Volume 35 — North Dakota Reports

<p>Disbarment proceedings — hearing on — civil action against attorney — dismissal of — has no bearing on.</p> <p>1. Dismissal of a civil action against attorney for moneys unlawfully detained by him has no bearing upon disbarment proceeding.</p> <p>Client’s interest — abandonment of by attorney — retention of fees paid —• for services — not rendered — duties of attorney — wilful violation of — disbarment.</p> <p>2. Abandonment of client’s interest and retention of the fees' paid for serv- . ices, which are not rendered, constitute a wilful violation of the duties , of an attorney and counselor sufficient to warrant disbarment.</p> <p>Note. — That an attorney, who, upon demand, retains money collected, for his client, or fraudulently appropriates money which has. come into his hands in. a professional way, is not of such honesty and good character as to make him worthy of the confidence of the public and his clients, is the almost universal rule, as honesty, probity, and good moral character are necessary qualifications for-the practice of his profession-. For eases supporting this proposition, and for a further discussion of the matter, see note in 19 L.R.A. (N.S.) 414, on disbarmept of. suspension of attorney for withholding client’s money.</p> <p>For a discussion of the grounds of disbarment of attorneys and counselors at law, see notes in 95 Am. Dec. 335, and 45 Am. St. Rep. 71, page 78 of which takes up the question of the misappropriation of moneys.</p>

<p>Action for the benefit of ticket holders to eolleet sureties upon a warehouseman’s statutory bond for a default in redemption of grain tickets; Held:</p> <p>Warehouseman's bond — sureties — action — for default in redemption of grain tickets — complaint — demurrer.</p> <p>1. That the complaint states a cause of action, and the demurrer thereto was properly overruled.</p> <p>Warehouseman — stored grain — may sell — demand for same — like grain substituted — conversion — basis of action for — ticket holder.</p> <p>2. While, under § 3113, Comp. Laws 1913, the warehouseman may sell stored grain and upon a demand for the delivery of grain stored substitute like grain therefor, yet the ticket holder need not make a demand in the alternative for the same grain or that of an equal grade as a basis for conversion, where the ticket holder has demanded the return of his grain or payment of its value.</p> <p>Demand — for grain or its.value — warehouseman — burden — redelivery.</p> <p>3. A demand for the grain or its value throws upon the warehouseman the burden of offering substituted grain if he would not or cannot redeliver to the ticket holder the identical grain stored.</p> <p>Storage ticket — holder of — warehouseman — bailment — title of grain —in ticket holder — demand for grain — official bond — breach.</p> <p>4. As between the holder of the storage ticket and the warehouseman there exists a bailment, with the title of the particular grain in the holder of the ticket. Hence refusal to comply with the demand for delivery of stored grain sufficiently lays a basis for conversion in such respect as against the warehouseman and his sureties upon the breach of his official bond.</p> <p>Default — proof — bond'— certified copy — evidence — objections — in supreme court — waived — original bond — copy — sufficient.</p> <p>5. Upon default and proof made by plaintiffs there was received in evidence without objection the warehouseman’s bond, certified by the secretary of the board of railroad commissioners as “a true copy of the bond now on file in the office of” said board. Appellants now claim the same to have been inadmissible and insufficient as proof of the cause of action. Held:</p> <p>(a) As no objection was made to the reception of this evidence, all objections thereto are waived.</p> <p>(b) In any event, the statute governing the admission of certified copies of such official bonds was sufficiently complied with. And the copy constituted sufficient proof of the contents of the originad bond.</p>

<p>Fire insurance policy — pledged — assigned — may be — orally or by writing.</p> <p>1. A policy of fire insurance may be pledged or assigned orally, as -well as by means of a written instrument.</p> <p>Creditor — insurance policy — collateral security — insurable interest — goods.</p> <p>2. A creditor who loans to a business concern money, and takes as collateral security to such loan an assignment or pledge of a fire insurance policy on the goods used by the borrower in the business for which the loan is made, has an insurable interest in said goods under the provisions of § 6466, Compiled Laws of 1913, which provides that “every interest in the property, or any relation thereto, or liability in respect thereof of such a nature that a contemplated peril might directly damnify the insured, is an insurable interest.”</p> <p>Mercantile business — insurance policy — assignment — to creditor — collateral security — insurance — collection of amount — future advances — unlawful preference — Federal Bankruptcy Act.</p> <p>3. A transaction in which the owner of a mercantile business gives to a creditor an assignment of an insurance policy, in order that such creditor may collect the amount thereof and apply the same to the payment of a prior loan, and which is given in furtherance of a prior agreement by which the insurance policy was pledged to the said creditor, as security for money loaned and for future advances, and under the understanding that in case of fire such authority to collect or assignment should be given, is not an unlawful preference under the Federal Bankruptcy Act, even though made within four months of the act of bankruptcy, the money being loaned, and the policy having been pledged, prior to that time.'</p> <p>Note. — Upon the question of voidability of transfer within four months of bankruptcy, given pursuant to executory agreement antedating such period, see note in 17 L.R.A.(N.S.) 937, in which assignments of policies of insurance are discussed on page 939, the cases holding, in accord with the case above, that similar assignments are not unlawful preferences.</p>

O. Burr, J. Action in garnishment. Judgment for garnishee defendant. Plaintiff appeals. It is elementary that the caption is not controlling as to parties, for it is to be conceded that if the garnishee herein is entitled to be heard in any court subsequent to the trial in the principal action he would be obliged to look into the pleadings for a further disclosure as to parties plaintiff who are interested in the action.

Fisk, J. Action to foreclose a chattel.mortgage. Judgment for plaintiff. Defendant appeals. This action is upon a note and chattel mortgage, brought by the plaintiff, payee, and defendant pleads no consideration. Under such state of facts, the real consideration is a proper subject of inquiry. First State Bank v. Nelly, 30 N. D. 84, 152 N. W. 125, and authorities; Comp.

From a judgment of the County Court of Ward County, Murray, J.,' plaintiff appeals. Respondent executed and delivered the note sued upon while he was a minor over the age of eighteen years. The contract was subject to repudiation and disaffirmance upon his restoring the consideration received by him or by paying its equivalent with interest. Comp. Laws 1913, § 4340. The contract was merely voidable. Luce v. Jestrab, 12 N. D. 548, 97 N. W. 848.

Original writ of this court is ordered issued to enjoin the secretary of state from submitting to vote a void proposition upon capital removal.

G. Burr, J. From a judgment in plaintiff’s favor and from an order denying defendant’s motion for a new trial, defendant appeals. Interest for any legal indebtedness shall be at tbe rate of 7 per cent, unless a different rate is specified in writing. Comp. Laws 1913, §§ 5888, 6072, subdiv. 5. In the absence of a written promise, tbe law fixes tbe rate of interest on all legal indebtedness. Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661; 9 Cyc. 749, and cases there cited.

Action to recover on a promissory note. Appeal from tbe District Court of Ramsey County, O. W. Buttz, J. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This is an. action, brought by the assignee of a promissory note to recover against the maker thereof.

L. Nuchols, J. Action to set aside a special assessment and to enjoin the collection of the same. Judgment for plaintiffs. Defendants appeal. Where a city advertises for bids on a public improvement, and fails to cover and insert material matters, such errors may be cured by the bidders and the bids themselves. Duerst v. Semmler, 28 N. D. 411, 149 N. W. 115; McKenzie v. Mandan, 27 N. D. 546, 147 N. W. 808.

<p>Appeals — appellate court — judgments — correctness — presumptions — indulged in favor of.</p> <p>1. An appellate court will indulge all reasonable presumptions in favor of tlie correctness of the judgment or order from which the appeal is taken.</p> <p>New trial — motion for — time for hearing — noticed — judgment — prior to expiration of appeal time — final submission — determination of — after time for appeal has expired — finality of judgment suspended — jurisdiction — complete.</p> <p>2. Where a motion for a new trial is duly noticed to be heard at a date prior to the expiration of time for appeal from the judgment, but continued by consent of the parties, and finally submitted and determined after the time for appeal from the judgment has expired, the final character of the judgment is suspended by the pending proceedings, and the court has jurisdiction to determine the motion for a new trial even though the time for appeal ■ from the judgment has expired.</p> <p>New trial — granting — refusing — evidence — insufficiency of — ground — court — judicial discretion — decision — not disturbed — except for abuse.</p> <p>3. The granting or denial of a new trial on the ground that the evidence is insufficient to sustain the verdict, or that excessive damages were awarded, is within the sound judicial discretion of the trial court, and its decision will not be disturbed except where an abuse thereof is clearly shown.</p>

<p>Appeal from the District Court of Mountrail County, Fisk, J.</p> <p>From an order granting a new trial, plaintiff appeals.</p>

From judgments rendered against them as garnishees, and orders denying their motions for judgment notwithstanding the verdict or for a new trial, Payne & Argusville Farmers’ Elevator Company appeal. Plaintiff is not entitled to judgment against the garnishee Payne, because no liability existed between Payne and Wyman by reason of the provisions of the lease.

