Volume 303 — Missouri Reports

<p>1 BILL OF EXCEPTION'S: Attached to Transcript. The transcript recited: “Comes now the defendant and presents his bill of exceptions which are examined by the court, and same are approved and ordered filed and made a part of the record in this cause, which is accordingly done,” which was an entry made by the trial judge in open court. This was followed by the certificate of the clerk that said transcript “is a true, full and complete transcript of all records and proceedings of the Nodaway County Circuit Court in the cause therein mentioned.” To this was attached by metal slips a document entitled “Bill of Exceptions” in the case, signed by the trial judge and prosecuting attorney with pen and ink. Held, that the bill of exceptions is sufficiently authenticated and identified, although a better method should have been pursued.</p> <p>2.WITNESS: Father of Deceased: No Objection: Irrelevant Matters: Obvious Facts. Defendant was convicted of the crime of driving an automobile while in an intoxicated condition. The automobile turned over and a young man who accompanied him was killed. At the trial the father of this young man was called as a witness for the State, and it is now urged that the father’s testimony related to irrelevant and immaterial matters, and the use of him as a witness was calculated to inflame unduly the minds of the jury against defendant. Held, that, no objection having been made to the use of the father as a witness, it cannot be ruled that the trial court erred in permitting him to testify. Besides, the father was a competent witness upon relevant and material matters, and objections to specific parts of his testimony must be judged by the rules applicable to the testimony of witnesses not related to deceased. And, further, the- situation at the point -of the accident, including the presence of the body of the young man, was a part of the res gestae, but proof of the fact that he was a member of the witness’s family and that his body was cared for by the undertaker after his death was not necessary to the State’s case, yet it cannot be ruled that proof of such obvious facts was reversible error.</p> <p>3. -: -: Creating Atmosphere: No Objection. Dressing the stage of a criminal trial, and creating an atmosphere unfavorable to defendant, should be avoided, but cannot be held to be reversible error unless challenged during the trial.</p> <p>4. -: -: Automobile: Intoxicated Driver: Gradation of Punishment: All Facts Connected With Offense. The statute, by providing a variable punishment from a fine of one hundred dollars to imprisonment for five years, for the operation of a motor vehicle by an intoxicated driver, contemplated that the jury would take into consideration all the facts connected with the crime, and it is therefore proper to show all the attending circumstances, including the fact that the defendant driver was accompanied by a young man who was killed when the automobile turned over.</p> <p>5. JURY: Separation: Finding of Trial Judge. Even though defendant did not consent to the separation of the jury during a recess in the trial, such separation will not be reversible error if the trial judge fully investigated the matter and affirmatively found that they had not been subjected to improper influences.</p> <p>6. INSTRUCTION: Automobile: Intoxicated Driver: Upon Public Highway. Although the information charged that the defendant was operating an automobile “upon a public highway” while intoxicated, an instruction which did not require the jury to find that he was driving the automobile “upon a public highway” was not erroneous, because the statute does not specify the place, but only says that “no person shall operate a motor vehicle while in an intoxicated condition, or when under the influence of drugs,” and the allegation in the information was therefore surplusage.</p> <p>7. RES GESTAE: Proof of Intoxication: Presence of Whiskey. In a trial of a defendant charged with driving an automobile while in an intoxicated condition, all the facts and circumstances tending to show, or to support the opinion of witnesses, that he was intoxicated, such as the presence of recently emptied whiskey kegs at the place of the accident, damp spots on the ground where whiskey had apparently just been poured, the smell of whiskey in the air,' broken bottles and whiskey in the automobile, are admissible in evidence.</p> <p>Headnote 1: Criminal Law, 17 C. J. sec. 3441. Headnote 2: Criminal Law, 17 C. J. secs. 3331, 3662; 16 C. J. sec. 1114; Witnesses, 40 Cyc. 2209. Headnotes 3 to 5: Criminal Law: 3, 17 C. J. sec. 3332; 4, 16 C. J. sec. 1114; 5, 17 C. J. sec. 3717. Headnote 6: Motor Vehicles, 28 Cyc. 60. Headnote 7: Evidence, 22 C. J. sec. 569; Criminal Law, 16 C. J. sec. 1114.</p>

