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much thereof as may be necessary, is hereby appropriated and set aside for the purpose of paying the expenses of the commission, and the salaries, compensations, costs and expenses of its employés. The expenditures incurred by the Arkansas Corporation Commission shall be paid out of the general revenue fund in the same manner as other vouchers are paid, and the license fees arising under this section shall be paid into the general revenue fund."

It will be noted that this section provides for fees to be paid by the various public service corporations for the purpose of producing a revenue of $35,000 per annum or so much thereof as may be necessary for carrying into effect the provisions of the act creating the Arkansas Corporation Commission. In the concluding part of the section it is expressly provided that this sum of $35,000 per annum or $70,000 for the next biennial period, or so much thereof as may be necessary is appropriated for the purpose of paying the expenses of the commission, and the salaries, compensation, and costs of its employés.

The section further provides that the license fees under the section shall be paid into the general revenue fund, and that the expenditures incurred by the Arkansas Corporation Commission shall be paid out of the general revenue fund in the same manner as other vouchers are paid. Thus it will be seen that the Legislature abolished the Railroad Commission, took up the whole subject anew, and transferred the duties of that commission to the Corporation Commission. Section 29, to which we have just referred, in plain terms makes all the appropriations that the Legislature deemed necessary for the salaries, costs, expenses, etc., of the Arkansas Corporation Commission. Under our Constitution, the Corporation Commission is restricted in the expenditures of money to that appropriated for its maintenance and support by the Legislature. The Legislature having in plain terms provided by appropriation all that it deemed necessary for the support and maintenance of the Corporation Com

mission, it cannot look to any other fund for its support.

It follows that the circuit court was right,

and it will be affirmed.

STATE ex rel. SCHOOL DIST. NO. 8 et al. v. ROBINSON. (No. 349.)

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payment of rent under void lease creates relationship.

From entry, occupation, and payment of rent under a void lease there results the legal relation of landlord and tenant between the landlord and the occupant implied by law. 3. Public lands 55-Clause of lease of school lands providing for extension beyond fiveyear period in contingency void.

Under Acts 1905, p. 398, clause in lease of wild and uncleared school lands executed by county judge of Mississippi county providing for extension of lease beyond proper five-year period if not put in cultivation the first year held unauthorized and void.

4. Public lands 55-Lessee's contract void so far as attempting to convey timber on land not required to be cleared.

Lease of wild school lands executed by county judge of Mississippi county under Acts 1905, p. 398, giving lessee company privilege to cut and remove what timber it wished, held land company was not required to put in culvoid in so far as attempting to convey timber on tivation as compensation for clearing land which its contract required it to clear, but valid as to land it was required to clear.

5. Public lands 55 - Extension of county judge's lease of school lands for clearing and cultivation unauthorized.

Amendment of lease of wild school lands executed by county judge of Mississippi county under Acts 1905, p. 398, to give lessee additional year in which to begin clearing land if prior lessee did not cut and remove timber in time for clearing to begin in particular year held unauthorized, lessee having right to enter in particular year whether prior lessee had removed timber or not, and having been under duty to do so, so that such year must be counted

as year of lease.

Appeal from Circuit Court, Mississippi County; W. F. Kirsch, Special Judge.

Action by the State, on the relation of School District No. 8 and others, against Clyde Robinson. From judgment dismissing versed, and cause remanded, with directions the cause, plaintiff appeals. Judgment re

to render judgment for plaintiff.

Davis, Costen & Harrison, of Blytheville, for appellant.

Buck & Lasley, of Blytheville, for appellee.

SMITH, J. This is an action in unlawful detainer brought to recover possession of a portion of section 16, township 15 north, range 12 east, Mississippi county, Ark., and rent thereon for the year 1918.

