Volume 62 — Montana Reports

Appeals from District Court, Gallatin County; Ben B. Law, Judge. Action by Hobart Williams against Del E. Gray, as Sheriff of Gallatin County. Judgment for plaintiff and defendant appeals from it and. an order denying a new trial. The complaint does not state a -cause of action for the reason that it contains no allegation of the value of the property alleged to have been converted at the date of the conversion.

<p> Appeal from District Court, Hill County; Charles A. Bose, Judge. </p> <p>Action by tbe County of Hill, Montana, against the County of Liberty, Montana. From a judgment for plaintiff, defendant appeals.</p>

Appeals from District Court, Yellowstone County; Charles A. Taylor, Judge. Action by the Billings Utility Company against tbe Public Service Commission of Montana and another. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

H. Poorman, Judge. Application by the State, on tbe relation of Thomas J. Daly, for a Writ of Mandamus against John Dryburgh, as Mayor of the City of Helena, and others, to compel them to reinstate relator as Chief of the Fire Department of the city. Writ awarded, and defendants appeal.

<p>Proceeding by the Attorney General for the disbarment of . Clyde Slagle.</p>

H. Poorman, Judge. Application by tbe State, on tbe relation of Octavia Lalonde, for a Writ of Prohibition against A. J. Lemkie, Justice of the Peace of Helena Township, of Lewis and Clark County. From an order directing peremptory writ to issue defendant appeals. Cause submitted on brief of Appellant.

H. Poorman, Judge. Condemnation Proceedings by tbe Forestvale Cemetery Association against the Helena Cemetery Association and others. Judgment for plaintiff, and defendant Henry Winter, as trustee and personally, appeals. Before property can be taken by éminent domain proceedings it must appear: First: That the use to which it is to be applied is a use authorized by law. Second: That the taking is necessary to such use.

Original application for Writ of Supervisory Control by tbe State of Montana, on the relation of Rosie Rubin, against the District Court of the Thirteenth Judicial District in and for the County of Yellowstone, and Robert C. Stong, a judge thereof.

<p>Mandamus—County Commissioners—Unincorporated Towns— Fir.e Limits—Establishment—Discretion.</p> <p>Oouuty Commissioners—-Unincorporated Towns—Pire Limits—Establishment—D -icretion—Mandamus.</p> <p>1. Mandamus does not he to compel a board -of county commissioners to establish fire l-imits in an unincorporated town or village in which a voluntary fire department had previously been -organized, and to levy a special tax for its maintenance, its authority in that respect being discretionary and not mandatory.</p> <p>Same—Rescinding Resolution Establishing Pire Limits—When not Improper.</p> <p>2. Where a board -of county commissioners in its discretionary power had by resolution established fire limits in an unincorporated town under Chapter 16, Laws of 1915, and directed the levy of a special levy as therein provided, it could, in its discretion, properly rescind its action, no one in the meantime having taken any action to his prejudice in reliance upon the resolution first passed.</p>

Appeals from District Court, Cascade County; H. H. Ewing, Judge. Action by W. R. Call against J. E. Marcum. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Plaintiff was guilty of serious misconduct and defendant was justified as a matter of law- in dissolving the copartnership. (.Breaux v. Le Blanc, 50 La. Ann. 228, 69 Am. St. Rep. 403, 23 South. 281; Thompson v. Langdon (Cal. App.), 196 Pae. 103; Howell v. Harvey, 5 Ark. 270, 39 Am.

Appeals from District Court, Phillips County; E. C. Sail, Judge. Action by Anna Danielson against David Danielson. From a judgment for plaintiff and an order denying a motion to vacate the judgment, defendant appeals.

Appeals from District Court, Silver Bow County; Joseph B. Jackson, Judge. Action by Peter Kamboris, as administrator of tbe estate of George D. Skarpas, deceased, against tbe Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals from it and from an order denying a new trial.

Appeals from District Court, McCone County; C. C. Hurley, Judge. M. Bruce Wilson was convicted of second degree assault and appeals from the judgment and an order denying him a new trial. The court erred in excluding evidence that the defendant was attempting to arrest Calder when the alleged assault took place and that he did arrest him. The laws of Montana give a private person the right to make an arrest under certain circumstances.

Appeals from District Court, Ravalli County; Theodore Lents, Judge. Proceedings by tbe State on tbe relation of George 0. Thacher and others to secure a Writ of Prohibition against Daniel Boyle and others, as the Public Service Commission, to prevent defendants from taking jurisdiction over and fixing annual charges for services performed by the Ravalli Water Company in furnishing water for irrigation purposes. Judgment for relators.

