Volume 59 — Utah Reports

<p>Appeal from District Court, Second District, Weber County; A. W. Agee, Judge.</p> <p>Action by Elizabeth Mabel Perrin, administratrix of the estate of Arthur 0., Perrin, deceased, against the Union Pacific Railroad Company. From judgment for plaintiff, defendant appeals.</p>

Proceedings under tbe Workmen’s Compensation Act (Comp. Laws 1917, §§ 3061-3165, by L. B. Pickering, as employe, to: recover compensation for injuries while iñ the employ of Pickering Bros., a copartnership. From a decision of the Industrial Commission denying compensation, the em-ployé brings the proceedings before the court for review.

<p>1. Cexminai, Law — Identity of Property in Possession of Accused Must be Established Beyond Reasonable Doubt. In a prosecution for burglary, where the prosecution relies principally on possession of recently stolen property, the identity of such property must be established beyond a reasonable doubt, / but not necessarily beyond the possibility of a doubt.</p> <p>2. Burglary — Identity of Property in Defendant's Possession with that Stolen Held for Jury. In a prosecution for burglary, where' prosecuting witness identified jewelry found in de-, fendant’s room as that taken from her house, but on cross-examination was not positive, the identity of such property was a question for the jury.</p> <p>3. Burglary — Tools Pound in Defendant’s Room Admissible, THOUGH NOT SHOWN TO BE ADAPTED TO COMMISSION OF OFFENSE. In a prosecution for burglary, where certain marks and abrasions found on the door of the burglarized house, for aught that appeared in the evidence, might have been made with tools found in defendant’s room, such tools were admissible in • evidence, though it was not shown they were adapted to the commission of the burglary.</p> <p>4. Burglary — Evidence Held Insufficient to Establish Defendant’s Possession of Stolen Articles. In a prosecution for burglary, evidence held insufficient to show that defendant had such possession of the stolen articles found in a room occupied by him and another as to connect him with the crime.</p> <p>5. Criminal Law — Witnesses—Defendant’s Admission of Prior Term of Imprisonment no Evidence of Guilt, Going to Credibility Only. In a prosecution for burglary, defendant’s admission that he had served a term of imprisonment in another state went to his credibility only,'and did not tend to show that he had committed the offense charged.</p> <p>6. Burglary — Possession of Stolen Articles to Warrant Inference of Guilt, Must be Recent and Exclusive, but “Exclusive Possession” Need not be Separate. To convict of burglary on the ground of defendant’s possession of stolen articles, such possession must not be too remote in time, and must be per-' sonal and exclusive, or, if joint with another, there must be other evidence to connect defendant with the offense; but “exclusive possession” does not necessarily mean that the possession must be separate, for it may be the joint possession of two or more, as where they are acting in concert.</p> <p>7. Criminal Law — Defendant’s Attempt to Escape While Charged with Robbery Does not Indicate Guilt of Burglary. Where one charged with robbery, the penalty for which may be life imprisonment, attempted to escape, this was not a circumstance indicating guilt of offense of burglary, for which he was afterward tried.</p> <p>8. Criminal Law — Circumstantial Evidence Must Exclude Every Reasonable Hypothesis Except that of Defendant’s Guilt. Defendant must be accorded the benefit of every reasonable doubt, and, in cases dependent solely on circumstantial evidence, the circumstances must be such as to exclude every reasonable hypothesis except that of guilt.</p>

Proceedings under the Industrial Commission Act, for compensation for injuries to Clyde Parry, opposed by the Utah Fuel Company, employer. Compensation was awarded by the Industrial Commission, and the employer obtained a writ of review.

<p>Appeal from District Court, Third District, Salt Lake County; Wilson McCarthy, Judge.</p> <p>Action by the Emerson-Brantingham Implement Company against J. H. Giles and E. M. Hanson. From an adverse judgment, defendant Hanson appeals.</p>

M. Stephens, Judge. Oscar Nell and Vernon J. Nell were convicted of second degree burglary and grand larceny, and the latter appeals.

<p>1. /Homicide — Evidente Held Sufficient to Sustain Conviction of Murder. Evidence field sufficient to sustain conviction of murder in the first degree.</p> <p>2. Criminal Daw — Testimony at Preliminary Hearing not Inadmissible Because Transcript Contained no Title Page at Time of Piling and was Certified After Piling, Testimony taken at preliminary hearing was not rendered inadmissible because the transcript contained no title page at the time it was filed, and because it was certified to after being filed, since the lack of title page can be cured by amendment, as was done, and the adding of the stenographer’s certificate was merely a formal amendment, not preventing the accused from having a fair and impartial trial.1</p> <p>3. Criminal Law — Testimony Taken at Preliminary Hearing is not Rendered Inadmissible Because Original Notes of Reporter Were not Piled. Where a transcript was conceded to be the transcript of testimony taken at the preliminary hearing, and where counsel for the accused admitted and stipulated that the transcript was correct and authentic, it is not rendered inadmissible because the original notes of the reporter were not filed with the clerk of the district court, as required by statute.2</p>

