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test because of the failure to appoint a term

In re ELECTION CONTEST, VILLAGE OF of court to be held within 30 days after the ALDEN.

HANFORD v. VILLAGE OF ALDEN et al. (Supreme Court of Minnesota. June 13, 1913.)

(Syllabus by the Court.)

canvass. The court denied this motion, and on April 19, 1913, on motion of the contestant, appointed a special term for May 1, 1913, at which time the trial was had. Chapter 59, Laws 1911, provides that in

1. INTOXICATING LIQUORS (8 37*)—LICENSING an election contest "the testimony shall be -ELECTION CONTEST-JURISDICTION.

In a contest as to the result of an election in a village upon the question of licensing the sale of intoxicating liquors, it is held that the filing and service of the notice of contest gives the district court jurisdiction of the proceeding; and it does not lose jurisdiction by a failure to appoint a term of court for the hearing of the contest within 30 days after the canvass as the statute requires.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. § 37.*] 2. INTOXICATING LIQUORS (§ 34*)-LICENSING ELECTION CONTEST CONSTRUCTION OF BALLOT.

Where the ballot is headed "License Ballot," with the words "For License" and "Against License" in two separate parallel lines underneath, with no column at the right for a crossmark, though there is sufficient space, and there are no instructions as to voting, a ballot marked with a cross-mark at the right of "For License," and with an irregular pencil line commencing at the right of the words "For License," and close to the cross-mark, and running through the top of the words, then curving down and returning to the right through the lower part of them to near the cross-mark, is not a vote for license.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. § 34.*]

(Additional Syllabus by Editorial Staff.) 3. INTOXICATING LIQUORS (§ 35*)-LICENSING

-ELECTION.

For the granting of liquor licenses to be authorized by a village election, a majority for license is necessary, and it is not sufficient that the vote for and against license be equal. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. § 35.*] Appeal from District Court, Freeborn County; Nathan Kingsley, Judge.

Election contest by W. T. Hanford against the Village of Alden and others. From the judgment, defendants appeal. Affirmed.

Morgan & Meighen, of Albert Lea, for appellants. Norton & Norton, of Minneapolis, for respondent.

DIBELL, C. This is an appeal from a judgment of the district court of Freeborn county, in an election contest, adjudging that, at an election held in the village of Alden on March 11, 1913, at which the question of the issuing of licenses to sell intoxicating liquors in the village was submitted, the result was against the issuing of licenses.

[1] 1. The first point made by the contestee is that the district court lost jurisdiction to try the contest because of its failure to fix a spceial term for the trial to be held within 30 days after the canvass of the election returns. The canvass was made on March 12, 1913. On April 12, 1913, the contestee moved for a dismissal of the con

taken, and the matter tried and determined, in the same manner as such actions are tried by the court, at a general or special term, if any, occurring within thirty days after such canvass. When no term is already fixed, the judge shall seasonably appoint a special term to be held within such time."

The contestee claims that the court lost

jurisdiction because no term, either general or special, occurred within 30 days after the canvass, and the court appointed none to be held within such time.

It is the purpose of the statute to speed the hearing in an election contest; but the court does not lose jurisdiction because of a failure to appoint a term to convene withThe court in 30 days after the canvass. acquires jurisdiction by the service and filing of the notice of contest. The purpose of the statute to hasten contests might be given effect by dismissing a contestant's appeal for laches, and there would be an appropriate remedy should the court refuse to appoint a term. The doctrine of such cases as Murray v. Mills, 56 Minn. 75, 57 N. W. 324, and May v. Grawert, 86 Minn. 210, 90 N. W. 383, holding that a justice of the peace must act within the times fixed by the statute, is not applicable here, for a justice court is a court of limited and defined jurisdiction, and the district court is a court of general jurisdiction, even when trying a statutory election contest.

The court was right in denying the motion to dismiss and in appointing a term for the hearing of the contest.

[2] 2. At the election 121 ballots were cast. Sixty were for license. Sixty were against license. One is in dispute. It was counted by the canvassing board as a vote for license, and by the district court against license. The disputed ballot has the heading "License Ballot." Underneath, in a parallel line, are the words "For License," and under these words, in a parallel line, are the words "Against License." There are no instructions as to voting. There are no columns at the right for a cross-mark. There is sufficient space. The ballot was marked with a cross-mark opposite the words "For License." Commencing somewhat at the right of the words "For License," and close to the cross-mark, an irregular line runs to the left through the top of the two words, curves downward, and returns through the lower part of them, and approaches near to the cross-mark. It is written with the same

There hereinafter named pay all my just debts and funeral expenses, as soon as convenient.

indelible pencil as the cross-mark.
are no other marks upon the ballot.
Section 1528, R. L. 1905, which provides
for a vote on local option in villages of the
class to which Alden belongs, provides that
the vote on the question shall be by ballot.
There is no provision as to the kind of bal-
lots. Any sort of a ballot which expresses
the intent of the voter is given effect.