(Supreme Court of Arkansas. April 19, 1920.) 1. Public lands 55-Unauthorized occupant after term liable for rent in unlawful detainer. If occupancy of school lands during a year In 1909 the county judge of that county was without authority, the occupant cannot defeat the school district's action in unlawful de-leased the entire section to Lee Wilson & Co., tainer in so far as judgment for rent is prayed a corporation. That contract of lease was not because proper notice to vacate may not have dated, but it became effective January 1, 1909,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 S.W.)

at page

and expired January 1, 1913. This contract | original contract of S. D. Mauldin is of record gave Wilson & Co. "the use and free access of in Book in the recorder's said sixteenth section for the above term of office of this county, and that this contract and four years, with the privilege of cutting and lease is made in lieu of said former of said removing what timber they wish from said Mauldin's above referred to, and is to begin and land," but imposed upon Wilson & Co. the tion of the said lease of R. E. Lee Wilson." take effect January 1, 1913, or at the expiraduty only of clearing the land lying in the section south of the Jonesboro, Lake City & Eastern Railroad and 60 acres of land north

of the county road running through said land, and to deaden 100 acres in addition thereto. This lease to Wilson & Co. was made by L. D. Rozell, who was county judge at the time. Rozell was succeeded in office by W. C. Armstrong, who on March 3, 1909, extended the lease to Wilson & Co. for one year, which made January 1, 1914, the date of expiration. This extension of the Wilson & Co. lease was made by an indorsement thereon by Armstrong as county judge, which recited that the extension was made in consideration of the lessee agreeing to build a dwelling house and necessary outhouses on the land. This extension was evidently made under the purported authority to act acquired under the notice given by Rozell as county judge that a lease contract would be made; that notice being recited in the first or original contract.

Thereafter Gladish succeeded Armstrong as county judge, and on January 23, 1911,

another contract of lease was made. This

lease recited that, after due notice, S. D. Mauldin had become the best bidder, and that there had been leased to him all of the land north of the Jonesboro, Lake City & Eastern Railroad, "except what is now in cultivation"; it being the evident purpose of this lease to have cleared and put in cultivation the land which Wilson & Co. was not requir

ed to clear under its lease. The Mauldin lease contract recited that it was for a period of five years, but it contained the proviso that "what land the said Mauldin fails to put in cultivation this year he shall have an extension of one year's time to put it in cul

tivation."

Mauldin, for some reason not made clear in the record, declined to perform the contract, whereupon Robinson, as surety on Maulain's bond, assumed its performance. It is shown that Robinson did not enter upon the land until January 1, 1914, and it is said that he could not have entered upon it at an earlier date because of the outstanding contract in favor of Wilson & Co. Robinson cleared the land and performed all the conditions contained in Mauldin's contract, and, through his tenants, cultivated the land during the years 1914, 1915, 1916, and 1917. In January, 1918, this suit was brought; but Robinson executed bond and retained possession of the land during the year 1918.

[1] Among other questions raised is that of the sufficiency of the notice to vacate which was given Robinson and his tenants. This question is now purely academic, as Robinson and his tenants surrendered possession of the land on the 1st of January, 1919, and now claim no right to further occupy it. But, if Robinson's occupancy during the year 1918 was without authority, he cannot defeat this action, in so far as a judgment for rent is prayed, because proper notice to vacate may not have been given. Robinson entered under a lease contract, and he thereby became a tenant, and, if he has held over beyond the expiration of his term, then rent for that period may be recovered in this action.

[2] The briefs discuss at length the question of the validity of Mauldin's contract, and the right to maintain this action if it is in fact invalid. But, if it were conceded

that Mauldin's contract was void ab initio

The effect of this proviso is, of course, to and we do not so decide that fact could make the lease for six years on any land make no difference; for a tenancy existed which Mauldin failed to put in cultivation under a contract which the parties mutually treated as valid. The law on this subject during the first year of the lease. This contract was duly signed by Gladish as county is stated in 16 R. C. L. p. 574, as follows: judge and by Mauldin, and a bond to perform "The authorities agree that from the entry its conditions, which was duly approved, was and occupation and payment of rent under a given by Mauldin with appellee, Clyde Rob-void lease, as in case of a lease invalid by reainson, as surety. Thereafter, on March 14, 1911, this contract was re-executed in the exact language of the contract of January 23, 1911, except that the following paragraph

was added:

"It is agreed that the above land was leased to the said S. D. Mauldin on the 23d day of January, 1911, and that said land was prior to that time leased to R. E. Lee Wilson for a period of four years beginning January 1, 1909, and ending January 1, 1913, that said Wilson lease is of record in Book 8 at page 309 in the recorder's office of this county, and that the

son of a noncompliance with the statute of frauds, there results a legal relation of landlord and tenant between the owner and the occupant of the land. The tenancy is not created by the defective written lease, but it is implied by the law from the occupancy of the premises and the payment and receipt of the rent therefor. *The agreement in such a case is void at the option of the parties, or either of them; but if they both see fit to engage in the execution of its terms, and do acts under it, they may thereby establish such a relation between themselves as the law will recognize and enforce."

**

The real and controlling question in the case is: Did the contract cover the year 1918? This contract was made under the authority of Act No. 156, Acts 1905, p. 398, which is a special act applying only to Mississippi county. This act reads as follows:

"Section 1. The county judges of the state of Arkansas are hereby authorized and empowered to lease any tract or parcel of wild and uncleared sixteenth section school lands situated in their respective counties, for a term not exceeding five (5) years, on terms satisfactory to said judges, upon the lessee entering into a good and sufficient bond to be approved by said county (judge) for the faithful performance of

this lease contract.

"Sec. 2. Whenever the county judge of any county in this state shall desire to lease any lands under the provisions of this act, he shall first cause notice of the time and place of the leasing of said lands, together with a description thereof, to be published in some newspaper published in said county, or by posting written or printed notices in ten (10) conspicuous places in such county, one of which shall be at the courthouse and one on the land to be leased, thirty (30) days before the leasing of the same, "Sec. 3. All lands cleared and put in cultivation under the provisions of this act, shall after the expiration of the lease contract, be by the sheriff of the county rented annually in the same manner as now provided by law for the renting of sixteenth section school lands.

"Sec. 4. All laws and parts of laws in conflict herewith are hereby repealed, and this act shall take effect and be in force from and after its passage: Provided, that the provisions of this act shall only apply to the county of Mississippi."

[3] It appears to have been the legislative purpose to authorize a lease of the school land in Mississippi county for such time as the county judge thinks proper, not to exceed five years, for the purpose of having the lands cleared and put in cultivation, after which time annual leases are to be made. The county judge is without authority to lease the land for a longer period of time than five years, and the clause contained in the Mauldin lease set out above, which, under the condition named, would have extended the lease beyond the five-year period, was inserted without authority, and is therefore void. School District v. Gladish, 111 Ark. 329, 163 S. W. 1194.

In the case just cited Gladish, as county judge, leased section 16, township 12 north, range 8 east, under a contract which required the lessees to clear 200 acres therein, and gave the lessees, not only the timber on the land to be cleared, but on the entire section. We held there that there was nothing in the act which gave the county judge authority to sell the timber on one part of the land to compensate a lessee for clearing and putting in cultivation other portions of the land. Wilson & Co. appear to have had a contract similar to the one there condemned. In the case cited we said:

"It does not follow, however, that the plaintiffs have a right to declare the whole contract void. As we have already seen, the county judge had authority to lease the land for the purpose of clearing it and putting it in cultivation, and did not exceed his power in leasing the 200 acres of land to the defendants for that pur pose. It was also within his authority to provide in the lease that the lessee should erect a fence around the cleared land and build a tenant house on each 40 acres thereof. The defendants testified that they have already, at considerable expense, cleared and put in cultivation some 50 or 60 acres of this land, and it may be that by this time they have cleared the remaining part of the 200 acres, or a considerable portion there

of. Therefore we hold that if the defendants elect to hold the 200 acres of the land for the

five years, and comply with the terms of the lease by clearing the same, fencing it, and building the houses on it, as provided for in the lease, they will be allowed to do so, and plaintiffs will have no just ground of complaint."

[4] So here Wilson & Co's. contract was void in so far as it attempted to convey timber on the land it was not required to put in cultivation as compensation for clearing the land which its contract required it to clear; but the contract was valid as to the land which Wilson & Co. was required to clear.