<p>1. Divoeoe — Not Granted Because Parties are Mismated and Cannot Continue Marital Relation. A divorce cannot be granted where plaintiff has failed to show any grounds therefor and defendant expressly concedes that she does not desire to be divorced, although the conduct of plaintiff has been such that defendant wife is entitled to a divorce, and the parties are mismated and cannot continue their marital relation.</p> <p>2. Divorce — Plaintiff in Divorce Case Cannot Complain of Failure of Trial Court to Make Special Findinss. Plaintiff in divorce case cannot complain that trial court erred in not making specific findings, merely finding that the statements contained in the complaint were untrue and dismissing the complaint, such proceedings being highly equitable and all the evidence being certified to the Supreme Court, which may make findings or direct what they shall be, and, if the findings are insufficient or incomplete, make them conform to the evidence; it being clear under the evidence that plaintiff was not entitled to a divorce.</p> <p>3. Divorce — Trial Court Given Much Latitude as to Alimony. In making allowance for alimony and for separate maintenance, much latitude is given to the trial court, and such alimony, unless grossly excessive or grossly inadequate, should not be interfered with on appeal, since for these purposes the case alway remains open, and the trial court may at any time, upon proper application and for good cause shown, give relief where for any reason the conditions have changed, and may require a modification or change of the allowance made.</p> <p>4. Divorce — Husband Must Provide Means for Maintenance and Education of Child. Where wife is given separate maintenance and the custody of a child, the responsibility of rearing and training the child rests with the mother, but the duty to provide the means for its maintenance and education must remain with the father.</p>

<p>1. Appeal and Error — No Complaint that Answer Was not Stricken Where Question not Objected to. In an action for the death of a railroad machinist from an explosion of gas, assuming that a question whether carbide generators ever leaked gas was asked for the purpose of proving defendant's negligence, and that the answer in the affirmative was prejudicial, irrelevant, and immaterial, defendant could not complain of the court’s refusal to strike out the answer, where no objection was made to the question before it was answered, as it showed on its face that it was irrelevant and immaterial.1</p> <p>2. Master and Servant — Pact oe Explosion Held to Show Gas Generator Was Generating Gas. In an action for the death of a railroad machinist from an explosion of gas, the fact that the explosion actually occurred held to show that an acetylene generator on the engine on which he was working was in working order with all its parts in place, and generating gas at the moment of the explosion, where there were no eyewitnesses.2</p> <p>3. Master, and Servant — Leaving Gas Generator in Working Order Wiiiee Machinist Was Repairing Engine Held Failure to Fura'sh Safe Place. Where it was the custom of railroad machinists to use a lighted torch while repairing engines, and acetylene generators sometimes leaked gas, and gas might also escape through the inadvertent disconnection of a hose, and an explosion was inevitable if the lighted torch came in contact with the gas, the employer, in leaving a generator in working order while a machinist was repairing the engine, violated his duty to furnish the machinist a safe place to work.</p> <p>4. Master and Servant — In Absence oe Direct Evidence, Deceased Employé Presumed to Exercise Ordinary ’Care. In an action for the death of a railroad machinist from an explosion of gas, there being no direct evidence bearing on. the question, it is presumed that he exercised reasonable care, and the burden is on the defendant to overcome the presumption.</p> <p>5. Master and Servant — Risk .of Unsafe Place not Assumed Unless Danger is Obvious. If an employer was guilty of negligence in not providing an employé a safe place in which to do the work it required him to do, the employé did not assume the risk, unless the danger was so manifest, open, and obvious that a reasonably prudent man in the exercise of ordinary care should have refused to do the work.</p> <p>6. Master and Servant — Employer Held Liable for Death from Explosion, Though Employé Permitted G-ar to Escape by Disconnecting Hose. Where a railroad machinist, using a lighted torch while repairing an engine, had no reason to believe that an acetylene gas generator on the engine was in operation, the employer was liable for his death from an explosion, though he, inadvertently or otherwise, disconnected a hose, permitting gas to escape, where-he did not purposely disconnect it.</p> <p>7. Appeal and Error — Instruction Hypothesizing Taking of Precautions in Defendant’s Shop and Other Shops Held not to Harm Defendant. Though an employer sued for the death of an employé should not be bound by the practice or custom of other shops, an instruction, authorizing a verdict for plaintiff if the jury found that certain precautions against the explosion of gas were usual and customary in defendant’s shop and in shops doing similar work, merely imposed an additional burden on plaintiff, and did not- prejudice defendant.</p> <p>8. TRIAL-INSTRUCTION AS TO PRECAUTION BY EMPLOYER A6AINST EXPLOSION op Gas Held not to Invade Jury’s Province. In an action for death of a railroad machinist, an instruction that if the jury believed that it was usual and customary to take certain precautions against explosions of gas, and further believed that such precautions were necessary in the exercise of ordinary care, and that a reasonably prudent person under like conditions would, in the exercise of reasonable care, have exercised such precautions, then it was defendant’s duty to use reasonable care to take the precautions specified, and such precautions as a reasonably prudent person would take, etc., did not invade the province of the jury, as it was left to the jury to determine whether the precautions referred to were necessary in the exercise of ordinary care.3</p>