<p>1. CONVEYANCE: By Defectively Acknowledged Deed of Wife: Pos-sessory Bight of Husband: Limitations. A deed made hy a husband and wife in 1878, attempting to convey the wife’s lands, properly acknowledged by the husband, but defectively acknowledged by her, did not convey the wife’s title, but did convey the husband’s pos-sessory right, or curtesy initiate, which he had by virtue of the marriage, and which, because children were born of the marriage, became .curtesy consummate, or a life estate, upon the wife’s death, which the deed operated to convey, but his grantee was vested only with his possessory right while the wife lived, and with his curtesy consummate on her death, and no right of action accrued to her children until her death interstate and his death, ahd their .suit of ejectment, brought within five years after the husband’s death, the wife having previously died intestate, was not barred by any statute of limitations.</p> <p>2. -: -: Limitations: Life Tenant and Remaindermen. During the continuance of the life. estate no statute of limitations runs against the remaindermen. A deed made prior to the time the Married Woman’s Act of 1889 went into force, by which a married woman and her husband attempted to convey her lands did not convey her title, if her acknowledgment thereto was defective, and while it did not attempt to carve out a life estate in favor of her husband, or a remainder in favor of her children or heirs, by operation of law the husband had a possessory right or curtesy initiate, which, when children were born of the marriage, became curtesy consummate, or a life estate, which was all the deed conveyed, and the title at her death descended to her children or heirs, as vested remaindermen, hut their right to possession, after her death, did not ripen until his death, and no statute of limitations could run against them while he lived.</p> <p>3. -: -: -: Thirty-Year Statute. The thirty-year Statute of Limitations cannot be applied to a remainderman unless it begins to run before the life estate has been carved out and separated from the remainder. After the life estate and the pos-sessory right of the life tenant begins, adverse possessibn starts the statute to running against the life tenant, but not against the remainderman, because no possessory action in his favor has accrued.</p> <p>4. -: Adverse Possession: Life Tenant Against Remainderman. A life tenant cannot hold adversely to his remainderman, and the grantee of a life tenant is himself a life tenant during the life of the original life tenant.</p> <p>5. -: -: Thirty-Year Statute: Disabilities: Unacerued Right. The thirty-year Statute of Limitations mentions no disabilities, but it can be applied only against a cause of action which has accrued. It runs against such disabilities as minorities, insanity' and coverture, but not unless the cause of action has accrued, and to. accrue the party suffering disabilities must have an immediate possessory right. It does not run against remaindermen until the life estate has become extinct, because until it terminates the remainderman’s right to possession has not accrued.</p> <p>6. LIMITATIONS: Ten-Year Statute: From Death of Wife: Conveyance by Husband of Wife’s Land. Notwithstanding the husband and wife in 1878 joined in a deed by which they attempted to convey the wife’s lands, which did not convey her title, because her acknowledgment thereto was defective, and notwithstanding the deed conveyed the husband’s possessory right and the grantee went into immediate possession and has since remained in possession, the ten-year Statute of Limitations did not begin to run against tlie wife’s children, horn of the marriage, upon her death in 1909, hut only upon the husband’s death in 1917, for upon the birth of children his curtesy became consummate, or an estate for life, and ejectment brought by the children in 1921 was not barred by the statute.</p> <p>7. --: -: Wife’s Defective Acknowledgment: Right and Failure to Sue:. Ejectment by Children. The fact that the wife, after she and her husband had in 1878 joined in a deed, by which they attempted to convey her lands, which failed to convey her title, because her acknowledgment thereto was defective, had a right to bring suit to determine her title and failed to do so, can in no wise affect the right of their children, after her death intestate and after the husband’s death, to maintain ejectment against the grantee. During the husband’s life the grantee, by reason of the deed, held the husband’s right to possession, and her suit could have only determined that she was the owner of the title, with no right to possession while her husband lived; and though the children, immediately upon the wife’s death, could have maintained suit to determine the title, they could not have been decreed possession until the husband’s death.</p> <p>8. -: Ejectment by Vested Remaindermen: Action Within Three Years: Section 1310. The statute (See. 1310, R. S. 1919) declaring that if anyone “entitled to commence such action or to make such entry die during the continuance of any disability,” then his heirs may commence such action within three years, “but not after that period,” has no application to ejectment by the children of a married woman who died intestate and who was not entitled during her life to commence a possessory action. Where the deed of the wife and husband, attempting to convey her lands, failed to convey her title, she was not entitled to commence suit against the grantee for possession of the land at any time during her husband’s life, and her children were not required by said statute to commence their action of ejectment to recover possession within three years after her death intestate, because she was not entitled to possession; and while they might have maintained an action to determine the title after the wife’s death, they could not in such action have recovered possession while the husband was living, and their failure to bring such action does not affect their right to recover in ejectment brought more than three years after the husband’s death.</p> <p>9.-: -: Action Within Two Years: Section 1312. Section 1312 applies where the holder of the legal title has conveyed and the spouse has not joined, but does not apply where the wife holds the legal title and has not conveyed.</p> <p>10. -: -: Action Within Two Years After Cause Accrued: Section 1308. Section 1308, limiting the bringing of a suit to two years, where a cause of action has accrued to a married woman more than ten years before bringing the suit, does not apply to ejectment by her children after her death intestate, where no cause of action for possession of the land ever accrued to her, and accrued to them only after her death and after the death of her husband.</p> <p>Headnote 1: Husband and Wife, 30 C. J. sec. 653; Acknowledgments, 1 C. J. secs. 60, 65; Curtesy, 17 C. J. sec. 52; Ejectment, 9 C. J. sec. 89; Estates, 21 C. J. sec. 170. Headnotes 2 and 3; Estates, 21 C. J. secs. 173, 124; Husband and Wife, 30 C. J. sec. 643; Curtesy, 17 C. J. secs. 38, 39. Headnotes 4 and 5: Estates,. 17 C. J. secs. 122, 173. Headnote 6: Adverse Possession, 2 C. J. see. 188. Headnotes 7 to 10: Ejectment, 9 C. J. sec. 89.</p>

