Volume 197 — Kentucky Reports

<p>1. -Constitutional Law- — Invasion By -Legislature of P-owers of Executive — Election 'by Legislature.- — -Un-der t-lie provisions- of sections 27 and 28 of our Constitution -neither the legislative, the executive -or ministerial, or the judicial.'departments may exercise governmental functions' -properly belonging -to either of tihe other-s unless otherwise provided in the -Constitution.</p> <p>2. -Constitutional La-w — -Exercise -o-f Power in Election of Officers.-— Primarily the election or -selection -o-f -officers rests with the -people -composing the government, -but they imay designate in an -adopted 'Constitution the agency or agencies which may exercise the power, although it intrinsically may be one -belonging to t-he executive department.</p> <p>3. Constitutional Law — Power of Legislature in Election of Officers. ■ — 'The -only -power -conferred upon the legislature -concerning the ■election and appointment -of officers is f-o-und in section 93 relative to statutory state officers-, -and in section 107 relative -to the same character of district -and county officers, except section 249 which empowers -the legislature to elect its own officers constituting a part -of the legislative force necessary to -the conducting of a session of the legislature -and that body may -i-ts-elf elect the -officers mentioned in the latter -section; but the only po-wer it posesses under the first two -named ones is to provide -or prescribe the manner or method by which such officers may be elected -or appointed, which power does not include -the right -of the legislature to itsel-f appoint or elect such officer-s or -to include -them in the enactment -creating the -office, -since it is one -thing to -provide or prescribe the manner or method -for the doing o-f an act, and quite another -thing to perform the act under the guise -of providing the manner or method.</p> <p>4. Constitutional Law — Appointment -of Officers — Executive Function. —While the appointment or selection -of an -officer -may be -classed as an executive function, yet -it is -competent to bestow -by con-sti'■tutional provision the power on either -of the three -departments of state and even without -such bestowal each department would no doubt possess the -power to appoint officers whose duties are connected with -or appertain to that particular -department.</p> <p>5. Constitutional Law- — -Creation of State Highway -Commission — Election By Legislature. — The legislature in 1922 passed an act amending and re-enacting the existing -law with reference to -the -State Road Department, and in it there w-as -created a S't-ate Highway Commission -consisting of four -members, the first ones of whom were named in the act, and it was provided that -their successors should be elected ¡by the legislature: Held, that the .legislature had no right to so designate -or to itself elect such state officers and the act for that reason is invalid.</p> <p>6. Constitutional Law — Appropriations.—An appropriation of -money ;is made, within -the 'Contemplation, of section 46 of our 'Constitution, upon the -creation of an office and attaching thereto a designated salary and appropriating funds for its payment and a statute so enacted must receive a majority iof the members elected 'to each, •house of the general assembly in order to .become a law; but where an appropriation has already been made by some prior act for the defraying of such expenses, it is not an appropriation to-apply a part of the previously appropriated fund to the payment of a particular designated salary, since the legislature thereby only ■distributes the already appropriated fund without malting a new appropriation.</p> <p>7. Statutes — Signing Enrolled Bill or Withholding -Signature by Presiding Officer. — It is not within the province of the presiding officer of either house of the general assembly to withhold bis -signature to an enrolled bill upon the ground that -its subject matter is unconstitutional; but if some prescribed formality for the enactment o-f laws has not been com-plied with, -the withholding of the ■signature would be justified. Therefore, when a -presiding officer of either house writes at the -foot of.the enrolled hill -his reasons-for no-t -signing it and then- signs -his name to such reasons the bill would be -c-ons-idere-d as signed by him if the reason® -given are unfounded or insufficient.</p>

<p>Appeal from Clay Circuit Court.</p>

<p>Appeal from Bourbon Circuit Court.</p>

<p>1. Deeds- — lOon-sideration-—Liens.—-A 'deed which recites that the consideration is paid in full, affords protection to innocent purchasers of lien notes executed by subsequent vendees -under section 2358, Kentucky Statutes</p> <p>2. Infants — Repudiation of 'Contract — Equity.—An infant may at any time either before -or after he -arrives at the age -of twenty-one years be relieved of bis undertaking to purchase and pay f-or real estate, if he seasonably applies to a count of equity, and bis purchase money notes will 'be- cancelled.</p> <p>3. Infants — Liens.—The purchase -money notes of an infant which ■have been regularly negotiated before due but which are after-wards cancelled, confers -upon the good fai-t-li purchaser -of such ■notes a lien upon the land for which the notes were given.</p> <p>Í. Vendor and Purchaser — Acceptance of Notes. — Where a vendor ■prices his land at $3,0-0'0.00 and -accepts in payment therefor $1,-500.00 cash and three negotiable notes of which the vendee is the holder and payee in absolute -payment of the consideration, he runs the risk of the notes being paid and the acceptance of the said •notes by him as an extinguishment of the precedent debt is satisfaction, whether the notes are afterwards- paid -or not.</p>