<p>Action on a promissory note for $5,000 by Bruegger as maker to the News Printing Company, payee, dated in May, 1910, and indorsed to plaintiff. Held:</p> <p>Jury — findings of — promissory note — delivery of — escrow agreement •— evidence — sufficiency.</p> <p>1. Evidence is sufficient to sustain the findings of the jury that the note was delivered to one Hollister, managing officer of both the payee and plaintiff corporations, and under an escrow agreement, and that the delivery to the payee by the holder in escrow was made in disregard of and contrary to and without compliance with the terms of the escrow agreement.</p> <p>Promissory note — delivery of — in law.</p> <p>2. A delivery so made constitutes in law no delivery of the instrument.</p> <p>Promissory note — escrow agreement — compliance with — delivery not so made — note void — evidence.</p> <p>3. Under such findings the instrument never was delivered and has been void ab initio, and the evidence offered by defendant to establish the escrow agreement was admissible.</p> <p>Note. — On necessity of strict compliance with conditions of escrow agreement, see note in L.R.A.1916A, 502.</p> <p>Escrow agreement — waiver of conditions — estoppel — defense —• evidence.</p> <p>4. Bruegger lias not -waived the conditions of the escrow agreement, nor estopped himself from asserting it as a defense.</p> <p>Promissory note — conditions of execution and delivery — may be shown — correspondence — explained by oral testimony.</p> <p>5. The correspondence soliciting the note and transmitting it to the holder in escrow discloses that it is but part of and supplementary to the conditions under which the note was executed and was to be_ delivered. The correspondence can therefore be explained and supplemented in such particulars by oral testimony.</p> <p>Controverted facts — findings of jury — conclusive,</p> <p>6. A controverted question of fact as to the existence of an escrow agreement and as to its conditions was presented, and the verdict of the jury thereon is conclusive on this review of error.</p> <p>Issues — newspaper — financial condition — stock — worthlessness of — holding company — evidence as to — admissible.</p> <p>7. Evidence received as to the financial condition of the newspaper plant involved and the worthlessness of the stock of the holding company owning and operating it was admissible under the issues tendered by the pleadings.</p> <p>Contract — rescission of — election as to defenses — motion to compel —■ issues — must be confined to.</p> <p>8. No question of rescission of a contract was involved, and the motion to require defendant to elect as to defenses was properly denied.</p> <p>Instructions — requested and refused — issues — fairly submitted.</p> <p>9. Instructions requested and refused, and those given and challenged as error and argued in the brief examined and held to fairly submit the issues of fact and to be nonprejudieial.</p> <p>.Statements of counsel — argument to jury — erroneous — new trial — not ground for.</p> <p>10. Statements of counsel in argument to the jury do not warrant the granting of a new trial.</p> <p>Instructions — directing jury to find for plaintiff — equivalent to granting motion therefor — rights of defendant — not prejudiced thereby.</p> <p>11. The court at the close of the testimony denied a motion to direct judgment against the News Printing Company, codefendant, but instead, in its instructions, required the jury to find in any event for the plaintiff and against the News Printing Company for the amount claimed. This action did not prejudice defendant’s rights, and is the equivalent of the granting of a motion for a directed verdict.</p> <p>New trial — affidavits on motion for — surprise — newly discovered evidence — insufficient — properly denied.</p> <p>12; The showing for a new trial on affidavits, on the grounds of surprise and newly discovered evidence, was insufficient, and denial of the motion was proper.</p> <p>Substantial error — not shown — judgment — affirmed.</p> <p>13. No substantial or prejudicial error is shown, and the judgment appealed from is affirmed.</p>

An appeal from the District Court of McLean County, Nuessle, J. The defense here is forgery, and evidence as to the financial standing of the parties was introduced to prove the probability of the defendant having signed the note. Such evidence is not admissible.

<p>Account stated — action on — defense general denial — instructions — fact — issue of — error.</p> <p>3. Action upon an account stated, with defense a general denial. Instructions examined and held prejudicial, as Withdrawing from the jury determination of a controlling issue of fact.</p> <p>Account — items of — correctness of admitted — account becomes stated as to — offset — debtor — item not included — future adjustment — defense — general denial.</p> <p>2. When all items of an account are admitted to be correct except one left for future adjustment, the account becomes stated as to those items agreed to be correct; but the debtor on such partial stated account may offset against it items not included in the stated account, but left for future adjustment. This defense can be maintained under a general denial.</p>

<p>Original and prerogative writ — supreme court — issuance of — public concern — ground for — attorney general — proceedings — refusal to bring — mere acquiescence in.</p> <p>1. Where the issuance of an original and prerogative writ is asked of the supreme court on the ground that the matter is of public concern, and the attorney general refuses to bring the proceedings, but expresses a willingness that they shall be brought, the case will be considered in the same light as if there had been merely a refusal on the part of the attorney general.</p> <p>Original writ — supreme court — public importance — matters of — involved — will issue — attorney general — refusal to act — or sanction.</p> <p>2. The supreme court will not refuse to issue its original writs where matters of public importance are concerned, merely because the attorney general refuses to himself bring or sanction the action.</p> <p>Supreme court — jurisdiction — question — test oí — individual relator — necessary party — public injury — sought to be remedied — franchises — prerogatives of state.</p> <p>3. The- test of the-' jurisdiction of the supreme court where the issuance of an original writ is prayed for but the attorney general refuses to bring the proceedings is whether the individual relator is in fact a necessary party or a mere incident, and whether after all it is a public injury which is sought to be remedied or prevented, and involves the franchises and prerogatives of the state.</p> <p>Elective franchise — unhindered right to exercise — individual — collective sovereign state — publici juris — prerogatives of sovereign state — supreme court — discretion.</p> <p>4. The right to the untrammeled exercise according to law of the elective franchise, even though it is, strictly speaking, a right or franchise of the individual citizen rather than of the collective and sovereign state, and even though, in a limited area, is a matter not only publioi juris, but one which ultimately affects the self-governing franchises and prerogatives of the sovereign state itself, and can in the discretion of the supreme court, and in exceptional cases, be safeguarded by the issuance of its prerogative writs.</p> <p>Public office — public position — sovereignty of state — subdivisions — attaches — whole public — benefit of — political party — state central . committee — chairman of — not a public officer.</p> <p>5. A public office is a public position to which a portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, and which is exercised for the benefit of the public. The chairman of a state central committee possesses no such authority, and is therefore not a public officer.</p> <p>Injunction — constitution — writ of mandamus — correlative — civil or property rights — not limited to — sovereignty of state — franchises — prerogatives — liberties of the people — political and civil rights — attorney general — opposition to — may issue.</p> <p>6. The writ of injunction contemplated by § 87 of the Constitution of North Dakota is correlative with the writ of mandamus, the former issuing to restrain and the latter to compel action, and is not limited to cases involving civil or property rights, but may be resorted to in all cases affecting the sovereignty of the state, its franchises, or prerogatives, or the liberties of the people. It includes within its scope and protection political as well as civil or property rights, and may be issued under a proper showing and in the discretion of the court even at the suit of a private individual and against the opposition of the attorney general himself.</p> <p>Political matters — state central committee — courts — control — statutes —< constitution.</p> <p>7. The courts will not assume a greater control of or supervision over purely political matters than can clearly be deemed to have been conceded to them by the express provisions of the statutes and of the Constitution.</p> <p>Political party — central committee — members thereof — chairman — supreme court — prerogative writ — political act — subject to political remedy — writ will not issue.</p> <p>8. The majority of the members of a political state central committee has the inherent power to depose or elect a chairman at any time, and the supreme court will not issue its high prerogative writs in order to bring about that which voluntary political action can perform.</p> <p>State central committee — membership of — chairman — laws — prerequisites to chairmanship.</p> <p>9. Section 890 of the Compiled Laws of 1913 examined and held not to make membership in the state central committee prerequisite to its chairmanship.</p>

<p>Complaint — action — cause of — stating — contract — land purchase — corporate stock.</p> <p>1. Complaint examined, and held to state a cause of action on a contract of the defendant to purchase land, and not of the plaintiff to purchase corporate stock.</p> <p>Counterclaim — cause of action — defense.</p> <p>2. Counterclaim examined, and held not to state a cause of action or defense.</p> <p>Counsel — stipulation of — legal opinion — courts — not binding on.</p> <p>3. A stipulation by counsel that, “if the plaintiff should recover, the defendant is entitled to be credited with the amount of the counterclaims set up in the answer,” is held, under the facts of the ease, to be merely the expression of a legal opinion or conclusion, and to be not binding upon either the trial or the appellate court.</p> <p>Corporate stock — forfeiture — by-laws — special provisions — charter — directors — cannot delegate powers.</p> <p>4. A forfeiture of corporate stock must, in the absence of a by-law to the contrary or a special provision in the charter, be declared by duly elected directors and by the number required to conduct corporate business, and such directors cannot delegate their powers and duties in the premises.</p> <p>Note. — The forfeiture of corporate stock is discussed in a note in 27 L.R.A. 305, and cases will be found therein discussing the power to forfeit, holding that the right to forfeit must come from the law and can be exercised only in the manner prescribed by law, the validity of the exercise of the power, redemption by the stockholder, and the effect of forfeiture on his personal liability.</p> <p>Corporate stock — forfeiture — power to declare — nonpayment — charter — statutory requirements.</p> <p>5. The power to declare the forfeiture of corporate stock for nonpayment of the amount due thereon must be exercised in strict compliance with the charter or statutory requirements.</p> <p>Cross claims — interest — how computed — balance.</p> <p>C. Interest is calculated on the balance of two cross claims from the date when both become due.</p>

<p>Action — venue — change of — by stipulation — from one county to another — disbursements — jurors — bailiff's — other necessary expenses — reimbursement — must be made.</p> <p>In an action brought in McHenry county, venue was changed upon stipulation to Pierce county, where a jury trial was had. A certified bill of disbursements for jurors, bailiffs, and other expenses was presented to McHenry county to reimburse Pierce county. Payment was refused. McHenry county contends that as all parties litigant in said action were nonresidents of McHenry county and as the change of venue was ordered upon a stipulation, it • is not liable under § 7810, Comp. Laws 1913.</p> <p>Held, That this recovery is one within the terms of and authorized by the statute, and that McHenry county must reimburse Pierce county for such disbursements.</p>

Action to recover for a fire insurance loss. Appeal from District Court of Grand Forks County, Chas. M. Cooley, J. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This is an appeal from an order of the district court denying the defendant and appellants motion for judgment non obstante veredicto or in the alternative for a new trial, and which motion had been made after a verdict had been directed for the plaintiff.

