In none of these case is any principle stated in accordance with which the decision is made. In Massachusetts, after forfeiture, the record of the examining court was amended and corrected by making up a more extended record of the facts and circumstances of their proceedings from their minutes, and upon scire facias on such extended record it was held that this proceeding of the police court was not irregular, and the scire facias was sustained: Com. v. McNeill, 19 Pick., 127. These cases sustain the decision of the court below, and we apprehend it will not be difficult to sustain it on principle.
A recognizance is defined by Blackstone to be “ an obligation of record which a man enters into, before some court or magistrate duly authorized, with condition to do some particular act: as, to appear at the assizes, to keep the peace, or the like.” It does not, like a bond, create a new debt, but is the acknowledgement of a precedent one; 2 Bl. Com., 841; when carried into the record it becomes a part of it; 4 Bl. Com., 253. At common law recognizances were taken by the court or magistrate taking the same stating to the bail the obligation entered into, and its condition, to which they assent. A minute is made of this act at the time, from which a formal record is prepared, which is filed in the court where the party is bound to appear, and thus becomes a part of the record. In this State all recognizances must be signed by the parties to be bound thereby: Crim. code, § 136; but while the manner of taking them- is changed, the characteristics remain the same. They are still records; and so is the warrant on which the party was arrésted who is admitted to bail, and the certificate of the fact of the prisoner’s being admitted to bail: Crim. code, §41. So that the same act that makes the recognizance part of the records of the court, makes also the proceedings on which it is based a part of the record. Therefore, in the case at bar, the admissibility of the testimony to show that William P. Gay was the person for whose appearance the recognizance was given would not be the admission of parol testimony to explain a patent ambiguity, as is claimed by counsel for plaintiffs in error, but explaining one part of the record by another. We may observe that most of the cases cited by plaintiff in error to show that the liability of sureties is limited to the exact letter of the bond, and if the words of the bond will not make them liable nothing can, are based upon the reason that the defendants in those cases are sought to be charged for the default of others; and by positive law, what is commonly called the statute of frauds, this can only be done when the obligation is in writing; and as sureties they must be brought strictly within the terms of the •obligation before they can be charged. But this statute «of frauds has never been held to apply to recognizances, for until within a few years they were not signed at all; and the bail are not sureties for a debt or tort of another. As we have seen, they acknowledge a pre-existing debt which they owe the State, not as surety for the accused, but for themselves. Bail is “ a delivery or bailment of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance, he being ■supposed to continue in their friendly custody, instead ■of going to jail.” 4 Bl. Com., 297; 2 Hale’s PI. Or., 15, §§ 2, 3. A similar idea as to the alleged criminal being in the custody of his bail is found in our statutes, for they may arrest and surrender him without a warrant: ■Crim. code, §148. Therefore a recognizance is not a contract between individuals to which the statute of frauds will apply; neither is it a contract of any kind. It is an acknowledgment of record of a debt that may be discharged by the performance of the condition thereunder written, or it still remains a debt. If the recognizance is obscure, it may be examined by other parts of the record. See Com. v. McNeill, supra. "Without raising on the demurrer the question so ably discussed by the counsel for plaintiffs in error, whether parol proof may be introduced to explain a patent ambiguity, resting on the authorities cited, and the liberal rule of our code, (crim., § 154,) we are of the opinion that tbe decision of the court below overruling tbe demurrer must be sustained.
Another question was raised in tbe argument, which demands attention. Tbe recognizance does not mention <*ay of. the term at which Gay was to appear. This was an oversight of the justice, but it did not vitiate tbe recognizance. At most it only allowed Mm to appear at any day of the term; and when be did appear be was to remain till permitted to leave by order of tbe court. Tbe petition states that be did not appear on the 6th day of December; There is nothing in tbe records, nor within j udicial knowledge, that that was not the last day of the term; and if it was, then if Gay had appeared at all, he was bound to remain. So< that the demurrer did not reach this error. It is an irregularity that is probably covered by §154, of tbo criminal code, and healed by its provisions.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The learned judge who tried the caseheldi the stipulation to arbitrate inadmissible under the pleadings, treated the proceedings before the arbitrators as-simply a settlement of accounts, and ruled that the first •count in the reply did not put in issue the defenses set up in the answer. In each of these rulings we think there was error. The first defense in the answer is that the note was given “ without any consideration whatever therefor.” The petition, reciting the note, affirms that it was “for value received.” The answer denies that value was received; an affirm a - tion that it was without value is equivalent to a denial that it was with consideration. This affirmance and denial make an issue. It is complete. Whether plaintiff could by motion have compelled defendant to set out the circumstances' under which the note was given, the facts upon which he bases his averment that the note was given without consideration, it is useless to inquire. The parties were satisfied with thq issues as made. They went to trial upon them. Under that general averment, the defendant could offer any fact which tended to prove that the note was give without consideration, and the plaintiff on the otner had, could show any consideration. Chamberlin v. P. & H. Railroad Co., 15 Ohio St., 225; Wheeler v. Billings, 38 N. Y., 263. This stipulation being as we have seen competent evidence, it, together with the choice of arbitrators, the award, and the acceptance of the same by the parties, the one giving and the other receiving a note for the amount awarded, present what would have been at common law complete arbitration proceedings. Any irregularities in the number of arbitrators, or in any part of the proceedings, were waived by an acceptance of the result, and a payment of the award. Precisely as the giving of a note for the amount of a verdict of a jury waives any irregularities in the prior proceedings in the case.
II. An impression seems to have prevailed that this •court has decided that arbitration proceedings were not recognized by tbe laws of Kansas, and of no ° ^ force here. The only case whose decision could afford a basis for such impression is that of Stigers v. Stigers, decided in the winter of 1865. No-opinion was ever written; ahd the only information we have concerning the decision is that furnished by the syllabus of the judge who announce < it. This will be found in the appendix to 5 Kansas Reports, p. 652, and is as follows : “ l.-At common law disputes concerning “ real property were not the subjects of arbitration. 2.— “ The statute of William III, eh. 15, in aid of the com“monlaw, has not-been adopted in this State. B.-An “award concerning real estate cannot be offered in evi- “ dence in an action for the possession thereof, unless it “ shall appear that it was made in pursuance of a refer- “ ence from the district court.” This syllabus, so far: from holding all arbitration proceedings void, impliedly recognizes the validity of «. The point the court makes is, not the right to arbitrate, but the subject of arbitration. We do not care to carry the decision of the court any further than its language compels. Caldwell, in his work on Arbitration, p. 3, treating of the subjects of' arbitration, after speaking of the rule as respects real-estate, and noticing some decisions thereon, uses this language: “ Any controversy relating to personal prop- . erty may form the subject of a reference. And in all cases of injury, either to the person or property, where damages would be recoverable by action, the arrangement of the matter may be left to arbitration. Disputes respecting rent, or tithes, charges of slander, breaches of contract, trespass to the person or property, the adjustment of the terms of a marriage separation, etc., may be submitted to arbitration.” And this seems to be sup-' ported by an unbroken current of decisions. Whatever ■may have been the rule regarding real-estate questions, controversies concerning personal property and personal, .actions were always matters of arbitration. The settlement of disputes by arbitration is a matter of ancient practice at the common law. It did not originate with 'the statute of “William III, but existed long anterior. That statute increased its efficacy, and enlarged its use, by providing a method of transforming the award of the arbitrators into the judgment of a court. A similar -statute may be found in many States. But the right to arbitrate exists independent of those statutes. In 15 Wend., 100, Senator Edwards says: “The revised statutes have not changed the law in relation to submitting matters in controversy to arbitration, except in cases ■where the parties enter into a submission in pursuance •of the provisions they contain. They do not declare all ■other submissions void; nor do they affect a parol submission ; such a submission is as valid as it ever was.” And Senator Maison: “Parties may by parol submit any matters in controversy between them to arbitration; this is the common law of the land.” In a note in 2 Hill, p. 273, the editor says: “ Statutes like the one in this State, (New York,) prescribing a certain foi’m for -submission to arbitration, and for enforcing awards made thereon, by special proceedings in court, have seldom been construed as excluding parties from the right of submitting in the common law mode. • (See Lagsdon v. Roberts’ Ex’rs, 3 Monroe, 256; Evans v. McKinney, Litt. Select Cas., 264; Wells v. Lain, 15 Wend., 99; Richardson v. Cassily, 3 Watts, 320.) Indeed, even where the statute had been pursued in respect to the form of submission, it has been held that the party in whose favor it was made might elect either to enforce it under the statute, or treat it as a common-law award, and enforce it by action. Dickinson v. Tiner, 4 Black., 253; Titus v. Scantling, id., 89. See also, Lamar, et ux, v. Nicholson, 7 Porter, (Ind.,) 158.” And Denio, J., giving the opinion of the court, in 21 N. Y., 148, uses this language: “ It has been often held that the statute prescribing certain forms for submission to arbitrators, and allowing the parties to agree that a judgment of a court of record designated in the instrument of submission should be rendered upon the award, was cumulative merely, not exclusive; and that an award pursuant to a submission which would have been valid at common law, but which did not conform to the statute, would support an action.” This arbitration, which, from the above quotations, and numberless other authorities which might be cited, is shown to exist independent of any statutory provisions, and as a right guarantied by the common law, is thus defined by Blackstone, Book iii, p. 16 : “ Arbitration is where the parties, injuring and injured, submit all matters in dispute concerning any personal chattels or personal wrong to the judgment of two or more arbitrators who are to decide the controversy, and if they do not agree, it is usual to add that another person be called in as umpire, to whose sole judgment it is then referred; or frequently there is only one arbitrator originally appointed. This decision in any of these cases is called an award; and thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.” Bacon in his Abridgement, on page 306, says: “The submission is the authority given by the parties in controversy to the arbitrators to determine and end their grievances; and this being a contract or agreement must not be taken strictly, but largely, and according to the intent of the parties submitting.” And further on a few lines occur these words: “ The submission may be by word or deed; if the submission be by word, there is no remedy to enforce the party to . perform the award; but reciprocal actions on the case, and an action of debt will lie, if money be awarded, for it is in nature of a simple contract.” The note on page 35 of Caldwell on Arbitration reads thus : “ A submission is a contract by which contending parties agree to submit the matters in controversy between them to the decisión of a third person or persons, and to be bound by such decision.” And in the text, on the same page, are these words : “ The submission may be simply the act of the parties, or may be entered into through the medium of a court of law or equity. In the former case the submission may be verbal, by written agreement, not under seal;-by indenture, with mutual covenants to abide by the. decision of the arbitrators; by deed poll, or by bond, each party executing an obligation to the other, conditioned to be void respectively, on performance of the award.
Arbitration proceedings may be properly classified under three heads: First, Where, in the absence or regardless of any statutory provisions, the parties to any controversy submit the decision thereof to mutually chosen arbitrators. In these cases, while the questions in dispute are settled, neither the arbitrators nor the party in whose favor the award is made have power to enforce it. The successful party must resort to the courts in an action on the award, and is benefitted by the arbitration only in this, that he may base his action on the award, instead of the original cause of action, and such award is, unless impeached, conclusive evidence in his favor. Second, Where by statute authority is given to'parties to a controversy not in court to submit tbe same to arbitrators, whose award may on motion be entered as the judgment of a designated court. Here the successful party has not only the advantage of a determination of the disputed questions, but an easy and expeditious method of placing that determination in a position where the law will enforce it. This was the aim and scope of the statute of William III, above referred to. Third, When a court in which a controversy is pending, sends such controversy for determination to arbitrators chosen by the parties or selected by the court. This method of arbitration which is usually designated as a reference is very common in this country. Of these throe methods or kinds of arbitration, the second does not exist in Kansas, the first and third do. The parties to this suit proceeded under the first method. They arbitrated their differences, accepted the award, and gave and received a note in settlement. Such award is con. elusive until impeached.
III. The denial in the reply was, “ of each and every material allegation of new matter in the answer.” It seems to have been thought that the use of the word “material” vitiated this denial; that to be good it should extend to every allegation. “ Who is to say from this, that he denied any specific allegation ? ” inquire counsel in their brief. A little examination will expose the error. The affirmance and denial of an immaterial matter make no issue in an action. We consider pleadings with reference to the issues they present, and take note of affirmations and denials only as they affect these issues. The evidence.is confined to those allegations only which are material. They only are subjects of consideration. If immaterial allegations prejudice a party they may be stricken out on his motion. If they do not prejudice, they maybe disregarded. If a denial were necessary, they would be considered as denied under section 128 of the code. “Every material allegation of the petition, not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purposes of the action be taken as true.” The use of an adjective, which, when not used, is implied, cannot injure a pleading.
A great many points are discussed by counsel in the briefs, and many rulings are claimed to be erroneous; but inasmuch as the decision of the preceeding questions will give an entirely different shape to the case, on a subsequent trial, we do not deem it necessary or proper to encumber the record with a discussion of them.
The judgment is reversed, and a new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error brought ejectment against plaintiff in error. Upon trial he proved title by patent and deed. Defendant in error attempted to show a transfer of title to herself by judgment, sale, and sheriff’s deed. The evidence she offered was rejected, and this ruling is brought here for review. She offered the journal entry of judgment in the case of “ William H. Strode v. Enoch L. Morse,” in the Doniphan county district court, the order and the confirmation of sale, the appraisement, and the sheriff’s deed. Each was rejected on the ground that no legal service was shown to have been made in that action upon the defendant Morse. It is not claimed that there was any proof of service. The only testimony which could in any degree have any bearing in that direction was the testimony of the clerk of the district court, that, by fire in 1867 the files of all ' caseB disposed of, among them the case of “ Strode v. Morse,” were burned; and the -first sentence in the journal entry of judgment, which contains these words : “ the defendant still failing to answer or demur, although duly served by publication in the Troy Weekly Investigator, a weekly newspaper published in Doniphan county, and State of Kansas.” The testimony of the clerk tended neither to prove nor disprove the fact of service; at most it simply laid the' foundation for secondary evidence. The journal entry disclosed the manner in which service had been attempted to be made. A judgment rendered against a party not in court is void. It conveys no title, affects no rights. The title shown by the patent and deed in Morse could not be transferred by any judgment against him unless rendered in a court which had acquired jurisdiction of his person. Until such jurisdiction appeared, neither judgment, sale, nor deed were competent evidence: 2 Kas., 340. Neither is the difficulty avoided by the presumption which exists in favor of the proceedings in courts of general jurisdiction. That presumption arises only when the record is silent; it does not supersede the record. A party may not introduce part of a record, and relying on presumptions, withhold the remainder. In this case the plaintiff in error commenced her testimony with the entry of judgment. True, she proved that the files of the case were destroyed by fire ; but she made no attempt to prove what those files contained. The final record required by the laws of 1862 should contain the pleadings, the process, the return, etc.: Comp. Laws, p. 189, §402. In the absence of proof to the contrary we must presume such record was made, and was still in existence. If there was no final record, the files of the newspaper would have contained the secondary testimony, or it might have been derived from the officers of the court, the. parties, or attorneys in the ease. At any rate, until it appears, not merely that the papers are gone, but also that there is no secondary proof of their contents, there is no presumption, even in favor of the proceedings of a court of general jurisdiction,.from the existence of one part of a record that the remainder would, if produced, contain the facts necessary to give the court jurisdiction. This case never got so far as a question of presumptions; it stopped on a question of evidence. The judgment is affirmed.
All the J ustices concurring. | [
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The opinion of the court was delivered by
Kinsman, C. J.:
The defendants in error brought an action against plaintiff in error for $1460, stating the same in two causes. The first set forth, that in the month of February, 1870, the plaintiffs at the request of the defendant hauled the sto.no and constructed upon a certain pier at the railway crossing on Turkey creek, in Coffey county, 196 yards of stone work of the second class of masonry, for which the defendant contracted and agreed to pay the plaintiffs $6.25 per yard, and the further sum of fifty cents per yard for all stone hauled over one mile, and that plaintiffs did haul the stone for the construction of 100 yards of said stone work over one mile. The second cause of action is thus stated:
“ The said plaintiffs further complain and aver that the said defendant is further indebted to them in the further sum of $185 on an account of which the following is a copy:
“ To delivery of 55 yards of stone on the ground at Turkey Creek Bridge, at $8 per yard, $165.
“ To dressing 80 yards of stone at $2.50 per yard, $20.
“ The plaintiffs aver that there is due and unpaid on said amounts the sum of $185.”
The petition prayed judgment for $1460, the amount of both causes of action. The answer was a general denial. The verdict and judgment were for the plaintiff" for the amount claimed.
In the progress of the trial the defendant offered to- prove that there was nothing due defendants on the •second cause of action, and also offered to prove payment thereof. This the court refused to permit to go to the jury on the issues as made up. This point was settled in the case of Marley v. Smith, 4 Kas., 186; at least that case decides the principle involved. If • the pleader • chooses to state his case without setting forth whether his claim arose on contract or tort, or at least on the ■request of defendant, or that the materials were of a certain value, as charged, and a promise to pay therefor, but merely states an indebtedness without stating how it arose, he invites an issue upon whether there is an in- . debtedness, and an examination into that issue by the • testimony; and this can be gone into by the defendant <under a general denial. It was therefore error to exclude proof of payment of the second cause of action, and to .exclude testimony tending to show that there was nothing due thereon. See Quinn v. Lloyd, 41 N. Y. 349, commenting on and distinguishing that case from McKyring v. Ball, 16 N. Y., 297.
It is claimed that it was error to exclude testimony of ■payment of the indebtedness set forth in the first cause of action. Evidently the court did right in e eluding it. "The issues were not framed to admit such testimony. Many other errors are alleged, but as they are not likely to arise on another trial we do,not feel called upon to comment upon them.
For the error indicated the judgment is reversed and .a new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This action was brought by the defendant in error to recover the value of a horse alleged to have been killed by the engine of the plaintiff in error. ‘The horse was turned out upon the prairie four or five miles from the railroad, and strayed upon the road and •was killed by the engine. It is not necessary to review the testimony. No good purpose can be served thereby; for while the verdict is one that does not commend itself "to our judgment from the testimony, as it appears on the record, still there is testimony tending to up- ’ J ° r . hold every proposition on which the plaintiff must have relied to obtain a verdict. There were two trials of the case in the district court, and on each a verdict was rendered for the plaintiff. Under such circumstances, this court does not feel inclined to reverse an order of the court below, refusing to grant another new trial of the case, and will not do so.
- It was claimed in argument, that the turning the horse loose upon the prairie was evidence of negligence, which ■contributed to the loss, and therefore plaintiff ought not to recover. It is too much to say that turning a horse loose at the distance of four or five miles from the road •was in itself negligence. This fact like the others was •submitted to the jury.
II. The plaintiff in error asked a number of instructions which were refused. It appears however that the court charged the iury, and the charge is not in the'record. It is to be presumed that the change given Was the correct law of the case, -and if 'so, it was not necessary to give the instructions asked by plaintiff in error, even if they were correct," and •it can answer no good purpose to examine them.
NI. One of the errors alleged is the admission of improper testimony. The ■ witnesses Redman and Jones,. were permitted to testify as to whether the railroad track was fenced at or near the place where the horse was killed. The evidence was competent to show the exact condition of the track at the place, as showing whether the horse could or would be likely to pass off the track, with the engine after him.
IY. Another assignment of error is the action of the court toward the jury. We fail to perceive how the remarks made by the court were calculated to intimidate the jury, to influence their determination, or in any way affect their verdict. This was the second trial in the. district court, and it was-proper enough to insist upon all reasonable efforts being made by the jury to agree upon a verdict; but there is not the slightest intimation as to how they should agree.. Finding no error, the judgment is affirmed.
All the J ustices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
In this case the plaintiff in error seems to entirely ignore the findings of the court below, and to almost entirely ignore all the evidence introduced on the trial except such as was in his favor. It seems to be presumed by him, in the face of the findings of the court below, and in the face of the evidence, that every fact necessary to constitute a good cause of action is proven. The plaintiff has filed a printed argument in the case, and from a perusal of that argument, no one could discover that the court below made any findings adverse to to the plaintiff, or indeed any findings at all; and one could scarcely discover that any evidence had been introduced at the trial except evidence' that was favorable to the plaintiff. The plaintiff argues one case; the record presents another, and a different case. The plaintiff states one set of facts; the record presents another; and many of the facts presented.by the record are right the reverse of the facts stated by the plaintiff. Doubtless the plaintiff' argued a case such as he desired his to be; but unfortunately it was not the one brought to this court; and unfortunately his argument throws no light upon the case actually presented to this court for judicial consideration. We shall not attempt to consider the case discussed by counsel for plaintiff, but shall consider the one presented by the record.
The assignments of error are vague and indefinite in their manner of presenting the case, and throw but little light on the real questions really involved in the case. They are as follows:
“ The said "William H. Carson avers that there is error in said record and proceedings in this, to-wit: 1st, Irregularity in the proceedings of the court; 2d, Misconduct of the prevailing party; 8d, Surprise which ordinary prudence could not guard against; 4th, Excessive damages; 5th, Error in the assessment of the amount of recovery; 6th, The decision is not sustained by sufficient evidence, and is contrary to law; 7th, Error of law occurring at the trial and excepted to.”
The case was tried in the ordinary way, by the court, without a jury, and the only exceptions to the rulings of the court below were to its refusal to make certain findings in favor of the plaintiff; to its making certain findings in favor of the defendant; to its overruling the plaintiff’s motion for a new trial; to its refusal to render judgment in favor of the plaintiff, and to its rendering judgment in favor of the defendant. The judgment was rendered in favor of the defendant for costs only, and there was no evidence used on the hearing of the motion for a new trial. Then where was the “ irregularity ” in' the proceedings of the court below ? Where was the “ misconduct of the prevailing party ? ” Where was the “ surprise which ordinary prudence could not guard against ? 5 Where was the evidence to prove said misconduct and surprise ? Where were the “ excessive damages ? ” Where was the error in the “ assessment of the amount of recov ery?”' Certainly none of these assignments of error are of any importance in this case.
Is the decision of the court below sustained by suffi-" cient evidence, and is it legal ? There is nothing that we are aware of that would render the judgment or the findings illegal if the findings are sustained by sufficient evidence. Upon some of the principal points in the case the evidence was conflicting; but we are unable to say that any finding of the courtis not sustained by sufficient evidence and by a preponderance of the evidence. The evidence shows, or at least tends to show, and the court substantially finds, as follows : Carson took a contract to furnish hay (1,370 tons) to the government, at Olathe and Paola; Weed and Samuel Saunders became partners with.Carson; Weed was to have one-half the profits, Carson and Saunders each one-fourth; Weed furnished the money, ($13,300,) to carry on the business; Carson and Saunders attended to it. The hay was delivered, and vouchers issued to Carson therefor, to the amount of $28,896. The partners then settled. The vouchers were turned over to Weed at five per cent, less than their face, and Weed drew bills of exchange, commonly called drafts, on Scott, Kerr & Co., in favor of Carson and Saunders respectively, for the amounts found to be due to Carson and Saunders. The amount of Carson’s draft was $2,316. The vouchers were then put into the hands of Scott, Kerr & Co., for collection, and as collateral security for money advanced to Weed. Scott, Kerr & Co. sent the vouchers to Washington for collection, and collected between $23,000 and $24,000 on them. Over $5,000 still remains unpaid, but Scott, Kerr & Co. are still attempting to collect them in the court 'of claims. Weed’s draft to Carson, was never accepted or paid by Scott, Kerr & Co., except that John Kerr, the defendant, a member of the firm of Scott, Kerr & Co., made a conditional acceptance of the draft, which condition has never yet been fulfilled. The condition was that he would pay that draft, along with others of Weed’s drafts, when said vouchers were ordered to be paid by the goverment, provided Carson assisted in making certain proof. The latter part of said condition was probably fulfilled, but the first part has never yet been fulfilled. Carson pledged said draft to E. H. Gruber & Co. as collateral security on a promissory note of Carson’s to E. H. Gruber & Co.; and E. H. Gruber & Co. assigned and transferred said note, with the collateral security, to Scott, Kerr & Co., for the benefit of Weed, and Weed is still the holder thereof.
Is there anything in all this that would make John Kerr liable for anything to William H. Carson ? Kerr was certainly not liable for anything prior to his conditional acceptance of said draft; and he will certainly not be liable on that acceptance, or for anything that occurred subsequent thereto, until said vouchers shall be ordered paid in full by the government, or, at most, until less than the amount of said draft remains unpaid on said vouchers.. He will certainly not be legally bound to appropriated any portion of what Scott, Kerr & Co. receive on said vouchers to the payment of said draft until something of the last $2,316 is received on said vouchers. Kerr is not sued on his conditional acceptance of said draft, and hence we need not pursue this subject any further. He is sued on a supposed original liability connected with said hay transaction béfore said draft was drawn. This case has been prosecuted, from the filing of the petition, down to the present time, as though Kerr was a partner in the hay transaction, and as though Weed was only his agent, and therefore that Kerr, and not Weed, was liable to Carson for Carson's share of the profits. The court below has however found differently, and, as we are inclined to think, upon the preponderance, though not all of the evidence; and therefore, we shall not disturb the findings of the court below.
IV e have discovered no “ error of law occurring at the trial and excepted to,” sufficient to authorize a reversal of the judgment, and none has been pointed out to us. The judgment of the court below must be affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
Only two questions are presented for our consideration in this case : First, Is the taking of twelve per cent, interest in advance, on a loan of one thousand dollars made for a year on note and mortgage, usurious ? Second, Is an agreement in a mortgage to pay ten per cent, attorney’s fees upon foreclosure valid and binding ?
I. Twelve per cent is the highest legal interest which by the terms of our law parties may contract to pay. Exacting this in advance, practically gives to the lender more than twelve per cent, on the amount the borrower actually has the use of during the time of the loan. It. seems difficult upon principle to sustain such a transaction. But in cases where note or bill is given, it is supported by such an overwhelming current of decision, and is a matter of such universal practice, that it may well be considered as engrafted upon the law as a settled rule. 4 Scam., 21; 31 111., 490; 12 Pick., 589; 15 Johns., 162; 2 Cowen, 664; 3 Wend., 408; 8 Wheat., 354; 2 Pars, on Cont., (3d ed.,) 408. It was so settled before the passage of our interest law; and if the .legislature had intended to change this rule of construction, such intention would have been plainly expressed. It is satisfactory to know that in this way we give effect to a contract entered into by both parties in good faith, and with a full understanding of its terms.
II. The stipulation in the mortgage in regard to attorney’s fees is in these words : “ And the said parties of first part hereby agree that ten per cent. “ n^on the amount due on said note at time “of any judgment thereon shall be added to the same, “and judgment rendered therefor for attorney’s fees for “ collection and services.” The learned judge who tried the case charged the jury that this stipulation was valid, and that they might add to the amount found due upon the note, ten per cent, thereof, and bring in a verdict for such sum. The verdict they returned really included only between six and seven per cent, for attorney’s fees. Stipulations like this have been sustained by the decisions , of many courts, and properly so : 7 Watts, 126; 51 Penn. St., 78; 3 Wis., 454; 10 Wis., 41; 12 Wis., 179, 452; 15 Wis., 522; 16 Wis., 672; 8 Blackf., 140; lNev.,161; 2 Nev., 199; 21 La. An., 607.
It does not violate the usury law, because it is no stipulation to pay for the use of the money borrowed, but only an agreement to compensate the mortgagee for the expenses of compelling the mortgagor to perform his contract. If the mortgagor pay the money borrowed at the time it becomes due, as he has promised to do, he incurs no loss by reason of this clause in the mortgage. He is wholly released by the payment of the money borrowed, and the stipulated interest. Where by the term of a contract, a party can discharge himself by paying the real amount due, the transaction is not usurious. Bac. Abr., Title, Usury, (6;) Billingsley v. Bean, 11 Ind., 331; Lawrence v. Cowlse, 13 Ill., 577; Gould v. The Bishop Hill Co., 35 Ill., 325. Nor is it against public policy that the expense of a litigation- should be borne by the party whose breach of his contract necessitates such litigation. On the contrary, it accords fully with the soundest principles. Our statutes, as well as those of nearly if not quite all of the States, provide that the costs — using the term in the limited sense as embracing the amounts due the sheriff, the clerk, and other officers of the court, for their services in the case — shall be paid by the losing party. The theory is, that the determination of the suit has shown ■that his wrong caused the litigation, and therefore he should bear the expense. And in many States the court is authorized to award to the successful party, in addition to the amount found due, and the court expenses, certain sums for liis attorney’s costs. Our statutes do not provide for this additional allowance. But this omission to provide for such compensation in all cases is no argument against-the right of the parties to contract for it in some. The decision of this court in Lender v. Caldwell, 4 Kas., 339, does not controvert these views. - This was the law then in force — Comp. Laws, 1862, p. 722: “ Sec. 3.* * * No court shall tax over two dollars as attorney’s fees in any case for foreclosure of any mortgage, or trust deed, or for collection of the same.” The court, quoting this section, add these words: “No language of ours can make this prohibition plainer than the statute itself. A contract between the parties in derogation of this statute cannot be enforced.” Yet this statute impliedly recognized the validity of a contract of the nature of the one in question. The restriction was as to the amount, not the fact of the contract. It must not be for over two-dollars. But said provision was repealed in 1868. There is now in the statutes of this State no restriction upon such a contract. On the contrary, in the laws of 1870,. p. 175, §13, concerning the foreclosure of mortgages,, deeds of trust, etc., it is provided, that “ the court shall tax the costs, attorney’s fees, and expenses which may accrue in the action.” This evidently contemplates the making of such contracts as this. It is true, there may be cases where the amount stipulated to be paid is so-excessive that a court of equity will not enforce it. But this is not one of such cases. It does not appear in the-record, and is not a matter that this court can take judicial notice of, but it is a matter of general notoriety that' the amount stipulated in this mortgage is the minimum fixed by the fee bill of the attorneys of the First Judicial' District, the district in which this mortgage was executed and foreclosed. We see no error in this ruling of the-court. Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The record in this case presents a somewhat novel course of proceedings. It appears from it that a jury was empanneled and sworn, evidence submitted, and “the parties rested the case,” at which point in the proceedings the defendant demurred on the ground that the petition did not state facts that constituted a cause of action, which demurrer was argued and sustained, to “ which ruling of the court, in sustaining the demurrer,” plaintiff excepted. There is no exception to the filing of the demurrer, or to its hearing; so that much of the brief of plaintiff’ in error is wasted, as those errors not excepted to are deemed waived.
Does the petition state a cause of action? We think it does, very awkwardly and inartistically certainly, but we cannot be mistaken in tbe fact that the defendant was made aware of just what the plaintiff complained of, and the relief he sought. “ The ■“court must tolerate modes of statement unsuited to -“ orderly arrangement; the use of words unaptly applied; “ involved sentences, lacking simplicity, and logical accuracy,” if from the whole petition the nature of the charge can be ascertained. We find no difficulty in doing so in this case. The 'contract is made a part of the petition, and is not difficult of construction. The plaintiff says he has duly performed all the conditions imposed upon him by the contract, and specifies. wherein the defendant has broken his. “In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.” Civil Code, •§ 115. The petition construed by this section must be held good, and the judgment reversed, and the cause sent back for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The judgment in this case was on default, and no exceptions were taken. Two errors are alleged : First, the summons was not served before the return-day: Second, the action was against L. J. Dutton ; the summons is returned served on L. A. Dutton.
The summons was issued on the 26th day of March, to the sheriff of Miami county, and was served on the 5th day of April. This was the return-day, while the statute limits the service to “ any time before the return-day.” §64, civil code. The statute is positive. ¥e cannot construe it away, nor enlarge it. In Meisse v. McCoy’s Adm’r, 17 Ohio St., 229, such a service was held voidable, an irregularity that could be corrected on motion, or waived by answer. In our opinion it is a defect that can be corrected on error. It is an error that affects the substantial rights of the defendant, as it gives him one less day to answer than the law allows. It is not a defect that makes the judgment void; and if a party permits it to go unchallenged till he has lost the right to correct it, by reason of the lapse of time, the judgment would be binding on him.
The second objection is not tenable when presented for the first time on error. If it could. be taken advan tage of at all, it must be in the court below. . Such was always the law. 1 Chitty’s PL, 244, 248. We are not to be understood as deciding that there is any defect existing. If the right party was,served with the summons, the most that could be done, would be to allow the sheriff to amend. The law knows but 'one Christian name in its proceedings; and if there are two of that name, it must be made to appear on issues properly made up.
For the. error first alleged, the judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiff below brought his action to recover damages alleged to have been sustained by the burning of a corn-crib, some corn, a corral, and other property of his, by fire averred to have been carelessly communicated from a passing locomotive engine of the defendant. The answer was a general denial. The case was submitted to the court, without a jury, upon an agreed statement of facts, of which the following is a copy:
“ At the time of the happening of the alleged grievances complained of, the defendant was a railway corporation existing by law authorized to operate a railway over the line described in the petition, and to haul thereon at all times trains of cars drawn by locomotives propelled by steam generated by fire; that at the time and place mentioned in the petition, about five or six miles west of Junction City station, a locomotive engine of the defendant passed westward drawing a train of cars and run in the usual manner on a regular trip in the defendant’s lawful business ; that a high wind was blowing at the time; that by this means quantities of live coals and embers were blown from the ash-pan of said engine into dry grass and weeds standing upon the right of way, and scattered along and lying in the ditch beside the track of the railway of the defendant, whereby the same were ignited in several places within the distance of one-half ’ mile; that such fire so kindled, and driven by said wind ran rapidly to dry grass and weeds standing on the premises of the plaintiff immediately adjacent^ and spreading on said premises produced the damages complained of; that said engine was provided with all the most approved appliances in use for preventing injuries • by the escape and communication of fire therefrom to ' property or combustible material upon or adjacent to the-line of the railway, including an appliance for conducting water to the ash-pan, and was in good order and was-operated by competent and careful servants of the defendant; that from engines of the same make, and properly constructed and operated, burning coals and embers are sometimes blown by a high wind; and that the plaintiff' suffered injury from the destruction of his property by said fire to the amount of five hundred dollars.”
From this agreed statement of facts the court found- “ that the defendant negligently'destroyed the property of the plaintiff as set forth in the petition,” and assessed-his damages accordingly. The sole question below, and> in this court, is a question of law, and that is,'whether, on the agreed facts, the law attaches negligence to the-defendant. And here it may be proper to correct an error into which the defendant in error has-fallen for want of proper consideration of the question. He contends that only so much of the fore- ■ going facts are to be considered as tend to support the - plaintiff’s petition; that the defendant could not under • his general denial give in evidence any of the facts that show a want of negligence. It need not be determined-whether such evidence was admissible under the pleadings, because there was no exception, and all the agreed facts went to make up the evidence in the ease. It is too late to object to any part of it in this court as irrelevant.. Again, remarks made in other cases that this court will not weigh evidence and reverse judgments because the preponderance seems to us to be against the verdict, because we have not the same opportunities to observe the bearing of witnesses, and scrutinize the manner of giving their testimony as have the jury, have no application to - this case. Here the facts are agreed, not controverted. 'They are not testimony to be weighed, but facts to be considered; and this court can do that as well as the court below. It may be true that when in great doubt, in such a case, this court will give proper weight to the Judgment of the court below; but it certainly will not allow that judgment to control the positive opinions they may form. These remarks are made in answer to a large part of the argument of the defendant in error, and to remove any doubt if any were really entertained as to the exact status of such a case in this court.
The point to be decided then is, whether the law attaches negligence to the plaintiff in error on the facts of this case. “ So use your own, as not to injure another’s,” has become a maxim in our laws, and is ap- ^ plied to regulate the conduct of individuals as to the use of their property, and is enforced by giving compensation for injuries wrongfully occasioned by a violation of the principle which the maxim involves. The difficulty lies in giving proper application to the principle rather than in any uncertainty in the principle itself. It is true, that it is prima facie competent for any one. to enjoy and use his property as he chooses ; but he must however so enjoy and use it as not to affect injuriously the right of others. These are general truths; but when clearly establishe ’ rights are such as, if exercised, injury may result to others, then it must be considered whether or not their exercise be not restrained by the existence of some duty imposed. It does not always or necessarily follow that, because a party receives-disadvantage from the exercise of a right by another,, therefore an action lies. . In the case before us we see a railway company, with the conceded right to operate a railway, using engines propelled by steam generated by fire in so doing. There was also an adjoining proprietor with the right to his property, and to enjoy it unmolested and undisturbed. A part of this property has been destroyed, and the immediate cause is the operating of the railway company’s road. There is a loss. The road is the cause. The inquiry arises, by whose fault? The burden of proof is on the complaining party; the party whose property has been destroyed. Of this there is no-question. The English courts have held that proof that the fire was communicated from the engine of the company is sufficient prima fade .proof to throw upon the defendant the burden of showing that there was no want of skill, care, or diligence in the construction or management of the engines : Piggot v. The Eastern Counties Railway Co., 54 Eng. Com. Law Rep., 228. In this country the courts have with great unanimity, where the matter has not been regulated by statute, held that the mere-fact that a fire is caused by a locomotive engine does not raise the presumption of negligence. In this case, we-need not, and do not propose, to decide which is the better rule. The evidence is the agreed facts; and they show that the company had supplied its engine with all the most approved appliances in use for preventing injuries by the escape and communication of fire therefrom to property or combustible material upon or adjacent to-the line of the railway, which was in good order, and-was operated by competent and careful servants of the defendant. It also appears as a fact, that from engines- •of the same make and properly constructed and operated, burning coals and embers are sometimes blown by a high wind. It thus appears that no care or precaution that science or skill could provide was omitted in the construction of the engine to guard against such accidents as the one that occasioned the loss in this case; and any ■possible want of care or diligence on the part of the employes, as to this matter, is negatived by the facts. In such a state of facts is the railway company liable? It is not denied that the company was in the pursuit of its legitimate business, pursuing it in exact conformity •with its rights', and conducting it with scrupulous care and skill. If they are responsible for the loss, then •'it must be because they are insurers, and not because of any careless, unskillful, or improper use of their own property. This would be to apply to railway companies .-.a liability never recognized as resting upon individuals, and we are referred to no case or principle which would make the company liable in this case. The books are full of cases holding the reverse; we refer to some of the ■most carefully considered : Burroughs v. Housatonic Railway Co., 15 Conn., 124; Rood v. N. Y. and Erie Railway Co., 18 Barb., 80; Griser v. Phil. & Read. R. Co., 8 Pa. St., 366; Sheldon v. Hudson Riv. Ry. Co., 14 N. Y., 218 ; Smith v. H. & St. Jo. R. R. Co., 37 Mo., 287; The Ill. C. R. Co. v. Mills, 42 Ill., 497; The O. & M. R. Co. v. Shanefelt, 47 Ill., 497; Ryan v. N. Y. Cent. R. R. Co., 35 N. Y. 210 ; Ind. & Cin. R. R. Co. v. Paramore, 31 Ind., 143; Pierce on Railways, 313. The plaintiff in error was exercising in a reasonable manner and with great caution . a lawful right, and in so doing an accident proceeding • from his train caused the loss. Por this the plaintiff in error cannot be held liable.
We have purposely omitted so far any consideration of how far the “ standing grass and weeds upon the right of way, and scattered along and lying in the ditch beside the track of the railway” of the plaintiff in error of itself constitutes negligence. The company and adjoining owner both had upon their premises the same combustible material, and each contributed to the spread of the fire that occasioned the loss; and it is an almost universal fact, observable everywhere in our State, that the same combustible materials are found in almost every section of the State, the natural result of a rich soil, and uncropped growth. To hold the existence of such a condition of things negligence, would be to declare a liability for accidental fires, as between citizen and citizen, heretofore unknown to the law, and which we do not feel authorized to incorporate into our code. This very question was decided in Illinois in the cases of the Ill. Cent. Ry. Co. v. Mills, and the O. & M. R. R. Co. v. Shanefelt, supra; and those decisions were but the enunciation of well-known principles applied to a given state of facts.
The judgment must be reversed, with directions to ■enter judgment on the facts for the defendant, the plaintiff in error in this court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced by the-plaintiff in error in the district court of Bourbon county,, to-set aside and enjoin the collection of a tax, amounting; in the aggregate to the sum of $13,648.37, levied by the officers of said county upon the railroad property of the plaintiffs in error, and upon an alleged illegal and unauthorized assessment and valuation of said property, attempted to be made in pursuance of ch. 124 of the laws-of 1869. The tax roll, including this tax, was at the time-of the filing of the petition in this case, in the hands of' the said C. A. Morris, as treasurer of said county, for collection, and he was about to place a warrant in the- hands of the said C. S. Wheaton, sheriff of said county, for the purpose of collecting said taxes. The plaintiffs moved the court for a temporary injunction against the said Morris and Wheaton, defendants, to restrain them from the collection of said tax. The court below, after hearing the evidence and the arguments of counsel, overruled the motion, and refused to grant the said inj unction, whereupon the plaintiffs duly excepted and made a -case for this court.
The questions presented for the adjudication of this ■court are — 1st, Is chapter 124, of the laws of 1869, (p. 244,) a valid and constitutional law, so far as it affects the matters involved in this case? 2d, Were the proceedings by which the property of the plaintiffs was valued, •and such valuation apportioned to the different counties •along the lines of their railroad, so irregular as to render the tax levied upon such valuation illegal and void ? 3d, ■Can this action be maintained for the purpose of adjudicating, either of said questions? is it the proper remedy •of the plaintiffs ? and are the plaintiffs entitled to the relief they .ask? Involved in these questions are many •others, which we will consider as we proceed.
I. Is chapter 124, of the laws of 1869, a valid and constitutional law so far as it affects the subject-matter of this action? We think it is. The plaintiffs however claim that it is not — first, because it is in contravention of art. 11, § 1, of the constitution which provides that “ The legislature shall provide for a uniform and equal rate of assessment and taxation ; ” and second, because it is in contravention of art. •3 of the constitution, as decided by this court in the case of The Auditor of State v. The A., T. & S. F. R. W. Co., 6 Kas., 500.
The plaintiffs claims that this act is in contravention of art. 11, §1, of the constitution because it prescribes a mode for the assessment, taxation, and collection of the taxes on railroad property, different from that of other property in the same taxing districts, and because it provides “ for the assessment of property without the taxing-district, even to the assessment of property both real and personal lying in another State.” The principal if not' the only differences complained of in the mode of assessment, etc., are, that railroad property is assessed by-county clerks, while other property is assessed by township assessors, and never by county clerks, except when it is omitted by the township assessors; railroad property is assessed along the whole line of the railroad, and in the aggregate, although it may run through many townships, or through many counties, or even out of the State while other property is assessed for each township, and only so much of it as lies within the township; railroad' property is all assessed as personal property, although' much of it may be real estate, while other real estate is assessed as real estate; there is no provision allowing the* county board of equalization to equalize the valuation off the real estate of a railroad company within each county while there is a provision of law allowing the county board of equalization to equalize the valuation of other real estate; the taxes on railroad property are collected in the same manner that the taxes on personal property are collected, although a portion of the railroad property may be real estate, while the taxes on all other real estate are collected in a different manner. It will be seen that the counsel for the plaintiff misconstrues the constitution.. The constitution does not require that the manner or mode of assessing and taxing property, or the manner and mode of collecting the taxes, shall be equal and uniform; but it •simply requires that all property shall be assessed and taxed at an equal and uniform rate.
This the legislature have provided for. All taxable ^property, real and personal, within this State, must, ■under the statutes, be assessed at its true value in money, •and the takes levied upon said assessment must be at •an equal and uniform rate. The State taxes, under the statutes, are equal and uniform throughout the State, being levied on a uniform valuation, and fixed at a uniform rate on each dollar of the valuation throughout the State; each county tax is equal and uniform in the same manner throughout the county; and the same may be said of the taxes of each township, district, city and village; and this is all that is required by the constitution. (Hines v. Leavenworth, 3 Kas., 201.)
It is not only claimed that because other property is assessed by township assessors, that railroads should also be assessed by township assessors, but it is also claimed, that because a township assessor assesses property only which is situated within his own township, that therefore railroad property should be assessed separately in each township through which it runs, that long lines of railroads, for instance, extending through many townships and many counties, and from one end of the State to the other, should be so divided into pieces or sections, that each township assessor may assess just that portion of the road, which runs through his own township, without any regard to the value of the rest of the road, or without •taking the rest of the road into consideration. Probably •the legislature could provide for just such an assessment, but it would be very absurd in its practical operation. A -railroad is an entire thing, and should be assessed as a ■whole. It would be almost as easy and as reasonable to •divide a house or a locomotive into portions, and assess each portion separately, as to divide a railroad into portions,. and assess each portion of it separately. A portion of a railroad, running through one township only, would be worth but little if anything, while that same portion, in connection with the balance of the road, might be invaluable. The legislature have wisely provided that each road shall be assessed as a whole, and then, that the assessment shall be apportioned for taxation to each county, township, etc., through which the road runs.
The counsel for plaintiffs in error refers us to the case of the Exchange Bank of Columbus v. Hines, (3 Ohio Stat., 15,) but as the constitution of Ohio differs from ours in this respect, whatever may be the decision in that case, it has no application to this case. In Ohio, under their constitution, all taxation is to be by “ a uniform rule;” in this State, under our constitution, it is to be at a uniform rate. The difference is plain.
It is also claimed that said act is unconstitutional, because it provides “ for the assessment of property without the taxing districts, even to the assessment of property, both real and personal, lying in another State.” To some extent said act provides as is claimed; but the assessment of property out of the State or out of the taxing districts is not made for the purpose of taxing said property, but only for the purpose of ascertaining the value of the property within the State, and within the taxing districts. No taxes are ever levied under the act, except upon property within the State, and within the taxing district. As we have already stated, a railroad is an entire thing, and cannot well be valued or assessed except as a whole. Hence the provision of the act that provides for taking the entire value of the road, and dividing it up by a certain rule for each county, township, etc., through which the road runs, is, at least, a reasonable rule, and except in rare cases, is probably as good a rule for determining the true value of each particular portion of the road as any other rule that could be adopted. Ve shall not declare the rule unconstitutional until it be shown that it has in some instance worked injustice, or until it is shown that the operation of the rule has clearly violated some provision of the constitution. In this case it has hardly been shown that the objectionable part of the rule has been applied; at most, it has not been shown that any real estate, not in Kansas, was taken into consideration in fixing the valuation of the road. And with reference to the rolling-stock, we suppose that it may all be assessed in Kansas, notwithstanding that it may also be used in Missouri. If such be the case, then it is simply a benefit to the railroad to-have a deduction made on the rolling-stock, in proportion to the number of miles of railroad they have in Missouri. But even if the rule was applied in this case, it is not shown that it has worked any injustice to the plaintiffs-in error. It is not shown that the road was assessed at more than its real value. It is not even shown that it was assessed at its value, or at half its value, and probably it was not so assessed. The entire valuation of the road, with all its property, including “ the track, road-bed, right-of-way, water and fuel stations, buildings and the land on which they are situated, machinery, rolling-stock, telegraph lines, and all instruments connected therewith, material on hand and supplies provided for operating and carrying on the business of such railroad, together with the moneys, credits and all other property of such railroad company, used or held for the purposes of operating by such railroad,” was considerably less than twelve thousand dollars per mile.
The plaintiffs in error also claim, that the whole of said act is unconstitutional, because that portion of the same wbicb provides for an appeal from the appraisement of the county clerks to the supreme court is unconstitutional. There is but little foundation for this claim however. The appraisement of the county clerks does not in the least depend upon the action of the supreme court for its validity. Such appraisement or assessment is complete in and of itself, and entirely independent of any action of the supreme court, and is therefore valid, with or without an appeal.
II. "Were the proceedings by which the property of the plaintiffs was valued, and such valuation apportioned to the different counties along the line of their railroad, so irregular as to render the tax levied upon such valuation illegal and void? The plaintiffs in error claim that they were — first, because no-proper notice of the time and place of the meeting of the county clerks was given to the plaintiffs in error; secondT because no notice of the time and place of meeting of the county clerks was given to the county clerk of Orawford county, nor was he present at such meeting; third, because the deputy county clerk of Miami county was ad-admitted as a member of the board of county clerks, and participated in the proceedings of the board, in place of the county clerk.
Said ch. 124 is a part of the general revenue law of the State, and must be construed with other portions of the revenue law. It is entitled “An act amendatory and supplemental to ‘an act to provide for the assessment and collection of taxes,’ approved February 27th, 1868,” Section 113 of the said act entitled, “An act to provide for the assessment and collection of taxes,” (ch. 107, Gen. Stat., 1868,) reads as follows:
“ Sec. 113. No irregularity in the assessment roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding, or the title conveyed by the tax deed; nor shall any failure of ány officer or officers to perform the duties assigned to him or them, upon the day specified, work an invalidation of any such proceedings, or of said deed.”
It will be conceded that the notice to the railroad company was irregular, but only irregular. It mentions two of the county clerks along the line of the railroad but not all of them. It was not necessary however that it should mention all or any of them, and that portion which does mention two of them may be stricken out as surplusage. But the notice itself is not a notice of a jurisdictional character. It is not required for the purpose of giving the county clerks the power to assess the property, but only for the purpose of enabling the owner of the property to be present and see that his property is assessed at a fair value. Even if no notice had been given, the assessment would not for that reason be void. Notice to the owner of the property is never, so far as we are aware, made a prerequisite to a valid assessment. It is true that if. any injustice should be done to the property-owner on account of no notice being given, then lie would be entitled to some remedy. But such is not this case. No injustice or even hardship has been shown in this ease. We also think that this notice, though irregular, is sufficient under said section 113.
We are also inclined to think that section 113 will cure the second irregularity; but we do not propose to decide this question now, but will proceed to the consideration of the next question, which is, whether a deputy county clerk may in the absence of the county clerk perform theduties of the county clerk. This question we have already decided in the case of Amrine et al. v. The Kansas Pacific R. R. Co., (ante, p. 178.) "We think the record in this case shows that the county •clerk of Miami county was absent, and therefore that the deputy had a right to act in his place; but if it does not so show, still it will be presumed, in the absence of anything to the contrary, that the circumstances were such as to authorize.the said deputy to act. (Sexton v. Rhames, 13 Wis., 99, 101.)
We will now for the sake of this argument, and for - that only, consider that the said act, (ch. 124, Laws of 1869,) is unconstitutional and void, and that the said assessment was so totally at variance with the provisions •of said act, that if it has to depend for its validity upon that act alone, it is void, whether the act itself is void or not; and still we think the assessment, as made, is not void. Under the old law railroads were assessed by the ■ county clerks respectively of each county through which the road run — the county clerks acting separately, and not as a board, as under the present law, and the railroad companies were required to list their property for such assessment and for taxation. (Gen. Stat., p. 1030, § 29.) But if the railroad companies did not so list their property for assessment and taxation, and the same was omitted, then' the county clerk had the right, without such listing by the railroad company, to assess such property; (Gen. Stat., p. 266, §53; id., p. 1041, §65;) or, if the property was real estate, and the county clerk so chose, he could notify the proper assessor and let him assess it; (Gen. Stat., p. 1033, §38; or, if the same was personal property, the county commissioners also had the right to assess it. (Gen. Stat., p. 1041, § 65.) It seems from these statutes that it was not the intention of the legislature that any property, under any circumstances, should escape assessment and taxation. Even if a mer chant, trader, or freighter, commenced business in the county after the first of March, and before the first of November, it was the duty of the county clerk to assess such merchant, trader, or freighter., unless he had been previously assessed; (Gen. Stat., p. 1027, § 19;) and if any property entirely escaped assessment and taxation for the whole year, it was the duty of the assessor to assess it at double its value for the next year; (Gen. Stat., p. 1038, §55.)
Now while the laws of 1869 made some changes in the mode of assessing property at the first, or original assessment, for instance, providing that a board of county clerks, instead of the county clerks individually, should assess railroad property; (Gen. Stat., p. 1030, §29; Laws of 1869, ch. 124,) and providing that township trustees, instead of county assessors, should assess real estate, (Gen. Stat., p. 1032, § 31; Laws of 1869, p. 113, § 3,) yet no change has been made for the assessment of property that has been omitted to be regularly assessed; and hence it necessarily follows, that if the assessment by the board of county clerks was for any reason absolutely void, then, that each county clerk had the right to assess so much of the road as runs through his own county. Now the record in this case shows that Mr. C. Fitch, county clerk of Bourbon county, made the assessments of which the plaintiffs in error complain. It was upon his motion and at his figures that the whole road was assessed. It is true, that the manner of making' the assessment was irregular; but mere irregularities do not render assessments void in this State. (Gen. Stat., p. 1057, .§ 113.)
TTT. We now proceed to consider the last question in this case. Can the plaintiffs maintain this action, and are they entitled to the relief they ask ? If the said taxes were absolutely void; if the property was not subject to taxation; if it was exempted by law from taxation; or if the taxing officers had no jurisdiction over it, nor power to tax it, then there could hardly be any doubt of the right of the plaintiffs to. maintain this action, or of their right to the relief they ask. (Gen. Stat., p. 677, § 258.) On the other hand, if everything concerning the tax proceedings from the listing of the property for taxation up to and including said intended collection was entirely legal and regular, then clearly the plaintiffs would not be entitled to maintain this action, or any other action, and they would not be entitled to the relief they ask in this case, or to any relief in another case.
In the case at bar the tax is not absolutely void, and neither íb it free from all-irregularities. Can the plaintiffs then maintain this action to set aside said tax or to restrain its collection ? This depends, as we think, upon the question whether the tax is inequitable and unjust, or whether it would be against conscience and good morals to enforce its collection; for the order of injunction is an equitable remedy, which cannot be granted except in aid of equitable rights ; and a party who seeks equity must be prepared to do equity. No complaint is made in this case of the manner in which this tax is about to be cplleeted. If it can be collected at all, it seems to be admitted that the officers are proceeding in the proper manner. The complaint is, that the tax cannot be collected at all. The naked question then presented to us, is, whether it is equitable and right for the plaintiffs to pay said tax; or rather, whether it is equitable and right for them to pay any tax; for they have as yet made no offer, so far as is shown by the record in this case, to pay any tax, and do not even admit that they are in equity bound to pay any tax. They seem to desire to be freed from the payment' of all taxes. Is this equitable and just? “The payment of taxes equitably and fairly assessed is a duty which every man is under the strongest legal and moral obligation to perform to the government which affords him protection in his person and property. Governments cannot exist without their revenues, and taxes are levied and contributions enforced upon the principle that they are but just returns for the protection and advantages derived from them. In this sense a proper tax — one which is just and correct in principle— is a debt due the government, which the owner of property has no more right in equity and conscience to withhold, than the most sacred debt of a private nature. It is indeed, when seen in the light of reason and justice, far more sacred and obligatory, inasmuch as\ the considerations whence it proceeds are the highest and most inestimable rights and privileges enjoyed by the citizen. To withhold it, therefore, is a public wrong, which affects the whole community, and which cannot be justified or excused by any rule of equity or sound morality. This * * * is the just and enlightened view of a court of equity, which never moves except to prevent fraud and injustice, and where the relief asked conforms to the principles of rectitude and honesty. It is very well known that there are many persons whose moral perceptions are so obscure and confused, and whose selfishness is so great, that they seem to regard almost any means by which the revenues of the State may be defrauded, or moneys in the public treasury got out, as upright and honorable. One might suppose from their conduct that they considered such practices the highest evidence of' public virtue and patriotism. Unfortunately for such projects, courts of equity take a different view; and that branch, at least, of the government against whose success- and prosperity they are aimed, will, if applied to, promptly refuse its aid. The collection of a tax, under the statute, is a legal proceeding to enforce the payment of a debt due the public; and like proceedings at law upon a private claim, equity will only interfere to prevent injustice by the unfair use of the process of the law. The primary and controlling principle in such cases is, that the proceedings to be stayed are inequitable and unjust, and that it will be against conscience to allow them to go on.” (Warden, et al., v. Sup. Fond du Lac Co., 14 Wis., 619.) Is it equitable that a corporation, the mere creature of the laws of the State, should refuse to bear its share of the public burdens of the State ? The plaintiffs do not complain that the tax is too much; possibly, if their property had been assessed at its actual value, as the law requires that it should be, their taxes would have been double or treble what they are.
It is not sufficient to set aside this tax, or to grant the injunction prayed for, that other property in Bourbon county, or other railroad property in the State, has been assessed at a lower rate than the property of the plaintiffs. Perhaps the assessors of Bourbon county, or the assessors of other railroads, have not done their duty, and have assessed property too low; but that is not a sufficient reason for setting aside the whole of the taxes of the State, where a proper assessment has been made, as we must do if we set aside any portion of the same.
In conclusion we would say, that we do not think that any court of equity ought ever to interfere to set aside a tax that is merely voidable, or to restrain the collection of such tax by injunction, unless strong equitable grounds exist for such interference. Minturn v. Hays, 2 Cal., 590; Bank, &c., v. Hines, 3 Ohio St., 1; McCoy v. Chillicothe, 3 Ohio, 370; Brewer v. Springfield, 97 Mass., 152; Susquehanna, &c., v. Supervisors, 25 N. Y., 312 and cases; Burns v. Mayor of Atchison, 2 Kas., 454; Warden, et al., v. Supervisors, &c., 14 Wis., 619; Roseberry v. Huff, 27 Ind., 12; Gillett v. Webster, et al., 15 Ohio, 623; Bond v. Kenosha, 17 Wis., 284; Meyrick v. La Crosse, 17 Wis., 442; C. B. & Q. R. R. Co., v. Frary, et al., 22 Ill., 34.
No such equitable grounds are shown to exist in this ease, and therefore we think the court below did right in refusing to grant the temporary injunction asked for by the plaintiffs; and the orde? ... '.e court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This action was commenced before a justice of the peace on the 18th day of August, 1869, and was set for trial on the 23d of that month. On this last day the defendant (plaintiff in error,) applied for a continuance, which was granted, and the cause continued to the 22d of September. On that day he applied for and obtained a change of venue, and when the case was called for hearing on the 24th of September, by the justice to whom the cause had been transferred by the' change of venue, the defendant again moved for a further continuance which was granted, and the trial postponed to the 10th of November. On this day defendant moved to dismiss for want of jurisdiction, which was denied, and the case laid over to the 12th of November, when it was continued by agreement to the 9th day of December. On this day, the defendant appearing for the purpose of that motion only moved the justice to dismiss the cause for want of jurisdiction, which motion was granted, and judgment was given against the plaintiff for costs, amounting to $72.55. From this decision of the justice the cause was taken on error to the district court, and there reversed; and this judgment of the district court is now brought to this court for review.
The plaintiff in error claims that § 82 of the justices’ act, Gen. Stat., 794, compels the- discontinuance of a cause which by successive adjournments has been postponed more than ninety days from the return-day. This is probably not the true construction of the section ; but however that may be, the party at whose instance and by whose agreement the delay has been had, is in no position to make such a motion. He could not induce the court to adjourn itself out of jurisdiction, and then make of that fact a defense. If the justice had no jurisdiction by what right did he render judgment for $72.55 costs against the plaintiff?
The judgment of the district court is affirmed.
All the J ustices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The proceeding in the court below, of which the plaintiff in error complains, was an order of the district court of Leavenworth county amercing him as sheriff of Wyandotte county. The plaintiff in error was charged with neglecting and refusing to execute a a writ of execution directed to him from the district court of Leavenworth county; and he was also charged with neglecting and refusing to return said writ to said court. It appears from the record in this case that the plaintiff in error had once been sheriff of Wyandotte county, but that his term of office had expired before this proceeding to amerce him was commenced; and at no time during the prosecution of this proceeding was he sheriff' of Wyandotte county. He therefore, for that reason claims, that he could not be amerced. He 7 claims that a sheriff except one in office is that kind of prosecution; for instance, he claims that a sheriff may, while in office, commit any official wrong whatever, and if he should be threatened with, or if he should apprehend any prosecution, by amercement, for the wrong, he could resign his office and thereby evade and escape the prosecution. We do not think that such is the law. Huslick v. Allen, 1 Cox (N. J.,) 168; 169; Graham v. Newton, 12 Ohio, 210. Where a proper case is made, a sheriff whose term of office has expired may undoubtedly be amerced, as well as one who is still in office; but of course the amercement must be for some official misconduct.
The said writ of execution was issued on a judgment in favor of the defendants in error, and against one John Hammill. The service of the summons in the case in which this judgment was rendered was made on Hammill on the return-day of the summons, and not before, and the judgment was rendered against Hammill by default, no appearance having been made. The plaintiff in error therefore claims that the judgment was void because the summons was not served until the return-day thereof. It is true that the' service on Ham-mill was irregular; Gen. Stat., 642, § 64 ; Dutton v. Hobson, ante, p. 196; but the judgment was not for that reason void; it, at most, was only voidable, (Meisse v. McCoy’s Adm’r, 17 Ohio St., 225,) and can be attacked by Hammill only, or by his legal representatives, and only by a direct proceeding instituted for that purpose. The sheriff has no right to raise any objection to such a service, or such a judgment. Shearman & Red. on Neg., 2d ed., § 528, and cases there cited; Gwynne on Sheriffs, 1st ed., 574, 581; Duncan v. Drakely, 10 Ohio, 45, 49. Said judgment is valid until set aside or reversed.
The said writ of execution was issued on the 6th day of December, 1869, and the sheriff had sixty days from that time in which to return it to the court from which it was issued: Gen. Stat., 720, § 469. ppe coui(j not "be compelled to return it before the end of the sixty days, and could not be held liable for any neglect or refusal to return the same before that time. Before the sixty days had elapsed, the said, Armstrong ceased to be sheriff of Wyandotte county. His term of office as sheriff expired on the 10th day of January, 1870, but the said sixty days did not elapse until the 4th day of February, 1870. At the time that his term of office expired, the execution was still in his hands, but he had done nothing under it. He had made no levy under it, and had not even delivered it the clerk of the district court of Wyandotte county to be entered on the execution docket of that county; (Gen. Stat., 722, §475.) He had not 14 begun to execute ” the writ 44 by service, levy, or collection of money thereon,” within the meaning of § 109 of the act relating to counties and county officers: ch. 25, Gen. Stat., 279. Then what was his duty with reference to said writ ? As he had not com menced to execute the writ while he was sheriff, he had no power to commence the execution of the same after-wards, and neither had he any power to return the writ to any court. Only one thing remained for him to do. It was his duty to deliver the writ, on demand, to his successor in office : Gen. Stat., 279, § 108. But he is not charged with failing or refusing to perform this duty; and if he was so charged, amercement is not the proper remedy; and neither is it shown that any demand was ever made for the writ. But he is charged with neglecting and refusing to execute the writ; and counsel for defendants in error seem to claim that the execution of a writ means, in such a case, the delivery of the same by the out-going sheriff to his successor. Ve do not think so. To execute a writ,' means, to carry put the command of the writ. A sheriff commences to execute a writ of execution when he commences to levy upon the property of the judgment debtor, and not before. In this case the sheriff never commenced to execute the writ; and after his term of office expired he had no power to commence the execution of the same. From the foregoing we draw the following conclusions : First: As it never was the duty of the said sheriff either before or after his term of office expired, to return said writ to any court, therefore he cannot be amerced for failing or refusing to return the same to the district court of Leavenworth county. Second: As the said sheriff never had the power to execute or commence the execution of said writ after his term of office expired, therefore he cannot be amerced for failing or refusing to execute said writ after his term of office expired.
The next question, and one that is more difficult, is, whether the said sheriff is liable for neglecting or refus iQg to execute said writ before his term of omce expired, or tor neglecting or refusing to A 00 o commence the execution of the same before that time. It is undoubtedly the duty of a sheriff to levy on the property of the judgment-debtor as soon as he conveniently can after receiving the writ; (Gen. Stat., 714, §448;) but he is not bound to levy where the judgment-debtor has no property subject to an execution; nor on goods and chattels where the title to the same is doubtful, unless the judgment-creditor gives.him an indemnity bond; (Gen. Stat., 715, §449;) nor generally on real estate, unless the same is pointed out to him by the judgment-creditor; (Shear. & Red. on Neg., §524; Palmer v. Gallup, 16 Conn., 555; Betts v. Norris, 15 Maine, 468;) and in no case is he required to exercise more than reasonable and ordinary diligence to discover property belonging to the judgment-debtor. (Shear. & Red. on Neg., §§ 521, 522, 523, and cases cited.) “Ordinarily the sheriff has until the return-day named in the writ or process within which to execute it; ” (Shear. & Red. on Neg., § 521, and cases cited;) and if he does not serve the writ until the return-day, he will not be presumed to have been negligent, unless there are special circumstances which show him to have been negligent. “ If the plaintiff in the writ * * * directs an immediate service, the sheriff is bound to follow such directions, and on failure is answerable for the consequences: ” (Shear. & Red. on Neg., § 251.) Or, if the sheriff should have reasonable grounds to believe that if he did not immediately serve the writ, there would be danger of loss to the judgment-creditor from his delay, he would be bound to serve the writ immediately, or be answerable for the consequences. There-is always a strong presumption in favor of a public officer that he has performed the duties of Ms office faithfully; (Shear. & Red. on Neg., § 169, and cases there cited;) and if any person should claim that an officer has not performed his duty, it will devolve upon such person to affirmatively show it.
In the case at bar, there was no evidence that tended to prove that the judgment-debtor had any personal property ; and there was but very little evidence that he had any real estate. The evidence upon this subject is in a deposition of John M. Funk, and is as follows : “ Mr. Armstrong about the month of December, 1869, told me he had received an execution from Hurd & Birnie in favor of Grant & Prest, of Leavenworth county, and against John Hammill, and asked me if I knew anything about his lots in Wyandotte City. He said he wanted to make a levy on his lots here, (at Wyandotte.) He said he was referred to. me for a description of the lots. I told him I had the numbers of his lots in my office. I hadn’t them with me. I told him I would give him the numbers at any time he would call at my office. * * * Afterwards I called upon Armstrong at the request of Hurd & Birnie, to find out what he had done with the execution in favor of Grant & Prest, and against Ham-mill. He said he had never levied on Hammill’s property here ; had not done anything with the execution. He said he had returned the execution to the parties who sent it to him.” If this was any evidence that Hammill owned any property in Wyandotte county it was certainly very weak evidence. If Hammill owned any lots in Wyandotte City, what was his title ? legal or equitable, absolute or conditional, incumbered or unincumbered? and were the lots subject to an execution, or were they his homestead, and exempt from execution? None of these questions are answered by the evidence. The presumption is that the sheriff did his duty, and it devolves upon Grant & Prest to show that he did not. If Ham-mill had any property that was not exempt from execution, it devolved upon Grant & Prest to show it; otherwise it will be presumed that Hammill had no property which was subject to an execution. And in order to make the sheriff liable for not serving the writ- within the thirty or thirty-five days within which he had the power to serve it, some special circumstances of negligence must be shown. This we think the plaintiffs below failed to do. They did not designate the property upon which they desired to have the sheriff to levy. The most that they did was to refer the sheriff to another person. The sheriff went to this other person and told him that “ he wanted to make a levy ” on Hammill’s lots, but this other person could not then give a description of the lots. Was the sheriff required to call again? Was he culpably negligent for not calling again within the thirty or thirty-five days that he held the execution ? Or had the plaintiffs themselves done enough on their part to make the sheriff culpably negligent for not levying within that time ? Besides, it is not shown that Grant & Prest have lost anything on account of any failure of the sheriff to serve said writ before his term of office expired; and as we have alieady stated, in order to make a sheriff liable for not serving a writ on some day before the return-day, it is necessary to show some special circumstances of negligence; as that he was ordered to serve it, and neglected or refused; or, that some loss accrued on account of his neglect to serve the writ sooner.