<p>Appeal from Jackson Circuit Court.</p>

<p>Appeal from Breckinridge Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas, Second Division).</p>

<p>1. Landlord and Tenant — Tenancy from Year to Year. — A tenancy for a term of five years may at the end of the term he ¡converted into a tenancy from year to year under section 2295, Kentucky Statutes.</p> <p>2. Landlord and Tenant — Tenancy from Year to Year. — •'Where a lessee by contract has a -tenancy for five years, and at the end of the term hojds over for 90 -days -or -more, he is entitled to 'hold the ipremises for a year from the time of the expiration of the original lease, and so from year to year until the landlord institutes proper proceedings to oust the tenant, and this may continue from year to year until the tenant abandons the premises, is turned out of ■possession or makes a new contract.</p> <p>3. Mines and Minerals — 'Lease.—Where the -lessee -of mineral lands agrees tcspay a specified -royalty -per ton and is granted a lease for five years, and thereafter, with the landlord’s consent, -continues to operate the lease, being a tenant from year to year, he is .bound for the royalty according to the original agreement and no more. Until 'by contract the rate of royalty is changed the tenant as well as the landlord is bound .by the terms of the original lease, for if the landlord desires to terminate the lease he may do so according to the terms of the statutes; but if -he--fails to- do -so it will be .presumed' that -the royalties originally fixed in the contract are satisfactory.</p>

<p>Appeal from Payette Circuit Court.</p>

<p>1. Attachment — 'Specific Attachment — Unrecorded Mortgage. — Under the provisions of section 249 of the Civil Code -a specific attachment ¡may only 'be issued in an action to enforce a mortgage or •lien upon or for the recovery, partition or sale of ¡personal property, or by one having a future estate or interest therein; and a specific attachment issued in an action by a creditor, who had an unrecorded mortgage but did not assert the same in his action, is unauthorized, and the levy of same upon personal property acquired no lien thereon.</p> <p>2. Attachment — Amendment—Unrecorded Mortgage. — In such an action where an amendment is filed asserting the unrecorded mortgage, the filing of same -did not give him priority over the valid attachment liens acquired by other creditors .prior thereto.</p>

<p>Appeal from Campbell Circuit Court-</p>

<p>Homicide — -Indictment—-Conspiracy—Trial— Instructions.— Where, -on a prosecution .for -homicide, the indictment charged the accused (1) with 'having killed the deceased himself, (2) with -having aided his codefendants in killing her and (3) with having -conspired with ■his oodefendants to kill -her, and the indictment -contained no charge that he conspired with his -co-defendants to rescue certain -persons from jail, and that -one of the -conspirators killed -the deceased while -carrying out that -conspiracy, it was prejudicial error to submit the last named conspiracy to the jury.</p>

<p>Appeal from Logan Circuit Court.</p>

<p>Appeal from Boyd Circuit Court.</p>

<p>Appeal from Edmonson Circuit Court.</p>

<p>1. Contracts — Consideration—Parol 'Evidence. — It is competent to prove toy parol a different consideration from that expressed in a writing and that, too, without a prior allegation of fraud, oversight or mistake.</p> <p>2.. Contracts — Parol Evidence — Varying Terms of Written Contract.— The rule against varying the terms of a plainly written and apparently 'completed contract toy proof of prior or contemporaneous oral agreements is not violated toy proof of a contemporaneous parol trust showing the status and relation of the vendee, lessee or other -obligee in the contract -to be different from what -it purports to toe toy the writing. Therefore, a lessee who agrees with the lessor at 'the -time of ithe -execution iof- the lease that if he "Should dispose of it he would pay ithe lessor an agreed sum is liable to 'the lessor for that sum if he makes a disposition of the lease, although no mention -of the oral trust is made in the lease, si-nce it is -competent to 'establish the trust toy parol proof without violating the rule against altering the terms of a written contract hy prof of prior or contemporaneous oral agreements.</p>

<p>Prohibition — Intoxicating Liquors — Execution of Bond for Good Behavior — Appeal.—Where an offender against the. prohibition statute ¡of 1922, has been tried and convicted in a police count, and as a consequence of the conviction an order has been made requiring him to execute a bond -for good behavior, etc., as provided by ■section 18, chap. 33, Session Acts, 1922, and in default of such bond is ordered to be committed to jail for ninety days, and .he prosecutes an appeal to the circuit court from the judgment of conviction, the appeal does not suspend or affect the order requiring the execution of the bond, but it remains in force until the judgment appealed from has /been -reversed or set aside upon the appeal, or until the expiration of the period for which he was committed under the order.</p>