Action to recover damages for injury occasioned by a prairie fire. Appeal from the District Court of McIntosh County, Frank Allen, J. Judgment for plaintiff. Defendant appeáls.

G. Crawford, J. Action to foreclose a chattel mortgage. Controversy as to surplus between the mortgagor and his vendor under a crop-payment contract Judgment for vendor. Vendee appeals. Where land is sold by one person to another under the crop-payment plan, the vendee becomes the full equitable and beneficial owner, and the vendor simply holds the legal title as security for the purchase price. He is a mortgagee, in effect. The vendee was in possession, under such contract.

Action for the conversion of grain. Appeal from the District Court of Stutsman County, J. A. Coffey, J., Judgment for the defendant. Plaintiff appeals. A warehouse receipt, aside from being an ordinary receipt which is always subject to explanation, is a contract between the warehouseman and the party who delivers the grain, and to whom the receipt is issued. 3 Jones, Ev. § 493.

<p>Original proceedings by the State, on the relation of Henry J. Linde, Attorney General, and Enoch Lodge of Perfection A. A. S. E. No. 1, Fargo Council Knights Kadosh A. A. S. E. No. 1, Pelican Chapter of Eose Croix A. A. S. E. No. 1, and Dakota Consistory A. A. S. E. No. 1, fraternal corporations known as the Scottish Eite Bodies of Eargo, North Dakota, and H. C. Plumley, for the issuance of a writ prohibiting and enjoining the state tax commission and others from assessing and listing for taxation certain property used exclusively for Masonic purr poses.</p> <p>The relators are corporations purely and solely for lodge purposes, and for charitable, benevolent, and fraternal objects, and not for profit. They hold and exclusively use their properties for such purposes and objects. Comp. Laws 1913, §§ 5025, 5030, 5032, 5038, 5039, 5042.</p> <p>All such property, so held and exclusively used, is exempt from assessment and taxation. Laws 1913, chap. 280; Comp. Laws 1913, §§ 2078, 5025-5042.</p> <p>Every reasonable .presumption is in favor of the constitutionality of a statute enacted by the legislature. 8 Cyc. 801; O’Laughlin v. Carlson, 30 N. D. 213, 152 N. W. 675; State ex rel. Linde v. Taylor, 33 N. D. 76, L.E.Á. — , —, 156 N. W. 561; Cooley, Const. Lim. 7th ed. 242.</p> <p>The general rule is that when private property is claimed as exempt from taxation, the law under which the exemption is claimed will be strictly construed. Judge v. Spencer, 15 Utah, 242, 48 Pac. 1097; State ex rel. Richards v. Armstrong, 17 Utah, 171, 41 L.R.A. 407, 53 Pac. 981.</p> <p>There is, however, an exception to this rule, and statutes exempting property used for educational and charitable purposes, or for public Avorship, should receive a broad and more liberal construction. Salt Lake Lodge v. Groesbeck, 40 Utah, 1, 120 Pac. 194, Ann. Cas. 19140, 940; Widows’ & Orphans’ Home v. Com. 126 Ky. 386, 16 L.R.A. (N.S.) 829, 103 S. W. 354; People ex rel. Young Men’s Asso. v. Sayles, 23 Misc. 1, 50 N. Y. Supp. 8; Phillips Academy'v. Andover, 175 Mass. 118, 48 L.R.A. 550, 55 N. E. 841; Yale University v. New Haven, 71 Conn. 316, 43 L.R.A. -490, 42 Atl. 87; St. Mary’s Church v. Tripp, 14 R. I. 307; Curtis v. Androscoggin Lodge, 99 Me. 356, 59 Atl. 518; Massachusetts General Hospital v. Somerville, 101 Mass. 319; People ex rel. Church of St. Mary v. Feitner, 168 N. Y. 494, 61 N. E. 762; Academy of Sacred Heart v. Irey, 51 Neb. 755, 71 N. W. 752; Cassiano v. Ursuline Academy, 64 Tex. 673; Donohugh’s Appeal, 86 Pa. 306; Warde v. Manchester, 56 N. H. 508, 22 Am. Rep. 504; Wesleyan Academy v. Wilbraham, 99 Mass. 599.</p> <p>“A constitutional provision merely authorizing the legislature to exempt certain kinds of property does not by itself grant any exemption.” 37 Cyc. 885 and cases cited in note 95, 887.</p> <p>Under the Constitution the legislature was not prevented from exercising its inherent poAver of exempting such property as they might deem necessary, and as they deemed for the best public policy, so that the people of the state, by an amendment to the Constitution, eliminated the requirement that all property should be taxed; there then remained the power to exempt the property of these relators as it has been exempted by the existing statute. Wisconsin C. R. Co. v. Taylor County, 52 Wis. 42, 8 N. W. 833; Gilman v. Sheboygan, 2 Black. 510, 17 L. ed. 305; Cooley, Taxn. 145; 1 Desty, Taxn. 124; Farris v. Vannier, 6 Dak. 191, 3 L.R.A. 713,'42 N. W. 31; Sumner County v. Wellington, 66 Kan. 590, 60 L.R.A. 855, 97 Am. St. Rep. 396, 72 Pac. 216; Francis v. Atchison, T. & S. E. R. Co. 19 Kan. 3Í1; Ottawa County v. Nelson, 19 Kan. 237, 27 Am. Rep. 101; Wheeler v. Weightman, 96 Kan. 50; L.R;A.1916A, 846,-149 Pac. 982. '■</p> <p>The clause of the Constitution is clearly not self-executing. These various terms look forward to and require action upon the part of the lawmaking branch of the government. Engstad v. Grand E'orks County, 10 N. D. 54, 84 N. W. 577.</p> <p>Where the means are not satisfying, any means may be resorted to which are fairly and properly adapted to accomplish the object of the grant of power. Black, Const. Law, p. 71; 1 Kent, Com. 404; Sutherland, Stat. Constr. § 343.</p> <p>In liquor matters the legislature has defined intoxicating -liquors. It has said that “malt liquor” is intoxicating. Thus it has been held that where a party has been arrested, charged with selling malt liquors, proof offered by him that the liquors sold were not intoxicating was held inadmissible, for the reason that the legislature had defined it. State v. Ely, 22 S. D. 487, 118 N. W. 687, 18 Ann. Gas. 92; State v. Fargo Bottling Works Co. 19 N. D. 396, 26 L.B.A.(N.S.) 872, 124 N. W. 387; State v. Certain Intoxicating Liquors, 76 Iowa, 243, 2 L.B.A. 408, 41 N. W. 6; State v. Colvin, 127 Iowa, 632, 103 N. W. 968; Com. v. Brelsford, 161 Mass. 61, 36 N. E. 677; Black, Intoxicaiing Liquors, § 2; State v. Frederiekson, 101 Me. 37, 6 L.B.A.(N.S.) 186, 115 Am. St. Bep. 295, 63 Atl. 535, 8 Ann. Cas. 48.</p> <p>In the case at bar, the property is exempt from taxation if for no other reason than that the legislature has said so. Martin v. Mott, 12 Wheat. 19, 6 L. ed. 537.</p> <p>“The legislature is master of its own discretion,” and is the sole judge of the means that are necessary to accomplish its purpose, in the exercise of its power over the subject-matter. Legal Tender Cases, 12 Wall. 457-561, 20 L. ed. 287-315; Hancock v. Yaden, 121 Ind. 366, 6 L.B.A. 576, 16 Am. St. Bep. 396, 23 N. E. 253; State ex rel. Clark v. Haworth, 122 Ind. 467, 7 L.B.A. 240, 23 N. E. 946; Legal Tender Cases, 110 H. S. 421, 28 L. ed. 204, 4 Sup. Ct. Bep. 122; Cooley, Const. Lim. 4th ed. 129 ; State ex rel. Terre Haute v. Kolsem, 130 Ind. 434, 14 L.B.A. 570, 29 N. E. 595.</p> <p>The contemporaneous exposition of a statute is always important, and sometimes a controlling guide, in its interpretation. 8 Cye. 736, 737, and cases cited in notes; Chestnut v. Shane, 16 Ohio, 599, 47 Am. Dec. 387; Com. v. Grant, 2 Woodw. Dec. 379; 36 Cyc. 1135, 1153; 26 Am. & Eng. Enc. Law, 640; Cooley, Const. Lim. 255; Kendall v. Kingston, 5 Mass. 534; Jackson v. Washington County, 34 Neb. 680, 52 N. W. 169; Hedgeeock v. Davis, 64 N. C. 650; United States v. Moore, 95 U. S. 760, 24 L. ed. 588; Iiovey v. State, 119 Ind. 386, 21 N. E. 890; Portland Bank v. Apthorp, 12 Mass. 252; McPherson v. Blacker, 92 Mich. 377, 16 L.B.A. 475, 31 Am. St. Bep. 587, 52 N. W. 469; State v. Gerhardt, 145 Ind. 439, 33 L.B.A. 313, 44 N. E. 469; Faribault v. Misc.er, 20 Minn. 396, Gil. 347; Moers v. Beading, 21 Pa. 199.</p> <p>Where a statute, by the acts of the government and by adjudications, has been treated as constitutional, the courts will not inquire into its constitutionality. Ferris v. Coover,.ll Cal. 175; Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Harrison v. State, 22 Md. 468, 85 Am. Dec. 658; Carson v. Smith, 5 Minn. 78, Gil. 58, 77 Am. Dec. 539; Bailroad Comrs. v. Market Street B. Co. 132 Cal. 677, 64 Pac. 1065; Frost v. Pfeiffer, 26 Colo. 338, 58 Pac. 147.</p> <p>While not conclusive, legislative construction is quite persuasive. Denver v. Adams County, 33 Colo. 1, 77 Pac. 858; Iiovey v. State, 119 Ind. 386, 21 N. E. 890; State ex rel. Barber v. Parler, 52 S. C. 207, 29 S. E. 651, 28 S. E. 1023.