[5] Mauldin's contract did not cover the land Wilson & Co. was required to clear. Upon the contrary, it covered only the land Wilson & Co. was not required to clear. So that Mauldin had the right to enter immediately upon the land covered by his lease, and his time began to run January 1, 1913. It is apparent that the amendment to the Mauldin contract set out above was intended to give Mauldin a year in addition to the year 1913 if Wilson & Co. did not cut and remove the timber in time for Mauldin to begin clearing the land in 1913. But there was no authority for this. Mauldin had the right to enter in 1913 on the land covered by his lease, whether Wilson & Co. had removed the timber or not, and should have done so, and that year must therefore be counted as one of the years of the lease, and, when so counted, the lease would expire with the year 1917, and appellee Robinson, as Mauldin's successor, had no right to the possession of the land for the year 1918, and is therefore liable for the rental value of the land for that year.

The court below made a finding that the Mauldin lease was void because it was to take effect after the expiration of the term of the county judge who made it, but that, the lease being void, the relation of landlord and tenant did not exist, and that therefore this action could not be maintained, and the cause was dismissed. We think, for the reasons herein stated, that the finding and judgment of the court below was erroneous, and the judgment will be reversed, and the cause remanded, with directions to ascertain the rental value of the land for the year 1918, and to render judgment accordingly.

(220 S.W.)

WOODARD v. BUSH. (No. 20869.)

(Supreme Court of Missouri, Division No. 1.
March 2, 1920. Rehearing Denied
April 10, 1920.)

1. Death 35-Action under law of foreign state may be maintained in this state.

By comity, and by Laws 1905, p. 95, and Rev. St. 1899, § 547, the doors of the courts of Missouri will be opened to causes of action for wrongful death accruing under laws of other states.

2. Death

Edw. J. White, of St. Louis, and Thos. Hackney and Leslie A. Welch, both of Kansas City, for appellant.

Harry G. Kyle and Charles A. Stratton, both of Kansas City, for respondent.

GRAVES, J. Action for the alleged negligent killing of Robert L. Woodard, by one of the trains operated by the defendant. Deceased was a resident of the state of Missouri, but the petition is bottomed upon certain Kansas statutes, duly pleaded, as well as certain ordinances of the city of Kansas

8-Laws of foreign state where City, in the state of Kansas. The negligence accident occurred govern.

The existence of a right to recover for the death of a person at a railroad crossing in another state must be measured by the laws of such other state, and not by the laws of the forum.

3. Courts 511-"Comity" defined.

"Comity," in a legal sense, is complaisance, courtesy, the granting of a privilege, not of right but of good will.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Comity.]

4. Railroads 328(3, 4)—Kansas rule as to
duties of driver of motor vehicle in passing
over crossing where view obstructed stated.
Under the Kansas rule, if the view of the
driver of a motortruck about to cross a rail-
road track is obstructed, it is his duty to stop
and see that no train is coming, and he must
even get out of his truck, if such is necessary
to determine the approach of a train, and
must look after having passed the obstruction.
5. Railroads 330(4)-Under Kansas rule,
traveler must observe speed of train.
Under the Kansas rule, one about to cross
a railroad track cannot rely upon the railroad
running its train at a legal rate of speed, where,
if he looks, he can see the speed of the ap-
proaching train.

charged to the defendant is: (1) The failure to have a watchman at the crossing where the deceased was killed, in Kansas City, Kan.; (2) running the train at a speed greatly in excess of six miles an hour, the rate of speed duly fixed by another ordinance of said city; and (3) failure to sound the whistle or ring the bell upon the approach of said crossing.

The answer of the defendant was: (1) A general denial. (2) A plea of contributory negligence. (3) The following special plea of contributory negligence:

"Further answering said petition, the defendant avers that under the law of Kansas, announced by the Supreme Court of that state in the following cases (list of cases we omit), and the cases therein referred to, it was the duty of said Robert Woodard, as driver of the automobile truck, to stop said truck before reaching the said railroad tracks mentioned in the petition, and to ascertain whether there was an engine or cars coming before he drove Robert Woodard negligently failed to ascertain his automobile on said track; and that said whether the train was approaching and that his negligent conduct under said decisions precludes a recovery by the plaintiff herein."