Appeals from District Court, Prairie County; C. C. Hurley, Judge. Action by the Northern Pacific Railway Company against John Smith. Held: in construing grants of land made by Congress, that ‘a grant’ of lands ‘may be made by law as well as by a patent issued pursuant to a law,’ and sueh grant vests in indefeasible and irrevocable title.” (Fletcher v. Beclc, 6 Craneh, 87, 3 L. Ed. 162; Strothers v. Lucas, 12 Pet. 454, 9 L. Ed. 1154 - Tarrett v. Taylor, 9 Craneh, 43, 3…

W. Pomeroy, Judge. Action by the State of Montana, on the relation of H. S. Pierce and another, against Nellie B. Gowdy, Flathead County Treasurer. From an order refusing an injunction, plaintiffs appeal. Cause submitted on briefs of Counsel.

It, Poorman, Judge. Action by the Union Bank & Trust Company of Helena, Montana, against W. A. Moore, County Treasurer of Lewis and Clark. County, to recover a tax paid under protest. Judgment for plaintiff and defendant appeals. The only question involved in this case is whether or not Chapter 31 of the Laws of 1915 is constitutional.

<p> Extradition—Habeas Corpus—Fugitive from Justice—Evidence —Insufficiency. </p> <p>Extradition—Habeas Corpus—Complainant a Fugitive—Question of Fact.</p> <p>1. Tbe issuance of a warrant by tbe governor pursuant to a requisition made upon him by the governor of another state, where regular upon its face, -makes out a prima facie ease against the alleged fugitive on his application for writ of habeas corpus, but the question whether he ’is in fact a fugitive within Article IV, section 2, United States Constitution, section 5278, United States Revised Statutes, relating to extradition, is one of fact whieh is open to examination by the courts of the asylum state.</p> <p>Same—Fugitive from Justice—Evidence—Insufficiency.</p> <p>2. Held, on habeas corpus, that complainant, under arrest by virtue of an executive warrant issued in an extradition proceeding on a charge of the crime of child abandonment, was not a fugitive from justice within the meaning of the Constitution of the United States, the evidence disclosing that ho had departed from the demanding state a month prior to the time the child was born, thus showing that he eould not have committed the offense charged. (At Chambers.)</p> <p>1. Who is fugitive from justice within purview of interstate extradition laws, see notes in 7 Ann. Cas. 1076; 13 Ann, Cas. 907; Ann. Cas. 1918D, 1011; 51 L. R. A. (n. s.) 668.</p>

Appeals from District Court, Silver Bow- County; Edwin M. Lamb, Judge. Action by School District No. 2 of Silver Bow County, on relation of John Hawkins, against Frank L. Richards and others. From a judgment for defendants and an order denying a motion for new trial, plaintiff appeals. Hawkins had the right and capacity to sue in the name of the school district. The school district is but a subdivision of the state.

Appeals from District Court, Silver Bow County; Edwin M. Lamb, Judge. Proceedings by School District No. 1, Silver Bow County, against John Powers and another to condemn land for school purposes. From a judgment in favor of defendants and from an order denying plaintiff’s motion to dismiss the proceeding plaintiff appeals. Has the plaintiff the right to abandon the proceedings? We believe it has at any time before the actual payment of compensation for the property condemned.

Appeal from District Court, Garfield Countyj Roy E. Ayers, Judge. Hersohel Carmichael was convicted of crime, and from an order granting him a new trial the State appeals.

H. Doorman, Judge. Action by F. W. Lingquist against J. W. Seibold, administrator of John W. O’Neill, deceased. Verdict for defendant, and, from an order denying a new trial, plaintiff appeals.