[3] The disputed ballot is not a vote for license. To authorize the granting of licenses a majority for license is necessary. State y. Village of Osakis, 112 Minn. 365, 128 N. W. 295. The result was not in favor of licensing.

Judgment affirmed.

CONNELLY v. McMAHON et al. (Supreme Court of Minnesota. June 13, 1913.)

(Syllabus by the Court.)

HOMESTEAD ( 136*)-RIGHTS OF SURVIVING
WIFE-ELECTION TO TAKE UNDER WILL.

Where a testator bequeathed to his wife the balance of his personal property after the payment of his debts and funeral expenses, and after directing the sale of all his lands, and making provision for the payment of debts and certain legacies from the proceeds thereof, ordered that the balance should be invested,' and that his wife should be paid a certain sum annually for her support during her lifetime, with certain legacies to his children after her death, the widow's written acceptance of the provisions of the will, duly filed in the probate court, precluded her from claiming the proceeds of the sale of the testator's homestead as being exempt from liability to the payment of a contingent claim duly allowed against the testa

tor's estate.

[Ed. Note. For other cases, see Homestead, Cent. Dig. §§ 249, 250; Dec. Dig. § 136.*]

Appeal from District Court, Sibley County; P. W. Morrison, Judge.

Action by Edward T. Connelly against Michael McMahon and others. Judgment for defendants. From denial of new trial, plaintiff appeals. Reversed, with directions.

W. F. Odell, of Henderson, for appellant. W. H. Leeman, of Henderson, for respond

"Two. After the payment of these funeral expenses and debts, I give, devise and bequeath to my beloved wife, Anna McMahon, all my personal property that I may die possessed of. I order and direct that my executors hereinafter named sell and dispose of my real estate, and authorize them to make and execute a proper deed with covenants to the purchaser or purchasers, and to accept and receive proper securities for the purchase price of said property. I further direct that out of the proceeds my said executors pay all my just debts, and after payment of the same that they loan the balance received by them after the payment by them of the following bequests: [Here follow several small bequests to clergymen.] Which bequests I order paid by my executors out of the value of my property, and the balance invested by them in some good security. I order and direct that my executors shall pay to my wife, Anna McMahon, for her support the sum of $200 annually each and every year during her lifetime. death of my wife I order that my executors shall pay to my children the following legacies, or sums of money, to wit: [Here follow the legacies.]”

After the

The testator was survived by his wife, Anna McMahon, and by several children, and after the probate of the will his surviving spouse expressly assented to the terms of the will by an instrument in writing filed in the probate court on October 7, 1902. At the time of his death the testator owned a farm comprising 150 acres, 80 acres of which constituted his homestead. The executor Bowser, under the direction and license of the probate court, sold the farm as one tract and received therefor $7,500, out of which he paid a mortgage on the land and other debts, in all amounting to $5,254.50, and paid the widow $200 each year to the time of his discharge. His successor, the defendant McMahon, continued to make the $200 annual payments to the surviving spouse, who is still living, and on November 22, 1911, when a demand was made upon him by the plaintiff for the payment of the claim which forms the basis of this action, he had in his hands belonging to the estate $522.23, since which date he has paid to the widow for her support and maintenance $50, leaving $495 in his possession as administrator, which amount is all that is left of the estate. The deceased, in his lifetime, became surety with the plaintiff upon an administrator's bond, and, default having been made thereon, litigation ensued, which ripened into a judgment against the bondsmen, which the plaintiff paid. Thereafter he filed his claim for contribution against the estate of the deceased, which was allowed as a contingent claim on November 22, 1911, in the sum of "I order and direct that my executors$453.57. Demand was made upon the adminFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ents.

PHILIP E. BROWN, J. On April 13, 1902, Thomas McMahon, then a resident of Sibley county, died testate. His will was duly admitted to probate on August 19, 1902, and one Thomas Bowser was appointed and qualified as executor, and continued to act in such capacity until his discharge on November 22, 1910. The defendant Michael McMahon was then appointed and qualified as administrator de bonis non with the will annexed, executing a bond in the sum of $1,000, with his codefendants as sureties.