Appeal fom St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.

— Hon.' L. A. Vories, Judge. 1 (1) Under all the evidence in the case the poles, cross-arms, braces, wires and other appliances pertaining thereto and described in evidence were the sole property of the defendant, and-the deceased was without right or authority by invitation, as a licensee or otherwise, to go upon said pole, cross-arms or braces, or among said wires, and in going’ upon one of defendant’s braces and among defendant’s wires he was a trespasser, and the…

<p>1. TBUST IN BEAL ESTATE: Conveyance: Oral Agreement to Pay Debts: Accounting: Equitable Mortgage. A conveyance, without consideration, by the owner of real estate upon an oral agreement that the grantee would collect the income therefrom, sell the same, and, after paying all incumbrances and charges against it, pay the balance over to the grantor, creates a trust in favor of the grantor, and calls for an accounting, and, if the property has not been sold, for a re-investment of the title in the grantor, upon a reimbursement of the grantee for what he has expended in pursuance to the oral agreement. But if the conveyance is supported by a consideration — if made for the purpose of pledging the property as security for the re-payment of money loaned the grantor by the grantee, to be used in preventing a pending foreclosure sale under an existing deed of trust — the quit-claim deed, though absolute in form, is an equitable mortgage, and the grantor’s rights and remedies are those of a mortgagor, and he is entitled to a reconveyance only when he pays the mortgage debt.</p> <p>2. -: Conveyance as Mortgage: Redemption: Pleading. A bill which has for its purposes the settlement of a trust which would arise by operation of law upon the facts alleged, and containing none of the essentials of a bill to redeem mortgaged premises, cannot be treated as a bill to redeem. If it alleges that plaintiff’s quitclaim deed to defendant was executed without any consideration whatever, and expresses no willingness to pay the debt for which the deed was in fact a pledge, or to reimburse defendant for his outlay, but simply seeks to have the premises re-conveyed to plaintiff subject to whatever debt may be found to be due defendant upon an accounting, it contains none of the essential elements of a bill to redeem.</p> <p>3. -: -: Redemption: Performance. Only by due performance of the obligation secured by a mortgage can there be a redemption.</p> <p>4. -: Accounting: By Mortgagee in Possession. It is the duty of a mortgagee in possession to render an account to a person entitled and desiring to redeem the mortgaged premises; ' but where such person manifests no intention to redeem, either by his bill or by anything occurring during the progress of the trial, a judicial ascertainment of the state of the account serves no useful purpose.</p> <p>Headnote 1: Trusts: 39 Cyc. 60; Mortgages, 27 Cyc. 1004. Head-notes 2 to 4: Mortgages: 2, 27 Cyc. 1854; 3, 27 Cyc. 1847; 4, 27 Cyc. 1835, 1836.</p>

— Hon. Henry J. West-hues, Judge. (1) The information is fatally defective because it fails to contain the special conclusion necessary in an indictment for murder. 22 Oyc. 278; 1 Wharton, Am. Cr. Law (6 Ed.) sec. 214; State v. Coleman, 186 Mo. 151; State v. Atchley, 186 Mo. 197; State v. Dawson, 187 Mo. 60; State v. Minor, 193 Mo. 597; State v. Meyers, 99 Mo. 107; State v. Cook, 170 Mo. 210; State v. Sanders, 158 Mo. 610; State v. Lawhorn, 250 Mo. 293.

— Ron. John M. Dawson, Judge. (1) The whole scheme and purpose of the will was to provide for the wife. By her renunciation the scheme and purpose of the testator was defeated and the will rendered a nullity. Finnell v. Finnell, 80 Kans. 730, 18 Ann. Cas. 471.

Prohibition. (1) The probate court by the Constitution has jurisdiction “over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians,” etc. Mo. Constitution, art. 6, sec. 34.

Prohibition. (1) The action of the criminal court in refusing to transfer the cases herein, constituted a collateral attack on the judgment of the juvenile court, since said court had in an original proceeding’ adjudg*ed relator’s age at a time when the issues were the same as well as the parties thereto-; the finding of said juvenile court is res judicata. Secs. .1137 to 1152, R. S. 1919; Outram v. Morewood, 3 Fast. 366; Southern Pac. Rd.