<p>Beal Properly — Brokers — Commissions — Contracts — Acceptance— Letter Placed in Mail.</p> <p>Eeal Property—Broker’s Contract—Acceptance—Letter Placed in Mail.</p> <p>1. A letter placed in the mails, postage prepaid, by a real estate broker, addressed to the owner of lands at his postoffiee seven miles away, which lands had been placed with him for sale under a written contract which had still four days to run, notifying defendant that he had found a purchaser ready, able and willing to pay the purchase price fixed by the contract, was binding upon defendant the moment it was placed in the postoffiee and constituted an acceptance of the offer embodied in the contract.</p> <p>Same—Notice of Acceptance—Sufficiency—Breach of Contract—Evidence —Sufficiency. n</p> <p>2. Where the evidence of plaintiff and his witnesses in an aetion to recover commissions claimed to have been earned on the sale of lands was positive and uneontradieted that in addition to the notice referred to above, the purchaser himself had written to defendant notifying Mm that he was ready to buy and pay for the land, that plaintiff, the purchaser and two others went to defendant’s ranch about three miles distant from his postoffice on two occasions before the expiration of the contract but could not find him and therefore each time left a notice that his offer had been accepted, while that of defendant was evasive but admitting that after the expiration of the contract he had sold the land for ten dollars an aere above the price stipulated in it, the court erred in refusing to instruct the jury to return a verdict in favor of plaintiff.</p> <p>1. Eight to withdraw letter from the mail as affecting consummation of contract, see note in 9 A. L. E. 386.</p> <p>2. When has a broker earned his commission, see note in 139 Am. St. Eep. 225.</p> <p>Eight of broker to commission where sale defeated by act of the owner, see notes in 2 Ann. Cas. 184; 20 Ann. Cas. 1024.</p> <p>Same—What is not Conditional Acceptance.</p> <p>3. The offer made by the buyer in his letter of acceptance that he would either pay the entire purchase price to the owner, the latter to pay off an outstanding mortgage, or that he would pay off or assume the mortgage and pay him the balance, held not a condition attached to the acceptance but more in the nature of an option for the accommodation of the seller, and therefore not a ground for refusal to sell.</p>

Appeals from District Court, Big Horn County; Charles A. Taylor, Judge. Action by John Luther against Walter O. Lee and another. Judgment for plaintiff and defendants appeal from it and from an order denying a new trial.

Appeals from District Court, Deer Lodge County; Geo. B. Winston, Judge. Jack Mason was convicted of obtaining money by false pretenses, denied a new trial, and appeals from the judgment and the order denying a new trial. The information is insufficient.

Jones, Judge. Action by J. B. Folsom against Zelma Viola Fisco, executrix of the last will and testament of J. L. Fisco, sheriff, deceased, and another. Judgment for defendants, and from an order granting plaintiff’s motion for a new trial, defendants appeal.

<p>Habeas Corpus—Public Health—Communicable Diseases—■ Quarantine—Police Power—Constitution.</p> <p>Public Health—Communicable Diseases—Quarantine—Police Power—Preliminary Judicial Inquiry not Required.</p> <p>1. The legislature under its police power may enact laws authorizing the establishment of quarantine regulations and requiring the detention of persons affected with contagious diseases dangerous to the public health without resort to a preliminary judicial proceeding to determine the character o'f the disease and the faets constituting the danger to public health.</p> <p>Habeas Corpus—Quarantine—Legality of Detention.</p> <p>2. A person placed in quarantine because affected with a communicable disease may, on habeas corpus, challenge the right of the authorities to continue his detention if the facts upon which the order was made no longer exist.</p> <p>Same—Public Health—Quarantine—Constitution.</p> <p>3. The provisions of the Fourteenth Amendment to the Constitution of the United States, and of sections 6 and 7 of Article III of the state Constitution, to the effect that no person may be deprived of his liberty without due process of law, have no application to the case of one detained in quarantine because affected with a dangerous communicable disease.</p> <p>Same—Quarantine—Justification Under Evidence.</p> <p>4. Evidence showing that a woman had been plying her trade as a prostitute within a short time prior to her arrest by the county health officer under Chapter 106, Laws of 1919, and detention in quarantine on the ground that she was affected with gonorrhea, was a constant associate of prostitutes, etc., held sufficient to warrant her detention until such time as it was safe to allow her to go at large. (At Chambers.)</p>

A. Clarh, Judge. Action by the Helena & Livingston Smelting & Reduction Company and others against the Northern Pacific Railway Company. Judgment for defendant and plaintiffs appeal. The authorities are practically unanimous to the effect that a railroad company cannot abandon one portion of its lines at will, but that authority must be conferred by the legislature or the Constitution of the state.

Appeals from District Court, Fergus County; Jack Briscoe, Judge. Action by Elmer E. McGinnis against Samuel Phillips. Judgment for plaintiff, a new trial was denied, and from the judgment and -the order defendant appeals. It is not necessarily negligence per se to drive on the wrong side of the road. Whether an automobile is rightfully or wrongfully on either side of the road is a relative question to be decided with reference to the facts of the particular case.