The will contained the following provisions:

istrator for the payment of the claim, and | visions showing a different intention on the thereafter upon his sureties, his codefendants. All of them refused to pay, and, after leave obtained from the probate court, the plaintiff brought this action upon the bond of the defendant McMahon to recover the amount last stated.

The action was tried to the court, and findings made in substantial accord with the facts stated; but, in addition thereto, the court made an amended finding as follows: "That the money now in the hands of Michael McMahon as such administrator is money realized from the sale of said homestead." The court's conclusions of law were to the effect that the money in the hands of the defendant administrator was exempt, and not liable for the claims against the decedent sued upon, because the money was realized from the sale of the homestead, to which, under the provisions of the will, the widow was entitled for her support. Judgment was ordered for the defendants. The plaintiff appealed from an order denying a new trial.

The grounds upon which the trial court determined the action have been sufficiently indicated. No dispute arising as to the facts, and the amended finding being unchallenged, it is necessary to consider only the question of whether the proceeds of the sale of the homestead remaining in the possession of the administrator are exempt, as to the widow, from the claim of the plaintiff against the estate of the deceased. The General Statutes of 1894 were in force at the time the surviving widow assented to the will, and sections 4470, 4471, thereof are concededly the same in substance as the present statute. The provisions of these sections gave the widow the alternative of taking a life estate in the homestead of the deceased, free from all debts or claims upon the estate, and also one-third of his other lands, or of accepting the provisions of the will made in her behalf. Having chosen the latter, the question arises as to her status with reference to the proceeds of the sale of the homestead. Shall the statutes or the will control? Clearly she cannot take under both.

part of the testator. Then the statutes may be referred to for direction. In line with the rule stated, this court has held statutory elections applicable to a homestead. Radl v. Radl, 72 Minn. 81, 75 N. W. 111. In Jones v. Jones, 75 Minn. 53, 77 N. W. 551, the failure of the wife to elect was held to deprive the children of any interest in the homestead devised to another.

The reasoning in Fairchild v. Marshall, 42 Minn. 14, 43 N. W. 563, and in Howe Lumber Co. v. Parker, 105 Minn. 310, 117 N. W. 518, illustrates both the general rule and the exception. In the former it was held that the acceptance by the widow of the provisions of her husband's will constituted a bar to her claim of dower in lands conveyed by him during coverture in which she did not join, because such claim of dower was inconsistent with the will. In the Howe Lumber Co. Case the same conclusion was reached, the court saying (105 Minn. at page 312, 117 N. W. at page 519): "The general policy of the law contemplates that the wife shall take either as widow under the statute or as legatee under the will. A condition by which she takes in part under the will and in part under the statute is anomalous, but nevertheless permissible, if such is the desire and intention of the testator."

It is obvious that in a case coming within the general rule a contrary holding would not only diminish the estate to be distributed under the will, but deprive those of benefits thereunder who are entitled to them and have no right of election, all contrary to the intention of the testator, and destroy the general scheme of the will. The result last indicated would follow, were we to adopt the defendants' theories. The widow's consent to take under the will, however, must be construed with reference to the intent of the testator. Baldwin v. Zien, 117 Minn. 178, 134 N. W. 498. In the present case the testator expressly directed the sale of all of his real property, including the homestead, and the payment of his debts out of the proceeds, and we think the validity of the plaintiff's claim and his right to have it paid out of the fund so created would not have been seriously doubted, had it been an existing demand when the testator died. The fact, however, that the claim was a contingent one, is not a differentiating circumstance. We find nothing in the record to warrant us in excepting the case from the operation of the general rule, and hold that the fund, although arising from the sale of the homestead of the deceased, should be applied in payment of the plaintiff's claim.

The defendants' position is that inasmuch as our statutes exempted the homestead and the proceeds thereof from all claims of the testator's creditors so long as either the widow or the children of the deceased survived, neither the disposition of the homestead by the decedent's will, nor the surviving spouse's assent thereto, has any effect upon the exemption. We may admit the first part of the premise, but nevertheless the general rule is that, after an election has been made, the will must be held to control the Nothing is said in Eckstein v. Radl, 72 disposition of the estate, and it logically fol- Minn. 95, 75 N. W. 112, or in Re Norlows in such event that, as to cases coming seth's Estate, 140 N. W. 337, which militates within the general rule, all questions of statu- against the views expressed. The substance tory exemptions become immaterial. An ex- of the decision in the former is that when ception is made when the will contains pro- a homestead is devised to a person other

Reversed, with directions to amend the conclusions of law in conformity with this opinion.

than the wife, and she assents to the will, [ant admits that he was informed of the sale it remains exempt from the debts of the of the farm, but denies that there was any testator. agreement on his part to remain a tenant no longer than to March 1, 1912. He also testified that the leasing was a verbal agreement made in June, 1911, for one year beginning October 23, 1911, and that before informed of the sale of the farm he had plowed and manured the farm for the next year's crop.