We do not think that the court below was bound to make special findings on the determination of said motion. The action of the court in such a case is on a written motion, and not on pleadings; its determination is an order, and not a judgment; and while, of course, it is necessary for the court to make mental findings, it is not necessary that these findings should he made a part of the record. The order is founded on, and stands or falls by the evidence; while a judgment is founded on, and must be sustained by the finding of the court, the verdict of a jury, or the report of a referee. The motion was heard on written evidence entirely, and hence we can examine the evidence and weigh it, just as intelligently as the court below could
The order of the court below, amercing said sheriff is reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Many of the facts in this case are the same as the facts in the case of Carson v. Kerr, just decided, (ante p. 268.) Both cases have grown out of Carson’s contract to furnish hay to the government. Up to the settlement between Carson, Weed, and Saunders, mentioned in said case, the facts of the two cases are identical. At that settlement, as has been stated in the other case, Weed took the vouchers, and drew bills of exchange, commonly called drafts, on Scott, Kerr & Co., in favor of Carson and Saunders, for the amounts found to be due to them respectively. This action is on the draft drawn in favor of Saunders. It reads as follows
“Leavenworth City,iDec. 1st, 1864.
“ Sixty days after date (acceptance waived) pay to S. Saunders, or order, three thousand nine hundred and sixteen dollars, value received, and charge to account of . T. J. Weed. .
“ To Scott, Kerr & Co.” ' .
This draft was assigned by Saunders? after due,' to John M. Liggett and others. Liggett’s interest in the draft is $500. The draft has not been paid. It was never accepted by Scott, Kerr & Co., except by a conditional acceptance, and that condition has never been fulfilled. No notice of non-acceptance, or of the.conditional acceptance, or of non-payment was given to Weed. Upon these facts is Weed, or Scott, Kerr & Co., liable to J. M. Liggett on the draft ? We think not.
First. Notice of nonpayment should have been given to Weed. No excuse for not giving said notice has been shown. Weed had a right to expect that said draft would be paid at maturity. He had drawn at different times before that time on Scott, Kerr & Co., to the amount of $13,300, and all his drafts had been honored without exception, although as he testifies, he had no special right or special authority to so draw. But when he drew this draft, he had a right to draw, and a right to expect that it would be paid at maturity. The evidence seems to show that the draft was drawn with the consent of John Kerr, a member of the firm of Scott, Kerr & Co.; and Carson testifies that it was drawn by the direction of John Kerr. There is nothing in the evidence that tends to show that Weed did not have authority to draw this draft and to draw all other drafts that he drew on that day. Weed’s testimony certainly does not show that he had no such authority. His testimony referred to by plaintiff’s counsel, refers to drafts previously drawn by him on Scott, Kerr & Co. It is true, that the evidence seems to show that at the time Weed drew this draft he was owing Scott, Kerr & Co. the said sum of $13,-300; and it is also true that the evidence seems to show that at the time he drew this draft, he drew other drafts on Scott, Kerr & Co. amounting in the aggregate, including this draft, to the sum of $9,000, making a total of $22,300 i yet the evidence clearly shows that at the same time he deposited with Scott, Kerr & Co. government vouchers to the amount of $28,896; and all parties seem to have supposed that these vouchers would soon be paid. If it should be admitted or held that "Weed waived notice of non-acceptance, still it must be held that he was entitled to notice of nonpayment, and such notice not having been given, he was released from all liability.
Second, Scott, Kerr & Co. can only be made liable within the terms of their acceptance. They did not agree to pay a dollar on the drafts until the terms of their acceptance should be fully complied with. And as said terms have not yet been complied with, they are not liable. The plaintiff’s claim is $500, and the most that he can claim is, that after Scott, Kerr & Co. shall have collected all of said vouchers except the sum of $500, and appropriated the same to other purposes, that they shall then appropriate the other and last $500 to the payment of his claim as they collect the same.
There are other objections probably fatal to the plaintiff’s claim, which we do not think it is necessary to discuss.
The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The appellant was tried for murder at the December Term of the Criminal Court of Leavenworth county, and sentence of death was pronounced upon him by the court. In bringing the record to this court, his counsel urges many errors, which will be considered in their order, so far as they are deemed important.
I. It is claimed that the testimony of Joseph Anderson, as to certain statements made to him by the prisoner was improperly admitted, because when such statements were made the appellant was in custody of an officer, but not held by any legal process, and was therefore under duress; and because a mob was gathered around the place of his confinement, threatening violence to him. The record does not disclose the state of facts claimed by counsel for appellant. It is true that he was in the custody of a proper officer, without process, and that there were quite a number of persons about the place of his confinement; but no such threats or indications of violence are shown as would tend in the slightest to intimidate the prisoner. Nor does it seem that he was intimidated. The statements of the prisoner testified to were not brought out by threats, promises, intimidation or artifice, or by any inducements on the part of the witness or any one else.
II. The next objection is that a certain question, put by thé State to Doct. Bonifant was not proper on cross- ■ examination. The witness was introduced by the defense, and testified that he had been a physician and surgeon since 1848-9; had known the defendant eighteen or twenty years; that he had, when six or seven years of age, been kicked on the head by a colt, whereby his skull was broken, and about a teaspoonful of his brains lost. Witness further testified that about four years ago defendant was stabbed through the skull near the place of the first wound, and that a small fragment of the knife blade remained in the head; that in both of these instances witness had attended upon him as physician and surgeon. On the cross-examination the counsel for the State asked him this question : “ State what in your judgment was the effect of the wounds received by defendant, as described, upon the mind of the defendant ? ” This was proper cross-examination. The object of the defense was to show by the testimony of the witness that certain events in the history of the prisoner had a tendency to bring on a diseased condition of the brain, and the State had a right not only to test the capacity of the witness by such a question, but as also asking further about facts already elicited from the witness by his examination in chief.
Doct. Thomas was introduced by the defense as an expert. On his cross-examination, the counsel for the State put a hypothetical question, intended to cover all the circumstances detailed by the witnesses on the trial) and asking from these facts whether the witness would consider a person so acting a person of unsound mind. It is claimed that the hypothesis falls far short of including all the facts in testimony in the case; but in what particular has not been pointed out by the counsel for the appellant. Nor have we been able to perceive. Nor is it now material to determine whether such is the fact, because on cross-examination great latitude is necessarily indulged, that the intelligence of the witness, his powers of discernment, and capacity to form a correct judgment may be submitted to the consideration of the jury before whom he has testified, that they may have an opportunity of determining the value of his testimony, and for these reasons, the question asked was not a departure from the rules regulating the cross-examination of witnesses.
III. The State introduced Dr. Brock, who testified that he was a physician and surgeon of fourteen years practice and experience, had studied psychological medicine some, and had had experience in the incipiency of mental diseases. The witness then testified as to certain methods of investigating the sanity or insanity of a person and was then asked this question: “Would not the manner in which the act was done, the circumstances of the ca.se, the absence or presence of apparent motive, and the whole details of the transaction be considered by scientific men in determining the question of sanity or insanity ? ” This question was objected to because the witness had not shown that he had made diseases of the mind a special study. The objection was overruled, and we think correctly. He had brought himself within the rule admitting his testimony as an expert. See 1 Grenleaf Ev., § 440; Wharton’s Cr. L., §§45, 46, et seq. The extent of the witness’ knowledge of a particular branch of medical sciénce only goes to the credibility of his testimony.
IV. This brings us to the consideration of the instructions given and refused upon the trial; and the subject is embarrassing, not from any inherent difiiculty in the questions presented, but as the defendant excepted to all the charge of the court, and on the other hand asked a great number himself, and ex cepted to the ruling of the court in refusing to give those that were not given. Of the forty-five instructions asked, twelve were given as asked; and more than that number of the others were embodied in the charge of the court, and their repetition was not only unnecessary, but would have been improper. Some of the others were abstract propositions of law, not tending to assist the jury in the duty of passing upon the guilt or innocence of the accused, but calculated rather to embarrass them in their deliberations. For instance, of what value would it have been to the ascertainment of the great fact of guilt or innocence, to have had thrown into their minds the metaphysical question as to whether the law asks revenge for offenses against its injunctions or not, as was demanded in one of the instructions asked ? Again, still other of the instructions asked and refused were mainly correct expositions of the law, but needed some modifications to make them unobjectionable in the case on trial. The purpose of one of these instructions, is, to lay down as law, that where unsoundness of mind is once shown to exist, it is presumed to continue to exist until the presumption is rebutted by compejt jr j r tent proof, beyond a reasonable doubt. Now, if this instruction had limited the unsoundness of mind once shown to exist to habitual unsoundness, it would have been good law; but temporary insanity does not draw after it any such presumption. (Whar. Cr. L., § 56.) Drunkenness is temporary unsoundness of mind. Does it draw after it any such presumption ? Ve fail to perceive any error in the instructions of the court prejudicial to the defendant, or in the refusal of the court to give those asked.
There is one point however, which demands more particular attention from us. One of the grounds of defense in this case was insanity; and two questions 7 x of grave importance are raised in the -argument and are pressed with great earnestness by the counsel for the appellant. These are — -first: Must the fact of insanity when set up as a defense be established by a preponderance of testimony? and second: What, if any, degree of unsoundness of mind will excuse the commission of an alleged crime ? On the first of these points the law given by the court below to the jury is as follows:
“That before the jury could convict they must find that said Reddick was at the time a person of sound memory and discretion. The law presumes every man to be sane, and that he is responsible for what he does. If however in'any case, testimony be introduced tending to show insanity, then the sanity of the accused must be shown by the State, as any other fact in the case, to the satisfaction of the jury. Each and every allegation going to make up the offenses I have described to you must be proved to your satisfaction beyond a reasonable doubt; and the burden of proof is upon the State; and if you have a reasonable doubt of any such material fact in either of the offenses named you are bound to acquit the defendant of such offense.”
“If the jury find that he committed the homicide, the prisoner is not guilty unless he was of sound mind at the time of the offense charged; and the jury to convict the prisoner of the offense charged must find, beyond a reasonable doubt, the existence of every element necessary to constitute murder in the first degree.”
This last paragraph was given at the instance of defendant’s counsel; and while it was not necessary that every element necessary to constitute murder in the first degree should be proved beyond a reasonable doubt to convict, because the defendant might have been convicted of murder in the second degree, or manslaughter, without proof of facts necessary to convict of murder in the first degree, still the error is not one of which defendant can complain, as it was given at his instance and was in his favor.
The charge and instructions of the court as set out above are as favorable to the defendant, on the point of insanity, and the measure and burden of proof therein, as can be claimed under the new rule recently adopted in the courts of some of the States. The substance of the charge is, that sanity, if attacked by testimony, is to be proved by the State as any other fact, to the satisface tion of the j ury, and each and every fact must be proved beyond a reasonable doubt. This is laying down the rule as broadly as it has been announced anywhere, and as plainly. It is a great innovation on the decisions on this questions almost uniformly made till within a recent period. The rule having thus been laid down most favorable to the defendant, he cannot complain; and the State is claiming no error; so that the really embarrassing question argued with so much skill by the counsel for the appellant is not before this court, and no opinion is expressed thereon. . We prefer in deciding a matter of so much importance, to do it in a case where the question is made in the record, and its decision a necessity.
On the point as to what if any unsoundness of mind will excuse the commission of an alleged crime, we do not propose to comment at any length. The charge of' the court on this point seems to have been carefully drawn, and fairly guarded alike the rights of the prisoner and the interests of society, so far as the same can be done in the present state of knowledge. “ The results of “scientific investigations on this intricate subject are so “ imperfect as to render it very difficult to establish any “ general rule by which judicial proceedings of a criminal “ nature should be governed, when the defense of insanity “is interposed.” (Hopps v. People, 31 Ill., 385.) No certain or definite rule can be deduced from the decisions, or from the writings of men learned in psychological science. It is to be hoped that at sometime such tests may be established as will be unerring in' their nature. At present the most that can be done is to so shape the law in each particular case, that all may feel assured that there is no danger of an insane man being punished, or a person made to suffer for an- offense to which his mind never assented. Such a result we think was insured in the charge of the court in this case. See Commonwealth v. Rogers, 7 Met., (Mass.) 500, with reference to which the charge of the court on this point seems to have been drawn.
V. On the motion for a new trial two grounds of error only are alleged in this court. The first one does not appear in the record. The recital of a fact in a motion for a new trial does not establish it as a fact, or make it a part of the record. If it did we should approve the course of the court below on that matter.
A second ground for a new trial is, that the verdict is not such that a judgment can be based upon it. The verdict is in these words : “ We the jury find the prisoner auilty as charqed.” The objection ver(3ict is? that it does not specify of what degree of the offense the jury find the defendant guilty, as is required by § 239 of the criminal code. That section is as follows:
“ Upon the trial of any indictment or information for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.”
The statute is plain and positive. A long train of decisions in other States have held such a defect fatal. McGee v. State, 8 Mo., 495; State v. Upton, 20 Mo., 400; State v. Moran, 7 Iowa, 230; State v. Redman, 17 Iowa, 329; Cobia v. State, 16 Ala., 783; Zully v. People, 6 Mich., 273; Mitchell v. State, 5 Yerger, 350; Kirby v. State, 7 Yerger, 259; McPherson v. State, 9 Yerger, 280; Dick v. State, 3 Ohio St., 89; Parke v. State, id., 101; Slaughter v. State, 24 Texas, 410; Thomas v. State, 5 Miss., 32; The State v. Dowd, 19 Conn., 388, are among these decisions, and are deemed the most important. These cases have presented the question in almost every phase of it, and if authority and positive statutory provisions amount to-anything must be deemed conclusive in this case, and the defect held fatal. We have been unable to find in any State having statutes similar to our own, a decision to break the current of the authorities cited.
We are referred to the instructions of the court to show that murder in the first degree is what the jury intended by the verdict; and we find it so. But the verdiet must speak for itself. If we are to go elsewhere for it, then the verdict is made up by construction and comparison, not by the words of the jury, made under the-solemn sanction of their oaths, l We might as well look to the evidence as to the instructions. We cannot by construction say a man must die upon- a verdict of “ guilty as charged,” upon an information that contains in its one chargé of murder in the first degree, charges also of murder in the second degree, and manslaughter in four degrees, and of either of which he might have been found guilty under the same information, and for either of which a lighter punishment is inflicted. The information is good. Because the verdict is not sufficient to base a judgment upon, the judgment is reversed, and a new trial awarded, as asked by appellant.
Valentine, J., concurring.
Brewer, J., having been of counsel in the court below, did not sit in the case. | [
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The opinion of the court was delivered by •
Kingman, C. J.:
On the 3d of September 1860, plaintiff in error brought his action in the first district court of the Territory of Kansas, sitting in and for the county of "Wyandotte, for the trial of causes arising under the constitution and laws of the United States, by filing his petition therein. The, petition alleges that the plaintiff' was at the time a citizen- and resident of the State of Massachusetts; that part of the defendants were citizens and residents of the Territory of Kansas, part of them citizens and residents of Missouri, and the remainder citizens and residents of New York. The object of the petition was to obtain judgment on certain notes amounting to $843.47, and interest for nearly as much more, and the foreclosure of a mortgage given to secure the payments of the notes, on certain real estate in Wyandotte county. Before the action was determined the court in which it was prosecuted ceased to exist by reason of the admission of Kansas as a State. On the 15th of October, 1869, the original papers, together with copies of certain proceedings in the cause had in the United States District Court for the District of Kansas, were filed in the clerk’s office of the district court of Wyandotte county. On the 10th of March, 1870, certain of the defendants, being then served with process, moved the court to have the case stricken from the files of the court, appearing in court for the purpose of that motion only. This motion was granted. This order is claimed as error, and its reversal sought in this court.
The only question for us to determine, is, whether the case was by proper legal authority on the files of the Wyandotte District Court. With the history of the case, from the admission of Kansas into the Union up to the time of its being filed in "Wyandotte county, we have at present nothing to do. That the case was rightfully brought; that it is one cognizable by the Federal Courts, and that the court in which it was brought ceased to exist on the 29th of January, 1861, are conceded propositions. The plaintiff in error claims that the case was removed by virtue of the provisions of the schedule of the constitution in section eight. If this section were self-executing, such a conclusion might and probably would be coi’rect, and we would then have to inquire how far the State authorities had power to control the property and records of the courts of the United States; but the ^section itself does not by its terms profess to make any change in the control of records, papers, etc., of any action, but charges the legislature with that duty by providing, in the latter part of the section, that “the legislature shall direct the mode in which such suits, pleas, plaints, prosecutions and other proceedings, and all papers, records, books, and documents connected therewith may be removed to the courts established by this constitution.” Thus, while the constitution provided the jurisdiction, the mode of transferring cases to this jurisdiction was to be provided by law; and until some action of the legislature there could be no cases transferred on which the jurisdiction granted by the constitution could operate. The legislature in making provision for such change, saw fit to make provision for only such of the cases as were not cognizable in the Circuit and District Courts of the United States: §2, pp. 238-9, Laws of 1861.
The plaintiff in error claims that the exception in the section, as to such cases as are cognizable in the United States Courts, is unconstitutional, and must be disre garded. The argument is briefly this: The constitution contemplated the removal of all cases. The legislature in excepting a certain class of cases, disregarded the constitutional requirement, and their action in making the exception should be held for naught. The error in the reasoning is this : In providing for the removal of the records and papers of the courts of the late Territorial Courts to the State Courts, it was competent to do so by different laws and in different ways. They might provide for the removal of a part one year, and another part another year. In the law of 1861 they provided for the removal of a part only. They have done so by the terms of the law, in a way hardly susceptible of misconstruction. That the legislature has not seen fit to make provision for the removal of the residue of the cases, is nd argument against the just construction and constitutionality of § 2, above referred to.
Again, plaintiff in error claims that such a construction should be given to § 2 of the law of 1861 as would except only such cases as were exclusively cognizable in the United States courts. To do this would require the interpolation of a word that would materially affect the status of a large number of cases not contemplated by the legislature. "We find the language positive, and we are not authorized under the pretense of construction to enlarge it or add to it by what would more appropriately be called legislation than construction.
"We are referred to §4 of the act admitting Kansas into the Union to show what jurisdiction congress reserved to the Federal Courts, and by inference what was left to the State Courts. This section neither confers, nor was it possible for congress to confer aDy jurisdiction on the State Courts. That part of it which makes the Supreme Court of the State the successor of the Supreme Court of the Territory for.certain very limited purposes, was inserted to obviate certain difficulties that bad previously arisen on the change from a Territorial to a State government in other cases. Congress had already made pro- . vision for the transfer of all cases of a Federal character and jurisdiction from the Territorial Courts to the Federal Courts: § 2, 9 Stat. at Large, pp. 211, 212, and § 8, 10 id., 130. See also Express Co. v. Kountze Brothers, 8 Wall., 343. Until, therefore, some legislation authorizing it, the district court had no rightful control of this case. It had nb legal status in that court, and was properly dismissed, and its action in the premises is affirmed.
All-’the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an application for a mandamus-compelling defendants, who are alleged to be county officers of Ottawa county, to remove their-offices with all records, books, and papers to the town of Lindsey in said county. The respondents-have moved to set aside and quash the alternative writ heretofore issued, on the ground that the same does not state-facts sufficient to entitle the relator to the relief sought. This motion to set aside is equivalent to a demurrer to a. petition in an ordinary action.
II. The question to be decided in this case .is not whether the relator is entitled to relief, but whether the *8 entitled to relief in this way, that is, by mandamus. “ This writ may not be issued in v u aDy cage there is a plain and adequate ‘‘ remedy in the ordinary course of the law;” § 689, civil code. It appears from the writ' that the respondents removed their offices from Lindsey to Minneapolis about the first of June, 1870, alleging as a reason therefor that at an election held on the 21st of May, 1870, for the relocation of the county-seat of Ottawa county, the town of _ Minneapolis received a majority of all the votes cast, and that the county commissioners duly canvassed the votes, •declared the result, and required them to move their offices to Minneapolis. The relator further alleges, (as shown by said writ,) that such supposed election was invalid because no sufficient order for such election was ever made by the county commissioners, and no notice vof an election on said 21st day of May ever given or posted. These allegations present a question as to the validity of the election of May 21st, 1870. The act of 3d March, 1869, (eh. 27, p., 101, ) furnishes a plain and adequate mode in the ordinary course of law for testing such •question by contesting the election. The fact that the time in which relator could initiate such contest has passed, makes no difference. If he ever had the right, and has slept upon that right, he cannot now plead his own laches as a ground for obtaining a remedy which otherwise he would not be entitled to.
III. But counsel for the relator claims that the errors he presents as vitiating that election are such as cannot inquired into in proceedings under said ch. 27, Laws of 1869; that in proceedings under 8£1^ ac.f. fjjg inquiry jg limited to the reception of illegal or rejection of legal votes, the conduct of the judges, the form of the returns, and other circumstances of the voting and canvass of the votes. The errors alleged in this case are antecedent to the vote, and in matters upon which the right to have a vote depends. Notwithstanding something of ambiguity in the language we are constrained to the opinion that the construction claimed is an undue restriction of the meaning and reach of the act. Section one gives the elector the “ right to contest the validity of the vote.” Now, the “ validity” of the vote depends as much on the steps anterior to the opening of the polls, as on the manner of opening the polls and receiving the ballots. It is a general, comprehensive term, and includes all those matters and things which go to affect the conclusiveness of the result Bought to be attained by the vote. Again, section eight provides that if upon the trial the court finds “ that illegal votes were cast, * * * by reason whereof, or for any other reason, whether the same be illegal votes or illegality of any kind in the election, or any proceeding therewith connected., the result of said election or vote thereupon * * is contrary to law, * * * it shall be the duty,” etc. Section nine also reads: “But if said court * * * find that the result of said election or vote would not .by reason of illegal votes, or other sufficient cause affecting its legality ” etc. These two sections seem to us ,to strengthen the construction we have placed on the language used in the first section.
It appearing to us therefore that the relator had a sufficient remedy under said act, we sustain the motion to set aside the writ at the costs of the relator.
All the Justices concurring. | [
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The following opinion was filed by
Brewer, J.:
This was an action brought under the provisions of Art. 29 of the code of civil procedure, by the plaintiff in error, plaintiff* below, to recover the office of Mayor of the City of Leavenworth, and to oust defendant therefrom. The petition was filed in the court below on the 4th day of June, 1870; and on the 2d of July, an answer was filed containing five grounds of defense. To the fourth defense plaintiff demurred. On the argument of the demurrer, the defendant suggested that the petition did not contain facts sufficient to constitute a cause of action, and asked the court to carry said demurrer back to the petition, and to sustain it thereto. This was done. The court found the petition defective, sustained the demurrer thereto, and no application being made for leave to amend, rendered judgment in favor of defendant for costs. Such judgment is now brought here for review.
The right of the court, upon suggestion, to carry the demurrer back and apply it to the first fault in the pleadings is conceded by counsel for plaintiff in error, as well as fortified by the abundant citations in the brief of counsel for defendant in error. Does the petition state facts sufficient to constitute a cause of action ? It alleges that at the election held in the city of Leavenworth on April 5th, 1870, said plaintiff and defendant were the only candidates for the office of .Mayor; that by the returns of the judges of said election made to the city council, it appeared that 1458 votes were cast for John A. Halderman, and 1406 for Daniel N. Anthony, and none for any other person; that afterwards a certificate of election was issued to said Halderman, who took the oath of office, and has since been acting as Mayor. ’ It further alleges that on the 30th of March, that being the day of registration, certain persons, laming them, in all fifty-three persons, were “ residents of said city, to-wit, of the “ fourth ward thereof; and that each of said persons was “ on said March 30th a free male person, over twenty- “ one years of age, a citizen of the United States, and “ had resided in said city more than six months, next “ prior to said March 30th, and was a colored person of “ African descent, with a preponderance of African “blood; but was, by reason of the premises, a legally “ qualified voter in said city in the ward in which he re- “ sided.” There is a similar allegation in reference ta seventy-seven persons, naming them, residents of the second ward. The petition alleges further, that these persons applied to register, were refused; applied to vote, tendering ballots with plaintiff’s name thereon for mayor, but were refused and their ballots rejected. It alleges that those ballots should have been received, and if received, would have given plaintiff a majority.
Do the facts thus alleged show that the persons named were qualified voters in their respective wards ? A A jf n0^ their registration and their ballots were both properly refused. The constitution, Art. 5, § 1, reads — ■
“Every white male person, of twenty-one years and upwards, belonging to either of the following classes, who shall have resided in Kansas six months next preceding any election, and in the township or ward in lohich he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector.”
The object and effect of the Fifteenth Amendment to the Federal Constitution were to place the colored man in the matter of suffrage on the same basis with the white. It does not give him the right to vote independent ot the restrictions and qualifications, such as age and residence, imposed by the State Constitution upon the white man. The colored man, to become a voter, as well as the white man, must be twenty-one years of age, six months a resident of the State, and thirty days a resident of the township or ward. That amendment operates no further than to strike the word “ white ” from the State Constitution. Now, this petition alleges that these persons were over twenty-one years of age, and had resided six months in Kansas, and six months in the city of Leavenworth, but nowhere alleges that they had resided in the ward in which they offered to vote thirty days prior to such election. Failing to show this, it fails to show that they were qualified voters, or that they were improperly refused registration, or that their ballots were illegally rejected, or that the plaintiff failed to receive all the legal votes to which he was entitled. For this reason the ruling of the court below in sustaining the demurrer to the petition was correct, and should be affirmed.
Again: The petition alleges that at the first meeting after the election the city council opened the returns, and it appearing therefrom that John A. Iialderman had received a majority of the votes cast, the plaintiff thereupon gave notice to the city council that he desired to contest the election; that the council fixed a time and place iot nearing such contest; that plaintiff served a notice of the grounds of such contest upon said defendant; that the council met at the time and place, and after hearing evidence offered by plaintiff, ruled that it could not inquire back of the returns of the judges, and ordered the city clerk to record the name of defendant as mayor, and issue him a certificate thereof. This amounts substantially to an allegation that plaintiff applied to the city council as a tribunal to hear and determine the contested election case between himself and defendant, and that that tribunal ruled adversely to his claim. Can he re-litigate that question elsewhere ? It is a general rule, which none will gainsay, that where any tribunal has jurisdiction of the subject-matter of and the parties to any controversy, and renders a judgment thereon, such judgment is conclusive between the parties. If the rulings of that tribunal are adverse to one party, and wrong, he should seek to correct that judgment by error or appeal. Failing to do that he is estopped from further inquiry. Nor would a failure to provide for a review of such rulings and judgment, by an appellate tribunal affect the conclusiveness of such judgment. There are many questions which the Legislature has wisely provided shall be finally decided by the tribunal having original jurisdiction. Section 15 of ch. 18, Gen. Stat., 1868, “An act to incorporate cities of the first class,” as amended March 2d, 1870, granting powers to the city council, empowers it, (Laws of 1870, page 103, clause 25,) “ To provide by ordinance for the election of “ city officers, and prescribe the manner of conducting “ the same, and the returns thereof, and for deciding “ contested elections in any manner not in conflict with “ existing -laws.
This section in terms empowers the city council to act as a board of canvassers, in which capacity it looks only at the returns of the judges of election; and also, when an election is contested to hear and determine such contest, and in that capacity can take testimony and inquire into any such wrongs and errors as by the general election law are grounds of contest. Tribunals for contested election cases are common to all States. We have one tribunal for contested elections of State officers; one for members of the Senate and House of Representatives; one for county and township officers; and by this section, and a similar one in the act to incorporate cities of the second class, one for city officers. But it is claimed that this delegation of power to the city council is void because the decision of a contested election case is an exercise of judicial power, and the constitution provides, .(Art. 3, §1,) that, “ The judicial power of the State shall be vested in a supreme court, district court, probate court, justices of the peace, and suck other courts inferior to the supreme court, as may be provided by law,” and the city council is not in name or fact a court. We think the error in the argument lies in the last proposition. True, this city council is nowhere in the charter, called a “ court;” but when sitting to hear and determine a contested election case it is pro tanto a court. Like any other tribunal created by our statutes to hear and determine contested election cases, it has power to subpoena witnesses, administer oaths, take testimony, and pronounce judgment. General Stat., pp. 422, 427. Malone v. Murphy, 2 Kas., 261: The State, ex rel., v. Sheldon, 2 Kas., 322.
But again, it is urged that the constitution gives original jurisdiction in quo warranto to the supreme court, and that the legislature have not power to limit or restrict that jurisdiction. It seems to us clear, however, that giving to this court original jurisdiction in no way restrains the legislature from giving like original jurisdiction to other tribunals. It would be different if exclusive original jurisdiction was given to this court. So also a different question would be presented if the legislature should attempt to vest exclusive original jurisdiction in some tribunal other than this. We see then no reason why this power may not be delegated to the city council. Having been so delegated, and the plaintiff having appealed to it and o iained its decision, we deem him concluded thereby.
For this reason also, the judgment of the district court should be affirmed. | [
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The opinion of the court was delivered by
Kingman, C. J.:
A question is raised in limine, of controlling importance. The facts necessary to understand it are these: The verdict in the case was returned and judgment entered thereon on Saturday the 5th of December, and at the close of the day the court adjourned to Monday, the 7th; but neither on Monday, the 7th, nor on Tuesday, the 8th, was any court held, the district judge being absent. On the 8th of December the motion for a new trial was filed with the clerk. On the 9th, the judge having reached Lawrence, the court was opened, and the motion for a new trial was heard and overruled, and time given to make a case; and that case so made raises all the questions but one made in this court. It is insisted by defendant in error that all the proceedings had on Wednesday the 9th were coram non judice, and present no basis on which this court can act. The record shows that on Monday, the 7th, and on Tuesday, the 8th, the court was adjourned by the sheriff, the order reciting the absence of the judge, being detained by a severe storm. Section 719 of the civil code is referred to as sustaining the correctness of the action of the sheriff. This section seems clearly to refer to the beginning of a term, and therefore is not applicable to this case. It was inserted for the sole purpose of saving the term if the judge was detained from the place for any cause : Thomas v. Fogarty, 19 Cal., 644; People v. Sanchez, 24 Cal., 17. By the common law a failure to open the court on the first day of the term wrought a loss of the whole term: People v. Bradwell, 2 Cow., 445. The great inconvenience arising from this principle early led to its correction by legislation. Accordingly the English Parliament in the 3 Geo. IY, 18, made provision that the court might be opened at some day subsequent to the first day of the term, and that all records and proceedings should be made up as of the first day of the term; 2 Bac. Ab., title Courts, p. 714; and our examination has shown that similar laws have been passed in many of the States. This section of our code having only reference to the beginning of the term, the act of the sheriff in adjourning the court, was simply a nullity. Yet we do not think that the term was lost by the adjournment of the court on Saturday till Monday, and its not convening till Wednesday. The term of the court is fixed by law. Having once opened, it so continues till the term expires, or an adjournment sine die is made. The adjournment from day to day does not suspend its functions. After the court has adjourned for the day, it is a common practice for grand juries to continue their sessions, swear witnesses, pursue their investigations, and find bills; and petit juries frequently remain, out all night in deliberation, and make up their verdicts, while the journal shows that the court has adjourned. Each of these juries is part of the court, performing important functions; and the court is always in session in fact, so that it can protect the juries, and enforce proper conduct on their part. “Eor all general purposes the court is considered as in session from the commencement till the close of its term.” Barrett v. The State, 1 Wis., 175. In the case just cited, the court had adjourned till the next day, and some hours after the adjournment, and before the next day had begun, received a verdict in a criminal case, which was held good, on grounds that necessarily cover the case under consideration. At common law the whole period of a term was looked upon as a single day, and everything done at the term was regarded as done of that day. We need not point out what innovations our statutes have made on this doctrine, but we nowhere find it entirely abrogated. The statute still makes judgment liens revert to the first day of the term at which the judgment is rendered. There is an evident purpose on the part of courts to so construe the law, if possible, as will uphold the sessions of courts actually doing business. See Womack v. Womack, 17 Texas, 1; Cook v. Skelton, 20 Ill., 107; Jones v. State, 11 Ind., 357. In this case we find there present the judge, the clerk, and other ministerial officers at a time and place where it is by law authorized to be held, properly organized at the beginning of the term, and performing the functions of a court. This must be held to be a court legally constituted, and fully authorized to transact business. 2 Bae. Ab., 6, 16, title Courts. This conclusion makes it necessary to examine the various questions raised in the record.
, I. The first of these is, that the petition is defective in this, that it does not state that the injury was occasioned without the fault of plaintiff. As the plaintiff does not have to prove this fact, it is not clear upon what ground it ought to be stated in the petition. If his negligence appears in the case as contributing to the injury, then he cannot recover; but this is matter of defense. We do not now decide the point. It was not made in the district court. The petition on any ruling states facts sufficient to uphold the verdict, and even if the omission was a defect, it could not be taken advantage of after verdict and in this court for the first time.
II. The next objection is to the admission of testimony. The petition states that the road was defective, and by reason of the bad condition thereof the cars were thrown from the track and plaintiff injured. To support this allegation, testimony was introduced tending to show that the accident took place on the 10th of April, and that the road was in bad condition previous to that time, even in March, and that one or more accidents to,trains had occurred at or near the same place in March. It is claimed that showing the road to be bad in March does not show it was so on the 10th of April. There was much conflicting testimony as to the condition of the road, and it was not improper to permit the plaintiff, who was a stranger, to show the condition of the road two or thi’ee weeks previous to the accident. It may have been somewhat remote, but really went to show the condition of the road at one time, and by other testimony tending to show that it remained in the same condition up to near the time of the accident was proper to go to the jury. If a plaintiff was confined to the precise moment of an accident to prove the condition of the road he would in almost every case be helpless ; he must be allowed some latitude, and in this case it did not go too far. The same remarks apply to the testimony as to the accidents occurring in March to other trains. It is true, as claimed by plaintiff in error, that they might have occurred from defective cars, or from bad management in the running of the trains; but at any rate they were facts, and connected as they were with this accident by being at and near the same points on the road were properly submitted to the jury. If they did not Bhow the road to be in bad condition they tended strongly that way.
III. The plaintiff in error complains of the instructions of the court. ¥e have examined them with great care, and will state our conclusions briefly. The issue is formed upon the averment that the track of the road of defendant was deféctive, and by reason of that defect the car in which plaintiff was riding as a passenger was thrown from the track, and the plaintiff’ injured. The jury were correctly instructed that the burden of proof was on the plaintiff to show the defect as alleged. The defendant below asked eleven instructions, four of which were given as asked. The others were given with a modification by the court, which was duly excepted to. The purport of these several instructions was, that if the road was good, or was perfect, or if the preponderance of the testimony showed the road to be good, or if it was to all appearance perfect, or if immediately before and after the accident the road was perfect at the time and place where the cars went off the track, then the plaintiff could not recover. Each of these instructions was really intended to accomplish but one purpose, arid that was to confine the attention of the jury to the condition of the track at the precise place where the cars went off the track, and to each of them the court added this modification : “ But if any part of the track from the place where the cars run off the track to the place where they turned over was not in good order and good condition, and caused or contributed to the injury of the plaintiff, the goodness of the track at the place where the cars run off will not excuse the defendant.” The peculiar bearing of the instructions, and the importance of the modifications becomes apparent, when it is stated that the evidence shows that the train to which the accident occurred was running east; that it was a freight train, with a passenger car attached; that about seventy or eighty feet west of a bridge the passenger car and two or three freight cars run off the rails, and continued to run along side the rails across the bridge, which was one hundred feet in length, and until the train was stopped, some seventy or eighty feet east of the bridge, when the passenger car tipped over, and the plaintiff received the injuries complained of. Now it appears from the testimony in behalf of the railroad company, that the train was running at the rate of six or seven miles an hour on a three-degree curve; that at the place where the car went off the rail, the track was in perfect order, and the rails were in perfect line after the accident occurred. According to the testimony of Smead, an éngineer who examined the track immediately after the accident, it was unaccountable; that between the place where the cars ran off and where the passenger car tipped over, the track was thrown out of line, and the ties on the bridge were displaced. There was testimony showing that a different manner of constructing the bridge was, in the opinion of some engineers, safer than the one adopted in building the bridge where the accident occurred. It becomes important in deciding the propriety of the modification made by the court to the instructions asked by defendant below to bear in mind that the claim of plaintiff below rested on the allegation that the accident occurred by reason of a defective track. Whether the defect existed in the track at a place still further west than where the cars went off the track, or at the place, or at the bridge, or east of the bridge, it could make no difference, if the defect caused or contributed to the injury of plaintiff. If the plaintiff established the fact, it was all he had undertaken to do in his pleading, and all the law required him to do; and to this extent only the modification of the instructions went, and was properly made.
IV. At the request of plaintiff below, the court instructed the jury that, “if the defendant could have prevented the accident by the utmost human sagacity or foresight, with respect to their track, then the defendant is liable.” This is established law. The defendant sought to have it explained to the jury by requesting the court to tell them “ that the utmost human sagacity required of the defendant did not require of the defendant to take such extraordinary measure in constructing, operating, and maintaining its railroa . ib are not and have not been in use in the constructing, operating, or maintaining of railroads.” This the court refused to give, and its refusal is assigned as error, and we are asked to correct it. ¥e know of no reason peculiar tc +1 's State why human life and safety are not as valuable ^¿re as elsewhere; at any rate, it is not the province of courts to cheapen it, by construing away established principles, laid down to make life secure.
Fault is found with other instructions, but hardly such as requires attention. ¥e are convinced that the questions at issue were properly submitted to the jury, under instructions such as the law requires.
V. The plaintiff in error, in the motion for a new trial, set up as one of the grounds therefor that the damages assessed were excessive, and given under the influence or passion and prejudice, in overruling the motion for a new trial the court found that the assessment of the jury beyond the sum of two thousand dollars was excessive, but found nothing in the evidence or otherwise, save the amount of the verdict, to show passion or prejudice on the part of the jury; but inasmuch as the case was to be taken up on error on other grounds, which it was desirable to have settled, overruled the motion for a new trial.
An examination of the evidence has convinced us that the damages awarded are so excessive as to show plainly that the verdict was given under the influence of passion or prejudice, and ought to be submitted to the judgment of another jury. The only permanent injury the plaintiff received to his person, was in the “ fourth metacarpopholangeal articulation of the right-hand,” which, being translated, means that there was an injury to the ligaments of the third finger of the right hand, causing a slight deformity, and some loss of power in the hand. Besides some bruises elsewhere, he had received an injury to his lung, which caused some uneasiness and renders him more liable by exposure to attacks of a pulmonary character. This injury was nearly overcome on the 1st of May, 1867, according to the testimony of his own physician. There was some loss of time, but not great, for it appears that he was moving about in Kansas till he went to Chicago about the 20th of April, and on the 8th of May it appears from one of his own witnesses he was traveling from Chicago to St. Paul. His business was selling lamps on commission, at which he was making $25 per day, according to his own testimony. Take the testimony altogether, of which we have given but a few points most favorable to the plaintiff, below, and we are constrained to send the case back for a new trial. Of course, courts are reluctant to interfere with the verdicts of juries on the ground of excessive damages; but to uphold them where a great wrong has been done, would, as a precedent, be doing an infinite wrong to the community. The rights of parties are submitted to the unbiased judgment of juries, not to their passions or prejudices, and where it is apparent that these feelings have entered into and influenced their decision, it becomes the duty of the court to see that a tribunal organized to- se cure justice is not perverted from its proper purpose to become tbe instrument of oppression and injustice.
The judgment is reversed and a new trial awarded on this ground alone.
Brewer, J., concurring.
Valentine, J., not sitting. | [
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The opinion of the court was delivered by
Brewer, J.:
Two questions are presented in the record. Until after one trial in the court below, the pleadings and proceedings were entitled in the name of “ Levi McLain, Jr., by Thos. McLain his guardian.” Then a motion was sustained to correct a mistake in the name of plaintiff, and the name was ordered changed in the pleadings and record from “Levi McLain, Jr.” to “ William McLain.” Subsequently, an amended petition, answer- and reply were filed. Trial and judgment thereon for plaintiff, defendant in error here. This correction of a mistake in the name is alleged for error. The court is in terms authorized to correct a mistake in the name of a party, when such amendment does not substantially change the claim or defense: Gen. Stat, p. 655, §139. “The court in every stage of action must disregard any error or defect in the pleadings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect:” Gen. Stat., p. 655, § 140. The pleadings described the plaintiff as the son of one Levi McLain, whose land, confiscated by the United States in 1863, and sold under such confiscation proceedings to defendant, was in this suit sought to be recovered. The substantial allegation was that such .a person made claim to the property; not that his name was so-and-so. With such a description of the person in the pleadings there can be no pretense that defendant was deceived as to the person, and we fail to see how his substantial rights have been affected.
II. The other and graver question is this: Is the claim of the plaintiff barred by the limitation law of February 20, 1864 ? The confiscation proceedings, under the law of congress approved July 17, 1862, (ch. 195, acts of second session, 37th congress, p. 313, and explanatory joint-resolution, p. 361,) reach only the life estate. This is settled by the decision of the Supreme Court of the United States: Bigelow v. Forrest, 9 Wall., 339; and being a construction of a statute of the United States, we follow that decision. The decree of June 9th, 1863, therefore, divested Levi McLain of bis life estate, and vested the same in the United States. That life estate was all the United States had to sell; all we must presume, as we have not the writ before us, it attempted to sell, and all that Dewey could or did purchase. True, he purchased after theJife pstate jaad in fact terminated; but his purchase relates back tcTthe decree'f’he bought what that ordered sold; he took possession under that. Obtaining possession' through a sale under that decree, his rights are determined thereby. Entering into possession then as the claimant of a life estate, his possession was not adverse to, but consistent with and in subordination to the rights of the reversioner. Will such a possession set a statute of limitations to-running? Ordinarily not. In the case of Kirk v. Smith, 9 Wheaton 241, Marshall, C. J., says one of the rules applicable to limitation laws “ which has been recognized in the courts of England, and in.all others where the rules established in those courts have been adopted, is, that possession, to give title, must be adversary — the word, indeed, is not to be found in the statutes, but the plainest dictates of common justice require that it should be employed.” “ It would shock that sense of right which must be felt equally by legislators and judges, if a possession which was permissive, and entirely consistent with the title of another, should silently bar that title. Several cases have been decided in this court in which the principle seems to have been considered as generally acknowledged, and in the State of Pennsylvania particularly it has been expressly recognized. To allow a different construction would be to make a statute of limitations a statute for the encouragement of fraud — a statute to enable one man to steal the title of another by professsing to hold under it. No laws admit of such a construction.”
In the case of Ziller v. Eckhart, 4 Howard, 389, the Supreme Court of the United States says: That where “possession was originally taken and held in subserviency to the title of the real owner, a clear, positive, and continued disclaimer and disavowal of the title, and assertion of an adverse right, and to be brought home to the party, are indispensable before anj oundation can be laid for the operation of the statute, otherwise the grossest injustice might be practiced; for without such notice, he might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon ■ the subordinate character of the possession as the legal result of those relations.”
The Supreme Court of Illinois in the case of Turner v. Chamberlin, (15 Ill., 273,) says: “ To constitute an adverse possession sufficient to defeat the right of action of the party who has the legal title, the possession must be hostile in its inception, and so continue without interruption for the period of twenty years. It must be an actual, visible, and exclusive possession, acquired and retained under the claim of title inconsistent with that of the true owner.”
In Smith v. Burtis, 9 Johns., 180, the court says : “ The possession for over so long a time, stripped of the circumstance that it is (unaccompanied with the claim of the entire title will not amount to an adverse possession, barriny those who have the real and legitimate title."
In Jackson v. Parker, 3 Johns. Cases, 124, the court says: “ An entry adverse to the lawful possessor is not to be presumed. It must appear by proof.” * * * “ The statute of limitations could not begin to run until the possession of the defendant was avowedly held in opposition to the right of the heirs.”
But plaintiff in error claims that this being a proceeding in rem, the decree starts the statute above quoted, that “ the time limited for the institution of such suit shall be six months after such decree of condemnation shall have been rendered, and not thereafter.” But against a claim to what, does the running of the statute create a bar? Obviously, where by the lapse of time from a decree a party is barred from asserting a claim, it should be simply a claim to that taken by the decree. Here all taken by the decree was a life estate. A fair and natural construction of the statute would be, that the six-months limitation only barred a claim to that life estate, or some interest therein. The language is this: “All persons owning or claiming to own such property, money, or choses in action, or to have any right, title, or estate therein, and their assigns and legal representatives * * * shall be forever barred from * * * setting up or claiming any right in the same.” The reversioner does not “ own ” the life estate; has no “ right, title, or estate ” therein. He does not in this action set up or claim any right in the life estate. He is seeking to enforce his right, as reversioner, to the possession — a right which did not commence till after the termination of the life estate, till every interest seized or affected by the decree was at an end. If he were seeking to recover the rents and profits which accrued during the life estate, the bar of the statute might be good. Any other construction would, except in cases where the party against whose property the proceedings were had died within six months after the decree, operate to deprive the reversioner of his estate without his day in court, and would therefore be unconstitutional. He could not bring suit to set aside the decree during those six months, because his title is not affected by that decree; nor to recover the possession of the land, for he has no right to the possession till the termination of the life estate. Thus, during the six months he would have no rights to present, and after the six months his rights would be barred by the statute. That would in effect deprive him of his reversion, without ever having a day in court. This transcends the power of the legislature; and if the act required this construction it would be as to such a party unconstitutional and void. But the construction we have indicated above, as the fair and natural one, obviates this difficulty. The legislature, aware that only the life estate could be taken in such proceedings, determined that whoever contested for that life estate as against the decree should do it speedily. This justifies the reasonableness of the time given by the statute, only six months, as well as the absence of all exceptions on account of minority or other disability. A person buying at a confiscation sale, bought the life estate, and unless such interest was questioned within six months from the decree, his title thereto became absolute, and he was, during the existence of such life estate, entitled to the possession and all,the benefits thereof. But when the life estate terminated, if he would claim as against the reVersioner the protection of the limitation laws, it must be by an adverse possession, continued for the length of time prescribed by the ordinary limitation laws. The language of Judge Strong in the case of Bigelow v. Forrest hereinbefore cited, though not based upon the same question as here presented, is nevertheless forcible in its application to it. He says: “"Was he therefore barred from maintaining the ejectment? The land was not seized or condemned for any act of his. He had no interest in it when it was declared forfeited. He could not have been heard in opposition to the decree of forfeiture. That proceeding was wholly inter alias partes. If therefore he is not at liberty to assert his claim, he is denied the right to his property without trial, without any procedure in .due course of law, and the practical effect of the bar is to assure to the purchaser at the marshal’s sale the enjoyment of the property after his right has expired, and to give him by estoppel a greater estate than he purchased. No construction of the act of congress that works such results can be accepted.” For these reasons the judgment must be affirmed.
• All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced by the defendant in error, in the court below, to recover from the county of Leavenworth a sum of money claimed to be due upon a certain bond of said county. This bond is for the sum of $250, and is one of a series of bonds amounting in the aggregate to the sum of $250,000, issued by said county to the Union Pacific Railway Company, E. D., in payment for a like amount of the capital stock of said company. This bond was issued August 1st, 1865, under an act of the legislature authorizing counties to subscribe to the capital stock of railroad com- parties, and to issue bonds in payment therefor, approved February 10th, 1865; (Laws of 1865, page 41.) And the principal question in this case is, whether the legislature had the constitutional authority to pass said act.
■This case was submitted to this court with but very little argument concerning the constitutionality of said act; but since its submission two other cases, (The State, ex rel., St. Joseph & Denver Railroad Company v. The Commissioners of Nemaha county; and Morris, et al., v. The Commissioners, etc., of Morris county,) involving the same question, have been submitted to us, in which able and exhaustive arguments have were made by able counsel on both sides. We shall, therefore, not only consider the points made by counsel in this case, but will also consider the points made by counsel in the other two cases, so far as they have any application to this case. In the first of said cases, which is an application for a writ of mandamus, we shall in connection with this case deliver an opinion and allow an alternative writ of mandamus to issue. In that case as in this we affirm the constitutionality of said act, but in that case we shall leave all other questions to be decided upon the return of the alternative writ.
This is beyond all comparison the most important question ever brought before this court for decision. While it is true that the amount involved in this particular controversy is comparatively small, yet the decision in its ultimate consequences involves millions of dollars. Fabulous amounts of county and municipal bonds have already been issued and thrown upon the market with a profusion and prodigality bordering on recklessness and culpable extravagance, “and the end is not yet.” And this decision in its ultimate consequences determines the validity or invalidity of all these bonds. But our duty is plain. The question presented to us for our eonsidrration is purely a legal question. We have nothing to do with the wisdom or the policy of issuing such vast amounts of county and municipal bonds. That belongs to the legislature, and the people who vote to issue them. We simply determine whether the legislature had the power to authorize their issue; and not whether they acted wisely or unwisely in exercising such power. We are not the guardians of the legislature in this respect, nor of the people who vote to issue bonds; nor are we responsible for their acts, whatever may be the consequences.
We suppose that it will be conceded by every one that the legislature have no inherent power of any kind; that they possess no power except such as is delegated to them by the people; and that unless the constitution of the State authorizes them to enact such a law as the one now under consideration, they had no authority to do so. On the other hand, we suppose it will be conceded ' x x that the people are the original source and fountain of all civil and political power; that in their primary capacity they are supreme; that they had ample authority to exercise all of this power themselves, or, if they so chose, to delegate the same exclusively to the legislature. In short, we suppose it will be conceded that the people had full power and authority to delegate to the legislature all the power necessary to pass said act. The question then, is, not whether the people had the power to authorize the legislature to pass said act, for that must be conceded; but it is, whether the people actually did so authorize the legislature to pass such acts. The counsel who claim that said act is unconstitutional, have seen fit to call our attention to certain sections of the constitution with which (and with these only, as we understand) they claim that the act is in direct contravention. We shall therefore first examine 'said sections before we proceed to examine the main question in this case, which is whether the people have, through the constitution, granted sufficient power to the legislature to pass said act. The sections of the constitution which are supposed to prohibit this species of legislation, are as follows:
Bill of Eights, § 20: “ This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers not herein delegated remain with the people.”
Art. II, § 17. “ All laws of a general nature shall have a uniform operation throughout the State.”
Art. XI, § 8: “ The State shall never be a party in carrying on any works of internal improvement.”
We have no provision in our constitution as there is in the constitutions of most of the States, requiring that private property shall not be taken except by “due process of law,” or by “ due course of law,” or by the “ law of the land,” or “ for public use without.just compensation.” The nearest that anything in our constitution comes to it is as follows:
Bill of Eights, § 18 : “ All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
Art. XII, § 4: “ No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.”
We do not suppose that these omissions from our constitution affect in the least any question involved in this case; but their omission explains the reason why counsel for plaintiffs in error have failed to make any point on them. (See Sedg. on Stat. and Const. Law, (1 ed.,) 501, et seq.) "We can see no possible application that can be made in this case of § 20, Bill of Bights. ’ ^ pe a<}mitted that without that section the legislature cannot exercise any power retained by the people or not delegated by "the people to the legislature^ and that is all that can be claimed with the section. And it is impossible for us to see that said section in any way enlarges the power of the court to nullify acts of the legislature.
¥e scarcely think it necessaiy to say anything with reference to § 17, art. 2 of the constitution. The act under consideration is so obviously in harmony with this section, that the question attempted to be raised upon its supposed incongruity needs no^ elucidation from us. All the provisions of said act are expressly enacted for the whole State, and for every part of the State; and it is no more necessary that the same amount of stock be taken in each and every county of the State, in order that the act shall have a uniform operation therein, than that the same number of men shall be executed in each county of the State, in order' that the law punishing murder in the first degree shall have a uniform operation throughout the State. Scarcely any of our laws have had any actual or practical operation out in the buffalo region, and yet it will hardly be contended that they are unconstitutional for that reason.
It is contended by counsel for plaintiff in error that, as by § 8 of article 11 of the constitution the State is prohibited from ever being a party in carrying on any works of internal improvement, each subordinate political subdivision of the State, such as counties, cities, towns, etc., must also necessarily be so prohibited. This construction of said section we think is erroneous, and arises from a misconception of the meaning of the word “State a8 used this connection. We think the word “ State ” as here used means the people 0f -¡-pg gtate as a sovereign corporation, and mot the people of the State considered as individuals or minor and subordinate corporations. That it does not mean property or the territory of the State, all will admit; for such inanimate objects could not be a parly in carrying •on any work of internal improvement, or in carrying on anything else; and that it does not mean the people considered as individuals, or subordinate corporations, we think we can show. If it be claimed that said word •means The State, in all its parts, it will lead to inextricable difficulties, and prove entirely too much. The people as individuals are the original elements out of which ■the State is composed, and each individual is as much a •part of the State, as any corporation, public or private. And we suppose it will hardly be contended that the •people of the State as individuals, could not engage in .any work of internal improvement. But a distinction may be made between the people as individuals, and as ■organized into corporations. The people as individuals • do not obtain their power from the State; their power is original and inherent, while the power of corporations is ■obtained entirely from the State, and is purely derivative and delegated. But whenever this distinction is resorted to, it is a virtual abandonment of the claim that the State ’•is prohibited in all its parts from engaging in works of internal improvement, and it is setting up another claim, that the State is thus prohibited only in such of its parts ,-as it itself creates. And this claim is equally untenable. A private corporation is wholly created by the State, as ■much so as a public corporation. It has no inherent power and does not exist of itself. It is an artificial beiing, invisible, intangible, and exists only in contempla tion of law. It is the mere creature arid the creation of ‘ the State in which it exists, and has no power of its own. And cannot a private corporation engage in works of internal improvement? Nobody will say that it cannoty and hence this claim must also be abandoned. But it maybe claimed that there is a distinction between public and private corporations; that public corporations are created solely for governmental and public purposes, and'1 that private corporations are created merely for private purposes; and that while the State may effect purposes-through .the agency of private corporations which it could not effect directly through its own agency, yet that it cannot' effect any object through the agency of a public corporation which it could not effect directly through its own agency; that it can perform just such acts and no more through the agency of public corporations, as it could perform directly through its own agency. The argument drawn from this distinction is equally as fallacious as the others. The State as a State is absolutely prohibited from engaging in any works of internal improvement-We will concede that this prohibition does not extend to the building of a state-house, penitentiary, state university, and such other public improvements as are used .^exclusively by and for the State, as a sovereign corporation ; but it does extend to every other species of public-improvement. It certainly extends to the construction of every species of public improvement which is used, or may be used by the public generally — by any and every private individual who may choose to use it, such as-public roads, bridges, etc. (Mayor, &c., of Wetumpka v. Winter, 29 Ala., 660.) Now, notwithstanding this prohibition upon the State, notwithstanding that it is prohibited from opening up or constructing any roads, highways, bridges, ferries, streets, sidewalks, pavements,, wharfs, levees, drains, water-works, gas works, or the like, yet we find it authorizing public corporations to do so. And although it is prohibited from exercising the sovereign power of eminent domain in its own favor in opening up and constructing roads, highways, bridges, ferries, etc., yet we nevertheless find it exercising said sovereign power in favor of public corporations. Even a private corporation or individual cannot construct or operate a railroad over the land of another without the owner’s consent, unless the State first so far becomes a party in carrying on such improvement as to authorize such private corporation or individual to take- said land under the sovereign power of eminent domain. Hence we find that those who claim that the prohibition upon the State is also a prohibition upon all the public corporations of the State, are driven from every position they Juay assume. If they claim that it is a prohibition upon the State in all its parts, then .prohibit individuals from constructing internal improvements. If they claim that it is a prohibition upon such of its parts only as are created by the State itself — artificial persons — corporations—then they prohibit private corporations. And if they claim that the prohibition applies to public corporations and to them only, then they prohibit counties, townships, and road districts, from constructing roads, bridges, etc.; and cities, towns and villages, from constructing streets, sidewalks, drains, etc. But the end is not yet; there are still further and perhaps greater difficulties in the way.
Sections 5 and 6 of the same article which prohibits the State from ever becoming a party to any works of internal improvement, provide that the State shall not contract debts to exceed one million of dollars, unless the same be authorized by a direct vote of the people. Will it be contended that this prohibition embraces within its scope and operation, the subordinate political subdivisions of the State, as well as the State in its sovereign corporate capacity ? It has never been so understood. The State has already gone to the full limit of one million of dollars id contracting public debts. ' Leavenworth county has probably gone as far. Many other counties and cities have also contracted large amounts of public debts, and if counties, townships, school districts, road districts, cities, .towns, and villages, are all embraced within this prohibition — if the public debt of the State, including all its subdivisions, cannot, in the aggregrate, exceed one million of dollars, then a vast amount and number of illegal debts, have already been created in Kansas, and the whole people of the State have been continually and ruthlessly violating their own constitution in this regard. But if this prohibition, with regard to contracting public debts, is not an interdiction upon the political subdivisions of the State, how can it be said that the other prohibition is ? Of course we recognize the maxim, qui facü per alium, facit per se, as embodying a sound principle of law; but it can have no possible application to the question now under consideration. It is true that no county or municipal corporation can construct or operate a railroad except by the authority of the State; but it is equally true, as we have already seen, that no private corporation or. private individual can construct or operate a railroad over lands belonging to another without the owner’s consent, except through the intervention and by the authority of the State; and no railroad has ever been constructed in this State except by positive authority given by the State. Now, if it be claimed that the State, by authorizing a county or municipal corporation to become a party in the construction or operation of a railroad, thereby becomes a party to the same itself, then it must necessarily follow that the State, by authorizing a private corporation or private individual to become a party in the construction or operation of a railroad, must also necessarily thereby become a party itself in the construction and operation of such railroad. It is true, that in one sense the State becomes a party in the construction and operation of a railroad whenever it authorizes the same to be built, but not in the sense contemplated by the prohibition in the constitution. It was not the intention of the framers of the constitution to entirely exclude internal improvements from the State. It was not their intention to entirely prohibit the construction of the same. But it was only to prohibit the State as a State from being a party thereto. It left the State as free to authorize others, (that is, to authorize public or private corporations or individuals,) to construct internal improvements as though the prohibition had never been placed in the constitution. Several other States have provisions in their constitutions similar to the one we are now considering, and several courts have already construed such provisions. The decisions are uniform with the exception of one decision in Iowa, (State v. Wapello Co., 13 Iowa, 388,) which decision has never since been followed in Iowa or elsewhere — all sustaining the construction that we have given to said provision: See Cass v. Dillon, 2 Ohio St., 607, 612 to 616; Pattison v. Board Sup., Yuba Co., 13 Cal., 175, 182; Clarke v. City of Janesville, 10 Wis., 136, 170; Bushnell v. Beloit, 10 Wis., 195, 221; Slack v. R. R. Co., 13 B. Monroe, 1; Dubuque v. R. R. Co., 4 G. Greene, (Iowa,) 1, 3; Clapp v. Cedar Co., 5 Iowa, 15; Stewart v. Sup. Polk Co., 30 Iowa, 9; Prettyman v. Supervisors, &c., 19 Ill., 406, 411; Robertson v. Rockford, 21 Ill., 451, 457; City of Aurora v. West, 9 Ind., 77 to 79; Police Jury v. McDonough’s Succes’n, 8 La. An., 341; New Orleans v. Graible, 9 id., 561; Cooley Const. Lim., 216 to 219. In closing this branch of the case, we would say that the constitution means just what it says. It says the State shall never be á party in carrying on any works of internal improvement, and it means the State, and not Leavenworth Oouniy ; and to hold that this restriction upon the State is also a restriction upon counties, cities, etc., is to put words in the constitution which its framers omitted, and to overturn awell-settled rule of constitutional and statutory construction: Dxpressio unius est exclusio alterius.
On the side of the defendant in error, we have been referred to the following sections of our constitution:
Art. II, § 21. “ The legislature may confer upon tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient.”
Art. XII, § 5. “ Provision shall be made by general law, for the organization of cities, towns and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power.”
We do not suppose that these sections can in any way affect the decision of this case. No legislative power was exercised by the people or the county commissioners of Leavenworth county. (L. M. & B. R. Co. v. Geiger, 34 Ind., 220, et seq.; C. W. & Y. R. v. Com’rs of Clinton Co., 1 Ohio St., 77; Cooley Const. Lim., 116 to 119, and authorities cited.) And § 5, art. 12, referred to, does not authorize counties to contract debts, loan their credit, etc., and it does not authorize either counties or cities, town's or villages, to contract debts, loan their credit, etc., in carrying on any works of internal improvement.
II. Having disposed of all the preliminary questions raised in this case, which were probably thrown in only as make-weights, and finding that there is no express provision of the constitution with which the said act is- in contravention, we come now to the main question in the case, which is, whether the constitution of the State authorizes the legislature to pass such an act as the one under which the bond in controversy was issued. All there is of importance in this case is involved in this question. The question of whether an act of the legislature is constitutional or not, is now really before us.
The mere passage of the act is some evidence of its constitutional validity, for the legislature could not- have passed nor the governor have approved the same, without impliedly, at least, declaring that the same was constitutional and valid. And this, both the legislature and the .governor have done, after taking, a solemn oath to support the constitution. We shall not claim however that "this is the strongest kind of evidence in favor of the constitutionality of the act, for neither the executive nor the 'legislature are elected with special reference to their ability to expound the laws or the constitution. But with this in its favor, and looking only to this, we should not declare the act unconstitutional unless the reasons against its constitutionality at least preponderate over the reasons in favor of its validity. If the reasons are equally balanced we should certainly declare in favor of its validity. The rule governing courts in this respect is ° usually expressed m much stronger terms. It generaiiy said (and this is probably the true rule) that before an act of the legislature can be declared unconstitutional, its unconstitutionality must clearly appear. State ex rel. Crawford v. Robinson, 1 Kas., 18, 27; Atchison v. Bartholow, 4 Kas., 124, 141.) But some courts have gone further, and said that its unconstitutionality must clearly appear beyond all reasonable doubt. (Sears v. Cottrell (per Christiancy, J.,) 5 Mich. 257, 261; Twitchell v. Blodgett, (per Cooley, J.,) 13 Mich., 162; People v. Mahoney, (per Cooley, J.,) 13 Mich., 501; Cooley Const. Lim., 182, and cases there cited.)
Judge Cooley says in his work on Constitutional Limitations, that “ The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it (the legislative power) must be considered as practically absolute, whether it operate according to natural justice or not.” * * “ Any legislative act which does not encroach upon the other departments of the government, being prima facie valid, must-be enforced, unless restrictions upon the legislative power can be pointed out in the constitution, and the case shown to come within them(page 168.) “Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words,” (page 171.) But if we should adopt the stronger rule laid down by courts, it would virtually cut off all further inquiry into the constitutionality of said act; for this court would hardly assume to declare, in the face of 25 or 26 legislatures that have enacted similar statutes, and 25 or 26 executives that have approved the same, and 25 or 26 supreme courts— state and federal — that have declared such statutes to be constitutional, that this act is clearly unconstitutional beyond all reasonable doubt, or even, that it is clearly unconstitutional.
But with reference to this particular statute the strongest rule in favor of its constitutionality should be adopted. All presumptions are in favor of its validity. It was not passed through the hurry aud bustle of hasty legislation; nor through inadvertance or oversight; nor through whim or capricious fancy; nor through the influences of party drill or party machinery; nor through chicanery, fraud or corruption; but it was passed after due deliberation and discussion. Besides, it is not an isolated statute, standing alone in questionable solitude upon the statute books of Kansas. Two-thirds of the legislatures of the [Tnion have passed similar statutes, and two-thirds of the highest judicial tribunals of this country have declared them to be constitutional. And further, this statute in substance, though in some respects modified, still re-' mains upon our statute book, although it has passed the scrutiny of six subsequent legislatures since its first adoption. It has, of course, been declared and repeatedly declared constitutional by the legislative and the executive branches of the State government, for it has repeatedly obtained their sanction and approval. This, to begin with, is certainly very strong evidence in favor of its constitutional validity. It will be conceded that the constitution does not anywhere in definite an<l precise terms authorize the passage of said act, and it will be conceded that unless such authority is given by section 1, article 2, of the constitution it is not given at all. Said section reads as follows: “ Sec. l.-The legislative power of the State “ shall be vested in a house of representatives and sen- “ ate.” The question then resolves itself into this: "Was the passage of said act the exercise of legislative power ? If it was, the act is of course constitutional; but if not, then the act is certainly unconstitutional. It is claimed that the passage of the act was not the exercise of legislative power, and therefore that the legislature transcended their authority in passing the same, and that the act is void. It is not claimed, as we understand, that the legislature invaded the province of one of the other departments of the government, but that it usurped power which had not been delegated to any of the departments, but was retained by the people. As the people have by the constitution clothed the legislature with all the legislative power of the State, the first great question is, what is “ legislative power ? ” This may be answered by saying that it is the power to make the laws. But then the question, equally difficult, arises, whát is a law ? This may be answered by saying that it is a rule of civil conduct prescribed by the supreme power of a State, which, under the constitution, and for this purpose, is the legislature; and still we are. left as much in the dark as we were before. Some things we know come within the scope of legislative power. Other things we know do not. But we have no rule by which we can always determine accurately and precisely whether a given thing comes within the scope of legislative power or not. Hence the difference of opinion we find among eminent jurists. We shall not attempt to give a definition of these words, nor prescribe a rule whereby it may be determined in all cases what falls within and what falls without the scope of legislative jurisdiction; but our inquiry shall be devoted entirely to ascertaining whether the authority granted to counties, and municipal corporations, to aid railroad companies by way of subscription to the capital stock thereof, and to issue bonds in payment therefor, falls within or without the scope of legislative authority.