</p> <p>The same is true of construction given and acted upon by the state officers and people for a long time. State v. New Orleans B. & Light Co. 116 La. 144, 40 So. 597, 7 Ann. Cas. 724; Gaar, S. & Co. v. Sorum, 11 N. D. 174, 90 N. W. 799; 1 Kent, Com. 465; Cooley, Const. Lim. 81; Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Bep. 437; Butte City Water Co. v. Baker, 196 U. S. 119, 49 L. ed. 409, 25 Sup. Ct. Bep. 211; Com. v. Lockwood, 109 Mass. 323, 12 Am. Bep. 699; People ex rel. Lynch v. La Salle County, 100 111. 495; Be Washington Street Asylum B. Co. 115 N. Y. 442, 22 N. E. 356; Atty. Gen. v. Preston, 56 Mich. 177, 22 N. W. 261; Scanlan v. Childs, 33 ‘Wis. 663; Lick v. Faulkner, 25 Cal. 405.</p> <p>The Masonic order is a charitable institution, and its property is used exclusively for charitable purposes. Const. § 175; Comp. Laws 1913, §§ 2078, 5025, 5030, 5038; Philadelphia v. Masonic Home, 160 Pa. 572, 23 L.B.A. 545, 40 Am. St. Bep. 736, 2.8 Atl. 954; Morris v. Lone Star Chapter, 68 Tex. 698, 5 S. W. 519; Morning Star Lodge, v. Ilayslip, 23 Ohio St. 144; Massenburg v. Grand Lodge, F. & A. M. 81 Ga. 212, 7 S. E. 636; Brodie v. Fitzgerald, 57.Ark. 445, 22 S. W. 29; People ex rel. Huck v. Western Seaman’s Friend Soc. 87 111. 246; Montana Catholic Missions v. Lewis & Clarke County, 13 Mont. 559, 22 L.R.A. 634, 35 Pac. 2; Hennepin County v. Brotherhood of Gethsernane, 27 Minn. 460, 38 Am. Rep. 298, 8 N. W. 595 ; Delaware County v. Sisters of St. Francis, 2 Del. Co. Rep. 149; New Port v. Masonic Temple Asso. 108 Ky. 333, 49 L.R.A. 252, 56 S. W. 405; Bangor v. Rising Virtue Lodge, 73 Me. 428, 40 Am. Rep. 369; Green Bay Lodge v. Green Bay, 122 Wis. 452, 106 Am. St. Rep. 984, 100 N. W. 837; State ex rel. Hibernian Soc. v. Addison, 2 S. C. 499; Salt Lake Lodge v. Groesbeck, 40 Utah, 1, 120 Pac. 194, Ann. Cas. 1914C, 940.</p> <p>Charity is not confined exclusively to the handing out of money the poor and destitute. As that term is used in the Constitution and laws it has a much broader and more significant meaning. As used arid as was the intention, it is the embodiment of sympathy and kindness, and to teach and practice these tenets is the aim of this order. Salt Lake Lodge v. Groesbeck, 40 Utah, 1, 120 Pac. 197, Ann. Cas. 1914C, 940; Philadelphia v. Masonic Home, 160 Pa. 572, 23 L.R.A. 545, 40 Am. St. Rep. 736, 28 Atl. 954; Swift v. Beneficial Soc. 73 Pa. 362; Delaware County Institute v. Delaware County, 94 Pa. 163; Donohugh’s Appeal, 86 Pa. 306; Mitchell v. Franklin County Treasurer, 25 Ohio St. 144; Babb v. Reed, 5 Rawle, 151, 28 Am. Dec. 650; Burd Orphan Asylum v. School Dist. 90 Pa. 21; Hennepin County v. Brotherhood of Gethsemane, 27 Minn. 460, 38 Am. Rep. 298, 8 N. W. 595; Indianapolis v. Grand Master, 25 Ind. 518; Hibernian Benev. Soc. v. Kelly, 28 Or. 173, 30 L.R.A. 169, 52 Am. St. Rep. 769, 42 Pac. 3; Savannah v. Solomon’s Lodge, 53 Ga. 93; Henderson v. Strangers’ Rest Lodge, 17 Ky. L. Rep. 1041, 17 S. W. 215; State ex rel. Bertel v. Board of Assessors, 34 La. Ann. 574; Petersburg v. Petersburg Benev. Mechanics Asso. 78 Va. 431; Fitterer v. Crawford, 157 Mo. 51, 50 L.R.A. 191, 57 S. W. 532; Zable v. Louisville Baptist Orphans’ Home, 92 Ky. 89, 13 L.R.A. 668, 17 S. W. 212; Massachusetts General Hospital v. Somerville, 101 Mass. 319; Widows’ & Orphans’ Llome v. Com. 126 Ky. 386, 16 L.R.A.(N.S.) 829, 103 S. W. 354; Cathedral of St. John v. Denver, 37 Colo. 378, 86 Pac. 1021; Brewer v. American Missionary Asso. 124 Ga. 490, 52 S. E. 804; Franklin Square House v. Boston, 188 Mass. 409, 74 N. E. '675; Curtis v. Androscoggin Lodge, 99 Me. 356, 59 Atl. 518; Com. v. V. M. O. A. 116 Ky. 711, 105 Am. St. Rep. 234, 76 S. W. 522; Kentucky Female Orphan School v. Louisville, 100 Ky. 470, 40 L.R.A. 119, 36 S. W. 921; Episcopal Academy v. Philadelphia, 150 Pa. 565, 25 Atl. 55; Burd Orphan Asylum v. School Dist. 90 Pa. 21; Gerke v. Purcell, 25 Ohio St. 229; Plattsmouth Lodge v. Cass County, 79 Neb. 463, 113 N. W. 167; Allen v. Duffie, 43 Mich. 1, 38 Am. Rep. 159, 4 N. W. 427; Saltonstall v. Sanders, 11 Allen, 470; Chamberlain v. Stearns, 111 Mass. 267; Adye v. Smith, 44 Conn. 60, 26 Am. Rep. 424; Norris v. Thompson, 19 N. J. Eq. 307; Suter v. Hilliard, 132 Mass. 413, 42 Am. Rep. 444; St. Joseph’s Hospital Asso. v. Ashland County, 96 "Wis. 636, 72 N. W. 43; Hinckley’s Estate, 58 Cal. 457; State ex rel. Hibernian Soc. v. Addison, 2 S. C. 499; T. M. C. A. v. Douglas County, 60 Neb. 642, 52 L.R.A. 123, 83 N. W. 924.</p> <p>The same is true of the Odd Fellows society and of all the other relators. 'Savannah v. Solomon’s Lodge, 53 Ga. 93; State ex rel. Bertel v. Board of Assessors, 34 La. Ann. 574; Bitterer v. Crawford, 157 Mo. 51, 50 L.R.A. 191, 57 S. W. 532; State ex rel. Hibernian Soc. v. Addison, 2 S. C. 499; Indianapolis v. Grand Master, 25 Ind. 522; Massenburg v. Grand Lodge, F. & A. M. 81 Ga. 212, 7 S. E. 636; Morrow v.. Smith, 145 Iowa, 514, 26 L.R.A. (N.S.) 696, 124 N. W. 317, Ann. Cas. 1912A, 1183; Petersburg v. Petersburg Benev. Mechanics Asso. 78 Va. 431; Grand River Lodge v. Crawford, 157 Mo. 41, 57 S. W. 1134; Hibernian Benev. Soc. v. Kelly, 28 Or. 173, 30 L.R.A. 169, 52 Am. St. Rep. 769, 42 Pac. 3.</p> <p>The meaning of the word “exclusive” is to “exclude;” to “bar;” to “shut out;” ‘that which is not included.” 1 Bouvier’s Law Diet. p. 1110; Presbyterian Theological Seminary v. People, 101 Ill. 582; T. M. O. A. v. Douglas County, 60 Neb. 642, 52 L.R.A. 123, 83 N. W'. 926; Stahl v. Kansas Educational Asso. 54 Kan. 549, 38 Pac. 797; Cincinnati College v. State, 19 Ohio, 110; Gerke v. Purcell, 25 Ohio St. 229; People ex rel. Hutchinson v. Collison, 22 Abb. N. O. 52, 6 N. T. Supp. 711; Salem Lyceum v. Salem, 154 Mass. 15, 27 N. E. 672; Salt Lake Lodge v. Groesbeck, 40 Utah, 1, 120 Pac. 194, Ann. Cas. 1914C, 940; 8 Cyc. 740; St. Paul’s Church v. Concord, 75 N. H. 420, 27 L.R.A.(N.S.) 910, 75 Atl. 531, Ann. Cas. 1912A, 350; Book Agents v. Hinton, 92 Tenn. 188, 19 L.R.A. 289, 21 S. W. 321; State, Sisters of Charity, Prosecutor, v. Chatham Twp. 52 N. J. L; 373, £> L.R.A. 198, 20 Atl. 292; Indianapolis v. Grand Master, 25 Ind. 518; Litterer v. Crawford, 157 Mo. 51, 50 L.R.A. 191, 57 S. W. 532; Philadelphia v. Masonic Home, 160 Pa. 572, 23 L.R.A. 545, 40 Am. St. Rep. 736, 28 Atl. 954; Hibernian Benev. Soc. v. Kelly, 28 Or. 173, 30 L.R.A. 167, 52 Am. St. Rep. 769, 42 Pac. 3; State v. Lisle University, 87 Tenn. 241,10 S. W. 284; Widows’ & Orphans’ Homev. Com. 126 Ky. 386, 16 L.R.A.(N.S.) 844, 103 S. W. 354; Protestant Episcopal Church v. Prioleau,. 63 S. C. 70, 57 L.R.A. 606, 40 S. E. 1026.</p> <p>Property used exclusively for charitable purposes shall be exempt from taxation. Salt Lake Lodge v. Groesbeck, 40 Utah, 1, 120 Pac. 192, Ann. Cas. 1914C, 940; Plattsmouth Lodge v. Gass County, 79 Neb. 463, 113 N. W. 167; Philadelphia v. Masonic Home, 160 Pa. 572, 23 L.R.A. 545, 40 Am. St. Rep. 736, 28 Atl. 954; Savannah v. Solomon’s Lodge, 53 Ga. 93; Eitterer v. Crawford, 157 Mo. 51, 50 L.R.A. 191, 57 S. W. 532; Bangor v. Rising Virtue Lodge, 73 Me. 428, 40 Am. Rep. 369; Indianapolis v. Grand Master, 25 Ind. 518; Massenburg' v. Grand Lodge, L. & A. M. 81 Ga. 212, 7 S. E. 636; Baltimore v. Grand Lodge, A. E. & A. M. 60 Md. 282; State ex rel. Bertel v. Board of Assessors, 34 La. Ann. 574; Cumberland Lodge v. Nashville, 127 Tenn. 248, 154 S. W. 1141; Book Agents v. Hinton,'92 Tenn. 191, 19 L.R.A. 289, 21 S. W. 322.</p> <p>“All statutes exempting property from taxation must be strictly construed.”</p> <p>“The power to tax rests upon necessity and is inherent in every sovereignty, and there can be no presumption in favor of its relinquishment.” Bailey v. Magwire, 22 Wall. 226, 22 L. ed. 852.