KOCH v. FISCHER.

(Supreme Court of Minnesota. June 13, 1913.)

(Syllabus by the Court.) SPECIFIC PERFORMANCE (§ 119*)-BURDEN OF PROOF-ORAL LEASE.

In this an unlawful detainer action, tried de novo in the district court on appeal from the justice court, the defense was part perform ance of an oral lease void under the statute of frauds. Held, that the evidence failed to show clearly the lease and the terms thereof, and wholly failed to show that the alleged acts of part performance were done pursuant to and

in reliance on such lease.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 382, 383; Dec. Dig. § 119.*]

Appeal from District Court, Sibley County; P. W. Morrison, Judge.

Action by Henry Koch against William Fischer. Judgment for plaintiff. Defendant appeals. Affirmed.

W. H. Leeman, of Henderson, for appellant. Geo. A. & C. H. MacKenzie, of Gaylord, and Chas. W. Quandt, of Winthrop, for respondent.

HOLT, J. Action in unlawful detainer, begun in justice court, appealed to the district court on law and fact, and verdict for the defendant. Thereupon the plaintiff moved in the alternative for judgment notwithstanding the verdict or a new trial. The court ordered judgment for plaintiff, and defendant appeals.

The plaintiff alleged that on October 3, 1911, he let his farm to defendant until March 1, 1912, that the latter did not vacate at the end of the term, and wrongfully detains possession from the plaintiff. The defendant answered to the effect that he had been the plaintiff's tenant since October 23, 1905, under a verbal lease renewed from year to year; that in June, 1911, the parties verbally agreed to renew the lease for a period from October, 1911, to October, 23, 1912; that pursuant to such letting the defendant hauled manure and plowed 50 acres of the farm; and that he is in possession under said agreement.

The evidence of the plaintiff tended to prove that on October 3, 1911, there had been no previous agreement as to reletting for the next year beginning October 23, 1911, and the defendant was then informed that the farm was sold, but as the purchaser was not to have possession until the 1st of the following March, the defendant could remain in the buildings up to that date. The defend

The relation of landlord and tenant existed and was admitted by the defendant. He claimed no right to detain possession, except under an alleged lease, void under the law. The only defense was such part performance of the void lease as to entitle him to specific performance. This defense was

not open to him in the justice court. Con-
ceding, but not deciding, that the defend-
ant had no remedy at law for the recovery
of the value of the plowing and manuring for
the crop season of 1912, and also that he
could in this action set up and litigate in
the district court upon a trial de novo the
right to remain in possession because he had
partly performed a lease void under the stat-
ute of frauds (Fowler v. Atkinson, 6 Minn.
503 [Gil. 350]), we nevertheless are of the
opinion that the evidence was not sufficient
to a decree for specific performance may be
to show such part performance that the right
based thereon. The burden was upon the
defendant to establish such defense, and to
prove the alleged oral contract clearly. The
plaintiff alleged one lease; the defendant set
up a different; but no testimony was giv-
en as to its terms, except that it was to be
the same as the old. There was no testimony
as to the terms of the old lease. "Specific
performance of an oral agreement to convey
lands will not be enforced, unless the con-
tract is clearly proved, both as to the fact
of making it and as to its terms." Burke v.
Ray, 40 Minn. 34, 41 N. W. 240; Olson v.
Erickson, 42 Minn. 440, 44 N. W. 317. The
plaintiff absolutely denied making the lease
claimed by defendant. When the plowing
and manuring was done, the defendant was
not in possession under this alleged new
lease, but under the prior lease, and the work
done by the defendant before the new lease
began should ordinarily be considered as re-
quired under the old lease. Manifestly in
that situation it was incumbent on the de-
fendant to show clearly that the plowing and
manuring was done solely as a part per-
formance of the alleged verbal lease of June,
In this we
1911, and in reliance thereon.
think he failed. No testimony was offered
as to what he was required to do under the
lease which expired October 23, 1911, in re-
spect to plowing and hauling out manure.
Therefore the court was right in ordering
judgment notwithstanding the verdict. See
citation from Story's Equity Jur. in Went-
worth v. Wentworth, 2 Minn. 277 (Gil. 238),

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

72 Am. Dec. 97; Lanz v. McLaughlin, 14 Minn. 72 (Gil. 55). Part performance sufficient to take an oral contract relating to land out of the statute of frauds includes proof that the possession was taken under that contract, and likewise that the payment or work relied on was in pursuance of and reliance on such contract alone.