<p>1. 'Criminal Law — Contradictory Language in Indictment — Construction. — Contradictory language in an indictment construed so as to conform 'to its evident meaning upon appeal from a judgment pronounced upon defendant’s plea of not guilty and confession that ithe facts alleged in the indictment were tr-ue.</p> <p>2. Corporations — Sale of Investment Contracts — Blue Sky -Law. — lA common law trust in an Investment company as defined by the Kentucky “blue sky law,” section 883e-2, Kentucky Statutes, and required by that law to furnish information and procure the approval of tihe State Banking Commissioner and a license before selling or offering to sell in this state investment contracts or securities of its issue.</p> <p>3. Statutes — Constitutional Law. — Such law so construed is not unconstitutional.</p>

<p>Appeal from Letcher Oircuit Court.</p>

<p>1. Commerce — 'Corporations—¡Doing Business in Another State. — A corporation of one state may go into another, without obtaining leave or license of the latter, for all the legitimate purposes of interstate commerce, and any statute of the latter state which obstructs or lays a burden on the exercise of that privilege is void under the commerce clause.</p> <p>2. Commerce — Corporations—Doing Business 'in Another State — Interstate 'Commerce. — Where a corporation, organized under the laws 'of West Virginia and engaged in the business of selling coal for 'deliveries in different states of the union, entered into a contract for the output of a coal mine in the state of Kentucky, with the view of supplying its customers with coal therefrom, the transaction was an incident to interstate commerce and was not ■within the legitimate scope of the provisions of section 571 of Kentucky Statutes.</p>

<p>1. Wills — Devisero ondition -Precedent. — A devise of land to two sons on condition that they support and take care of their mother so ■long as she lives and their three unmarried sisters so long as .they remain single, is not defeated if one of the sons takes charge of the lands and .performs the conditions of the devise.</p> <p>2. ¡Wills — Condition Precedent. — Although one devisee may perform all of 'the conditions precedent this will inure 'to the benefit oiC both devisees in the absence of a showing that the non-performing devisee had relinquished his rights under the devise, for it: will be presumed that the execution of the conditions precedent: by one of them was at the instance and for the'benefi't of both: devisees.</p> <p>3. Wills — Estoppel.—Where one o.f ithe devisees takes charge of lands devised to him and his brother and holds and uses the .same for his benefit, he is estopped to say' he was not holding the land for himself and joint devisee.</p>

<p>Appeal from Nelson Circuit Court.</p>

<p>1. Municipal Corporations — Injunctions.—A municipality is entitled ■to injunctive relief against persons erecting buildings and other improvements upon or over its .streets, passways or other public places within its limits.</p> <p>2. Municipal Corporations — ¡Streets—Adverse Possession. — Where a ¡city shows by its records, including the acts of the legislature ■creating and establishing the municipality .and toy maps, that certain streets, alleys and public grounds once .belonged to the city, and the defendant relies upon adverse possession, the ¡burden is ■upon the adverse claimant, to show not only that he had been in the actual adverse possession of the property in controversy for as much as the statutory ¡period but that he had given to the city written notice as provided in section 2546 Kentucky Statutes' ■that he intended to hold .such property adversely.</p> <p>3. Municipal Corporations — Sale or Release of Streets. — A city and its board of council have no inherent power to sell, give or release any of iits streets, alleys or public ways, and when such authority is conferred by statutes its exercise must be in accordance with the terms of 'the statutes.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Larue Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas, Fourth. Division).</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Eockcastle Circuit Court.</p>

<p>Schools and School Districts — District Debt Securities and Taxation. — A graded common school district may vote bonds for the erection or improvement of school buildings, under section 4477, Acts 1922, even though the board of education of the district had theretofore levied $1.25 upon the one hundred dollars’ worth of taxable property assessed for the purpose of taxation in said district, and a poll tax of the highest amount allowed by law on the same, to be used for the erection and equipment of buildings, for there may be levied in addition to the aforementioned tax, 25c on the one hundred dollars’ worth of taxable property for the purpose of creating a sinking fund and to raise the money with which to pay interest on the said bonds.</p>

<p>Appeal from Meade Circuit Court.</p>

<p>Appeal from Grant Circuit Court.</p>

<p>Appeal from McCreary Circuit Court.</p>

<p>Appeal from Spencer' Circuit Court.</p>

<p>Appeal from Breathitt Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas, Second Division.)</p>

<p>Appeal from Edmonson Circuit Court.</p>

<p>1. Municipal Corporations — Maintenance Through. Private Property of Pipe Dine for Water. — In the construction of a highway a pipe was placed across it in a ravine to carry off the surface water, a fill was made and the highway was placed on its surface. For his own convenience the owner of the land below the highway extended a pipe line to a creek and filled in the ravine, grading the surface for a city lot. Afterwards the pipe gave way at a point in this lot, and the adjacent property was damaged by the water. Held that the city was und^r no obligation to maintain the iine of pipe at that place.</p> <p>2. Municipal Corporations — Water Pipe Line Through Private Property. — A municipality is under no obligation to maintain a line of pipe running through private property and constructed and used for the convenience of the owner.</p>

<p>Appeal from Trigg Circuit Court.</p>

<p>Appeal from Kenton Circuit Court.</p>