</p> <p>“The rule of strict construction has been so often declared by this court, and has been so uniformly held everywhere, that we are not at liberty to regard the question as an open one.” Indianapolis V. Grand Master, 25 Ind. 518; Bangor v. Rising Virtue Lodge, 73 Me. 428, 40 Am. Rep. 736; National Council, K. & L. S. v. Phillips, 63 Kan. 799, 66 Pac. 1011; Wheeler v. Weightman, 96 Kan. 50, L.R.A.1916A, 846, 149 Pac. 977; Lacy v. Davis, 112 Iowa, 106, 83 N. W. 784; State ex rel. Bertel v. Board of Assessors, 34 La. Ann. 574; Engstad v. Grand Forks County, 10. N. D. 56, 84 N. W. 577; Minot v. Philadelphia, W. & B. B. Co. 18 Wall: 206, 21 L. ed. 888; Northwestern Fertilizing Co. v. Hyde Park, 97 H. S. 666, 24 L. ed. 1038; Petersburg v. Peters-burg Benev. Mechanics Asso. 78 Va. 431; Book Agents v. Hinton, 92 Tenn. 188, 19 L.B.A. 289, 21 S. W. 322; Baltimore v. Grand Lodge, A. F. & A. M. 60 Md. 280; Fitterer v. Crawford, 157 Mo. 51, .50 L.E.A. 191, 57 S. W. 532; St. Paul’s Church v. Concord, 75 N. H. 420, 27 L.E.A.(N.S.) 910, 75 Atl. 531, Ann. Cas. 1912A, 350; Salt Lake Lodge v. Groesbeck, 40 Utah, 1, 120 Pac. 192, Ann. Cas. 1914C, 940; Boston Lodge v. Boston, 217 Mass. 176, 104 N. W. 453; St. Louis Lodge v. Koeln, 262 Mo. 444, L.R.A.1915C, 694, 171 S. W. 329, Ann. Cas. 1916E, 784; Green Bay Lodge v. Green Bay, 122 Wis. 452, 106 Am. St. Kep. 984, 100 N. W. 837; Parker v. Quinn, 23 Utah, 332, 64 Pac. 961; Cincinnati College v. State, 19 Ohio, 110; American Sunday School Union v. Philadelphia (American Sunday School Union v. Taylor) 161 Pa. 307, 23 L.R.A. 695, 29 Atl. 26; First M. E. Church v. Chicago, 26 111. 482; Orr v. Baker, 4 Ind. 86; Philadelphia v. Barber, 160 Pa. 123, 28 Atl. 644; Morris v. Lone Star Chapter, 68 Tex. 698, 5 S. W. 519; Cleveland Library Asso. v. Pelton, 36 Ohio St. 259; Phi Beta Epsilon Corp. v. Boston, 182 Mass. 457, 65 N. E. 824, and cases cited; Amherst College v. Assessors, 173 Mass. 232, 53 N. E; 815; Salem Lyceum v. Salem, 154 Mass. 15, 27 N. E. 672; Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005; Atty. Gen. v. Detroit, 113 Mich. 388, 71 N. W. 632.</p> <p>To be exempt from taxation, property must be owned and used exclusively for benevolent and charitable purposes. This must be the paramount and predominant use to which the property is put. Bangor v. Rising Virtue Lodge, 73 Me. 428, 40 Am. Rep. 369; Curtis v. Androscoggin Lodge, 99 Me. 356, 59 Atl. 518; Orono v. Kappa Sigma Soc. 108 Me. 320, 80 Atl. 831;' St. Louis Lodge v. Koeln, 262 Mo. 444, L.R.A.19150, 694, 171 S. W. 329, Ann. Cas. 1916E, 784; Fitterer v. Crawford, 157 Mo. 51, 50 L.R.A. 191, 57 S. W. 532; New England Tlieosophical Corp. v. Boston, 172 Mass. 60, 42 L.R.A. 281, 51 N.,E. 456; State ex rel. Cunningham v. Board of Assessors, 52 La. Ann. 223, 26 So. 872; Atty. Gen. v. Detroit, 113 Mich. 388, 71 N. W. 632; St. Joseph’s Hospital. Asso. v. Ashland County, 96 Wis. 636, 72 N. W. 43; Hibernian Benev. Soc. v. Kelly, 28 Or. 173, 30 L.R.A. 167, 52 Am. St. Rep. 769, 43 Pac. 3; T. M. C. A. v. New York, 113 N. Y. 187, 21 N. E.. 86; Young Men’s Protestant Temperance & Benev. Soc. v. Eall River, 160 Mass. 409, 36 N. E. 57; People ex rel. Blossom v. Nelson, 46 N. Y. 477; 45 Century Dig. p. 686; 18 Century Dig. § 241; 37 Cyc. 931; Book Agents v. Hinton, 19 L.R.A. 289, note; Widows’ & Orphans’ Home v. Com. 16 L.R.A.(N.S.) 829, note.</p> <p>The word “charity” as used in the Constitution and statutes relating to exemptions from taxation means “a gift to promote the welfare of others,” “gifts for the benefit of the poor,” “endowments for the advancement of learning, science, art, and for other useful and public, purposes.” Philadelphia v. Masonic Home, 160 Pa. 572, 23 L.R.A. 545, 40 Am. St. Rep. 736, 28 Atl. 594; Black’s Law Diet. Gerke v. Purcell, 25 Ohio St. 243; Morice v. Bishop of Durham, 9 Yes. Jr. 399, 32 Eng. Reprint, 656; Doyle v. Lynn &B. R. R. Co. 118 Mass. 195, 19 Am. Rep. 431; Eavanaugh’s Will, 143 Wis. 90, 28 L.R.A.(N.S.) 470, 126 N. W. 675; Re Centennial & Memorial Asso. 235 Pa. 206, 83 Atl. 684; Words & Phrases, 1st & 2d Series; Bouvier’s Law Diet.</p> <p>“ 'Benevolent’ , includes objects and purposes that are not 'charitable.’” Yan Syekel v. Johnson, 80 N. J. Eq. 117, 70 Atl. 657; Hegeman v. Roome, 70 N. J. Eq. 562, 62 Atl. 393; Words & Phrases, 1st & 2d Series.</p> <p>A “fraternity” is a body of men associated for business, pleasure, or social intercourse by some common tie, either mutual or formal. Bou-, vier’s Law Diet.</p> <p>The mere giving of authority by the statute to such corporations or bodies “to apply its funds and property to charity and benevolent objects pursuant to the purpose for which such association is organized” does not make them “charitable institutions exclusively.” Comp. Laws 1913, §§ 5017, 5030.</p> <p>Neither does “long continued, contemporaneous, and legislative construction” of such statutes affect or make such statutes something they are not.</p> <p>It is only by final judicial interpretation and construction that the meaning of a law may become known and fixed. 6 R. C. L. 59-62; State v. Stockwell, 23 N. D. 96, 134 N. W. 767; 2 Lewis’s Sutherland, Stat. Constr. § 474, p. 891; O’Laughlin v. Carlson, 30 N. D. 218, 152 N. W. 675; State ex rel. McCue v. Blaisdell, 18 N. D. 38, 119 N. W. 360; 8 Cyc. 738; Eairbank v. United States, 181 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648, 15 Am. Grim. Rep. 135; 1 Story, Const. §§ 405-407; State ex rel. Morris v. Wrightson, 56 N. J. L. 206, 22 L.R.A. 548, 28 Atl. 56; Stuart v. Laird, 1 Crancli, 299, 2 L. ed. 115; Rogers v. Goodwin, 2 Mass. 475; Cooley, Const. Lim. 84, 85; Scott v. Sandford, 19 How. 393, 15 L. ed. 691; Hepburn v. Griswold, 8 Wall. 603, 19 L. ed. 513; Pingree v. Auditor General (Pingree v. Dix) 120 Mich. 103, 44 L.R.A. 679, 78 N.-W. 1025; State ex rel. Atty. Gen. v. Beacom, 66 Ohio St. 507, 90 Am. St. Rep. 599, 64 N. E. 427; McPheison v. Blacker, 92 Mich. 384, 16 L.R.A. 475, 31 Am. St. Rep. 587, 52 N. W. 469; Henry v. Cherry, 30 R. I. 138, 24 L.R.A.(N.S.) 991, 136 Am. St. Rep. 928, 73 Atl. 97, 18 Ann. Cas. 1006; Somerset County v. Pocomoke Bridge Co. 109 Md. 1, 71 Atl. 462, 16 Ann. Cas. 874; State ex rel. Hibbard v. Cornell, 60 Neb. 276, 83 N. W. 72.</p> <p>The Constitution of each state, so far as it is consistent with the provisions of the Federal Constitution, is the fundamental law of the state and is part of its supreme law, and acts passed by the legislature inconsistent therewith are invalid. 6 R. C. L. §§ 34, 43, 151-153; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; Rison v. Farr, 24 Ark. 161, 87 Am. Dec. 52; 37 Cyc. 886; Farris v. Yannier, 6 Dak. 191, 3 L.R.A. 713, 42 N. W. 31. '</p> <p>The legislative determination of the methods, regulations, and restrictions in reference to the subjects of this litigation, is final, except when so arbitrary as to be violative of the constitutional rights of citizens. 6 R. C. L. §§ 117, 154; State v. Fargo Bottling Works Co. 19 N. D. 413, 26 L.R.A.(N.S.) 872, 124 N. W. 387; Feibelman v. State, 130 Ala. 122, 30 So. 384; State v. Fredrickson, 6 L.R.A.(N.S.) 186, and note, 101 Me. 37, 115 Am. St. Rep. 295, 63 Atl. 635, 8 Ann. Cas. 48; Metropolitan Bank v. Yan Dyck, 27 N. Y. 536; M’Culloch v. Maryland, 4 Wheat. 431, 4 L. ed. 607; State ex rel..Terre Haute v. Kolsem, 14 L.R.A. 566, and note, 130 Ind. 434, 29 N. E. 595.</p> <p>It was not the intention of the framers of the Constitution to exempt this class of property from taxation. The debates of the constitutional convention so affirmatively show. Debates of Constitutional Convention, p. 457.</p> <p>“If two or more amendments shall be submitted at the sanie time, they shall be submitted in such manner that the electors shall vote for or against them separately.”</p> <p>■The amendments here relied upon by the relators were never properly submitted or adopted, and are therefore unconstitutional. Const. § 202; Records of the Sessions of 1911 and 1913; State ex rel. McClurg v. Powell, 77 Miss. 543/48 L.R.A. 652, 27 So. 927; Knight v. Shelton, 134 Fed. 423; McPee v. Brady, 15 Idaho, 761, 100 Pac. 97; 6 Am. & Eng. Enc. Law, 2d ed. 908; Collier v. Frierson, 24 Ala. 100; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; State v. McBridge, 4 Mo. 303, 29 Am. Dec. 636; State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785; State v. Swift, 69 Ind. 505; State ex rel. Hahn v. Young, 29 Minn. 474, 9 N. W. 737; Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519; Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222; Rice v. Palmer, 78 Ark. 432, 96 S. W. 396; State ex rel. Postel v. Marcus, 160 Wis. 354, 152 N. W. 419.</p>