That the people of the State had the authority to delegate to the legislature all the power that the legislature attempted to exercise in the passage of said act, we have already assumed as conceded. Hence, without being embarrassed by the discussion of any collateral questions, we shall proceed at once to the consideration of what we consider the main question in the case — the meaning of the words “ legislative power,” or rather, what did the people understand those words to mean when they framed the constitution; for upon such meaning depends the whole question in controversy in this case. That words have no positive or absolute signification in and of themselves — no inherent meaning— is a proposition too well understood by educated men to need exemplificatidn or citation of authority. That they are only conventional signs adopted by common consent and common usage to express certain ideas, and mean just what the people using them choose by common consent to make them mean, is too well settled to be disputed. And that they must always be presumed to mean, in the absence of anything to the contrary, just what they were generally understood to mean when they were used, is too near axiomatic to be controvered. “ The popular or received import of words furnishes the general rule for the interpretation of public laws as well as private and social transactions.” (Maillard v. Lawrence, 16 How., U. S., 251, 261; Wetumpka v. Winter, 29 Ala., 651, 660.) And who could indulge the extravagant supposition that the framers of a constitution for the people of a young and growing commonwealth having vast possibilities before it, should use language in a sense never before so used, and in such a sense as must necessarily mislead the very people for whom it is framed, and upon whom devolves the duty and necessity of its correct interpretation ? Nothing has been shown or can be shown that will tend in the least to prove, that the words we are now considering were used in any different sense or were intended to have any different signification from that ordinarily given to them. / The question then is narrowed down simply to this: What were these words generally understood to mean at the time the constitution was framed ? That they had a general signification with reference to the question now under consideration cannot be questioned; for about two-thirds of the States, as well as the United States, and the then territory of Kansas, had already given to them a construction. The constitution of Kansas was framed in 1859, and the.State was admitted into the Union under it in 1861, (January 29th.) At this time, the meaning of these -words, and the general scope and authority of legislative power with reference to this question, had become well-settled by legislative, executive, and judicial construction, practice, and usage. And while no room is left to doubt that these words had a general signification, no room is left to doubt what that signification was. All the decisions of the courts were one way, and in favor of the power of granting municipal aid to railroad companies, and not a solitary decision was at that time the other way.
As early as 1837, the question was settled, or at least decided by a court of last resort in Virginia: Goodin v. Crumps, 8 Leigh, 120; see also, in 1846, Harrison Justices v. Holland, 3 Grattan, 236, a navigation case; in 1871, Langhorn v. Robinson, 20 Grattan, 661; and 5 Call, 139.
In 1843 in Connecticut: Bridgeport v. Housatonic R. R. Co., 15 Conn., 475; see also in 1860, Society for Savings v. New London, 29 Conn., 174.
In 1846 in Pennsylvania: Harvey v. Lloyd, 3 Penn. St., 331; see also in 1849, Commonwealth v. Mc Williams, 11 Penn. St., 62, a turnpike case; in 1853, the great case of Sharpless v. The Mayor of Philadelphia, 21 Penn. St., 147; Moers v. The City of Reading, 21 Penn. St., 188; in 1858, Commonwealth v. Com’rs Allegheny Co., 32 Penn. St., 218; in 1861, Commonwealth v. Pittsburgh, 41 Penn. St., 278; in 1862, Commonwealth v. Perkins, 43 Penn. St., 400.
In Tennessee in 1848; Nichols v. Nashville, 9 Humph., 252, 271; see also in 1854, L. & N. R. Co., v. Davidson Co., 1 Sneed, 637; in 1859, Hord v. Rodgersville, &c., R. R. Co., 3 Head, 208; Byrd v. Ralston, 3 Head, 477; in 1869, Justices of Campbell Co. v. The Knoxville & Ky. R. R. Co., 6 Coldwell, 598.
In Kentucky in 1849: Talbott v. Dent, 9 B. Monroe, 556; see also in 1850, Justices, etc., v. P. W. & K. R. River Turnpike Co., 11 B. Monroe, 143; in 1852, Slack v. Maysville & C. R. R. Co., 13 B. Monroe, 1; in 1859, Maddox v. Graham, 2 Metc., 56.
In Illinois in 1851: Ryder v. A. & S. R. R. Co., 13 Ill., 516; see also in 1858, Prettyman v. Sup. Tazewell Co., 19 Ill., 406; in 1859, Robertson v. Rockford, 21 Ill., 451; in 1860, Johnson v. Starke Co., 24 Ill., 75; Perkins v. Lewis, 24 Ill., 208; in 1861, Butler v. Dunham, 27 Ill., 474; in 1862, Clarke v. Hancock Co., 27 Ill., 305; Piatt v. People, 29 Ill., 54; in 1864, Keithsburgh v. Frick, 34 Ill., 405.
In Florida in 1852 : Cotton v. County Commissioners, 6 Fla., 610.
In Ohio in 1852: C. N. & Z. R. R. Co. v. Com’rs Clinton Co., 1 Ohio St., 77; R. W. v. Treasurer N. Tp., 1 Ohio St., 105; see also in 1853, Cass v. Dillon, 2 Ohio St., 607; Thompson v. Kelley, 2 Ohio St., 647; in 1857, State v. Van Horn, 7 Ohio St., 327; in 1858, State v. Union Tp., 8 Ohio St., 394; in 1861, State v. Com’rs Hancock Co., 12 Ohio St., 596; in 1863, Knox v. Nichols, 14 Ohio St., 260; Fosdick v. Perrysburg, 14 Ohio St., 472; Shoemaker v. Goshen Tp., 14 Ohio St., 569.
In Louisiana in 1853: Police Jury v. Succession of McDonough, 8 La. An., 341; see also in 1854; New Orleans v. Graible, 9 La. An., 561; in 1856, Parker v. Scogin, 11 La. An., 629; V. S. & T. R. W. Co. v. Parish of Onachita, 11 La. An., 649.
In Iowa in 1853: D. & P. R. R. Co. v. Dubuque, 4 G. Greene, 1; see also in 1854, State v. Bissell, 4 G. Greene, 328; in 1857, Clapp v. Cedar Co., 5 Iowa, 15; in 1858, Ring v. Johnson Co., 6 Iowa, 265; McMillan v. Boyles, 6 Iowa, 304; McMillen v. Lee Co., 6 Iowa, 391; in 1859, Whittaker v. Johnson Co., 10 Iowa, 161.
In Alabama in 1854: Stein v. Mayor of Mobile, 24 Ala., 591; see also in 1857, Wetumpka v. Winter, 29 Ala. 651, a plank-road case; in 1860, Gibbons v. Mobile, &c., 36 Ala., 410.
In Mississippi in about the year 1854: Strickland v. Miss. Central R. R. Co., not reported, but referred to in the case of Williams v. Cammack, 27 Miss., 224.
In North Carolina in 1855 : Taylor v. Newburn, 2 Jones’ Eq., 141, a navigation case; see also in 1858, Caldwell v. Justices of Burk, 4 Jones’ Eq., 323.
In Missouri in 1856: City of St. Louis v. Alexander, 23 Mo., 483; see also in 1863, Flagg v. Palmyra, 33 Mo., 440; in 1867, St. Joseph & C. R. R. v. Buchanan Co., 39 Mo., 485.
In New York in 1857: Grant v. Carter, 24 Barb., 232; Benson v. The Mayor of Albany, 24 Barb., 248; Clark v. City of Rochester, 24 Barb., 446; see also in 1858, Bank of Rome v. Village of Rome, 18 N. Y., 38; in 1859, Gould v. Town of Venice, 29 Barb., 442; in 1861, Starin v. Genoa, 23 N. Y., 439; in 1864, Clark v. City of Rochester, 28 N. Y., 605; in 1865, People v. Mitchell, 45 Barb., 208; in 1866, People v. Mitchell, 35 N. Y., 551.
In South Carolina in 1857: Copes v. Charleston, 10 Rich., 491.
In Georgia in 1857: Winn v. Macon, 21 Ga., 275; Powers v. The Inf. Ct. of Dougherty Co., 23 Ga., 65.
In Indiana in 1857 : Aurora v. West, 9 Ind., 74; see also in 1860, Evansville, &c., R. R. Co. v. Evansville, 15 Ind., 395; in 1862, Bartholomew Co. v. Bright, 18 Ind., 93; in 1864, Aurora v. West, 22 Ind., 88.
In the United States Supreme Court in 1858 : Commissioners of Knox Co. v. Aspinwall, 21 How., 539; Same v. Wallace, 21 How., 547; see also in 1859, Zabriskie v. R. R. Co., 23 How., 381; in 1860, Bissell v. City of Jefferson, id., 287; Amey v. Alleghany County, id., 365; Com’rs Knox Co. v. Aspinwall, id., 376; in 1861, Woods v. Lawrence Co., 1 Black, 386; in 1862, 2 Black, 722; in 1863, 1 Wallace, 83, 175, 272, 291, 384, five cases; in 1865, 3 Wallace, 93, 294, 327, 654, four cases; in 1866, 4 Wallace, 270, 275, 535, three cases; in 1867, 6 Wallace, 166, 210, 514, 518, four cases; in 1868, 7 Wallace, 181, 313, two eases; in 1869, 9 Wallace, 477. (There are too many cases to give the titles to all of them.)
In Wisconsin in 1859: Clark v. Janesville, 10 Wis., 136; also see in 1860, Bushnell v. Beloit, 10 Wis., 195.
In California in 1859: Pattison v. Board of Sup’rs of Yuba Co., 13 Cal., 175 ; also in 1860, Hobart v. Sup’rs of Butte Co., 17 Cal., 23; in 1863, Robinson v. Bidwell, 22 Cal., 379; in 1864, French v. Teschemaker, 24 Cal., 518; People v. Coon, 25 Cal., 635; in 1865, People v. Sup’rs of San Francisco, 27 Cal., 655.
In Maine in 1860, Augusta Bank v. Augusta, 49 Me., 507.
In Kansas in 1864; in West Virginia in 1865; in Texas in 1866; in Nevada in 1869, and in (Vermont in 1870. The decisions in the five last mentioned States are hereinafter cited.
But we are not left alone with the construction given to the term legislative power, by the legislative, executive, and judicial departments of other States and of the United States. We have a construction of our own. given to said term by the legislative and the executive-departments of the then territory of Kansas before and during the time the constitution was being framed. In 1858 the legislature and the governor of said territory authorized the city of Atchison to subscribe for stock in< and issue bonds to railroad companies: Private Laws of 1858, p. 182, §§ 30, 31. In 1859 the next legislature and the governor of said territory authorized Leavenworth county to make similar subscriptions and to issue bondsiri payment therefor: Gen. Laws of 1859, p. 69; and on the same day (February 11, 1859,) they took the initiatory steps in framing the present constitution of the State-of Kansas. On that day they passed the act under which the constitution was framed: Gen. Laws, 1859, p. 292; and on that day they gave a construction to the term “ legislative power ” with reference to municipal aid to railroad companies. And this construction the people have never overruled or repudiated in framing their constitution, or in any other manner, from that time till the present. In 1860, after the people had adopted the? constitution, but while it was still pending before congress, and before the State was admitted into the Union-under it, another territorial legislature and another territorial governor again determined in.favor of the power of the legislature to pass acts granting municipal aid to railroad companies. They passed three acts recognizing this power — one for Leavenworth bounty, (Gen. Laws,. 1860, p. 29,) one for Leavenworth city, (id., p. 32,) and' one for the city of Atchison : (Private Laws, 1860, p. 53.)
~We suppose that nobody will claim that the territorial legislature had more power in this respect than the State legislature. The territorial legislature had nothing but legislative power, and that is just what the State legislature have. The territorial legislature held their author ;ity under the “ organic act,” which provides “ that the legislative power and authority of said territory shall be vested in the governor and legislative assembly; ” § 22.) The State legislature hold theirs under the State constitution. The organic act was framed by congress; the constitution was framed by the people of the State. The territorial legislature had all the legislative power in this respect that congress had power to give them. The State legislature have all the legislative power that the people of the State have power to give them. Then whose power is the greatest — that of the territorial legislature, or that of the State legislature? That of congress, or that of the people in the primary capacity ? It has generally been supposed, and we presume it will be so conceded, that the power of the people in their primary capacity is unbounded, unlimited. Is it so with congress ? Has any jurist ever said that it was so ? Will any lawyer of any respectability hazard his professional reputation by declaring that it is so ? We think not, and yet we shall not in the least question the power of congress upon this particular subject. In fact, this court has already decided that congress-possesses all the power necessary upon this particular subject. (Burnes v. Atchison, 2 Kas., 454; Atchison v. Butcher, 3 Kas., 104.)
With all this before us, is it possible to come to any •other conclusion than that the people knew what was •generally understood by the term “ legislative power,” and that they adopted the constitution with that construction. “ The constitution must receive an interpretation according to the sense in which the people are supposed to have understood its language.” (Mayor, &c., of Balt. v. State, 15 Md., 376, 461; Maillard v. Lawrence, 16 How., U. S., 251, 261; Wetumpka v. Winter, 29 Ala., 651, 660.) The foregoing conclusion must also follow, because this general understanding before and after the adoption of our constitution was a contemporaneous construction of said term: Cooley Cons. Lim., 67, et seq., and cases there; cited; Portland Bank v. Apthorp, 12 Mass., 257; and also-because whenever a provision of law is adopted by one-State from another, as this constitutional provision of ours was, the' judicial construction given to it in the State where it originated, follows it to the State of its adoption: Bemis v. Becker, 1 Kas., 226, 248, 249 ; Stebbins v. Guthrie, 4 Kas., 353, 364; Drennan v. The People, 10 Mich., 175 to 177. But even the passage of said acts by our own territorial legislature before the adoption of the constitution is of itself sufficient in the absence of anything to the contrary to show that the people of ,the State intended to confer upon the State legislature power to authorize municipal aid to railroad companies; for as the* territorial legislature had repeatedly exercised such power as legislative power, it must necessarily be presumed that, the State legislature acting for the same community would also exercise such power as legislative power unless prohibited therefrom. But as there is no such prohibition in the constitution it must necessarily follow that the people of the State intended by leaving such prohibition out of the constitution, that the legislature should continue to exercise such power as legislative power: Mayor, &c., of Balt. v. State, 15 Md., 376, 461; 2 Gill & Johns., 284, 285. Laws in force at the time the constitution is framed must be considered as the ground-work and basis-of the constitution itself. (See last case cited.)
Since the adoption of the constitution of this State,, four or five other States besides those that we have already mentioned as having decided the question before our admission, have declared in favor of the constitutional validity of acts granting municipal aid to railroad companies. Kansas: Burnes v. Atchison, 2 Kas., 454, decided in 1864; Atchison v. Butcher, 3 Kas., 104, decided in 1865; and The State, ex rel. Hurd, v. The Mayor and Council of the City of Leavenworth, not reported, decided in 1868. West Virginia: Goshorn v. Sup. Ohio Co., 1 West Va., 308, decided in 1865. Texas: San Antonio v. Jones, 28 Texas, 19, decided in 1866. Nevada: Gibson v. Mason, 5 Nevada, 283, decided 1869. And the same doctrine has recently been recognized in Vermont: Danville v. Railroad Co., 43 Ver., 144, decided in 1870 — making in .all about 27 States, and the United States.
All of the States have, impliedly at least, declared ■what we consider to be the true doctrine that the general grant of legislative power carries with it the power to pass acts authorizing county and municipal aid to railroad companies, and in some of the States the courts have expressly so decided: 2 Kas., 454, 486; 3 Wallace, •327, 654; 35 N. Y., 551; 24 Barb., 232, 248, 446; 4 Jones Eq., (N. C.,) 324; 10 Rich., (S. O.,) 495, 501.
III. The real question in this case is, whether the legislature has the constitutional power to authorize counties and ■municipal corporations to subscribe for stock in railroad companies, and to issue their bonds in payment therefor, and not whether the legislature have power to authorize counties and municipal corporations to make donations to railroad companies. In favor of the power to make subscriptions, etc., we have the decisions of about 26 States. Against the power we have the decisions of one State alone, and that is Iowa. The principal decisions in Iowa against this power are: The State v. Wapello Co., 13 Iowa, 388; Chamberlain v. Burlington, 19 Iowa, 395 ; and McClure v. Owen, 26 Iowa, 243. But the Supreme Court of the United States has overruled all these decisions: Gelpcke v. City of Dubuque, 1 Wallace, 175; Meyers v Muscatine, id., 384; Thompson v. Lee Co., 3 Wallace, 327; Lodgers v. Burlington, id., 654; Riggs v. Johnson Co., 6 Wallace, 166; Weber v. Lee Co., id., 210; U. S. v. Council of Keokuk, id., 514, 518; Benbow v. Iowa City, 7 Wallace, 313; Lee Co. v. Rodgers, id., 181. But it has been denied by very bigb authority that any decision has ever been made even in Iowa declaring the unconstitutionality of such acts as we are now considering: Hansen v. Vernon, 27 Iowa, 30, 78 to 80 ; Stewart v. Supervisors of Polk Co., 30 Iowa, 10, 28, et seq. But admitting that such decisions have been made in Iowa, still the same court (as well as the supreme court of the United States,) in a more recent decision have swept away every vestige of the principle upon which the former decisions of the supreme court of Iowa are supposed to have been founded: Stewart v. The Supervisors of Polk Co., 30 Iowa, 9; King v. Wilson, 3 Chicago Legal News, 137; 1 Dillon’s Cir. Ct. Rep., 555. Hence no court of last resort can now be found, that holds that county and municipal aid to railroad companies by way of subscription to the capital stock thereof, is not a legitimate subject of legislation. There are however now just four decisions in the United States against the validity of donations to railroad companies; one in New York: Stewart v. Hulbert, 51 Barb., 312; one in Iowa: Hansen v. Vernon, 27 Iowa, 35; one in Wisconsin: Whitney v. The Sheboygan R. R. Co., 25 Wis., 167; and one in Michigan: The People, ex rel., v. Salem, 20 Mich., 452. The first of these decisions is entitled to hut little consideration as a precedent, as it was not rendered by a court of last resort. The second has since been overruled by the same court, (Stewart v. The Sup’rs of Polk Co., 30 Iowa, 9.) This leaves two decisions only — one in Wisconsin, and one in Michigan, standing solitary and alone, in opposition to even this species of legislation; and these are not authorities, as we shall presently see, against subscriptions to the capital stock of rail.road companies. The supreme court of Wisconsin is composed of three judges, one of whom dissented. The supreme court of Michigan is composed of four judges, one of whom dissented. The court of appeals in New York, the court of last resort in that State, decide in favor of the validity of subscriptions : Bank of Rome v. Village of Rome, 18 N. Y., 38; Starin v. Genoa, 23 N. Y., 439; Clark v. City of Rochester, 28 N. Y., 605; People v. Mitchell, 35 N. Y., 551; and the court rendering the decision reported in 51 Barb., 312, acknowledge the binding force of the decisions made by the court of appeals, but claim that there is a material difference between donations and subscriptions ; that they are not both governed by the same principles ; that one may be valid and the other invalid. The supreme court of Wisconsin decides in favor of the validity of subscriptions: Clark v. Janesville, 10 Wis., 136; Bushnell v. Beloit, 10 Wis., 195; and against the validity of donations : Whiting v. Sheboygan R. R. Co., 25 Wis., 167. In the latter case the court made two decisions, and in each decision they made a labored argument to show a distinction between subscriptions and donations, and to show that the former are valid and the latter invalid. (25 Wis.,. 186, 209.) See also note of Mr. Chief Justice Billon,, (who wrote the opinion of the court in the case of Hansen v. Vernon, 27 Iowa, 35,) published in the 9 Am. Law Reg., N. S., 172, 175.
We suppose that it will be admitted that it is a duty incumbent upon all governments to provide suitable and sufficient facilities for the travel and commerce of the country. Canals, roads, bridges, and other artificial means of passage and transportation from one part o the country to the other, have been made by the sovereign, power and at the public expense, in every civilized State of ancient and modern times. And to-day this State constructs through the agency of subordinate public corporations all our common roads, bridges, and thoroughfares. In many parts of the civilized world, and particularly on the continent of Europe, (and in every part it might be done,) the railroads of the country are constructed, owned, and operated by the government. Many of the States of this Union have constructed, owned, and operated both railroads and canals, and their right to do so, so far as we are informed, has never been questioned. Some of the States are doing this very thing to-day, without the least suspicion that they are transcending the legitimate bounds of governmental jurisdiction. It must, therefore, be admitted that in the absence of constitutional restrictions, this State might construct, own, and operate, all the railroads within the boundaries of the State. It must also be admitted that whatever the State may do in providing artificial means of travel and transportation, it may do through the agency of subordinate public.corporations, such as counties, cities, towns, and villages, which may be locally benefitted by such improvements. "We have already seen that there is no constitutional restriction upon constructing works of internal improvement through the agency of subordinate public corporations, such as counties, cities, towns, and villages. Hence it logically follows that the State may, through the agency of such subordinate public corporations construct, own, and operate all the railroads within her territorial boundaries. It will also be admitted that the State may construct railroads through the agency of private corporations, or of private individuals. Now, if the construction of a railroad is a public duty which the State may either cause to be done entirely through the agency of public corporations, and at the public expense, or entirely through the agency of private corporations or private individuals, it seems to follow-as a logical consequence that such a work may be done partly through the agency of a public corporation, and partly through the agency of a private corporation or ■ of private individuals. If private enterprise will take hold of such public improvements and construct them, all experience has shown that it is better to let private enterprise do it. But if private enterprise will only perform a part, is it not better to let private enterprise perform that part, and the public perform the other part, than that the public shall be entirely deprived of all the benefits of Buch necessary and valuable improvements ? And further, if a county should purchase all of the stock in a railroad company, the county would then own the. entire road, and might, we presume, operate the same without any grave constitutional objection being urged against such a transaction. Then why may not the county purchase a portion of the stock, and operate the road in conjunction with the other stockholders, who are private individuals, and who own the remainder of the stock ?
11. Courts must mend“tii?ot constitution, While there is an obvious distinction between subscriptions and donations, still we do not suppose that the Wisconsin and Michigan decisions are founded entirely upon the doctrine that donations to railroad companies are illegal, simply because they are donations. The power of governments and governmental organizations to make donations, has been exercised ever since governments were instituted, and, we presume, always will be. Swords, banners, and other mementos for meritorious conduct, have always been, and, we suppose, always will be donated by governments and municipal organizations. Two hundred thousand dollars in money, and a township of land, were donated in 1824 by the general government to General La Fayette. Millions of dollars as pensions, and millions of acres of land, and land warrants, have been donated to the soldiers of the republic since its organization. And the government is now generously donating artificial limbs to disabled soldiers who lost limbs in the war of the rebellion. During the rebellion, the general government, and almost every loyal State, county, city, township, and hamlet, gave bounties to soldiers enlisting in the service of their country. Bounties have been everywhere given for the destruction of wild beasts and other public pests. This State is now giving bounties to those who grow forest trees, plant hedges, and build stone fences. (Gen. Stat., 465, 10.94.) Schools are made free for the poor as well as for the rich. Asylums are established for the deaf, dumb, blind and insane. Hospitals are opened in many parts of the world for the sick, the diseased, the disabled, and the infirm. The poor and the destitute are fed and clothed at the public expense. Homesteads are given by the general government to actual settlers upon the public lands. And many millions of acres of the public lands have been donated to railroad companies by the general government within the last thirty years. If the Wisconsin and Michigan courts had simply said that donations to railroad companies were illegal because they were donations, their decisions would not affect this case in the least; but they have gone farther, and have said that they are illegal because they are given to railroad companies. The reasons given why-donations to railroad companies are illegal are, first, that railroad companies arq private corporations, (forgetting of course that such donations as are everywhere admitted to be legal, are nearly always given to private corporations or to private individuals;) and second, that said donations are given for a private purpose. .Now whatever may be the case with reference to municipal aid to railroad companies being a private purpose, in "Wisconsin or Michigan, we think we have already demonstrated that such is not the case in Kansas; that the people of Kansas, in their primary capacity, in framing their constitution have determined otherwise, andas we shall attempt to show have determined ]3ut rightly or wrongly, from the people in their primary capacity there is no appeal. Their decision is final. "Whatever they have determined in and by their constitution, we must determine. We are not above the constitution. We as judges are the mere creatures of it, and hold our authority under it, and from it, and must decide as it decides. Any other course would be usurpation. If we do not carry out the provisions of the constitution as the people understood them when they framed it, we are unworthy to hold the places we fill. It can hardly be supposed that when the people framed their constitution they intended to bring into existence a tribunal greater than the constitution itself; a tribunal with such potential force that it could destroy the provisions of the instrument upon which its own life and existence depends. It has heretofore been supposed by' statesmen and jurists, that the constitution was a permanent and indexible instrument; that it was the photograph of the people’s will, indelibly fixed, and could only be amended by the people themselves in the prescribed form. It has heretofore been supposed that if a new truth, however valuable, should be discovered, the courts, however strong the temptation might be to startle . the world with the announcement of it, would have no right to insert it in the constitution by judicial construction, or interpretation, but must wait and let the people in their own proper time, make the desired amendment. And even where a society has outgrown its constitution it has never been supposed that the courts could, through the means of judicial construction so amend it, as to bring it up to the wants and needs of the more improved and further advanced condition of society.
We deny both the grounds on which it is claimed that municipal aid to railroad companies is un constitutional. We deny that railroad companies are strictly private corporations, although we do not claim that they are strictly public corporations; and we deny that municipal aid to railroad companies is strictly for a private use, although we do not claim that it is wholly for a public use, though the object intended by the government is a public purpose; and we further say that it makes no difference, so far as this case in concerned, whether a railroad company, as a . . . company, is a private corporation or not. The whole question depends upon the ultimate object, use, or purpose, intended by the government in granting the aid to railroad companies — whether that object, use, or purpose is public or private, and not, upon the nature or character of the means used in effecting or accomplishing that object.
This whole question has been argued as though it depended entirely upon the sovereign power of taxation. We do not think thát it does, but as it has been so argued, we cannot well escape discussing the question to some extent in the same manner. The argument for plaintiff's in error in substance is this : l.-The dividends on the railroad stock which the county gets for its bonds, together with the stock itself, and all other resources of the county aside from taxation, will not pay the interest ■and principal of said bonds as the same become due; therefore the county will have to resort to taxation in order to pay said interest and principal. 2.-Taxation can only be. resorted to for a public purpose. 3.-A railroad company is a strictly private corporation, and subscribing for stock therein and issuing bonds thereto, is a strictly private purpose. 4.-Therefore such subscriptions, etc., are unconstitutional. Now, we admit the first and second of these propositions, and deny the third and fourth, And we might here say that we admit what are claimed to be the three fundamental principles of taxation: 1st, Taxation must be for a public and not merely a private purpose. 2d, The taxes must be properly apportioned. 3d, The district taxed must have a special interest in and be specially benefitted by the thing for which the taxes are levied. Taxation is not an independent power to be exercised aside from the other powers of the government. No society of men ever organized into a government, ox into a municipal corporation, for the mere purpose of taxing themselves. The power of taxation can never be invoked except in aid of one of the other powers. • It is not of itself a sufficient foundation upon which to build any other power or action of the government. It is only a servant of the other powers, and can only be exercised in their support-And if the right to make county and municipal subscriptions to railroad companies is founded upon no other power except the power of taxation, we admit it has no foundation whatever, and must of course fall. But on the other hand, if it be conceded that every other objection to the making of said subscriptions is removed— that nothing else stands in the way — that everything else is favorable — that the right of the government is otherwise perfect — then everything is virtually conceded, for the power of taxation (or the want of such power,) can never be in tbe way of tbe exercise of any of tbe other powers of government, but must always, when necessary, contribute thereto. The power of taxation is the most-universal power possessed by governments. It is coextensive with every other power — it is an incident, a concomitant, an auxiliary of every other power. Whenever the government can act at all it can resort to the power of taxation if necessary to make its action effective. And although the government has no right to interfere in private affairs at all, yet whenever the public interest, the public honor, the public gratitude, or public charity requires it, the government may resort to its sovereign power of taxation without limit, until its interest, its honor, its gratitude, or charity is entirely satisfied. Then it is that the power of the government, and the power of the legislature acting for the government, becomes unbounded; for the courts, whose duty it is simply to expound and declare the law, have no scales by which to determine the amount of the public interest, the amount of the public honor, the amount of the public gratitude, or the amount of the .public charity, which will support and sustain taxation. This duty rests upon another branch of the government — the legislature; and it rests wholly in their discretion. That these views are correct we refer to the following authorities : Cooley Const. Lim., 219, et seq., and cases there cited; id., 479, et seq., and cases there cited; id., 129, 488; Town of Gilford v. Sup. Chenango Co., 13 N. Y., 143, 149; Booth v. Woodbury, 32 Conn., 128; Broadhead v. City of Milwaukee, 19 Wis., 652; Speer v. School Directors of Blairsville, 50 Penn. St., 150; Waldo v. Portland, 33 Conn., 363; Bartholomew v. Horwinton, id., 408; Lowell v. Oliver, 8 Allen, 247; McCulloch v. Maryland, 4 Wheaton, 425 to 436.
' IY. Let us now examine into the character of railroad companies so as to determine whether they are public, quasi public, or private corporations. For more than eighteen years, from 1852 up to 1870, when the case of The People v. Salem, 20 Mich., 452, was decided, the doctrine of the supreme court of Michigan was that railroad companies were public, or quasi public corporations. In the case of Swan v. Williams, 2 Mich., 427, decided in 1852, that supreme court says : “ Most certain it is, that as to all their rights, powers, and responsibilities, three grand classes of corporations exist. First, Political or municipal corporations, such as counties, towns, cities and villages, which from their nature are subject to the unlimited control of the legislature. Second, Inose associations winch are created for pub- ]jc benefit, and to which the government delegates a portion of its sovereign power, to be exercised for public utility such as turnpike, bridge, canal and railroad companies; and Third, Strictly private corporations, where the private interest of the corporators is the primary object of the association, such as banking, insurance, manufacturing, and trading companies.” * * * “The object defines the character of these associations by whatever name they may be styled.” * * * “ The object which determines the character of a corporation is that designed by the legislature rather than that sought by the company. If that object be primarily the private interests of its members, although an incidental benefit may accrue to the government therefrom, then the corporation is private; but if that object be the public interest, to be secured by the exercise of powers delegated for that purpose, which would otherwise repose in the State, then, although private interests may be incidentally promoted, the corporation is in its nature public — it is essentially 'the trustee of the government for the promotion of the objects desired — a mqre agent to which authority is delegated to work out the public interests through the means provided by government for that purpose, and broadly •distinguishable from one created for the attainment of no public" end, and from which no benefit accrues to the community except such as results incidentally and not necessarily from its operation. In the creation of this class of corporations, public duties and public interests are involved, and the discharge of those duties and the attainment of those interests are the primary objects to be worked out through the powers delegated to them. To secure these, the right of preeminent sovereignty is exercised by the condemnation of lands to their use, a right which can never be exercised for private purposes. How, then, can they be regarded as private associations, from the acts of which an incidental benefit only springs to the public ?” “ Nor can it be said that the property, when taken, is not used by the public, but by the corporators, for their own profit and advantage. It is unquestionably true that these enterprises may be, and probably always are, undertaken with a view to private emolument on the part of the corporators; but it is none the less true that the object of the government in creating them is public utility, and that private benefit, instead of being the occasion of the grant, is but the reward springing from the service.” (2 Mich., 434 to 436.)
In the case of the Miners’ Ditch Co. v. Zelerbach, 37 Cal., 543, 577, Chief Justice Sawyer says: “There are several classes of corporations, such as public municipal corporations, the leading object of which is to promote the public interest; corporations technically private, but yet of a quasi public character, having in view some great public enterprise, in which the public interests are directly involved to such an extent as to justify conferring upon them important government powers, such as an exercise of the right of eminent domain; of this class are railroad, turnpike and canal companies; and corporations strictly private, the direct object of which is to promote private interests, and in which the public has no concern, except the indirect benefit resulting from the promotion of trade and the development of the general resources of the country.”
In the case of Osborn v. The United States Bank, 9 Wheaton, 738, three important questions were decided: First, That congress had no power to create private corporations, the federal government being a government of delegated powers, and the power to create private corporations not being among the powers delegated. Second, That congress had power to create corporations as instrumentalities by which to carry out a delegated power, and that such corporations were to be classed as public corporations. Third, That a banking corporation created for such a purpose, although four-fifths of its capital stock was owned by private individuals, and it was engaged, in part, in private banking business from which private and individual profit was derived, (3 U. S. Stat. at Large, 266, et seq.,) was nevertheless & public corporation. Chief Justice Marshall, who delivered the opinion of the court, said: “ The bank is not considered as a private corporation whose principal object is individual trade and individual profit, but as a public corporation, created for public and national purposes. That the mere business of banking is in its own nature a private business, and may be carried on by individuals and companies having no political connection with the government, is admitted; but the bank is not such an individual company. It was not created for its own sake, or for private purposes. It has never been supposed that congress could create such a corporation. It is not an instrument which the government found ready-made, and was supposed to be adapted to its purposes,'but one which was created in the form in which it now appears, for national purposes only. It is undoubtedly capable of transacting private as well as-public business. While it is the great instrument by which the fiscal operations of the government are effected, it is also trading with individuals for its own advantage. The appellant endeavors to distinguish between this trade- and its agency for the public, between its banking operations and those qualities which it possesses in common with every other corporation, such as individuality, immortality,” etc. 9 Wheaton, 860, 861.
In this State the register of deeds accepts his office for private gain and emolument. His business is with and for private individuals. He is paid by the individuals for whom he does the work, and not by the State or the county. Is he a public officer, or strictly a private individual? This same question might be asked with equal propriety with regard to several other public officers. In this connection, we would refer to the following authorities: 18 Wend., 9, 15, 16; 3 Paige, 45, 75; 8 Dana,, 296; 3 Wis., 612; 6 Wis., 636; 10 Wis., 280; 2 Dev. &. Bat., (N. C.,) 468; 61 Penn. St, 27; 2 N. H., 25; 5 Nevada, 285, 307, et seq., and cases there cited; 21 Penn. St., 47,. 179; 13 Wis., 43.
It is undoubtedly true that railroad companies, in contradistinction to municipal corporations, are always-classed as private corporations ; and with this classification, we find no fault; but to class them with other private corporations, is a great mistake. They differ materially from all other private corporations in many respects, and with reference to them, ought to be classed as public. The sovereign power of eminent domain,. •which is always conferred upon railroad companies, has never been and could not he conferred upon a strictly private corporation. And the government exercises a control over railroad companies in compelling them to carry passengers and freight, and in regulating the prices of the same to an extent never exercised over strictly private corporations or private persons. The power exercised by municipal corporations in regulating the fares of haekmen and draymen comes nearest to that exercised by the legislature in regulating fares and freights of railroad companies. But the former is only a police regulation in cities, while the latter is the exercise of a sovereign legislative power, founded upon the doctrine that a railroad company is a public agency of the government. And there are other distinctions between railroad companies and haekmen and draymen which we-will hereafter mention as we proceed with this discussion. It will be admitted that a strictly private railroad corporation might be organized under the authority of the legislature, a corporation whose powers and duties would be similar in all respects to other private carriers of freight and passengers, such as the proprietors of stage-coaches, hacks, drays, etc.; and while such railroad corporation would be relieved, as other private carriers óf freight and passengers are from many of the restraints and duties of a public or quasi public railroad corporation ; while it would, of course, be free to carry any kind of freight it chose, or any class of passengers it chose, when it chose, or exclude all, and carry freight only for itself, yet it could not exercise the right of eminent domain as a public or quasi public railroad corporation does. It would have to purchase the land over which it should ■construct its road; but if the owner of the land would not sell, it could not build its road; its progress would necessarily come to an abrupt termination.
But as we have before stated, it makes no difference whether we call a railroad company a public, quasi public, or a strictly private corporation. It is the ultimate end, object, and purpose, that must determine the power of the legislature to act in the premises, and not the nature or character of the corporation or person through whose intermediate agency, this end, object, or purpose, is expected to be accomplished. Nearly all the public works of this State, and of counties, cities, towns and villages, have been accomplished through the agency of private corporations, or of private individuals. The work is usually let by contract to the lowest bidder, and no one has ever yet supposed that it was illegal because it was not done by a public officer or á public corporation. The most of the public printing of this State has been done by private persons; for up to 1869 we had no public printer. The public buildings are erected, mails carried, goods transported, and many other things we might mention, are done for the public by private corporations or private persons. And it has never been contended, nor with reference to any other class of cases, that the government could accomplish a public purpose only through the agency of a public servant. It has heretofore been supposed that whatever the government did through the agency of a private corporation or private individual it did itself; qui facit per alium, facit per se; and what valid objection can there now be raised to the government accomplishing apublic purpose through a private agency ? For the purposes then of this argument we may well admit that a railroad company is a private corporation; though we shall of course claim that the use of a railroad is a public use or purpose. But it is not only claimed that a railroad company is a private corporation, but it is also claimed that the property it possesses is strictly private property. And therefore it is claimed with great •confidence that the use of such property must necessarily be strictly and absolutely a private use or purpose. A glaring non sequitur. A fallacy that ignores one of the fundamental principles of law — a principle older than railroads, older than any living-jurist, old as law itself— the principle that the title to a thing and the possession thereof may be vested in one person for the use and benefit of another. The government seldom owns the building in which a postoflice is kept; it seldom owns .any material portion of the furniture of the postoffice; and is the use of such property, for that reason purely .and strictly a private use ? Suppose the State should employ an individual to carry stationery from the depot in North Topeka to the state house; would the transportation of such property be any the less a public purpose because the person so employed might be a private individual, and the wagon and horses with which he should transport the stationery might be private property ? And will it be contended that no taxes could be levied nor public funds used to pay for the services of a postmaster and for the use of his' house and furniture, or to pay for the services of said individual, and for the use of his horses and wagon, simply because the postoffice and furniture and the horses and wagon are private property ? And will it be contended that the carrying of said stationery. is purely and strictly a private purpose ? It may be private with regard to the individual, but it is public with regard to the State and the public.
We have the combined authority of, every legislature, of every executive, and of every court in the United States that the construction and operation of a railroad, even in the hands of a (usually called) private corporation, is a public purpose; for if it were otherwise every lawyer in the land knows that the sovereign power of eminent domain could not be exercised in its favor. This ought to be conclusive of the question ; but it is said it is not such a public purpose as will support taxation. Strange indeed ! The power of eminent domain is limited in its scope and operation to but few subjects. At every step it is traversed and opposed. Everywhere the plea of inexorable necessity must be interposed in its favor or its progress is ended. Not so with taxation. As we have already seen, taxation is the most universal, broad, sweeping and unlimited power possessed by governments. It is the power to destroy, and has no limit except in the will of the sovereign. (Per Marshall, C. J., in McCullough v. Maryland, 4 Wheat., 316, 425 to 436.) No instance has been shown nor can be shown where the government may aid a thing by the power of eminent domain, where it cannot also aid it by the power of taxation. No instance has been shown nor can be shown where the government may aid a thing by the exercise of any of its sovereign powers, where it may not also aid it by taxation.
A railroad is a public purpose because it increases the facility for travel and transportation from one part of the country to another. In this respect it is a great and inestimable public benefit, which may be better described by others than by the courts. And yet there are other public benefits incidentally springing from the construction and operation of railroads. The increased value of all property within their vicinity is one; but this is probably only a measure of the value of the increased facility for travel and. transportation. The increase of the public revenue is another, and this, or rather the decrease of the public burdens cannot well be overestimated. As railroads progress, agriculture, trade and commerce, with all the arts and sciences of an enlightened civilization follow in close proximity and with a celerity that would astonish the inhabitants of fairy land. Cities, towns, and villages spring up with a marvelous growth that would rival the fabulous creations of Aladdin and his wonderful lamp; and in districts where the tax collector was never before known, immense revenues flow into the public treasury with a copiousness and a profusion that would astonish the wealthiest of the sovereigns of ancient or modern times. In "Wisconsin it seems to be considered that the mere taking of stock in a railroad company, by a municipal corporation, is sufficient of itself to make the railroad a public purpose, such as will sustain taxation and render the act of the legislature authorizing it valid. (Whiting v. Sheboygan R. R. Co., 25 Wis., 167, 186, 209.) Now while we do not wish to controvert this doctrine, still we do not wish to found such a broad superstructure upon such a narrow basis. If a railroad company is purely a private corporation, and if the construction and operation thereof is purely a private purpose, neither the government nor any municipal corporation has any right to become a stockholder therein. Governments were not organized for the purpose of engaging in private enterprises or private business, but only for the transaction and promotion of public affairs. Even if the purchase of stock in a railroad company should be a paying transaction as an investment, (which, unfortunately for counties and municipal corporations, it is not,) still a governmental organization would have no right, for that reason alone, to engage in it, for governmental organizations are not created for purposes of speculation, nor are they created for the purpose of enriching the organization as such, but only for the purpose of promoting the general welfare of the individual members thereof as citizens. The increased facility for travel and transportation is the main object in the creation of railroads, and this it is which constitutes a railroad a public purpose. All other benefits, though belonging of right to the public, are simply incidental. "When this facility is made absolutely free by the government, (all persons having the right to use it,) all will admit that it is then a public purpose, and such a public purpose as will support both the right of eminent domain and taxation. When it is absolutely free, except that the government demands and receives a compensation for its use, all will admit that it is still a public purpose, and such an one as will support both the right of eminent domain and taxation. When it is absolutely free, except that a railroad corporation receives the compensation instead of the government, though fixed by the government, all will admit that it is still a public purpose, and one that will support the right of eminent domain; but it is denied by the plaintiffs in error that it will still support the right of taxation. Why this distinction is made in favor of the right of eminent-domain and against the right of taxation has never yet been shown and cannot be shown. If any distinction is to be made, it should be (as we think we have heretofore shown) the other way — against the right of eminent domain and in favor of taxation. How is it that a railroad is so eminently a public purpose that the homestead, with all its endearments, may be taken from the owner, and himself and family, his wife and little children, driven out of doors, houseless and homeless, in order that the homestead may be converted into a roadway or depot, while at the same time the railroad partakes so little of a public character that one cent could not be levied as a tax to aid in its construction or operation ? How is it that to take the homestead is constitutional and valid, and to be encouraged, while to take the one cent tax is unconstitutional, invalid, and an unwarrantable infringement upon private rights ? Both are taken for the same purpose, to be applied to the same use, and to belong to and be controlled by the same corporation.
It is admitted that a railroad is a great public purpose, in one sense, because it adds vastly to the facilities for travel and transportation; but it is claimed that it is also a great private purpose, in another sense, because it adds vastly to the private wealth of a private corporation. All admit that the government may deal with the railroad in its public sense, until the government has exercised the right of eminent domain in favor of the railroad, but then it is claimed that the government must forever after-wards, and in all other cases, close its eyes upon the railroad as a public purpose, and see the railroad only in its private character. Is this logical? As a railroad is a public purpose in one sense, and a private purpose in another, who shall dictate to. the government in which sense it shall regard the railroad,’or in which sense it may deal with it ? In the case of Talbot v. Hudson, 16 Gray, 423, 424, 425, the supreme court of Massachusetts use the following lauguage : “ The act is therefore in a-certain sense for a private use, and inures directly to the individual advantage of such owners; but this is by no means a decisive test of its validity. Many enterprises of the highest public utility are productive of great and immediate benefits to individuals. * * * We are •therefore to look further into the probable operation and effect of the statute in question, in order to ascertain whether some public interest or benefit may not be likely to accrue from the execution of the power conferred by it upon the defendants. If any such can he found then we are bound to suppose that the act was passed in order to effect it. We are not to judge of the wisdom or expediency of exercising the power to accomplish the object. The legislature are the sole and exclusive judges whether the exigency exists which calls on them to exercise their authority. * * * In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause of the declaration of rights, everything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the State, or which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the, prosperity of the whole community. It is on this principle that many of the statutes of this commonwealth by which private property has been heretofore taken and appraised to a supposed public use are founded. Such legislation has the sanction of precedents eoevil with the origin and adoption of the constitution, and the principle has been so often recognized and approved as legitimate and constitutional that it has become incorporated into our jurisprudence.”
Many parallels have been drawn between railroads and various other kinds of business, for the purpose of showing that a railroad is a private purpose and therefore not entitled to receive public aid. Now, analogical reasoning does not always lead with unerring certainty to the right conclusion, and in this case it wholly fails. It has been suggested that the right of eminent domain may be exercised in favor of mills, (or rather mill dams,) bridges, ferries, etc., as well as in favor of railroads, and that the right of taxation cannot be exercised in favor of the former, and therefore it is inferred that taxation cannot be exercised in favor of railroads. Another' glaring non sequitur. If it were true that mills, bridges, ferries, etc., could be aided by the exercise of the right of eminent domain, and not by taxation, it would not at all follow as a logical sequence that everything else which could be aided by the exercise of the right of eminent domain could not be aided by taxation. But even if such would follow, still the premises upon which this supposed argument is founded are false, and therefore the conclusion may also be false. If these were merely private mills, private bridges, and private ferries, neither the right of eminent domain nor the right of taxation could be exercised in their favor; but if they are public, or quasi public, as a railroad is public, then there can be no sufficient reason given why both the right of eminent domain and the right of taxation may not be exercised in their favor.
The supposed parallel between railroads and hotels, stage coaches, hacks, drays, etc., fails in more particulars than the parrallel attempted to be drawn between railroads and mills, bridges, ferries, etc. The opening of hotels, the running of stage coaches, hacks, drays, etc., has never been considered as incumbent upon governments. Governments have never undertaken to keep hotel, run stage coaches, etc., and it has never been considered that there was any moral or legal obligation resting upon them to do so. But the duty of opening highways, canals, and other like improvements for the accommodation of travel and commerce, has always been considered most binding upon all governments. In favor of railroads, and public mills, bridges, and ferries, the right of eminent domain has always been exeercised, but in favor of hotels, stage coaches, hacks, and drays, never. But if hotels, stage coaches, hacks, or drays, should ever become of such public importance as to authorize the exercise of the right of eminent domain in their favor, there can be no question but that the right of taxation might then also be exercised in their favor. It is also supposed that a parallel exists between railroads and physicians, printing establishments, and various other kinds of private business. Now the similarity between a railroad and a physician, or a railroad and a printing press, is not very striking or obvious, and what there is of resemblance is in the wrong place for the benefit of the inference sought to be drawn therefrom.
It will! be noticed that all of the examples given to prove that a railroad cannot be aided by taxation are of a purely private character, and not one of them of a public or quasi public character, such as a railroad undoubtedly is. Now, in order to make the argument drawn from these examples of any value whatever, it must be shown that if these occupations referred to were made public, like a railroad, and subject to all the restraints of a railroad, still they could not be aided by taxation. This has not been shown, nor attempted to be shown. In fact it has not been shown nor attempted to be shown that all or any of these occupations mentioned are not already of sufficient public character to be aided by taxation if the legislature should desire to do so. And again: If a perfect equality exists between railroads and all the different kinds of business and occupations, such as stage coaches, hacks, drays, printing presses, physicians, etc., •so that taxation cannot be exercised in favor of the one, unless it can also be exercised in favor of the other, 'then it must necessarily follow that the right of eminent domain cannot be exercised in favor of the one, unless it ■can also be exercised in favor of the other; for instance, that the right of eminent domain may be exercised in favor of stage coaches, hacks, drays, printing presses, physicians, etc., which is contrary to all opinion, or that it cannot be exercised in favor of railroads, which is equally opposed to all opinion. And suppose there' is in fact, as is claimed, no distinction between railroads and stage coaches, hacks, drays, etc., and that it is inconsistent and illogical for the law to make a distinction, will that absolutely prove that railroads cannot be aided by taxation ? If consistency is all that is needed, why not say that stage coaches, hacks, drays, etc., may be aided by taxation, and then the consistency would be perfect ? But every lawyer knows that the law is not always consistent or logical. The men who make the laws are not always profound statesmen or logicians. Chief Justice Cooley, in the recent Michigan case, (People v. Salem, 20 Mich., 485,) attempts to lay down a rule whereby we may know'what may be aided by taxation and what may not. His language is as follows: “ The term ‘ public purpose,’ as employed to denote the objects for which taxes may be levied, has no relation to the urgency of the public need, or to the extent of the public benefit which' is to follow. It is, on the other hand, merely a term of classification to distinguish objects for which, according to settled usage, the government is to provide, from those which, by a like settled usage, are left to private inclination, interest, or liberality.” (See also Cooley Const. Lim., 533.) If this rule is correct, the whole question depends upon what is the settled usage, and not upon any rules of consistency or logic. Now admitting, for the-sake of the argument, that all the supposed parallels attempted to be drawn between railroads and other kinds of business are critically exact, and still it seems to us clear beyond all doubt that railroads must fall within the rule prescribed by Judge Cooley, although the other- kinds of business may not. Has it not been the settled usage in this country, for the last thirty years, to aid railroads by taxation? Are they not-classed with the objects — the public purposes — for which the government will provide ? There can be no doubt upon this question. It has been settled by an almost universal usage, and by a long list of judicial decisions, back to a time when this State was a wilderness, a part of the “ Great American Desert,” that railroads may be aided by counties and municipal corporations; and if the law as thus settled is inconsistent or illogical it must so remain until amended by proper authority. If the law or the constitution has been so inconsistent and illogical as to take up one class of objects and aid foster them, and leave another class precisely like them unprovided for, the courts cannot so amend the law as to make it consistent and logical. That does not fall within the scope of judicial authority. But if the courts do attempt to so amend the law, will they repeal the law authorizing aid to railroads, or will they amend the law so as to give aid to stage coaches, hacks, drays, etc. ? Either would make the law consistent. We do not admit, however, that there is any inconsistency in the law in this respect. On the contrary, we claim that there is a broad distinction between railroads and any other business of a purely private character.
We can suggest however, a more exact parallel, a closer analogy, than any that has yet been suggested, and still it will not be claimed by the plaintiffs in error that it proves anything in their favor. Of all the different kinds of strictly private business that exist or may be imagined, that of a strictly private railroad corporation, such as we have heretofore supposed might be organized under the authority of the legislature, would come nearest in similitude to that of a quasi public railroad corporation, such as are actually organized; and yet the dissimilarity between the two corporations would be just great enough to destroy the desired inference sought to be drawn from their resemblance. Ve will admit that the strictly private corporation would not be entitled to receive public aid, but that does not at all prove that the quasi public corporation would be in the same condition.
There has been a half expressed, half suppressed, claim that the right of eminent domain is not exercised in favor of railroad corporations because of their public character, but that it is exercised under the maxim, Sic utere tuo, ut alienum non Icedas. This is comic as well as novel. Because a man must so use and enjoy his own property as not to injure the rights of others, it is claimed that he must be totally deprived of its use, and must allow a strictly private corporation (as is claimed) to take possession of it, and use and enjoy it.
It is also claimed that the taxes must be duly apportioned, and the district taxed must have a special interest in, and be specially benefited by the thing for which the taxes are levied. This is admitted; but still the government has a very broad and extensive discretion in the matter. The most that the legislature can do is to adopt the best rules within their power for the apportionment of the taxes. And these rules, however good will sometimes be found to work injustice and hardship. No system has ever yet been devised, and the wisdom of man will probably never be able to devise, a system of apportionment that will do exact justice to every individual and to every locality. In cases of local improvements, or improvements that confer local benefits, the best system for securing the rights of the locality to be taxed that has yet been tried,, is to let the locality itself say how mueh the benefit is worth, and therefore how much it is willing to be taxed for it. Under such a rule the locality taxed can certainly have no right to complain. This rule has been adopted in the present case, and the county of Leavenworth has declared how much she thinks the benefit is worth to her, and the amount for which she is willing to be taxed.
In cities where street improvements are made, a street anywhere in the city is considered of such a public benefit to the whole city that the whole city may be taxed for any improvements made thereon. And it is also considered of such a special and local benefit to each individual owning property adjacent thereto, that he may be taxed , for the entire cost of the improvements made in front of his own property. (Hoyt v. Saginaw, 19 Mich., 39; Hines v. Leavenworth, 3 Kas., 186; City of Leavenworth v. Mills, 6 Kas., 288.)
A railroad built anywhere in the State is a public benefit to the whole State, and upon the same principle as taxation for street improvements, in the absence of any constitutional restrictions, the whole State could be taxed for its construction; and as each locality is also specially benefited by the improvement, there seems to be no good reason why it, instead of the State, should not be taxed to the extent of that benefit. Such has been the practice in nearly all the States of this Union. (See the numerous decisions heretofore cited.) On the continent of Europe, where railroads are generally constructed and owned by the government, we understand that both systems of taxation are considered legal. The whole State may be taxed to build the road, or the localities through which it is located may be taxed to build it. The question in this case is presented in its simplest form. It is not proposed to overrule, but to enforce the will of those to be affected. The road passes through the county proposed to be taxed, though it also passes beyond the limits of the county and through many other counties. The aid is not a donation, but it is a subscription to the stock of the road, giving to the county an interest in, and a share of, the control of the corporation. The tax is not imposed by others upon the county, nor by the county upon others than its members, nor by the county on a portion only of its community; but it is imposed by the county on itself. In the case of The City of Aurora v. West, 9 Ind., 74, 82, the supreme court of Indiana, speaking upon the point now under discussion, and the power of a city to aid a railroad extending beyond its limits, used the following language : “ It is true the water works may benefit nobody but the citizens of the city, while the railroad may benefit the surrounding country to some extent; at the same time it confers a great local benefit on the city, one, perhaps, greater than the wstter works. But where such is the case, should the city be deprived of the right to benefit iiself locally, because it cannot do so without also benefiting others ? And if the argument-is a good one that cities are necessarily incapable of aiding any improvement that may extend beyond the corporate limits, will it not apply with equal force to States ? May it not be said that a State is created to govern within its territorial limits; and hence that it is unconstitutional for it to aid any work extending beyond those limits ? That Indiana, therefore, could not aid in the construction of the Wabash and Erie canal, because it extended into Ohio; that she could not, with the consent of Ohio, construct that portion of the Whitewater canal lying in that State, because it was without her territorial limits; that South Carolina could not aid in the construction of a railroad to Memphis, in Tennessee, or to New Orleans, in Louisiana. But is this the doctrine ? A State can do what its constitution does not, by positive provision or reasonable implication, prohibit. The United States and city corporations can do only what their constitutions-permit. If the constitution of the United States expressly authorized the government to construct, with the consent' of the States, roads within their limits, would there be-any doubt of their power to do so ? If a State, then, can construct by permission—if South Carolina can, with the-consent of Tennessee, construct a road in that State—cannot a city of a State-be authorized by the State to take-stock in a road extending beyond her corporate limits ? ”
¥e have conceded that taxes can only be levied for a-public purpose. But who is to determine what is a public purpose, or when the public exigencies require that a tax shall be levied, we have not discussed, and do not propose to discuss in this case. That it rests largely in the discretion of the legislature,'and that the courts have but little to do with the question, we think must be clear beyond all doubt. Judge Cooley says that “ Taxes should .only be levied for those purposes which properly constitute a public burden. But what is for the public good,, and what are public purposes, and what does constitute-a public burden, are questions which the legislature mu-st" decide upon its own judgment, and in respect to which-it is vested with a large discretion, which cannot be controlled by the courts, except-, perhaps, where its action is-clearly evasive, or where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful.”'(Cooley Const. Lim., pp. 129, 488.) As to what is such a public benefit that it may be aided by the public, seems-to be a question of public policy-—-of political economy, which must almost exclusively be determined by the legislature. And when the legislature have determined the question — when they have determined that a certain thing is of such great public benefit that it is public policy to aid it by taxation, if the courts may still say that such is not public policy, and for that reason declare the act of the legislature unconstitutional, the courts must possess almost despotic power. If such is correct doctrine, then there is an appeal from the legislature to the courts on mere questions of policy.
The ancient and venerable rule of stare decisis also requires that we should declare in favor of the power of the legislature to grant municipal aid to railroad companies. Twice this court has already so decided, and each time by an unanimous court. These decisions have been published by legal authority, and have become rules of property, and precedents for future decisions. In the first case, which was decided in 1864, the present Chief Justice delivered the opinion of the court: Burnes v. Atchison, 2 Kas., 454. In the second, which was decided in 1865, Chief Justice Crozier delivered the opinion of the court: Atchison v. Butcher, 3 Kas., 104. Several other cases have been decided in this court, in which it seems to have been assumed without question that such acts were valid.
Ve might also state here, that not only the great weight of authority in the United States is in favor of the validity of such acts as the one we are now considering, but also the more recent decisions are likewise in favor of the validity of such acts. The Michigan case, already referred to, is the last decision against such validity, while the following cases, decided since the Michigan case, are in favor of their validity: Stewart v. Supervisors of Polk Co., 30 Iowa, 9; Longhorn v. Robinson, 20 Grattan, 661; Danville v. R. R. Co., 43 Vermont, 144; The Lafayette, Muncie & Bloomington R. R. Co., v. Geiger, 34 Ind., 185; King v. Wilson, 3 Chicago Legal News, 137; 1 Dillon’s Cir. Ct. Rep., 555; Stockton & Vasalia R. R. Co. v. The Common Council of Stockton, decided by the supreme court of California, May 12, 1871.
Y. There are three other questions attempted to be raised in this case: First, It is claimed that a vote of the people of Leavenworth county on the question, (in substance,) whether the commissioners of said county should issue $250,000 of the bonds of said county, to be expended in the stock of the Union Pacific Railway Company, Eastern Division, which was carried in the affirmative, was not sufficient to authorize the said commissioners to make said subscription and to issue said bonds, as they did, in payment therefor. We think it was. Second, It is claimed “that such bonds shall be issued only in payment of assessments made upon all the stock of such railroad company.” This is admitted. And while it does not appear that any formal order was made upon the records of said railway company making any assessments, yet all the stock that was issued by the company, to any person or county, was full-paid stock. This answered substantially the requirements of the law. Third, It is claimed that the commissioners on the part of the county had done all they could do to pay this bond and therefore that the county was not liable. . The reverse of this is true, and therefor this question is not in the case.
The judgment of the court below is affirmed.
Kinuman, C. J., concurring.
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The opinion of the court was delivered by
Brewer, J. :
On the 27th of September, 1870, Charles Rodgers, defendant in error, filed his amended petition in the district court of Saline county, in which he charged that on the first day of June preceding, defendant’s stock entered upon his premises, situated in said county, and trampled upon and consumed wheat growing thereon, to his great damage; and for which damage he prayed judgment. Barling’s answer, not denying thein jury, alleged that said stock was running at large, and that there was no fence around said premises to prevent or hinder the said animals from going upon them. A demurrer was filed to this answer, which was sustained. Judgment was afterwards rendered in favor of Eodgers for the amount claimed, and now DarliDg brings the case here for review. The error complained of is the sustaining of the demurrer to the answer.
Though the amount in controversy is small, and the case itself comparatively unimportant, yet the question it involves is one of exceeding nicety and difficulty. It involves the constitutionality of ch. 115 of the laws of 1870, commonly known as the Herd Law. This statute it is claimed is in conflict with sec. 17, of art. 2 of the State constitution. That section reads as follows :
“ Sec. 17. All laws of a general nature shall have a uniform operation throughout the State; and in all cases where a general law can be made applicable, no-special law shall be enacted.”
In 1868 the legislature passed a law of a general nature, entitled “An act in relation to fences,” which stands as ch. 40, Glen. Stat., p. 486. This act declared what should constitute a legal and sufficient fence, and required all fields and inclosures to be inclosed therewith. It further provided, in. case cattle should break into any inclosure and do damage, a mode of ascertaining whether the fence inclosing was a legal fence, and, if legal, what amount of damage had been done by the cattle. It in effect so far modified the common law that no action would lie for injuries done on real estate by trespassing cattle unless such real estate was inclosed with a sufficient fence. U. P. Rly. Co. v. Rollins, 5 Kas., 167. This law being of a general nature had a uniform operation throughout the State. Thei’e was in the act no attempt indeed to limit its operation; and if said ch. 40 were the only act in force the demurrer was improperly sustained, for under this statute the facts alleged iu the answer constituted a complete bar to any recovery for the damage done by these trespassing cattle of the plaintiff in error. But in 1870 the “Herd.Law” above referred to was passed. The first two sections of that act are as follows:
“ Sec. 1. The counties of Saline, Ottawa, 'Washington, Cloud, Cherokee, aud McPherson, shall be exempt from the provisions of an. act entitled ‘An act in relation to fences,’ for tbe period of five years from the date of the approval hereof.
“ Sec. 2. During said period of time, if the owner of stock of any description shall allow the same to trespass upon the premises of another person, such owner shall be liable in damages to the person whose property is so injured.”
Unquestionably if this latter act be valid, the ruling of the court below is correct. In the case of The State ex rel. Johnson v. Hitchcock, 1 Kas., 178, this court construed the latter clause of the constitutional section above quoted as in its nature directory rather than mandatory, and as leaving a discretion to the legislature to determine whether a desired end “ can or cannot be expediently accomplished by a general law.” But such construction cannot be applied to the first clause of the section. The language is plain and positive : “ All laws of a general nature shall have a uniform operation.” No discretion is left to the legislature or the courts. "Whether it be expedient to limit the operation of such a law is a question they may not ask. Pa^s a law of a general nature, ánd without any words of application, and it operates uniformly throughout the entire State. Pass such a law and attempt to limit its operation, and either the law or the limitation will be void. Now, the fence law of 1868 is without question a law of a general nature, and, (prior at least to the herd law of 1870,) of uniform operation throughout the State. No part of it is in terms repealed by the “ herd law.” It is only by implication repealed so far as it affects certain • specified localities, and these only for a term of years. If the latter be valid the former no longer has a “ uniform operation throughout the State.” That which was a general law, and had the required uniformity of operation, still remains a general law, but is deprived of such uniformity. The constitutional provision would thus be nullified. Now, whatever might be the rule if the attempt to limit the operation of a statute was a part of'the statute itself, when the attempted limitation is sought by a separate act the latter must fall while the former stands. Tested by this rule the fence act of 1868 is valid, the herd-law of 1870 void. No fairer illustration of the evil sought to be prevented by this constitutional provision can be presented than is furnished by these two laws. For they prescribe general rules of property and conduct, diametrically opposed to each other, each to have universal application within a given locality. A. and B. own adjoining farms, but in different counties. A.’s farm is in one of the counties named in the herd law. B.’s is not. Each owns stock. The farm of each is unfenced. B.’s stock strays upon A.’s farm and does great damage to his crop. B. is compelled to pay A. for all such damage. A.’s stock strays upon B.’s farm and does like damage; yet A. is under no obligation to pay for it, and B. must suffer the loss. It is damnum, absque injuria.
But it is contended that the two clauses of this constitutional section must be construed together, and the positive requirements of the first clause considered as limited by the discretion given in the latter; that every special law operates as a limitation upon some general rule either of statute or common law; that power to pass special laws carries with it the power to limit the operation of general by special laws. "Whether this be correct or not, is immaterial to this case, because, as it seems to us, the Herd Law of 1870 is a law of a general nature equally with the fence law of 1868. Each imposes a rule of property which applies equally to all property that can be affected by such a rule. Each imposes obligations which fall equally upon all members of a class of citizens. In fact there is no element wanting in the one which in the other tends to show that it is a law of a general nature except the extent of the locality over which it is intended to operate.' But if the legislature can by simply specifying the locality over which a law shall operate change a law of a general to one of a special nature, the obligations of this valuable constitutional provision are weaker than a rope of sand. We cannot so limit it.
The judgment of the court below must be reversed, and the cause remanded with instructions to overrule the demurrer.
All the Justices concurring.
[ * In case of Wells v. Beal, decided at January Term, 1ST2, (which was an action of trespass for injuries done by swine,) this court decided that — “In a township in which the hog law has not been suspended, it is no defense to an action for damages done to a crop by hogs suffered to run at-large that the crop is not inclosed by a legal and sufficient fence.” In this case, (TFeZZs v. Beal,) plaintiff in error relied upon the case of Larkin Taylor, 5 Kas., 433, (opinion, pp. 445, 446;) but the court held that the word “ stock,” there used, was used with respect to trespasses committed by horses, mules, neat cattle, etc., (the trespassing animals in Larkin v. Taylor being horses and neat cattle,) and were not intended to include swine% special provisions being made by art. T, §§46 to 54, of the act relating to stock, (ch. 105, Gen. Stat., 1868,) in regard to trespasses committed by such animals. Hence, the word “cattle,” in the text, does not include swine, being used in a sense less comprehensive than Webster’s definition: “ Cattle, to., pi.: Domestic quadrupeds collectively, especially those of the bovine genus, sometimes also including sheep, goats, horses, mules, assess, and swine.” — Reporter.] ‘ ’ | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for injuries done to and upon certain real estate. The petition in the court below consisted of two counts, and set up two causes of action: First, that the defendant, (who is plaintiff in error,) carried away and destroyed certain rails, pieces of wood, etc., from the land of the plaintiff, (defendant in error;) Second, that the defendant injured a certain dwelling-house of the plaintiff, situated on said land. The action was tried by a jury, and the jury found a verdict on both counts of the petition in favor of the plaintiff below, and against the defendant.
I. Almost all the rulings of the court below, from first to last, are indiscriminately assigned for error; but as to many of the assignments the rulings are so obviously correct that we shall not notice them in this opinion. No question was raised in the court below as to the sufficiency of the petition until after the trial had commenced; and then the defendant raised the question of the sufficiency of the second count by objecting to the introduction of any evidence under it, claiming tbat it did not state facts sufficient to constitute a cause of action. It is true that said second count is not very artistically drawn; it is not as formal and definite in some of its statements as- it should be. It is probable that it would not have been held sufficient on a motion of the defendant below to require the plaintiff to make it more definite and certain, if such a motion had been made. But we think it states facts sufficient to constitute a cause of action; and however informal, indefinite and uncertain it may be in some of its statements, it must be held sufficient when the objection is made, as it was made in this case.
II. The principal objection urged against said count' is, that it does not state that the plaintiff’ was in possession of the land, upon which the injuries are alleged to have been committed. This is not necessary. It J never was the law that the owner of property without a remedy for injuries done to it unless he was, at the time of their commission, in the actual or constructive possession of the property. In any case, whether he was in possession or not, he had his remedy. Ubi jus, ibi remedium. If he was in possession he had his action of trespass quare clausum fregit; if he was not in possession, he had his action on * x the case. In the first action he recovered for injuries to his possession, and incidentally tor injuries to his inheritance; in the second action here-covered for injuries to his inheritance only. But the first action was not confined to owners of land merely; it belonged to any person in possession. ■ It was a mere possessory action, the gist of which was the injury to the possession; and ownership formed no element or ingredient thereof. If the land was owned by one person and was iii the possession of another, each had his action. The first had his action on the ease, and recovered for injuries to his inheritance; the second had his action of' trespass guare clausum fregit, and recovered for injuries to his possession. But all these old forms of action are now abolished. "We have no action of trespass quare clausum; nor of case. We have but one form of action,, which is called a civil action. Gen. Stat., 631, Civil Code, § 10; and under this form all civil actions must now be prosecuted. Even waste, (and the plaintiff' in-error seems to claim that this action should have been an action of waste,) must now be prosecuted under this form: (Gen. Stat, 765, §685.) But the change in the forms of action has not in the least affected the substantial rights of parties. Wherever a party had a remedy under the old forms of action, either at law or in equity, for any injury to his property, he now has a remedy under our code of practice for such injury; and all that is necessary for him now to do, in order to state a good cause of action, is to state “ the facts constituting his cause of action in ordinary and concise language, and without repetition; ” (Gen. Stat., 647, .§ 87;) and he may always recover for just such injuries as he states in his petition, (provided he proves them,) and for no more. If he states that he is the owner and is also in possession of’ the property, he may recover for injuries to both the land and to his possession; but when he states that he is the-owner of the land, and does not state that he is in-possession, he can recover for injuries to the land only. And his petition is not- insufficient in such a case, because of his omission to state that he is in possession. In this case, the plaintiff did not attempt to prove under thesfecond count of his petition, any injuries except such as he had alleged in said second count, and except such as- pertained to liis house, which was a part of his real estate.