<p>1. Waters and Water Courses — ¡Vested Rights in Water Cannot be Disturbed by Grant of Water Rights by State Engineer. It is beyond the authority of the state engineer to grant water rights that in any way disturb the rights of others to the use of waters in which they have acquired a vested right.1</p> <p>2. Waters and Water Courses — Grant of Waters Conditioned They Must not Interfere with Vested Rights Held not to be Set .Aside. In an action under Comp. Laws 1917, § 3459, to restrain the letting of water rights by the state engineer in Pole Canyon, in which waters plaintiffs had acquired a vested right for irrigation and culinary purposes, from April 15 to June 15 or July 4 of each year, and it was possible that by development of the gravelly bed of the ravine water might be conserved in addition to that appropriated by plaintiffs, a grant by the state engineer of the rights to the use of five second feet of the unappropriated waters of the canyon, which should not interfere with plaintiffs’ rights, will not be set aside so long as plaintiffs’ rights are not interfered with.</p>

<p>1. Appeal and Error — When no Complaint Made of Findings, Facts Assumed to be as Found. Where no complaint is made regarding the facts as found by the court, the Supreme Court must assume the facts to be as stated in the findings.</p> <p>2. Divorce — Provision for Support and Education of Boy not Modified when Boy did not Willfully Refuse to go to School. Where a divorce decree required the husband to pay $20 a month for the support, care, maintenance, and education of a boy, and he could not obtain the education necessary to qualify him to become independent without such payment, and he had not willfully refused to go to school, but was compelled to leave school to earn a livelihood and pay debts incurred in attempting to fit himself as an automobile engineer, the refusal to modify the decree by eliminating the provision for such payment was not error.</p> <p>3. Divorce — Allowance for Child’s Support and Education Held not Conditional on Continuous School Attendance. Under a divorce decree requiring the husband to pay $20 a month for the support, care, maintenance, and education of a boy for 10 months in each year of his minority, beginning September 1st and ending June 30th, the liability to make such payment was not conditional on the boy’s continuous attendance at school during the 10-month period, where he did not willfully refuse to go to school, but merely refrained from doing so because he must earn a livelihood.</p> <p>4. Divorce — Counsel Fees Properly Allowed in Proceeding to Compel Payment of Allowance for Support and Education of Children. Where a divorce decree requires the husband to pay a certain sum periodically for the support, care, maintenance, and education of children, and he, without sufficient cause, refuses to comply therewith, compelling the wife to bring proceedings against him, whether for contempt or otherwise, the court within reasonable bounds may require him to pay counsel fees.</p>

<p>1. Officers — Power of Appointment Embraces Power of Removal. Unless otherwise provided by law, the power of appointment embraces the power of removal.</p> <p>2. Municipal Corporations — Civil Service Commission Held Without Power to Remove Officer. Under Laws 1921, c. 13, the civil service commission has no power to order the chief of police and board of commissioners of a city to remove or reduce in rank a chief of detectives; the power of the commission being limited to entertaining complaints from citizens, investigating the conduct of police officials, compelling attendance of witnesses, making findings and conclusions, and recommending to the head of the department what he should do in the case.</p> <p>3. Statutes — Construed only in Case of Ambiguity. When language is clear and unambiguous it must be held to mean what it expresses, and no room is left for construction.</p>

<p>Appeal from District Court, Third District, Salt Lake County; Wm. H. Bramel, Judge.</p> <p>Application of D. J. "Williams for writ of mandamus against John S. Corless, as sheriff of Salt Lake County, and others. Writ awarded and defendants appeal.</p>

<p>Appeal from District Court, Third District, Salt Lake County; Wm. H. Bramel, Judge.</p> <p>Action by H. B. Cole and others against the Canton Mining Company and others. Judgment for defendants, and plaintiffs appeal.</p>

District, Salt Lake County; L. B. Wight, Judge. Proceeding by the state of Utah against the Swanson Theater Circuit. From a judgment sustaining demurrer to and dismissing the complaint, the State appeals.

<p>1. VENDOR AND PUBOHASEBr — -PUBCHASER RELIEVED FROM FORFEITURE</p> <p>when Nonpayment Due to Vendob’s Inability to Procure and Convey Title. Under a contract tor the sale of land providing for forfeiture of the purchaser’s rights on failure to comply with the contract for 60 days, where the vendor had no title but was only a vendee or optionee of a larger tract embracing that sold, and was financially unable to complete the purchase of the premises, the purchaser will be relieved from a forfeiture of the contract on account of his failure to make monthly payments, in view of Comp. Laws 1917, § 6579, authorizing any defense, either legal or equitable, to be interposed, especially where the purchaser did not intend to forfeit his contract, but only failed to make the payments becaused he feared his vendor could not deliver title.</p> <p>2. Vendor and Purchaseb — Purchaser with Notice in no Better Position to Insist on Forfeiture than Seller. Where plaintiff and its predecessors in interest when the title to land was acquired had notice of the right of one to whom a vendee or optionee had contracted to sell a part of the land, and such person was occupying the premises with his family plaintiff was in no better position to insist upon a forfeiture of the contract for failure to make monthly payments than the optionee whose rights they had also acquired.</p> <p>3. VENDOR AND PURCHASER — COURT SHOULD REQUIRE PURCHASER TO do Equity by Depositing Amount Due in Relieving Him From Forfeiture. In an action to recover the possession of land from one having a contract of purchase and in default in making monthly payments thereunder, the court, before relieving him from a forfeiture and dismissing the complaint, should have required him to do equity by depositing the amount due, and which he alleged he was ready and willing to pay, with the clerk of the court for plaintiff’s use and benefit.</p>