Plaintiff appeals. The clerk must insert in the entry of judgment on the application of the prevailing party, upon notice, the sum of the allowance for costs as provided by this'Code. Comp. Laws, 1913, §§ 7793, 7794, 7800; Wolfe v. Kidley, 17 Idaho, 173, 104 Pae. 1014, 20 Ann. Cas. 39. Where costs on a motion for new trial are in the discretion of the court, no costs can be allowed unless the court exercises its discretion by awarding them. 11 Cyc. 252.

Burleigh County, W. Q. Crawford, J. From a judgment in defendant’s favor, plaintiff appeals. • The rate established in the manner prescribed by law is the lawful rate until it is set aside upon further evidence as the result of greater experience in applying it, and if then modified, it can only affect subsequent transactions. Wilcox v. Consolidated Gas Co. 212 TI. S. 19-52, 53 L. ed. 382-400, 48 L.R.A.(N.S.) 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034.

<p>Quantum meruit — action on — test of — work done — at request of defendant — reasonable value.</p> <p>1. The test of an action on the quantum meruit is that the plaintiff shall first allege the doing of the work, at the request of the defendant, and that for the work he reasonably deserves to have a specified sum.</p> <p>Note. — The general rule is that a broker has performed his contract and is entitled to his commissions when he is the procuring cause of sale, even though the sale is effected by the owner himself, as will be seen by an examination of the cases in an extensive note in 44 L.R.A. 321, on when real estate broker is considered as the procuring cause of the sale or exchange effected.</p> <p>Complaint — quantum meruit — cause of action.</p> <p>2. Complaint examined, and held to state an action on the quantum meruit.</p> <p>Landowner — agent to sell — sending lists to — prospective purchasers — influence hy agent — at request of landowner — services of agent — reasonable value of — recovery may be had. ’</p> <p>■ 3. If a landowner sends to an agent various lists of land at a certain net price, and the agent interests a prospective purchaser, and such purchaser refuses to pay the list price and wants more land than that offered, and is referred hy the agent to the principal to see if he can make a deal with him, and the principal keeps on dealing with the prospective purchaser both by himself and through the agent, and urges the agent to continue using his influence with the purchaser, and afterwards the principal meets with the purchaser alone and effects a sale for less than the list price and for more land than actually listed, but yet contemplated in the transactions between the purchaser and the agent, such agent can recover from such principal and on the quantum meruit a commission on such sale for his services performed.</p> <p>Real estate agent — furnishes buyer — terms of — sale made — satisfactory to client — services — reasonable value — may recover.</p> <p>4. Where a real estate agent furnishes a buyer upon terms which, even though not originally contemplated, are satisfactory to his clients, and a sale is made on such terms, such agent will be entitled to recover the reasonable value of his services rendered.</p> <p>Real estate agent — procuring cause — of sale — jury — question for.</p> <p>5. Whether the real estate agent was in fact the procuring cause of the sale which was consummated is held in the ease at bar to be a question for the jury, and not for the court, to pass upon.</p> <p>Real estate agent — employment of — lists of lands furnished — procures buyer — acceptable to principal — third party — agent acts through — immaterial.</p> <p>6. Where a real estate agent is employed to furnish a buyer upon terms acceptable to his principal,' and such principal is himself to consummate the agree-</p> <p>On effect upon the right to commissions, of fact that the owner sells to broker’s customer at reduced price, see notes in 15 L.R.A.(N.S.) 272, and 34 L.R.A.(N.S.) 1050.</p> <p>On right of broker to recovery of commissions on quantum meruit in case of a revocation of his authority, see note in 38 L.R.A.(N.S.) 369. On his right to so recover when he secures a purchaser for part of the property, see note in 51 L.R.A. (N.S.) 258. Also see note in 139 Am. St. Rep. 235. ment or sale, it is immaterial whether such agent acts by himself or through a third party, and whether there is one or two joint vendees, provided the vendee or vendees are acceptable to the principal, and which fact will be presumed from the mere closing of the deal.</p> <p>Offer of proof — evidence — exclusion of — error — assignment.</p> <p>7. A party must offer to prove the facts sought to be elicited from his witness before he can assign error upon an objection sustained to a question, the com- . petency of which is not apparent on its face.</p> <p>Instructions — jury — procuring cause — original discovery — broker — pur- ' chaser.</p> <p>8. It was not an error to instruct the jury that “the words procuring cause as applied to this case mean, that if you find from a fair preponderance of the evidence that the contract was as plaintiff claims, then a procuring cause means the original discovery of the purchaser by the broker, and the starting of the negotiations by him, together with the final closing by or on behalf of his client with the purchaser.”</p>

Erom a judgment and an order denying a motion for judgment notwithstanding the verdict or for a new trial, plaintiff appeals. A sale of personal property followed by actual delivery cannot be rescinded unless the property be promptly returned to the seller, or its return tendered and refused. Houghton Implement Co. v. Vavrosky, 15 N. D. 308, 109 N. W. 1024.