III. The court properly allowed the plaintiff below to amend the "prayer of his petition, and also properly allowed the amendment to be made 'bj-interlineation. Neither was it an abuse of judicial discretion. The amendment was short, and scarcely, if at all, material. Amendments of pleadings may be made in three ways, subject to the discretion of the court; first, by interlineation; second, by.writing the amendment, and the amendment only, on a separate piece of paper, and referring to the original; third,, by rewriting the ■original, and incorporating the amendment in it.
IV. During the trial the court below allowed the plaintiff to introduce in evidence the record of a judgment, together with .the papers connected therewith, to-wit: the notice to abandon the premises, the summons, the complaint, and the affidavit, to prove that the plaintiff was the owner of the land. This judgment was between the same parties and concerning the same land, and was rendered by a justice of the peace, in a proceeding under chap. 96, Gen. Stat., {page 952. ) The court did not err in permitting this evidence to go'to the jury. It was prima facie evidénce that the plaintiff owned the land, and therefore was .proper evidence. But for the purpose of this ease it makes no difference ■ whether said evidence was proper evidence or not, for the defendant himself, afterward and •during the trial, admitted, and introduced evidence to prove the very same thing, that is, that the plaintiff was the owner of the land.
Descending to small points, the defendant below claims that the court erred in permitting certain evidence relating to “ stakes,” and to “ shingles,” to go to the jury. These stakes, if we can understand the evidence, were pieces of wood or short rails seven or eight feet long, and were therefore undoubtedly covered by the first count of the plaintiff’s petition, and were also covered by the statute under which the first count' was framed; (ch. 113, Gen. Stat., 1095;) and hence the evidence was proper. The evidence is ’clear that the shingles were a part of the house, and we think the circumstances Bhow that, they were a part of the roof; if so, they were undoubtedly covered by the second count of the petition. But -the evidence relating to the shingles might properly have been admitted in evidence for another purpose, as a circumstance tending to prove that it was the defendant, and not some one else, that committed the injuries to the house. The defendant denied the commission of said injuries,.and of course it devolved upon the plaintiff to-prove them; and from the nature of the transaction, having been done after night, and in the dark, he had ta prove them almost entirely by circumstantial evidence. The last time these shingles were seen before the injuries-were committed they were on the house; the first time they were seen afterwards, they were on the defendant’s-premises.
V. The next question for us to consider is,, whether the plaintiff’ had a right to recover on the first count of his petition. In the discussion of this question we must- assume that, at the time of the ^ ... commission of the alleged injuries the plaintiff was the owner of the land, but not in possession; and that the defendant was in possession of the land as- the tenant of the plaintiff, but had no color of authority to commit the acts complained of. Said count is drawn under the statute entitled, “ An act to prevent certain trespasses,” (Gen. Stat., 1095.) The defendant claims that the cause of action provided for in this statute is simply the old action of trespass, quare clausum fregit, with increased damages. The only reason that we can .perceive for such a claim is, that it uses the word, “ trespasses,” in the title of the act; but this is not sufficient, as we think, to prove that the statutory action is simply the old action of trespass quare clausum, for the word M trespass,” when used alone, seldom, if ever, means trespass quare clausum fregit; and it generally has a much broader and more extensive signification. A party in possession, a mere trespasser himself, without any claim of ownership to the land, could at common law maintain trespass quare clausum fregit, against a mere wrong-doer who disturbed his possession; and can it be possible that the legislature intended by this act to give to such a person treble the value of timber and minerals, etc., taken fr.om land in which he has no interest, simply because he is i-n possession of the land ? "Will it be claimed that he has any interest in the timber or minerals, when he has ■no interest in the land from which they are taken ? It is to the owner of the land that the statute in express words gives these treble damages, and not to a person who is merely in possession. But must the owner of the ■land be in possession of the same in order to recover? There is "nothing in the statute that requires that he -should be-; and what is left out of the statute by the legislature is not to govern. It is certainly as much within the scope of the legislative authority to prescribe that the owner of the land may recover treble damages for injuries done to his property when he is not in possession of his land as when he is; and the fact that tbe statute does not mention or even hint at possession as being a prerequisite to the commencement or maintenance of the action to recover the damages it authorizes, is clear proof that there wasno intention to require any such condition precedent. The true way for courts to ascertain the legislative intention is to observe and be guided ° py thuB language of the statute, and if this be clear and free from ambiguity, there is nothing left for interpretation; for when the act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents. To go elsewhere to obtain something to enlarge its meaning is to endeavor to elude it. In construing this statute, if the court should adopt the theory of the defendant below, it would assume the extraordinary power of supplying a supposed omission, or rather of injecting into the statute a new term or provision. Such is not the office of interpretation. The office of interpretation is not to put a sense into language, but to ascertain the sense already existing therein.
The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., did not sit in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
The petition disclosed a regular warranty deed, conveying the real estate subject to certain judgments, in consideration of fifty dollars, the receipt whereof was acknowledged. The petition further disclosed that a valuable consideration was given by defendant,, though not the consideration of fifty dollars named in the deed. That the promissory note had not been paid fails to render it no consideration. A promise to pay is,, in contemplation of law, a thing of value, and good con— sideration for contract or conveyance, even though the promissor be insolvent and never performs the promise. 'There is no fraud, mistake, or accident, alleged in the •execution of the deed. On the contrary, it plainly appears that the parties to this conveyanbe knew its contents, and intended that it should be executed in the form it was.
The allegation of the petition is, “ that at the time of “making said deed, the plaintiff was'going temporarily “ out of the State of Kansas, on business, and wishing to “ leave his business in the hands of an agent, who could if “ necessary settle up all the business of plaintiff, in his absence, “ he solicited said Waterson to become and act as his ■“ agent, to which Waterson consented, and in order to •“ enable Waterson to sell said real estate and deed the “ same, when so directed by plaintiff, plaintiff executed and “ delivered said deed to said defendant Waterson, thereby “intending and constituting said Waterson agent and “ trustee of plaintiff, * * * and to reconvey said lands on de- ■“ mand to plaintiff,The offer of the plaintiff was not to show any fraud, accident, or mistake in the execution of the deed, but that at the time of the execution, there was a parol agreement that this absolute conveyance should only operate as a trust deed. We are not shown by the record what testimony was offered, but only what was ■proposed to be proved.
This limits the extent of our inquiry, which, from the ■offer and the petition is simply this : As between grantor and grantee, can the grantor, in the absence of fraud, accident, or mistake in the execution of an absolute deed, show that there was a parol agreement that such con-veyance should only operate as a trust deed? Beyond the question thus presented, we care not to inquire. But for the volume of authorities which hold that in equity an absolute deed may between tbe parties be shown by parol to have been intended simply as a mortgage, there would be little difficulty in answering this question. The plaintiff seeks to show the creation by parol of an express trust concerning lands. Section 1 of the act “ concerning trusts and powers,” in force at the time of this conveyance, and ever since, reads: “ No trust concern- “ ing lands, except such as may arise by implication of “law, shall be created, unless in writing, signed by “ the party creating the same, or by his attorney thereto- “ lawfully authorized in writing.” Could language more plainly forbid the creation by parol of an express trust concerning lands ? Yet that is what this plaintiff sought to do, His offer was to show a parol agreement that his grantee should hold these lands in trust for him.
Sections 6, 7, and 8, of the same act, cited by counsel - for plaintiff, are inapplicable. Section 6, upon which the other two sections are based, and which therefore shows what cases are referred to in the three, reads: “ When “ a conveyance for a valuable consideration is made to “ one person, and the consideration therefor paid by an- “ other, no use or trust shall result in favor of the latter; “ but the title shall vest in the former, subject to the pro- “ visions of the next two sections.”
This section does not apply to cases like the present,, where the whole transaction, including conveyance, consideration, agreement, and everything else, is between the grantor and grantee alone, but to those cases in which the grantee takes from the grantor a conveyance whose consideration is paid by a third party. In Rasdall's Adm’rs v. Rasdall, 9 Wis., 384, which is a very clear and strong case, the court says: “We do not feel called upon to cite authorities, to show that in the absence of fraud, accident, of mistake, parol evidence cannot be re ■ceived to prove that a deed absolute on its face, was given in trust for the benefit of the grantor, and we have not been able to find anything in this case to make it an exception. "We cannot see why, if this evidence is to be .received to establish this trust, every other deed in the State may not be shown by parol to have been given >upon trust, and the statute of frauds be entirely annulled.”
In Beach v. Packard, 10 Ver., 100, this language is -used : “ Parol evidence cannot be admitted to vary, contradict, add to, or control a deed or written contract. The dqed of bargain and sale between these parties had for its object the conveyance of certain land; and the extent of the land so conveyed, the parties thereto, the estate conveyed thereby, and the covenants attending it could not be affected by parol proof; and even that part -which relates to the consideration or the payment thereof, could not be contradicted or varied by parol, so as in any way to affect the purpose of the deed, that is, its operation as a conveyance.”
Hill on Trustees, (page 112,) says: “"When the conveyance is expressed in the deed to be for a valuable consideration, parol evidence cannot be received for the purpose of showing that the purchaser was intended to be merely a trustee for the vendor.”
In 2 Leading Cases in Equity, p. 705, after quoting from thp decision in 2 Sumner, 228, the editor says : “ This < language approaches, if it does not reach, the full extent of .the proposition that parol evidence is admissible, not only for the purpose of proving fraud or mistake, and thus varying or avoiding the effect of a deed or writing, but for that of adding a stipulation to the instrument in the first instance and then founding an inferential charge ■of fraud or breach of trust on the failure to fulfill it. If this can be done, the salutary restraints imposed by the rule of evidence laid down in Lord Irnham v. Child, and by the Statute of Frauds, are obviously at an end.”
In Johnston v. LaMotte, 6 Rich. Eq., 347, the court hold this language: “ The fraud insisted on, consists merely in the nonfullfillment of the alleged agreement, and depends of course entirely on the question whether there was in fact an agreement to be performed, and that preliminary fact the statute will not allow to be established by parol.” See also sustaining these views: 5 Duteher, 36; 16 Cal., 350; 28 Cal., 632.
Our conclusion then is, that in the absence of fraud, mistake, or accident, the grantor in an absolute conveyance, reciting a valuable consideration, and acknowledging its receipt, and where it is admitted a valuable consideration was actually received, cannot show a parol agreement that the grantee was to hold the lands conveyed in trust for his benefit. The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This is an action of replevin instituted to recover the immediate possession of certain, shocks of oats. The plaintiff offered in evidence a patent for certain lands, dated January 1st, 1870, and a deed! from the patentee to himself; this evidence was rejected; and plaintiff then introduced testimony tending to show that in the spring of 1870 he sent his son and tenant upon the land mentioned in the deed, who began to plow for the purpose of sowing oats, and after they had plowed a short time on said land defendant and his brothers drove them off, and having plowed more of the land sowed it in oats, and had harvested the same, which were the oats seized in this action; and then plaintiff again offered in evidence the patent and deed to the land, which were rejected by the court. The defendant’s testimony tended to show that he had been in possession of the land for several years prior to the spring of 1870, and that plaintiff had never been in possession except as above stated. The record does not purport to show all the evidence, nor does it in anywise appear by what right or pretense of right defendant was in possession of the land.
The errors complained of are, the refusal of the court to admit as evidence, the patent from the United States to Gray, and the deed from Gray to plaintiff, to the land on which the oats were grown; and the refusal of the court to give certain instructions asked by plaintiff. If the patent and deed were properly excluded there were no facts shown to predicate the instructions upon; therefore the propriety of giving the instructions depends upon the correctness of the ruling in excluding the patent and deed. The pleadings show that the plaintiff claimed that he was the owner of and entitled to the immediate possession of the oats, and that defendant denied the right of possession in plaintiff, with an averment of defendant’s right of possession. Under an issue so made up, and with the evidence offered otherwise, ought the plaintiff to have been permitted to introduce the patent and deed ? Clearly not. The issues were not made to try the title to the land. If such evidence was proper, it would have been equally proper for the defendant to have shown that he held the equitable title to said land, and that plaintiff was his trustee; and thus a question would have been tried, not put in issue in the pleadings, and upon the decision of which no judgment could have been entered commensurate with the extent or magnitude of the questions litigated. Again, testimony showing who was the owner of the land is not evidence as to •who owns the annual crops growing on it. They are personal estate. Whipple v. Foot, 2 Johns., 418; Stewart v. Dougherty, 9 Johns., 108; Austin v. Sawyer, 9 Cowen, 39; Jones v. Flint, 10 Adol. & E., 739; Graves v. Weld, 5 Barn. & A., 105. So in this State they go to the personal representative as personal property, and not to the heir; Gen. Stat., 439, § 40; and therefore evidence showing who owned the land, would not show who owned the oats. They were not real estate before they were harvested; and ownership of the oats which was in question could not be established by proof as to who owned the land. There can be no doubt that deeds may be introduced in evidence in the action of replevin, not to show title, but to show the extent of the possession, as in the case of Davis v. Easley, 13 Ill., 192; or to fix a date when possession changed, as in Parker v. Storts, 15 Ohio St., 351. Plaintiff in- error claims that this last cited case establishes the doctrine “ that the paramount right to the realty imparts the same quality to the personalty; ” but a careful examination of the case does not sustain the claim. The defendant and owner of the land was in possession of the land and the crop when the action was brought. The plaintiff sought to sustain his right by attempting to show ownership and possession when the wheat was sowed by himself in the fall. The court held that he failed in his testimony, and that is all. The controversy was not as to the title, but when it vested.
Title may be also Bhown, as in Ogden v. Stock, 34 Ill., 522, to show possession; but that would not be authorized in this case, where it appears that the defendant was in possession of the land long before the date of the patent to the plaintiff’s grantor. . In no case that we have seen have the title papers been admitted for the purpose of showing title only. Such a question ought not to be tried in such, an issue as was made in this case. Having excluded the patent and deed, the instructions asked were properly excluded, as there was nothing to predicate them upon. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal facts in this case, as shown by the pleadings, are as follows : On the 17th of January, 1871, the plaintiffs in the court below, who are plaintiffs here, filed in the clerk’s office of the district court for Morris county their petition setting forth in substance that they were tax payers of said Morris county, and the owners respectively of certain described real and personal property therein, on which an assessment and levy of taxes had been made, by the proper officers of said county, for the year 1870, for the purpose of paying the interest on certain bonds issued by the board of county commissioners of said county to the Union Pacific Railway, Southern Branch, and to provide a sinking fund, etc.; that the said William P. Shamleffer as Treasurer of said county, and Jonathan Hammond as county clerk of said county, were respectively threatening to take certain steps to enforce the collection of the taxes assessed against the said property of plaintiffs for the payment of interest and sinking fund on said bonds. The petition sets out in full the record of the board of county commissioners of said county, upon which the issuance of said bonds was predicated, from which it appears, that on the 27th of May, 1867, a petition was presented to the said Board, signed by one-fourth of the legal voters of said county, praying that a special election be held for the purpose of deciding whether or not the county of Morris should take stock in the Union Pacific Railway, Southern Branch, to the amount of $ 165,-000, payable in thirty-year seven-per-cent, bonds of the county, upon certain conditions therein specified, a portion of which were, that work should be commenced on said road at or near Junction City within one year from voting the bonds, and that the same should be completed to Council Grove in two years from the same time, and to the Lyon county line in six months thereafter; that the said board of commissioners did order said election, according to the prayer of said petition, and that the same was held on the 29th of June, 1867, and resulted in favor of said subscription; that on the 17th of April, 1869, the said railway company presented to the said board of commissioners a resolution of its board of directors, of date April 12th, 1869, requesting said board of commissioners to submit to the voters of said Morris county a proposition granting an extension of time of four months to said company to complete their road to Council Grove and through the county, and the bonds to be issued in thirty days after making the points specified; that thereupon the said board of commissioners did call a special election to be held on the 22d of May, 1869, to vote upon the following proposition: “ Shall the time “ within which the Union Pacific Pailway, (Southern “ Branch) Company were to complete their road to Coun- “ cil Grove in said county, according to the conditions of “the vote taken in said county, on-the 29th of June, “ 1867, be extended to the 1st day of November, 1869, “ saving to the said company their right to the bonds “voted on the 29th of June, 1867, upon the following “additional conditions:” (Then• followed certain con- “ ditions immaterial to this proceeding, with this possible “ exception: “ The said bonds to be issued within thirty “ days after the road is completed to the points specified “in the proposition voted upon the 29th of June, 1867;”) that the said election resulted in favor of the proposition submitted; that on the 4th of October, 1869, the board of commissioners directed their chairman to “ subscribe, for and on behalf of said Morris county, one hundred and sixty-five thousand dollars of the capital stock” of said railway company, upon the conditions hereinbefore specified, and to issue, in connection with the county clerk, the bonds of said county to a like amount, payable in thirty years; that afterwards the said chairman did so-subscribe, and issue the bonds, which action was on the 3d of January, 1870, approved by said board of county commissioners; that on the 5th of September, 1870, the said board of commissioners 'levied a tax of ten mills upon the property in said county for “ railroad purposes,” which said tax 'is the one the attempted collection of which is complained of. The petition further alleges that each of the steps taken which resulted in the issuance of said bonds, the levy of the tax, and the bonds themselves, are wholly void, and concludes with a prayer for a perpetual injunction restraining the said county officers, or either of them, from proceeding to collect said tax from plaintiffs. To this petition the defendants interposed a general demurrer, which waB sustained. The district court denied the relief sought, and dismissed the plaintiffs’ petition; to all of which plaintiffs' excepted,, and now bring their case here for review.
In this case counsel for-plaintiffs in error raise or attempt to raise three questions:
First: They claim that the acts of the legislature under which said elections were had, stock subscribed, and bonds issued, were unconstitutional and void.
Second: They claim that the county commissioners had no authority to subscribe for said stock, or to issue said bonds except under the act of 1865 (ch. 12, p. 41,} and the amendatory act of 1866, (ch. 24, p. 72,) under which the first election was held; and that said acts were repealed before said stock was subscribed, or said bonds- issued, and therefore they claim that said subscription and said bonds are void.
Third: They claim that the condition upon which the county commissioners were authorized to subscribe for .said stock, and to issue said bonds, were not complied with by the railroad company, and therefore they claim, that said subscription and said bonds are void.
I. The first question was considered while we were examining the cases of the Commissioners of Leavenworth County v. Miller, (ante, p. 479,) and The State ex rel. The Saint Joseph and Denver City Railroad Co. v. Comm’rs of Nemaha County, (ante, p. 542,) and was when we decided those cases. "We think those acts are constitutional and valid. We shall therefore, without any further consideration of this question, proceed to the consideration of the other two ■questions.
II. The said acts Of 1865 and 1866 have never been, •expressly repealed, and if they have ever been impliedly repealed, all rights, power and authority that had accrued under them, prior to their repeal, have, at least, been impliedly preserved. It is claimed that sec-ti°ns 1 and 2 of ch. 119, Gen. Stat., 1868, entitled, An act concerning the General Statutes, (pp. 1123 to 1128,) impliedly repeal said acts. If they do, then sections 6 and 8 of. said ch. 119, and the act entitled “ An Act to authorize counties to issue bonds to railroad ■companies,” passed by the same legislature, and approved February 25th, 1868, (Gen. Stat., 892,) have preserved .all rights and powers that had accrued under said acts. Said section 6, ch. 119, provides that “ The repeal of the acts and parts of acts revised and reenacted in the General .Statutes aforesaid, or repugnant to the provisions thereof, shall not * * * affect any act done, or right accruing or accrued,” etc. Said section 8 reads as follows :
“ Seo. 8. The provisions of the General Statutes, so far as they are the same as those of prior laws, shall be comstrued as a continuation of such laws, and -not as new enactments.”
And section one of the said act “ to authorize counties to issue bonds to railroad companies,” (Gen. Stat., 892,) reads as follows :
“ Seo. 1. Whenever a majority of the persons voting at any election called by the board of county commissioners of any county have heretofore voted in favor of subscribing stock and issuing bonds to any railroad company or companies, the board of county commissioners of such county may subscribe to the capital stock of such railroad company or companies, to the amount and on the conditions specified in the order of such board of county commissioners in such eases, and pay such subscriptions by issuing to each company bonds of such county, at par, payable at a time therein to be fixed, not exceeding thirty years from the date thereof, bearing interest at the rate of seven per cent, per annum, with interest coupons attached, whether such orders and elections, or either of them, have been in compliance with the statutes, in such cases made and provided, or not, or whether the proposition submitted at the election had, was for the subscription of stock and the issuance of bonds to one or more railroad companies.”
These sections just quoted still remain upon the statute book unrepealed. At the same ession of the legislature at which these sections were enacted, another statute was enacted giving power to counties to subscribe for stock and issue bonds to railroad companies. (Gen. Stat., 208, 204, §§ 51 to 54.) This last mentioned statute was for the future, while the other statutes just quoted -were to preserve intact all that had been done prior to that time. Whatever was done under the acts of 1865 and 1866, prior to the passage of the acts of 1868, continued in force the same as though the said acts of 1868 had never been passed.
III. It is claimed that the conditions upon which the county commissioners were -authorized to subscribe for said stock and to issue said bonds were not complied with that shows this. Counsel for plaintiffs in error nothing in the record brought to this court by the railroad company. Now there is have not under Rule 2 of the Rules of the Supreme Court referred us to anything that shows this, and upon examination we find nothing in the record that shows it. It does not conclusively follow that because the railroad company petitioned and the county voted to extend the time four months to the said company to complete their road to Council Grove, and through the county that the railroad company did not complete their road to Council Grove and through the county within the time prescribed by the first vote; and this is all that there is in the record that tends to prove that the railroad company did not comply with the conditions of the first vote. But we will suppose that the railroad company failed to complete their road to Council Grove, and through the county, for three •or four months after the time prescribed by the first election, yet there is nothing to show that they did not so complete it within the time prescribed by the second election ; and if so, that was sufficient. The second election was amendatory and supplemental to the first election, and changed the conditions prescribed by the first election just so far as the people intended to change such conditions. It seems to be admitted that the second election was held in all respects in accordance with the then existing law upon the subject, (ch. 29, laws of 1869, pp. 108, 109, 110,) except that it was an election to change certain conditions prescribed by a previous election, instead of an original election to subscribe for stock and issue bonds to a railroad company. We think the second election was valid as a supplementary and amendatory election.
This is not a preceeding to determine whether bonds may be issued or not. The bonds have already been issued, and the county has the stock of the railroad company, which it has received in payment therefor. The county commissioners, the agents of the county, have determined that all the conditions upon which the bonds were to be issued have been complied with, and the bonds have in all probability gone into the hands of innocent and bona fide purchasers. A strong case must then be made out in order to invalidate the bonds. We are not aware that bonds in the hands of innocent and bona fide purchasers have e,ver been declared invalid because the officers whose duty it was to issue them, and whose duty it was to decide upon all preliminary facts, committed an error in deciding upon some facts. But upon this question we do not now desire to express any opinion. The judgment of the court below must be affirmed.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a boy of fourteen years for injuries sustained through the alleged negligence of the defendant, a concern engaged in operating a circus throughout the country.
Without the knowledge or consent of his parents, a foreman of the circus engaged his services at an agreed compensation of $5.80 per week together with his board and lodging. He was given a meal ticket which entitled him to eat with the circus employees, and a “bunk car” was provided as sleeping quarters, but it was fully occupied by other employees, and when bedtime came the foreman told the lad, “You haven’t been here long enough to have a bunk. You got to be here three webks before you get a regular bunk.” The foreman directed another employee to take the plaintiff to a flat car which was to be his temporary sleeping quarters; and for a few nights, as the circus traveled and exhibited in Topeka, Junction City, Hastings, and elsewhere, he slept on some canvas in the flat car under the circus wagons. There were no sideboards on this flat car, and one night in Nebraska while the railway train carrying the circus was rounding a curve, the boy was flung from the flat car and was severely injured. Next morning he was discovered by some witnesses who saw him leaving the railway track, walking as if he were dazed, “as though he was drunk, staggering and stumbling back and forth across the road.” A witness testified:
“Boy was walking like he was all in — dazed—boy walked past us and stopped and sat down in a ditch; he laid down there and then got up and started toward us; his nose was cut, and his eye along the top was cut; had blood all over him, and he was weak; his arm was hurt; Joe Budd and my dad took him to town and to the doctor’s office.”
The boy’s skull was fractured, his eyelid cut, his collar bone broken, likewise his nose and left arm, and three of his ribs were fractured. Some days later his mother came and took him home, .and this lawsuit followed.
The plaintiff prevailed, and defendant appeals, assigning various errors, the chief of which raises the question whether the plaintiff sued the right party — whether the liability did not rest on some one other than the Sells-Floto Shows Company, defendant herein. At the trial this was a perplexing question of fact. The evidence on this point was lengthy, complicated and contradictory. It appears that the beneficial ownership and control of the property known as the Sells-Floto circus have been vested for many years in one way or another in two enterprising Denver capitalists, F. G. Bonfils and Harry A. Tammen. These two men have put large sums of money into the circus, and at various times have placed its nominal ownership in one or another of several corporations or similar business concerns which they have caused to be created. In 1907 the titular holder of the property was the American Amusement Company, and at that time Bonfils and Tammen caused the corporate name of the concern to be changed to the Sells-Floto Shows Company. Under that name or a popular abbreviation of it, the Sells-Floto Circus, the concern became widely known throughout the country; and notwithstanding some nominal changes in titular ownership, the institution has preserved as valuable its trade name, “Sells-Floto Circus.” Because the beneficial interest of Messrs. Bonfils and Tammen in the circus property had always been virtually complete and exclusive, there was little necessity to maintain the same careful records and transfers of nominal title, such as would have been requisite if there had been other partners or fellow stockholders holding a substantial interest in the concern. There was evidence to show that at one time the property was mortgaged by Bonfils and Tam-men as officers and directors of the Sells-Floto Shows Company, a Colorado corporation, to Bonfils and Tammen, as individuals, for over half a million, dollars which was computed to be the amount which these men had put into the circus, and later this mortgage was foreclosed and bought in by the mortgagees. Bonfils and Tam-men then gave Henry Gentry an option to lease the circus. Then Bonfils and Tammen transferred the ownership of the circus to a nominal corporation of their creation, the Continental Investment Company. Then the attorney for Bonfils & Tammen organized another nominal corporation, The Champion Shows Company, naming Gentry and certain employees of Bonfils and Tammen as the stockholders, with a nominal capital of $25,000, but no money or other assets, and a lease of the circus property was made in the name of the Continental Investment Company, a lessor, to the Champion Shows Company. Under this nominal arrangement the circus property was operated for two or three years, but also under an arrangement whereby Bonfils and Tammen financed the business and had supervision of its finances, and under which arrangements the nominal lessee made no money for itself. On cross-examination Tarn-men’s testimony abridged, reads:
“I was very much interested in it (the circus’s) success; had a great interest in it; since 1902 the witness had had something to do with this property; sometimes it was run in the name of the American Amusement Company; sometimes, Sells Floto Shows Company; sometimes Continental Investment Company; sometimes by just the witness’s brother and himself as individuals; sometimes by the Champion Shows Company. . . . The Continental Investment Company was organized about 1916, and it consisted of Bonfils and the witness as principal owners; that they owned all of the stock in it; that their lawyer Bottom got up the Champion Shows Company papers. . . . He and Bonfils own the Continental Shows Company. . . . that this was ‘our’ circus, ‘my adopted thing,’ and it will be mine as long as I live; . . . that the witness owns an interest in the physical property of the show. . . . that he had a man to go around with the Champion Shows Company to check up and see how much was being made and spent. ...
“The minutes of the meeting of the Continental Investment Company was drawn by witness’ attorney either at the meetings or afterwards; witness did not remember when the last meeting of the Continental Investment Company was held, couldn’t tell what was before the .meeting; the Sells Floto Circus is now in witness’ individual name. Witness when asked why he had testified yesterday that the Continental Investment Company owned the property, when it had been taken out and placed in his name, answering said ‘sometime the end of the season, I think in November.’ There was no lease upon the property given anyone at the time of the trial. Witness said he had authority to make a lease, but none had been made; the Continental turned the whole business of this circus over to the witness to operate, just like the ‘Sells Floto Shows Company’ did.”
Neither the Continental Investment'Company, nominal lessor, nor the Champion Shows Company, nominal lessee, nor Messrs. Bonfils and Tammen, the beneficial owners of the circus property, have intervened in’this lawsuit. The attachment of the circus property promptly brought this defendant into court for all purposes, without tactical or dilatory pleas of any sort. A bond was promptly given in its behalf to pay the judgment — by whom is not shown — but it was not given by the lessee in whom the possession and operation of the circus were nominally vested. If indeed the Sells-Floto Shows Company went out of business in 1916, that fact could readily have been shown beyond cavil by the record of surrendered or canceled charters in the state of its creation. If this circus property were a tract of valuable real estate, it would baffie an expert in the law of conveyancing to tell who holds the fee title at this time, although it is perfectly clear that Messrs. Bonfils and Tammen are and always have been the beneficial owners; and since they have put forth such nominal title holders one after the other as suited their business convenience, with little or no regard to formalities of transfer, the Sells-Floto Shows Company, one of their corporate creatures which has had more to do with the circus than any other, can be held to answer as a defendant in this lawsuit. In so holding, we do not minimize or disparage the familiar principle of corporation law that formally organized and independently conducted corporations are separate legal entities, each having a separate legal status, although the organizers and stockholders may be the same persons. (The State v. Harvester Co., 81 Kan. 610, 615, 106 Pac. 1053.)
John Eberle was the foreman who employed the plaintiff in July, 1920, and when he was injured. Tammen, one of the proprietors of the circus, testified:
“Q. [Counsel for defendant.] I will ask you to state whether or not John Eberle was employed, or in the employ of the ‘Sells Floto Shows Company’ during the years 1918, 1919, 1920 and 1921? A. Yes, sir.”
Eberle’s deposition was taken by the defendant:
“Q. Mr. Eberle, what is your position with the Sells-Floto Shows Company? A. Boss canvas man.”
Another witness, William Connors, deposed for the defendant:
“Q. Do you work for the Sells-Floto Shows Company? A. Yes, sir.
“Q. How long have you been working for them? A. Ever since they left Boston, about four or five months ago.”
There was much testimony to the effect that the circus wagons and circus advertising bills bore the words “Sells Floto Shows Company,” although the accuracy of that testimony was persuasively disputed by testimony and evidence to the contrary, which included photographs of circus wagons bearing the words “Sells Floto Circus,” and checks, meal tickets and other business papers which bore the legend,. “Sells-Floto Circus” in large type followed in less conspicuous type with the words “The Champion Shows Co.” But it cannot be gainsaid that under the evidence the jury had a right to determine this stoutly contested question, and find that this defendant, the Sells-Floto Shows Company,, was operating the circus at the time the plaintiff was injured. (Burlington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)
Defendant complains because of the trial court’s refusal to permit it to correct the depositions of John Eberle and William Connors in which they deposed that they were working for the SellsFloto Shows Company. Defendant took these depositions but wanted the answers changed to say that the deponents were working for the Sells-Floto Circus. To effect this correction, the defendant offered a certificate of the notary who was also the stenographer who wrote the depositions, reciting that he had made a mistake in copying his stenographic notes, and that the words “Sells-Floto Shows Company” in these depositions should have been written “Sells-Floto Circus”? This certificate was properly rejected. It conformed to none of the rules of evidence. (18 C. J. 722.) Furthermore, once the depositions were taken the plaintiff has as much right to use and rely on them as the defendant. (Golder v. Golder, 102 Kan. 486, 170 Pac. 803.)
Error is assigned because the plaintiff was permitted to cross-examine defendant’s witnesses touching certain damage or damage claims in Missouri against the Sells-Floto Shows Company which grew out of the collapse of some circus seats. The purpose was to develop a possible explanation of some of the transfers of title to the circus property. Although' the court first ruled against this evidence, yet as the trial developed it changed its ruling, and we see no error in permitting a limited inquiry of this sort.
Objection is also made because the summons, the return of the sheriff, and defendant’s answer were admitted in evidence. Defendant says:
“The only reason that is now and was at the time of the trial discernible by us was the effort on the part of counsel for appellee to do everything within their power to prejudice the jury.”
When these were offered, the court said:
“The Court: I don’t understand what it is for.
“[Counsel for plaintiff]: It was issued and they have answered this summons by filing an answer. I next propose to introduce the answer and the record showing that no other motion was filed to this summons.
“The Court: If that is all it is for, all right.
“[Counsel for defendant]: It isn’t evidence in the case.
“[Counsel for plaintiff]: Will you admit that you answered, without filing any demurrer or motions to quash?
“[Counsel for defendant]: The record will show whatever we did.
“[Counsel for plaintiff]: You don’t care to admit it then? We can find the answer. We offer in evidence the answer, plaintiff’s Exhibit 3, a general denial.
“[Counsel for defendant]: To which defendants make the same objection.
“The Court: Overruled. . . .
“The Court: Well, I don’t know whether the record should be read or not. What do you want to prove?
“[Counsel for plaintiff]: To show that there wasn’t any motion filed prior to the filing of the answer. If they will admit that, we won’t have to prove it.
“R. J. McFarland . . . clerk of the district court of Wyandotte county, . . . produced the appearance docket . . . and then testified over the objection of the defendant, which was overruled by the court, that prior to the filing of the answer in this case on the 13th of September, neither a demurrer nor any motion of any kind was filed by the defendant in this case.”
In view of the defense that the Sells-Floto Shows Company had been out of business since 1916 and was not operating the circus when the plaintiff was injured, we think these matters were competent.' (2 R. C. L. 845, 850.) They tended to show that when the action was begun this defendant came promptly into court in a general appearance, and that the defense afterwards set up was not then seriously contemplated by the defendant and its managing officers.
Error is also assigned in overruling defendant’s demurrer to the evidence and defendant’s motion for a directed verdict, but in view of what we have set down above, these rulings were obviously correct and require no discussion.
Defendant also complains of the court’s refusal to submit a question touching the possible extension of a lease of the circus property. Some other questions, more in point, were submitted and answered :
“Question. 1. Who was the owner of the Sells-Floto Circus at the time plaintiff alleges to have been injured? Ans. Sells-Floto Shows Co. . . .
“Question 3. At the time plaintiff received his alleged injuries was the circus being operated under lease? Ans. No. . . .
“Question 7. Was the circus property transferred by Bonfils and Tammen to the Continental Investment Company? Ans. Do not know.”
Since these findings show that the defendant owned the property and it was not under lease, and the finding “Do not know” means “No” (Bank v. Claypool, 91 Kan. 248, 137 Pac. 949; Sheerer v. Kanavel, 106 Kan. 220, 187 Pac. 658), the question refused was as effectually answered as if it had been propounded. Moreover, the question was objectionable because it assumed the earlier existence of a bona fide lease, which was one of the contested questions in this lawsuit. (Elliott v. Reynolds, 38 Kan. 274, 16 Pac. 698.)
Defendant’s next complaint relates to the rejected proffer of evidence in its behalf. That part of it which pertained to the correction of alleged errors in the depositions of Eberle and Connors has already been discussed. Touching the proffered evidence of Otto Floto, Max Levand, and H. S. Roberts, this evidence was submitted as affidavits in support of the motion for a new trial. In these it was shown that if permitted Floto would have testified that he told the sheriff “that he was attaching the property of the Continental Investment Co.; that the property did not belong to the Sells-Floto Shows Company.”
“[Counsel for defendant]: Is your Honor holding that we haven’t any right to introduce evidence to impeach this return or attack it?
“The Court: Introduce all the evidence you want to be on the fact, but you can not come in here and testify to a lot of stuff somebody told somebody else. If the sheriff was on the stand, it would be another matter.
“[Counsel for defendant]: His return is here.
“The Court: Yes; but his return can’t be attacked that way.
“[Counsel for plaintiff]: You had a chance to do that five months ago.”
The rejected testimony of Levand and Roberts was to the same general effect. We do not think the rejection of this testimony was prejudicial. Certainly the question as to the ownership of the property and who was operating it at the time of plaintiff’s injury and at the time of the trial was not unduly limited, rather the contrary; and regardless of what these witnesses told the sheriff, that officer did not have to believe them, and apparently he did not err in attaching the circus as the property of the Sells-Floto Shows Company, for that attachment very speedily brought this defendant into court, not specially but generally, and in its behalf a bond was given to pay any judgment entered against this defendant (Civ. Code, § 201) which was a vastly different thing from a forthcoming or redelivery bond such as provided in section 200 of the civil code. (McKinney v. Purcell, 28 Kan. 446.) A forthcoming bond would have served merely in lieu of the sheriff’s physical custody of the property until the question of the propriety of the attachment could have been determined (Tyler v. Stafford, 24 Kan. 580, 582); but this bond to pay the judgment waived all question as to the legality of the attachment and discharged it. (Washer v. Campbell, 40 Kan. 398, 747, 19 Pac. 858, 21 Pac. 671; Stow v. Shay, 54 Kan. 574, 38 Pac. 784 ; 6 C. J., 327, 335-337; 2 R. C. L. 868.)
The evidence adduced in support of the motion for a new trial did not require that such motion be sustained.
Another error is urged because the trial court refused to set aside the special findings of the jury. This contention is merely a jury argument that the evidence did not show facts upon which these findings depended. It is fairly clear, and not disputed, that the defendant company owned the circus for a number of years and that its prestige was built up during that time. It is far from clear that the subsequent transfers of title were regular and complete. It is far from clear that the lease to the so-called Champion Shows Company was bona fide. It had many earmarks of being spurious. It is far from clear that the Continental Amusement Company was a regularly organized and independent corporation capable of giving an outright lease of the circus property, and more than doubtful that the property was ever vested or operated in recent years by anybody except the Sells-Floto Shows Company and Messrs. Bonfils & Tammen who owned that concern. The findings, being pertinent, and supported by substantial though much disputed tes-timony and conflicting evidence, were not improperly permitted to stand, and the overruling of the motion to set aside was not error.
A final complaint relates to the trial court’s refusal to instruct the jury concerning the significance to be attached to the documentary evidence touching the corporate existence of the successive owners and lessors and lessees of the circus property. In view of the informal character of these concerns, and in view of the fact that some of the records of these alleged corporate transactions were not made at the time, and some of them “were only recorded shortly before the trial, the rule that written records are better evidence than oral testimony was inapplicable. A very fair and pertinent instruction which the court did give sufficiently covered the main question in this lawsuit. It reads:
“15. You are instructed that, even though you find from the evidence that plaintiff, at the time of his injury, if any, worked for what was known as ‘Sells Floto Circus,’ yet before you can find for the plaintiff in this case, you must find from the preponderance of the evidence that the defendant, SellsFloto Shows Company, was operating and in charge of the property that has been commonly referred to in this case as the Sells-Floto circus, and if you do not find from the preponderance of the evidence that the Sells-Floto Shows Company was in the actual operation of said property at the time plaintiff claims he was injured, then your verdict should be for the defendant.”
The foregoing disposes of the principal points urged upon our attention. Other matters discussed in the briefs have had our patient attention. We discern no prejudicial error in the record; and certainly in view of the negligence of the defendant and its foreman in requiring the plaintiff, a boy of fourteen years, to sleep on a circus flat car with practically no side boards to keep him from rolling off the circus train as it travelled about the country, and in view of his serious and lasting injuries, the defendant was guilty of actionable negligence and there is no injustice in the net result.
Affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
On October 15, 1919, plaintiff loaded a car of wheat at Wilsey, Kan., and shipped the same over defendant’s railway to Salina. It had sold the wheat to the Hutchins Grain Company of Salina at $2.22 per bushel, basis Kansas City, which would net $2.14 per bushel at Wilsey; inspection and weights at destination to govern. When the wheat was loaded plaintiff drew a draft for $3,000 on the Hutchins Grain Company, indorsed in blank and attached to the bill of lading, which it deposited in the bank, and received credit for the amount, which plaintiff retains, the draft having been paid by the Hutchins Grain Company. The wheat was shipped on what is known as “shipper’s order bill of lading,” consigned to plaintiff at Salina, “notify the Hutchins Grain Company.” When the wheat was weighed at Salina on the 20th of October by the state grain and weighing department, the car was found to con tain 27,570 pounds less than the amount loaded by plaintiff. This action was to recover for the loss of the wheat. The answer was a general denial. The co.urt sustained a demurrer to plaintiff’s evidence and the appeal is from this order and the overruling of a motion for a new trial.
The manager of plaintiff company testified:
“This draft was for 89,100 pounds of wheat. This car was shipped on what is known as shipper’s order bill of lading and consigned to us at Salina, notify the Hutchins Grain Company . . . When we drew this draft of $3,000 we attached a bill of lading to the draft and have not seen the bill of lading since. We deposited this draft in the bank the day following the loading of the wheat, got the money on it and still have the money.”
The plaintiff proved in addition to the facts already stated, that on the 16th of October, 1919, wheat was worth at Salina from $2.14 to $2.16 per bushel, and offered evidence to show that if the car had contained the full amount of the wheat weighed into it, it would have brought $3,000 at the point of destination. An objection to this testimony was sustained. The plaintiff’s manager was asked whether anyone had put in-a claim against plaintiff for the shortage on the wheat. An objection was sustained to this question, and also to the following:
“Q. Have you agreed to pay anyone?”
“Q. Are you now out of money on account of the alleged shortage of this wheat?”
The affidavit of plaintiff’s manager in support of the motion for a new trial showed that by reason of the shortage there was actually due plaintiff from the purchaser at the time the draft was paid only the sum of $2,257.01; that had defendant delivered all the wheat there would have been due plaintiff in addition to the $3,000 the sum of $176.55 from the proceeds of the sale of the wheat; and further, “that by reason of the failure of defendant to deliver all of said wheat plaintiff became indebted to said consignee by reason of its having paid said draft in the sum of $742.99; that the total loss to plaintiff by reason of defendant’s failure to deliver all of said wheat is $919.54.”
It has been held that under a shipment of a car of grain “consigned by the seller to himself, ‘notify the purchaser,’ the bill of lading having attached-thereto a customer’s draft drawn by the seller on the purchaser and sent to a bank for collection, the title does not pass to the purchaser until the draft is paid and the bill of lading surrendered, in the absence of evidence to overcome the presumption that this was the intention.” (Bennett v. Railway Co., 106 Kan. 95, syl. ¶ 1, 186 Pac. 1005; on rehearing affirmed, 107 Kan. 17, 190 Pac. 757.)
Under the decisions cited the title to the wheat passed to the purchaser upon the payment of the draft. The real party in interest, therefore, was the consignee who purchased and paid for more wheat than it received. The defendant, if compelled to pay a judgment in this case in favor of plaintiff, might still be sued by the consignee upon the same cause of action. That being true, the plaintiff was not the real party in interest and the demurrer was rightly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Jake M. Parrott against the Atchison, Topeka & Santa Fe Railway Company to recover damages for injuries alleged to have been sustained by him while he, a passenger, was alighting from a train of the defendant. A demurrer to his evidence was sustained, from which ruling he' appeals.
His testimony tended to show that he was a passenger on a train going from Cummings to Atchison, and that when the train stopped at Tenth street, Atchison, a regular stopping place, he proceeded to alight and before he had time to safely do so, the train was negligently started without notice or warning, throwing him to the ground, by reason of which his collar bone was broken and his arm injured so that he is permanently crippled.
The defense set up was that the injuries were riot the result of the negligence of the defendant but resulted from plaintiff’s own negligence, and further, that for a consideration the plaintiff had released the defendant from all liability for the damages sustained. There is no controversy here as to the .extent of the injuries suffered by the plaintiff nor as to the negligence by which they were occasioned.
The contention is that the evidence disclosed that plaintiff had executed a release to the plaintiff upon the payment of $20 and had discharged it from all liability; and further, that if the release lacked validity in any respect, it had been cured and ratified by a letter subsequently written by the plaintiff to the claim agent of the defendant. As to the release the plaintiff testified that within a few days after the accident he called on Doctor Dingess, who had previously acted as his physician and who was also the employed physician of the defendant. The doctor made a cursory examination, prescribed linament to be rubbed on the affected part, and procuring a paper, he began writing plaintiff’s answers to inquiries as to his name, age, etc., and in the next call the doctor asked him if a claim agent of the defendant had called on him, and when he replied in the negative, the doctor said-that one would call on him within a few days. Shortly afterward, the doctor asked him to go to the hospital for an X-ray examination of his shoulder, and after inspecting the pictures there taken he told the plaintiff that his injury was a small bruise, that some of the ligaments had been loosened, but that he would be well in a few‘days, and could not come in for a large claim of damages. The claim agent approached the plaintiff for' a settlement and asked him to go to Doctor Dingess’ office for that purpose. The agent offered him $5 on his claim, then $10, and then said that the best offer that he could make him for such an injury was $20, and the payment of the.hospital bill. Having in mind the doctor’s statement as to the nature of his injury he accepted the offer and signed the release. About a week afterwards he called on the doctor again and reported that his arm was no better, when the doctor told him that it would be sore for some time, and when plaintiff asked him why he had not told him so before the settlement, the doctor replied that he guessed he was in too big a hurry. Later when plaintiff asked the doctor for a statement of the facts he refused to give one, saying that it would look bad for him. Shortly afterward, an examination of the shoulder was made, and it disclosed that the injury had fractured the collar bone, that there was a marked deformity of the shoulder joint, that it caused a spine to extend forward and upward anteriorly and that it will never mend.
It is manifest that the release was executed by the plaintiff in the belief that the injury was slight and that its effect would pass within a few days. He was induced to think so by the statement of the doctor that the soreness would soon pass away. Plaintiff testified that he had “implicit faith in Doctor Dingess, and believed what he said, and believed he would be well in a few days.” If the statements of the doctor were honestly made he was likewise mistaken as to the nature of the injury and it may be inferred that the claim agent who cooperated with the doctor did not understand that it was as serious as it turned out to be. The nominal amounts proposed in settlement of the claim and the amount finally agreed upon tends to show that the claim agent and the doctor both regarded the injury as slight and temporary. The trifling consideration given in payment of a serious and permanent injury argues strongly that there was either a mistake of facts on their part or that the release was fraudulently procured. Assuming that all were acting in good faith, it is manifest from the evidence that they were mistaken as to the character of the injury and that under the circumstances the release was not binding.
There is some evidence tending to show a lack of good faith and that the claim agent and the doctor purposely kept from the plaintiff the serious nature of his injury until the settlement was effected, when some of the facts tending to establish that claim are that plaintiff called on the doctor, data as to his claim was taken by the doctor and he informed the plaintiff that a claim agent would visit him within a day or two. The claim agent took the plaintiff to the doctor's office to make the settlement. After the X-ray picture was made■ revealing the nature of the injury, the doctor still declared that it was only a small bruise with some ligaments torn loose and that he could not come in for a big claim. Before the settlement and when it was proposed to go to the hospital to inspect the X-ray picture, the claim agent told the plaintiff that the picture was not there, but had been sent to Topeka. After the release was signed and plaintiff was complaining about his suffering the doctor told him it would be sore for some time, and when asked why he did not tell him that before the release was given, the doctor said he was in too big a hurry and then refused to make a statement as to plaintiff’s condition, saying that it would look bad for him. We conclude that there was evidence to go to the jury not only as to a mutual mistake of*fact, but also as tending to show misrepresentations of the doctor as to the nature of the injury and of his cooperation with the claim agent in effecting a settlement.
There is a further contention that if the evidence should be regarded as sufficient to show that the release was procured through mistake or fraud, it had been ratified and cured by the following letter written to the claim agent by the plaintiff:
“Mr. h. C. pribble. Well i thought i would write to you and let you know how i am. My arm hant any better and i haid to other doctors to look at it and the plates at the hospital and they say that the bones is broke and it will leave me a cripple the rest of my life and i think i ought to be in the hospital now but i hant got the money so i thought i would see if you would take this up with the santa fe Company and see what they will do for Me for i wot bee able for work this way i know we settled up wonce and i acked the man and will do so again for things looks bad to me aith an arm like mine is cant work and no money neither and the santa fe train is the blame for it all and i think the santa fe furm ought to look after this at wonce for i have done all the suffering and hant done yet and not my fait nether, well i would like to hear from you at wonce for you know how things is now address all to
Mr. J. M. Parrett, 1011 George street,
atchison, Kansas.”
The contention is that in this letter plaintiff in effect has stated that he entered into a fair settlement and had no complaint to make about it, but that as he needed hospital treatment he desired the agent to take that matter up with the defendant. This inference of recognition and satisfaction with the settlement is derived from his statement: “i know we settled up wonce and I acked the man and will do so again for things looks bad to me,” etc. Instead of a ratification the letter carried an implication that plaintiff had acted the man in settling upon the understanding of the facts at the time the ’settlement was made, but that now it has developed that the parties were mistaken as to the nature and extent of the plaintiff’s injuries and that he is now willing to act the man and make a settlement on the basis of the actual injuries which had now become apparent. To show that a mistake had been made he, in effect, says that two doctors who had examined him and the X-ray plates that had been taken had advised him that the bones, of his shoulder were broken, that he would be a cripple for life, and that he should be in the hospital at this time, but was without money to pay for treatment. He therefore asked the claim agent to take the matter up again with the’defendant as it was to blame for his condition. Taking the letter in its entirety it is more of a repudiation of -the settlement than a ratification of it, and it is clear that the circumstances of the case do not bring it within the rule of the cited case of Frazier v. Railway Co., 97 Kan. 285, 154 Pac. 1022. The case is more nearly in line with Ladd v. Railway Co., 97 Kan. 543, 155 Pac. 943, and as the evidence is deemed sufficient to take the case to the • jury, the decision sustaining the demurrer to plaintiff’s evidence must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
The city of Winfield brings this appeal from a judgment of the district court of Shawnee county upholding an order of the court of industrial relations which increased the rates for natural gas which had been prescribed by ordinance in 1906, which rates were also prescribed by a contract of about the same date between the city and one Pattison, assignor of successive utility companies which have been supplying the city with that commodity pursuant to such ordinance and contract.
Another matter involved herein relates to the validity of an order issued by the public utilities commission after it was reestablished and reinvested with authority over public utilities by the act of 1921. This order directed that a certain device for regulating and limiting the gas pressure be supplied to the patrons of the gas company in Winfield. It also prescribed a certain gas pressure, substantially less,than that provided by the city ordinance of 1906. The district court declined to interfere with that order, and its propriety is also within the scope of this appeal.
The city’s main contention is that these official state boards, the court of industrial relations and the public utilities commission, had no power to make the orders appealed from because such orders impaired the contract of 1906 between the city and Pattison and his assignees. Pattison had agreed to supply the city with gas at a rate not exceeding thirty cents per thousand cubic feet. The details of the contract and ordinance need not be stated. The order of the state tribunal created certain distributing zones of the cities supplied by the Wichita Natural Gas Company, the trunk line company which transports, sells and distributes natural gas throughout that section of the state; Winfield, Arkansas City and neighboring towns were put in zone 1; Wellington, Wichita and others in zone 2; and Newton, Hutchinson and others in zone 3; and a charge of seventy-five cents per month per customer, plus a rate of fifty-six cents per thousand cubic feet, was prescribed for customers in zone 1, and higher graduated rates in zones 2 and 3, which were further away from the gas transportation company’s sources of supply.
Did the state tribunal have power to make these orders? There can be no doubt that the public utilities law conferred upon it that power, unless the city is correct in its contention that the order impaired the contract of 1906 within the inhibitions of the federal constitution. In our own cases concerning orders of the state commission over rates and service of public utilities, it has not hitherto been necessary to decide this precise point, although we barely avoided it in City of Cimarron v. Water, Light & Ice Co., 110 Kan. 812, 205 Pac. 603, because there the contract in question was made after the enactment of the public utilities act. Here the question must be squarely met and decided, because this contract was made in 1906, and the public utilities statute extending general state control over public utilities like gas companies and creating a state board to exercise that control was not enacted until 1911.
It goes without saying that under the inhibitions of the federal constitution the state may not enact a law which impairs the obligation of an ordinary contract between private individuals. Yet even this rule is not without its exceptions. (Union Dry Goods Co. v. Georgia P. S. Corp., 248 U. S. 372, 63 L. Ed. 309; 9 A. L. R. 1423, and note.) It has also been declared many times that when the state authorizes one of its municipal corporations to make a contract with private parties or public-service corporations for a reasonable term of years, the state cannot by subsequent legislation impair that contract to the prejudice of the party with whom the contract was made, nor without the assent of such party thereto. The many cases declaring this principle are the ones here pressed upon our attention by counsel for the city. But these cases do not reach the matter here concerned. Here the state authorized its own subordinate governmental agency, the city of Winfield, to make a contract with Pattison and his assignees. Now the state by further legisla tion says in effect, “I resume this power and confer it upon another governmental agent, a public utilities commission or an industrial court, and I authorize it to act for me instead of my municipal corporation at Winfield.” When the city of Winfield made that contract with Pattison it was acting as the agent of the state for the benefit of the people of that municipality. Until the public utilities law was enacted, the city and Pattison might have amicably changed that contract. In the act of 1911 the state put forward another agent clothed with power to deal with' Pattison; and that agent of the state with the express or implied consent of Pattison’s present assignee has abrogated and changed certain features of that contract; and neither the federal inhibition concerning the sanctity of contracts nor any other constitutional principle is violated thereby. This course of reasoning is pursued by most, if not all, of the courts which have had occasion to consider it. In the Cimarron case, supra, the leading cases with pertinent annotations which deal with this subject were cited. (See, also, Sandpoint W., etc., Co., Ltd. v. Sandpoint, 31 Idaho, 498, 173 Pac. 972, L. R. A. 1918F, 1106; Arlington Board of Survey v. Bay State St. Ry., 224 Mass. 463; North Wildwood v. Public Utility Comm’rs, 88 N. J. L. 81; Portland v. Public Service Commission, 89 Ore. 325; City of Salem v. Salem Water, Light & Power Co., 255 Fed. 295.)
Strictly speaking, these cases announce no new principle. The state creates governmental officers and agencies, clothes them with authority, alters that authority, resumes it and imposes it on other functionaries as experience may suggest. A good example of this is found in the creation of the board of railroad commissioners in 1883. That board was given regulatory authority over railroads, the only public utilities of importance in Kansas at that time. That board was abolished in 1898. It was recreated with the same or increased powers in 1901.. The board and its functions were merged in the public utilities commission created in 1911. This commission was abolished in 1920, and its duties and powers conferred on the court of industrial relations created at that time. In 1921 the public utilities commission was reestablished and reinvested with all its functions which included most of the duties and powers vested in the board of railroad commissioners by the act of 1901.
On an analogous subject, in LaHarpe v. Gas Co., 69 Kan. 97, 76 Pac. 448, it was said:
“The general statutes relating to the government of cities generally place the power to lay out and improve streets and public grounds, and to regulate their use, in municipal officers, but that is a power which the state may exercise either directly or through one of its agencies. In placing the control of streets and public grounds in cities, the legislature surrendered none of its own power, nor did it vest any rights to such cities as against the public. A city is a creation of the legislature — a subordinate agency of the state, which exercises only such power as the legislature confers, and for such period of time as the legislature in its discretion determines. The state gives, and the state can take away; and the legislature is at liberty to resume so much of the control of the streets and alleys and public grounds formerly exercised by the city as it deems best, and this without obtaining the consent of either the officers or the inhabitants of the city.” (p. 103.)
The supreme court of the United States in Pawhuska v. Pawhuska Oil Co., 250 U. S. 394, 63 L. Ed. 1054, a case substantially similar to the one we are here considering, held that no question under the contract clause of the federal constitution arises where the state first clothed one of its cities with power to grant a franchise to a gas company under terms prescribed by city ordinance, and afterwards transferred the city’s authority over such matters to a state corporation commission which abrogated the rates and rules prescribed in the franchise contract made by the city, and prescribed higher rates and other rules of its own making. The supreme court of Oklahoma sustained the orders of the state commission (166 Pac. 1058) and the city sued out a writ of error to the federal supreme court. Mr. Justice Van Devanter stated the contention of the city of Pawhuska, which was practically identical with the present contention of the city of Winfield:
“The city contended in that court — and it so contends here — that at the time the franchise was granted it alone was authorized to regulate such charges and service within its municipal limits; that the legislature could not transfer that authority to the Corporation Commission consistently with the Constitution of the state; and that, in consequence, the act under which the Commission proceeded and the order made by it effected an impairment of the franchise contract between the city and the gas company, in violation of the contract clause of the Constitution of the United States.” (Pawhuska v. Pawhuska Oil Co., 250 U. S. 394, 396, 63 L. Ed. 1054.)
. In the opinion showing that no federal question was involved and that the case would necessarily have to be dismissed, a pertinent excerpt from an earlier case, New Orleans v. N. O. Water Works Co., 142 U. S. 79, was quoted:
“But further citations of authorities upon this point are unnecessary; they are full and conclusive to the point that the municipality being a mere agent of the state, stands in its governmental or public character in no contract relation with its sovereign, at whose pleasure its charter may be amended, changed, or revoked, without the impairment of any constitutional obligation, while with respect to its private or proprietary rights and interests it may be entitled to the constitutional protection. In this case the city has no more right to claim an immunity for its contract with the waterworks company than it would have had if such contract had been made directly with the state. The state, having authorized such contract, might revoke or modify it at its pleasure.” (p. 91.)
Counsel for the city argue that the enactment of the public utilities law of 1911 did not repeal the statute of 1903 (Gen. Stat. 1915, § 862) which conferred upon cities like Winfield the power to contract for and fix rates for natural gas and similar utility services, under which the Winfield ordinance and contract with Pattison were adopted. This contention is only measurably correct. The powers conferred on cities by that statute have been superseded and withdrawn in so far as they are inconsistent with the powers later conferred on the public utilities commission. In Street Lighting Co. v. Utilities Commission, 101 Kan. 774, 778, 169 Pac. 205, it was said:
“The cities of this state have always had the power to regulate and control their local public service corporations — assuming that the furnishing of lamp posts, etc., is a public service. (Gen. Stat. 1868, chapters 18, 19; Gen. Stat. 1915, chapters 17-20.) Cities still have that power except where they have been stripped of it by the public utilities act. (Laws 1911, ch. 238, § 40, Gen. Stat. 1915, § 8368; Humphrey v. City of Pratt, 93 Kan. 413, 418, 144 Pac. 197.) And where the utility service is furnished wholly or principally within one city, the’ power of control is expressly reserved to the city. (§§ 3 and 33, public utilities .act.) If the local utility company and the city come to loggerheads, then the public utilities commission may take jurisdiction by a proceeding somewhat in the nature of an appeal or right of review. (Laws 1911, ch. 238, §33, Gen. Stat. 1915, §8361.)”
Counsel quote from a note to Saratoga Springs v. Saratoga Gas, etc., Co. (191 N. Y. 123) in 14 Ann. Cas. 614, which holds that rates fixed by statute can only be abrogated by the legislature, and cannot be altered by a subordinate body created by the legislature. This court has had to consider this point in The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, where a telegraph company closed its station in the county seat of Hamilton county without the consent of the public utilities commission and in disregard of a statute of 1893 requiring all telegraph companies operating their lines through county-seat towns to maintain telegraph stations therein. The effect of the public utilities act upon that earlier statute was discussed and reference was made to cer tain unreported federal cases which had dealt with the effect of the enactment of the public utilities law upon the statutory rates on oil shipments, and it was said:
“The telegraph company was required to maintain its station at Syracuse, not on account of any remaining potency in the act of 1893, but because the public utilities act of-1911 had entirely superseded it, and that act dealt with conditions as it found them at the time of its enactment, crystallizing those conditions, rates, service, regulations and 'the like as they then prevailed, and made them subject to change, alteration and amendment by order of the commission. The necessary inference is that important changes materially affecting or likely to affect the convenience of the public were not to be made without the approval of the public utilities commission, except as its orders might be corrected by the courts. We hold, therefore, that the act of 1893 will be no obstacle to the abandonment of the telegraph company’s office at Syracuse if the public utilities commission shall see fit, in the exer-, cise of its sound discretion and with due regard to the rights of the public and of the telegraph company, to sanction it. The powers of the commission are no less comprehensive in dealing with telegraph service at county seats than elsewhere.” (p. 308.)
Another contention of the city is that the utility which served it was one which was “operated wholly or principally” within the city of Winfield, which made it subject in the first instance to city control and not to the state commission except by appeal. (Gen. Stat. 1915, §§ 8329, 8361.) It is true that in Winfield the gas is distributed by a local corporation whose corporate activities are largely confined to that municipality; but it produces no gas nor has it any considerable source of supply except what it receives from the Wichita'Natural Gas Company, the trunk-line gas transportation, distribution and sales company, operating in Oklahoma and into and through a score or more of towns in zones 1, 2 and 3, in southern Kansas. The principal order complained of in this lawsuit is the one which prescribes and classifies the rates in cities (like Winfield) in zone 1, which receive their supply of gas from the Wichita Natural Gas Company. It is perfectly obvious that if there is to be any reasonable state control of gas rates and gas pressure, the state commission must exercise control in the situation here presented. The rates and pressure at Winfield have a direct influence on what rates must be exacted in the other cities served by the trunk-line company. If the rates and pressure prescribed at Winfield unduly deplete the revenues of the utility, the other towns supplied by the Wichita Natural Gas Company would have to pay more than they should, or the company would have to go out of business, and all the towns including Winfield would be deprived of this public-service commodity. In the case of the city of Scammon (Street Lighting Co. v. Utilities Commission, 101 Kan. 438, Id. 774, 166 Pac. 514, 169 Pac. 305) there was no relation between the public service being rendered by the Welsbach Company in Scammon. and any public service being rendered by that company elsewhere, and therefore the matter in controversy 'was vested within the governmental and corporate control of the city, except as it might come before the state commission by proceedings in the nature of appeal or review. But in this case the gas rates and gas pressure service in Winfield do have a very potent consequential effect on the rates and pressure which must prevail in other cities in zones 1, 2 and 3, and therefore these matters were properly subject to the original jurisdiction of the state commission. (The State, ex rel., v. Water Co., 92 Kan. 227, 140 Pac. 103.)
Another contention of the city is that the state commission did not have power to order the installation of the pressure regulation devices. In view of the broad general powers conferred on the commission over public utility services, as well as by the enactment of chapter 239, Laws of 1919, this contention must be disapproved. Another objection is that the order was one of limited duration— for six months. With the expansion of governmental control over public utilities this form of regulation has become common and is less objectionable than orders which, perhaps upon insufficient information, might be promulgated without such limitation. In the governmental control of public utilities it can seldom be predetermined with certainty that a rate, a regulation, a service, will be compensatory, practical, satisfactory; and so experimental orders are proper. If time vindicates their wisdom and justice, their duration may be permanently established; if not, they may terminate without further action and without provoking needless litigation. In Court of Industrial Relations v. Packing Co., ante, p. 501, it was said:
“Laws and orders fixing rates for a period of time for public utilities have been sustained to determine their effect upon the revenue of such utility. (Wilcox v. Consolidated Gas Co., 212 U. S. 19, 55; Northern Pacific Ry. v. North Dakota, 216 U. S. 579; Lincoln Gas Co. v. Lincoln, 250 U. S. 256, 269.)” (p. 507.)
The other details covered by briefs of counsel have not been over looked, but need no discussion. It is said that there was no evidence to support the court’s finding—
“13’. That the amount- of gas supplied each of the various towns by the Wichita Natural Gas Company affects the gas service of each of the other towns along said pipe line and drawing their gas from that common source of supply.”
Mayhap there was no item of direct evidence on that specific point, but the whole plan and system of collecting and distributing natural gas to the cities of zones 1, 2 and 8 was explained to the trial court, and has been explained to us in the abstract and briefs of the parties, so that by deduction it is seen that the finding is obviously true, and indeed it is not and cannot be denied that the finding of fact is itself correct.
The record contains no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a bond for the redelivery of an automobile.
The car had been stolen from its owner. The defendant, Fred R. Etchen, obtained it from a man who professed to be a deputy marshal in Oklahoma. Defendant repaired the car at considerable expense and traded it to Sam Weinberg. The plaintiff company had insured the original owner of the car against theft and had acquired .his interest and brought an action in replevin against Sam Weinberg to recover it. The defendant, who had traded the car to Weinberg, joined with him in executing a redelivery bond. Plaintiff prevailed in that action and then brought this action against Etchen to recover on the bond. It prevailed, and defendant appeals. He presents an assignment of errors, viz.:
“1. Error in overruling defendant’s motion to make additional party defendant.
“2. Error in sustaining plaintiff’s motion to require defendant to make his answer more specific, definite and certain and to strike certain parts thereof.
“3. Error in sustaining plaintiff’s motion to strike defendant’s amended answer from the files and for judgment.
“4. Error in rendering judgment for plaintiff.”
These errors are argued together by counsel for appellant, but it will make for simplicity and brevity to consider them separately.
1. Touching the first of these .errors, the plaintiff had the right to sue either or both of the obligors on the redelivery bond. (Civ. Code, § 38; 34 Cyc. 1598.) It is superficially true that Weinberg was the principal on the redelivery bond and Etchen the surety, but the trial court was doubtless aware that as between Weinberg and Etchen the liability was bound to fall ultimately on Etchen, since he had sold or traded the automobile to Weinberg and had expressly or impliedly warranted the title. So it would have served no material purpose to have brought in Weinberg, and the trial court did not abuse its discretion in refusing to grant defendant’s motion to that effect.
2. In defendant’s answer, he had alleged that he had purchased the car from one William Mayfield, who was then and there as defendant—
“Was informed and believes, a deputy U. S. Marshal for the Eastern District of Oklahoma, . . . That . . . said Mayfield informed this defendant that said automobile had been used in the unlawful and illegal transportation of intoxicating liquors into the State of Oklahoma and in the Indian Country, and that said automobile had been seized by the Federal Officials and had been sold to the said Mayfield pursuant to libel proceedings theretofore pending in the United States Court, and that he, the said May-field, because of said proceedings and sale, held good and sufficient merchantable title to said automobile, and could, by said sale, convey good title.”
Defendant also alleged that for the defense of the replevin suit he gave Weinberg and his attorney a statement of the facts concerning the purchase and sale and history of the automobile in controversy, and gave them the names of witnesses who were available and who would prove these facts, and requested Weinberg and his attorney to procure their attendance to take their depositions, but that Weinberg had neglected to use this information or to summon these witnesses and failed to make a proper defense in the replevin action. Defendant also loosely charged duplicity and collusion on the part of Weinberg and plaintiff’s counsel in the replevin case, and that Weinberg had taken the advice of plaintiff’s counsel, and that Weinberg had refused to make a verified application to have Etchen made a defendant in the replevin suit, and that by Wein berg’s failure to assert the proper defenses judgment was entered against him for a much greater sum than if the case had been properly defended. Defendant also alleged neglect on Weinberg’s part in failing to appeal.