Appeals from District Court, Berner Head County; W. A. Clark, Judge. Action by R. B. Foster and George M. Melton, copartners doing business under the firm name and style of the Montana Livestock Commission Company, against the Oregon Short Line Railroad Company. From a judgment for plaintiffs and an order denying a new trial defendant appeals.

Appeals from District Court, Fergus County; Jack Briscoe, Judge. Action by P. H. Samuell against tbe Moore Mercantile Company, the Power Mercantile Company, and Firmin Tullock, as sheriff. From a judgment in favor of the Power Mercantile Company and from an order denying a new trial, plaintiff appeals.

Appeals from District Court, Fergus County; Jack Briscoe, Judge. Action by A. F. Cornner against R. Ej Hamilton. From judgment for plaintiff and an order denying his motion for a new trial, defendant appeals.

Appeals from District Court, Silver Bow County; Jos. B. Jackson, Judge. Action by Mrs. James Park against James H. Grady. Judgment for defendant, and plaintiff appeals from it and an order denying a new trial. Cause submitted on briefs of Counsel.

Appeals from District Court, Missoula County; Theodore Lentz, Judge. Action by the Benson-Stabeck Company against the Reservation Farmers’ Grain Company and others. From a judgment for defendant and an order denying a new trial, plaintiff appeals. The supreme court of the United States recognizes the usefulness of such exchanges as the Minneapolis chamber of commerce in the case of Nicol v. Ames, 173 U. S. 509, 43 L. Ed. at page 792, 19 Sup. Ct.

Original application by tbe State of Montana, on tbe relation of tbe Board of County Commissioners of Silver Bow County, and others, for writ of supervisory control against tbe District Court of tbe Second Judicial District in and for Silver Bow County and Jeremiab J. Lyncb, a Judge thereof, to annul a judgment finding relators guilty of contempt.

A. Ciarle, Judge. Action by the Helena & Livingston Smelting & Reduction Company and others against the Northern Pacific Railway Company and another. Judgment for defendants and plaintiffs appeal. The rails were fixtures and were a part of the realty. {Brittannia Min. Co. v. United States Fidelity & G. Co., 43 Mont. 93, 115 Pae. 46; Northern Pac. B. B. Co. v. Garland, 5 Mont. 146, 3 Pac. 134; St. Louis & S. F. B. B. Co. v. Beadle, 6 Kan.

Lamb, Judge. Action by Joseph C. Stettheimer and others against the City of Butte and another to restrain the collection of an assessment for street improvements.

Appeals from District Court, Cascade County; E. E. Ewing, Judge. Action by the Commercial National' Bank of Great Falls against E'dward Beichelt. Judgment for plaintiff and defendant appeals from it and an order denying him a new trial. The note was indorsed on the back thereof, “J. H. Irwin, Presdt.

<p> Appeal from, District Court, Broadwater County; John A. Matthews, Judge. </p> <p>Action by J. E. Moore and another against H. C. Crittenden, Sheriff, and others. Judgment for plaintiffs and defendants appeal.</p>

Tattan, Judge. 'Action by P. H. Schwartz against the Great Northern Railway Company. Judgment for defendant and, from an order denying a new trial, plaintiff appeals. An erroneous instruction in reference to damages does not warrant the setting aside of a judgment on the merits in favor of defendant. (Pulliam, v. Schimpf, 109 Ala. 179, 19 South'. 428; Wilhelm v. Donegan, 143 Cal. 50, 76 Pac. 713; Zimmerman v. Denver Consolidated Tramway Co., 18 Colo.

Appeals from District Court, Cascade County; E. E. Ewing, Judge. Action by L. H. Hamilton against J. A. Crane. From judgment for defendant and an order overruling his motion for new trial, plaintiff appeals. Cause submitted on briefs of Counsel.

Appeals from District Court, Fergus County; Boy E. Ayers, Judge. Action by Edmund Wright against Mrs._ Hattie A. Bowlus and another. From judgment for defendants and an order denying new trial, plaintiff appeals. Counsel contends that no testimony could be given in regard to the conditions attaching to the delivery of the promissory note for the reason that it tends to vary the terms of the written instrument.

Appeals from District Court, Silver Bow County; Edwin M. Lamb, Judge. Action by M. Feldman against the Security State Bank of Judith Gap, Wheatland County, Montana. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals.