And (4) several ordinances of the city of Kansas City are specifically pleaded, and in

6. Evidence 65-No presumption that non-voked. resident knows ordinances.

A resident of Missouri making daily deliveries by truck in a city in another state cannot be presumed to know the ordinances of the city where such deliveries are being made. 7. Railroads 330 (4)-Traveler not knowing of speed ordinance cannot maintain that he relied on its observance.

A resident of Missouri crossing a railroad track in Kansas cannot be said to have relied on a city ordinance regulating the speed of trains of which he had no knowledge.

Reply was a general denial, and special plea as to repeal of the ordinance set out in answer, and the rulings in Kansas on contributory negligence.

After hearing the evidence for the plaintiff (who is the widow of deceased), the trial court sustained a demurrer to the evidence in this language:

"The court instructs the jury that under the pleadings and the evidence in this case, the plaintiff is not entitled to recover, and your ver

dict will be for the defendant.

"The reason is that the law is well settled

Appeal from Circuit Court, Jackson Coun- that the traveler, where he approaches a road

ty; Thomas B. Buckner, Judge.

way or street crossing and does not look or listen for the approaching train and is injured, Action by Jessie R. Woodard against B. F. it is the result of his own negligence; and if Bush, receiver of the Missouri Pacific Rail- for any reason the passageway is obstructed so way Company. Verdict for defendant. From he cannot see, the law makes him stop and get in a position where he can see. Otherwise, it an order granting plaintiff a new trial, de- imputes to him negligence, and for that reason fendant appeals. Reversed, and cause re- this instruction is given because the evidence of manded, with directions to reinstate verdict. I the plaintiff shows he was guilty of such con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tributory negligence as bars recovery in this | the west side of Twelfth street, and the train case."

Verdict was for defendant under this instruction. Later the court sustained plain

tiff's motion for a new trial, and from such order the defendant has appealed.

There is no formal assignment of error in the brief, but the sole point made in the brief is: "The demurrer to plaintiff's evidence was properly sustained because of deceased's contributory negligence." The case therefore turns upon the facts under the applicable law of Kansas.

I. The negligence of failing to have a watchman at the crossing was abandoned in the trial. This for the reason that the ordinance relied upon by plaintiff had no application to the place of the accident. There was ample evidence to go to the jury upon the other two grounds of negligence, so that the case here turns upon the alleged contributory negligence of the deceased. This calls first for the facts, and secondly for the applicatory law. The accident occurred at a place where the railroad tracks cross Twelfth street in Kansas City, Kan. A picture was taken just before the trial, but it gives a general idea of the location, and we incorporate it here:

which struck deceased was coming from the west. From the south curbing of the driveway into the lumber yard to the north rail of the main track was 65 feet. It was 9 feet from the south rail of the switch track to

the north rail of the main track, the switch track being north of the main track as indicated in the picture. From north rail of switch track to north rail of main track it was 14 feet. From the north rail of the main track to the picket fence is 5 feet, and the fence is 5 feet high. This fence serves to inclose the lumber yard, and this switch or spur track ran through the lumber yard. Between the switch or spur track and the stacks of lumber was a space or driveway for teams, being the south driveway in the lumber yard. The distances mentioned supra referred to the north driveway, or the one with the gate closing it. At the time of the accident there was a pile of laths about as in the picture, which obscured the view of one in the street, if he desired to look west. To the west of Twelfth street is Thirteenth street, at a distance of 606 feet. At a point 471 feet west of Twelfth street, the main line of the railroad curves to the southwest, so

[merged small][graphic]

The railroad runs east and west, and the | that there was 471 feet of straight track to street north and south, or thereabout. On the west of Twelfth street. On this switch this picture will be noted the main track and or spur track was a box car, which was some a side track, between which appears a fence. 60 feet west of Twelfth street. At one place There also appears a lumber yard, and an it is spoken of as a furniture car. So that entrance thereto. This lumber yard is on after reaching the south roadway of the

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