<p>1. INSTJE.AN'CE: False Answers in Application: Waiver: By Agent. It has often been decided by this court that the principal .is only bound by the knowledge of his agent as to matters within the scope of his agency, and is not bound by notice to or knowledge of the agent in respect to matters outside the scope of his agency; but that rule was not contravened by the Court of Appeals in holding that the insurance company was bound, and waived false answers in the insured’s application touching a previous severe assault and physical injuries resulting therefrom which subsequently caused his death, where the agent was fully informed concerning the assault upon the insured and his condition of health resulting therefrom, prior to taking the application, and thereafter accepted the application, procured the issuance of the policy, delivered it to the insured and accepted the premium, and that delivery by him, being within the scope of his agency, was delivery by the company, and any knowledge he had at the time of the delivery was the knowledge of the company, and. that such facts constituted waiver on the part of the company; for this court has never ruled that where an agent has authority to deliver a policy and collect the premium, his prior knowledge of the insured’s physical condition was not binding upon the company.</p> <p>2.CERTIORARI: To Court of Appeals: Similar State of Facts. In a certiorari to a court of appeals the Supreme Court is concerned only with conflict of opinion. In such a case it is not the province of the Supreme Court to determine whether that court erred in its application of rules of law to the facts stated in its opinion, but the province of this court is to determine only whether upon those facts its opinion announced some conclusions of law contrary to the last previous ruling of this court upon the same or a similar state of facts.</p> <p>3. -: -: Proposition Not Decided or Discussed: Fraud. This court cannot quash the opinion of a court of appeals for its failure to discuss a question which that court might appropriately have discussed and decided, but neither decided nor discussed. This court cannot on certiorari sustain a contention that, on the facts stated in its opinion, that court should have held that the defendant’s agent and the insured were in collusion to perpetuate a fraud upon defendant and that the knowledge of the agent cannot therefore be considered the knowledge of defendant, where that court in its opinion did not consider such a proposition, and it was brought to its attention for the first time in a motion for a rehearing.</p> <p>4. - — : -: Insurance: Vexatious Delay: Waiver: Meritorious Defense. An insurance company cannot be penalized for vexatious delay or refusal to pay a policy if it has a meritorious defense to an action thereon. Where the insurance company’s knowledge of the acts of its agent which were held by the Court of Appeals to amount to waiver was admittedly purely constructive and not actual, and the agent at the trial denied that he had knowledge of the facts which that court held constituted waiver by the company, and his knowledge was established as a fact by plaintiff’s evidence, of which the company did not have previous knowledge, the opinion of that court holding that “since the question of law involved was one previously settled by the adjudications in this State, and since the defendant must be held to have had such knowledge of the facts pertaining to the health of the insured as was possessed by the agent, the question whether defendant should be penalized as for vexatious refusal to pay the loss was one for the jury,” contravened the decisions of this court in Non-Royalty Shoe Cc. v. Assurance Co., 277 Mo. 399; State ex rel. Mo. State Life Ins. Co. v. Allen, 295 Mo. 307, and Berryman v. Southern Surety Co., 235 Mo. 379. For if neither the company nor its agent had knowledge of the insured’s bad physical condition when the policy was delivered by the agent, which knowledge was held by that court to constitute waiver, the company had a complete defense, and the undoubted right to refuse payment and to defend an action on' the policy.</p> <p>Headnote 1: Agency, 2 C. J. secs. 542, 544; Insurance, 32 C. J. secs. 574, 584, 618; Life Insurance, 28 Cyc. 863, 865; Courts, 15 C. J. sec. 511. Headnotes 2 and 3; Courts, 15 C. J. sec. 511. Headnote 4: Insurance, 33 C. J. sec. 890; Courts, 15 C. J. sec. 511; Life Insurance, 25 Cyc. 811.</p>