On plaintiff’s motion the defendant was ordered to make his answer more definite, specific and certain in these particulars—
(а) To state whether the car was in fact seized, libelled and sold by federal officials, and to state whether Mayfield held a good title pursuant thereto.
(б) To state the name and location of the court and title of the cause under which the car was ordered sold, and to give the date of sale, and set out a copy of the order in the libel proceeding, or the book and page where it could be found.
(c) To state whether defendant had procured a bill of sale for the car from Mayfield, and if so to set out a copy of it.
(d) To state the names and addresses of the witnesses which defendant alleged that he had given Weinberg and his attorney for the proper defense of the replevin action.
Other matters which had also been loosely and uncertainly pleaded in defendant’s answer, too long for repetiton here, were also required by order of court to be more specifically and definitely pleaded. The order to that effect was entered on April 26, 1921, and defendant was given twenty days to conform thereto. ' On May 17, defendant filed an application for twenty days’ further time for the reason—
“That though he has been diligent to discover the facts required by this court to be included in the amended answer, he has been unable in the time allowed to assemble all of the necessary information and data on which to base allegations, but has been able only partially to complete necessary investigations and believes that with the additional time herein requested, he will be able to ascertain exact and sufficient facts on which to predicate the required allegations.”
It should be noted that this had reference to the facts which defendant alleged that he had supplied to Weinberg months before for the defense of the replevin suit; but nevertheless this request for further time was allowed. It should also be noted that this request for further time to comply was in effect an acquiescence in the court’s order requiring him to make his answer more specific, definite and certain; and the court’s order to that effect was neither erroneous nor prejudicial. (Civ. Code, § 122; L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kan. 169; Water Power Co. v. Mc Murray, 24 Kan. 62; St. L. & S. F. Rly. Co. v. French, 56 Kan. 584, 44 Pac. 12; Phillips on Code Pleading, §§ 283, 284.)
3. Touching the third error assigned, the defendant did not within the time allowed conform to the order of court, so on June 13 the plaintiff served notice that it would move for judgment by default. Thereupon the defendant filed a carbon copy of his original answer with two or three trivial interlineations and with certain matters originally pleaded stricken out, but which made no effort or pretense to conform to the court’s order of April 26. Whereupon plaintiff moved to strike this answer from the files and for judgment. This motion was sustained.
What was wrong about this? The order of the court had been disobeyed. Exceptional leniency had been extended to defendant. After alleging at length that he had supplied Weinberg in the replevin suit with the necessary facts to make a good defense and the names of witnesses to prove these facts, he could not set down definitely and certainly in an answer on his own behalf those facts which he says would have so effectually resisted the plaintiff’s replevin case against Weinberg. After making uncertain but insinuating charges of collusion between plaintiff’s attorney and Weinberg in the replevin suit he could not, or at least did not, set those matters down with definiteness and certainty so that the plaintiff could fairly meet them in this lawsuit. If defendant could not even plead with definiteness and certainty the matters he relied on to defeat the plaintiff, it was perfectly obvious that he could not prove them. Furthermore, this amended answer was filed out of time and could be regarded as a nullity. (Luke v. Johnnycake, 9 Kan. 511; Jeffs v. Flickenger, 14 Kan. 308.) The court committed no error in striking this amended answer from the files.
4. The defendant’s answer having been properly stricken from the files, he was in default, and plaintiff was entitled to judgment as entered in his behalf. (Race v. Maloney, 21 Kan. 31; Herman v. Gardener, 103 Kan. 659, 175 Pac. 971.)
The foregoing disposes of defendant’s assignment of error. We have not failed to note other matters discussed in his brief which do not follow the assignment, but they are not of sufficient relevancy to disturb the judgment. We note that a firm of lawyers interested in defendant’s possible liability if Weinberg were defeated in the replevin suit undertook Weinberg’s defense,' but it does not appear that Weinberg employed them. These lawyers prepared a motion and affidavit for Weinberg to sign to have Etchen substituted as defendant, but they retired from that case when Weinberg declined to verify the affidavit which recited that “Fred R. Etchen had good right to sell and deliver” the automobile to Weinberg. Weinberg could not with safety swear to anything of the sort, but he did invite defendant and his counsel to participate in the defense to the replevin suit. Furthermore, this defendant might have applied to the court in his own behalf for leave to be made a defendant in the replevin case, and he might have sworn to the alleged facts which Weinberg prudently declined to do. In Green, Adm’r, v. McMurtry, 20 Kan. 189, 193, it was said:
“Any person interested in a suit may make a motion with reference to his interest, whether he is legally and technically a party thereto or not. (Gen. Stat. 734, §32; White-Crow v. White-Wing, 3 Kas. 276, 280; Harrison v. Andrews, 18 Kas. 537; Branner v. Chapman, 11 Kas. 118; Foreman v. Carter, 9 Kas. 674.)” (See, also, Stevens v. Dimke, 110 Kan. 686, 205 Pac. 596.)
Nor have we failed to note the alleged collusion between Weinberg and plaintiff’s attorney. There was no more impropriety in Weinberg calling at the office of plaintiff’s attorney than there was for defendant's attorney to do so. They were well acquainted with each other, and Weinberg had not then employed counsel. We discern no breach of professional ethics in plaintiff’s counsel telling Weinberg that he was not in a position to advise him and that he should consult another lawyer, but warning him that if he should swear that Etchen had good title and had good right to sell and deliver the car he would have him subpoenaed as a witness to show the facts. Following this conversation with plaintiff’s counsel, Weinberg employed a lawyer and then wrote to the defendant:
“Your . . . [attorney] at no time represented me in this case. I only permitted my name to be used in this case for the benefit of yourself, who is the real party of interest.
“I refuse to sign this motion for the reason that if I had signed the same I would have been guilty of perjury for the reason that the motion as set out is not true. . . .
“Wish further to advise that I am perfectly willing to turn this case over to you or your company or your lawyer to be conducted as you see fit and I will sign any motion or pleading you desire so. long as the same is true.
“Wish further to advise- that I have retained Chas. D. Ise as my counsel in this matter and we are perfectly willing to cooperate with you in any legitimate defense you have in this case.”
There is no error in this record. The judgment in the replevin case may have been for a larger sum than it would have been if de fendant had gotten into that case and made a straightforward defense thereto; but the size of that judgment was no fault of Weinberg; and since defendant was bound to protect Weinberg, and was likewise bound on the redelivery bond, we discern no ground upon which this judgment can now be disturbed.
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The opinion of the court was delivered by
West, J.:
The plaintiff while working at a rock crusher lost the sight of his right eye and sued to recover compensation, alleging that the injury occurred while he was in the employ of the-defendant. He recovered judgment for $1,320, and the defendant appeals. The errors assigned relate to the reception and rejection of evidence, the instructions and denial of a new trial.
The plaintiff’s claim is that he was employed by the construction company in building a cantonment at Camp Funston, and put to work at a stone crusher some miles away.
The defendant denies that the rock quarry and-crusher were operated by it, and that the plaintiff was in its employ. Counsel says:
“There is a total absence of proof on the part of the plaintiff showing that plaintiff was in the employ of or w.as paid by or that plaintiff’s injuries arose' out of or in the course of his employment with the defendant.”
Aside from these contentions it is alleged that the testimony touching the plaintiff’s average earnings was insufficient; also, that no demand was proven, and that, in any event, if the plaintiff should be held entitled to recover, the amount should be $660 instead of $1,320.
It seems that the construction company built the cantonment for the government and'was to be paid ten per cent above its cost. The records were not in possession of the defendant, but at Washington. The plaintiff testified that he was sent up to Funston by a “man-catcher,” and when he reached there he went to doing the work he was detailed to do and was furnished a place to sleep and his meals, and was paid in money in envelopes on Saturday, at the construction company’s pay office.
“This office was about two miles from where I was working. I went down to this office each Saturday for my pay. There were about a thousand or more men getting their pay there when I went down there on Saturdays.”
Certain pay envelopes were introduced in evidence. One of these read: “Name I. Cooper. National Army Cantonment, Fort Riley, Kansas, George A. Fuller Construction Company.” The plaintiff testified that after his injury he was taken to the hospital and stayed there seven days, came back to the camp and stayed one night, and then went down to the office where he had always received his money, and talked with somebody. He got a paper and presented it to the cashier and got his pay envelope. The pay amounted to $47.40, after taking out $7 for board. It appears that the plaintiff received some sort of notification to call at some office for the purpose of discussing his claim against the company, and went to the Reserve Bank building.
“I talked with some person relative to my claim. I was up there half an hour. They didn’t pay me anything for the injury which I had received. I never received any pay or compensation from anybody for the injuries I received. ... I made demand for compensation at Camp Funston right after I got hurt. Right away after I came home, the next day. That is, I mean when I got back to camp. It was made just before I came home; the next day. I made the demand the same day I got this pay envelope. . . . That was the same building I was in the habit of going to for my pay checks. . . . When this man gave me my pay check and I asked him for compensation, and he didn’t give me any answer at all. I told him I had lost my eye, working, and it was right they'should give me something for it; and he never gave me any kind of a settlement or said about whether they was going to settle it or not. Didn’t give me any kind of an answer at all.”
While this evidence is not as clear and, definite as it might be, we think it sufficient on which to base the conclusion that he was working for the defendant and was injured while so doing and demanded of the paymaster a settlement for his injury.
The plaintiff testified that he was classified as a laborer; that he was in Camp Funston from September until November; that he lost his eye in October; that he saw the pay envelopes of other men who worked out there and one man got $75 for one week’s work and another $50, and that he himself received sixty cents an hour, working ten hours a day and getting paid for eleven, or $6.60 a day; that before going to work there he had worked at Kansas City, and that prior to the 17th of October, 1917, when he was injured, for more than a year workmen like himself -were getting fifty cents an hour. He also stated that during the month of October, 1917, and for a year before that time the prevailing union rate paid to workmen in Kansas City was fifty-seven and a half cents an hour.
The vice president of the defendant company testified, among other things, that a common laborer was on a flat rate of pay and the prevailing'union rate paid in Kansas City applied not only as to the rate of pay but to overtime.
The envelopes received in evidence were, under the circumstances, competent for what they were worth, and we find no material error in the record touching the reception or rejection of evidence.
The defendant sought by requested instructions to have the compensation, if any, limited to $6 a week for 110 weeks and still com tends that this is all the plaintiff is entitled to, if anything.
The jury found in answer to special questions that the plaintiff was working on the rock crusher operated by and under the direction of the defendant; that the average weekly earning was $30; and that he was employed by the defendant at the time of the accident.
Section 4, chapter 226 of the Laws of 1917 provides that when a workman has been employed less than a year, the average annual earnings shall be fifty-two times the average weekly amount which during the twelve months immediately preceding the accident was received by a person in the same grade of employment at the same work by the same employer, or if there is no person in the same grade so employed, then fifty-two times the average weekly earnings of a person in the same grade employed by the same or other employer in the same district at the same or similar work or employment, and that the average weekly wages of a workman shall be one-fifty-second part of his average annual earnings. ,
While the plaintiff’s testimony indicated that he received more than $30 a week average, the jury found the amount to be $30. By paragraph 15 of section 3 of the act referred to, for the loss of an eye, or the sight thereof, fifty per cent of the average weekly wages during 110 weeks is the limit of recovery, which is again limited by the same section to $12 a week. The amount returned by the jury was for 110 weeks at $12, and this is within the provisions of the statute.
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The opinion of the court was delivered by
Porter, J.:
James A. Tobin was the owner of two oil rigs or derricks located on leases near Towanda. He desired to have them erected on another location thirty miles distant. He and the plaintiff entered into a parol contract; the plaintiff agreed to rebuild the rigs for $400 each, and Tobin agreed to remove the material to the new location and also to pay for any new material necessarily furnished by the plaintiff. After the rigs had been rebuilt, Tobin refused payment and the plaintiff brought this action to foreclose mechanic’s liens which he had filed upon the property. The jury returned a verdict in favor of the plaintiff on which judgment was rendered, and Tobin appeals.
The answer alleged that plaintiff agreed to build the derricks eighty-four feet high, but built them only seventy-two feet high, ■and that for this reason they were worth $140 less than the price agreed upon; that they were to be erected before the first of July, when defendant was to have prospective purchasers for interests in his leases, and for the purpose of making sales to purchasers. In a cross-petition, Tobin alleged that by reason of failure to build the rigs in the time agreed he sustained a loss in his business of $1,500. In the answer itself something like a dozen items of counterclaims were made on account of materials which defendant claims the plaintiff charged in his account which had not been furnished.
The plaintiff’s evidence was to the effect that the first rig was erected about the 8th of July and as soon as possible after Tobin got the material to the new location; that the second was completed about the first of August; that the delay in the first was caused by the failure of Tobin to have the material on the ground earlier; when the first rig was completed the material for the second was not on hand. He denied that it was agreed that the rigs were to be built at any specified time, and testified that the ends of some of the lumber had been broken off in dismantling; for that reason one of ■the rigs was made seventy-four feet while the other was- eighty feet high; that ninety per cent of the rigs- in that field are seventy-four feet in height; that he never had built one eighty-four feet high, and did not agree to build these to that height.
The principal contention is that the -court excluded competent evidence to the effect that the defendant had not been able to sell oil and gas leases because the rigs were not constructed within a specified time. Aside from the fact that plaintiff’s evidence would sustain a finding agáinst the contention that there was an agreement to have the rigs completed by July 1, or that there was any unnecessary delay on plaintiff’s part, there was no claim that drilling operations were delayed. The sole contention is that if the derricks had been erected earlier the defendant would have succeeded in selling oil and gas leases for $1,500. The objection was sustained on the ground that the damages sought to be established were remote, speculative, and uncertain. The ruling was correct. Nothing in the testimony tends to show that the parties contemplated that a loss of profits of this character might be recovered for a breach of the contract. As said in Artwein v. Link, 108 Kan. 393, 195 Pac. 877:
“Any increase in the value of the leases on account of.a well being drilled oh or near them was wholly a matter of conjecture and speculation. Purchasers for the leases might or might not have been found; but even if found, there is no way of showing what they would have been willing to pay.” (p. 396. And see authorities cited in the opinion.)
There was no evidence to show that a loss of such profits was the natural and probable consequence of a failure, to have the derricks completed by a specific date.
In outlining the issues the court, in the instructions, mentioned the fact that defendant claimed damages in his cross-petition to the amount of $1,500 for failure to have the derricks completed within a specified time. It is claimed that by this instruction and another general instruction permitting the jury to allow the defendant credit for any items claimed in his cross-petition, the court authorized a recovery upon this claim, and whether right or wrong, made it the law of the case. The rule is that the instructions should be considered as a whole; and while it may be said that in view of the court’s ruling rejecting evidence as to the $1,500 loss, it would have been better not to have mentioned that claim in the instructions, yet, having sustained the objection to such evidence, the instructions to allow the defendant credit for any of the items in the cross-petition must be understood to refer to those items only upon which evidence had been admitted. We do not believe the jury were misled by the instructions. The defendant requested no instructions, and made no objections to the ones given.
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The opinion of the court was delivered by
Mason, J.:
Ewart S. Hughes was driving an automobile west on Washington avenue in Kansas City, Kan., while L. \E. Tanner, who was in the employ of the Hudson-Brace Motor Company, was driving one belonging to that company north on Sixth street. The cars came together near the northwest corner of the intersection of these streets, the evidence being in conflict as to which struck the other. Hughes sued Tanner and the Motor Company for injuries received by him, the company asserting a counterclaim because of injury to its car. The plaintiff recovered a judgment and the defendants appeal.
1. Complaint is made of the overruling of a demurrer to the plaintiff’s evidence and of a motion for a peremptory instruction in favor of' the defendants on the ground that the petition failed to state a cause of action, inasmuch as it did not allege that Tanner’s handling of the car he was driving was negligent. The pleading did not in so many words characterize his conduct as negligence, but it alleged that he drove at a high, dangerous and excessive rate of speed, to wit: forty-five or fifty miles an-hour, disregarding his legal obligations and violating a city, ordinance. The speed alleged would be unlawful because of the statute, which did not require to be pleaded. The omission of the term negligence or a derivative was immaterial. An allegation that a train was run at sixty miles an hour has been held not to charge negligence (Railway Co. v. Wheeler, 70 Kan. 755, 79 Pac. 673), but this is not true of a statement that an automobile was driven at a high, dangerous and excessive rate of speed in violation of the statute and an ordinance.
2. The same rulings are attacked by the defendant company on the ground that there was no evidence that Tanner at the time of the collision was engaged in its business. The petition alleged that at all times therein referred to he was employed by the company and engaged in demonstrating its cars and was so working and employed at the time the accident occurred. The company’s answer contained an admission that he was “at the times mentioned in plaintiff’s petition engaged in the sale and disposition of” its cars “and was at said times . . . employed by it and engaged in demonstrating and selling” its cars. We consider this admission as having eliminated the issue referred to and rendered the introduction of evidence thereon unnecessary.
3. The same rulings are also challenged on the ground that the undisputed evidence showed that the plaintiff was guilty of contributory negligence. The jury found that the plaintiff’s car was .going fifteen miles an hour. This was a violation of the statute restricting the speed of automobiles in city streets to twelve miles an hour and to six miles at intersections. (Laws 1917, ch. 74, § 5.) Whether this conduct contributed to the accident, however, was a question for the triers of the facts. The plaintiff testified that he saw the defendants’ car while it was still a block away, but did not look for it again until he was half way across Sixth street, when it was too late for him to prevent a collision.. Whether this course amounted to contributory negligence was likewise a matter to be determined in the light of all the circumstances, including the speed of the defendants’ car, which one witness estimated at sixty-five miles an hour.
4. The question as to which driver had the right of way is one to be considered in determining the matter of contributory negligence, whether or not it would-be controlling. Tanner testified: “I certainly thought I had time to cross the boulevard ahead of that car because I knew I was entitled to the right of way. I knew that Sixth street was a boulevard and knew the traffic ordinances of this town, and that the north and south traffic has the right of way.” The provision of the ordinance to which he obviously referred reads:
“Whenever vehicles approaching each other on different streets shall reach the intersection of such streets at the same time, the vehicles proceeding on the street running north and south shall have the right of way unless such east and west street is a boulevard, or a street on which street car tracks are located, in which event the vehicle proceeding on the boulevard or street on which said street car tracks are located shall have the right of way, but every such vehicle shall be kept under control so as to prevent danger of collision.”
The meaning of the ordinance appears to be that the north and south travel shall have the preference at an intersection except where the east and west street is a boulevard (or a car-line street) and the north and south street is not. Here the east and west street, as its name shows, was a boulevard. The defendants introduced an ordinance which they interpret as declaring the other street— Sixth — also to be a boulevard at this point. The plaintiff objected to the introduction of the ordinance on the ground that it had not been pleaded. The answer, however, alleged that Tanner had the right of way and this allegation we consider sufficient to support the evidence. The ordinance making a part of Sixth street a boulevard contains a provision excepting that portion between the alley north of Washington street and the street two blocks south of it, which is declared to be “a traffic way for 20 feet in the center thereof.” This exception leaves in some doubt the character of Sixth street at the place where the collision occurred. The ordinance regulating traffic contained this provision: “Everything else being' equal, the vehicle which has another vehicle on the right hand side shall have the right of way.” Although contrary to the general practice and to ordinances of other cities and in some states to the statutes (Huddy on Automobiles, 6th ed., §262; Fox v. McCormick, 110 Kan. 91, 93, 202 Pac. 614), this would control if no other test is applicable. The defendants asked an instruction that if Tanner reached the intersection first he had the right of way. The need of a rule determining which of two vehicles has the right-of way arises when they approach an intersection from different directions at such time with reference to each other that unless one-yields precedence and slackens speed a collision will be likely to occur. The driver on the right enters into the actual area of the intersection at the very point of collision if one is to take place,while the one on the left enters it while still the width of the street away from that point. It is necessary that the question of precedence shall be determinable while the vehicles are approximately at equal distance from the point of possible collision. A rule giving priority to whichever vehicle first reaches the intersection is obviously not well adapted to automobile traffic. (Fox v. McCormick, supra.)
There appears to be some difference of opinion as'to the circumstances under which one who sues for injuries sustained in a collision of automobiles at a street intersection may be precluded from recovery as a matter of law because he attempted to cross it in front of a driver from the direction having the preference. (See Anderson v. A. E. Jenney Motor Co. [Minn.], 185 N. W. 378, and cases cited in connection therewith in a note in 20 Mich. Law Rev. 801.) Assuming the correctness of the majority decision in the Minnesota case we do not think it would follow that a driver who approached the crossing from -the disfavored direction can never maintain an action against the other for running into his car. The occasion for applying the rule of the statute or ordinance or pracr tice concerning the right of way arises only where the two vehicles approach the intersection at such distances and speed that a collision is probable unless one of them slows up. The giving of a preference to the driver on the right does not imply that the driver on the left is never justified in attempting to cross the intersection so long as there is in sight a car on his right which might by some unexpected burst of speed beat him to the point where their paths cross. The rule assumes the normal and reasonable operation of both cars. The fact of the legal speed limit being exceeded or that one car was going faster than the other would not necessarily control; but it is not negligence as a matter of law for a driver from either direction to undertake to cross the intersection ahead of a car which is at such a distance that he has ample time to get across, provided the other car does not exceed the highest speed he has reason to anticipate. Assuming that in the present case the ordinance gave preference to the vehicle from the south over that from the east, we think a verdict for the plaintiff is sustainable upon the ground that the evidence justified a finding that the defendants’ car was coming so rapidly that the plaintiff in the exercise of due .diligence in that regard underestimated its speed and reasonably believed that he had abundant time to cross ahead of it until it was too late for him to do anything to avoid the collision. (Schultz v. Nicholson, 189 N. Y. Supp. 722; Weber v. Beeson, 197 Mich. 607; Barnes v. Barnett, 184 Iowa, 936.)
5. In answer to a special question asking them to state fully of, what the defendants’ negligence consisted the jury answered: “Defendant entering intersection oh wrong side of street at excessive rate of speed.” It is urged that the finding requires the verdict to be set aside because it shows reliance on a ground of negligence not set out in the petition or submitted in the instructions. There was evidence that Tanner entered the intersection on the left side of Sixth street just after passing a Ford car for which he turned out. This was not pleaded nor was any reference made to it in the charge to the jury. It does not affirmatively appear, however, that the jury regarded the fact that Tanner was on the wrong side of the street as an independent ground of negligence rather than one of the conditions that accompanied the negligent act of driving at excessive speed, which under the circumstances they regarded as negligence and as the proximate cause of the accident. At all events, inasmuch as a sufficient ground of negligence was specifically found, we do not think it necessary to order a reversal because of the inclusion of another ground which was unavailable because not pleaded. The defect in this regard is less serious than where an additional ground of negligence is included in the special findings without evidence to support it, and that has been held not to require a new trial. (M. K. & T. Rld. Co. v. Weaver, 16 Kan. 456.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The widow of Patrick J. Flynn, who was a yardman in the employ of the Missouri Pacific Railroad Company, brought this action against the Brotherhood of Railroad Trainmen upon a beneficiary certificate issued by it to her husband. Payment was resisted, the defense being that he had been expelled from that organization several years before his death. Judgment was rendered in favor of the plaintiff on the ground that the expulsion proceedings were invalid. The defendant appeals.
1. An order was made by the lodge of which the plaintiff’s husband was a member (No. 281) expelling him from the brotherhood upon written charges and after a hearing, of the regularity of which no complaint is made except as hereinafter indicated. Under the laws of the order he might have appealed from the decision against him, first to the president and later if he desired to the grand lodge, but he took no appeal. The defendant urges that he was bound to exhaust his remedies within the organization before invoking the aid of the courts. This is the accepted rule with respect even to associations, membership in which carries property rights (Modern Woodmen v. Taylor, 67 Kan. 368, 71 Pac. 807) subject to this exception— if an order of expulsion is made by a tribunal of the society acting without jurisdiction, or in disregard of the accused member’s fundamental rights, as for instance where no opportunity for a hearing has been given him, relief at the hands of a court may be sought in the first instance. (Rueb v. Rehder, 24 N. M. 534, and cases there cited. See, also, 19 R. C. L. 1226, 1230, 1253, 1256; 5 C. J. 1359; 7 C. J. 1123; Supreme Lodge K. P. W. v. Wilson, 66 Fed. 785; Tucker v. Kirkpatrick, 106 Kan. 881, 189 Pac. 946; Id., 107 Kan. 541, 192 Pac. 834.)
The charge made against the plaintiff’s husband was that he cooperated with others “in interfering with the working of the local grievance committee” of his lodge; that he affixed his signature with others (including members of other organizations) to a petition em bodying a request “that the seniority rights of foreman as established by local grievance committee of B. of R. T. of Missing Link Lodge No. 281, be changed to suit the demands of following committee” — a committee being named composed of three members of the defendant association and three of the Switchmen’s Union of North America.' The charge included a- recital that the petition had been presented to the superintendent about July 5, 1913.
The petition referred to in the charge, which was signed by the plaintiff’s husband, and was addressed to the Missouri Pacific superintendent, read as follows: “We, the undersigned, employees of the Kansas Terminal [a phrase which was explained as referring to the Kansas City terminals of the Missouri Pacific] hereby petition you to restore to us our seniority, or grant us a hearing at which time we can present our side of the question to you, inasmuch' as we do not think the prevailing seniority list is just and fair.” The petition had reference to a rule of the company which had been- put in force by an agreement between the brotherhood and the executive officers of the railroad, having been formulated by the general grievance committee of the former. It read: “Any yardman refusing to accept, promotion when tendered will relinquish his rights in favor of the next senior man and shall not be eligible to subsequent promotion until another vacancy occurs.” There was evidence that of some 7,000 employees who were affected by the rule only the signers of the petition, some seventy-five in number, were dissatisfied with it.
The laws of the order contained the following provisions:
.“Whatever action may be taken by the General Grievance Committee or Board of Adjustment of any system within the meaning of the above general rules, shall be law to the lodges on that road until the next meeting of the Grand Lodge, and if any member refuses to abide by the action of said General Grievance Committee, or Board of Adjustment, he shall be expelled from the Brotherhood for violation of obligation.”
“Any member considering that he has been unjustly dealt .with by his employer, or that he is otherwise aggrieved, shall make a statement of the grievance in writing and present the same at a meeting of the lodge. The lodge shall then determine by a majority vote of the members present, employees of the division, whether to sustain or reject the grievance. Should the grievance be sustained the local grievance committee shall lay the matter before the trainmaster, superintendent or other proper officer and use every means to effect a satisfactory settlement and report their action and all things pertaining to the case to the lodge. If the result is not satisfactoi-y, it may be referred to the General Grievance Committee for further action. A member or a lodge'may withdraw a grievance placed in the hands of a General Grievance Committee, provided such action is taken before said grievance has been presented by the General Grievance Committee to the officers of the company, but not thereafter.”
The district court made this finding: “That the expulsion proceedings against Patrick J. Flynn in August, 1913, were invalid, being based on alleged acts of Patrick J. Flynn, against the doing of which the constitution and by-laws of the defendant provided no penalty of expulsion.”
In the course of a discussion concerning the issues, preliminary to the introduction of evidence, the attorney for the plaintiff made this statement: “This thing simmers right down, I am frank to say, from my standpoint it is wholly a question of law. If those charges are covered by the constitution, I think the suit was defeated. I do not think the charges were provided by the constitution. I think the whole act was void; that is my contention.”
We think it was competent for the lodge of which the plaintiff’s husband was a member to decide that 'in petitioning an official of the railroad company for a change in the practice in regard to seniority rights of employees he was guilty of refusing to abide by the action of the general grievance committee — conduct which made him subject to expulsion. The written rule on the subject, a modification of which was sought, was shown to have been the result of the action of the general grievance committee in consultation with representatives of the railroad company. It has been argued that he had not refused to abide by the order of the grievance committee —that one “may wish to have a law changed and yet he may not be in open rebellion against the law.” The signers of the petition did not indeed by that act declare that they would not be bound by the rule as it existed, but there was no way in which they could resist its enforcement, which did not rest with them. Those of them, however, who were members of the brotherhood had a means provided within their organization for endeavoring to obtain such a change in the rule as might be desired. And when they declined to avail themselves of this method and undertook to go over the heads of their associates, it required no forced or unnatural construction of language to say that they refused to abide by the action of the general' grievance committee of the order, which had decided that the existing rule was the one for which the organization should stand. A member of the brotherhood can hardly be regarded as abiding by the action of the grievance committee while he was endeavoring through outside channels to procure the undoing of the results it had accomplished in obtaining the acceptance by the railroad company of the priority rule it had formulated.
2. In behalf of the plaintiff it is argued that if the provision quoted is interpreted as justifying the expulsion of a member of the order for attempting by outside means to bring about a change on the part of the railroad company in a method of treating its employees which had been adopted at the instance of the order, such interpretation renders it void and unenforceable because in conflict with the constitutional guaranty of the right of petition. Spayd v. Ringing Rock Lodge, 270 Pa. St. 67, with the note thereto in 14 A. L. R. 1446, is cited in support of the argument. In that case a by-law of a mutual benefit society authorizing the expulsion of a member for petitioning the legislature to repeal a statute was held to be void. Our state constitution provides that “The people have the right . . . to petition the government, or any department thereof, for the redress of grievances.” (Bill of Rights, § 3.) The petition here involved was dated June 10, 1913. At that time the railroads were not in the hands of the government, and a railroad superintendent was not a public official. We see no sufficient reason for considering it against public policy for a group of employees to agree with one another that whatever negotiations they have with their employer with reference to privileges to be accorded them shall be conducted through their organization — collectively and not individually.
3. The plaintiff contends that it was neither charged nor proved that the petition in question was ever presented to the official addressed. As already stated the charge recited such presentation to have been made, and there was sufficient evidence that it reached the superintendent’s hands. The question of fact, moreover, was one for the determination of the tribunal provided by the order. (Burton v. Dickson, 104 Kan. 594, 600, 180 Pac. 216, 775.) The suggestion is made that the by-laws give no authority for a committee to prefer charges or act upon them. The right to expel members is clearly granted, and in the absence of express provisions any procedure resulting in a fair trial is unobjectionable. It was admitted that “charges were preferred and a trial was had before a committee provided by the by-laWs and that they pronounced judgment against Mr. Flynn.” In the plaintiff’s brief it is said: “It is unnecessary herein to complain against the good faith of the Flynn expulsion episode, although there was a wholesale slaughter of about eighty benefit certificates in a moment of passion all to be restored except Flynn’s.” The reference doubtless is to other members of the brotherhood who signed the petition to the-superintendent. The fact, if it be a fact, that all excepting the plaintiff’s husband were restored does not suggest bad faith, for there is no showing that he applied for restoration.
4. .After the expulsion of Flynn, the plaintiff made a payment to the secretary of the lodge of $3.75, $2.75 being for the assessment or dues, and $1 (as she testified) for the grievance committee. The $2.75 was returned to her. It is contended that the retention of the $1 amounted to a waiver of the defense made. The amount paid on the certificate was returned with the express statement that it could not be received because of Flynn’s having been expelled during the month. This negatives any. inference of an intention to treat him as still a member of the order. There is nothing to indicate that the '$l that was withheld was not for a charge that 'had already accrued,. and it obviously was retained upon that theory.
The judgment is reversed, and the cause is remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Mason, J.:
Francis L. McAdam sued Viola Leak for the specific performance of a contract for the sale to him of a tract of land in Hamilton county. A demurrer to the petition was overruled and the defendant elected to plead no further. Performance of the contract having become impossible judgment was rendered in favor of the plaintiff for $600 as damages. The defendant appeals.
The objection made to the petition is that the negotiations between the parties, which were wholly in writing, the plaintiff being in Dodge City and the defendant in Crowder, Olda., did not result in a completed contract. The validity of the objection may be determined from a consideration of portions of the last four letters passing between them. On October 22, 1919, the plaintiff wrote to the defendant;
“My offer was for $1,400.00 with a $700.00 cash payment and $700.00 in two years at six per cent, or $1,200.00 cash and you reserve the oil and gas rights. If you decide to accept either of these propositions you may do so.”
On October 30, 1919, the defendant answered:
“Your letter of the 22d at hand and will take your offer, the $1,200.00 cash proposition and reserve the oil and gas rights. Will send you the abstract for inspection, if you are still ready for the cash deal.”
The next day the plaintiff replied:
“Your letter of the 30th inst. at hand and contents noted, and will say that I will take your land at $1,200.00 cash and you may reserve the oil and gas rights. You may send your abstract out to Syracuse and have it brought down to date and forward it to me and I will examine it and if it is satisfactory will draw a deed and send to you for your signature.”
On November 25, 1919, the defendant wrote:
“Your letter of the 21st at hand and will say the reason I did not answer I did not consider that 81,200.00 was enough. You sure have went to a lot of trouble to send me a deed to sign. I am no widow. My husband is living, but he is stricken with paralysis and not able to write.
“I have been offered 1700 and 75 dollars since you made your offer and I can reserve the oil and gas rights. So you will have to do better if you get it.”
1. The defendant urges that the plaintiff’s letter of October 31 imposed two new conditions — that the abstract should be sent to Syracuse and brought down to date, and that the deed should be upon a form to be furnished by him.
The defendant in her letter of October 30 offered to send the abstract. In the absence of anything to indicate the contrary “the abstract” must be regarded as referring to an abstract of title brought down to date. The statement that it would be sent “for inspection” did not imply that it would be incomplete. The purpose of inspection was to determine the title at that time. As the land was in Hamilton county it was obviously necessary that the abstract should be sent to Syracuse to be brought down to date unless that had been already done. No new condition was imposed by what was said concerning it.
The statement in the plaintiff’s letter that he would draw a deed and send it to the defendant for her signature was a mere offer to perform the clerical work of preparing a deed for execution. It did not amount to a reservation of a right to require a particular form of conveyance. Nothing having been said to the contrary the parties are deemed to have contemplated the execution of a deed in the usual form.
It is contended that the minds of the parties did not meet upon all the essential matters of the contract because nothing had been said as to when and where the purchase price was to be paid. In that situation the defendant could have insisted upon receiving it at her residence in exchange for the deed as soon as a reasonable time had elapsed for an examination of the abstract. She did not break off the deal, however, because of any question of time or place of payment or of the abstract or deed, but upon the ground that the price was too low.
2. The defendant also urges that under the allegations of the petition she had no authority to bind her husband, who owned a half interest in the land and was not a party to the action. This would prevent a decree for specific performance unless the plaintiff were willing to accept a deed conveying the defendant’s interest alone, with an abatement in the price. (Williams v. Wessels, 94 Kan. 71, 145 Pac. 856.) But even if the defendant had had no interest in the land at all she could so far bind herself personally by an agreement to convey it (not objectionable as relating to a homestead or otherwise illegal) as to render herself liable in damages for breach of the contract. (Hampe v. Sage, 87 Kan. 536, 541, 543, 125 Pac. 53.)
3. It is contended that under the authority of Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202, enforcement of the contract should be refused on account of the manner in which the defendant was induced to enter into it. There the prospective buyer procured a relative of the owner of the land, who was to receive a commission if a sale were made, to write misleading letters recommending it in the character of one having no interest except good will. Here the negotiations -were conducted directly between the parties, who dealt at arm’s length, and the only grounds of unfairness suggested are that the price was inadequate; the defendant lived out of the state; her husband was infirm; and she had not seen the tract and did not know what it was worth, while the plaintiff owned adjacent land, was a real-estate dealer, and familiar with values. These do not form a sufficient basis for holding the deal to have been unconscionable.
4. Another contention is that notwithstanding no denial of the allegations of the petition had been made it was incumbent on the plaintiff to prove the amount of damages (Civ. Code, § 129) and that no evidence was introduced. The journal entry as set out in the abstract contains a recital that the judgment was rendered “after hearing the evidence.” Whatever the actual fact may be this court must act upon the theory that evidence was introduced unless the record in the district court is changed so as to show the contrary. Moreover, it is obvious that the amount of damages allowed — $600—was not excessive, for in her letter refusing to carry out the contract she said she had a later offer of $1,775, and it does not appear to be seriously contended that the market value of the property at the time of such refusal was not as much as $1,800.
5. The court applied the proper measure of damages — the difference between the agreed price and the market value of the land at the time of the breach of the contract. In some of the states the courts follow, while in others they reject, the English rule that where the vendor has acted in good faith and a conveyance has been prevented by & defect in title unknown to him at the time the contract was made he is not required to compensate the purchaser for the loss of his bargain. (39 Cyc. 2106, 2110; 27 R. C. L. 633-635.) That rule would not in any event apply in th'e present case, for while the defendant did not have a full'title to'" the' land, there is nothing to indicate that the fact was not known to her when she agreed to make the sale, and the reason she gave for her refusal was that the price agreed upon was too low. It is to be remarked, however, that Tracy v. Gunn, 29 Kan. 508, which has sometimes been cited as supporting the English rule, dealt with a case of fraud, where full compensation was allowed, and in the opinion the inquiry was made — “Why should the good faith of the vendor diminish the actual damages which the vendee has sustained by reason of the breach of the contract?” (p. 511.) In Lister v. Batson, 6 Kan. 420, where a reversal was ordered because of an instruction allowing compensatory damages for the refusal of the vendor to carry out his contract to sell a tract of land, the property was a homestead and the contract, being made by the husband without the wife’s consent, was a nullity. (Thirties v. Stumpff, 33 Kan. 53, 5 Pac. 431.)
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Per Curiam:
The questions presented by this appeal are similar to those disposed of in the case of Schlotthauer v. Greenfield, 110 Kan. 701, and the judgment of the district court is affirmed, on the authority of the decision in that case. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for compensation. The injury was a schedule injury — loss of an eye — and the arbitrator awarded compensation in a lump sum. The court modified the award to one for periodical payments, and the plaintiff appeals.
(Filed May 25, 1922.)
When the legislature revised the workmen’s compensation act in 1917 it provided for payment of compensation for the first week of disability, partial in character but permanent in quality, and then provided as follows:
“Thereafter, compensation in a lump sum shall be paid as provided in the following schedule, . . .
“(15) For the loss of an eye, or the complete loss of the sight thereof, 50 per cent of the average weekly wages during 110 weeks, (Laws 1917, ch. 226, § 3.) ' '
Sections 11, 12 and 13 of the same statute treat of arbitration, and section 13 contains the following provision:
“No award shall be or provide for payment of compensation in a lump sum, except as to such portion of the compensation as shall be found to be due and unpaid at the time of the award, . .
The result is, an arbitrator is deprived of power to make a lump-sum award (Boyd v. Mining Co., 105 Kan. 551, 185 Pac. 9), and the provision for lump-sum payment found in section 3 applies only when compensation is settled by agreement or by-action.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Augusta Klingbeil began a proceeding against Fritz Neubauer under the forcible entry and detainer statute. The plaintiff recovered judgment and the defendant appeals.
In the course of the trial it developed that before the proceeding was begun the plaintiff had conveyed away an undivided one-fourth interest in the tract in controversy. The defendant contends that as the plaintiff did not own the property she could not maintain the action. One of several tenants in common may maintain a proceeding for forcible entry and detainer against a stranger, each so far as he is concerned being entitled to possession of the whole estate. . (26 C. J. 835; 11 R. C. L. 1171.)
R is said in the appellee’s brief that the defendant has been dispossessed as the result of the affirmance of a former judgment against him in favor of a representative of the Klingbeil estate (Klingbeil v. Neubauer, 110 Kan. 253, 203 Pac. 731), thus rendering the present proceeding moot. In view of what has already béen said this matter need not be gone into.
The judgment is affirmed. | [
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The opinion of tbe court was delivered by
Johnston, C. J.:
John Stitz was convicted of having illicit intercourse with Ella Davis before she was eighteen years of age. He appeals.
He first complains that evidence of other like offenses was introduced before the jury and that the court erroneously refused to strike this evidence out upon his motion. • After testimony of a number of unlawful acts had been produced, the defendant moved to require the state to elect upon which act it would rely for a conviction. An election was made to rely upon the act of June 3, 1920, at a place north of Topeka, in Shawnee county. Defendant asked for an instruction that the jury should give no .consideration to any of the acts brought out in evidence except the elected one. The court instructed the "jury that the defendant must be convicted, if at all, for the particular act committed on the occasion fixed by the election, even though there was found to be sufficient proof of other like acts on other occasions; that the prior and subsequent acts testified to would be considered only for the purpose of determining the relations existing between the parties and assisting in determining whether the act relied upon by the state had been committed. While the general rule is that one crime cannot be established by proof of other independent crimes, there are well recognized exceptions to the rule, and one of them is that in sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, as these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment. (The State v. Borchert, 68 Kan. 360, 74 Pac. 1108; The State v. Oswalt, 72 Kan. 84, 82 Pac. 586; The State v. Stone, 74 Kan. 189, 85 Pac. 808; The State v.. Hibbard, 76 Kan. 376, 92 Pac. 304; The State v. Brown, 85 Kan. 418, 116 Pac. 508; The State v. Langston, 106 Kan. 672, 189 Pac. 153; The State v. Mathes, 108 Kan. 488, 196 Pac. 607; The State v. Ridgway, 108 Kan. 734, 197 Pac. 199.)
The refusal of the court to give an instruction that the defendant could not be convicted of the offense charged and relied on by the prosecution unless the county attorney had knowledge of that particular offense when the complaint and information were filed is assigned as error. There is nothing substantial in this complaint. The county attorney who verified and filed the charge had-been informed of numerous acts of illicit intercourse between the parties covering the period in which the act relied on for a conviction was committed. This general information was sufficient to overcome the objection of defendant, but it further appears that while Ella Davis was in the office of the county attorney she related at length the different acts of illicit intercourse with defendant, including the one upon which the state elected to bely for a conviction which occurred about June 3, 1920, in Shawnee county.
There is a further complaint, of the refusal of requested instructions to the effect that the charge against the defendant fixed the occurrence of the offense on June 3, 1920, and that unless the unlawful act was committed on that day the jury must acquit the defendant. In this connection the "defendant claimed and undertook to prove that he was not in Shawnee county upon that day, and the court was asked to instruct the jury that if they found he was not in the county on June 3, 1920, the verdict must be an acquittal. Under the evidence it would have been improper to have limited the inquiry and result to the particular day mentioned. When the state was required to elect on'what unlawful act it would rely, it elected the offense committed in the evening about June 3, 1920, on the North Kansas avenue road^.about four miles north of Topeka. In her testimony Ella Davis was not definite in fixing the date of the offense, but she testified that it was about the 3d of June, 1920. The court recognized that the- time was somewhat indefinite, but that it was identified by its occurrence at a certain time of the day and at a certain place, and in respect to the time, the jury wére informed that the state had elected to rely on the act committed “early in June, 1920, about the 3d of June, 1920, on the North Kansas Avenue road,” and the court then advised the jury that they must find that the particular offense had been committed and that he could not be convicted for an-unlawful act on any other occasion. The identity of the offense was shown in part by the time fixed by the witnesses and also by the place and circumstances of its commission. In her testimony, Ella Davis related the circumstantial details of the offense and testified that it was committed about the time named, when the defendant took-her in an automobile to a place on a certain road about four miles north of Topeka. The offense we think was sufficiently shown, and in this state of the evidence the instructions given by the court corresponded with the proof and no error was committed in refusing those requested by the defendant. An instruction appropriate to the defense of an alibi was fully and correctly given by the court.
Although the sufficiency of the evidence is challenged it is regarded to be fully adequate to sustain the verdict of the jury.
Another objection is that the defendant was not called upon to plead to the information and was never formally arraigned. The record does not show anything relating to arraignment or plea of the defendant. No question, however, was raised by the defendant as to the absence of this formality until the motion for a new trial was filed, and it was then alleged that he had not been required to plead to the information. It does disclose that he appeared at the trial with three attorneys and contested the charge made against him. He took part in the selection of a jury, made objections to evidence introduced by the state, moved that the prosecution be required to elect upon which unlawful act of the defendant it would rely for a conviction, introduced numerous witnesses who gave testimony in his behalf, requested that certain instructions be given, and finally asked for a new trial. Assuming that he was not formally arraigned, his voluntary action in appearing in person and by counsel, going to trial without objection and submitting the question of his guilt to a determination of a jury regularly impaneled and sworn, effectually waived the absence of an arraignment. It is needless to consider what would have been the effect in case the defendant had raised the objection at the opening of the trial before submitting the issue of his guilt to the jury, if it had been overruled. He chose to remain silent as to the absence of an arraignment and submitted the matter of his guilt to the jury without interposing any objection until a verdict was rendered. In the olden time when the privileges of an accused in making a defense were greatly restricted, compliance with the formalities of this kind was required, but with the ample privileges now given an accused in making a defense, and the protection thrown about him, the nonobservance of mere formalities is not regarded as fatal to a conviction, or at least not of a kind which the accused may not waive. (The State v. Lewis, 10 Kan. 157; The State v. Cassady, 12 Kan. 550; The State v. Glave, 51 Kan. 330; 33 Pac. 8; The State v. Davis, 106 Kan. 527, 188 Pac. 231.) The acts of the defendant were equivalent to an express waiver of the arraignment, and issue was joined and as effectually tried out as if there had been a formal arraignment and a plea of not guilty.
Judgment affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Claude B. Bradshaw, about seventeen years of age, was one of a party of boys who had been on a coon-hunting trip to the Neosho river east of Parsons, and who were returning to the- city between two and three o’clock in the morning, traveling in an automobile owned and operated by Frank Miller, when the car was struck at a street crossing by a shunted freight car of defendant’s, resulting in the death of young Bradshaw. In this action the parents recovered a judgment for damages, and the defendant appeals.
The switch yards of defendant in the city of Parsons extend north and south for a distance of more than a mile, and cross Crawford avenue, which runs east and west; twenty-four tracks cross the avenue, and are in use day and night in the operation of engines and switch cars. The petition alleged that the automobile approached the street crossing from the east at a speed.of about five miles an hour; that a large building immediately on the south and adjacent to the track obstructed the view from the east; that a freight car approaching from the south at fifteen miles an hour, collided with the automobile. It alleged that it was the duty of defendant to have moved the car at a lower rate of speed, ^coupled to and controlled by a switch engine, to have rung the bell of the engine, and to have had an employee on top of the car with a light to warn persons, and who could have controlled the car by the use of the hand brake. The negligence charged was kicking the car across the avenue uncontrolled by a switch engine or hand brake and without signal or warning, and failure to maintain a watchman.
The answer, besides a general denial, alleged that Claude Bradshaw’s own negligence in failing, on approaching the crossing, to look or listen or to make any effort to have the automobile stopped, in order to make proper observations, was the proximate cause of his death; that the driver was likewise negligent, and that deceased and the driver were engaged in a common enterprise, and that the driver was the agent of the deceased in operating the automobile. The reply was a verified general denial, alleging further, that Claude Bradshaw was a passenger, with no control over the automobile, and denying that the driver was his agent. .
The jury returned a verdict in the sum of $6,500 in plaintiffs’ favor, and special findings that the acts of negligence on which they based their verdict were: “a car uncontrolled; buildings, obstructed view.” The obstruction of the view by buildings was not alleged as one of the acts of negligence relied upon. The jury also found that the automobile approached the point of collision at five, and the freight car at twelve miles per hour; that the automobile could have been stopped within ten feet. They also returned the following answers to special questions asked by the defendant:
“5. How far south of said crossing could the occupants of said automobile have seen a freight car approaching on the east house track, from the following point eastward along the traveled portion of Crawford avenue:
“From a point 20 feet eastward of the point of collision? -Answer: 42 feet south of point of collision.
“6. How far south of said crossing could the occupants of said automobile have seen a freight car approaching on the east house track, from the following point eastward along the traveled portion of Crawford avenue?
“From a point 30 feet eastward of the point of collision? Answer: 32 feet south of point of collision.
“7. State what efforts, if any, deceased made to have the driver stop the automobile before going upon said crossing? Answer: None.
“8. If you find for the plaintiffs, state what amount you allow for loss of earnings prior to his reaching the age of 21 years? Answer: $1,500.
“9. What prevented the driver and the deceased from seeing the approaching freight car in time to have stopped, had they looked to a point 25 feet east of the point of collision? Answer: Swift’s building; darkness and glare of arc light.
“10. Was the driver of said automobile, and said deceased, engaged in a mutual pleasure trip at the time of the collision? Answer: Yes.”
To questions submitted by plaintiffs they answered that Claude Bradshaw was at the time of the accident a guest in the automobile, and also that he did nothing to direct its operation.
The track on which'the box car moved was seventeen and a half feet west from the northwest corner of Swift’s poultry warehouse, •which was located east of the tracks, and was the last obstruction which prevented a view toward the south of the tracks upon which the freight car approached. The testimony of the other boys who were in the car shows that as they approached the crossing no one in the car saw or heard the freight car until the switchman shouted to them, when they all looked up and saw the approaching car and the switchman hanging on the side with a lantern in his hand. Their testimony was that they were looking to the north and south and listening for approaching cars. They were also looking ahead and expecting to see a flagman; none was there. Brakeman Crane, an employee of defendant, who was hanging on the lower step of the northeast corner of the approaching car with a lantern on his arm, called out to the occupants of the automobile and this was the first warning they had of the approach of the car. Willie Bradshaw, a brother of the deceased, said that when he saw the box car it was twenty-five or thirty feet from the sidewalk line and their automobile was eight or ten feet from the track; the automobile slowed down when the brakeman called; then the driver thought it was better to increase the speed and try to get across. The freight car hit the rear wheel of the automobile, shoved the car around and Claude was found lying on the track on the north side of the automobile. This witness testified that: “Before the switchman holloed, I hadn’t heard any engine or hadn’t seen any engine; nor had I seen any cars moving. I had not seen anybody in town. From the time we entered town there was no traffic on the streets; no traffic on the crossing.”
Ernest Connelly, brother-in-law of the deceased, testified: “As we approached the crossing I looked north for engine or cars. I also looked for a flagman; Mr. Miller was looking south and said tó me, ‘One look each way as we come up to the crossing.’ ... As we approached, a switchman hanging on the northeast corner of the car that came out from behind Swift’s building, with a lantern in his hand hollered. We was under the street light and it was like a man in a house looking out the window in the dark; the box car came up under the shade of the light; we didn’t see the car till it was right on us cause the light prevented.”
Otto Koch testified:. “I saw no flagman; I looked north and south; didn’t see or hear anything. When I discovered the box car we were getting right on the track; ... we couldn’t hardly see the car; it was a kind of a gloomy night, foggy and damp, misting, moonshine and we couldn’t hardly see the car at all. Frank started to stop the car when the brakeman hollered; he saw we were going to stop on the track and he then done his best trying to get across. ... I stood up in the car and yelled out and Claude did too. All three of us did. ... I don’t know what else I did do, I was too scared.”
Crane testified that he had thrown the switch and then crossed over to the east side and got on the car as it passed. “As we were going northward an automobile came from the east. There were no lights on it. I yelled when I was about half way up the ladder and I went on up to the top of the car. The automobile came right up to within twelve or fifteen feet from the track before it slowed down. Then the driver almost stopped, then he shot on across ahead of the freight car. When I halloed, I had my hand on the top stirrup on the north end of the freight car. . . . After I shouted to the people in the automobile I went up the ladder and got on the platform of the brake. . . . Got to the brake when I saw a collision was imminent and I got back on top of the car. . . . At the time of the accident I had been to the brake and left it. I took hold of the brake and wound up the chain. This was the only way to stop the car. I commenced to wind as soon as I got around to the end. ... I had to get to the brake before I could wind it up.”
On cross-examination he testified: “The brake was on the north end of this car. The car was running fast enough to reach the place it was intended to go without any added power. I was to control the car by the brake. . . . After the switch engine let go of it, it was wholly uncontrolled unless I controlled it by the brake. If I had been at the brake I could have controlled the car and stopped it in twenty-five feet. I saw the boys as soon as they came in sight. The car was then about twelve or fifteen feet back from the end of the Swift Packing Company’s House. I gave the signal as soon as I saw them. If I had been on top of the car then I could have stopped it before it reached the center of the street. The car I was riding was a loaded car and made no noise. The automobile almost cleared the car. Just an instant more would have cleared it.”
His testimony that he climbed to the top and reached the brake before the collision is contradicted by Willie Bradshaw, who said, “He didn’t go up the side of the car at all. He never started up.” Frank Miller, on rebuttal, testified, “As we approached the crossing the brakeman who hollered out to us was hanging on the lower step.” Otto Koch on rebuttal testified, “The brakeman hanging on the side of the car as we approached Crawford avenue crossing was on the lower or bottom step. He made only one step after I saw him.”
French, a witness for defendant, who was engine foreman in charge of the crew, testified on cross-examination:
“When the car was kicked northward I intended for Mr. Crane, the field man, to take care of it. It was his duty to do so after it was cut off. The purpose of catching it and riding it was to control it. . . . He would not be able to control it until he was at the brake; then to control it he would have to have it tightened up where a turn of the wheel would apply the brakes. Crane was about twenty feet south of Crawford avenue when he caught the car. The car was then moving toward him. The purpose of Mr. Crane on that car was to stop it if it need be stopped for any purpose. That was his duty. It was the duty of Mr. Crane after he caught the car to go up the side of the car to the brake, so that he might have the car under control. The car would not be under control until he was at the brake and had the brake in a position to apply it.”
The evidence shows that the street light at the corner of Swift’s building was lighted every night and that it hung about twenty-five feet above the street. Claude Bradshaw was familiar with the crossing; his sister lived near the railroad tracks on Crawford avenue for a time and he had frequently visited her there.
The defendant, in support of the contention that the deceased was negligent, cites cases where it has been held that an automobile driver must stop and go to a point where he can see, if there is no other way to determine whether a train is approaching on a track which he is about to cross. It is insisted that the testimony of the boys who were in the automobile showed that either because of the condition of the atmosphere or the existence of the street’ light and because of the buildings near the right of way, they were unable to observe for any distance on either side of the crossing,, and therefore it was negligence as a matter of law for them to-attempt to drive over the crossing without stopping and investigating whether a car was coming.
The defendant also lays stress on the evidence showing that at this time in the night there was practically no traffic on this public street, and insists that, conceding it would have been negligence to have kicked the car across the street in the daytime in a thickly populated part of the city, it was not negligence to do so at the time and under the circumstances. We think it was negligent to have the car kicked over the public crossing at any hour of the. night because it was a public street upon which travelers were liable to appear at any moment, although the probability that there would be travel over the crossing at that hour of the night was very slight. The evidence shows that the car might as well have been kicked over the crossing without any attempt to control it, or with no brakeman near it.
The only conflict in the testimony as to Crane’s movements was over the question whether he went to the top of the car at all; the overwhelming testimony is that he did not, and that his neglect of this, duty was one of the causes of the collision. The jury was warranted upon the testimony of the foreman, French, and of Crane himself, in finding that the car was kicked over this public crossing uncontrolled, and that this negligence was the proximate cause of the collision. On the facts stated and under all the'circumstances, it cannot be said as a matter of law that the deceased was guilty of contributory negligence in failing to observe the approach of the car, or failing to insist that the automobile be stopped in order to ascertain whether a car was approaching.
The evidence shows that Claude Bradshaw was not present when the coon-hunting expedition was arranged but was invited to go along. The findings of the jury are that he was a guest of the driver, 'and that he did not direct in any way the operations of the car, so that even though the driver may have been negligent the deceased was not. (Williams v..Withington, 88 Kan. 809, 129 Pac. 1148; Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558; Corley v. Railway Co., 90 Kan. 70, 133 Pac. 555; Denton v. Railway Co., 97 Kan. 498, 155 Pac. 812; Kessler v. Davis, post, p. 515.)
The deceased was a minor slightly under 17 years of age. In Angell v. Railway Co., 97 Kan. 688, 156 Pac. 763, it was held" that it cannot be said as a matter of law that a 19-year-old girl riding in the rear seat of an automobile, driven by her brother-in-law, is bound to advise him in reference to the management of the car at the approach to a railroad crossing.
There is a contention that instructions stressed too highly the fact that Claude Bradshaw was under age. In each instruction which referred to the general rule that a person must use ordinary care and diligence to avoid injury to himself, there was attached the qualification in substance, that if the jury believed from the evidence that the deceased “was a youth of immature judgment and understanding and inexperience in the perils of undertaking to cross the tracks under the circumstances surrounding him at the time, and that by reason of such immature judgment, lack of understanding and inexperience, he was incapable of understanding the nature and extent of the hazard and peril to which he was being subjected,” the rule would not apply; in substance, that in order to prevent a recovery because of contributory negligence of the deceased, “the jury must find and believe from the evidence that the deceased failed to exercise that degree of care and diligence that persons of his age, undeveloped judgment and inexperience would ordinarily use under the same or similar circumstances.” It is insisted that the court laid too much stress upon the minority of the deceased; especially in view of the testimony offered by plaintiffs to show that he was a young man of more than ordinary development, mentally and physically. The evidence showed he had attended the county high school; had taken a year of an extended course in vocational agriculture; was very industrious, intelligent, healthy and well developed; that he weighed 150 to 160 pounds, and was able to do a man’s work on the farm and to earn a man’s wages at farm work; that he possessed the capacity of a man for earning money and doing work and knew the location of the crossing and the obstructions thereto and was familiar with the situation and conditions surrounding the place. It is argued that if the jury followed the instructions they could not escape the conclusion that the fact of the minority of the deceased was one of extreme importance for their consideration in determining the duty he owed to care for his own safety. It was not error for the court to instruct that in determining the question of contributory negligence the jury must take into consideration the age, intelligence and capacity of the deceased. Was it error to add this qualification to each statement of the rule respecting contributory negligence? We think not. The instructions in this respect taken as a whole made incapacity and intelligence the test and not necessarily the age of the deceased.
Complaint is made of an instruction that in breaking up freight trains it is very common for switchmen to kick a car in on a track without an engine attached, but that in doing so ordinary care and diligence require that at least one man ride the car and be in a position to, and give timely warning at the crossing, and in a position to control the kicked car at all times by the use of a brake or otherwise. This, it is insisted, amounted to an instruction that the failure to take such precautions, was negligence per se. The instruction was justified in view of the evidence showing the surroundings of the crossing, the obstructions to the view of persons approaching from the east, and the uncontradicted testimony of the engine foreman, in charge of the car; in substance, that it was the duty of Crane, the field man, to ride the car in and to be in a position to control it by the hand brake if it needed to be stopped for any purpose. On the conceded .facts the jury could well say that it was negligence for the defendant to permit the car to be shunted across the public street in the nighttime at grade, without any warning, and with the car uncontrolled.
It-is contended that the answers of the jury establish the contributory negligence of Claude Bradshaw, because of the distance the findings show an approaching freight car could have been seen. If this were a case in which Miller, the driver, were seeking recovery the point might be well taken; but since Bradshaw was merely an invited guest of the driver, the latter’s negligence cannot be imputed to the deceased. The findings of fact do not establish as a matter of law contributory negligence and the general verdict determines that issue in favor of the plaintiffs. We find no error in overruling the motion for a new trial.
There is a contention that the verdict is excessive. The jury allowed $1,500 as the probable earnings of the deceased from the time of his death until he was 21 years of age, a period of substantially 4 years, and $5,000 as compensation for the loss of earnings which he would probably have contributed to the parents after his majority. The life expectancy of the father was shown to be 21 years; that of the mother about the same. The evidence upon the question of damages offered by'the plaintiff showed that the young man, in addition to the capacity’and intelligence already referred to, had contributed to plaintiffs his earnings when working for neighboring farmers; that he had frequently stated that he intended to be a farmer and to remain with his parents until the farm was paid for, and that he intended always to stay with his parents. His conduct, declarations and disposition toward his parents, his capacity, age and intelligence, furnish some basis for a reasonable expectation that he would continue to confer benefits upon them. (Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301; Brick Co. v. Fisher, 79 Kan. 576, 100 Pac. 507.) The jury could only speculate from this evidence what would be a reasonable sum to allow for damages. The majority of the court are of the opinion that the amount of the judgment cannot be regarded as excessive in this case.
It follows that the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
E. N. Van Hosen and G. R. Schmoyer entered into a written contract by the terms of which the former undertook to sell to the latter for a consideration of $2,000 the exclusive right for five years to sell “Dream Electrolyte” (a new solution for storage batteries) within a designated territory. Schmoyer brings this action against Van Hosen (joining a corporation alleged to have an interest in the matter) seeking the cancellation of the contract on the ground that it was entered into in violation of the statute regulating the sale of patent rights and of the blue-sky law. A demurrer to the petition was sustained and the plaintiff appeals.
The contract bears the title “Sub-license to sell Dream Electrolyte” and the portion of it which is here material reads as follows:
“Whereas, by indenture dated December 17th, 1920, Lester Ray Kirkhart, who made application, for Letters Patent in the office of the United States Patent Office under application number 425169, executed and delivered for valuable consideration) an exclusive contract of his right to manufacture and sell the Dream Electrolyte to E. N. Van Hosen, his heirs, executors, administrators or assigns, of Elkhart, Kansas; therefore,
“In consideration of the sum of Two Thousand Dollars ($2,000.00) to me in hand paid, receipt whereof is hereby acknowledged before the signing of these presents, I, E. N. Van Hosen, do hereby sell, assign, transfer and convey unto G. R. Schmoyer the exclusive right and license to sell Dream Electrolyte in County of Oklahoma, State of Oklahoma, from the 13th day of January, 1921, to the 13th day of January, 1926, upon the strict condition however, that Said G. R. Schmoyer shall have no right to manufacture said Dream Electrolyte but . . . shall purchase the same exclusively from me, my heirs, executors, administrators or assigns, and upon the further condition that said G. R. Schmoyer shall exploit and sell only Dream Electrolyte to the exclusion of all other similar products throughout said Oklahoma County, of Oklahoma.
“It is mutually understood and agreed by and between the parties hereto that said E. N. Van Hosen shall establish a uniform wholesale price at which said Dream Electrolyte shall be sold and the purchaser hereof shall be entitled to purchase said Dream Electrolyte from said E. N. Van Hosen, his heirs,' executors, administrators or assigns at such uniform wholesale price so fixed as aforesaid.
“In consideration of the above sale and conveyance to me, I, G. R. Schmoyer of the County of Oklahoma, State of Oklahoma, do hereby covenant and agree to and with said E. N. Van Hosen, his heirs, executors, administrators or assigns, that I will faithfully and to the best of my ability exploit and sell the Dream Electrolyte to the public at a retail price fixed and designated by said E. N. Van Hosen, his heirs, executors, administrators, or assigns and that I will advertise and sell the same at a price which will be neither less nor more than the price so fixed and designated as aforesaid.
“It is mutually understood and agreed by and between the parties hereto that in case of default on the part of G. R. Schmoyer to punctually pay to said E. N. Van Hosen, his heirs, executors, administrators or assigns, the purchase price of all of said Dream Electrolyte ordered by G. R. Schmoyer and delivered by said Van Hosen as aforesaid as the same shall become due and payable this conveyance and all rights hereunder sold and assigned to said G. R. Schmoyer shall be forfeited. ...
“It is further mutually covenanted and agreed that all rights herein conveyed to said G. R. Schmoyer are not assignable . . .”
The plaintiff contends that the transaction amounted to a sale by the defendant of a patent right, and of a right which the defendant alleged to be a patent right, and that because no copy of the letters patent or any affidavit concerning them was on file with the clerk of the district court, and because the contract did not contain the words “Given for a patent right,” the defendant in entering into it violated the following sections of the statute:
“It shall be unlawful for any person to sell or barter or offer to sell or barter any patent right, or any right which such person shall allege to be a patent right, in any county within this state, without first filing with the clerk of the district court of such county copies of the letters patent duly authenticated, and at the same time swearing or affirming to an affidavit before such clerk that such letters patent are genuine, and have not been revoked or annulled, and that he has full authority to sell or barter the right so patented; which affidavit shall also set forth his name, age, occupation and residence; and if an agent, the name, occupation and residence of his principal. A copy of this affidavit shall be filed in the office of said clerk, and said clerk shall give a copy of said affidavit to the applicant, who shall exhibit the same to any person on demand.” (Gen. Stat. 1915, § 6794.)
“Any person who may take any obligation in writing for which any patent right, or right claimed by him or her to be a patent right, shall form a whole or any part of the consideration, shall, before it is signed by the maker or makers, insert in the body of said written obligation, above the signature of said maker or makers, in legible writing or print, the words, “Given for a patent right.” (Gen. Stat. 1915, § 6795.)
The defendant asserts that the contract did not involve the sale of a patent right or what he alleged to be a patent right, but was a mere agency agreement; that inasmuch as no letters patent had been issued it would have been impossible for him to have had on file any copy of them or to have made such an affidavit as that described in the statute; and that the contract is not the-kind of “written obligation” to which the requirement as to the use of the words “Given for a patent right” applies.
1. A contract made in violation of the statute quoted is void. [Mason v. McLeod, 57 Kan. 105, 45 Pac. 76.) Whatever features of agency the contract here involved may have, it does in set terms “sell, assign, transfer and convey” to the plaintiff the exclusive right for five years to sell “Dream Electrolyte” in Oklahoma county. This cannot fairly be interpreted as meaning merely that the de fendant would refuse to supply the article to other dealers in that territory — that he would make the plaintiff his exclusive agent therein. The reference to the patent serves to interpret the phrase “exclusive right” if it needs any interpretation. The granting of an exclusive right to sell a patented article in a specified territory is a sale of a patent right. (Nyhart v. Kubach, 76 Kan. 154, 90 Pac. 796.) We regard the contract as providing for the sale of a patent right, as well as of what was alleged to be a patent right. The inventor of an article which has not been patented may of course bargain with respect to his rights thereto, and transfer them in whole or in part to others. But that is not the character of the agreement under consideration. In it the defendant, after the recital that Kirkhart, who had applied for letters patent, had given him “an exclusive contract of his right to manufacture and sell the Dream Electrolyte,” undertakes to grant to the plaintiff “the exclusive right and license” for five years to sell it in the county named. The exclusive right to sell could exist only in virtue of a patent and in assuming to confer an exclusive right of sale the defendant assumed the subsequent issuance of a patent, and professed to sell a right under That patent. The contract clearly means that when the letters patent were issued the plaintiff was to enjoy their protection— that during the period named he should possess within Oklahoma county the privilege of the exclusive sale of Dream Electrolyte conferred by the patent. Therefore the contract was one by which the plaintiff undertook to sell not only what he held, out to be and in effect alleged to be a patent right, but what would actually be a patent right whenever the patent should be granted. “It concerned a patent right, existing or non-existing. The fact that letters patent had not been issued did not change the subject-matter of the contract. That remained a patent right.” (Hager v. Hale, 110 Kan. 507, 508, 204 Pac. 529.)