<p>1. Divorce — Defendant Held Purchaser in Good Faith fbom Divorced Husband. In an action by a wife against her divorced husband and his mother to set aside a deed from him to the mother as without consideration and in fraud of plaintiff’s right to alimony, evidence held to sustain finding that the deed was valid.</p> <p>2. Divoece- — Husband’s Deed to Bona Fide Purchases after Division of Property Held Valid. After divorce and division of real property' and after the husband’s default in payment of alimony and his removal to another state, conveyance by him to his mother founded on a good consideration was valid..</p> <p>3. Divorce — Obligation to Pay Alimony Enforceable in Another State to Which Husband Removes. The obligation under a decree to pay alimony for the benefit of the divorced wife and for the children obligates the husband on his removal to another state, and may be there enforced.</p>

Original mandamus proceeding by Richard C. Towler and others against W. J. Warenslri and others to compel the performance of certain duties relating to election of officers at the ensuing election.

D. Call, Judge. Action by Man-a-watze, Indian widow of Tom Pocatello, deceased, and others, against Joseph Woonsook, alias Little Joe Woonsook and others. From a judgment for defendant, plaintiffs appeal.

<p>1. Pleading — Facts Alleged in Complaint Assumed True on Demurrer. Facts alleged in complaint must he assumed to he true on demurrer.</p> <p>2. Corporations — (Complaint Held to State G-ood Cause of Action for Recovery of Stock Purchased by Meajjs of Fraudulent Representations. Complaint, pleading that officers of oil refining company induced plaintiff stockholders and their assignors whose confidence they had won to sell their stock for grossly inadequate price to another corporation by means of fraudulent misrepresentations as to value of stock, financial condition of corporation, and as to expiration of crude oil contracts, which in fact had been renewed, that officers had acquired the stock from the other corporation pursuant to fraudulent agreement, and that transactions had been rescinded on discovery of fraud held to state good cause of action as against the officers and the other corporation for recovery of legal ownership of the stock and the dividends received by officers and other corporation while holding stock, regardless of who held ownership of stock at time of rescission; all of such defendants being parties to the fraud.</p> <p>3. Corporations — Confidential Relationship Between Seller and Buyer of Stock Requires Utmost Good Faitii on Part of Buyer. Ordinarily the owner of stock or other personal property will be presumed to know its worth and value, and cannot complain that he parted with it for an inadequate consideration by reason of false representations made to him by the purchaser, but the confidential relationship of the seller and buyer, together with the lack of knowledge on the part of the seller, may be such as to require the utmost good faith and fair dealing on the part of the buyer.</p> <p>4. CORPORATIONS-OFFICER PURCHASING STOCK NOT BOUND TO DISCLOSE Information Gained by Reason of Official Connection. An officer of a corporation in purchasing stock from a stockholder is not bound to disclose the knowledge or information he has gained by reason of his official connection with the corporation.!</p> <p>5. Corporations — Rescission of Sale of Stock Induced by Fraud Reinvests Seller with Rights of Ownership, Including Right to Assign Stock to Another. Rescission by seller of sale of stock, induced by fraud, on discovery of the fraud, reinvests seller with rights of ownership, and entitles him to assign stock to third person.</p> <p>6. Equity — "Law and Equity May be Administered in Same Action. In Utah, law and equity in a proper case may be administered by the courts in the same action.</p> <p>7. Corporations — Complaint to Recover Stock Sold Under Fraudulent Representations Held not Demurrable as Ambiguous, Unintelligible, or Uncertain. Complaint to recover ownership of stock on the ground that plaintiff and his assignors had been induced to sell stock by "defendant officers of corporation to other corporation by fraudulent misrepresentations as to value of stock and condition of corporation, and that defendant officers had acquired such stock from such other corporation, held not demurrable, as ambiguous, unintelligible, or uncertain.</p> <p>8. Corporations — Complaint to Recover Stock Procured by Defendants by Fraudulent Representations Held not Demur-rable for MisjUinder of Parties. Complaint to recover stock, alleging that defendant officers of corporation had induced plaintiff and his assignors, by means of fraudulent misrepresentations as to the value of the stock and the financial condition of the corporation, to sell the stock to other corporation, also made a party defendant, at a grossly inadequate price, and that, pursuant to fraudulent agreement, such officers subsequently acquired such stock from the other corporation, held not demur-rable for misjoinder of parties; all defendants being parties to the fraud.</p>

Certiorari by the Utah Copper Company to review an order of the Public Utilities Commission of Utah in the matter of the application of the Utah Power & Light Company for permission to increase its power rates under the Public Utilities Act.

F. Knox, Judge. Action by Parker Robison, as administrator of the estate of Almon Robison, deceased, against Proctor H. Robison and another, in which named defendant filed counterclaims. Judgment for plaintiff, and named defendant appeals.