<p>1. PLEADING: Amendment After Verdict and Judgment. Plaintiff being compelled at the close of the evidence, upon the motion of defendant, to elect upon which of the three counts of her petition she would go to the jury and having elected to stand on the third count, it was not error to permit her, after verdict and judgment in her favor, to amend said third count by adding thereto the allegation of negligence contained in the abandoned first count, where no demurrer was filed or other objection made to the petition and the case was tried throughout as it would have been had said third count contained the words inserted therein by the amendment.</p> <p>2. NEGLIGENCE: Invitee: Trespasser: Licensee. An electrician who was requested by his neighbor, whose brother had been found lying-under an automobile in his near-by garage and brought to her house in an unconscious state, to go to the garage and ascertain how the brother was injured, such information being necessary to a proper treatment of the injured man, and when there took hold of an electric wire or lamp cord, to which was attached a bulb which he attempted to use in examining the car, and which was not properly insulated, and which had come in contact with another uninsulated wire of 2300 voltage suspended on poles and run through trees outside the garage, and was thereby killed, was not a trespasser or licensee in the garage, but an invitee, and entitled to the same protection against the negligence of the light company as the neighbor would have been had she herself gone to the garage for the same purpose.</p> <p>3. -: -: Contributory. An invitee, who did not know, and who bad no reason to anticipate, that the electric lamp cord, to which was attacked an incandescent bulb, and which he used as an aid in ascertaining the cause of the injury to the unconscious keeper of the garage in which the wire was used for similar purposes, and which ordinarily carried a voltage of 110 volts, had come in contact, outside of the garage, with a non-insulated wire carrying 2300 volts, and was thereby killed, was not guilty of contributory negligence.</p> <p>4. -: Electric Wire: One Hundred and Ten Volts: Installed by Owner of Building. Conceding that if the invitee was killed by an uninsulated electric wire carrying only 110 volts, plaintiff cannot recover damages for his death if the electric equipment in the garage where the wire was in use was installed, owned and controlled by tha garage keeper and not by defendant light company, that issue was properly submitted to the jury by an instruction which required the jury to find that defendant negligently permitted said wire to come in contact with another uninsulated wire of 2300 voltage at a point at which defendant had sole control of both wires.</p> <p>5. -: Inference Upon Inference. Where there is substantial circumstantial evidence connecting the negligence of defendant with the electrician’s death, a verdict for plaintiff, based upon proper instructions requiring the jury to find that such negligence was the cause of his death, is not based upon conjecture, or the placing, of presumption upon presumption, or the drawing of inference from inference.</p> <p>Headnote 1: Pleading, 31 Cyc. 406. Headnote 2: Electricity, 20 C. J. sec. 40; Negligence, 29 Cyc. 456. Headnotes 3 and 4: Electricity: 3, 20 C. J. sec. 66; 4, 20 C. J. sec. 69. Headnote 5: Evidence, 22 C. J. sec. 27.</p>