2. We regard the contract as within the letter and spirit of section 6794. Inasmuch as the requirements of that section cannot be met until a patent has been issued it follows from this interpretation that until that has been done a prospective patentee cannot lawfully sell rights which can be brought into existence only by its issuance. As already suggested this does not mean or imply that he may not bargain concerning his rights as an inventor or even his prospective rights under a patent to be issued, but that is a different thing from undertaking to sell a nonexistent right — to give to another a privi lege of exclusive sale which he does not possess. To interpret the statute as allowing sales of “territory”- — of exclusive selling rights within stated boundaries — where no patent had been issued would be to permit the very character of dealing it was intended to restrain. Under such an interpretation nonexistent “patent rights” might be sold under that name, the seller evading the effect of the statute by showing it was impossible to comply with its provisions.
3. There is no doubt that the primary purpose of section 6795 is to prevent a negotiable instrument given for a patent right from passing into the hands of a holder in due course. The statute -is not in so many words, however, limited in its application to negotiable obligations. The legislature may well be regarded as intending to prevent third persons from becoming involved in a possible controversy over a patent-right sale without knowing its nature, apart from any question of defenses being cut off upon grounds peculiar to commercial paper. The fact that the contract here involved shows upon its face its character and consideration does not do away with the possible benefit to be derived from an explicit statement that it was given for a patent right. The defendant asserts that a patent right, or right claimed to be a patent right does not form the consideration, or any part of the consideration, of the contract. The court thinks otherwise. The matter being debatable it cannot be said that no purpose could be served by requiring in such a case a statement of the faet in words that could not be misunderstood.
4. The petition also alleged that $1,700 of the $2,000 payment referred to in the contract was made by the plaintiff’s indorsing and assigning to the defendant that much of a certificate of deposit for $3,000 issued by a North Dakota bank, the certificate being placed with a Kansas bank which holds it for the benefit of the defendant to the extent of the $1,700. The return of the certificate as well as of the cash payment of $300 is asked. We regard the assignment of an interest in the certificate as a written obligation within the meaning of the statute relating to the use of the words “Given for a patent right.”
5. The blue-sky law forbids the sale by public offering of “speculative securities” without a permit therefor having been obtained from the bank commissioner. (Laws 1919, ch. 153, §§ 2, 3.) “Securities” is defined to mean “stock certificates, shares, bonds, debentures, certificates of participation, contracts, contracts or bonds for the sale and conveyance of land on deferred'payments or installment plan, or other instruments in the nature thereof by whatsoever name known and called.” (§1.) The plaintiff contends that the writing in question is a contract within the meaning of that word as used in the part of the statute quoted and that the transaction described in the petition amounts to a sale of such a contract. Without attempting to define the scope of the word “contracts” as there employed we hold that the entering into the agreement here under consideration was not a sale of a contract within the operation of the statute. What was sold was the exclusive right to sell "Dream Electrolyte” in Oklahoma county — a patent right. The subject of regulating the sale of patent rights has engaged the attention of the legislature, and patents are referred to in the first section of the blue-sky law of 1919, where securities of an enterprise a material part of the assets of which consists of patents are classified as speculative. If the purpose had been to require a permit for the sale of patent rights of a speculative character we think it would have been indicated expressly or by clearer implication than we find in the present statute.
The judgment is reversed and the cause is remanded with directions to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Mason, J.:
On October 28, 1915, N. B. Gebhart and J. W. Kraft, as executors, had $6,750 in their hands for investment. They turned it over to the Traders State Bank, of Salina, its president giving them a receipt undertaking to show the nature of the transaction. That bank was later reorganized as the Kansas State Bank. On September 26, 1918, the executors brought his action against the bank for the recovery of the amount named. A receiver for the bank was appointed May 27, 1919, and was made a defendant. A verdict was returned and a judgment rendered in favor of the plaintiffs, and the defendants appeal.
The defendants assert that the money was given to the bank for investment for the benefit of the executors; that it was invested in promissory notes; and that the evidence did not justify a judgment against them on any theory. The plaintiffs contend that the transaction amounted to a deposit, which they had a right to withdraw on thirty days’ notice; and that even if the bank held the money for investment on their account its conduct made it liable to them for its return. . The body of the receipt referred to read as follows:
“This is to acknowledge that you have this date left with us a sum of §6,750.00 which is to draw six per cent interest from date. Interest payable semi-annually. It is to be divided into two sums as follows: Elsie Basel, $2,750.00, Rose Rittersbacher, $4,000.00. We have agreed to keep this invested for you, as executors, in good negotiable loans that will net your estate six per cent interest. It is understood also that this fund is to remain a considerable time in this form, but if for any reason it should be necessary, to have any or all of it withdrawn all parties agree that with thirty days’ notice it will at all times be available.”
The first and last sentences suggest a deposit, while the next to the last sentence standing alone .would indicate an undertaking to keep the money so invested-as to return six per cent interest. There was evidence- tending to show these facts:
The bank paid the executors interest every six months at the rate stipulated until April, 1918. It used the money for its own purposes and selected from among the notes owned by it, bearing seven per cent interest, several amounting in the aggregate to something over $6,750, which it placed in an envelope indorsed with memoranda regarding the matter and kept in a different pouch from that containing the bank’s notes. Whenever one of these notes so segregated was paid the bank would pass the money received in payment to its own credit and substitute a new note taken from those it already owned. Such exchanges may have taken place when no payment had been made. The executors were not consulted about these substitutions or advised of them, nor had they ever expressed a willingness that the bank should invest the money in notes of which it was the owner. The view of the bank’s president was that the notes in the envelope belonged to the executors to the extent of $6,750, any surplus belonging to the bank, which was also entitled to the in terest in excess of six per cent. When the action was brought there were two notes in the envelope, given in the fall -of 1917, for the total amount of $6,500, which proved uncollectible. They had been taken by the bank on the recommendation of Felix Broeker, who owned twenty per cent of the bank’s stock, and on the strength of his indorsement. The bank in 1917 acquired paper indorsed by Broeker totaling some $220,000. A third note for $750 was placed in the envelope with the two referred to about a year after this action was begun.
Whatever general term may be applied to the transaction evidenced by the receipt its concluding sentence seems to show an agreement on the part of the bank to repay the money on thirty days’ notice. If the relation of the plaintiffs to the bank is regarded as that of principal and agent for the purpose of' investing the money, express authority, which was not conclusively established, would seem to be required to authorize the investment to be made by transferring to the principal notes owned by the agent. (2 C. J. 704.) The defendants concede that they are liable unless the bank exercised ordinary care and diligence in investing the money for the plaintiffs’ benefit. We think the evidence warranted a finding, which must be presumed to have been made, that the bank did not meet that requirement. The circumstances gave room for the jury to draw an inference that some representative of the bank availed himself of the opportunity to unload its own worthless or doubtful paper upon the plaintiffs. The jury found specifically that the bank did not keep the money invested in good negotiable loans, that the president did not from time to time invest it in negotiable loans, but that it was finally invested in three loans. A special finding was also made which the defendants regard as showing good faith on the part of the bank. It was that its president believed Broeker was solvent when he took the two notes in the envelope bearing his indorsement. This falls short-, however, of determining that the notes were regarded as good at the time they were placed in the envelope for the plaintiffs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.;
The plaintiff commenced this action to recover damages for injuries sustained by her in a collision between a moving freight car and an automobile in which she was riding. Verdict was returned in favor of the plaintiff in the sum of $3,500; but, upon motion of the defendant, the court set aside the verdict and rendered judgment in favor of the defendant. The plaintiff appeals.
The judgment must be reversed unless the plaintiff was guilty of negligence that contributed to her injury. The plaintiff was riding in an automobile driven by G. D. West, the owner of the car, and was going from the east side of Chanute to the west side, across the defendant’s switch yards containing about fifteen! railroad tracks. The defendant kept a flagman at the crossing of the street and the railroad tracks. The negligence alleged was that after the automobile had been stopped near the tracks to enable the plaintiff and the driver of the automobile to ascertain if there were danger, “the flagman . . . signaled said G. D. West to proceed across said tracks,” and that “on or about the fourth or fifth track from the east side, without any warning, knowledge or notice thereof, a car approached them, unattached to any engine or train and with no attendant thereon, coming from the south, and by reason of other cars standing on the south side of said street could not be seen or observed until about the time it struck the automobile in which the plaintiff was riding.”
Special questions were answered by the jury. Three of them show that there was nothing to prevent the plaintiff and the driver of the automobile from seeing the approaching freight car when they were fifty feet east of the track, forty feet east of the track, and thirty feet east of the track. Some of the other findings of fact were as follows:
“Was the plaintiff guilty of any negligence directly contributing to her injuries? Answer: No.
“Did- Mr. West stop the automobile on the east side of and before going upon the tracks? Answer: No.
“Did the flagman give a come on signal to Mr. West and the plaintiff? Answer: No.
“Did Mr. West proceed across the tracks after receiving a signal from the flagman? Answer: No.
“As the automobile came near the track where the accident occurred did the plaintiff or the driver do’ anything to prevent an accident? No.
“As the automobile approached the track on which the freight car was coming would the plaintiff and the driver have seen the freight car if they had looked to the south? Yes.”
These findings show that there was nothing to prevent the plaintiff and the driver from seeing the approaching freight car at an ample distance from the track to enable them to avoid all danger; that neither the plaintiff nor the driver did anything to prevent the accident; and that they either, did not look to ascertain if a car were approaching, or, if they did look, they saw the car and undertook to cross ahead of it. The plaintiff could have seen the approaching car in ample time to have warned Mr. West. This, under repeated declarations of this court, shows that tfre plaintiff was guilty of contributory negligence. This case is controlled by Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744.
The judgment is affirmed.' | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment against a railway company for injuries sustained by a switchman in its service.
While this switchman, Jesse R. Jameson, was climbing up the end of a freight car to set a brake on it, a number of other cars which had been “kicked” too hard crashed into this car and caused him to lose his hold, knocked him against the end of the next car and he fell to the ground between them. His foot was caught and crushed, and he was dragged some distance, and seriously and permanently injured. At the time of his injury the switching crew of which plaintiff was a member were engaged in distributing freight cars on five tracks. It was the duty of plaintiff when a car was kicked into one of these tracks to mount the car and set a brake on it, so that it would be stopped before passing a certain point — the east side of a street crossing. His foreman had particularly enjoined him not to let the cars pass that crossing. Plaintiff had set one brake on the car from which he fell, and had been at work elsewhere and on other cars when it occurred to him that he should set another brake on the car in question. In doing so he temporarily got out of touch with his foreman, and as the foreman and enginemen did not know or expect him to be thereabout, they kicked the cars against the one which plaintiff was climbing. Hence the accident and injury to plaintiff.
The jury’s general verdict was in favor of plaintiff. Special questions were also answered:
“Q. 1. If you find that the defendant’s negligence wholly or partially caused the accident and injury to the plaintiff, state specifically in what such negligence consisted. Ans. Kicked car too hard and neglected to keep in touch with field man.
“Q. 2. Was the plaintiff familiar with the manner and methods of the switching crew in switching and distributing the cars to the several tracks in the yards. Ans. Yes.
“Q. 3. Was it the custom in the yards in Winfield, Kansas, for the field man to keep a watch out for his own safety when cars were being kicked or shunted in upon the several tracks? Ans. Yes, with conjunction of foreman. . . .
“Q. 5. Before beginning to kick or distribute the cars to the several tracks, was the plaintiff ordered by the foreman to set a brake on one car of the string of cars standing on the main track? Ans. Not specifically on main track alone, but to hold cars on each track east of Andrews Street.
“Q. 6. After having complied with the order mentioned in the preceding question and after he had come down from the string of cars and resumed his work as a field man, did the plaintiff again go upon said string of cars standing upon the main track of his own volition and without orders from the foreman? Ans. Yes.
“Q. 7. If you answer the preceding question in the affirmative, then state whether or not the plaintiff notified the foreman or switching crew that he was about to go upon said string of cars a second time. Ans. No, he had no chance.
“Q. 8. Was the plaintiff guilty of any negligence contributing to his injury. Ans. Yes.
"Q. 9. If you answer the next preceding question in the affirmative,, state how much you deduct from the total amount you allow him, because of his own negligence? Ans. We allow plaintiff $10,000.00, but deduct therefrom $2,000.00 for his own negligence.”
Judgment being rendered accordingly, the defendant appeals. Plaintiff moves to dismiss on the ground—
"That the appellee commenced suit against John Barton Payne, who was then the legally appointed and qualified agent for railroads under government control; that said suit was tried while the said Payne was agent and on the 21st of March, 1921, judgment was rendered against Payne, as agent, who was at that time the duly acting agent as aforesaid.
"That on the 28th of March, 1921, said Payne resigned as agent, and one James C. Davis was appointed as his successor, and since that time he has been acting as agent; that no appeal was taken until the 16th of July, 1921, and at the time of said appeal Payne was no longer agent as aforesaid, and that the appellant, nor his successor, have ever made any application for a revivor or substitution, and no such revivor or substitution has ever been made, and that more than six months has elapsed since said judgment was rendered.”
When congress authorized the president to take over the railroads and to appoint a director-general to unify and operate them for the duration of the war, the first director-general thus appointed ordered that all actions against railroads should be brought against him as director-general; and this order, whether correctly interpreted or not, was construed to require also that the director-general’s Christian name and surname in haec verba should be included therewith. It need not concern us what purpose could possibly be served by this trivial formality. It was no more than a formality; the essential thing was that the action be against the director-general ; and whether the person holding that official position bears the Christian name of Tom, Dick, or Harry, and the surname of Jones, Smith, or Brown is altogether immaterial. We have had occasion to consider this subject at some length in Helm v. Railway Co., 109 Kan. 57, 198 Pac. 190; and while the situation here is not precisely similar, it falls within its general scope. Here the director-general and agent of the federal government was sued, and judgment entered against him — the officer, not the man. Here the director-general- — the officer, not the man, appeals. Who the man happens to be is of no consequence in this lawsuit. It is only the prejudicial errors inherent in the judgment, if any, which require our attention. (Civ. Code, § 581.) The motion to dismiss will be denied; but the name of the present director-general and federal agent under the transportation act of 1920, James C. Davis, will be substituted for that of John Barton Payne.
The errors assigned are argued together, and in substance the defendant’s contention is that the defendant’s foreman and switch enginemen had no reason to suppose the plaintiff had returned to this car to set another brake. A brake on it had already been set. When last seen by the foreman and switching crew plaintiff was on another car on another track. Plaintiff did not notify his foreman that he was going back to set another brake on this car. He returned there on his own initiative, without an order or signal to do so, and it was unnecessary. Hence, argues the defendant, the plaintiff’s injuries were caused by his own negligence, not at all through the defendant’s negligence; and as an answer to the jury’s finding that the cars were kicked too hard, it says no matter how hard they were kicked, that was not negligence, since the foreman and engine-men did not know, and had no reason to suppose the plaintiff had returned to the track and car in question. Defendant also reminds us that the case is governed by the federal employers’ liability law which allows the defense of assumption of risk, and cites the cases of Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612; and Quilantan v. Railroad Co., 109 Kan. 111, 197 Pac. 1095. The jury found (No. 3) that it was the custom of the fieldman (like plaintiff) to keep a watch out for his own safety when cars were being shunted, but added that this was in “conjunction with the foreman.” Defendant says there is no evidence to support this latter qualification.
It is undeniable that the plaintiff assumed the usual risks of his employment. Now just what was the risk he assumed when he returned to the car to set another brake? The risk was no more than that the car might be bumped and that consequently he would have to use care not to be jolted off the car. But he surely had the right to assume that at most the car would only receive an ordinary bump. Yet the testimony which the jury believed was that the cars crashed as if “they were tearing each other up.” Furthermore, plaintiff testified that the foreman said: “Get back to the main line and set brakes sufficient to hold those cars there.” The plaintiff’s testimony, too long for reproduction, in part reads:
“[I] was getting up to the brake so he could see me, all at the same time, so that I wouldn’t get hurt; after I gets up there and gets hold of the top of the car I heard them start to make another cut. I just turned around and the headlight hit me in the face; at that time a string of cars come in wild, that is what they call them, and hits this car I am on and knocks me over against the car next to it and down between the track. ... I think there were three cars on the main line at that'time, if I remember right there was; they was rushing me so I can’t tell exactly, couldn’t get no particular line-up. When I went over to track 5, Cheatam [foreman] was on the north side of the track. I came back to the main line as quick as I could get back. After I got back to the main line I first started .to get up on'a Pennsylvania coal car. ... I was going up on the outside on the steps. I set the brake. I was going up on the outside on the steps. . . . Anyway, I got up here and was crossing around the corner, getting on the inside to the brakes, getting up where I could get my lantern where he could see me and protect me. When in that position it wasn’t long until I was knocked down between them, that is what happened. The force of the cars caused me to be knocked. I j-ust don’t know how forcible it was, but just enough that it knocked all my holds loose from the west car and knocked me clear over to the east car, then back again, then down I fell. I had hold of the car with the usual and ordinary grip I had in doing my duty. ... I had been on one end of this bunch of cars before. I had set the brakes on that car before, but they was rushing me so I couldn’t tell just how tight they were set, or anything about it. Mr. Cheatam didn’t .specify no one car to set the brakes on. He said to get the brakes and hold them this side of the crossing. He didn’t tell me to set one brake on that string. He didn’t tell me to set them on one car, nothing of the kind. . . . I couldn’t see the switch, I was on the wrong side of the track to see the switch. ... I just come along and got up on the first in order to cross over to see what was doing. I got up to see what was doing rather than to set brakes, and to set the brakes; that was my duty. . . I was trying to give them notice that I was going on the car when I got knocked off. I had to ■climb on top of a car to get in sight of the track. ... I climbed up there ■so they could see me, that was the main duty, always the main job in the field, to keep in sight, so they won’t shove cars down on him and kill him.”
This testimony shows the unusual violence of the shunting which •caused him to be .knocked off the car, and it also fairly disposes of the defendant’s contention that the plaintiff was where he had neither order, duty, nor necessity to be. Another significant bit of testimony shows that it was not alone the duty of the plaintiff to look out for himself, but that the foreman also owed a duty in “conjunction” with him as found by the jury, in finding No. 3. This testimony reads:
“The way they learned me with reference to cutting cars when they knew the switchman was in the field, but didn’t know where he was in the field, was to not cut off more cars down on top of anybody if they didn’t know where they were.”
In the light of this evidence, the findings of the jury seem reasonably accurate and just. It cannot be judicially declared that the plaintiff had no business to be where he was when he was injured, nor can it be declared that the unusual violence of the shunting was not negligence (McMullen v. Railway Co., 107 Kan. 274, 281-286, 191 Pac. 306); and while there was a showing of inconsiderateness or prejudice on-the parffof the jury in their first finding No. 9 — damages $25,000, deduction for plaintiff’s own negligence $17,000; yet, when upon order of court they returned to the jury room to reconsider that finding, their later and more considerate determination of the matter — damages, $10,000, deduction for plaintiff’s own negligence $2,000, leaves a result which under all the circumstances this court does not feel at liberty to disturb.
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a conviction of attempting to assist each other to escape from jail while confined there under a charge of “having on the 8th day of July, 1920, in said county and state unlawfully and feloniously advocated and affirmatively suggested unlawful acts as the means of accomplishing and effecting an industrial and political revolution and of unlawfully and feloniously assembling with an assemblage of persons which assemblage had for its object and purpose the teaching, advocating, and affirmatively suggesting the doctrine of criminal syndicalism and were further'at said time and place held and confined for the offense of aiding, abetting and assisting on said 8th day of July, 1920, a society calling itself the Industrial Workers of the World which society had for its objects and purpose and which society had its agents then on said 8th day of July, 1920, in said Trego county, Kansas, advocating and affirmatively suggesting the necessity and propriety of doing unlawful acts as the means of effecting and accomplishing an industrial and political revolution.”
The information on which they were convicted charged that “while so held for the said offense the said Robert Dilgar and Thomas Paine did then and there on the said-day of October, 1920, in said county and state assist and abet each other, that is Robert Dilgar did assist and abet Thomas Paine at said time and place and said Thomas Paine did then and there assist and abet Robert Dilgar, to remove rocks and cement from the wall of said jail with intent then and there that they both and each of them might escape from said jail.”
A motion to quash the information was overruled. That motion set up, in substance, that the information did not charge facts sufficient to constitute a public offense and that the information was duplicitous because it charged each defendant with attempting to. escape and with assisting the other in attempting to escape. The defendants urge twenty-five assignments of error and argue fifteen propositions in their brief; all have b§en examined.
1. The principal question presented by the motion to quash concerns the sufficiency of the information. The defendants argue that it did not charge that they were lawfully confined in the county jail, nor allege facts from which the court could conclude that they were lawfully confined therein. The statute under which the information was drawn reads as follows:
“Every person who shall by any means whatever aid or assist any prisoner lawfully detained in jail or place of confinement, for any felony, to escape therefrom, whether such escape be effected or not, shall upon conviction be punished by confinement and hard labor for a term not exceeding five years.” (Gen. Stat. 1915, § 3564.)
The information alleged that the.defendants were confined in jail while awaiting trial on the charge of having violated section 3 of chapter 37 of the Laws of 1920.' The information did not allege that they were lawfully confined, but it did allege facts which showed that the confinement was lawful.
Another objection to the information is that it did not charge that each of the defendants had knowledge that the other was lawfully confined in the jail. The information implied but did not allege that they were jointly charged \vith the commission of the offense for which they were in jail awaiting trial. The complaint before the justice of the peace, on which they were first arrested, was against both of them; they were arrested on the same warrant; they had their preliminary examinations together; and they were confined in jail together awaiting trial. Each knew the charge against the other. In the information in the present action, the facts alleged necessarily implied that each defendant had knowledge of the lawful confinement of the other. That made the information good. (The State v. Lawrence, 43 Kan. 125, 23 Pac. 157.) The information charged an offense under section 3564 of the General Statutes of 1915.
2. The defendants argue that the information charged two offenses against each of the defendants, on either of which each of the defendants might have been convicted. Admit that this argument is correct; they were not tried for two offenses. Each was tried for assisting the other in attempting to escape; the instructions were based on that charge; and the verdicts of guilty against each of the defendants responded to it. The result was the same as it would have been if there had been but one charge contained in the information, or as it would have been if the defendants had been tried on both charges, the jury had been instructed on both, the defendr ants had been convicted on both, and thereafter the state had dismissed as to one of them and asked that judgment be pronounced on the other. This would have been in harmony with The State v. Bussey, 58 Kan. 679, 50 Pac. 891; The State v. Schaben, 69 Kan. 421, 76 Pac. 823; The State v. Taylor, 90 Kan. 438, 133 Pac. 61; The State v. Bell, 107 Kan. 707, 193 Pac. 373; and The State v. Curtis, 108 Kan. 537, 196 Pac. 445.
3. It is urged that admissions made by the defendants were improperly received in evidence. It is contended that before a confession can be received in evidence, it must be established that the confession was voluntarily made. It is also urged that this was not done on the trial of this action. The defendants were confined in the jail. No other persons were with them. The deputy sheriff heard pounding on the wall of the jail. He went inside and found them covered with white dust and found rocks and mortar that had been taken from the wall and were lying on the floor. He found two case knives. He found that the casing had been taken from one of the windows and that a window weight had been taken therefrom and wrapped with strips torn from a blanket in the jail. Each of the defendants admitted to the sheriff and his deputy that they had done the work. The evidence showed that the statements were voluntarily made by the defendants. There was nothing to show that they were made as the result of any promise, inducement, or threat. They were not confessions of guilt, but were admissions of facts. Even if they were confessions, they were admissible because they were voluntarily made. The contention that the evidence was inadmissible cannot be sustained. (The State v. Reddick, 7 Kan. 143; The State v. Ingram, 16 Kan. 14; The State v. Hayes, 106 Kan. 253, 187 Pac. 675; and The State v. Pollman, 109 Kan. 791, 201 Pac. 1101.)
4. For the purpose of showing that their confinement was illegal, the defendants, on the cross-examination of the witnesses for the state and by direct evidence on their own behalf, attempted to show what evidence had been introduced before the justice of the peace, on the charge on which they were held for trial in the district court. They were not permitted to do so, and of that they complain. The sufficiency of the evidence before the justice of the peace in the,proceeding on which they were held for trial and on which they were confined in jail was entirely immaterial upon the trial of the defendants in the present action. If that evidence was insufficient to justify their being held for trial, they had their remedy by habeas corpus. The sufficiency of that evidence was not material upon the trial of the defendants in this action. They may not have been guilty, but that was immaterial. In The State v. Lewis, 19 Kan. 260, it was held that one who breaks jail while confined on a charge of which he is not guilty may be convicted of the crime of escaping from the jail.
The defendants cite a number of authorities which they argue are to the effect that one who is unlawfully imprisoned may escape from that imprisonment without committing any offense. Following that argument, the defendants contend that they were not lawfully imprisoned and that for that reason they committed no offense in attempting to aid each other in their escape from the jail. The difficulty with the defendants’ argument is that they were lawfully imprisoned under a charge of having committed a felony.
No error appears, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff was a housekeeper for the Carl Leon Hotel in Independence, Kan. Prior to February 14, 1918, she had been sick, and on the 13th she began to break out, and on the morning of the 14th the manager said she had better call a physician. Doctor Aldrich was called and pronounced the case smallpox and said he would have to see the health officer, and sent for or called the defendant, Doctor Wickersham, secretary of the board of health and acting health officer.
The plaintiff’s story, in brief, was that Doctor Wickersham came to the hotel and took her away, giving her no reason, but said he would give her fifteen minutes in which to get ready. He took her in an open car on a very cold day, and in passing through the cemetery, he said: “You had better pick you a headstone, cause here’s where I’m going to take you next.” He stopped at the door of a small cabin:
“I stepped up to the door and there sat this stranger in the room; I just felt I couldn’t go in. I said to Doctor Wickersham, ‘You can’t leave me here. I just couldn’t stay.’ The condition of the house was dirty and nasty, and I told him I couldn’t sleep in those beds; that they were too dirty. The beds were so dirty that they were blue.”
He told her she could clean it up if she wanted to,, but she had nothing to clean with; there was a box for a table off which they ate dinner; a little coal stove to cook on and two .beds in the one- room shanty, sitting end to end. The house was boarded up and down and no paper on the walls; the windows were small.
“We put quilts up around the bed to keep the wind out because the boards did not fit together and there were cracks. The wind was awful cold, -and we burned coal. The floor was a naked floor, made out of big boards and there was no foundation under the house.”
A very unkempt man, weighing about 180 pounds, was in charge of the shanty, and with this man the plaintiff was left alone.
“There were no conveniences to answer the calls of nature. The man went out. Of course I worried, and fretted and that night I had a high fever and I wasn’t up much. The man carried the slop jar out for me.”
When the plaintiff told the doctor she was afraid she would catch cold as she was used to steam heat, he, turned to the man and told him that' she had come from the hotel where she expected it to be a hundred. There were no screens or curtains between the beds, and there the plaintiff was left, and at night a nurse came and took care of her until she was removed.
“I suffered very severely with the cold. Doctor Wickersham never talked kind to me while I was there. He spoke harsh. He talked gruff and short.”
“The nurse turned the pillow slip wrong side out and I put my apron over so I wouldn’t have to breath the dirt; I undressed and went to bed; the nurse went to bed too and we slept together, although I didn’t sleep a bit; the nurse slept, but I was afraid there was some kind of a germ, disease or louse or itch or something in the bed . . .”
“I stayed at this place three days. The doctor came out quite late in the evening, and said he would take me to a better place; at that time I was broken out pretty bad and was sick and felt awfully bad and had a high fever. I lay on the bed ^,11 the time but did not go to bed because I was afraid to, it was so dirty.”
After three days Doctor Wickersham came and took her in the same car that she had been brought to the shanty in, a distance of about fourteen blocks, to a home on another street. She got very cold in the chilly wind which prevailed. The people with whom she was left said they could not keep her, but the doctor went away and left her there where she chilled all the rest of the evening. The people did take care of her, however, although she was for much of the time for several days in a sinking condition. Before her sickness she had been earning fifty dollars a month.
The defendant’s version of the affair was that he diagnosed the plaintiff’s case as smallpox and told her she would have to be isolated and to get ready as quickly as she could:
“I went back right away and she was ready; she was dressed warmly; I took her out to the pest house in my automobile; it was cold; the top was up but the curtains were not on. . . . She was very patient going out and I jocularly said, ‘Well now here is the cemetery right handy if anything happens.’ She laughed. When we got to the pesthouse she looked very much awe stricken and displeased. The place was not sanitary; it was very crude. I knew of no other place to segregate people having contagious diseases. . . . At the time I took her to the pesthouse, I told her I would remove her to a better place as soon as one could be obtained. At the time she was removed from the pesthouse she was in the pustular stage. . . . she had secondary fever. The ordinary and usual course of smallpox includes sinking spells; the respiration is diminished; the heart action is weakened; the pulse is more rapid; and the patient is in a condition of lassitude.”
Alice Butler testified that she went out to the pesthouse on the evening of the 14th:
“The pesthouse was dirty. The only occupants were a man and the plaintiff. The man was a gentleman and treated us all right. The day I went out, material was sent for a curtain and I sewed it and the man put it up. The day the plaintiff was taken from the pesthouse it was cold. I had been at the pesthouse along in the summer. The beds and pillow cases and blankets and towels were still there when the plaintiff was quarantined. The boards on the walls were wide enough apart that you could put your fingers through. In the summer there was some paper on the walls, but the wind had blown it off. I hung up a blanket or comforter to keep it off.’'
The jury returned a verdict in favor of the plaintiff for $1,212.50, and by their answers to special questions said the defendant did not act in good faith; that he was not considerate towards her at all times in removing her from the hotel to the pesthouse and from there to the Smith home; that she suffered unusual inconveniences and that the defendant was negligent towards her; that the negligence consisted of improper conveniences and being confined with a man alone for twelve hours in an unsanitary pesthouse. They allowed her $25 for pain and suffering, $25 for loss of time and $1,162.50 for punitive.damages.
The defendant appeals from the judgment, his principal complaint being that the court erred in giving and refusing instructions, in submitting the question of punitive damages, and in denying a new trial, one ground on which it was asked being that the jury reached the verdict by the quotient method. It is also argued that the action was barred by the two-year statute of limitation, and hence the demurrer to the evidence- should have been sustained. The injury complained of occurred in February, 1918. On the 20th of the following April the plaintiff sued the city of Independence. A demurrer was sustained to the petition and an amended petition was filed December 12, 1918, making the city and Doctor Wicker-sham defendants. A demurrer being sustained to this .pleading, a second amended petition was filed July 15, 1919, joining with the city the board of county commissioners and the defendant Wicker-sham. Both of these pleadings told practically the same story about the conduct of the'health officer as was contained in the final petition which was filed September 8, 1920, making E. C. Wicker-sham the sole defendant. The second amended petition alleged among other things that Wickersham acted under the general direction of the board of county commissioners as the local board of health and also in conjunction with the city commissioners and the city health officer, and charged the defendants with gross and wanton negligence and carelessness. In the third amended petition, the plaintiff alleged the same gross conduct on the part of the defendant and told the same story and alleged carelessness and wanton conduct on his part. Hence, so far as he is concerned, the case had been pending sometime before the two-year statute of limitation had run and the last amended petition did not operate to suspend the statute.
A health officer, while required to obey his lawful orders and perform his official duty, is never excused for wanton conduct and inhumane treatment to patients suffering from serious illness, and it does not militate in the defendant’s favor that by amendments the other defendants were eliminated from the case.
It is argued that as the defendant was a quasi-judicial officer he was not responsible in damages for his acts, and it is pointed out that it is the duty of health officers to segregate from the public and to quarantine all persons sick with smallpox, and it is said that in moving the plaintiff from the hotel he was exercising quasi-judicial powers and performing a governmental function. A physician had already pronounced the case smallpox and it took no exercise of judicial power on the part of the health officer to move the patient to a place where guests and occupants of the hotel would be free from danger of infection. Of course, in removing her he was acting in a governmental capacity, but persons who act in that capacity are required to treat other human beings .in a reasonably humane and considerate manner. The law, no less than humanity, requires humane and decent treatment of those who must be segregated from their usual conveniences and friends, and whoever acts with utter disregard of this requirement renders himself liable. (Murphy v. Fairmount Township, 89 Kan. 760, 133 Pac. 169; Hicks v. Davis, 100 Kan. 4, 163 Pac. 799; Throop on Public Officers, §§ 724-726; Beers v. Board of Health et al., 35 La. Ann. 1132; Barry v. Smith, 191 Mass. 78, 87-90; Beeks v. Dickinson County, 131 Iowa, 244; 21 Cyc. 405; 12 R. C. L. 1267, § 5.)
It is contended that the evidence was insufficient to establish a cause of action. This suggestion needs no discussion.
Fault is found with the court for certain comments made during the trial, but we find nothing of substance in this complaint.
We have examined the instructions refused and those given and find no error whatever touching these matters.
It is argued that there was no evidence to show that the defendant acted carelessly, wantonly or maliciously, but the jury found otherwise and the evidence warranted the finding.
There was an attempt to show that the verdict was arrived at by the quotient process, but after hearing all the testimony on this point the trial court found nothing wrong with the verdict and we are satisfied with that conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Floyd Chadd, a resident of Stafford county, sued the Byers State Bank, of Byers, Pratt county, charging that a deposit known by it to be the proceeds of the sale of cattle bought from him for which the purchaser had given a check on the bank, had unjustifiably been used in the payment of other checks, with the result that he received nothing upon his. He recovered a judgment, and the bank appeals.
J. W. Wasson, a stock buyer, of Byers, on September 28, 1918, bought twenty-four head of cattle from Chadd for $1,140, giving his check for that amount on the defendant bank. At about the same time he bought sixteen head from two other persons, giving them his checks on the same bank for $710 and $60 respectively. He shipped the forty head from St. John, Stafford county, in the name of his minor son, A. D. Wasson, to a Kansas City commission company which sold them for a net return of $1,530.25, depositing that amount in a Kansas City bank to the credit of the Byers bank. The Kansas City bank gave the Byers bank notice of the credit, stating that it was by direction of A. D. Wasson. From the fund thus acquired the bank paid the checks for $710 and $60 already referred to, and also four other checks for the aggregate amount of $770 drawn by J. W. Wasson. Payment of the Chadd check was refused for want of funds, Wasson having on deposit (disregarding the credit referred to) only a nominal sum. Chadd claims that the bank had such knowledge of the source of the $1,530.25 credit that it was not authorized to pay it out upon any checks other than those given for the cattle the sale of which had produced the fund. His recovery was for $760.35, that being the amount of the credit resulting from the sale of the cattle less the amount of the two other checks which had been given fór them and which were paid in full out of their proceeds.
1. A. D. Wasson, in whose name the cattle were shipped, and in whose name the credit at Kansas City was given, knew nothing whatever about any feature of the transaction. His name was used without his knowledge, but without'objection on his part, after the facts became known to him, to anything done by his father. Upon the bank’s receipt of the notice showing it to have been credited at Kansas City with $1,530.25 by direction of A. D. Wasson, J. W. Wasson requested the cashier to pass the amount to his credit, and this was done, checks other than that of the plaintiff being paid from this fund as already stated. The decision of the trial court appears to have been based upon the theory that the request of J. W. Wasson as to the disposition of the fund was without effect because not authorized by his son. We are unable to accept this view. The object of J. W. Wasson in shipping the cattle in the name of his son is not shown. He died on-October 6, 1918, and therefore no explanation on his part was available at the trial. But whatever the purpose may have bgen, inasmuch as he said nothing to his son about it, and his son knew nothing of the transaction, we must regard the proceeds of the cattle as owned by and under the control of the former. The son acquired ho title or right of possession from the fact of the cattle having been, without his knowledge, shipped by his father in his name. It follows that the request of J. W. Wasson that the defendant bank should credit the proceeds to his account was as effective as though' concurred in by A. D. Wasson or made by his authority.
2. The plaintiff, not having sold his cattle on credit and not having received payment for them, was entitled to reclaim them or their proceeds as against any one not occupying the position of an innocent purchaser. (Bank v. Brown, 80 Kan. 520, 103 Pac. 102; 35 Cyc. 506, 510. See, also, Union Stock Yards Bank v. Gillespie, 137 U. S. 411.) If the defendant, however, paid out the proceeds without actual or constructive notice of the plaintiff’s relation to them it was not liable to him. (Martin v. Bank, 66 Kan. 655, 72 Pac. 218.) The court found that at the time the bank paid out the money corresponding to the credit at Kansas City it had notice and knowledge that such credit was from the proceeds of the sale of the Chadd cattle and those which had been shipped'with them. We feel constrained to hold, however, that there was no evidence to support that finding unless constructive notice may be deemed to arise from the use of the name of A. D. Wasson in the transaction. The cashier before paying out any of the money knew from statements made to him by J. W. Wasson that the fund was derived from a shipment of cattle made by him in the name of his son. And the fact that Chadd’s check bore on its face the memorandum “24 cattle” may be regarded as advising the cashier that the check given to the plaintiff was for cattle. But nearly or quite all of the checks paid out of the fund in question bore similar memoranda, indicating that they also were given for cattle, and we discover nothing to charge the bank with notice that the twenty-four cattle for which the plaintiff’s check was given were any part of the shipment from which the fund was derived, unless, as already suggested, it should be the circumstance of the cattle having been shipped in the name of A. D. Was-son. That circumstance did indeed to some extent and for some pur poses put the bank upon inquiry. It was bound to determine at its peril the right of J. W. Wasson as between him and his son to control the fund which stood in the name of the latter. But- it determined that matter rightly according to the established facts as we have applied the law to them. The use of the name of A. D. Wasson in the shipment was a mere matter of form. A. D. Wasson had no interest in the cattle, personally or as representing others. They were not shipped in his name by virtue of any arrangement with him or with any one else, it might be suggested that J. W. Wasson’s uncommunicated purpose was to segregate this particular transaction from his other business for the protection of those who had sold him the cattle and who had not been paid — so that the proceeds might be identified as a fund against which they had a specific claim. But in that case he would naturally have made some provision for carrying out the design, whereas in fact he pursued a course inconsistent therewith by directing the fund to be placed to his credit in the bank. We do not think that the appearance of the name of A. D. Wasson in the transaction required the bank to make any inquiries except as a protection against claims of A. D. Wasson, or that for any reason it owed the plaintiff a duty to inquire of what cattle the fund was the proceeds.
- 3. Chadd deposited his check at his home and it reached the defendant.bank by way of Kansas City on the morning of October 5, in the same mail that brought the notice of the Kansas City credit. The cashier testified that so long as the money held out he paid the checks in the order of their presentation; he said, however, that as he remembered he received all the checks (including the plaintiff’s) at the bank at the same time; that he paid them out just as he got to them, and didn’t know just which one came first. There is a-difference of opinion as to the duty of a bank with respect to checks presented through the clearing house at the same time, where the deposit is not sufficient to meet them all. It is said on the one hand that none should be paid, and that any other course would render the bank liable to the holders of the dishonored paper (1 Morse on Banks and Banking, 5th ed., § 354), and on the other that the bank must pay the checks to the extent the deposit admits, but in any order it sees fit. (Reinisch v. Consolidat’d Nat. Bk., 45 Pa. Super. Ct. 236.) Whatever may be the rule in any other situation, we think that where a number of checks reach the bank upon which they are drawn by the same mail the bank is not liable to any of the holders by reason of the order in which the funds of the drawee are applied in their payment, assuming of course that there are no exceptional reasons for a preference. There was testimony that one or two of the checks paid had previously been presented and protested and by direction of the owners were held by the bank to await sufficient funds for their payment. Thése obviously were entitled to at least as favorable treatment as those received later.
The judgment is reversed and .the cause remanded with directions to reduce the judgment'to $72.27 (the amount of the proceeds of the plaintiff’s cattle réceived by the bank in excess of the checks that it paid) with interest and costs in the district court.
Johnston, C. J., Porter and West, JJ., dissent on the ground that the facts recited in the opinion are sufficient to justify a finding that the cashier had notice of the origin of the fund. | [
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The opinion of the court was delivered by
Porter, J.:
The action was to recover a real-estate agent’s commission. The court tset aside a verdict for the plaintiff and granted a new trial. The plaintiff appeals.
John Spangler owned 320 acres of land in Lane county. He lived at Ness City. He listed the land with the plaintiff for sale at $35 an acre on terms of $4,500 cash, balance in four years at seven per cent interest. There was no dispute about the material facts in the case. The plaintiff’s evidence' showed that on April 21 he procured one G. L. Cremer to inspect the property and Cremer made an offer to purchase the land. Owen, the plaintiff, communicated this offer to Spangler by telegram which reads:
“Have offer $35 -per acre $4,000 cash balance 5 years seven per cent option paying at any time possession May first, improvement silo and tanks included. Wire answer.”
On the same day he received a telegram from Spangler as follows:
“Will take offer and vacate May fifth, sooner if possible will write tonight.”
Upon receipt of this telegram Owen communicated with Cremer • by telephone and read the telegram to him. The terms were satisfactory to Cremer. Two days later plaintiff received word from Spangler wanting to know if the deal was going through, and directing plaintiff to prepare and send a contract and stating that if the contract did not suit him he would prépare a new one. Plaintiff immediately wrote Spangler in substance that he did not think there was any need of a contract as Mr. Cremer was ready to close the deal as soon as the abstract was brought to date and the deed was ready; but said, “However, I am enclosing a couple of contracts if you want to use them.” Spangler prepared contracts in duplicate and sent to plaintiff for Mr. Cremer’s signature, but he made a change in the terms he had stated in his telegram. Instead of agreeing to vacate May 5, sooner if possible, the contract provided for possession thirty days from its date. The change was not acceptable to Mr. Cremer, and his testimony is that for that reason he refused to sign the contract. There is no dispute over the fact that he was ready, able and willing to complete the purchase upon the terms stated in Spangler’s telegram agreeing to -vacate May 5, “sooner if possible.”
The defense relied upon in this action was that plaintiff never earned his commission because he had not procured a contract signed by Cremer, and also because he had never introduced Cremer to Spangler. The jury returned a verdict in favor of plaintiff and made the following answers to special questions:
“1. Was this land listed by the defendant with the plaintiff for sale? Answer: Yes.
“2. Were the terms upon which the purchaser, Cremer, proposed to buy different from those of the original listing? Answer: Yes.
“3. Did the plaintiff ever bring Cremer, the proposed purchaser, and the defendant together or introduce them to each other? Answer: No.
“4. Did the plaintiff ever procure a contract for the purchase of the land signed by Cremer the proposed purchaser? Answer: No.
“5. Could the plaintiff by the exercise of the utmost diligence have procured such a contract from Cremer, the proposed purchaser before April 29th, 1919? Answer: We don’t know.
“6. Was a sale of this land ever consummated between the defendant.and Cremer, the proposed purchaser. Answer: No.”
The ground upon which the court granted the motion for a new trial is apparent. It was on the mistaken theory that the commission was not earned because Owen did not disclose the name of his customer to Spangler; did not introduce or bring the parties together personally, and did not procure a contract signed by the proposed purchaser. Upon the undisputed facts, we think it was error to set' the verdict aside and to grant a new trial. It is not the law that in order for an agent to earn his commission, where he is employed to find a purchaser able and willing 'to buy on terms acceptable to the seller, he shall bring the parties together personally, or introduce them; nor is it the law that in order to earn his commission he must procure a binding contract signed by the purchaser. This is evident from the fact that his contract is not that he will procure a person who will sign a contract to buy, but one ready, able and willing to purchase on the terms stated or agreed to by the seller. Decisions which refer to the necessity of bringing the parties together have reference to bringing their minds together upon a contract. Physically, the persons may be thousands of miles away from each other. It is not necessary that they ever see one another or communicate otherwise than through the agent.
In this case the land had been listed on certain terms for sale. The agent procured a purchaser at terms slightly different and communicated the fact to Spangler. When Spangler telegraphed to his agent, “Will take offer and vacate May fifth, sooner if possible,” he put himself in a position where .the agent would be entitled to recover his commission provided the proposed purchaser accepted Spangler’s terms. And Spangler could not avoid paying the commission by merely refusing to abide by his proposition and by preparing a written contract with new terms not acceptable to the purchaser. On April 23, the plaintiff wrote the defendant informing him who the purchaser was and that the terms stated in Spangler’s telegram were satisfactory. He informed him further that so far as he could see there was no need of a written agreement, but inclosed blanks if Spangler desired to make use of them. In this situation it cannot be doubted that Spangler would have been liable for the commission had the trade fallen through by reason of his sending a contract agreeing to sell only upon condition that the purchaser would pay a thousand dollars more than the offer of April 21. For the same reason it follows that if he changed any other terms of the contract, that is, inserted in the written contract terms different from those already agreed upon, and the purchaser refused for that reason to complete the deal, he would be liable for payment of the commission. The record shows beyond dispute that the only reason the sale was not completed according to the terms of the contract made by telegrams was because the defendant required the purchaser to sign a different contract by which he was to have thirty days, in place of five, in which to surrender possession of the property. Conceding his right to change his mind about the sale and to change the terms upon which he had agreed to sell he could not thereby avoid his obligation to pay to the agent the commission which had already been earned.
It was error to grant a new trial and the judgment is reversed with directions to enter judgment for the plaintiff on the verdict. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover taxes paid under protest. A demurrer to the plaintiff’s petition was sustained, and he appeals.
In this state, March 1 is taxing day. In March, 1919, the plaintiff duly listed for taxation all property subject to taxes which he owned on March 1. At that time he was operating for oil in Texas. His operations were financed by another, under an arrangement .that he should receive a percentage of the net profits. On August 8, 1919, all property which the plaintiff was operating, including operating equipment, Was sold, and he received, as his share of the profits, more than one million dollars. Anticipating the sale, the plaintiff had arranged to invest his prospective profits in bonds of the United States. On August 8, within a matter of moments after receiving his profits, he purchased First Liberty Loan bonds of the par value of one million dollars, for which he paid $997,200. In May, 1920, the assessor coerced the plaintiff to list his investment in government bonds as-of March 1, under section 11163 of the General Statutes of 1915, which reads as follows:
“All property shall be listed and valued as on the first day of March in the year in which the same is assessed, and the transfer or sale of any taxable personal property subsequently to the first day of March shall not authorize any person to omit the same from his list, although such list be not made until after the sale or transfer of such property; but all such property shall be listed for taxation in the same manner as if no sale or transfer thereof had been made. But where bonds of the United States have been purchased by any person during the year prior to the first day of March, where property is required to be listed as of that day, the value of such bonds in money shall be divided by twelve, and the quotient shall be multiplied by the number of months or fractional parts of months remaining after deducting the time which such bonds were owned, and such product shall be listed as money on hand on the first day of March by the party.”
Having paid, under protest, the first half of the taxes levied pursuant to such listing, the plaintiff sued to recover the money, amounting to $7,446.65.
The plaintiff contends the statute deprives him of the equal protection of the law, contrary to the guaranty of the federal constitution, and violates the constitutional principles of equality and uniformity in property taxation in this state, by arbitrariness of classification.
When the constitution of this state was adopted, the theory of taxation was the theory of reciprocal protection and duty to support. (Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344.) The theory which now prevails is the faculty theory. (The City of Hutchinson v. Stewart, 105 Kan. 743, 746, 185 Pac. 740.) The constitution stands in the way of full application of the modern theory, but the change in theory is not of practical consequence in this case. In the case of Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977, the court critically examined all cases previously decided, and stated the following conclusions respecting taxation of property:
“The essentials are that each man in city, county, and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout. the jurisdiction levying the tax. The imposition of taxes upon selected classes of property to the exclusion of others, and the exemption of selected classes to the exclusion of others, constitute invidious discriminations which destroy uniformity.” (p. 58.)
In the same opinion the subject of exemption from' taxation was fully considered, and the following conclusions were stated:
“An exemption from taxation, granted through favoritism or other arbitrary motive, of property not benefiting the public in any way different from other property of the state, could not be sustained even although the financial effect of the exemption might not be appreciably felt.
“ ‘It. is difficult to conceive of a justifiable exemption law which should select single individuals or corporations, or single articles of property, and, taking them out of the class to which they belong, make them the subject of capricious legislative favor. Such favoritism could make no pretense to 'equality; it would lack the s.emblance of legitimate tax legislation.’ (1 Cooley on Taxation, 3d ed., p. 381.)” (p. 61.)
Within constitutional limitations, and limitations imposed by paramount federal law, the legislature has full discretion in the. formulation of its scheme of taxation. Since the tax law must be a general law, perfect uniformity and equality are impossible, and it is unavoidable that some persons should be affected differently from others. In this instance, however, money invested in a single kind of tax-exempt security is taxed, while money invested in all other kinds is not taxed. The inequality is not incidental, but results from invidious discrimination between classes of tax-exempt securities, and between bonds of the United States and securities issued ■under the laws of this state, produced by revision of the tax law in 1907:
“No person shall be required to list for taxation any state, county, city, school-district and municipal bonds of the state of Kansas, or other evidences of indebtedness of municipal corporation[s] of this state.” (Laws 1907, ch. 408, § 15, Gen. Stat. 1915, § 11302.)
There is no difference in principle between this case and the case of Graham v. Comm’rs of Chautauqua Co., 31 Kan. 473, 2 Pac. 549, in which one kind of property, brought into the state after March 1, was taxed, while other kinds were not taxed; or the case of M. & M. Rly. Co. v. Champlin, Treas., 37 Kan. 682, 16 Pac. 222, in which property of residents of a township was subjected to taxation, without taxing the property of others; or the case of In re Page, 60 Kan. 842, 58 Pac. 478, in which some insurance policies were taxed, and not others; or the case of Hamilton v. Wilson, 61 Kan. 511, 59 Pac. 1069, in which some kinds of judgments were taxed, and not others.
It is said the term “bonds of the United States” was used in a generic sense, and the state tax commission interprets the statute as applying to all obligations of the United States. When the statute took effect (March 11, 1876), the term had a definite legal meaning, which accorded with its popular meaning, and applied to a single class of obligations. The legislature could not have been ignorant of the existence of the federal statute of 1864, which appears as section 3701 of the Revised Statutes of the United States (revision of June 22, 1874, published February 22, 1875). This statute distinguished between bonds and other obligations of the United States, and reads as follows:
“All stocks, bonds, treasury notes, and other obligations of the United States, shall be exempt from taxation by or under state or municipal or local authority.”
Therefore, the interpretation of the tax commission is incorrect and, if applied, would amount to an amendment of the statute.
It is said money invested in securities of this state benefits the public in a different way from money invested in federal securities, and so becomes a proper subject of exemption. The theory of exemption is fully satisfied by relieving the state securities themselves from taxation, and there is no evidence of legislative intention to rest exemption of money invested in state securities the day before taxing day, on the ground the money is thus made of special service to the state. Conceding, however, money and securities virtually constitute a unit which is a proper subject of exemption, there can be no basis for discrimination between money invested in government bonds and money invested in other forms of federal securities. If money invested in state securities, and the securities themselves, are to be regarded as one fund for the purpose of exemption from taxation under state law, it is quite arbitrary to treat money invested in government bonds, and the bonds themselves, as distinct subjects of exemption under the federal law, and the plaintiff’s contention that the statute purposely, but by indirection, taxes bonds of the United States contrary to the federal statute, must be sustained. The borrowing power of the United States depends on its ability to market its bonds. A tax on money invested in bonds of the United States, like a tax on the bonds themselves, “makes the possession of the bonds less valuable, it makes the net income from them less, it renders them less desirable as an investment, and consequently impedes and impairs the borrowing power of the federal government.” (Gray on Limitations of Taxing Power and Public Indebtedness, § 755.)
It is said the supreme court of the United States has held contrary to the view just stated, in the case of Shotwell v. Moore, 129 U. S. 590. In that case the court had under consideration a statute of the state of Ohio, the pertinent portion of which reads as follows:
“Sec. 2737. . . . sixteenth, the monthly average amount or value, for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects, within that time invested in, or converted into, bonds or other securities of the "United States or of this state, not taxed, to the extent he may hold or control such bonds or securities on said day. preceding the second Monday of April; . . .” (p. 594.)
Shotwell was in the habit of withdrawing. his bank deposit just before taxing day, taking greenbacks for the amount, and making a special deposit of the greenbacks until after taxing day. In the opinion the court said:
“The state of Ohio, like many and perhaps most of the other states, collects from the business and property subject to taxation for the year preceding the specified date, the elements of an assessment of a tax to be paid by the taxpayer for the year succeeding that date, and it has in several instances recognized the fact that an assessment which assumed that all property should only be assessed to those who were the owners of it on the precise date named was not a just apportionment. . . .
“To avoid this evil the statute in Ohio provides for the ascertainment of the monthly average amount or value of the property or goods in which such parties were dealing, and for the assessment for taxation on that basis. Many kinds of business must be of this character.
“The legislature, perceiving the facility with which negotiable securities and other rights and credits which were liable to taxation might be exchanged for greenbacks at the time the assessment for taxation was made, and after the assessment was over replaced in the form in which they had been, applied this principle, by special provision of the statute, to that form of property. In this they showed a wise forecast. So far as we can see, the statute which does this does not tax the citizen for the greenbacks which he may have held at any time during the year, but taxes him upon the money, credits, or other capital which he has had and used, according to the average monthly amount he has so held.
“Such we understand to be’the purpose and effect of the section complained of by counsel, to wit, subdivision sixteen of § 2737 of the Revised Statutes of Ohio. We do not see any objection to that state endeavoring to arrive at the average monthly amount or value of the moneys, credits, or other effects of the citizen subject to taxation within the preceding year, and ascertaining in a similar manner the average amount of his securities, either state or national, for the same period, not subject to taxation, in order to fix a basis for assessment.” (p. 598.)
It will be observed the Ohio statute was not discriminatory. As the supreme court of the United States said, it was “a wise and equitable law.” It applied to money invested in tax-exempt securities of all kinds, federal and state, treated such money as part of the taxable property of the state, and used the amount of the securities as a factor in computing an average taxable value for the year. Under the Kansas statute, no money invested in exempt securities is taxed, except that invested in government bonds.
The effect of the statute on the sale of government bonds during the World War became a subject of importance. In the report of the proceedings of the sixth biennial conference convention of the tax commission and the county assessors of the state of Kansas, held at Topeka, December 10 and 11, 1917, appears the following:
“During the conference many questions were asked as to whether or not moneys invested in ‘liberty bonds’ were subject to the provisions of section 11163, General Statutes of 1915. Suggestions were made concerning the subject, with a reservation on the part of the Commission to give the matter careful consideration for the purpose of later announcing the rule to be followed.
“It was intimated by the commission at the time that it was very desirable to arrive at a conclusion that such moneys were not taxable, and since the conference adjourned the-question has been taken up with the attorney-general, and it is with much satisfaction that, upon the advice of the attorney-general, it is now held that moneys invested in liberty bonds are not subject to the provisions of the said section.
“The conclusion is reached that the statute was enacted solely to prevent tax evasion on the part of owners of money who, on or about March 1, temporarily invested in ordinary government bonds for the purpose of being able tc withhold from the assessment roll such moneys, and that moneys invested in the bonds now offered for sale in an emergency of the government, and known as liberty bonds, and which investments are made, not as investments for the purposes of income, but in a pure spirit of patriotism, to help the government out in its time of need, are not within the intent of the law.” (p. 63.)
There is an intimation here that money used to purchase government bonds as an investment, may be taxed, and such now appears to be the view of the taxing officials. There is no reason to believe the statute was framed to prevent tax evasion. At the time the statute was enacted, the country was only beginning to recover from severe financial panic and business depression. Problems of currency and finance were agitating the country, and monetary heresies were rife. The paper-money volcano still smoked, and threatened eruption. The bondholder, who clipped coupons while others toiled, was not popular. The national banking system, built upon government bonds, was under severe criticism. The long duel between gold and silver had commenced, and it was assumed it would be necessary to issue bonds to procure gold to make the resumption act effective. To maintain faith in the integrity of the government, interest on bonds, not specified as payable in gold, was paid in gold, which reached the price of 115 in 1876, and this fact served to increase resentment toward bondholders, as an unduly favored class. Tax evasion in this state by converting money -into bonds of the United States, was negligible. The tax dodger resorted to greenbacks, which were exempt from taxation until 1894, and the legislature of Kansas believed it had discovered a method of reaching bondholders, by taxing money invested in bonds. The legal effect was to penalize investments in bonds of the United States.
The result is, the money which the plaintiff invested in liberty bonds was not taxable, and the taxes he was compelled to pay should be refunded.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by an indorsee of a check to recover from the drawer. The plaintiff prevailed, and the defendant appeals.
The check was drawn on a bank in Wichita, was given in a transaction concluded at night, in Wichita, and the drawer stopped payment the next morning, before the bank opened for business. Payment was stopped because consideration of the check failed. The check was not presented for payment by the payee. He remained in Wichita for several days, and was accessible to the maker, who knew where he was, but who took no steps to obtain possession of the check. The check was dated October 20, 1919, and on November 14 it was cashed at Salina, by a purchaser who had no knowledge of the failure of consideration. When the check was presented for payment, payment was refused.
The law of the case is simple enough. A check is a bill of exchange, drawn on a bank, payable on demand. (Neg. Inst. Act, § 192, Gen. Stat. 1915, § 6713.) A check must be presented within a reasonable time after issue, or the drawer will be discharged from liability thereon to the extent of loss caused by the delay. (Neg. Inst. Act. § 193; Gen. Stat. 1915, § 6714.) This was the law before passage of the negotiable-instruments act. (Gregg v. George, 16 Kan. 546; Mordis v. Kennedy, 23 Kan. 408; Anderson v. Rodgers, 53 Kan. 542, 36 Pac. 1067; Noble v. Doughten, 72 Kan. 336, 345, 83 Pac. 1048; Cox v. Bank, 73 Kan. 789, 85 Pac. 762.)
Under section 196 of the negotiable-instruments act, a check does not amount to an assignment of funds. (Gen. Stat. 1915, § 6717.) A check, however, may properly be regarded between the parties as something of an appropriation to the payee of so much money on deposit in the bank, which the payee may obtain by calling for it. (Gregg v. George, supra.) Should the payee delay presentment, and should the bank fail, the loss falls on the payee. Should the drawer have no funds on deposit to -meet the check, or should he withdraw his deposit before presentment, he can suffer no injury by delay in presentment, and is not discharged. (Anderson v. Rodgers, supra.) Stopping payment is equivalent to withdrawing the deposit. The drawer of a check is principal debtor, the person primarily liable, and, unless he suffers loss by delay, is not discharged if the check be presented within the time prescribed by the statute of limitations. Negotiation of a check as a bill of exchange is one of the privileges of the payee, and the drawer does not suffer loss, within the meaning of the negotiable-instruments act, by the fact that the payee chooses to transfer the paper, instead of present ing it for payment himself. In this instance, the defendant did not suffer loss because of delay in presenting the check.
If a check be negotiated to an innocent purchaser, it stands on the same footing as other negotiable paper with respect to defenses the drawer may interpose when sued on the instrument. For purpose of negotiation, a check is not “due” until presented for payment (Cox v. Bank, supra), and one who acquires an unpresented check a considerable time after it was issued, may nevertheless be a holder in due course. (Bull v. Bank of Kasson, 123 U. S. 105, 111.) Section 60 of the negotiable-instruments act (Gen. Stat. 1915, § 6580) requires that the time shall not be unreasonable. What is a reasonable time depends on a variety of facts and circumstances. (Neg. Inst. Act, §4, Gen. Stat. 1915, §6524; Investment Co. v. Fuller, 105 Kan. 395, 184 Pac. 727.)
The payee, W. B. Lynch, was a patron of the plaintiff’s hotel in Salina. The plaintiff was in the habit of cashing checks for his guests, and had cashed a ñfty-dollar check for Lynch two weeks before he was asked to cash the check sued on. The plaintiff testified as follows: ,
“On the. afternoon of November 14, 1919, W. B. Lynch presented check marked Exhibit “A” to me at Planters Hotel, asking me to cash same. I said to him I did not have $200 in cash at the hotel. Mr. W. B. Lynch asked me if I would cash same at the bank. I asked ifi check was good. Mr. J. B. Stanley was standing near at that time, and asked to look at the check, and said, ‘Mr. Elem, of Wichita, Kansas, is O. K., and is known to me personally. He is a real estate man of Wichita, and is worth considerable money.’ He mentioned the sum, fifty thousand dollars. So I told Mr. Lynch to sign the check, and I took it to the Planters State Bank, Salina, the same afternoon of November 14, 1919, and received $200 currency, with which I returned to the hotel, and presented to Mr. W. B. Lynch.”
Did the lapse of twenty-four days from the date the check was issued, without more, necessarily give to it, in the eyes of the plaintiff, or in law, the same appearance as that of a dishonored draft, or of an overdue and unpaid promissory note?
No question arises with reference to solvency of the bank, or liability of parties other than the maker, or the statute of limitations. It is perfectly true that a check is ordinarily to be regarded as an instrument for present use; but the negotiable-instruments act did not declare that a check is due at once, or that it must be presented, or put in course of collection, by the close of business on the next business day after issue. A check is not overdue, for pur pose of negotiation, unless there has been unreasonable delay in presenting it, and unreasonable delay must be interpreted to mean such delay as to make the check obviously stale.
The facts are all before the court. It is essential to uniformity that the court itself should determine questions of this character, and the court holds that the time elapsing between the issuing of the check and its negotiation did not deprive the plaintiff of the rights of a holder in due course.
The proof was uncontradicted that the plaintiff had no notice of infirmity in the instrument, and the circumstances under which he acquired it had no tendency to indicate bad faith. (Neg. Inst. Act. § 63, Gen. Stat. 1915, § 6583.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment against them for damages sustained by the plaintiff on account of personal injuries received by him while working for the defendants in drilling an oil well.
The petition alleged that the defendants were negligent in giving him an unsafe place in which to work; that the defendant, Herman H. Fisher, one of the employers of the plaintiff, was working with the latter; and that Fisher was guilty of negligence in the manner in which he handled a sledge hammer with which he was working. The defendants pleaded contributory negligence on the part of the plaintiff and the assumption of risk by him.
Trial was by a jury, and verdict was rendered for the plaintiff. Special questions were answered as follows:
“Q. 1. Do you find that the defendant, Fisher, was in charge of and directing the work at and prior to the time of plaintiff’s injury? A. Yes.
“Q. 2. Do you find that the tools were caused to fall on account of the striking of the chain which held the brake? A. Yes.
“Q. 3. If the above question is answered ‘yes’ please state who held the sledge at the time it struck the chain. A. Fisher.
“Q. 4. Do you find that the defendant, Fisher, by the exercise of reasonable care and prudence could have prevented said chain from being struck with the sledge? A. Yes.
“Q. 6. Do you find that the place where plaintiff was working at the time of his injury was a safe place to work? A. No.
“Q. 6. Do you find that the defendants by the exercise of reasonable care and prudence could have rendered said place a safe place to work? A. Yes.
“Q. 7. Do you find that the defendants used reasonable care to adopt a safe method of doing the work on which Ray Hollingsworth was engaged at the time of his injury? A. No.
“Q. 8. How much time do you find that plaintiff lost by reason of his injury? A. Don’t know.
“Q. 9. If you find that Ray Hollingsworth was guilty of any negligence which contributed to his injury, please set out and describe his said negligence. A. No.
“1st. Do you find plaintiff was an experienced tool dresser at the time he was injured? A. Yes.
“2nd. Do you find that the plaintiff knew the tools were suspended above the casing while plaintiff was assisting defendant, Herman H. Fisher, to set said casing? A. Yes.
“3rd. Do you find that it was the usual custom established by the defendants to hoist the tools above the casing and hold(them there while ripping or cutting off the casing at the top of the well? A. Yes.
“4th. Do you find it Was the customary and usual method in the oil field to suspend the tools above while cutting the casing beneath the same? A. Yes.
“5th. Do you find that the plaintiff was perfectly familiar with the operation of a Lidecker drilling machine at the time of his injury? A. No.
“6th. Do you find that the injuries plaintiff sustained were the result of an unavoidable accident? A. No.
“7th. If you answer Question No. 6 in the negative then do you find from the evidence that the plaintiff knew the brake was so tightened down by the chain that if the chain was struck suddenly the machinery would be released and the tools fall? A. Yes.
“8th. If you answer Question No. 6 in the negative state whether plaintiff without direction of the defendants tightened down the chain attached to the brake. A. Yes.”
The defendants moved for judgment in their favor on the answers to the special questions. That motion was denied, and judgment was rendered for the plaintiff on the verdict. There was no motion for a new trial. All questions concerning the evidence or instructions are therefore eliminated. No question concerning the pleadings is argued. Nothing remains for discussion except the order denying the motion for judgment on the special findings of the jury.
The rule is—
“Where the general verdict of a jury and their special findings of fact can be harmonized and made to agree by taking into consideration the entire record of the case, and construing the same liberally for that purpose, it is the duty of the court to so harmonize them.” (Bevins v. Smith, 42 Kan. 250, syl. ¶ 1, 21 Pac. 1064. See, also, Osburn v. Railway Co., 75 Kan. 746, 90 Pac. 289; Lewellen v. Gas Co., 85 Kan. 117, 116 Pac. 221; McClain v. Railway Co., 89 Kan. 24, 28, 130 Pac. 646; Tarin v. Railway Co., 98 Kan. 605, 608, 158 Pac. 874; Burzio v. Railway Co., 102 Kan. 287, 292, 171 Pac. 351.)
In Osburn v. Railway Co., 75 Kan. 746, syl., 90 Pac. 289, it was said:
“It is error for a court to set aside a general verdict and enter judgment on the special findings, unless the special findings compel such action. Where it is possible to harmonize the special findings with the general verdict the latter is controlling.” (See, also, Young v. Railway Co., 82 Kan. 332, 337, 108 Pac. 99; Wurtenberger v. Railway Co., 68 Kan. 642, 75 Pac. 1049; Railroad Co. v. Morris, 76 Kan. 836, 93 Pac. 153; Barnett v. Cement Co., 91 Kan. 719 725, 139 Pac. 484; Whetzell v. Railway Co., 105 Kan. 289, 182 Pac. 409.)
From Emporia v. Kowalski, 66 Kan. 64, 71 Pac. 232; Plaster Co. v. Reedy, 74 Kan. 57, 85 Pac. 824; Railway Co. v. Green, 75 Kan. 504, 89 Pac. 1042; Railway Co. v. Loosley, 76 Kan. 103, 113, 90 Pac. 990; and Barnett v. Cement Co., 91 Kan. 719, 725, 139 Pac. 484, this rule may be deduced: That a servant does not assume the risk of injury from the master’s negligence unknown to the servant. In the present case, the injury was sustained at the time the negligent act occurred.