<p>1.Municipal Corporations — -Statute Authorizing Levy op Tax in Controlling and Distributing Water Outside Limits not Unconstitutional. Comp. Laws 1917, § 570x17, authorizing city councils to control water courses leading to the city, and, when acting as distributing agent of water not the property of the corporation outside or within the corporate limits, to levy an annual tax for the purpose of controlling, regulating, and distributing such water, etc., did not violate Const, art. 13, § 10, making property subject to tax within the territorial limits of the authority levying the tax, as what is called a tax in the statute is not a tax within the meaning of t¡he Constitution.1</p> <p>2. Constitutional Law — Construction op Statute That Will Make it Constitutional Will be Adopted. If a legislative act is susceptible of two constructions, one conformable to the constitutional provision on the subject, and the other not, the court will adopt the one that is conformable to the Constitution and reject the other.2</p> <p>3. Municipal Corporations — Amendment op Statute as to Collection op Expenses op Distributing Water Held not to Appect Ordinance. Laws 1919, c. 12, amending Comp. Laws 1917, § 570x17, to provide that a city council, acting as distributing agent of water outside or within the corporate limits, may annually determine and fix the sum necessary to meet the expenses, and collect such sum from the persons entitled to the water, makes no material change in the former law providing for the levy of a tax for the same purpose, and does not repeal a municipal ordinance passed under the old law and not repugnant to any provision of the new law.3</p>

<p>Appeal from District Court, Fifth District, Juab County; D. E. Morris, Judge.</p> <p>Action by G-ladys Bowers against J. H. Carter. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, First District, Box Elder County; J. D. Call, Judge.</p> <p>Action by the Southern Pacific Company against Riey H. Jones. From judgment for plaintiff, defendant appeals.</p>

Proceedings under the Workmen’s- Compensation Law (Comp. Laws, 1917, §§ 3061-3165) by Elise Berg, for compensation for the death of her son, Walter Berg, opposed by the Bamberger Electric Railroad Company and the Utah Power & Light Company, employers. Award by Industrial Commission of Utah for claimant against both employers, and first-named employer petitions for a writ of review. Commission instructed to vacate award as to first-named employer.

Tobin, Judge. Action by the Jeremy Fuel & Grain Company against the Denver & Rio Grande Railroad Company. Judgment for the plaintiff, and defendant appeals. On respondent’s motion to strike the bill of exceptions.

<p>Appeal from District Court, Third District, Salt Lake County; W. H. Bramel, Judge.</p> <p>Action by George H. Horne and others against the Utah Oil Befining Company. From judgment for' plaintiffs, defendant appeals.</p>

C. Evans, Judge. Proceeding by Mabel Allsop and others under the Workmen’s Compensation Act to obtain compensation for the death of Samuel Francis Allsop, husband and father, opposed by the Bingham Mines Company and others. From an award of compensation, which was affirmed by the district court, the defendants appeal.

<p>1. Marriage — Presumed that Illegal Cohabitation Continued. Where woman became plural wife of man when plural marriages were prevalent in the state, and continued to live with him without any apparent change in the relation after the death of the legal wife, there is a presumption of law that their living together as husband and wife continued to be unlawful.</p> <p>2. Marriage — Declarations oe Deceased Competent to Disprove Claim of Marriage. Declarations of a decedent are competent to disprove a claimed marriage with him, especially where a common-law marriage is' claimed, and the fact of marriage is rendered improbable by reason of a prevalence of plural marriages at the time.</p> <p>3. Marriage — Evidence Held to Sustain Finding of no Legal Marriage. In an action by one claiming to be wife of a decedent to recover a one-third interest in real property under Comp. Laws 1917, § 6406, a finding of the trial court that no legal marriage was entered into held sustained by the evidence.</p>

<p>1. Principal and Agent — -Evidence Held to Show Fraud in Collecting Pees fob Suit not Instituted. Evidence held to show that a mercantile agency was guilty of fraud in collecting from plaintiff attorney’s fees and costs for prosecuting a suit on plaintiff's note when no suit was instituted until after plaintiff had demanded return of the note and an accounting.</p> <p>2. Actions — Poems Being Abolished, Failure to Ask Accounting Held not to Defeat Relief Dub Under, Pacts Alleged. In view of the constitutional provision abolished forms of action and directing that there be only one form of civil action, and that law and equity may be administered in the same - action, the failure of the plaintiff to ask for an accounting in equity does not defeat his right to recover money which the facts alleged in his complaint showed was obtained from him by the fraud of defendants.1</p>

<p>1. 'Mandamus — Lies to Compel Supervisors to Provide Mothers Pension Fund. Comp. Laws 1917, § 3960, as amended by Laws 1919, c. 77, mailing it the duty of the county commissioners to provide annually funds for the partial support of widowed mothers, is plainly mandatory, and imposes a positive duty on the supervisors to provide such funds, though they have discretion as to the amount necessary, so that they can be compelled to do so by mandamus.1</p> <p>2. Infants — Pkovision foe Indigent and Dependent Poor, Including Widowed Mothebs, Held not to Comply With ti-ie Law Providing Funds fob Such Moti-iebs. A county’s provision for its indigent and dependent poor, including widowed mothers dependent on their own efforts to maintain their children, does not comply with Comp. Laws 1917, § 3960, as amended by Laws 1919, c. 77, requiring that the county provide a fund to be expended exclusively for partial support of such mothers; the statute not intending that they should be classified with paupers.</p> <p>3. Mandamus — -May Issue to Compel Future Levy of Tax. Mandamus may issue to compel the supervisors of a county to set aside a fund necessary for the partial support of widowed mothers, though it is too late to levy a tax for that purpose for the current year, and not yet time to make the levy for the next year, where the return of the supervisors does not show an intention to comply with the statute during the next year.</p> <p>4. Mandamus — Resident and Taxpayer not “Beneficially Interested” in Mothers’ Pension Fund. Within Comp. Laws 1917, § 7392, authorizing mandamus on application of the party beneficially interested, the term “beneficially interested” requires the applicant to have some peculiar interest, separate and distinct from that of the community in general, so that a resident and taxpayer of a county who has no interest except as such cannot maintain mandamus to compel the supervisors to set aside a fund required by statute for the partial support of widowed mothers, but such proceedings can only he maintained by a member of the class for whose relief the law was enacted, or by a person upon whom a legal demand might be made to furnish support for such widowed mother or her children.2</p> <p>Corfman, C. J., dissenting.</p>