Winston, Judge. Action by Fred T. Violet and others against John Martin. Judgment- for plaintiffs, and defendant appeals from an order denying him a new trial.

Appeals from District Court, Cascade County; H. H. Ewing, Judge. Action by Hazel Johnson against Nick Baatz and the Nick Baatz Company. From the judgment for plaintiff and an order denying defendant Nick Baatz a new trial, he appeals. Cause submitted on briefs of Counsel.

Tattan, Judge. Action by Henry Davis and another, copartners, doing business under the firm name of Davis Brothers, against Laura E. Bryant. From an order dissolving an attachment, plaintiffs appeal. Cause submitted on briefs of Counsel. The proceeds of lands acquired under the homestead laws of the United States are not exempt from execution or attachment. (Field v. Goat (Old.), 173 Pae. 364; Andrews v. Rowan, 28 How. Pr.

Action by Keeler Bros, against School District No. 3, Sheridan County.. Judgment for plaintiff and defendant appeals. Cause submitted on briefs of Counsel. Defendant’s contention is that it was incumbent upon the plaintiff to plead facts showing that the execution of the contract sued upon was within the powers of the school trustees of the defendant school district.

Action by S. S. Henderson and another against H. E. Daniels. From a judgment for plaintiffs and an order denying a new trial, defendant appeals. The contract in its entirety leaves no doubt but that it was the intention of the parties thereto that the deed and abstract would be prepared, executed and put in escrow at the bank within a short time after the execution of the agreement.

E. Goodman, Judge. Action by Walter Butler against A. G-. Peters, in which a writ of attachment was issued. From an order refusing to discharge the attachment, the plaintiff appeals.

B. Laxa, Judge. Action by Ethylin E. Anderson against Violet Gr. Mc-Clenathan, executrix of the last will and testament of Lydia Gr. Briggs, deceased. Judgment for defendant on demurrer and plaintiff appeals. It is elementary law that the life tenant must pay the taxes and other charges on the property during the continuance of the life tenancy. (Sec. 4535, Bev.

Appeals from District Court, Silver Bow County; Edwin M. Lamb, Judge. Action by C. T. Puckett against Sberman & Reed, a corporation. From judgment for plaintiff and from order denying a new trial, the defendant appeals. Appellant concedes that contributory negligence is not pleaded as the rule requires, and bases his contention on a supposed presumption of contributory negligence raised by respondent’s case.

Appeals from District Court, Gallatin Comityj Ben. B. Law, Judge. Action by B. Iiyink against the Low Line Irrigation Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. There was no privity of contract between the plaintiff and defendant, and consequently the defendant owed no duty to the plaintiff, and the plaintiff could not, for that reason, maintain this action, or recover any damages suffered by him. (.Knowles v. Leggett, 7 Colo.

'Appeal from District Court, Missoula Coimty; Theodore Lentz, Judge. Proceeding for tbe forfeiture of an automobile, used in tbe transportation of intoxicating liquor, by tbe State, on tbe relation of J. T. Green, against Roy Bird and others, in which tbe John Doran Company appeared as claimant. From a judgment directing forfeiture of the automobile, the claimant appeals.

Appeals from District Court, Yellowstone Countyj Charles A. Taylor,■ Judge. Action by Margaret Kane against Carl Oebler and another. From a judgment for plaintiff, and from an order denying them a new trial, defendants appeal. Cause submitted on briefs of counsel.

Appeals from District Court, Silver Bow County; Joseph B. Jackson, Judge. Action by Edward E. Stoudt against J. P. Hanson. Prom a judgment for plaintiff, and an order denying defendant’s motion for a new trial, he appeals. Cause submitted on briefs of Counsel. Citing: Pahner v. Shaw, 16 Cal. 93; Fau v. Boberdeaux, 3 Cranch (U. S.), 174, 2 L. Ed. 402; Whitton v. Wass, 109 Mass. 40; Powell v. Koehler, 52 Ohio St. 103, 49 Am.

Lynch, Judge. Action by Sol. Genzberger against Etbelyn C. Adams, as executrix of tbe estate of J. C. Adams, deceased. From an order denying defendant’s motion for a new trial after granting plaintiff’s motion for a directed verdict, defendant appeals.

E. Ewing, Judge. Action by George H. Pew against A. E’. McLeish. Judgment for defendant, new trial denied, and plaintiff appeals from the order denying it. In 21 R. C. L. 930, section 109, the rule is laid down that it is the duty of the principal to repudiate the act of the agent upon being informed thereof, if he wishes to escape liability for an unauthorized act made for his benefit.