The jury specifically found that the plaintiff was not guilty of any negligence which contributed to his injury. The answers to the questions did not show that the plaintiff assumed the risk of injury to him and were not inconsistent with the general verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In an action to recover damages caused by an alleged defect in a public highway a demurrer was sustained to plaintiff’s evidence, and she brings the case here for review.
A similar action was first brought by plaintiff against Einney county; a demurrer to the evidence was sustained, and on appeal the judgment was affirmed. (Irvin v. Finney County, 106 Kan. 171, 186 Pac. 976.) This action was then brought, the petition alleging that “township road No. 136,” where the accident is said to have occurred, is a legally established public road running through Garden City township, Finney County, and that" the highway commissioners of the township were charged with maintaining the road at all times.
On the trial the plaintiff relied upon chapter 264, Laws of 1917, which established the state highway commission and required “the county engineers and boards of county commissioners to classify and designate the roads in their respective counties, according to their relative importance, as ‘county roads’ and ‘township roads’”; and made it the duty of the county engineer “as soon as the county roads are so designated” to mark them upon some map which shows the public roads, the map to be filed with the board of county commissioners for correction and approval. The act also required the board of county commissioners to establish and approve a county-road system,’and provided that if any county failed to make the designation of county roads and to forward a map of the same to the state highway commission within éight months after the act took effect, the state highway commission, upon the recommendation of the state highway engineer, should have the power to make the proper designation. There was a further provision that all highways not included in the county system provided for by the act “shall become and be township roads and shall be so designated upon the road records of the county.”
The court sustained the demurrer in the present case because no evidence was offered of any kind for the purpose of showing that the road in question was a township road. Presumably the records were in the courthouse, but plaintiff relied upon the assumption that because in the former case against the county she had failed to establish the fact that the road was a county road, it must necessarily be a township road. All that was decided in the former case was that the plaintiff could not recover because of the failure to show that the road where the accident occurred was a county road. She is in a similar situation in this case because she failed to offer any evidence to show that the road was a township road. The same attorneys who appeared for the county in the former case appeared for the township in the present case, and on the trial' plaintiff’s attorney said:
“We didn’t get down here in time to look up the records today, but we supposed you wouldn’t raise that question today because you stated at one time that it wasn’t a county road.
“By the defendant’s attorney:
“No, we never said it wasn’t a county road.”
Of course the township cannot be estopped by anything that occurred in the trial of the action against the county.
The judgment is affirmed. | [
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The opinion of the court was delivered, by
Marshall, J.:
The plaintiff commenced this action to recover damages from W. T. Mclntire for the conversion of sheep pelts. Judgment was rendered in favor of the plaintiff for $371.77 and interest amounting in all to the sum of $435.17. The executor appeals.
The petition alleged that the plaintiff was the owner of a number of sheep pelts of the value of $1,000; that they were sold and disposed of by W. T. Mclntire and converted to his use; and that the plaintiff was damaged in the sum of $1,000. The answer alleged that the matter in dispute had been adjudicated in the district court of Franklin eounty in an action entitled, “McIntire Sheep & Goat Commission Co. vs. F. L. Covington, Layton McCandless and the State Bank of Rantoul,” brought for the recovery of the value of the pelts which had been sold to Layton McCandless, and that judgment had been rendered in that action in favor of the Mclntire Sheep & Goat Commission Company for $371.77. The petition in that action alleged that the Mclntire Sheep & Goat Commission Company was a corporation. The answer in the present action alleged that W. T. Mclntire was the Mclntire Sheep & Goat Commission Company; that he was the sole owner thereof; and that he was doing business under that name and style. On the motion of the plaintiff that portion of the answer of W. T. Mclntire which pleaded res judicata was stricken out. " Apparently, W. T. Mclntire died after this action was commenced, and Charles W. West was appointed his executor. The action then proceeded against the estate of W. T. Mclntire, deceased.
The principal contention of the appellant is that striking out that part of the answer of W. T. Mclntire which undertook to plead res judicata was error. He contends that the judgment in the former action was a bar to the plaintiff's recovery in the present action. Assuming that the allegations of the answer were true, the judgment is a bar unless Mclntire cannot be heard to say that he was the real plaintiff in the former action. He was not named as a plaintiff in that action. The corporation was named as plaintiff, and judgment was rendered in its favor. W. T. Mclntire was the real party interested in the subject matter of the litigation; he di rected the trial of the litigation; the judgment was for his benefit; and he received the money that was collected under it. He would have been bound by a judgment against the plaintiff in that action, and it follows that he can set up that judgment to prevent a recovery by the plaintiff against him in this action. Both actions concern one subject matter of litigation. It was error to strike out that part of the answer which pleaded res judicata.
Another matter is presented by the defendant. It has been examined. No error has been found in it. It is not necessary to discuss it.
The judgment is reversed, and the trial court is directed to deny the motion to strike out and to proceed with the cause. | [
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The opinion of the court was delivered by
Porter, J.:
The proceeding is brought under the writ of coram nobis, which is in the nature of a civil action.
The appellant, on the 23d of May, 1918, pleaded guilty in the district court of Sedgwick county to the murder of Clarence LeClerc, and was sentenced to imprisonment in the state penitentiary for life.
On May 18, the body of Clarence LeClerc, with three bullet holes in it, was found in an orchard a few miles from Wichita. The automobile which he had been driving was gone and the next day the appellant was found at Pratt in possession of the car, which had been repainted. The appellant was brought to Wichita, and on the 21st of May signed a confession, in substance as follows: He came to Wichita May 17, from Oklahoma on his way to his home at Ford, Kan.; he stayed in Wichita that night and the next morning went to the garage of the Herman Motor Car Company and asked if they had any used cars for sale; talked to a man who took him in an automobile and demonstrated it; finally began to talk about a Jackson “8” which was painted blue. The man said, “Get in and we will take a ride”; after driving around they came back to the garage and appellant said he could not buy such a car but might trade some oil stock on it, and the salesman said, “Get in and let us ride some more and we can talk about it.” When they reached the Thomas orchard, appellant pointed a revolver at LeClerc, told him to stop the1 car and to get out; held the gun on him all the time; when they got into the orchard appellant shot him three times, twice in the back and once in the head; before the shooting LeClerc told him if he wanted the car to take it and go with it but not to kill him. After killing LeClerc he got into the.car and drove back to Wichita, got gasoline, bought a quart of green paint and a brush, drove out into the country, painted the automobile, then drove west and later was arrested at Pratt. The confession was signed and sworn to before a notary public. After having been confined in the state penitentiary for three years he filed in the district court a motion for the writ of coram nobis, supported by an affidavit alleging that he made the confession and entered the plea of guilty by reason of beatings administered to him at the hands of officers and through fear of mob violence.
The issues raised by the writ was tried by a jury, resulting in a verdict against the appellant and in favor of the state. His motion for a new trial was overruled, and he has brought the case here for review, alleging errors in the admission of testimony and in the instruction? to the jury.
On the trial of this proceeding the appellant testified that after he had been placed in jail the chief of police asked him to confess. His Bertillon measurement was taken and he was photographed and then taken to the undertaker’s room where the body of LeClerc was. While viewing it the chief said, -“You are a brute, you are not human.” He was taken to the Thomas orchard with two carloads of officers; an officer swore at him and said, “You know you done this, and I ought to knock your brains out right here.” He was taken back to the city jail. On Monday night two men came in; they wanted a confession; they said to him, “You just as well confess to this, and save trouble.” He told them he had nothing to confess and they “cussed” him and said if he didn’t they would beat his brains out, and they struck him with a black jack and knocked him back on the bed. He testified: “Afterwards they came back and this big fellow, he says, ‘You have got to confess to this,’ and mashed me over the head and knocked me to the floor, put his heel on my neck; slipped down off my skull on my neck, mashed my face into the gravel, skinned my face up; also cut a place on each side of my neck with his heel and hit me in the sides when I hollered.” After they had kicked him to keep him from “hollering,” they picked him up and laid him on the bed, and told him if he would confess and come right down there they would see he got out in a few minutes; he thought they were telling the truth and that was the reason he made the confession; after' promising to sign a confession, he was not further molested. The next morning he was taken before the chief, who said to him, “Now I am going to give you all the chance in the world, but, you know you done this.” He further testified: “I told him that I didn’t know that I had done it; positive that I didn’t do it, but I said, T have got to confess, I guess, you people are going to kill me if I don’t.’ ”
His father-in-law testified that on the 23d day of May he came to Wichita with his daughter, wife of the appellant, and witness said to the chief of police, “You have not treated us people right in this case, you never let us know anything of this case.” He replied: “I even treated you better than right, if I had not got this confession out of Ray, he would have been killed. There was a mob.” When witness saw the appellant he could hardly recognize him; his face was swollen; he could not talk; there was a blow on his head, a cut place; the back of his head was swollen. The witness didn’t learn when the trial would be held. About one week later he learned that the appellant had been sentenced.
The wife and her brother testified that appellant’s eyes were swollen; that he had a dent on the right side of his head back of the ear, and that “he was almost beaten to death.” Appellant’s wife further testified that the chief of police told her she was lucky to have a husband alive, and that if they had not made him confess they would have sent him-home in a box; that a mob threatened to hang and kill him. She also said that the reason she did not employ a lawyer at that time was because the appellant feared to have her do that. ■
The judge of the district court testified that when the appellant was arraigned and asked what plea he wished to enter he said that he wanted to plead guilty. The judge asked him if he desired an attorney and he replied something to this effect, “What is the use of having an attorney?” Mr. Foulston, who was city attorney at the time, testified that he dictated the statement as made to him by the appellant to a stenographer who transcribed it on the typewriter.
The chief of police denied that he had ever said to Mrs. Ray or the defendant that a mob was being formed, or that Ray had better plead guilty; that he did not threaten the family of the defendant, and did not inflict any punishment on the defendant, and had no knowledge of its being done.
One of the police officers in charge of the jail testified that on Sunday afternoon the officers were attracted to the jail below by noise and pounding; that he went down to find out what it was and found Ray beating his head against his bed and against the bars of his cell.
The appellant on his cross-examination was asked if it was not .true that when the chief of police first inquired about the killing he told the chief he didn’t know anything about it. His answer was, “Yes.”
“Q. You did know about it didn’t you? A. No.”
His attention was then directed to his affidavit in.this case and the following questions were asked:
“Q. You did know about it, didn’t you? A. I did.
“Q. And you told him you didn’t know anything about it? A. I told him I didn’t.”
The following portion of his affidavit was then read to him:
“On the 17th day of May, 1918, I came from Arkansas City to Wichita, Kansas, on the train, coming into Wichita I met a man who I afterwards learned was R. C. Miller. The next morning I went to a garage where secondhand automobiles were kept for sale and was taken out in a Jackson car by a salesman named C. LeClerc. As we were driving away from the garage this man Miller stepped up and got in and rode; we drove across the river over to the Hoover orchard where Miller told LeClerc to get out of the car and they walked back a few feet in the orchard where Miller shot LeClerc. I started to drive away, but Miller stopped me and said T don’t want to hurt you; I will give you a chance to make some money. I have wanted this fellow for some time and if you'do not do as I bid you, I will do the same for you.’
“Q. Was that true? A. Yes, sir.”
The main contention is that the court permitted the original charge of murder to be investigated and tried out before the jury to the prejudice of the appellant. On the other hand the state contends that only so much of the facts were investigated as tended to show that the appellant had told different stories under oath concerning his knowledge of the crime and his participation in it. In his affidavit in this case he had sworn that he had seen a man named Miller shoot LeClerc. The affidavit was part of the application for the writ, and it was competent to introduce it in evidence and to cross-examine the appellant for the purpose of showing his inconsistent statements.
The testimony of the district judge before whom appellant entered his plea of guilty was competent, as was that of the city attorney who dictated to the stenographer the confession from statements made by the appellant. The testimony of any person who was present at the time the confession was prepared and signed, or when the plea was entered, was competent to negative the statements in appellant’s affidavit. The same thing is true of the testimony of the officers who arrested appellant at Pratt. The appellant states in his affidavit that he took the car from Wichita and drove to Pratt under compulsion of another man, who, he says, committed the murder. It was proper to show that when he was arrested he stated that he bought the car at another place and had not been in Wichita for several months.
Complaint is made because the state was permitted to show the regularity of the proceedings in the district court at the time Ray was sentenced, and it is insisted that an issue was thus raised which should have been left to the jury because it was a question of fact There was no claim in the affidavit for the writ that anything occurred in the court room at the time the plea of guilty was entered which was irregular.
We find nothing substantial in the objections to the testimony of LeClerc’s employer and of other witnesses who told of the number of persons they saw in the car when LeClerc drove away with it, or when near the Thomas orchard. In any event none of this testimony can be said to have been prejudicial. The court carefully protected appellant’s rights and instructed that evidence regarding the question of his guilt or innocence had been permitted only in so far as it related to the issues in this proceeding, and could not be considered by the jury for any other purpose, and that the only purpose of the writ was to restore to appellant his rights which existed prior to the plea of guilty, and that in the event this relief should be granted him he would then be placed on trial upon the charge of murder. The instructions, after stating what the record of the court show, properly charged that if the jury found from the evidence that the plea of guilty was freely and voluntarily made because of the fact of appellant’s guilt, and not because of undue influence, duress, assaults or threats, then the proceeding before the district court on May 23, 1918, was correct and orderly, and the defendant was not deprived of any of his rights by the court.
It is complained that it was error to instruct that upon appellant’s announcement of his desire to plead guilty, the district court was not compelled to cause a trial to be had, nor was it necessary that counsel be appointed to defend him. This was no more than an instruction that on the face of the record the proceedings were regular, and the court properly instructed that the burden of proof rested upon the appellant to establish that his confession and plea of guilty had been obtained by threats of bodily harm and under duress as charged in his affidavit.
Complaint is made of the following part of instruction No. 1:
“It is needless to say that the judgment of a court cannot be lightly set aside and that until they are lawfully set aside they are in full force and effect and binding upon all parties thereto. No appeal was taken by the defendant from the judgment of said court and the defendant is bound by said judgment of „said court and must abide thereby unless under the proceedings had in this action which is now on trial it be determined by the jury that said plea of guilty was entered under such circumstances as to cause the same to be null and void and of no force and effect as further explained.in these instructions. In other words, the state relies to a certain extent upon the judg ment of this court and the burden of setting aside said judgment and holding the same for naught, in this proceeding, is upon the said Oral Ray.”
This is a civil proceeding and we think the instruction correctly states the law.
We discover nothing in instruction No. 4 which contradicts instruction No. 3 or which would, in our opinion, tend to confuse the jury as to the real issues.
The instructions charged that the appellant was a competent witness, and the jury must consider his testimony, but that they could take into consideration, as affecting his credibility, his interest in the result of the proceeding. In view of the character of the proceeding we do not think it can be said that this was prejudicial, although it did direct particular attention to the testimony of the appellant.
Finding no error in the proceedings, the judgment is affirmed. | [
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The opinion of the -court was delivered by
Johnston, C. J.:
This was an action by Barbara Nathoo to cancel and set aside a deed which she had signed purporting to convey a tract of land which she had occupied as her homestead. The case was determined on a demurrer of Olive E. Jones to plaintiff’s petition, and it being sustained, plaintiff appeals.
In substance, the plaintiff alleges that a divorce action was pending between her husband and herself, and that he and Olive E. Jones, a proposed purchaser of. the home property, comprising eleven and two-thirds acres, entered into a conspiracy to defraud the plaintiff by the following means: They represented to plaintiff that Olive E. Jones had agreed to buy the property for $11,000, which consideration included a $2,300 mortgage that was to be assumed by the purchaser; that $5,000 was to be paid in cash to plaintiff, and that certain attorneys’ fees and costs of the divorce proceeding should be paid. They prepared a typewritten contract of these negotiations and presented it to plaintiff to read, and when it was read she agreed to sign it. After plaintiff had verbally consented to sign the contract, her husband, acting for himself and Mrs. Jones, telephoned to a notary public to come and take the acknowledgments of those signing the contract. When the officer appeared, her husband sat down and appended his signature to what the plaintiff believed was the contract she had read and agreed to sign, and then procured her to attach her signature, to the instrument. She signed it believing it was the typewritten contract which she had previously examined, but it turned out to be a deed which her husband and Mrs. Jones had fraudulently arranged to switch and substitute for the -contract she had read and which she was led to believe she was signing. Immediately after the instrument was signed, her husband delivered it to Mrs. Jones, who caused it to be recorded. Plaintiff did not, she alleges, receive any consideration for the signing of the deed, and Olive E. Jones never paid any consideration for the deed or for the purchase of the property. It was further alleged that Mrs. Jones did not for a long time claim ownership of the property, but represented to divers persons that the'deed was not intended to represent a purchase of the property, but as the plaintiff and her husband were having trouble between themselves, she was holding the deed to enable her to collect money which she had loaned to plaintiff’s husband a long time before the signing of the instrument. It was also alleged that the plaintiff remained in possession of the property and did not learn of the fraud perpetrated upon her until a few days before the action was begun, when she ascertained that Mrs. Jones claimed to own and was attempting to sell the property to innocent purchasers. The plaintiff’s husband, and the husband of Mrs. Jones were named as defendants in the action. Mrs. Jones alone demurred to the petition, and on her demurrer it was held that a cause of action was not stated against her.
The defendant claims that the petition contains only a general averment of fraud without stating the facts upon which the fraud is based, and it is therefore insufficient. Plaintiff states' quite plainly and definitely that the fraud had been accomplished by the shifting and substitution of a deed for the instrument which embodied the terms of the agreements between the parties, and that the defendants had induced her to believe that she was signing the instrument she had read and agreed to sign when she attached her name to the other. It was further alleged that Mrs. Jones conspired and participated with plaintiffs husband in the deception. There is no dearth of averment as to the means by which the fraud was accomplished.
Defendant also invokes the rule that one who can read and voluntarily signs an instrument affecting rights without reading it, should not be permitted to deny its binding force. The rule has no application where the execution of a contract is obtained by fraud, as where a party is tricked into signing .an instrument he did not know he was signing, and did not intend to sign. (Deming v. Wallace, 73 Kan. 291, 85 Pac. 139.) If the defendant purposely switched the instruments or caused it to be done, as alleged in the plaintiffs petition, a flagrant fraud was committed, one shocking to equity and good conscience, and the. fact that if plaintiff had been less credulous and confiding she might have read the instrument and detected the fraud does not preclude her from contesting the validity of the contract she was fraudulently induced to sign. (Shook v. Manufacturing Co., 75 Kan. 301, 89 Pac. 653; Jewelry Co. v. Bennett, 75 Kan. 743, 90 Pac. 246; Disney v. Jewelry Co., 76 Kan. 145, 90 Pac. 782; Tanton v. Martin, 80 Kan. 22, 101 Pac. 461; Byers v. Daugherty et al., 40 Ind. 198; Givan v. Masterson, 152 Ind. 127; Burroughs v. Pacific Guano Co., 81 Ala. 255.)
We see nothing substantial in the contention that plaintiff cannot maintain her equitable action to set aside the fraudulent instrument because she has an adequate remedy at law. The case is peculiarly one for the interposition of a court of equity.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Ira H. Clark against V. E. West and S. R. Jaynes, and L. L. Locker', to recover $1,000 which had been advanced as a payment on a contract for a sale of land which was not consummated on account of the alleged failure of the defendants to comply with the terms of the contract and because of fraudulent representations as to the ownership of the land sold. On a trial the jury rendered a general verdict in favor of the plaintiff, together with some special findings, and the defendants, West and Jaynes, appeal.from the judgment that was rendered.
The first question presented arises upon a motion to quash the service of summons made upon the defendants, West and Jaynes. The action was brought in Barton county, where service was made upon their codefendant, L. L. Locker, while they were residents of Reno county and were personally served in that county. In their motion they alleged that Locker was not made a defendant in good faith, but was merely included in the action to secure jurisdiction of West and Jaynes in Barton county. The motion was overruled, and on this ruling error is predicated.
In the petition plaintiff alleged that the sale of the land was-negotiated by the three defendants cooperating together, that they fraudulently represented that the land was owned by one Ruby who was able to make a conveyance of the land to plaintiff, and that, relying on their representations plaintiff entered into a contract for the purchase of the land and advanced $1,000 on the contract, agreeing to make other payments to be held in escrow in a bank. The deed by the grantor was to be placed in the bank within sixty days from the date of the contract, and when certain payments were-made the deed was to be delivered, and plaintiff was to give a, mortgage to secure payment of the balance of the purchase money. It was alleged that Ruby was not the owner of the land sold, had no interest in it, that he was used by the defendants as a straw man to wrong and cheat the defendant out of his-money, and that the de~ fendants, including Locker, conspired together to wrong and defraud the plaintiff in the transaction, and that the money sought to be recovered was thereby secured. Upon the face of the pleading Locker was equally implicated with the makers of the motion in the alleged fraud. In the absence of a showing of the lack of good faith in making him a party, the court could look alone to the allegations of the petition. Nothing in the pleading tended to show bad faith or that he was made a party in order to acquire jurisdiction of the moving defendants in Barton county. As the matter was presented to the court there was no error in overruling the motion to quash the service upon these parties.
These defendants sought to raise the question on a demurrer to the petition, and later in their answer they restated the grounds of their motion which had been overruled, and alleged that for the reasons mentioned the court was without jurisdiction to try the case. Coupled with these averments the defendants in a cross petition alleged the making of the contract, that when it was made Ruby had a contract for the purchase of the land, and that while that contract was made in his name, West and Jaynes were jointly interested with Ruby in the purchase, and that afterwards they acquired Ruby’s interest in the land. They further averred that a deed, together with an abstract showing good title, was placed in the bank within the time stipulated in the contract, and that plaintiff, without sufficient reason, refused to a'ccept the deed or to carry out the contract. They further alleged that plaintiff breached his contract and by reason thereof the defendants were compelled to sell the land which plaintiff had agreed to buy at a price of $17,600 for the sum of $14,000. They allege that they had to pay Locker a commission of $332.50 and that by the alleged default of plaintiff they had been damaged in the sum of $2,452 and, deducting the $1,000 paid to them by plaintiff, there was a balance due them from him of $1,452, for which they asked judgment. In moving to quash the service of the summons the appealing defendants made only a special appearance, challenging the jurisdiction of the court, and as already shown nothing was then brought to the attention of the court indicating bad faith of plaintiff or that Locker was not a proper party. In this state of the case no error was committed in denying the motion to quash or in overruling defendant’s demurrer to the petition.
While they renewed the claim of no jurisdiction in their answer and cross petition, they set up in the same pleading a cause of action against plaintiff and asked for a judgment against him for a sum greatly in excess of plaintiff’s demand. When they became the actors and invoked the jurisdiction of the court to grant them affirmative relief, they in effect entered a general appearance and submitted themselves fully to the jurisdiction of the court. In Thompson v. Greer, 62 Kan. 522, 64 Pac. 48, a similar question was presented, and it was there held:
“The defendant below, however, was not content to place himself in a position of merely resisting a recovery by the plaintiff of the amount for which he sued, but on the other hand sought to establish against the plaintiff below an affirmative judgment amounting to $3,650 more than the plaintiff Greer claimed that Thompson owed him for feeding the cattle under the contract. As to this $3,650 the defendant below went into the forum where the plaintiff had commenced his action and by filing his cross petition invoked the action of the court in his own behalf. He was not satisfied with protecting himself with a shield, but attacked his adversary with a sword. His claim for relief placed him in the same position as if he had brought an independent action against Greer for the $3,650, making a voluntary choice of the tribunal in which he desired to establish his claim.” (p. 524.)
In the later case of Woodhouse v. Land & Cattle Co., 91 Kan. 823, 139 Pac. 356, a special appearance was made to contest the jurisdiction of the court upon the ground that the service made upon the defendant was void. At the conclusion of the trial judgment was rendered for the plaintiff, and then the defendant interposed and procured a stay of execution until a later date. The question was whether the defendant could thereafter contest the validity of the judgment rendered on the ground of want of jurisdiction. It was said:
“The defendant abandoned its attitude of protest and appealed to the general jurisdiction of the court for an affirmative order beneficial to itself. This constituted a genei’al appearance and rendered the character of the original service immaterial.” (p. 824.)
(See, also, Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385; Frazier v. Douglass, 57 Kan. 809, 48 Pac. 36; Investment Co. v. Cornell, 60 Kan. 282, 56 Pac. 475; Shearer v. Insurance Co., 106 Kan. 574, 189 Pac. 648.)
After the ineffectual objection to the jurisdiction by the defendants, if they had merely gone to trial on the merits and confined their defense to a resistance of plaintiff’s claim, they would not have waived their objection or conferred jurisdiction, but when they invoked the jurisdiction of the court and asked it to adjudicate their cause of action against the plaintiff, they thereafter waived their right to object to the jurisdiction which they had invoked.
There is a further claim that the evidence was insufficient upon which to base a recovery and that the defendants’ demurrer thereto should have been sustained. Plaintiff alleged two grounds for the recovery of the money which he had advanced on the contract, one the fraudulent representations which had been made, and the other the noncompliance of the defendants with the terms of the contract. Under the contract the deed was to be executed and placed in the bank within sixty days after June 13, 1919, the time the contract was made. That time expired on August 12, but this was not done. At that time Ruby had not acquired title to the land and had no right to convey the same. The title to the land was in another with whom the defendants were negotiating with a view of obtaining a title. They did procure a deed to the land the latter part of 'September, but the plaintiff had previously declared the contract at an end. On September 15 the plaintiff went to the bank and tendered compliance with the contract with an offér to make the specified payment, and he also made a demand for the deed, but none being on deposit there the plaintiff treated the contract as terminated and thereafter insisted on the return of the advanced payment. It was contended that plaintiff refused to complete the contract because growing wheat which was to go with the land turned -out to be a poor crop, and also because he had learned that defendants were making a large profit in acquiring the land from another and selling it to him. The jury, however, in answer to special interrogatories found that plaintiff did not refuse to carry out the contract- for either reason. It did find that plaintiff refused to take the deed when it was made because of noncompliance with the terms of the contract, and this appears to have been found on sufficient evidence. The matter of waiver by plaintiff of noncompliance by the defendants was a question of. fact which was properly submitted by the court to the jury, and it was settled in his favor by the verdict that was returned.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff prosecuted this action to recover a balance due him on the purchase price of oil and gas property and of casing sold to the defendant. Judgment was rendered in favor of the plaintiff, on each item, and the defendant appeals.
Special questions were answered by the jury as follows:
“1. Do you find that the plaintiff represented to the defendant that the two wells upon the leases in controversy were, on August 15,'1917, the date of the contract, making sixty-six barrels of oil per day as shown by the pipe line runs? A. No.
“2. Do you find that the oil from the two wells in controversy was being run into the pipe line during the month of August, 1917, and if so for what part of said month? A. No.
“3. Do you find' that there were in existence any pipe line runs showing what the two wells in controversy were making August 15, 1917? A. No.
“4. How much oil per day do you find that the two wells in controversy were producing on August 15, 1917, as shown by the pipe line runs? A. None.
“5. How much oil per day do you find that thq, two wells in controversy were capable of making or producing on August 15, 1917? A. No conclusion can be made from evidence.
“6. Were said two wells making or capable of making less oil on August 15, 1917, than sixty-six barrels of oil per day, and if so, how much less? A. No conclusion can be made from evidence.”
1. The defendant complains of the first finding of the jury. The written contract for the sale of the oil and gas property contained the following:
“It is represented by first party that the two wells now on said lease as shown by the pipe line runs, are making sixty-six barrels per day, and' he agrees to furnish statement from the pipe line company to accompany the other papers, showing said fact.”
The contract was dated August 15, 1917. The quoted provision of the contract was a representation. It was even more; it constituted a warranty on which the defendant could recover the damages sustained by reason of its failure unless prevented by binding admissions of the parties heretofore made.
The court instructed the jury—
“That it is admitted by the plaintiff herein, that the plaintiff represented to the defendant ‘that the two wells now on said lease as shown by the pipe line runs, were making sixty-six (66) barrels of oil per day’ and that plaintiff agreed to furnish statements from the pipe line company showing said fact.”
The jury found directly contrary to the statement contained in the contract and to the instruction of the court. That finding and the verdict based on it cannot stand.
2. Complaint is made of instructions. The defendant pleaded that it had been induced to enter into the contract for the purchase of the property by the fraud of the plaintiff; that the plaintiff represented to the defendant that the property purchased had two oil wells on it making sixty-six barrels of oil a day. The defendant further alleged that the two wells were not making sixty-six barrels of oil a day and that the wells were making less than half that .amount. The defendant alleged that it had sustained damages in the sum of $15,000 by reason of the fraud of the plaintiff in making the false representation. There was evidence to show that the two wells would not produce more than thirty barrels a day and even much less. The court gave the following instructions:
“6. You are instructed that the general rule is that to constitute actionable fraud it must appear that the party charged with fraud made a material representation and that it was false, that when he made it he knew that it was false, or made it recklessly without any knowledge of its truth and as a positive assertion, that he made it with the intention that it should be acted upon, that the party would act and rely upon it and that he suffered injury thereby, each and all of these facts must be proved with a reasonable degree of certainty and all of them must be found to be existing and the absence of any one of them is fatal to recovery on the part of the defendant in this action.”
“9a. You-are further instructed that fraud can only be predicated upon a dishonest motive, therefore if you should find from the evidence that the plaintiff did in fact represent that the wells were making 66 barrels per day and believed what he was stating was true from information that he then had. then such representation would in no event constitute fraud.”
“11. You are further instructed that it is a positive rule of law that an intent to deceive or, as colnmonly expressed, a ‘fraudulent intent’ is an essential element of every actionable fraud and before the defendant can recover in this action on the ground of fraud, you must be satisfied by a preponderance of the evidence that at the time the representations of the plaintiff were made, if any, they were made by him with the fraudulent intent to deceive the defendant.”
Other instructions were given in harmony with 9a and 11. The sixth instruction correctly stated the law of fraud. Instructions 9a and 11 were erroneous for the reason that they gave undue prominence to dishonest motive in making false representations. False representations, if they result in damage to the person to whom they are made, are injurious whether made through honest or dishonest motives, and the damage sustained can be recovered if the representations are made with the intention of inducing the injured person to part with his money or property. In Bank v. Hart, 82 Kan. 398, 108 Pac. 818, the following language was used:
“False representations are actionable when made fraudulently — that is, to induce another to part with his money or property — if believed and acted upon and made with knowledge of their falsity, or when made for such purpose by one who has no knowledge upon the subject but who intends to convey, and does convey, the impression that he does have actual knowledge that they are true, and thereby deceives the other to his injury.” (Syl. f 1.)
This language was quoted in Rucker v. Allendorph, 102 Kan. 771, 773, 172 Pac. 524. In Bice v. Nelson, 105 Kan. 23, 180 Pac. 206, 181 Pac. 558, it was held:
“In this state, false statements of fact, made by a seller to induce a sale and relied on by the buyer, are actionable, without regard to whether or not the seller knew the statements to be false, or acted recklessly in making them, or intended to deceive.” (Syl. U 4.)
The pleadings showed that a false representation was made. There was abundant evidence to show that the representation was not true. The instructions of the court were misleading.
For these reasons, the judgment is reversed, and a new trial is directed. | [
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The opinion of the court-was delivered by
Dawson, J.:
The plaintiff recovered damages for injuries to her hand which was caught in the door jamb of a railway car.
One day in July, 1920, the plaintiff was a passenger on defendant’s train between Offerle and Ellinwood, a distance of some 65 miles. The day was warm, and the windows were open, and the forward door of the car was open and swinging back and forth. Plaintiff sat on the north side of the car facing eastward and observed the swinging of the door for a considerable part of the journey. The door was hinged on the north side of the door casing. When the train stopped, she arose and in passing out she pushed the door, which was ajar, slightly further open and placed her left hand in the door jamb, and a gust of wind slammed the door shut and injured her fingers. She testified:
“I rode on one of the front seats in the passenger coach on the left side. I was sitting on the first seat. . . . The train reached Ellinwood after one o’clock. The windows of the coach in which I was riding were all open except the one window in the front seat. When we reached Ellinwood the conductor announced the station. . . . He [the brakeman] said to me that I should keep my place and wait until the train stopped, and he took my grips and went out of the door of the car onto the platform. . . . My seat was facing east toward the door that I went out. I had in my hand a little hand satchel. The door of the coach was swinging "on the hinges. The brakeman, when he went out, didn’t fasten this door to the side of the train. I went straight out of the door where the brakeman . . . had passed through. I didn’t notice where the brakeman was when I started to get off the train and smashed my fingers. . . . After I got through the door I was stepping down, and the door swung and the fingers were caught. As I started to go down the steps, my hand was on the door-casing. I placed it there to help myself in getting down. . . . While I was in the act of stepping off the car, the door slammed back and came clear shut and my fingers were caught there in the door. They were on the inside of the door.”
On cross-examination she testified:
“The door had bee"n standing that way all the time. It was standing there loose, swinging back and forth. I knew it was swinging back and forth. I am certain about that. It would swing nearly shut. I saw it swing nearly shut, all the time . . . while I was traveling along. I had to touch it to get through, so that there would be room to get through. At times it was swinging hard, would swing a good ways. It swung a good ways before I got there, and I noticed that.
“I was a pretty strong, healthy woman before that, could walk all right. I had traveled more or less on the cars, to Chicago, Kansas City, and all over, and was accustomed to traveling.”
The jury’s verdict was in favor of plaintiff, and special questions were answered:
“Q. 1. If you find from the evidence that the defendant was guilty of negligence, state fully in what such negligence consisted and who was guilty of such negligence. A. Brakeman did not fasten door back securely. . . .
“Q. 3. 'If you find from the evidence that the car door was unfastened, state then how long it had been unfastened. A. A considerable part of the way from Offerle to Ellinwood.
“Q. 4. If you find from the evidence that the car door was unfastened and swinging back and forth, did the plaintiff know such fact before she started to leave the car? A. Yes.
“Q. 5. Did the plaintiff, knowing that the car door was unfastened and swinging back and forth, while going to the platform partially open said car-door to get through? A. Yes.
“Q.' 6. Did the plaintiff, knowing that the car dopr was unfastened and swinging back and forth and after partially opening said door to get through, then place her hand on the door frame where it was liable to be injured by the swinging of said car door? A. Yes. . . .
“Q. 8. What caused the car door to slam shut? A. Suction of air through the car. . . . ” ■
Defendant’s motion for judgment on the special findings was overruled and judgment was entered for plaintiff.
Defendant’s principal contentions on appeal are that the evidence failed to show any negligence on the part of defendant, and that the evidence affirmatively showed that the plaintiff’s injuries were due to her own negligence.
The fact that the door had been loosely swinging most of the journey from Offerle to Ellinwood shows- that the door was not fastened, if that of itself .would be sufficient to subject the defendant to liability. But an obvious difficulty in this case lies in the fact that plaintiff knew the door was unfastened and had been swinging loosely for most of her journey — “all the time,” she says. Moreover she knew it was unfastened when she passed through it. And still further, notwithstanding the unfastened condition of the door she placed her fingers in the door casing, on the side where the door was hinged — a manifestly imprudent and dangerous thing for a mature person to do.
Car-door accidents, injuries and damage suits of this general nature have been of frequent occurrence. Not uncommonly they are determined to be merely accidents, damnum absque injuria. (Hardwick v. Georgia Railroad Co., 85 Ga. 507; Skinner v. Wilmington and Weldon Railroad Co., 128 N. C. 435; L’Hommedieu, Appellant, v. Del., L. & W. R. R. Co., 258 Pa. St. 115; 10 C. J. 965, 966, and citations.) Sometimes the jury’s finding of some trivial negligence founded on inference and not -on fact is set aside by the courts; frequently such finding has to be set aside for want of evidence; and sometimes the facts present a situation where the jury’s finding of the carrier’s negligence is based upon substantial evidence and must be upheld.
In Weinschenk v. New York, N. H. & H. R. R., 190 Mass. 250, a similar case, the court said it was at least difficult to say that the plaintiff was in the exercise of due care.
“She knew that the door was open. There was no evidence that it was fastened back, or that she believed it to be fastened back; and it is generally known that the catches of car doors are not intended to hold them securely against being shut, but only to guard against their being lightly or easily moved. This is all that she would have had a right to infer even if she had believed or known that the door was held by a catch.” (p. 251.)
In Merton v. Mich. Cent. R. Co., 150 Wis. 540, where the court sustained a ruling of the trial court setting aside the jury’s finding of negligence on the part of the railway company in failing to provide a door check to keep the door from slamming shut, the headnote reads:
“Where the door to the toilet room in a passenger car was constructed and operated as such doors usually are, and there was nothing obviously dangerous in such construction or operation, failure to provide a door check to prevent it from closing suddenly was not such negligence on the part of the railroad company as renders it liable for an injury to a passenger who, as he was about to close the door, lost his balance by reason of a sudden swaying of the car, thrust his hand against the jamb of the door to save himself from falling, and was injured by the sudden closing of the door upon his thumb, caused by the same swaying of the car.” (Syl.) .•
Plaintiff relies on the cases of Colletto v. Hudson & Manhattan R. R. Co., 90 N. J. L. 315; Kellogg v. Boston & Maine Railroad, 210 Mass. 324, and Silva v. Boston & Maine Railroad, 204 Mass. 63, 90 N. E. 547. In the Colletto case, the car was so crowded that the plaintiff could not get a seat, and was standing near the door. While the car was turning a curve, plaintiff put his hand on the door jamb to keep from falling, and his'hand was caught and injured. The door slid in a groove and when pushed far enough back the door would catch. The court said:
“We think the case was open to a finding that the negligence of the defendant was in failing to throw the door far enough open so that the lock would hold it in place, and that with knowledge to be imputed to it that the door would not stay in place during ordinary operation unless it was properly held by the latch; the duty arose to so fasten the door as to prevent its movement during ordinary operation of the car.” (p. 316.)
But in the same opinion the court added:
“The appellant cited two cases which we think not inapplicable, viz., Hannon v. Boston Railroad Co., 65 N. E. Rep. 809, where the passenger was inside of the car as it drew up to the platform and put his hand on the glass of the door so that when it was opened by the guard standing on the station platform, the plaintiff’s hand was caught, and in Cashman v. New York; New Haven and Hartford Railroad Co., 87 Id. 570, where the plaintiff’s hand was pushed between the door and the jamb of an elevator as the guard was closing. In both of these cases the act of the plaintiff in putting his hand in a dangerous place was the proximate cause of the accident, while, in the present case, the negligence of the defendant was in not properly fastening the door which he knew was required to be held in place when the train was moving around a curve.” (p. 316.)
In the Kellogg case, it was held that the plaintiff—
“Had the right to assume that reasonable precautions had been taken to enable him to leave the car in safety, that the jury, in the light of their common experience and knowledge, could have found that unless the catch was in some way defective it would have worked properly, and that, if the defendant stopped the car for the discharge of passengers where there was such an inclination of the tracks that a due regard for the safety of passengers required that some additional precaution should be taken to prevent the unexpected closing of the doors after they had been opened and caught back, it was a question of fact whether the accident would have happened if this duty had been performed properly; so that the case was one for the jury.” (p. 325.) •
In the Silva case the facts and decision are summarized in sections 1 and 2 of the syllabus of 90 N. E. 547:
“1. Plaintiff, a passenger, waited sufficient time before starting to leave the car after the train had stopped and the car door had been opened by the brakeman, and had been caught so as to hold it open by a device provided for that purpose; plaintiff having heard it catch when it was opened. In leaving the car, plaintiff rested her hand upon the door jamb, when the door came shut without an apparent cause, injuring her hand. Held, that the question of plaintiff’s due care in placing her hand on the door jamb, whereby it .was caught by the closing door, was for the jury.
“2. Whether the company was negligent because of a defect in the door or door catch, or because the brakeman neglected to push the door firmly against the catch, was for the jury.”
The case of Christensen v. Railroad, 35 Utah, 137, was practically identical with the one at bar, except .that the injured passenger was a child of 13 years. While riding on the car she noticed the swinging door. She testified:
“ ‘I put my left hand on the door frame, and the door came shut on it. I was going out of the car. Father went out of the car ahead of me, and was out on the platform. The car had stopped before I got up to go out. I came out and was outside on the platform of the car. I just came out and then put my hand on the door frame. I was on the platform outside. I don’t know what I put my hand on the door frame for. I can’t describe just what I was doing, and how I happened to put my hand on the door frame. I was going out and then I just put my hand on the door frame, and then the door slammed shut on it.’ On cross examination she said: ‘I noticed the door was slamming when I was sitting in the ear, and that was before I got up to go out: It was just about soon after I got on the train that I noticed the door. . . . That was soon after I got on the train at Ogden, and it continued to slam backwards and forwards.’ ” (p. 140.)
The court’s discussion and review of other car-door cases is instructive, but we can only take space to quote part of the syllabus:
“That while a train was standing still, and after a passenger had passed through a car door to alight, and while her hand was resting on the door jamb, the door closed, injuring her hand, does not show prima jade negligence of the carrier; it not appearing that the door had been placed back so as to come in contact with the catch and that the catch was defective.” (Syl. ¶ 5.)
The only negligence of the defendant as found by the jury was the brakeman’s failure to fasten the door back securely. That hardly amounted to the gravity of negligence at all; but if it be so held, it was an act of negligence of which the plaintiff was well aware, and knowing that the car door was swinging freely and unfastened it was her duty to use reasonable prudence on her own behalf to avoid being injured by this negligence of the defendant. In the sense that the defendant was negligent, plaintiff was likewise negligent; and if defendant is held by such subtle strictness to the consequences of negligence, the plaintiff with much less subtlety must likewise be held guilty of contributory negligence. But we prefer to hold that under the facts testified to by plaintiff and as shown by all the findings made by the jury except No. 1 the plaintiff’s injury was caused by an accident merely, and the defendant, not being an insurer of passengers, was not liable therefor.
As to finding No. 1, there was no evidence that the car door had been negligently or insecurely fastened. Plaintiff’s evidence was that it was not fastened at all, and that she knew it was not fastened. The brakeman’s evidence was—
“I didn’t pay any particular attention to the position of the door as I went in and out. There was nothing special to call it to my attention. The door was open as I went out. I don’t know whether it was fastened back, or loose.”
There' could be no negligent or insecure fastening when there was no fastening of any sort. It is therefore obvious that the jury’s special finding of negligence, having no support in the evidence, must be set aside.
The judgment is reversed, and the cause remanded with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Brewer, J.:
The record presents several questions for our consideration. The sale to Elizabeth E. Weaver was made March 30th, 1863, for $200. Within one year, and on the 29th of March, 1864, plaintiff paid to the sheriff who made the sale, and who was still sheriff, for the redemption of said property, $220, the amount for which the property was sold, and ten per cent, interest. The sheriff on the same day tendered the amount to the purchaser, which was refused. A tender of the money is, by the terms of the law, made equivalent to payment. Also payment might be made to the purchaser or for him to the officer making the sale: (§ 5, ch. 171, Comp. L., p. 771.) The redemption might be made by the judg- ■ ment-debtor or his successor in interest; (§2, same chapter.) Here the party seeking redemption claimed title by virtue of a deed from Noble Carithers, the judgment-debtor, made intermediate'the date of the. judgment and the day of the sale. He was therefore the “ successor in interest of the judgment-debtor,” and entitled to redeem. Having performed all that, the law required for the redemption of the property, all interest therein which the purchaser acquired by the sale ceased. This seems to have been conceded on the trial below, (except so far as it is affected by the question presented in the fourth instruction given at the instance of defendants, of which hereafter,) and is referred to, only for the sake of preparing the way to the question we shall now consider. There was some testimony offered upon the trial for the purpose of showing that the deed from Noble Carithers to plaintiff was without consideration, and made for the purpose of defrauding the wife of the grantor. Plaintiff asked the court to instruct the jury, that, “If Mrs. Weaver’s claim has been satisfied by a tender of the purchase money and interest, she has no legal right to complain of plaintiff’s deed from Noble Carithers for want of consideration or good faith,” which instruction was refused by the court, and the refusal excepted to. The court also on application of defendants, gave the following instruction: “5th:-If the jury believe from the evidence that the deed from Noble Carithers to plaintiff was made without consideration for the purpose of defrauding Nancy Carithers, the wife of said Noble Carithers, then such conveyance was void and conveyed no title to plaintiff,” to the giving of which instruction plaintiff excepted.
Was there error in this? Who can question the validity of a deed alleged to have been executed without consideration and with a fraudulent intent ? That fraud m a deed maybe shown, and, being shown, that it avoids the deed, is not a rule of universal application. Where both parties to the deed are privy to the fraud, the law leaves them, where it finds them, and neither party can secure its aid to change'the interests and relations created thereby. Where the grantor alone acts with a fraudulent intent, he is estopped thereafter from setting up such fraud in avoidance of the deed; nor can one claiming under him by descent, or deed subsequent thereto, avoid such conveyance on account of the fraud; he has no greater rights than his ancestor or grantor; 10 Conn., 69; 17 Conn., 492; 15 Mich., 94; 18 Mich; 196; 7 Blackfi, 66. Of course, one who is without interest or equity in the conveyance, or the property conveyed, a mere stranger, cannot be heard to say there is fraud in the conveyance. In the plain and homely language of the day, “ it is none of his business.” Who then may question the validity of a deed alleged to have been executed with a fraudulent intent ? Plainly, he who is injured by the fraud; he who has superior equities in the property conveyed. A deed, fraudulent as against creditors may be set aside by those creditors. Apply these principles to this case: The only interest defendant Elizabeth E. Weaver ever had in the property, as appears from the record, was that acquired by the sale on execution of March 30th, 1863. But that interest, as we have seen, was wholly destroyed by the redemption of March 29th, 1864. Thenceforth she had no interest in the property, no equities to enforce, was in fact a mere stranger. She therefore .was in no position to question the validity of plaintiff’s conveyance. The interest which the other defendant had in the premises was created by a tax deed, resulting from the non-payment of the taxes for the year 1862. Plaintiff’s deed was executed Sept. 29th, 1862. The lien for taxes attached November 1st, 1862. The sale for. non-payment was on May 12th, 1863, and Johnson county was the purchaser. November 7th, 1863, the certificate of sale was assigned to defendant John T. Weaver; May 19th, 1865, the tax deed was executed. Now, whatever may have been the consideration or intention of the deed to plaintiff, it in nowise affected the title which was developing through the tax proceeding. That title was developing in antagonism to the title by deed. No matter who held that earlier title, no matter through how many parties it passed, no matter what the consideration or purpose of the varied conveyances, the title by the tax proceedings moved steadily on to its completion. In short, he who is building up a tax title cannot be hindered by any conveyances on the part of those holding the earlier title, made with or without consideration, with or without fraudulent intent. More than that, the conveyance to plaintiff was long prior to the time •defendant acquired any interest by virtue of the tax proceedings, prior indeed to the time when the lien for taxes attached. Surely, one claiming under a tax title accruing long subsequent to a conveyance has no such superior ■equities that he can question the consideration or good faith thereof. But it may be said that for this error the judgment ought not to be reversed, because from the record it appears that defendant John T. Weaver holds possession under a tax title, which by virtue of the statute ■of limitations has passed beyond question, and that there" fore both verdict and judgment were as matter of law right. We cannot say upon what instruction or refusal io instruct the case hinged in the minds of the jury; perhaps upon those wherein we have just indicated the error.
But another question is presented in reference to the tax deed. It was claimed by the plaintiff’, and testimony was offered by him for the purpose of showing, that defendant John T. Weaver entered into possession of these premises as his tenant, and that the terms of the lease were that said defendant should keep the property in repair and pay the taxes; and that while this lease was continuing the taxes became due and payable, from a failure to pay which the defendant’s tax deed arose. There was contrary testimony ; but by all the evidence a question of fact was presented for the jury to decide. Suppose the jury were to find that the facts were as claimed by plaintiff', how would they affect the tax title set up by defendant? Being a tenant in possession, under contract to pay the taxes as par,t rent, he was an agent to pay taxes with funds provided therefor. Appropriating those funds in breach of that trust, he claims thereby to have divested the real owner of his property. Neglecting the duty which by contract he had assumed, he grounds his title on his own misconduct- Not content with, defrauding the owner out of that portion of the rent he promised to pay in such manner, he claims by that very fraud to have wrested from him the entire property rented. As agent, with funds of his principal to. protect that principal’s title, he uses those funds to purchase a title for himself. Will such a transaction stand? That it is fraudulent as against the principal and owner, is clear. That such principal and owner can take advantage of the fraud, is evident from the principles heretofore stated; and that such a fraud will vitiate and avoid the title seems equally clear. Chief Justice Wagner, in Grumley v. Webb, 44 Mo., 451, says: “ Nothing is better settled than that an agent or a trustee or any person acting in a fiduciary capacity, cannot speculate for his private gain with the subject-matter committed to his care, to the prejudice of his principal. He cannot be allowed to purchase an interest in property where he has a duty to perform which is inconsistent with the character of purchaser.” Chief Justice Sanderson, in Moss v. Shear, 25 Cal., 45, uses this language: “If the defendant was under any legal or moral obligation to pay the taxes, he could not, by neglecting to pay the same, and allowing the land to be sold in consequence of such neglect, add to pr strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased at the sale. Otherwise he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes. This the law does not permit, either directly or indirectly.” In Blackwell on Tax Titles, page 400, appear these words: “ One in possession of a tract of land at the date of the assessment, may purchase at the sale, unless it appears that he was bound to pay the taxes; in which case he can acquire no title by his purchase.” Also, on page 396; “Also, where an agent intrusted with funds to pay the taxes, violated his trust, and, by a similar arrangement with the purchaser, permitting a sale. These and positive frauds of similar character, of course render the sale void.” And on page 401 : “ Nor can an agent whose duty it is to pay the taxes, become the purchaser of his principal’s land at such a sale.” See also' sustaining these views: 32111., 50; 22 N. Y., 343; 3-Sumner, 476; 36 Cal., 135 ; 14 Wis., 247; 22 Wis., 175 ; 5 B. Monroe, 458; 32 Maine, 305. The fact that a tax deed thus acquired may be regular on its face, or that all the requirements of the statute have been strictly complied with, avails nothings The objection goes not to the proceedings, but to the power of the party to take the title. It is not a defect of form, but a disqualification of person. Nothing passes to him, because he is not in a position to take anything. Nor would the two-years statute of limitation assist. Such a tax deed would be void, and a void deed never starts the statute to running. Taylor v. Miles, 5 Kas., 498; 3 Sumner, 476.
Nor would the fact that the party acquired no interest in the tax proceedings till after the termination of his lease or agency change the case, if during the lease or agency the taxes became due and payable and he then neglected to pay them. The instruction' given by the court of his own motion ignores this principle entirely. It reads thus :
“ The legal effect of the tax-deed in evidence was to pass the entire title to John T. Weaver; and if the jury believe from the evidence that such deed was legally recorded in the office of register of deeds for Johnson county, more than two years previous to the commencement of this suit, the plaintiff is barred, and has no right to maintain a suit to recover possession of said premises.”
With, only this instruction before them, the jury would have little difficulty in disposing of the case, as the tax ■deed had indisputably been on record over three years. True, this instruction was qualified by the sixth instruction given at the request of the plaintiff, as follows: “ If either or both defendants took possession of the premises with a view to taking care of the same, and thereby obtained the confidence of the plaintiff, or his grantor, the •law will not permit the defendants to acquire any title to the premises while in that confidential relation.” But ■even with this qualification, the true principle is not fully presented to the jury, because their attention is not called to the effect of a failure to pay the taxes while that confidential relation continues, and the acquisition of a title derived therefrom subsequent to the termination of such relation. The first and second instructions given at the instance of defendants are open to the same criticism as that one given by the court of his own motion.
Another question in the record is presented by the fourth instruction given at the instance of defendants, to which we have heretofore referred. The defendant, John T. Weaver, testified that, acting as agent for his co-defendant, he bid off’the property at the sheriff’s sale; that prior thereto in several conversations he was _ a(jvjse(j by plaintiff to purchase, as he (Weaver) was in possession and would not lose much; and upon his replying that plaintiff had better buy, as he (plaintiff,) had a deed from his father, the judgment-debtor was told that the deed was only to prevent the old lady (Nancy ’Carithers) from getting the property, and that if defendant bought he should not be disturbed; and that he relied and acted on these statements in making the purchase. Upon this testimony the court gave this instruction : “ 4.-If the jury believe from the evidence that the plaintiff at or before the sheriff’s sale urged and advised the defendant to purchase said property, and that the plaintiff, in so doing said that he never intended to-use the deed he had obtained from his father to disturb them in their possession, and if the jury further believe that the defendants were in anywfse influenced and induced to purchase the property in consequence of such declarations by plaintiff, they must" find for defendant.”' In this also, we think, was error. Estoppels in pais are upheld to prevent gross injustice in cases where one party, having rights in property, by representations or conduct in reference thereto, fraudulently induces another to part with value for that property, and thereafter insists-on those rights to deprive the latter of both value and property. But where the latter party loses nothing by permitting the former to assert his legal rights, the reason for upholding estoppels fails. In this case there was no concealment by the plaintiff of any claim, or any fact. The defendant knew at the time of his purchase of the existence of a deed from plaintiff’s father, the judgment-debtor, to plaintiff; knew that plaintiff by reason thereof had the right to redeem at anytime w:thin two years; knew what interest he could purchase and was purchasing in the property; paid the least amount he could pay to acquire that interest; knew that before he could be deprived of that interest he was entitled to receive, as he was in fact afterward offered, all he paid with large interest up to the time of redemption. Surely, he cannot claim to have been in any way mislead as to the facts. But he says plaintiff promised not to redeem. What consideration was there for the promise? The plaintiff received nothing — the defendant parted with nothing, for that promise. He paid for an interest in the land, and paid the least amount for which that interest could be sold; lie obtained that interest, wbicb was fall equivalent for the money he paid. It was therefore a promise without consideration, and binding on no one.
In regard to the third instruction given at the instance of the defendants, that in reference to a conveyance of the homestead, we have looked through the record carefully and see no testimony which would make an such instructions applicable to the case.
For these reasons the judgment of the court below must be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Cromwell Laithe, the plaintiff in error, brought suit in the district court of Johnson county, against the defendants in error, to recover $5,686 for goods delivered to them as common carriers, to. be trans ported from Kansas City to Fort Scott, and through negligence lost and destroyed. A general denial was filed. On the 24th of October, 1868, the case was called for trial, and the defendants not appearing, Laithe testified to the facts set out in the petition and obtained a judgment for the amount claimed. On the 7th of November, 1868, defendants in error filed their petition, under section 568, of the civil code, to have that judgment vacated and set aside. The grounds alleged were, first, “ fraud practiced by Laithe in obtaining the judgment,” and second, unavoidable misfortune, preventing McDonald, et al., from defending. The district court, on the objection of Laithe, held the petition insufficient in respect to the second ground of relief. This ruling left for investigation simply the question of fraud practiced in obtaining the judgment. Upon trial the court found in favor of the defendants in error, vacated the judgment recovered by Laithe in the case of Laithe v. McDonald, et al., and reinstated said case on the docket for trial. A motion was made to exclude all testimony for the reason that the petition for vacating said judgment did not state facts sufficient to constitute a cause of action, which motion was overruled, and the petition held sufficient so far as the first ground of relief, that is, “fraud in procuring, the judgment,” was concerned. "Was this error ? It was alleged “ that said judgment was procured by fraud on the part of said Cromwell Laithe, plaintiff therein, by said Laithe falsely and fraudulently swearing and testifying,” etc., setting forth the testimony ; and that the defendants were absent at the time of the trial, giving the reason therefor. This objection to the petition was made too late. After answer filed, an objection to a petition that it does not state facts sufficient to constitute a cause of action is good only when there is a total failure to- allege some matter which is essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law. That the testimony was fraudulently given, may be a conclusion of law from many facts, and if the defendant desired that these facts should be presented, he should, before answer, have filed his motion to make the petition more definite and certain. Failing to do this, and by filing his answer accepting the issue tendered, he should not on the eve of trial be permitted to question the fullness and certainty of the allegations of the petition. The West. Mass. Ins. Co. v. Duffy, 2 Kas., 347; Meagher v. Morgan, 3 Kas., 372.
II. A deposition was taken upon a notice entitled in two cases as follows: “A. McDonald & Co., plffs., v. Cromwell Laithe, deft,” and “ Cromwell Laithe' plff., v. A. McDonald & Co., defts.” The parties were the same, but their positions as plaintiff and defendant were reversed. The idea of the party taking this deposition seems to have been to obtain testimony for use in the proceeding to vacate the judgment, and, that being successful, to have the same testimony ready for the trial of the original case. Exceptions were taken by Laithe to this deposition on this ground, and overruled. As a general rule we think it error to permit the taking of a deposition under a notice specifying and for use in two cases. A party to a suit has the right generally to have all the proceedings in that suit kept free from and unembarrassed by the proceedings in any other suit. Still, as the two suits appear to have been between the same parties, and inasmuch as the statute provides that a deposition once taken may be read “ in any other action or proceeding upon the same matter, between the same parties,” we do not think the refusal to suppress the deposition such an error, affecting the substantial rights of the party, as would justify this court in reversing the judgment therefor, unless it appeared that the other proceeding entitled in the notice was upon a different matter. We must presume in favor of the ruling of the court below, and, in the absence of proof to the contrary, that it was made to app.ear to him that both actions entitled in the notice were upon the same matter. 2 Nevada, 81.
III. But the most important question in the case remains to be considered. The court below found the following facts:
“ 1st. That at the October Term, 1868, of this court, there was a judgment rendered in favor of Cromwell Laithe, plaintiff, and against A. McDonald & Co., defendants, for $5,686, and costs.
“ 2d. That said judgment was procured by means of the testimony of said Laithe, and no other, and in substance that the defendants therein made and entered into an agreement and contract with him on or about the 19th day of November, 1866, whereby said defendants, (the plaintiffs herein,) agreed for hire to receive and transport from Kansas City, Mo., to Fort Scott, Kansas, within a reasonable time, certain goods and chattels belonging to and owned by said Laithe.
“3d. That the contract testified to by Laithe was in fact not made, but the plaintiffs herein agreed to transport said goods for said Laithe if it should be convenient for them to carry the same with their own goods, and said Laithe either misunderstood or misrecollected said contract, or willfully and corruptly testified falsely concerning the same upon the trial of the said cause, and thereby recovered a judgment against the plaintiffs herein, when in fact, and in law, he would not have been entitled to the same.”
And from these facts the court found, as matter of law, that the “plaintiffs were entitled to a judgment vacating the judgment so rendered as aforesaid in said cause.” Do the facts found warrant the conclusion of law ? It must be remembered that the only ground of relief in the case as tried is, in the language of the statute, “ fraud practiced by the successful party in obtaining the judgment.” The word fraud in this statute is used in its common, direct sense. It means “fraud in fact,” not “ fraud in law.” It embraces only intentional wrong — those acts done by ::>e successful party, with a knowledge of their criminality, and with the purpose of thereby depriving his adversary of some right. The giving or use of false testimony, though it may operate to the injury of the unsuccessful party, is not necessarily fraud practiced by the successful party. The rule is, that when the party being himself a witness, commits willful perjury, or makes use of false testimony which he knows to be false, and thereby obtains a judgment, he practices a fraud, within the meaning of the statute quoted, for which the judgment may be vacated. In Burgess v. Lovengood, 2 Jones’ Eq., 457, Pearson, J., says : “ So it is agreed that to set aside thé verdict on the ground of its being obtained by perjury there must be an allegation that the party who used the testimony knew it to be false.” The finding of the court is that Laithe “ either misunderstood or misrecollected said contract, or willfully and corruptly testified falsely concerning the same.” Now, if Laithe simply misunderstood or misrecolleeted the contract, and in good faith honestly gave in his testimony concerning it, he practiced no fraud in obtaining his judgment. If misrecolleetion or mistake on the part of a witness were ground for vacating judgments, they would have much less stability than we have generally conceded to them. Counsel for defendants in error appreciating the difficulties of this finding says in reference to it: “ From the finding of the court below, this court cannot assume that he did the one or the other; consequently this court will have to look into the record, and determine from the evidence for itself how the fact is, unless indeed the court take the findings of the court below, that are found in the final decree above referred to, as conclusive in the case on the question of fraud.” Findings of fact should be direct, positive, and unambignous. "Where' the finding is, as in this case, that either this or that is the fact, if each of them supports the conclusion of law, the error is immaterial ; but if one does and the other does not, then ordinarily the case should be remanded. Especially should this course be adopted when, as here, the finding involves a question of perjury; for not always from the number of opposing witnesses is the perjury of one established. The conduct of a witness, his manner of testifying, and his appearance on the stand, are important in determining his truthfulness; and these are 'matters which cannot be preserved in a record.
Again, the testimony discloses that the defendants in error were not present at the trial, but fails to show why they did not appear. It appears also that Laithe’s testimony simply corresponded to the allegations in the petition. Under these circumstances it seems to us it should be shown that they were guilty of no laches in failing to appear. We do not mean to be understood as saying that a party must make out a case under clause seventh of the section heretofore referred to, (civil code, § 568,) before he can avail himself of the provisions of clause fourth; but simply, that he should show that his absence was not intentional, nor the result of his own negligence. The judgment of the court below must be reversed, and the case remanded for further' proceedings.
Nelson Cobb, for plaintiff in error.
Wilson Shannon, for defendants in error.
All the Justices concurring.
This case came here again at the July Term, 1871, upon an alleged error committed by the district court in its action on receipt of the mandate sent down pursuant to the foregoing decision “reversing” the judgment of that court. As the alleged error is based upon the use and meaning of the word “ reversed,” as used in the foregoing opinion, it is deemed best to give the decision of this court thereon in connection with the principal case.
July Term, 1871. '
By the Court,
Brewer, J.:
This case was before this court last winter on a petition in error to reverse the judgment of the district court of Johnson county. The judgment of that court was in favor of McDonald, et at., and against Laithe. On an examination of the record this court found error in the proceedings of the district court and rendered its judgment accordingly. The closing sentence of the opinion which was filed in that case reads as follows : “ The judgment of “ the court below must be reversed, and the case remanded “for further proceedings.” This direction was incorporated into the judgment entered here, and the mandate sent to the court below. Upon the strength of that mandate and opinion counsel for Laithe moved the district court to set aside the judgment theretofore rendered against Laithe, and to enter one in his favor. This mo tion the court overruled, and setting aside the judgment against Lai the placed the case upon the docket for a new trial. This action is now alleged for error. It is claimed that the word “ reverse,” in the opinion, the judgment, and the mandate, requires not merely the setting aside of the one judgment, but the granting of another; that, if merely the setting aside of the existing judgment was intended, the word “ vacate ” would have been the proper term. In other words, a judgment in favor of McDonald & Co. is not “ reversed ” unless a new judgment is rendered in favor of Laithe. We shall not stop for any critical examination of the definition of the term “ reverse,” though we may remark in passing that Webster’s definitions show that its meaning is that of setting aside, or annuling. But be that as it might be, the term has received by long usage in this court a settled meaning. In 1868 the counsel for Laithe, at that time the Chief Justice of this Court, writing the opinion in the case of Smith v. The State, 1 Kas., 393, closed that opinion by saying — “ For the errors of the court in denying a change “ of venue, the judgment must be reversed, and the case “ remanded.” No one supposed that this direction required both the setting aside of the judgment against Smith and the entry of a judgment in his favor upon the indictment filed against him. In the first volume of Kansas Reports, out of fifteen cases in which judgments were set aside and new trials awarded, in fourteen the term “ reverse ” is used in the direction-clause of the opinion in the sense simply of setting aside. In some of these the direction is to reverse the judgment and grant a new trial, in others simply to reverse the judgment and remand the case. All the members of the court agree in that use of the word. An examination of the remaining-four volumes of our reports is attended with like results. From the organization of the court down to the present time, .every judge has constantly in his opinions used the word in that sense.' A construction, which has the sanction of such eminent authority, and the usage of so many years, seems to us useless to disturb. We see no reason to doubt that the term as used in opinions, judgments and mandates, means what we have always understood it to mean, setting aside, annuling,/ vacating — at least, such is the sense in which it was used in this case. It follows therefore that the order of tí : i^o<xict court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by the plaintiff in error against the defendant in error. The judgment below was for the defendant, which the-plaintiff now seeks to reverse. The assignments of error-are as follows: “ 1st, The district court erred in the- “ instructions given to the jury on the trial of said action. “ 2d, The verdict of the jury in said action is contrary to- “ law. 3d, The said court erred in overruling the said “ plaintiff’s motion for a new trial. 4th, Said court erred “ in rendering judgment against said plaintiff and in fa“vor of said defendant. 5th, Said judgment was given “ for the said defendant, when it ought to have been “given for the said plaintiff, according to the law of the “land.”
There is nothing in the record that shows that the in structions of the court below given to the jury, were erroneous. They were such instructions as might properly have been given under the pleadings; and whether they were such as might have been given under the evidence, we cannot determine, as none of the evidence is brought to this court. As nothing is shown to the contrary, it will be presumed that the instructions of the court were properly given.
We cannot perceive any legal objection to the verdict of the jury. The motion for a new trial was properly overruled. There was no evidence introduced to the 'court, on the hearing of said motion, to sustain' any of its allegations, which are required to be proved; and no error of law, or irregularity of any kind, is shown to have occurred prior to the hearing and determination of said motion.
The plaintiff has no reason to complain of the judgment rendered upon the verdict. The verdict was in favor of the defendant, and the judgment was in accordance with the verdict, except that the verdict found certain damages in favor of the defendant, and against the plaintiff’, for which the court, with the consent of the •defendant, did not render any judgment. As this action of the court was in favor of the plaintiff, he has no right to complain. As no error has been shown, the judgment ■of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
A single question determines this case. Pratt, plaintiff below, brought suit on a promissory note. Yickroy, defendant below, filed an answer with three counts. A demurrer to the answer was filed and sustained. No application being made to amend the answer, judgment was rendered for the amount of the note and interest. Does either count in the answer present a defense to the note sued upon ? The first, in brief alleged that the note was given in consideration of the sale and delivery of possession of a tract of land to which the Indian title had not been extinguished; that both parties were citizens of the United States; that plaintiff was not a member of any Indian tribe, nor licensed to enter upon said Indian lands, but on the contrary, his possession thereof was in violation of law. We fail to see why these facts do not show a want of consideration. A sale of the land carried nothing, because Pratt had no title. A delivery of the possession was not a good consideration, for Pratt was a trespasser, and had no lawful possession to surrender. Stone v. Young, 4 Kas., 28.
We think the court erred in sustaining the demurrer, and for this reason the judgment must be reversed, and the ease remanded for further proceedings.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Kingman, C. J.:
This is an action on a note and mort-gage, given by William H. Goble and Lida M. Goble on the 15th of April, 1861, to William B. Simmons for $625.57. The note bore interest at twenty per cent, per annum, to be compounded annually. On the 26th of September, 1864, $550 were paid on the note, and on the 3d of July, 1865, $260 were paid thereon, and this was 4he last payment. This action was commenced by the -administrator of William B. Simmons on the 17th day of March, 1869. It is admitted that Simmons died on "the 10th day of February, 1867, and that plaintiff in ■error was appointed administrator on the 18th of June, 1868. The defense relied on is the statute of limitations.