<p>1. States — Constitution Does not Require Payment of Traveling Expenses to State Officer. Const, art. 7, § 20, fixing the compensation of certain state officers and stating that the Legislature may provide for the payment of their actual expenses while traveling in the performance of official duty, did not make the payment of such expenses obligatory on the Legislature or give the officers referred to a constitutional right to have such expenses paid by the state.</p> <p>2. Distr.ict and Prosecuting Attorneys — not Entitled to Traveling Expenses Except Mileage. Comp. Laws 1917, § 5772, making district attorneys state officers, fixing their salaries and giving them the same mileage as district judges, which they shall take in lieu of all other compensation, does not authorize the payment of the. expenses of such attorneys necessarily incurred while traveling in the performance of their official duties.</p> <p>3. District and Prosecuting Attorneys — Appropriation Acts Held not to Repeal Act Fixing Compensation of District Attorneys. The provision of the various appropriation acts for the actual and necessary traveling expenses of district attorneys does not repeal the provision of Comp. Laws 1917, § 5772, giving such attorneys salaries and mileage in lieu of all other compensation, but were manifestly intended to provide for the payment of such mileage.</p> <p>4. Statutes — 'Contemporaneous Construction by Executive Officers is Persuasive. The construction by the executive officers of Comp. Laws 1917, § 5772, contemporaneously with its enactment and continuously since, as not authorizing payment of the traveling expenses of district attorneys in addition to their mileage, though not binding on the courts, would be persuasive if the language of the section was ambiguous.</p> <p>5. District and Prosecuting Attorneys — Court Cannot Allow Just Traveling Expenses not Authorized by Statute. Even though a district attorney, whose district' embraces five counties so that his traveling expenses are necessarily heavy, may have a just claim against the state for the payment of such expenses, the courts can grant him no relief, where it is plain that the statute does not authorize the payment of such expenses.</p>

<p>Application by the Bamberger Electric Railroad Company and others for a writ of re'view against the Public Utilities Commission of Utah.</p>

<p>Appeal from District Court, Third District, Salt Lake County; J. Louis Broum, Judge.</p> <p>Action by Charles Jensen against the Oregon Short Line Railroad Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Second District, Weber County ; A. E. Pratt, Judge.</p> <p>Action by George H. Butler, as administrator of Ormond H. Butler, deceased, against John Barton Payne, as Agent under the Transportation. Act of 1920 (41 Stat. 456). Judgment for defendant, and plaintiff appeals.</p>

<p>1. COURTS — Decision as to Fixing Rates for Public Utility Service Adhered to Under Rule of Stare Decisis. Decisions of this court adhered to under the rule of stare decisis, as having determined that in fixing rates for public utility service under the Public Utilities Act the Commission is not controlled by antecedent contracts, but can disregard them if in conflict with what it finds to be a reasonable rate under the conditions existing at the time of the investigation; and that thereby there is no impairment of obligations of contract or deprivation of property without due process.1</p> <p>2. Public Service Commissions — Question of Jurisdiction of Commission not Raised by Pleadings or Argument Reserved. On certiorari by one furnished service by a power company, under a long time contract at a uniform rate, to review proceedings of the Public Utilities Commission on application of said company to increase its rates, the question of power of the Commission, on placing plaintiff on the standard schedule of rates, to allow it a credit on account of what it by virtue of the contract had paid in excess of that paid by other consumers of the same class, not having been raised by the pleadings or on the argument, will be reserved.</p> <p>3. Public Service Commissions — Should Make Rate to be Paid Definite and Certain. The Public Utilities Commission in placing a public utilities service customer on the standard schedule of rates, notwithstanding a long time contract, should make an express finding as to whether the service is to be furnished at a wholesale price, or at least make the rate to be paid by such customer definite and certain.</p>

Original certiorari proceeding by tbe Pinyon Queen Mining Company and another against tbe Industrial Commission to annul an award to Matt Finn of compensation for injuries.

Action by Matthew McB. Thompson against Charles Reynolds and Mary Atkinson. Judgment quieting title in plaintiff subject to a contingent interest in one-third thereof in the defendant Atkinson in the event she survives her husband, and the defendants appeal.