Appeals from District Court, Silver Bow' County; Joseph B. Jackson, Judge. Action by.tbe Monidah Trust against William Hruze and another. From the judgment for plaintiff and an order denying motion for new trial, defendants appeal. Debtors may apply payments on principal to exclusion of interest. (Findall’s Fxrs. v. Marietta Bank, 37 Va. (10 Leigh) 481; also, Tooke v. Bonds, 29 Tex. 419; Steele v. Taylor, 34 Ky.

Appeals from District Cowt, Beaverhead County; William A. Clarh, Judge. Action by George Gray, as executor of tbe last will and testament of Thomas Haw, deceased, against Daniel Grant and others. From judgment for defendants and an order denying his motion for new trial, plaintiff appeals.

B. Rhoades, Judge. Action by Anna Mork against Cyrus Mellett and. others, heirs, etc., of Hannah Mellett, deceased, to determine plaintiff’s heirship to an interest in decedent’s homestead. From a judgment awarding the property to the defendant Cyrus Mellett and the intervener, Annette M. Hoyt, plaintiff appeals.

Appeals from District Court. Cascade County; J. B. Leslie, Judge. Action by C. D. Best against Valmore Beaudry and another, doing business under the firm name of Beaudry Bros. From a judgment notwithstanding the verdict, dismissing plaintiff’s cause of action and from the order denying plaintiff’s motion for a new trial, plaintiff appeals. The court erred in granting defendant’s motion for judgment non obstante veredicto.

<p> Appeal from District Court, Glacier County; John J. Greene, Judge. </p> <p>Mandamus by tbe State, on tbe relation of tbe City of Cut Bank, against Bruce R. McNamer, Treasurer of Glacier County. Peremptory writ denied, and plaintiff appeals.</p> <p>Mr. Wellington D. Rankin, Attorney General, Mr. L. A. Foot, Assistant Attorney General, and Mr. Wiley J. Shannon, County Attorney of Glacier County, submitted a brief; Mr. Foot argued the cause orally.</p> <p>Tbe relator cannot, by a proceeding in mandamus, recover tbe balance of tbe taxes due it out of tbe aliquot part of tbe other political subdivisions of tbe state, none of which have been made parties to this proceeding. This money is not bis individual money to be used by him as be desires, but trust funds in bis bands, title to which rests in others who have not been brought into this proceeding. Under such circumstances it is contended by tbe respondent that a writ will not issue where it will injuriously affect tbe rights of other cestui que trustent who are not parties to the action. (State v. Stewart, 50 Mont. 405, 147 Pac. 276; Wright v. Commissioners of Gallatin Cmmty, 6 Mont. 29, 9 Pac. 543; Stethem v. Skinner, 11 Idaho, 374, 82 Pac. 451; State v. State Board, 7 Wyo. 478, 53 Pac. 292; Farmers’ etc. Reservoir Co. v. People, 8 Colo. App. 246, 45 Pac. 543; Farmers’ Independent Ditch Co. v. Maxwell, 4 Colo. App. 477, 36 Pac. 556.) Moreover, the writ will not lie to compel the respondent to do an act which he cannot lawfully do, namely, dissipate the aliquot part of a fund yet in his hands and belonging to other political subdivisions of the state. (26 Cyc. 150.)</p> <p>A peremptory writ will not issue to compel the payment of a claim from a fund properly applicable to the indebtedness where the fund is no longer in the hands of respondent, even in cases where the fund has been wrongfully dissipated or diverted. (Bates v. Porter, 74 Cal. 224, 15 Pae. 732; Duval County Commrs. v. Jacksonville, 36 Fla. 196, 29 L. R. A. 416, 18 South. 339; State ex rel. Wiles v. Spinnel, 166 Ind. 282, 286, 76 N. E. 971.)</p>

Appeals from District Court, Fergus County; Rudolf Von Tot el, Judge. A. D. Johnson was convicted of selling intoxicating liquor and appeals from the judgment and an order denying him a new trial.

Matthews, Judge. Action by Maggie J. Jenkins against Charles Kitson. From • an order denying a new trial, plaintiff appeals.

Appeals from District Court, Richland County; C. C. Hurley, Judge. Action by W. H. Weatherman against Robert Reid. From the judgment for plaintiff and an order denying him a new trial, defendant appeals.