<p>1. AUTHORITY TO COERECT EEEOES: Mandatory. A statute declaring that a certain public officer “is hereby authorized to correct” certain errors is mandatory as respects all errors falling within the section, since the public interests and rights are concerned.</p> <p>2. SCHOOLS: Report of District Clerk: Mailed and Lost: Receipt Assumed. The district clerk, in due time, made out and reported to the school district board the report he was required by statute to make, in which he set forth the number of teachers employed, the total number of days’ attendance of all pupils, the length of the school term, the number of days taught by each teacher and the salary of each teacher, certified the report, placed it in an envelope properly addressed to the county clerk, affixed thereto proper and sufficient postage and deposited it at the usual postoffice. The county clerk does not deny that the report was received at his office, but states that he has no affirmative record showing its receipt, and that no record of the receipt or filing of such reports was kept other than the reports themselves. On the envelope was 303 Mo. Sup. — 41. the district clerk’s usual return card, and the letter was never returned to him. Held,, first, that these facts justify, if they do not compel, a finding that the report was received by the county clerk; and strength is given to the other facts by the presence of the return card on the envelope and the fact that the latter was not returned to the district clerk; and, second, as the county clerk omitted said report from his summary of the reports for the coun ty, and said district was thereby deprived of its share of the state public school funds, the State Superintendent of Schools is authorized by Section 11181, Revised Statutes 1919, to correct said error by apportioning, out of the state moneys to be apportioned the next succeeding year, to said district the portion to which, under the statute, it was then entitled.</p> <p>3. -: Apportionment of State Funds: Omission of District: Correction. Where a school district through no fault of its own has been omitted from the summary of the reports for the whole county which the statute requires the county clerk to send to the State Superintendent of Schools, who thereby has been led to deprive said district of its share of the state school funds and to apportion and distribute to all other districts more than their share, the State Superintendent is authorized to right the wrong in his apportionment made in the next year following. The statute, Section 11181, Revised Statutes 1919, declaring that he “is authorized to correct any error made in the apportionment of the public school funds among the various counties of the State out of the public school fund of year next following the date when such mistake was made,” is unqualified and mandatory, and embraces such error, though the apportionment made for the year the mistake occurred was mathematically correct from the data at the time in the office of the State Superintendent, but includes “any error” in the apportion-necessarily entered into his apportionment then made. That statute cannot be confined to the correction of mistakes made by the State Superintendent, but includes “any error” in the apportionment.</p> <p>Headnote 1: Statutes, 36 Cyc. 1161. Headnotes 2 and 3: Schools and School Districts, 35 Cyc. 824 (1926 Anno).</p>