Where a county treasurer in his official capacity has money in his hands belonging to another, the remedy is by action against the county as for money had and received. In legal contemplation the county holds the money, hence the county should be sued. State ex rel. Worcester v. Nelson, 105 Wis. 111, 80 N. W. 1105. Money wrongfully paid out by the county treasurer in a settlement between the county and township must be accounted for by the county.

It is proper to receive expert testimony as to the prices usually and customarily charged by persons in the same profession and in the same locality. But such witnesses should be left to form and frame their own answers as to-the value of the services rendered, instead of having tha amount charged included in improper hypothetical questions. 2 Enc. Ev. p. 165; Spencer v. Collins, 20 Ann. Cas. 55, note; Maneaty v. Steele, 112 111. App. 19.

M. Hanley, J; Action to determine adverse claims to real estate. Judgment for defendant. Plaintiffs appeal. Statement of facts by Bruce, J. ■This is an action to determine adverse claims to real property, and comes to us for a trial de novo. On July 8, 1908, the plaintiff, David Gunsch, commenced a contest to cancel a prior homestead entry on the land in question. On February 24, 1909,. said contest was decided in the local land office in his favor.

<p>Motor cycle— automobile — collision oí — damages — action to recover — negligence of defendant.</p> <p>1. Plaintiff, riding a motor cycle, met defendant driving an automobile, and collided with the rear wheel of the auto just as it was turning out of plaintiff’s half of the roadway. Plaintiff recovered a verdict of $2,500 for alleged negligence of defendant, who appeals.</p> <p>Held, there is no proof that defendant was negligent.</p> <p>Negligence — defendant — contributory negligence — plaintiff — recovery — cannot be had.</p> <p>2. Conceding that defendant was negligent, it is conclusively established by plaintiff’s own testimony and by uncontroverted evidence that plaintiff was guilty of contributory negligence barring his recovery.</p> <p>Finding of jury — plaintiff’s negligence — admitted facts — contrary to — verdict not in accord with facts — dismissal of case — should have been ordered.</p> <p>3. The finding by the jury that plaintiff was not guilty of contributory negligence is contrary to all the admitted facts and to plaintiff’s own proof, and cannot be upheld. A directed verdict of dismissal should have been ordered.</p> <p>Note. — For rules of the road governing vehicles proceeding in opposite direction, see note in 41 L.R.A.(N.S.) 322, and as to vehicles proceeding in the same direction, see note in 41 L.R.A. (N.S.) 337.</p> <p>For speed of automobiles as negligence, see notes in 38 L.R.A. (N.S.) 488j 42 L.R.A. (N.S.) USO, and 51 L.R.A.(N.S.) 993.</p>

<p>Supreme court — prerogative jurisdiction — questions involved — publici jui'is — sovereignty oí state — franchises — prerogatives — liberties oí its people.</p> <p>1. The prerogative jurisdiction of the supreme court will be exercised only in cases wherein the questions involved are publici juris and the sovereignty of the state or its franchises or prerogatives or the liberties of its people are affected.</p> <p>Supreme court — members thereof — majority of —general election — successful candidates — controversy — public interest — sovereign rights of state — original jurisdiction — exercise of.</p> <p>2. A controversy between a majority of the present members of the supreme court' and certain successful candidates at the last general election who claim the right to occupy such offices and exercise the duties thereof, presented to this court by the petition of the attorney general, is a matter of such public interest and involves the sovereign rights of the state and its people in a degree sufficient to. require the exercise of such original jurisdiction.</p> <p>District court — judge of — called to sit — supreme court judge — in place of — becomes supreme court justice — for all purposes in case — power — authority.</p> <p>3. A judge of the district court who is called in to sit in the place of a judge of the supreme court becomes a justice of the supreme court for all purposes in the case in which he is so called, and is invested with the same power and authority conferred upon a justice of the supreme court.</p>

<p>Members of supreme court — district judges — when called by — acts —• powers — same as though elected and acting justices.</p> <p>1. District judges, when called by members of the supreme court, upon reporting for duty, are clothed by the Constitution with all the powers of justices of the supreme court, to the same extent as though they had been regularly elected and qualified to fill such positions.</p> <p>Canons — interpretation — construction — Constitution.</p> <p>2. Certain well-known canons of interpretation and construction of the Con-stitution announced and followed.</p> <p>Territorial enactments — brought forward — laws of state — become such — constitution — adoption of — state officers — terms of — commencement of — supreme court — judges — those first elected.</p> <p>3. Territorial enactments were by the Constitution carried forward and became the law of the state of North Dakota. The Constitution was adopted in view of a general statute of the territory, § 10, chapter 9, of the Code of 1877, which, by its terms, fixed the date of the commencement of the terms of all state-officers upon the first Monday in January, succeeding their election.</p> <p>Constitution — tenure of office — reference to — supreme court judges — only to those first elected.</p> <p>4. The reference in § 92 of the Constitution to the tenure of office of the judges, of the supreme court and their holding such offices from the first Monday in December, 1889, had reference wholly to the three judges first elected.</p> <p>State officers — supreme court — judges are — terms of office — commencement of.</p> <p>5. Judges of the supreme court are state officers, and all the members thereof, save the first three, begin their terms .of office on the first Monday in January following their election under § 678, Compiled Laws, 1913.</p> <p>Constitution — construction of — supreme court — judges of — usage — unquestioned — long period of time — practical construction.</p> <p>6. The construction of the Constitution as here declared, while never announced in a contested case, has for twenty-four years been followed by the judges of the supreme court in entering upon the discharge of the duties of their respective offices. This uniform rule of action, acquiesced in without a single exception for so long a period, constitutes a practical construction of the Constitution, which cannot now be avoided.</p> <p>Courts — judicial notice — of the election of state officers — certificate of election — immaterial — officer — administrative — powers of.</p> <p>7. The court takes judicial notice of the fact that Judges elect Robinson, Grace, and Birdzell were elected and will be entitled to take their seats on the first Monday in January, 1917. The fact whether or not a certificate of election has been issued to them is therefore immaterial. However, if issued, no administrative officer has power, by giving a certificate to that effect, to cause a term of office to begin prior to the time when so provided by the Constitution.</p>

<p>Certiorari — writ of — cause — inferior court — officer — board — or tribunal — jurisdiction — exceeded — appeal — none — other remedy — plain — speedy — adequate.</p> <p>1. Under § 8445, Compiled Laws'1913, a writ of certiorari will not be granted in any case unless the inferior court, officer, board, or tribunal has exceeded its jurisdiction and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy.</p> <p>Certiorari — final order — judgment — correctness — review of — remedy — not proper one — appeal available.</p> <p>2. Certiorari is not the proper remedy to review the correctness of a final order or judgment in a mandamus proceeding, inasmuch as the ordinary remedy by appeal is available.</p>

<p>Garnishee — plaintiff’s right to recover against — defendant’s right to re cover — predicated upon.</p> <p>1. Plaintiff’s right to recover against the garnishee is predicated entirely upon defendant’s right to recover in his own name and for his own use against the garnishee.</p> <p>Continuing- partnership — debt due to — member of firm — claim against —. garnishment — cannot be taken by.</p> <p>2. A debt due to a continuing partnership cannot he taken by garnishment to pay the individual debt of a member of the firm.</p>