Appeals from District Court, Yellowstone County; Charles A. Taylor, Judge. Action by A. L. Noe against M. A. Cameron. Judgment for defendant, and plaintiff appeals from it and an order denying his motion for a new trial.

<p>Application by Robert E. O’Keefe for reinstatement as an attorney at law. Petition denied.</p>

J. Dousman, Judge.- Action by Mabel A. Mayfield against the Montana Life Insurance Company and another. Judgment for defendant on sustaining demurrer to complaint. Plaintiff appeals. Cause submitted on brief.of Counsel for Appellant. Oral contracts of insurance have been generally recognized and upheld by the courts. (Western Assur. Co. v. McAlpin, 23 Ind. App. 220, 77 Am. St. Rep. 423, 55 N. E. 119; Croft v. Hanover Fire Ins. Co., 40 W. Va. 508, 52 Am.

Matthews, Judge. Joseph George Sevanin, as administrator of the estate of Panteli Simeon Katsios, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment of non-suit and plaintiff appeals. ' Was the negligence of the defendant the proximate ■ cause of the 'death of Katsios? The question of law involved in this inquiry is, on motion for a nonsuit, easily answered.

Appeals from the District Court of Hill County; Frank E. Carleton, Judge. Action by Clarence W. Trudell against tbe Hingham State Bank of Hingham. From a judgment for plaintiff and an order denying a new trial, defendant appeals. We contend that irregularities complained of do not void the sale, where the sale is conducted openly, fairly and without any taint of dishonesty, and where the power contained in the mortgage was fairly executed.

Appeal from District Court, Cascade County; J. B. Leslie, Judge. Action for injunction by H. W. Brown against the Town of Cascade and others. From judgment for plaintiff, defendants appeal.

Appeals from, District Court, Fergus County, in the Tenth Judicial District; John A. Matthews, Judge of the Fourteenth District, presiding. Action by Emil Kramer against A. J. Schmidt. Judgment for plaintiff. Defendant appeals from the judgment and an order denying his motion for a new trial.

<p>Injunction—Railroads — Intrastate Passenger Rates — Statute Fixing Rate — TJnconstitutionality1 — Decision of United States Supreme Court Controlling.</p> <p>1. In an action to enjoin the intrastate carriers of passengers in Montana from exacting a per mile fare of three and six-tenths cents under authority of an order of the Interstate Commerce Commission issued on January 24, 1921, and to enforce the provision of Chapter 250, Laws of 1921 (sec. 6586, Rev. Codes 1921), fixing three cents per mile as the maximum intrastate fare, held, under the decisions of the supreme court of the United States in the New York and Wisconsin rate eases (see opinion) decided February 27, 1922, that the Interstate Commerce Commission has power to fix rates for intrastate travel under the provision of the Transportation Act of 1920 (41 Stat. 456), authorizing it to remove “any undue, unreasonable or unjust discrimination against interstate or foreign commerce,” and that the provision of Chapter 250 is therefore not capable of enforcement.</p>

Appeals from, District Court, Silver Bow County in the Second Judicial District; Ben B. Law, Judge of the Ninth District, presiding. Action by James T. Fitzgerald against Nellie Eisenhauer. Judgment for plaintiff. Defendant appeals from the judgment and an order refusing a new trial.

Appeals from District Court, Silver Bow County; Edwin M. Lamb, Judge. Action by L. Y. Williams against J. E. Hample. From a judgment for plaintiff and an order denying his motion for a new trial, defendant appeals. The evidence showed the existence of contributory negligence as a matter of law barring recovery.

<p>Original application for Writ of Supervisory Control by the State of Montana, on relation of W. L. Bullock, County Attorney of Pondera County, and directed to the District Court of Pondera County and the Honorable William E. Carroll, Judge presiding.</p>

E. Comer, Judge. Action by tbe Pittsburgh Plate Glass Company against the Culbertson Hotel Company and others to foreclose a materialman’s lien. Judgment for the defendants and plaintiff appeals. Cause submitted on briefs of Counsel. Courts should place a liberal construction on mechanics’ liens. The reason for such a rule is very apparent.

<p>Application for reinstatement to the Bar of Montana.</p>

<p>Original application for Writ of Mandate directed to the District Court of the Third Judicial District, and Geo. W. Winston, Judge thereof.</p>

<p> Appeal from District Court, Big Horn County; Chas. A. Taylor, Judge. </p>

<p> Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge. </p>