<p>1. BAIL: Constitutional Bight. Section 24 of Article II of the Constitution provides that any person charged with a felony, except in capital cases in certain circumstances, has a right to be released upon giving bail with sufficient sureties; and that is a right of which he cannot be denied.</p> <p>2. -: Purpose: Excessive. The purpose of a bail bond is to secure the appearance of defendant at his trial, and the constitutional provision (Sec. 25, art. 2) that excessive bail shall not be required means that the amount of the bond shall not be more than is necessary to secure his attendance, and any bail fixed at more than is necessary to secure his appearance is excessive.</p> <p>3. -: -: Denial of Liberty. The bail bond" must be fixed with the view of giving the prisoner his liberty, not for the purpose of keeping him in jail. To exact a bond so large that he cannot furnish it is to violate his constitutional right.</p> <p>4. -: -: -: Exhaustion of Defendant: Successive Rob-heries. Petitioner, charged with robbery, in two cases in August and on November 2nd in another case, gave bond in each in the sum of ten thousand dollars, conditioned upon his appearance at the November term; in September he was again arrested, and an order made in each of two cases fixing his bond at fifteen thousand dollars, which was reduced by this court to two thousand, which he gave, making bonds in the five cases in the aggregate sum of thirty-four thousand dollars which have been approved; after-wards he was again arrested, upon a charge of robbery, and his bond fixed at fifteen thousand dollars, in default of which he was, on the first day of the November term, committed to jail, and later his trial was set for January 14th. The first cases were set for trial on January 24th, and there 'is no showing why some of them have not been tried. He alleges that he has exhausted his capacity to give bonds. Held, that it is apparent that if any bonds will secure his attendance the bonds already given will do so, and the trial court is directed to fix his bond in the last case at five thousand dollars.</p> <p>Headnotes 1 to 4: Bail: 1, 6 O. J. sec. 168; 2; 6 C. J. secs. 178, 222; 3 and 4, 6 C. J. sec. 222.</p>

<p>1. INCOME TAX: State Tax Commission: Power to Compel Assessor to Produce Returns. Tlie State Tax Oommission ñas no power to inspect income tax returns on file in the office of a county assessor, or to compel the assessor to produce such returns for examination, or to institute proceedings to compel taxpayers to. comply with the State Income Tax Law.</p> <p>2. STATUTORY CONSTRUCTION: General and Special Acts. Two acts in •pari materia, passed at the same session of the General Assembly, are to he so construed that both can stand if reasonable construction will-so permit; but a special act is not repealed by one of general nature, and if there is irreconcilable repugnancy between them the special act prevails, and if a special provision applicable to a particular subject is inconsistent with even a later general law the special provision will prevail.</p> <p>3. -: -: Tax Commission Act: Income Tax Law: Inspection of Tax Returns. The several paragraphs of.Section 12847, Revised Statutes 1919, relating to the powers of the State Tax Commission, contain numerous and repeated and specific reference to the assessment .and taxation of property, but no reference at all to the assessment and collection of income taxes, and to construe them to authorize the commission to inspect income tax returns on file in the county assessor’s office or to institute suits to compel true and correct returns, would bring said section in direct conflict with Section 13135, which forbids the inspection of income tax returns in the clearest and most positive terms, and is a part of the Income Tax Law, enacted at the same session of the General Assembly, as a special act applicable to the assessment and taxation of incomes alone.</p> <p>Headnotes 1 and 3: Taxation, 37 Cye. 811 (1926 Anno). Headnote 2: Statutes, 36 Cyc. 1087, 1151.</p>

Prohibition. (1) Petitioner was entitled to forfeit the lease in question and retake possession of the leased property. No pleading was filed in answer to the intervening petition, the court gave no reasons therefor in his order denying said intervening petition, and the answer and return of the trial judge to the preliminary writ of prohibition in this court sets out no specific facts or reasons for denying the prayer of the intervening petition.