<p>Words — “any action” — Compiled Daws — county commissioners — actions of — questions presented — petition — highway — establishing — proceedings — notices — posting.</p> <p>1. The words “any action” which occur in § 1924, Compiled Laws of 1913, refer to the action of the county commissioners in passing upon and determining the questions presented by a petition for the establishment of a highway, and, if the petition is posted twenty days before such action is taken by the board, the proceedings will not be nullified- merely because such petition was not posted more than twenty days before the notices for the meeting were served and posted by the board.</p> <p>Board of commissioners — determination of — highways — appeals — damages — objections filed — objector — land of — orders made —■ collateral attack.</p> <p>2. An appeal lies in North Dakota from the determination of a board of commissioners both as to the route to be taken' and the damages to be awarded in the ease of the laying out of a highway under the provisions of §§ 1928 to 1939 of the Compiled Laws of 1913. And if in such a case the land of the objector is sufficiently described and the order of the commissioners covers the land of the objector and the survey is in conformity with the order, and the objector has been properly served, such objector cannot afterwards collaterally attack the regularity of the proceedings or the final determination of the board.</p> <p>County commissioners — highway — establishing — order on — survey — route — order controls.</p> <p>3. Where the county commissioners seek to establish a highway and enter an order specifying the route, a survey which is subsequently made cannot vary or alter that route, and the order, and not the survey, must govern.</p> <p>Highway — route of — description of — particulars — order — void when.</p> <p>4. Where the county commissioners seek to establish a highway, the route of such highway must he described in terms Which are intelligible to a reasonably intelligent man, and where an order fails in this particular, it will he void and of no effect.</p>

<p>Evidence — trial court — rulings — instructions — admission of evidence.</p> <p>For the reasons stated in the opinion, certain rulings on the admission of evidence are sustained, and certain instructions are held proper or nonprejudicial.</p>

Action to have an assignment of a school land contract declared a mortgage and for the foreclosure of the same. Claim of a prior attachment. Appeal from the District Court of La Moure County, J. A. Coffey, J. Judgment for plaintiff. Defendant Dodson, Fisher, Brockman Company appeals. . . . Under an executory contract for the purchase and sale of state school lands, the holder of such contract may maintain an action for injuries done to the lands.

J. Kneeshctw, Special Judge. Action of conspiracy. Judgment for defendants. Plaintiff appeals. Statement of facts by Bruce, J. This is an appeal from a judgment of the district court of Ward county which was rendered for the defendants on a directed verdict. The amended complaint was as follows: The plaintiff, appellant herein, in his complaint in this action, asserts and states with other facts that: 1.

Remanded for a new trial. The question of the fraudulent intent is one of fact, and not of law, under our statute, and no transfer of property may be adjudged fraudulent solely on the ground that it was not made for a valuable consideration. Black Hills Mercantile Co. v. Gardiner, 5 S. D. 246, 58 N. W. 557; Dalrymple v. Security Loan & T. Co. 9 N. D. 306, 83 N. W. 245. Nor will the relationship of the parties alone afford such-ground. Eluegel v. Henschel, 7 N. D. 276, 66 Am.

<p>Claim and delivery — redelivery undertaking — breach of — damages — action for.</p> <p>1. In an action to recover damages for an alleged breach of a redelivery undertaking executed by defendants as sureties in a claim and delivery action, certain rulings in defendants’ favor rejecting offered testimony, examined and held proper.</p> <p>Redelivery undertaking — action for damages on — breach of — issues — jury — evidence — sufficiency.</p> <p>2. In an action to recover for the alleged breach of a redelivery undertaking in claim and delivery, one of the issues tried was whether the property involved in such prior action had been redelivered to plaintiff pursuant to the judgment. Plaintiff’s contention that such issues was erroneously submitted to the jury because of alleged insufficiency of the evidence, held, untenable.</p> <p>Redelivery undertaking — sureties — judgment In claim and delivery — concluded by — exceptions — issues — not adjudicated in former action.</p> <p>3. The general rule that sureties in a redelivery undertaking given in a claim and delivery action are, in the absence of fraud or collusion, concluded by the judgment against their principal in the claim and delivery action, has well-recognized exceptions. They are not thus concluded as to matters not within the issues, and therefore not adjudicated in such action. Not being parties to such prior action, the judgment rendered therein is res judicata as to such sureties only as to such issues as were therein properly raised, tried, and determined.</p> <p>Pleading — amendment — granting relief to amend — does not amount to — must be actually amended.</p> <p>4. Following the decision in Satterlund v. Beal, 12 N. D. 122, hold, that the ' mere granting of leave to amend a pleading does not amend it. Such permission</p> <p>must be acted upon and the pleading redrawn, covering the desired amendment, and if this is not done, the amendment is deemed abandoned.</p>

Action to determine adverse claims. Judgment for plaintiffs. Defendant appeals. Statement of facts by Bruce, J. The complaint in this action is in the statutory form of an action to determine adverse claims to three quarter sections of land.

<p>Farm laborer’s lien — foreclosure of — action for — cooking in cook car — threshing— validity of lien — class of labor —title to machine.</p> <p>1. Plaintiff seeks to foreclose her farm laborer’s lien for labor performed by her in cooking in a cook-car for a threshing crew while threshing Magill’s grain in September and October, 1915. Defendant claims a sale of the threshing rig to another, who hired plaintiff and the threshing crew, and denies responsibility. He also asserts that a farm laborer’s lien cannot be claimed for work of the kind performed. Prom a judgment of dismissal plaintiff appeals, demanding trial de novo.</p> <p>Held: Under the facts title to the threshing machine is not shown to have passed to the third party, who is held to be either an agent or partner of defendant and engaged with him in a joint venture of threshing defendant’s grain. That defendant should be held liable for payment of plaintiff’s wages.</p> <p>Farm laborer’s lien — work in cooking — cook car — threshing crew — crops.</p> <p>2. Plaintiff is entitled to a farm laborer’s lien, her work contributing directly to threshing of the crop. The case is not governed by Lowe v. Abrahamson, 18 N. D. 182.</p> <p>Note. — On who is “farm” or “agricultural” laborer within a statute giving a lien for the wages of farm laborers, see note in 19 L.R.A. (N.S.) 1039, to Lowe v. Abraham-son, 18 N. D. 182, 119 N. W. 241, 20 Ann. Gas. 355, which case is referred to in the opinion above.</p>

<p>Municipality — contractual liability — formalities — statutory requirements — absence of — officers — bound by acts of — duties — performance of.</p> <p>1. In the absence of statutory requirements covering the formalities necessary to bind a municipality to a contractual liability, a municipality is bound by the acts of its officers in accepting a proposal.</p> <p>Village trustees — allowance of bills — warrants — directs issue of — property — in payment of — authority to buy — proposal to sell — acceptance — village liable.</p> <p>2. Where a board of village trustees allows a bill and directs issuance of warrants in payment for property which it is authorized to buy and which is offered for sale under the terms of a definite proposal, the proposal is accepted, and the village is liable upon the warrants so issued.</p> <p>Villages — officers — debts — incurring — authority — legal petition for — by citizens and taxpayers — alternative form of — only as to form of the indebtedness — may incur liability — for purpose stated.</p> <p>3. Where a legal petition is filed by citizen property owners requesting a board of village trustees to incur a debt or liability, or to issue bonds for a given purpose, the petition is in the alternative only as to the form of the liability, and the submission to vote of the question of issuing bonds does not exhaust the authority of village trustees to incur liability for the purpose stated.</p>

J. A. Coffey, J. The jury must discriminate between the conditions which make the services of the physician necessary, and the evil results, if any, due to his malpractice, and no recovery can be had for an injury or condition not traceable to defendant’s negligence.

<p>Custody of child — action concerning — judgment — findings — conclusions —- attorneys’ fees.</p> <p>This is an action or motion concerning the custody of a minor child of the plaintiff and the defendant. There was no good reason for commencing the action, and the judgment has been given for a large sum of costs and attorneys’ fees, without any findings of fact or conclusions of law; and hence the judgment is reversed and the action dismissed without costs.</p>

<p>Appeal from District Court of Cass County, Pollock, J.</p>

From a judgment of the District Court of Hettinger County, Crawford, J., defendant appeals. In a special verdict, the question, “Did the plaintiff make a tender of the full amount due on the note and secured by the mortgage f’merely calls for a conclusion of law, and not one of fact. Comp. Laws 1913, § 7632; Eussell v. Meyer, 7 N. D. 335, 47 L.E.A. 637, 75 N. W. 262; Lathrop v. Fargo-Moorhead Street E. Co. 23 N. D. 246, 136 N. W. 88.

From a judgment of the County Court of Renville County, Crewe, J., plaintiff appeals. An action for conversion may be brought at any time within six years after the date of the conversion. Comp. Laws 1913, § 7375. The demand here made for the grain in question was made within a reasonable time. There is no conversion until demand and refusal. Demand made on the agent in charge is a sufficient demand on the defendant companies.

FranJc P. Allen, J. Plaintiffs appeal. A contract must be so interpreted as to give effect to the mutual intention of the parties at the time, so far as same is lawful and ascertainable. Comp. Laws 1913, § 5896. The intention of the parties to a written contract must, as a general rule, be ascertained from the instrument itself. Comp. Laws 1913, § 5899. The whole contract must be real and considered together. Comp. Laws 1913, § 5901.

W. J. Kneeshaw, J. Occupancy for any period confers a title sufficient against all except the state an-d those who have title by prescription, accession, transfer, will, or succession. Comp. Laws 1913, § 5469. Occupancy for the statutory time confers a title thereto, known as title by prescription, and is sufficiént as against all. Comp. Laws 1913, § 5470. It has been frequently held by the Federal courts that the statute will not begin to run until the issuance of patent.

Action to recover the purchase price of merchandise. Appeal from the District Court of Richland County, Frank P. Allen, J. Judgment for defendant. Plaintiff appeals. In the trial of a case before a jury, a pleading filed in the case is not affirmative evidence in behalf of the party filing it.