Between the last payment on the note and the time of bringing the suit more than three years had elapsed, and as the statutes then were the claim was barred, unless taken out of the operation of the statute by some legal .-cause. The plaintiff in error claims that the cause of ■action was not barred because the death of the creditor suspended the running of the statute ; and deducting the time intervening between the death of the creditor and the appointment of the administrator, and three years had not elapsed after the last payment and before the commencement of the action If the running of the statute was not suspended, then it is claimed that there was a subsequent acknowledgment of the debt, in writ ing, within three years before this action was commenced-Does the death of a creditor suspend the running of the statute ? Asa general rule, when a statute begins to run, it continues to run until the’ ° 1 demand is barred. This principle is laid down with great uniformity in all the authorities, and may be-considered as settled. Undoubtedly the legislature may prescribe differently, and in this state several exceptions-are made, but none such as is claimed in this case. This is of itself a strong reason against the rule as claimed by plaintiff in error, and being wholly unsupported by the-authorities it cannot be allowed to prevail in this case.
II. It is claimed that there was a subsequent acknowledgment of the debt in writing which takes it out of the-statute. "William H. Goble owed the debt. His son Wm. F. Goble had bought of his-father sixty acres of the land mortgaged to pay the debt, and was interested in having it paid off, and his land released from the mortgage. He was also active as agent in arranging this business for his father, and was-so recognized by his fathsr. On the 27th of December, 1867, William F. Goble wrote a letter to John B. Simmons in Indiana, a brother of the deceased, which was a full acknowledgment that William H. Goble oyed the-money; but it nowhere appears that the letter was written by the request or by the authority of William H. Goble, nor is it in anywise important; it was not “signed' by the party” to be charged with the debt, as the statute requires, and therefore was not such an acknowledgment', fcas is required to take the case out of the statute.
HI. In March, 1867, William H. Goble and wife prepared a new note and mortgage to Simmons and took them to Mr. Green. They were so prepared and pre sented in pursuance of a previous arrangement x x_ 0 between Simmons and William H. Goble. The note and mortgage now sued on were to be delivered up and the newly prepared papers take their place. But the arrangement was not consummated. Mr. Green refused to receive the new note and mortgage, and defendant took them back and tore his name off the note. The new note bore a less rate of interest, and the mortgage covered a different piece of land. Bo these facts constitute such an acknowledgment of the debt as takes the case out of the statute ? No such purpose was contemplated by the parties. The papers amounted to nothing. They were (if anything) a conditional promise and the plaintiff cannot avail himself of the benefit of it without complying with the conditions. He does not seek to do so. He rests his demand on the original note with its high rate of interest, and the security offered by the original mortgage. He cannot use the papers prepared as a substitue for them to lift his case out of the statute of limitations. Smith v. Eastman, 3 Cush. 355; Sumner v. Sumner’s Ex’r, 1 Metcalf, (Mass.,) 394. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The action below •was one to recover for work. The performance of the work and the amount due were unquestioned. It appeared that payment was-to be made in rock, lime, and lumber, to be delivered when demanded at any place in the city of Topeka, or Ritchie’s Addition. Plaintiff below, defendant in error,, testified that he demanded payment and was refused. This is the language of the record: “I then asked him if' he would give me some lumber; he said, not a foot.’7' Nothing was ever delivered or paid.
Upon this testimony the defendant below asked the court to instruct the jury as follows: “If the jury be- ■“ lieve from the evidence, that on the 8th day of Feb- “ ruary, 1867, the defendant was indebted to the plaintiff ■“in the sum of $88.61, or any other sum, to be paid in “ rock, lime, and lumber, to be delivered by defendant “ to the plaintiff at such time and place as the plaintiff “ should want the same, then, to entitle the plaintiff to “ recover said amount in money, he must have demanded “ of defendant said lime, rock, and lumber, and been re- “ fused by defendant before the commencement of this “ action; and to constitute a legal demand, the plaintiff “ was bound to demand of the defendant said lime, rock, “ and lumber, or some portion thereof, designating which, •“ and the quantity thereof, and the time and place of de- “ livery ” — which instructions the court refused to give; but the court charged the jury as follows:
“ To constitute a legal demand, the plaintiff was bound to demand some portion of the lumber or matei’ials, designating the quantity thereof, and time and place of delivery, according to the terms of the contract; but if the defendant refused to deliver plaintiff any lumber at all, then the plaintiff need go no further, and might treat such refusal as a refusal to deliver any portion of said materials.”
Exceptions were taken, and thesé rulings of the court are here alleged as error. “When by agreement, payment is to be made in material at time and place to be selected by the payee, a demand indicating time, place and quantity must ordinarily be made, and a refusal had, before a cause of action accrues. There is no breach of the pay- or’s agreement until then. He should not be subjected •to suit and put to cost, because, for aught that appears, he may be able, ready and willing to comply with his contract. He should not be compelled to pay money because he agreed to pay material. But it must be remembered that this matter of demand affects, not the indebtedness, but simply the mode of payment. The former continues, whether demand be ever made. The latter is a privilege which the payor may waive. He waives it when he gives an absolute refusal. Such a refusal is a repudiation of the contract so far as the mode of payment is concerned. When the payor repudiates the mode of payment, why require the payee to go through the formula of a complete demand, before he may enforce the discharge of the indebtedness ? It would be an idle ceremony, and useless labor; and the law is not so exacting.
The rule here is akin to that in case of tender. A tender must be in legal currency; but if the party refuses absolutely to receive the amount offered, the tender, though in bank bills, is good. In the case of Corbitt v. Stonemetz, 15 Wis., 170, which was a suit on a note payable in specific articles, and where the only demand proved was one for money, the court uses this language: “ The maker might' unquestionably have insisted upon paying this note in specific articles, instead of money, had it not been for the following reason: When the respondent, Stonemetz, was called upon by Alvord to pay the note, he replied that he had intended to pay it, but had taken counsel and was advised not to, and that he should follow that advice. He did not admit his obligation, or aver his willingness to pay the note in any specific articles, but he repudiated his liability to pay anything upon it. Under such circumstances it is obvious that a demand of specific articles would have been entirely idle, because Stonemetz said he had been advised to pay nothing on the note, and should follow hat advice. For certainly the law is not so unreasona ble as to require a demand to be made, when it appears ■from the defendant’s own conduct that such a demand would be nugatory and idle.”
That case is much stronger than the one at bar; for the plaintiff here asked for lumber, one of the articles •named in the agreement, but was flatly refused, and told he could not have a foot. He was under no obligation to take all his pay in lime and rock. If he took his pay in material, he was entitled to some lumber. Refused that, he need not ask for the other. Blood v. Goodrich, 9 Wend., 79; Dunlap v. Hunting, 2 Denio, 643; Hamilton v. Matlock, 22 Ind., 47.
We see no error in the ruling of the court, and the judgment must be affirmed.
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The following opinions were filed:
Brewer, L:
Only this one question is presented in the record: Is a buggy included in the term “ wagon,” as used in the Exemption Law ? The court below found that the vehicle in suit known as a buggy was “not adapted and designed for carrying commodities, but is a single-seated, covered vehicle adapted and designed for carrying persons only.” We think the term wagon a generic one, including as well vehicles for the carriage of persons, as those for the transportation of commodities, and broad enough properly to embrace such a vehicle as the buggy in controversy. But we are constrained to think, after a careful examination of the statute, as well as the decisions of other courts, that the term “wagon” is here used in a limited sense. The statute reads: “ also, “one wagon, cart, or dray; two plows, one drag, and “ other farming utensils, including harness and tackle “ for teams, not exceeding in value three hundred dol- “ lars.” This clause obviously was designed for the protection of the farmer, to secure to him his implements of husbandry. It is doubtless too narrow a construction, to hold tnat the use to which the articles named are-actually put at the time of seizure determines the question of exemption. Whether used on a farm or not, is immaterial. But that the articles should be adapted to the purposes of husbandry seems to be required. “ Other farming utensils,” is the language. “ Nosdiur a soeiis.” Only those wagons which are adapted to farm purposes are exempt. Now a vehicle which is in the language of the court below, “ adapted and designed for carrying persons only;” cannot in any true sense be called a “ farming utensil,” is not an implement of husbandry. 19 Wis., 582.
For these reasons the judgment should be affirmed.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The agreed facts in the case made, and on which the court below made its findings, are as follows : “ The plaintiff in the case, James G. Hope, was on the 25th day of March, 1870, engaged in selling wines, whiskies, brandies and intoxicating liquors generally by wholesale, (that is, he never sold in less quantities than one quart,) in the city of Topeka, county of Shawnee. He did not then have, nor has he ever had from the State of Kansas, the county of Shawnee, or the city of Topeka, or from any other tribunal, a license as grocer, dramshop keeper, or tavern keeper. He did have at the time of the sale, and before and after that time, a license from the United States as a wholesale liquor-dealer. On the 25th of March, 1870, the plaintiff sold to the defendant on a credit, two baskets of Piper Heidsick wine, each basket containing twelve quart bottles of wine, the same being intoxicating liquors, to be used as a beverage, for seventy-two dollars. The defendant agreed to pay said $72 in ten days from the purchase, with interest from the 25th of March at seven per cent, per annum. Defendant has never paid said sum, or interest, or any part thereof, and avows an intention never to pay it.”
From the facts so found, the court made these conclusions of law: “ That the plaintiff was not at the time of said sale to defendant, a dramshop keeper, and that by law he is entitled to recover in this action.” Judgment was entered accordingly.
This judgment is brought to this court for review, the counsel for plaintiff in error claiming that the contract sought to be enforced arises from a palpable violation of law, and is therefore void. The decision of the case involves the two questions suggested; first, is the act of defendant in error set forth in the case made in violation of law ? and second, if it is, does this preclude a recovery in an action ?
The first of these questions must be determined by the statute. Ch. 35, General Statutes, page 399, is entitled, “ An act to restrain dramshops and taverns, and to regulate the sale of intoxicating liquors; ” and a careful examination of the whole statute shows with what evident care the legislature attempted to throw safeguards and restraints around a traffic deemed perilous to society. In the third section it is provided that, “ Any person, without taking out and having a license as grocer, dramshop keeper, or tavern keeper, who shall directly or indirectly sell any spirituous, vinous, or fermented or other intox icating liquors shall be fined in any sum not more than one hundred dollars for each offense;” and for subsequent offenses an increased penalty is provided. It will be observed that the language of this section is as broad as possible. It is not confined to the dramshop keeper, the tavern keeper, or the grocer, to whom a license may be granted under sections one and two; but it declares that any person not having the license so prescribed, who shall sell intoxicating liquors, shall become liable to the penalties therein imposed. It makes no difference between the wholesale dealer and the retailer, nor whether the amount sold be a dram or a hogshead. Can the court interpolate an exception in favor of the wholesale dealer? It must do so, or he is included in the persons who are subject to the penalties of the law. And if we look beyond the section to the whole chapter, we shall not find ourselves invited to place the exception in the section. The next section using the same broad terms of “ any person,” prescribes penalties on those who shall “ sell or retail ” on Sunday, the Fourth of July, or upon an election day. By the terms used it excludes the idea' that the statute is confined to those who retail. The sixth section prohibits in similar language the sale of intoxicating liquor to habitual drunkards, minors, etc., and prescribes a severe penalty therefor. Can it be said that it is less an offense to sell such persons a large quantity than á small ? Would the wife, child, parent, brother or sister of the habitual drunkard, whose welfare is specially provided for in this section, be protected by a provision that allowed them to prevent the sale of a single dram to an unfortunate relative, but freely permitted the sale of twenty-four quarts? The terms used in the statute do not subject the law-making power to any such imputation. If we consider the objects to be obtained by the enactment, the evils to be restrained, the language of the statute itself, or its title, we are alike constrained to hold that the contract sued on in this case is illegal.
Noes this conclusion preclude a recovery in this action ? This presents no new question. “ The principle which enforces obedience to laws is carried out by declaring contracts growing out of or based upon the infringement of a statute to be void, the courts refusing to aid either party in enforcing them. This is the general course of decisions in England and in this country. So, when sales of spirituous liquors are made in violation of the positive provisions of a statute, the sale being illegal, the whole transaction is void, and the seller can sustain no action therefor.” Sedg. on Stat. and Cons. Law, 84, 85. Sustaining this principle, see Roby v. West, 4 N. H., 285 ; Pray v. Burbank, 10 N. H., 377; Wheeler v. Russell, 17 Mass., 258; Boutwell v. Foster, 24 Ver., 485 ; Bancroft v. Dumas, 21 Ver., 456; Armstrong v. Toler, 11 Wheaton, 258; Burton v. Plankroad Co., 17 Barb., 397; Gray v. Hook, 4 N. Y., 449; Pennington & Kean v. Townsend, 7 Wend., 276; Griffith v. Wells, 3 Denio, 226; Nellis v. Clark, 4 Hill, 424, and Bank of U. S. v. Owens, et al., 2 Peters, 527.
In this last case the reason is tersely given by Mr! Justice Johnson, thus: “No court of justice can in its nature be made the hand-maid of iniquity. Courts are instituted to carry into effect the laws of a country; how can they then become.auxilliary to the consummation of violations of law ? ”
The plaintiff below could sustain no action on his sale; therefore the judgment is reversed, with directions to enter judgment for the plaintiff in error on the facts found.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant was charged in the court below with the commission of an assault and a rape upon a female child under the age of ten years. He was tried by a jury who found the following verdict: “We “ the jury find the defendant guilty of an attempt to com- “ mit a rape upon the person of Anna M-- B-•, “ mentioned in the information.” The defendant moved for a new trial, and in arrest of judgment, both of which motions were denied by the court, and he was sentenced to ten years imprisonment in the penitentiary. From this-sentence and the judgment of the court below the defendant appeals.
During the trial, Nancy J. B., the mother of the prosecuting -witness was examined on the part of the prosecution. During her direct examination she-testified among other things as follows:
“ Question: After this transaction (the alleged rape) was the girl affected with any disease ? and had she any discharge of a private nature from her person ? This question was objected to by the defendant as incompetent and immaterial; but the court overruled the objection, whereupon the defendant duly excepted. Answer: She was.”
“ Question : State if after this transaction you observed any discharge ? what was the color, and from whence did it proceed ? This question was objected to by the defendant as irrelevant, incompetent, and immaterial, but the court overruled the objection, whereupon the defendant duly excepted. Answer: There was a discharge of blood upon the underclothing. ' After this I observed other discharges. Ten or twrnlve days later I noticed a white and green discharge. The first was sort o’ mixed with blood; and after that it was green and white. I called Doct. T--the fore part of June; and afterwards Doct. Y-was called; Doct. Y. was called about the 6th of June; afterwards, about the 12th of June, Doct. P- was called. Y-, T-, and P-treated her.” The witness also testified that she found medicines, a brush and a syringe in the defendant’s trunk.
“ On cross-examination the defendant’s counsel asked the witness the following questions: State if prior to this occurrence the girl Anna M-B-had suffered from any private disease ? This question was objected to as not proper matter of cross-examination, and the objection was sustained and the evidence excluded, whereupon the defendant excepted.”
The physicians testified that the disease that the prosecuting witness, Anna M-B-, had was gonorrhea. 'The physician, P. Morse, testified that he treated the defendant for gonorrhea in April, 1870. The evidence shows that the alleged offense, if committed at all, was ■committed in May, 1870. The evidence also tended to show that brushes and syringes, such as were found in 'the defendant’s trunk, are sometimes used in the treatment of gonorrhea.
The said evidence of Nancy J-B-was undoubtedly introduced by the prosecution upon the theory that the girl Anna M. B. was afflicted with gonorrhea which she had contracted from the defendant at the time of the alleged rape; for upon no other theory could the evidence be competent. In proof of this theory Nancy (the mother,) testified that after said alleged rape the girl had a disease of a private nature; and the defendant by cross-examination desired to show that the girl also had the said disease before that time. "W e know of no reason why he should not have been allowed to show it. No question was raised in the court below, and none has been raised here, as to whether the defendant had waived his right to cross-examine upon this matter, and there is nothing in the record that shows that he had waived such right. It was claimed by the prosecution in the court below, and was so decided there, that the matter about which the defendant asked the question, was “not proper matter of cross-examination.” We think that the court erred. The witness had testified concerning the disease; and the defendant had a right to know by cross-examination token the disease originated.' If it was contracted before the alleged ape, it certainly was no evidence against the defendant. If the girl had gonorrhea at any time, it was very material to know when she contracted it.
No valid objection can be urged to the form of the question as the defendant’s counsel put it. It is true that the question does not refer in explicit language to the disease that the witness had already testified, about; but such is not necessary in-cross-examination. Wide latitude should be allowed in cross-examination in any case, and particularly so in a-case of this kind, where sufficient facts had already ap~ peared to show that the character of the witness was not of the best kind. We also think that any question on cross-examination of the girl’s mother that would have elicited evidence tending to show that the girl contracted the disease from the witness herself, while sleeping with said witness, would have been a proper question.
We think there is enough in the record to show that, the information was filed and prosecuted by proper authority. The defendant waived the supposed irregularity in the verification by pleading to the merits, and not moving to quash, nor pleading in abatement.
We are not able to say that the charge of the court to the jury is sufficiently erroneous to warrant a reversal of the case for that reason. The principal objection that might be urged against it is that a very large portion of it is irrelevant, having no application to this case.
We think the form of the verdict is sufficient. It is not necessary that the verdict should state that the defendant did some act toward the commission of the offense. We should judge from the preliminary examination by the judge of the court and the testimony of the witness Anna M. B., (taking all together,) that she was a competent witness.
The judgment of the court below is reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
A question for decision is raised in limine. The judgment was.rendered in the district court on the 16th of October, 1867. Execution was issued on the 8th of April, 1868, which was placed in the hands of the sheriff, who, with the execution in his hands, collected the money of Auld, one of the plaintiffs in. error, on the 26th of May, 1S68. The case was brought to this court, and the parties entered an appearance, before the expiration of three years from the rendition of the judgtnent. motion is made to dismiss the petition in error in this court “because the judgment is a satisfied, and therefore there is no judgment “ to affirm or reverse.” The motion must be denied. The payment was compulsory. The sheriff had the execution in his hands, with power to enforce it, and under obligation to do so. A payment made under such circumstances is always held to be an involuntary payment, and works no estoppel on the party making it. It is not intended to decide that a voluntary payment of a judgment in any case is a bar to an appeal, only that a compulsory one is clearly not. There is another reason for denying the motion in this case: The suit was for the recovery of specific personal property valued at $1,472. It had been taken by the sheriff and delivered to the plaintiff in the action, and the judgment confirmed the right of the plaintiff to the property, and adjudged the defendant to pay one cent damages and costs. To hold a party precluded from prosecuting an appeal from a judgment where interests so considerable had been adjudicated upon adversely to him, because he had even voluntarily'paid the judgment of one cent, would be a severe application of rules of law, if they exist. The code gives the right to take a case up on error, and limits that privilege to three years after final judgment. In this case, at least, the plaintiff in error has done no act that deprives him of that right, and the motion must be denied.
The errors alleged are, first, the refusal of the court to set aside the order for the delivery of the personal property, because of the insufficiency of the affidavit; second, compelling Taylor to elect on which ground of his answer he would go to trial; third, striking out the third ground of defense in the answer of Auld; fourth, the instructions given and refused. And of these in their order.
I. The affidavit states, with the other requisite averments, that the goods and chattels were not taken “ in execution on or under a judgment against the plaintiff,” omitting the words “ or order,” which the statute required. See fourth clause of section one of ch. 31, Oomp. Laws 1862, p. 23V; (Gen. Stat., 1868, p_ g0^ g 177.) The affidavit contains also the averment that the goods and chattels were not taken on any other mesne or final process against the plaintiff. It would seem that this last statement is broad enough to cover all possible cases. If not taken in execution on a judgment, or on any other mesne or final process, it would be difficult to perceive how they could be taken by any legal process issuing from a court. All the other statutory requirements are embraced in the affidavit save the omission noted. We would be reluctant to hold that any requirement of the statute was immaterial because we could see no reason for it, and are not under the necessity of doing so in this case. The motion was not made till after the answers were filed and the issues made up. The motion was not called up for the action of the court until six months afterward, and then on the day the cause was called for trial. In New York this has been held too late; that the party waived the right to make the motion by filing his answer. We are not convinced that this ruling is correct. It will be remembered that the code did not make the same provisions in cases for the discharge of an order of delivery that it did for the discharge of attachments. An attachment may be discharged at any time before judgment, while there is no-time specified when an order for the delivery of personal property may be made. Some discretion seems to be left in tbe courts in that matter, and it is not unreasonable to say that in ordinary cases such a motion ought, not to be heard just as a cause is called up for hearing,, and such are the facts in this case, as shown by the-record. Another' reason might be given for not disturbing the ruling of the court in this matter. The verdict shows the property to be the property of the plaintiff;. and if so, then no’injury is sustained by the defendants-by a refusal to set aside the order of delivery. Thinking-that the affidavit substantially conforms to the law by embracing every substantive statement, and that the-motion to set aside the order was properly overruled for the reasons given, we shall not disturb the judgment because of the alleged defect in the affidavit, and the ruling of the court thereon.
The motion to discharge the order of delivery stated as another ground of discharge that the facts did not authorize the issuance of the order; but as the facts do not appear in the record, we are not able to say whether the decision of the court on such ground was correct or not. We are. to presume it was, in the absence of the facts.
II. The second alleged ground of error is the striking out a part of Taylor's answer. The first part of Taylor’s answer is a general denial; the latter part is a disclaimer of any interest in or the right of possessiou in the goods and chattels in controversy in the action. On motion the court struck out the latter part of the answer. Upon the-question as to whether the ruling was correct, the justices are divided in opinion, and therefore the decision of the court below is left to stand. The question embraced, at most, in this case but a small item of costs, but small as it is, it has been the subject of careful and anxious deliberation, with the result above indicated.
III. The third alleged error is the striking out the third ground of defense in defendant Auld’s answer. The first clause of his answer is a general denial; the third clause sets up that Auld did not wrongfully detain the property, that he did not have possession or control of it, and had not had within one year previous to the commencement of the action, and was wholly without the pow.er to deliver possession of it. Either of the three propositions in this clause of the answer constitutes a bar to the action if sustained by testimony, and unexplained or unqualified by other testimony; and each and all of them could be given in evidence under the general denial. What advantage the plaintiff could derive from striking out this clause, or what injury the order striking it out indicted upon the defendants, is more than we can perceive; and consequently we do not find any error in the action of the court on this point.
IV. The instructions asked by the defendants were refused. We have not examined the instructions critically, and do not propose to. They refer to testimony, and none of the testimony appears in the record. Whether it was proper to refuse the instructions asked, we cannot say, and must presume the action of the court was correct. Admitting the instructions to be correct propositions of law, still, if there was no testimony upon which they would bear, it was proper for the court to refuse them. A court is not bound to give abstract propositions of law to a jury, having no relation to the testimony in the case. Indeed, such instructions ought not to be given, as they may well confuse the jury, and tend to withdraw their minds from the true points in controversy. Iu the absence of the means of determining whether the instructions were proper or not, we cannot say there was error in refusing them.
V. Two other questions were raised in argument, by the counsel for the defendant in error, which would more properly have been considered in the first part of this opinion, but were postponed to its conclusion as they will more readily be understood from what has been already, said.
First: It was insisted that Auld and Taylor could not unite in the petition in error, and in prosecuting the case in this court, inasmuch as some of the alleged errors affected each only of the plaintiffs in error. The difficulty is more imaginary than real. Both were made defendants below; both excepted, and ought to have united in bringing the case to this court, and have the whole case settled at once. The spirit and letter of the code sustain such practice.
Second: It was urged that this court could not at this late day inquire into the action of the court in refusing to discharge the order of delivery on account of the insufficiency of the affidavit. The statute is plain. The limitation is three years on this and all questions brought up on the final order or judgment in a cause.
The judgment of the court^elow is affirmed.
Valentine, J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
The plaintiff filed in the district court of Douglas county a petition to set aside and vacate a certain judgment and order of that court, before that time entered, dismissing a certain action, wherein the plaintiff in error was plaintiff, and the defendant in error was defendant. The proceeding was under §§568, 570, 572 of the civil code, (Gen. Stat, 743, 744.) The defendant in error, who was defendant below, demurred to said petition, on the ground that it did not state facts sufficient to entitle the plaintiff to the relief asked for in the petition, nor to constitute a cause of action. The district court sustained the demurrer, and the plaintiff excepted, and now brings the case to this court for review.
Said petition is very loosely and inartificially drawn, and .difficult to be understood, but it is believed however, thatTt states substantially the following facts : That the said defendant, Samuel Walker, who was sheriff of Douglas county, levied an execution in favor of James Shearer, and against F. C. Woodward, on the property of said J ames A. Cole; that Cole replevied the property 'from Walker in an action before a justice of the peace; that the action was tried, and Walker appealed from the judgment of the justice to the district court; that the district court on the first day of the February Term, 1870, dismissed the action for want of prosecution, “ with prejudice,” at plaintiffs costs.
It is presumed that the dismissal was not at the first term after the appeal was taken, though the petition is silent upon the subject; and we shall express no opinion in this case, whether the court could dismiss the action “ with prejudice.”
The plaintiff further states in his said petition, that at the time his said action was dismissed he was present in court, ready for trial, but that he had no counsel there; but he does not state that he attempted to employ counsel, or to postpone his case, or to try it on its merits, or to do anything else to protect his rights or interests. He also states that on the morning of the day that his case was dismissed, and for at least ten days prior thereto; he had three counsel employed to attend to his case, but that about ten days prior thereto, “he had reason to believe and did believe” that two of his counsel “ had sold him out,” and that on the morning of the first day of the term he discharged, them; and as to his other counsel, he states, “ that his said attorney was not there present, being unavoidably absent.” He does not state that either of his counsel did “ sell him out,” or was untrue to him, but only that “he had reason to believe and did believe” that such was the case. He does not state his reasons for believing so, nor does he even say that he entertained such a belief at the time he discharged said counsel, or that he discharged them because of such belief. He does not state why his other counsel was absent from the court on that day; and he does not state at what time of the day the action was dismissed — it may have been, in the morning, or it may have been at six o’clock in the afternoon. His counsel may have known for ten days prior to that time that he could not attend the court on that day ; and the plaintiff may have been grossly and culpably negligent himself in not knowing the same fact. His counsel may have been culpably negligent in not informing the plaintiff that he could not be at court on that day; and of course the plaintiff must suffer from any negligence of his counsel, (if such was the case,) rather than an innocent party. The petition does not state that the plaintiff exercised any diligence to ascertain whether his counsel would be at court or not. Hid he go to the office of his counsel before court convened ? Hid he make any inquiry about his counsel after court convened ? Or did he sit in court all day, waiting for his counsel to come in? The petition is entirely silent.
■ The dismissal of a plaintiff’s action for want of prosecution may be set aside or . vacated for unavoidable casualty or misfortune preventing the party from prosecuting his action; (Gen. Stat., 743, § 568, sub-div. 7;) but this must be made to appear affirmatively by the plaintiff. No sucb unavoidable casualty or misfortune is shown in this case; and therefore the judgment and order of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error sued plaintiff in error to recover damages for the conversion of 4,000 bushels of corn. He claimed title by purchase from one of three partners. The fact, the time, the conditions, and the good faith of the purchase, were disputed. He never had actual possession of the corn. There were 6,000 bushels altogether, in two cribs, and there never was any separation of the 4,000 bushels from the remainder. His right to recover rested on proof of a purchase. On trial he testified to the time, the fact, and the conditions of his purchase. Upon cross-examination it was disclosed that a bill of sale had been executed by the vendor to him at the time of sale: Counsel for plaintiff in error thereupon moved to exclude the above testimony unless the bill of sale was produced, which motion was overruled and exception taken. In this we think was error. "Where one of the main questions in dispute, the initial point in the case, is an alleged purchase, and it is disclosed that that alleged purchase was concluded in and is evidenced by a bill of sale, all parol testimony should be excluded until the writing is produced. The latter is the best evidence. It may show that the property claimed was notin point of fact included in the purchase, or that it was made at a different time, or that something was to be done before title vested in the purchaser. Dunn v. Hewitt, 2 Denio, 637, is a case exactly in point. This was an action before a justice of the peace in trespass for a wagon. “ The plaintiffs claimed to have purchased it of Marshall, and called P. Dunn as a witness to prove among other things the fact of such purchase. He testified to the purchase as a matter within his knowledge, and was cross-examined by the defendant. The plaintiffs again examined him, and upon a further cross-examination he disclosed for the first time the circumstance that a bill of sale had been ,given by Marshall upon the purchase by the plaintiffs.” A motion was then made to strike out the parol testimony m regard to the purchase, which was overruled and exceptions taken. The supreme court held this ruling error, and reversed the judgment. Jewett, J., giving the opinion of the court, speaking of the bill of sale, uses these words : “.It might have shown a different transaction than that sworn to by Nunn. At all events, I think it should have been produced, or its absence accounted for, under the general.rule upon parol evidence, if the contract was admissible.” See also Bonesteel v. Flack & Glynn, 41 Barb. 435; Van Ostrand v. Reed, 1 Wend, 432. The plaintiff in error was in time with his objection to parol testimony. His motion was made as soon as the fact of a bill of sale was disclosed. We perceive no other error in the admission or rejection of testimony.
Several instructions were asked for by plaintiff in error, same of which were given, and others of them'were refused : but inasmuch as the record fails to show whether the instructions so given are all that were given, it may be that those refused were refused because they had been already once given by the court in his charge.
A good deal is said in the briefs of counsel concerning the rights and title of a commission merchant advancing money on warehouse or crib receipts. It does not appear satisfactorily from the testimony for what portion of the 6,000 bushels crib receipts were out; nor whether any were transferred to defendant in error; nor what became of those which passed into the hands of the commission merchants. Under these circumstances we do not feel like considering the law applicable to such questions, but content ourselves with saying that the general doctrine laid down in Gibson v. Stevens, 8 How., U. S., 397, meets our approval.
The judgment of the court below must be reversed, and a new trial ordered.
All the Justices concurring. | [
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By the Court,
Brewer, J.:
The petitioner alleges that he is unlawfully restrained of his liberty, and asks the interposition of this'court to release him. Do the petition and the record of the proceedings in the district court present a case which calls for the interposition of this court by habeas corpus ? This court has original jurisdiction in habeas corpus proceedings; but in such cases has no greater power than any other court having jurisdiction in habeas corpus, to inquire into the regularity of proceedings upon which a person is restrained of his liberty. It is not every improper, illegal restraint of liberty that can he inquired into on habeas corpus. The limits beyond which no court can go, are fixed by statute. Section 671 of our civil code, (Gen. Stat., 763,) reads thus : “ No court or judge shall inquire into the legality “ of any judgment or process whereby the party is in “ custody, or discharge him, when the term of commit“ment has not expired in ^fiber of the cases following: “ * * * Fourth: Upon a warrant or commitment issued “ from the district court, or any other court of competent “jurisdiction, upon an indictment or information.”
The plain import of this language forbids an inquiry (at this time) into the alleged errors in the proceedings of the district court. An information was filed; it still remains; no verdict or judgment was ever returned, or rendered thereon. If the discharge of the jury has the effect claimed by counsel for petitioner, (anduponthatpoint we express no opinion,) it can be shown upon the trial of the ease. If the judgment of the district court upon this point, and the result of the trial, shall be adverse to the petitioner, he can then present the question regularly to this court on appeal. As sustaining this construction, see: The Commonwealth v. Norton, et al., 8 Serg. & Rawle, 71; Wright v. The State, 5 Ind., 290; The People v. Ruloff, 5 Parker’s Cr. Rep., 83.
The writ of habeas corpus is refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case comes here on error from the district court of Leavenworth county, this being its second visit to this tribunal.' (5 Kas., 608.) On the first trial in the court below judgment was rendered in favor of the plaintiff', defendant in error here, which was by this court reversed for error in the instructions. On a second trial the plaintiff again obtained judgment, which judgment is now sought to be reversed, also on account of alleged errors in the instructions. The action was brought to recover for services alleged to have been per formed by Corum as the agent of Gillett in the -sale of a tract of land. These facts appear from the testimony without controversy: 1st, that plaintiff at one time was .authorized by defendant to act as his agent in selling the land, and promised compensation if he accomplished a sale; 2d, that he had some negotiations with a man named Dunlap, concerning the sale of said land during the continuance of such authority; 3d, that said Dunlap .afterwards purchased from defendant, personally said land at a price not less than that for which plaintiff was authorized to sell; and 4th, that intermediate the first ■suggestion by plaintiff to Dunlap of a sale of this land, and the final consummation of the sale by defendant, Dunlap was absent in the southern part of the State for a ■few days looking at land there. There is a dispute in the testimony as to whether plaintiff’s authority as agent was revoked prior to the sale, whether negotiations 'between plaintiff and Dunlap were broken off, and negotiations afterwards commenced anew between Dunlap •and defendant directly, and also as to what part, if any, plaintiff had in furthering the sale after Dunlap’s return.
I. "With this statement of the case, let us examine the alleged errors. Our attention is called to three : First The court refused to give the eighth instruction asked by defendant, which reads as follows :
“ If Corum was authorized by Gillett to sell the land *or find a purchaser at a' certain price, and Dunlap had not at or before the time he went south, proposed to take the land at that price, or at a price which was afterwards accepted, and such a proposal was not pending when he went south, and if before his return, or before negotiations were renewed, Corum’s authority had been revoked or had expired, and Dunlap afterwards went directly to 'Gillett and made a bargain and purchased the land from him, Corum is not entitled to recover.”
The court had just given at the instance of the defendant, these two instructions:
“ 6th.-If there was no proposition pending between Corum and Dunlap when Dunlap went -south, and if before Dunlap returned Gillett revoked the authority of Corum to sell, or such authority had expired, and if afterwards Dunlap negotiated with Gillett himself and purchased the land from him, Corum is not entitled to recover.
“ 7th.-Unless Corum, while his authority continued unrevoked or unexpired had effected a bargain or sale, or had found a purchaser in a condition and ready and willing to take the land on the terms upon which Gillett had authorized Corum to sell, he, Corum, cannot recover.”
These two instructions gave the law to the jury in as favorable light for the defendant as he could ask; and in so far as the eighth instruction restates what is said in the sixth and seventh it is open to this objection, that the court is not bound to repeat what it has once said. It restates the law given in the sixth and seventh, but it narrows the essential statement so far as to render it justly objectionable. It reads : “If Dunlap had not proposed.” Would not a proposition from Corum and an acceptance by Dunlap have been sufficient? This instruction in effect tells the jury that unless Dunlap proposed to buy before Corum’s authority was revoked, the latter could recover nothing. It excludes everything but a proposition from Dunlap. We think the court had fully stated the law, and properly refused the eighth instruction.
II. The court instructed the jury as follows: “If the plaintiff was agent of the defendant, as he claims, and in pursuance of the authority given him found a purchaser of the premises, and put the purchaser and defendant in communication with reference to. the land, and negotiations were thereby set on foot between them which led to a bargain and sale of the premises, the defendant could not, by taking the negotiations out of the hands of the plaintiff, and completing the sale in person, defeat the plaintiff’s right to compensation.”
We fail to see any error in this. If the law were not as stated, the occupation of a real estate agent would be precarious indeed. An agent is employed to sell real estate. He looks around and finds a purchaser, one who is able and i’eady and willing to buy. He brings the parties together and starts negotiations which result in a sale. Can the principal after this discharge the agent, consummate the sale himself and refuse the agent compensation ? "We think not. That which the agent is employed for, is to find a purchaser. He finds one. The principal gets the benefit of his labor and must pay for it. 5 Dutcher, 834; 2 Hilton, 107. The case cited by counsel for plaintiff in error, (20 Howard, 221,) is not in point. There the agent had brought a supposed purchaser to his principal; the terms named had been accepted; a contract reciting those terms signed. But when they came to the execution of the deeds and the payment of the consideration, the supposed purchaser was unable to pay, and the attempted sale fell through. The agent found a party who was willing to buy, but not able nor ready. He therefore found no purchaser, and was entitled to no commission.
III. The court further instructed the jury: “It is for you to determine from the evidence whether the plaintiff' was agent, as he claims, of the defendant, and if so whether there was any revocation of his authority, or any limitation of time within which he was to effect a sale or find a purchaser for the-land in question; and also, whether he has shown a right to recover in this action.” Counsel for plaintiff in error objects to this last clause as giving to the jury the determination of the law as well as the facts. The whole charge must be taken together; (6 Kas., 209;) and as the court in the outset had said to the jury, “ The court is the exclusive judge of the law governing the case, and you are the exclusive judges of the facts from the testimony in the case, and of the credibility of the witnesses” —we cannot see how they were misled by the clause complained of. These being all the errors alleged, the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a conviction and judgment in a case of homicide.
This deplorable affair arose over the possession of a mule in the custody of Joe Kuttler, a ranchman in Greeley county. Kuttler notified the defendant, Albert P. Allen, by mail that he had a mule freshly marked with defendant’s brand. Defendant lived on a ranch in Kearny county some forty miles away. Allen called on the sheriff to accompany him and they went to the Kuttler ranch to see the mule, and Allen claimed it as his, and that he had raised it. Kuttler likewise claimed it. Some days later, on May 24, 1918, the defendant' and his brother John and a neighbor, William Thompson, armed themselves with revolvers and guns and set out for Kuttler’s ranch to recover the mule. They stayed that night at a neighbor’s place, and the following morning they arrived at Kuttler’s ranch, the defendant on horseback, and his brother and Thompson in a car. Defendant’s evidence is that John Allen asked Kuttler if they could look at the mule and that Kuttler said, “Yes, you can look at her all you want to.” Defendant caught the mule in a corral, put a rope around her neck, and led her to where Kuttler and John Allen were standing. John examined the mule, and said it was their property and that-they would like to get her. Kuttler, according to defendant’s evidence, said: “You will play hell getting it.” He closed the gate, and called for the assistance of his wife. When she came out of the house, Thompson covered her with a gun and told her not to come another step. Thompson then turned the gun on Kuttler. He was in the corral, as also were the Allen brothers and they had guns in their hands. Kuttler was apparently a man of undaunted courage, and although he had no firearms he faced and fought his armed assailants with such weapons as he could pick up, first a two-by-four stick, then a piece of fence post, and eventually he got a hold of a piece of gas pipe, and with these _ makeshift weapons he confronted first one and then another of his opponents, all of whom alternately and sometimes altogether levelled their guns at him and threatened to shoot him. Kuttler’s wife and two daughters, girls' of twenty-two years and sixteen years respectively, were witnesses to most of the incidents leading up to the tragedy. They endeavored to assist Kuttler in keeping the corral gate shut so that the ruffians could' not make off with the mule. The defendant laid violent hands on Mrs. Kuttler and badly wrenched and injured her arm. She testified:
“When I got back to the corral, my husband, was standing in the corral some distance back; the mule was down near the gate, which was open about four feet, and Albert Allen had hold of the halter. My husband told me not to let them take the mule out. J would pull the gate shut and they would pull it open. I saw I could not hold it shut myself, so I called my daughter Virginia and together we pulled it shut; but the Allens would pull it open, so finally my other daughter, Chiona, came out. While we were struggling with the gate Albert'Allen reached over the fence and took hold of my left arm and wrenched it. It hurt awful bad, and I screamed and said, ‘Let loose ; you will break my arm.’ My daughter took his hand off my arm. My arm was very sore and black and blue for several days. Kuttler told me to wire the gate shut. I told Chiona to bring me some wire and I wired it shut. Albert Allen picked up a piece of timber lying in the corral and tried to break the gate down by striking it with the timber. John Allen was holding a gun on Kuttler and Thompson was also holding .a gun on Kuttler. . . . John Allen struck Kuttler with a revolver over the head. Kuttler staggered back and got away from John and Albert Allen a little and picked up the gas pipe; that was the first time he had that gas pipe in his hands. He drew the gas pipe as if to strike the two Allen boys; who were crowding him. They did not come any closer, and I said, ‘Don’t strike, Joe; they will kill you if you do’, and he lowered the gas pipe. When he lowered the gas pipe John Allen went out of the corral, went around to the west side. Albert Allen backed up towards the northwest corner of the corral, where he had the mule. He stood between the mule and Kuttler and kept his gun drawn on Kuttler. Up to that time I had not had any conversation with John Allen. Albert Allen said to Kuttler, ‘God damn you, I am going to shoot you.’ There had been no shots fired. Albert Allen fired two shots. Kuttler called to the girls, ‘Stay with him, girls; I am not hurt yet.’ John Allen came on the south side of the corral, and as he went past he said, ‘We have come to kill him and we are going to kill him.’ I said, ‘What good will that be, to kill him? That will wreck two homes; it would sure wreck two homes and send you to the pen.’ And he said, ‘That is the place to go to get rich.’ . . . After the two shots Kuttler backed off, away from Albert Allen; his face was towards him, but he backed around a little to the southeast, and when he was about in the center of the corral he threw his gas pipe down and ran over to the southwest corner of the corral to the cattle chute. After Kuttler threw down his gas pipe he ran to the southwest part of the corral toward the dehorning chute and raised his foot as if to climb over or get into the chute. Then Thompson hollered, ‘Shoot, Albert, shoot.’ Before that, I heard him say to Virginia, ‘Little girl, we don’t want to kill your father, but we are going to kill him.’ When Thompson said, ‘Shoot, Albert, shoot,’ Albert shot him. Kuttler was right at the chute; he turned and ran east and Allen shot again, and Kuttler fell. . . . He was about twenty-five or thirty feet from Kuttler. When Albert fired the third shot Kuttler turned and ran and fell about three feet from the gate. There were four shots altogether. When the fourth shot was fired, Kuttler said, ‘Mother, he has killed me.’ The girls and I unwired the gate and went into the corral. . . . The girls and I went to Kuttler. We helped him up and helped him walk to the gate, and as he was walking out of the gate he said, ‘Don’t let them take the mule.’ Albert Allen led the mule from the lot and took him away.”
Virginia Kuttler testified:
“When Albert Allen fired the last shot . . I heard father say, ‘Mother, that has killed me.’ We went into the pen and father was down on his knees and had one arm up. He was . . . about twenty or twenty-five feet from Albert Allen when he fired the last shot. The gas pipe was lying close to the chute over to‘the southwest corner of the pen, about ten or fifteen feet from where father was on his knees.”
Chiona Kuttler testified :
“When I came out of the house for the last time from phoning [to the sheriff] I heard Thompson say, ‘Shoot, Albert, shoot.’ ... I looked in the pen and father was going from the chute towards mamma, ... I seen father. He went almost in a run over to the chute and put his foot up as though he would climb through the chute and get out before Albert Allen shot again, and he started then over to the southeast corner of the pen, where mother was standing. He got about half way across the corral, but the shot was fired and he fell. Thompson made the statement with reference to that call to shoot just a little before the third shot. When the fourth shot was fired Albert Allen was facing the south. Father was running to the southeast corner of the pen, but all the time looking at Albert Allen. I was looking at father when he fell. Albert Allen was between twenty-five and thirty feet away from father when he fired the shot. As soon as father fell he got up on his right knee and hand and put his left hand to his side and called out, ‘Oh, mother, he has killed me.’ We went in and carried father out. Father did not have anything in his hand when the fourth shot was fired. When he started to run to the cattle chute he dropped the gas pipe. . . . The gas pipe was quite a ways from him.”
According to- defendant’s evidence, one of- the incidents of the affray was that-Kuttler advanced upon defendant with the gas pipe. Defendant testified:
“I told him to stay back. He stopped and stepped back a trifle and we stood there some little time and then he kind of moved towards me and I stepped back and he had the gas pipe in his hands this way (indicates) ready to strike and I stepped back and Bill hollered at me. ... I turned to look that way and Thompson, who was on the fence on the east side at that time, hollered to me to look out, Allen. I straightened up just in time to see him striking at me and I dodged. He struck at me or struck at the side of my head and I dodged down that way (indicates) and he missed me and when I straightened up I had my six shooter in my hand that way (indicates). I straightened up and I hit him in the side of the head with the six shooter right over the ear or just back of the ear. He throwed up his hand that way and it was bloody and he said, I am glad you did that, now I will kill you, you son of a bitch, and he got his gas pipe up then and came towards me and I took my six shooter up and warned him to stay back and he stepped back a minute.”
There was a good deal of such maneuvering, advancing and retreating by both the assailed and the assailants, according to the evidence for defendant. Other excerpts from defendant’s testimony read:
“I glanced up just in time to see he struck at me the second time and then I shot the six shooter the two times on the ground and he missed me the second time. ... He stepped back and stood in that position a little while and then he began to try to get close to me again. ... I was not quick enough for him and when I looked up I saw I was too late to dodge him and get below his lick so I threw my hand up that way and he struck me on the arm and it glanced up that way and it broke the bone. The six shooter was discharged accidentally in the ground that time with the shock. ... I stepped out away ... I saw Mr. Kuttler coming back with the gas pipe in his hand again and I drew my six shooter again and hollered at him and said, Stop, don’t come any nearer, and he did not stop and I then raised my six shooter and I said, don’t come any nearer or I will have to shoot, and he kept coming and by that time he was about eight feet from me and I pulled the trigger. When he was coming towards me he had the gas pipe in his hands with his arms up that way (indicates) and this way, ... I shot him because I thought it was time for me to protect myself. I shot him to stop him. . . .
“After I had discharged my gun, he stopped, dropped the gas pipe, put his hand up that way and hollered to his wife, Oh, Clara, he has killed me, he has shot me. ... I was looking at him for some little time to see what he was going to do and he staggered back then and eased himself down on his hands: part way; he did not fall clear to the ground. . . . My brother said, get the mule and we will go to Tribune and give ourselves up.
“I went and caught the mule. I put my six shooter in my scabbard and went to where the mule was. I got the mule and led her out and took the bridle rein off of the gate post and got on my horse. ... I had some conversation with the county attorney [Mr. Wilson] on the Monday following. ... I did not tell him that we went over there to get the mule even if we had to kill Kuttler. I told him that my brother and I went over there and tried to get the mule.”
The state quotes some testimony on this last point. One of its witnesses to the interview between the county attorney and defendant testified:
“Mr. Wilson asked Mr. Allen where they stayed the night before they went to Mr. Kuttler’s, and he said they stayed at Mr. Horning’s . . . Mr. Wilson asked him if they went up to Kuttler’s to get their mule, and he said they certainly did. He asked if they went up there to get it, even if they had to kill Mr. Kuttler, and he said they went there to get it even if they had to kill Mr. Kuttler to get it. He asked him what kind of a gun he had, if he had Horning’s gun; and he said a 32-ealiber Smith & Wesson automatic. Asked if he asked Mr. Horning for it, he answered he took it; did not ask Horning anything about it. Mr. Wilson asked him why he took it, and he said he thought they would need it. Mr. Wilson asked him if the other men were armed, and he said Thompson had a 30-30 Marlin rifle that belonged to his brother, and his brother, I think, carried a .38 Colt’s automatic. The Smith & Wesson was double action.”
Defendant was convicted of murder in the second degree and judgment was entered pursuant thereto. He appeals.
Examining the matters discussed in his brief, there is practically nothing suggested that looks like an error — scarcely a point worthy of discussion. He quotes an excerpt from our former opinion in this case, The State v. Allen, 107 Kan. 407, where we condemned an instruction which would have given countenance to a right on the part of defendant and his confederates in this affray to arm themselves and go to Kuttler’s home and get the mule when they had reason to believe that such an adventure would bring on an altercation with the possible result of their slaying Kuttler to save themselves from violence at his hands. This court conceded:
“The Allens had a right to obtain possession of the mule, if it was theirs, if they could dó so without committing a trespass or a breach of the peace.” ip. 414.)
But it was likewise said:
“The evidence of the defendants tended to show that Kutler was a violent man; that he had made threats against the defendants; that they had information concerning those threats; that they armed themselves; that they went to Kutler’s home; that they got into an altercation with him; that an encounter ensued which resulted in Kutler’s death; and that they had reason to believe that their visit to Kutler’s home would result in an altercation and a possible encounter in which it might be necessary for them, in self-defense, to take Kutler’s life. They had no right to go to Kutler’s home in that manner under those circumstances.” (p. 415.)
It is suggested, however, that defendant was not a trespasser because Kuttler gave permission to examine the mule. But he was a trespasser when he undertook to unhobble the mule and to take it from Kuttler without his consent. They say that the testimony is undisputed that on the defendant’s peaceable assertion of ownership the deceased began a deadly assault on defendant. There was a brief interval when no one except the defendant and his confederates and their victim were present, and their story as to the inception of the affray is the only direct testimony as to just how it did originate, but undisputed testimony may nevertheless be untrue, especially when it is self-serving, and furthermore this testimony was most persuasively disputed by all the circumstances. No sane man would immediately proceed to violence against three armed men on their mere assertion of ownership, having no weapons himself and none accessible except such stick or club as chance might put in his way. The deceased may have been a violent and quarrelsome man, but it is hardly reasonable that he would become violent and dangerous on the mere peaceable assertion of ownership of the mule, for that assertion was nothing new to him; it did not take him by surprise; defendant had asserted ownership of the mule some days previously when he and the sheriff visited the Kuttler place; and, furthermore, Kuttler gave defendant a fair opportunity to assert peaceful ownership of the mule when he informed him by United States mail that he had such mule in his possession under claim of ownership. The circumstances tend strongly to show that, being there in armed force, the defendant and his confederates disclosed to Kuttler their determination to take the mule, but that he was not to be intimidated by their show of firearms, and that he boldly told them, “You will play hell getting it,” and at once closed the corral gate and called for his wife’s assistance. The interval before his wife’s appearance was short, and when she arrived the defendant held the mule with one hand and he and his brother held their guns on Kuttler, and Thompson drew his gun on Mrs. Kuttler and told her not to come another step. She testified:
“I threw up my hands and said I was empty handed and I had only one time to die; to turn loose if he wanted to. I went on to the gate and he took down his gun; ceased pointing it on at me. Thompson then . . . turned the gun toward Kuttler in the corral.”
Defendant complains of certain instructions, saying—
“As abstract statements of the law the instructions are probably correct, but not applicable to the facts. . . . There is no evidence that they went there with any intention of taking the mule by force or that they went there intending to provoke an assault.”
We hold otherwise; the evidence inherent in the circumstances was almost wholly to the contrary. Why all this arming and show of guns and revolvers, and this carefully planned journey of forty miles — this second journey, this rendezvous at night at the home of Horning, and the requisition of Horning’s gun to add to their already formidable arsenal? They were there to get the mule, to overawe, overpower or slay Joe Kuttler, if necessary to accomplish their purpose; and they did exactly what the circumstances indicated their intention to do.
As a final protest against the judgment defendant suggests that he has been unable to procure a transcript of the entire record, and that this was not through any fault of his. .That does not call for a reversal of this case, notwithstanding the doctrine and citations of counsel to that effect. Indeed, that is not a fair statement of the rule which they quote from 17 C. J. 164. That rule is:
“But if, by reason of a loss of the record, appellant is unable by no fault of his to perfect his appeal, he will be excused from producing the transcript and the judgment will be reversed. A reversal of a conviction is not required, however, because the entire record cannot be presented to the appellate court; but it is the duty of defendant to substitute the lost parts of the record by proper proceedings in the lower court.”
Under our practice whatever part of the record has been lost or is otherwise inaccessible for presentation on appeal may be supplied by copies, substitution, or statement of contents, under the supervision of the trial judge. (Civ. Code, §§583, 755a, 7556, 755h; Crim. Code, § 282.) Furthermore, the missing part of the record had to do with the testimony of character witnesses, showing the prior peaceable disposition of the defendant and the turbulent propensities of the deceased. As no error is suggested touching these incidents it is altogether immaterial that such testimony is wanting. Indeed, defendant’s mere statement in his abstract that such was the nature of the testimony, when the state does not care to contest its accuracy, is an abstract of it and answers every purpose of review, since there is no error based thereon.
The record discloses no reason for disturbing the judgment, and it is therefore affirmed'. | [
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The opinion of the court was delivered by.
West, J.:
In the defendants’ briefs and in the two motions for rehearing it has been insisted that the testimony failed to show that Joseph Casson was of unsound mind at the time the will was signed. In the second motion therefor, filed April 10, a résumé is given of the testimony, and it is said there were eighteen witnesses who knew Joseph Casson until his death, or nearly so, whose evidence of his sound mind was positive, and based upon close, intimate and continuous acquaintance, “as against a group of witnesses whose adverse opinions were formed from casual, remote and intermittent acquaintance and observation, too stale to be entitled to consideration at all.”
The opinion recited certain portions of the evidence showing Mr. Casson’s eccentricities and peculiar conduct, reference being made to the testimony of Doctor McDonald, and also the affidavit of James Acheson made on the motion in support of a new trial touching Mr. Casson’s appearance at his house after the will was made. It was said in the opinion to be the settled rule that the trial court’s finding of fact is conclusive unless unsupported by the evi dence. Not only did the jury find mental incapacity, but the court made a similar finding of its own. While the record presented is one from which different triers of fact might, and doubtless would, have reached -different conclusions, the majority of the court feel that there was sufficient to sustain the finding of mental incapacity.
Aside from the unquestioned peculiarities manifested by Mr. Casson from which numerous witnesses concluded he was of unsound mind, we have the testimony of Doctor McDonald, who, from personal observation was unconvinced of such unsoundness, but answered that certain proved conduct indicated insanity. In order that the decision in this case may not be deemed a departure from the settled rule, the somewhat unpleasant duty is undertaken to refer more in detail to the testimony of H. W. Page, partner of the attorney who drew the will and who was in- the office in an adjoining room at the time it was signed. Attention is called to the following:
“Mr. Casson was very feeble. I think he was-in the neighborhood of ninety years of age. I doubt whether he could walk alone that day. The day was not cold but Mr. Casson had on an overcoat and a long red scarf around-his neck and wore a cap.”
The three went into Mr. Hazen’s private office. There was a partition between the two offices, which was boarded up about three feet and glass above that, and his desk and W. R. Hazen’s sat against the partition on opposite sides, and there was a door about the center of the partition wall.
“When Joseph Casson came in, they went into Mr. Hazen’s office and the conversation that was carried on in there was between Mr. Acheson and Mr. Hazen. I didn’t hear Mr. Casson say a word. . . .
“Q. Did you hear Acheson say what should go into the will? A. I did. Mr. Acheson was in a few days before that talking over the making of the will and Mr. Hazen told him he would have to bring Casson in; that was a few days prior to the time Casson came. . . .
“Q. Did you hear Joseph Casson say to Judge Hazen anything about the making of the will? A. No, sir; he said nothing. . . .
“Q. Now after the will was dictated by Judge Hazen and prepared, what was done with the will then? A. Mr. Hazen read it over in his office. . . .
“Q. He then had the will in his office where Mr. and Mrs. Acheson and Joseph Casson all were? A. Yes, sir.
“Q. And the will was read over there? A. Yes, sir.
“Q. Was anything said between Judge Hazen and Mr. Casson in relation to the will? A. Mr. Hazen said to Casson, he said, ‘Joe, is that the way you want it?’ Mr. Casson was then where I could see him. Our door was partly open. The telephone rang and I was in the act of answering the phone, when Mr. Hazen asked Mr. Casson that. Mr. Casson made no reply. Mr. Casson was crying, tears running down his face.
“Q. Did he make any answer to this question? A. No, sir.. Mr. Hazen asked him in a loud voice, ‘Joe, is this the way you want the will?’ and without appearing to understand, he said: ‘If that’s the way these folks want it, I guess it’s all right.’
“Q. Did Judge Hazen say to you in this conversation which took place after the parties left in substance: ‘That was a job I don’t like.’ A. I wouldn’t say he said that in those words. In substance.
“Q. I will ask you if he said to you in substance that ‘old Joe is not going to last long’? A. He did in substance; might not have been just those words. I remember him saying he had failed very much since he last saw him.
“Q. Did he, W. R. Hazen, say, ‘They are going rather strong to get all of old Joe’s property’? A. I don’t know as he said ‘rather strong.’
“Q. State what he did say. A. It was in substance that he thought the Achesons had. taken advantage of the old man. . . .
“Q. What did you say to the stenographer about it? A. We- had a conversation about the Achesons; how they had brought this old man in there and gotten all of his property. We knew of the fact that he had) given them the farm before, and how they had given it to the children instead of taking it themselves, and we thought it strange, and the condition of the old man, appearing not to know where he was that day.”
While Mr. Page was not asked his opinion as to the mental ca-’ pacity of the testator, the foregoing is sufficient to show what it was, and being familiar with him and his circumstances and surroundings, and having seen him and noted his appearance and heard his answer to the questions on this occasion, his testimony is quite significant.
While the question of undue influence was for some reason taken out of the case, it is held that the findings made by the jury and also by the trial court of mental incapacity at the time the will was made were and are sufficiently supported and sustained.
The former opinion is therefore adhered to.
Burch, J., dissents. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a bank against the payee and endorser of a promissory note. Defendant’s demurrer to the bank’s evidence'was sustained for the reasons given by the trial court—
“That the evidence fails to show that any notice was given to Clark [defendant] of the [maker’s] failure to pay the note or demand made on the maker or notice to that effect given to Clark.”
Defendant moves to dismiss this appeal because no transcript was made or filed in the district court. What purports to be an abstract is submitted by plaintiff and a transcript of some of the evidence has been furnished to this court. As we do not discern any difficulty in determining the controlling features of this appeal on their merits, the motion to dismiss will be denied.
It can be inferred from the record that in September, 1917, the defendant was the nominal president of the plaintiff bank, but this is denied, and there is no direct evidence on the point. It can also be inferred that he had retired from the presidency, as the record shows that he closed his account with the bank in January, 1918, several months before this note matured. He resided at Paxico, a few miles away, and the management of the bank was vested in the cashier. Defendant sold some mules and harness to two men, Adams and Lemon, at Maplehill. At the instance of defendant, the plaintiff’s cashier sent blank notes and chattel mortgages to a man in Maplehill, and these were filled out and executed by Adams & Lemon, payable to S. C. Clark, the defendant. The notes were sent to the plaintiff bank and Clark was given credit therefor on his bank account. One of these notes is the subject of this lawsuit. The makers made default, and the bank brought this action against the makers and against Clark as endorser. Clark had not actually endorsed the note, but plaintiff contends that he is liable as such under the statute. (Negotiable Instruments Act, § 56, Gen. Stat, 1915, § 6576.) The defendant does not contest this point, but it is not a critical matter in this review. The main question is the propriety of the trial court’s ruling on the demurrer to the evidence. The negotiable instruments act provides that as a condition precedent to fixing an endorser’s liability, demand or presentment for payment must be made to the maker on the day when the note is due (Gen. Stat. 1915, §§ 6598, 6602) and if the note is dishonored the endorser must be promptly notified either personally or by mail (Id., §§ 6631, 6632).
There was no evidence of conformity with these provisions except as narrated by the cashier. He testified:
“Prior to the time the note fell due I sent a notice to.W. B. Adams and J. M. Lemon calling their attention to the note of $285.00, and interest would be due at The Willard State Bank on the 3rd day of September, 1918. . . . When the note was not paid I called Mr. Clark’s attention to the non-payment of the note by letter.”
The letter, dated November 14, 1918, in part reads:
“Mr. W. B. Adams whose note for $285.00 we purchased from you in September 1917, claims that he settled the note by returning the team of horses and work harness covered by the chattel mortgage which we hold. Advise us in regard to the matter as to whe’ther Mr. Adams has stated the same correctly. You were given credit for the W. B. Adams’ note of $285.00, and one for $285.00, made by Levi Adams, or a total of $570.00, on September 19, 1917. Levi Adams has paid his note. The principal and interest on the W. B. Adams note amounts to $316.00 to date which we will ask you to remit if the security was returned to you as stated by Mr. Adams.”
A notice to the makers before maturity, reminding them of the date when the note would fall due, is not a presentment for payment on the due date, so as to furnish a basis for the endorser’s liability. Neither was the letter to the defendant endorser, two months and eleven days after the maker’s default, a prompt notification to the endorser, sucfi as is requisite to perfect the endorser’s liability.
It is argued that the defendant was not entitled to notice of protest for nonpayment, on the theory that the note was made or accepted for his accommodation. (Gen. Stat. 1915, §§ 6607, 6643.) Such argument is fallacious. The defendant was an endorser on no theory of accommodation but only because he had been at one time the owner, holder and payee of the note and had transferred it to the plaintiff for value, and because the statute confers upon the plaintiff transferee the right to the defendant transferrer’s endorsement. Since plaintiff has sought in this action to put defendant in the category of an endorser and to hold him as an endorser, it cannot avoid the consequences of its failure to give him the prompt notice which the statute requires in order to perfect an endorser’s liability.
Complaint is made because, when the court was about to make its ruling on the demurrer, plaintiff’s request for further time to procure the testimony of Adams, the maker of the note, was denied. This testimony, it was shown by an affidavit, would have disclosed some duplicity on the part of defendant in his dealings with Adams, that Adams had returned to defendant the horses and harness for which the note was given, and that defendant “told him not to worry about it as he would take it up and pay the bank for it.” Such evidence would have been altogether incompetent in this lawsuit; and even if it was competent, an adjournment in the middle of a trial is a matter within the discretion of the trial court, and a very strong and persuasive showing of injustice would have to be forthcoming before we could say that a refusal of further time was an abuse of that discretion.
Error is also based on the refusal to grant a new trial. The principal ground for requesting a new trial was because of missing documentary evidence — the letter from the cashier to defendant, written November 14, 1918, concerning the maker’s default — that the bank was looking to defendant for payment. The contents of this letter were given in the cashier’s testimony, and, as we have seen, it did not supply the statutory requirements of notice of dishonor.
The record contains no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Mrs. Emma Leavitt, who died in 1910, devised by her last will a life estate in her real property to Harrison H. Leavitt, her son. In 1916 the property was about to be sold for taxes and this action was brought for the purpose of having a receiver appointed and a sale of some of the property. A receiver was appointed, certain pieces of real estate sold, and after the taxes and expenses had been paid the balance remaining in the hands of the receiver was invested in government bonds. In 1919, a supplemental petition in the action was filed by F. G. Drenning, representing some of the remaindermen, asking for the sale of the remaining real estate, and for the appointment of a permanent trustee to keep the money invested in securities. Issues were joined on the supplemental petition and on February 21,1920, the court made findings to the effect that it was for the best interests of the parties that the property be sold and the proceeds invested; the prayer of the petition was granted. No appeal was taken from the order directing the sale of the property.
Later F. G. Drenning filed a motion in the action asking for an allowance as attorney’s fee for procuring the supplemental decree. The motion was resisted by the appellants. Because Mr. Drenning did not represent the receiver appointed and because the supplemental petition was opposed by the appellants, it is insisted that the court had no authority to allow him an attorney’s fee. Cases are cited where it has been held that an allowance to an attorney for services which were not rendered in aiding the receiver in the performance of his duties is improper. In the supplemental proceedings, Drenning represented Hattie Bruce Leavitt, one of the remaindermen. The services performed by him were not for the benefit of the receiver, but were for the benefit of the other remaindermen, and as the trial court held, were for the benefit of all the parties. The receiver was an arm of the court and not concerned in the supplemental decree. We think in such a case the court had authority to allow an attorney’s fee.
The court heard evidence concerning the services performed by Mr. Drenning. Two attorneys testified that in their opinion his services were worth from $500 to $1,500. The court allowed him $500 attorney’s fee and certain items of expense incurred by him including the cost of advertising sales of certain of the properties. The appellants claim that the court erred in allowing any attorney fee to Mr. Drenning. In a cross-appeal, Drenning claims that the amount allowed is inadequate, and that the court should have allowed him at least $1,000. The trial court was familiar with the proceedings in the lower court and the services Mr. Drenning had performed as attorney, and was in a far better position to determine from the evidence and the court’s knowledge of the proceedings what was a reasonable allowance to make than this court is from a reading of the record.
One of the errors assigned by appellants is the action of the court in directing a sale of the real estate under the supplemental decree. However, no appeal was taken in time from that order of the court and this claim cannot be considered.
From a careful examination of the abstract and briefs of both parties we discover no reason for disturbing the judgment of the trial court, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by the U. S. Fidelity & Guaranty Company upon an indemnity bond given by Theodore T. Grabske, to indemnify the plaintiff against loss on a contract of suretyship. It was decided that the answer of the defendant did not state a defense, .and from that ruling Grabske appeals. '
From the pleadings it appears that Albert H. Nooney entered into a contract with the board of education of Kansas City to furnish material and install a heating apparatus in a high-school building. He procured the Guaranty Company to give a bond that the contract would be carried out. Before doing so the Guaranty Company required Nooney to give a bond indemnifying it against loss by reason of its suretyship. . That bond was signed by Grabske and this action is brought thereon. It appears that Nooney failed in the performance of his contract with the board of education and the Guaranty Company was obliged to pay a considerable sum of money to the board of education under its contract of guaranty. Grabske’s defense was set up in an answer and was to the effect that he had been invited by one Taylor, the agent of the Guaranty Company, to sign the bond, and that as a consideration for signing it Taylor represented that he had arranged, with the board of education that no money should be drawn by Nooney on the contract without the consent of Taylor and that Taylor assured him that no money would be paid on the contract except under the directions of Taylor, that he would not permit any money to be drawn for materials until it had been used on the building, and would permit no money to be paid to Nooney for personal use or the payment of his own labor, but that the Guaranty Company had failed to do so, and he insisted that therefore he was not liable on the bond. A demurrer to this answer was sustained, and the question is whether the written contract may be enlarged or affected by the alleged parol agreement. .
It is elementary that a written contract in itself complete and free from ambiguity cannot be altered or enlarged by showing prior or contemporaneous oral agreements where the writing purports to be a full expression of the agreement. When parties have deliberately put their engagements in a written contract it is deemed to be the best and only evidence of their agreements, and it is not competent for one of them to assert or show that there were conditions or limitations of liability different from those specified in the writing. The indemnity contract in question is a complete instrument which purports to embody the conditions upon which the liability of defendant should depend. The pleaded oral agreement so closely relates to the subject matter of the writing as to be in fact a part of the transaction, and not only adds conditions not in the writing, but some of them are contrary to its terms and obligations. In such a case all prior or contemporaneous negotiations and understandings are deemed to be merged in the contract and must be determined from the writing itself. (Van Fossan v. Gibbs, 91 Kan. 866, 139 Pac. 174, and cases cited; Stevens v. Inch, 98 Kan. 306, 158 Pac. 43; Underwood v. Viles, 106 Kan. 287, 187 Pac. 881, and cases cited.)
The court ruled correctly in sustaining the demurrer to defendant’s answer and its judgment is affirmed. | [
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