<p>1. Appeal and Error — Exception to Refusal to Pekmit Reopening- of Case Held Sufficient Exception to Grant of Nonsuit. Where, after the court had indicated that it would grant a motion for a nonsuit, petitioners’ attorney asked leave to reopen the case and submit additional proof, and, upon denial of the application, excepted, the exception went to the sustaining of the motion for a nonsuit, as well as to the refusal to permit the case to -be reopened.</p> <p>2. Appeal and Error — -Failube to Except to Ruling not Ground fob Dismissing Appeal. The failure to take an exception to a ruling granting a nonsuit would not authorize a dismissal of the appeal, but at most could only prevent the court from considering the ruling as error.</p> <p>3. Executors and AdministRatobs — On Petition to Revoke Letters, Error to Grant Nonsuit, Though Court not Impressed with Testimony. In a proceeding to revoke letters of administration, a motion for a nonsuit admitted for the purposes of the motion, the facts which the testimony tended to establish, and presented only a legal question, and, where there was evidence in support of the petition, it was error to grant the motion, though the court may not have been impressed with the testimony, and, if defendants had rested, might not have felt justified in making findings on such evidence in favor of the petitioners.</p> <p>4. Executors and Administrators — District Courts Have Wide Discretion in Conduct of Estates. District courts are, and as a matter of necessity must be, given a wide discretion in the conduct of estates, and should not be limited or restricted unnecessarily.</p> <p>5. Executors and Administrators — Statutes Held not to Limit Court’s Duty to Revoke Letters for Failure to Include Property in Inventory. Comp. Laws 1917, §§ 7733 and 7734, authorizing proceedings to compel delivery to the administrator of property withheld from him, does not limit the court’s duty to revoke letters of administration, under section 7627, because of the failure of the administrator to include in his inventory, under section 7635, property in the possession of himself or others.</p>

B. Morgan, Judge. Action by the Tintic-Delaware Mining Company against the Salt Lake, Fillmore & Kanosh Railroad Company and others. From that part of a judgment for plaintiff dismissing the action as to A. Y. Robison and others, individual defendants, plaintiff appeals.

A. Iverson, Judge. Action by Lola Montie Ahlbom against Oscar W. Ahlbom for divorce. Judgment of dismissal was entered, new trial denied, and plaintiff appeals.

<p>1. CORPORATIONS-PERFORMANCE OF SALE OF STOCK ORDINARILY REQUIRES Delivery of Certificate. Under Comp. Laws 1917, § 878, shares of stock in a corporation are deemed personal property, the certificates issued therefor are the muniments of title, and due performance of a contract of sale on the part of the seller of stock ordinarily requires a -delivery of the certificate.1</p> <p>2. Corporations — Rules Applicable to Sales of Personalty in General are Applicable to Sale of Stock. The same principles and rules of law are applicable to the sale of corporate stock as to sales of personal property in general.</p> <p>3. CORPORATIONS' — BURDEN ON PLAINTIFF TO SHOW DAMAGE Through Corporation’s Failure to Deliver Stock Purchased. In an action by purchaser of stock against the corporation for failing to deliver certificates for stock purchased, it was incumbent on plaintiff to prove, and on the trial court to find, the actual loss or damage sustained.</p> <p>4. ‘ Corporations — Measure of Damages for Delay in Delivering Stock Purchased Stated. The measure of damages for delay in delivering certificates of stock purchased is the difference between the price per share at which the stock was selling when it should have been delivered and the selling price on the market when it was delivered.</p> <p>5. Corporations — That Purchaser of Stock Intended for Resalf. May Supply His Customer From Other Stock Does not Deprive Him of Remedy for Delay in Delivery. A purchaser of stock is not deprived of his right to damages for the corporation’s delay in delivering certificates therefor by the fact that the purchaser was able to supply his own customers out of other stock that he had on hand, the corporation knowing that the purchase was made for the purpose of resale.</p>

B. Barnes, Judge. Action for divorce by Wilson Bryant Burtt against Marion Stiles Burtt, in which the defendant filed a counterclaim for separate maintenance. From a decree denying the divorce sought by plaintiff and granting the relief sought by defendant, plaintiff appeals.

<p>1. Bankruptcy — -Charge as to Prior, Debts as Consideration for Promise to Pay After Discharge in Bankruptcy Heed Correct. Jn suit on a note given for debts from which defendant had been released in bankruptcy proceedings, a charge that the original debts constituted sufficient consideration for a new promise to pay, and that a new promise to pay a discharged debt must be clear and unequivocal to pay the particular debts which were discharged in bankruptcy, and that the debts covered by any promise must be identified as those that were discharged in bankruptcy proceedings, was correct.</p> <p>2. Bankruptcy — Promise to Pay Debts from Which Promisor HAD BEEN DISCHARGED IN BANKRUPTCY MAY BE ORAL. A promise to pay debts from which the promisor has been discharged in bankruptcy proceedings is enforceable though made orally, and no particular form is' necessary.</p> <p>3. Bankruptcy — Acceptance of New Promise May be Implied. In action on note given for debts which defendant ..claimed had been discharged by his bankruptcy, an instruction that plaintiff could not recover unless “at the time of the execution of the note plaintiff expressly and unequivocally agreed to' accept and defendant expressly and unequivocally agreed to make and deliver the note in settlement of or as a new promise to pay those specific claims, and no others,” was error, for acceptance may be implied, as from the benefit of the promise to the prom-isee, or from his acting on the promise, such as his suing thereon.</p> <p>4. Bankruptcy — In Action on Note Given for Claims Which Defendant Claimed Were Discharged in Bankruptcy, Instruction Held Erroneous. In such action an instruction that plaintiff could not recover unless "the note correctly states the amount then unpaid upon those claims, and is not' in excess of the amount unpaid upon those specific claims at the date of said note,” was error, for, if defendant promised to pay the claims, the mere fact that in adding them together a mistake was made as to their aggregate amount would not vitiate the promise; the material thing being' the identity, and not the correct addition, of the claims.</p> <p>5.Bankruptcy — Question as to What Claims Were Included in a Note Given by a Discharged Bankrupt to Pay Debts In-CTJBKED PRIOR TO THE BANKRUPTCY SHOULD HAVE BEEN LEFT TO the Jury. . In a suit on a note given by a discharged bankrupt to pay debts from which he had been discharged in bankruptcy, where there was evidence that there were claims included in the discharge in bankruptcy proceedings other than those included in the note, and that there were other claims not included in the bankruptcy proceedings, the question 0f what claims were included in the note should have been left to the jury.</p> <p>6. Bills and Notes — Where Some Evidence of Fraud in Procuring a Note was Introduced, the Question Should Have Been Left to the Jury. In a suit on a note, defended on the grounds of fraud and duress, where some evidence of fraud was introduced, the question of fraud should have been left to the jury.</p> <p>7. Pleading — Allegations of Fraud'in Obtaining Noté Held Sufficient to Admit Evidence Thereof. In a suit on a note, defended on grounds of fraud and duress, allegations in the answer that the plaintiff unlawfully garnished defendant’s wages, and made false and fraudulent misrepresentations which defendant believed, and on which he relied, and executed the note in question and that the execution and delivery Were obtained by means of undue influence and duress, and that the note was without any consideration, was sufficiently specific to admit evidence of fraud.</p>

<p>Appeal from District Court, Third District, Salt Lake County; Jno. F. Tobin, Judge.</p> <p>Action by. the Ogden Packing & Provision Company against W. C. Wyatt and others. Judgment for plaintiff, and defendants appeal. '</p>

A. Iverson, Judge. Action by James D. Pardee against Hyrum L. Nelson and wife. From a judgment for costs only against the named defendant and dismissing the action against defendant wife, plaintiff appeals.

Louis Brown, Judge. Action by Dan Bogdon, a minor, by his guardian ad litem, John Bogdon, against the Los Angeles & Salt Lake Railroad Company. Judgment for the plaintiff, and defendant appeals.

<p>1. Mandamus — Costs are in Court’s Discretion. Under Comp. Laws 1917, §§ 7036, 7038, 7041, 7046 to 7048, and 7401, costs in mandamus proceedings against a judge or public officer are in the court’s discretion.1</p> <p>2. Mandamus — Cost Bill Need not be Served Within 5 Days after Remittitur. In view of Comp. Laws 1917, § 7046, requiring that the same costs on review in special proceedings otherwise than by appeal be allowed as on appeal, the party to whom costs are awarded by the appellate court in mandamus may serve his cost bill at any time within 30 days after the remit-titur is filed as provided by section 7048; section 7047, requiring service within 5 days after the verdict or notice of decision, applying only to actions determined in the district courts.</p>

<p>1. CRIMINAL Law — 'Refusal of Specific Charge Covered by General Instruction not Error. Where the court 'fully instructed not to convict if the jury had a reasonable doubt of defendant’s guilt, refusal to charge that, if any juror entertained such a doubt, he should not vote guilty solely because other jurors favored such verdict, was not error.</p> <p>2. Criminal Law — Requested Instruction Held Erroneous, as Leading Jurors to Believe Verdict Must be Reached and Adhered to Without Deliberation with Fellow Jurors. A requested charge that any juror entertaining a reasonable doubt of defendant’s gtiilt should not vote guilty because other jurors favored such verdict held erroneous, as calculated to lead a juror to believe that his verdict must be reached and adhered to without consideration and deliberation with his fellow jurors, thus inviting- an acquittal or disagreement.1</p> <p>3. Criminal Law — Requested Instruction to Scrutinize Prosecuting Witness’ Evidence with Caution Held Properly Refused, in View of Charge Given. Where the court fully charged the jurors as to their duty in weighing the testimony, refusal of charge to scrutinize the prosecuting witness’ evidence with caution was not error.</p> <p>4. Criminal Law — Order to View Premises after Jury’s Retirement and Separation of Jury Held not Reversible Error. That an order to view the premises was not made until after the jury had retired, and that the jury were separated by being permitted to ride in two automobiles, held not reversible error, where it was not shown by appellant, at whose request the order was made, that any juror was guilty of any misconduct while on the trip, that any one communicated with them, or that any prejudice resulted.</p>

H. Erickson, Judge. Charles Hurst was charged with unlawfully possessing intoxicating liquor after having been previously convicted of a similar offense. From a judgment sustaining demurrer to, and motion to qnasb, the information, and dismissing the defendant, the State appeals.

H. L. Olson and another were charged with larceny of, an automobile. From judgment dismissing the information and discharging the named defendant at the close of the State’s evidence, the State appeals.

<p>Embezzlement — Deputy Tkeasuker Held “Public Oejtcer.” Under Comp. Laws 1917, § 1451, providing for a county treasurer as a county officer, section 1461, providing for deputies, section 1462 and section 5848, subd. 17, providing that statutes relating to officers may include deputies, a deputy county treasurer is an “officer,” .within section 8235, providing for punishment of officers converting public moneys to their own use.</p>

Action by Thomas H. Blackburn, as executor of the estate of Ann H. Burt, deceased, and others against Riey H. Jones. Decree for defendant, and plaintiffs appeal.