Order affirmed.

& St. Paul Suburban Railroad Company was duly incorporated and succeeded to all the property, rights, and franchises of the Railway Company, and during the year 1910 operated all the suburban lines of road acquired from its predecessor. Several different lines of road were so operated by defendants, each of which connected with the street railways of the cities of St. Paul and Minneapolis, and some of the lines extended in fact a short distance within the corporate limits of those cities. The car tracks are of

STATE v. MINNEAPOLIS & ST. P. S. RY. standard gauge, and the cars of defendants

CO. et al.

were operated upon and over the local street (Supreme Court of Minnesota. June 13, 1913.) car tracks. One of such lines extends from

(Syllabus by the Court.)

Hopkins, in Hennepin county, through Min

TAXATION (§ 394*)-GROSS EARNINGS TAX-neapolis, to St. Paul, from which place the COMPUTATION-INTERURBAN RAILWAYS.

cars return to the terminus at Hopkins. AnDefendants, Suburban Railroad Company other line extends to the city of Stillwater, and Suburban Railway Company, operated dur- in Washington county, through the same, ing 1909 and 1910 several lines of street and and to some point beyond. Within the cities trolley railroad partly within and partly beyond the boundaries of the cities of St. Paul and the cars are run upon and over the local Minneapolis. Their cars were run into or railway tracks, without change of conducthrough those cities upon the car tracks of the tors or motormen. Under an operating agreeWithin local city street railway companies. the cities the cars were operated as the city ment between the several companies, all lines were operated, receiving and discharging fares and revenue receipts during the years passengers at street intersections, and charging stated were paid over to the Transit Supply and receiving the same fare from passengers. Company, a corporation, the joint fiscal agent All revenues received by defendants were paid over to a corporation, the joint fiscal agent of of both car lines, and by that company creddefendants and the city companies, and were ited to the respective car companies in acby that company apportioned to the different cordance with the earnings of each; the companies in accordance with the earnings of earnings of the Suburban Companies outside each; defendants being paid for all earnings the cities being paid to them, and the earnoutside the cities, and the local companies for all earnings within the cities. Held a legiti-ings inside to the local company. The emmate and proper arrangement between the com- ployés were paid on the same basis; each panies, and that the amount apportioned to the receiving compensation in accordance with suburban companies, which are liable to the the time employed within and without the payment of the gross earnings tax, represents their gross earnings, and properly reported as cities, and paid by the local or suburban line accordingly. Defendants reported their gross earnings for the years 1909 and 1910 in harmony with this plan of operation, and the tax assessed thereon was paid. All property

such.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 669; Dec. Dig. § 394.*]

Appeal from District Court, Ramsey County; Olin B. Lewis, Judge.

Action by the State of Minnesota against the Minneapolis & St. Paul Suburban Railway Company and another. From judgment for defendants, the State appeals. Affirmed.

Lyndon A. Smith, Atty. Gen., and Wm. J. Stevenson, Asst. Atty. Gen., for the State. N. M. Thygeson and W. Y. Smiley, both of Minneapolis, for respondents.

BROWN, C. J. Action to recover certain taxes claimed by the state to be due from defendants upon their gross earnings for the years 1909 and 1910. Defendants had judgment below, and the state appealed.

owned by defendants, and situated in the municipalities reached by their lines, was assessed on the ad valorem basis, and the tax paid.

1. The action is founded upon chapter 454, Laws 1909 (Rev. Laws Supp. 1909, §§ 10031 to 1003-6), wherein it is provided that all companies operating railroads or railways in this state, "except street railways," shall be deemed railroad companies within the meaning of section 1003, R. L. 1905, and subject to taxation on the gross earnings basis. Each such company is required to report its gross earnings, and the Tax Commission is required to apportion the tax thus levied and paid among the several municipalities traversed by the road, in accordance with the volume of business arising therein and from which the earnings accrue. tion involved in the case, as expressed by counsel for the state, is whether defendants, the Suburban Companies, had the right to deduct, in their report of gross earnings, all money received by them for the transportation of passengers within the cities of St.

The sole ques

The facts, without unnecessary detail, are as follows: Defendant the Minneapolis & St. Paul Suburban Railway Company was duly organized as a street railroad corporation under the laws of this state, and constructed and during the year 1909 operated certain suburban lines of road radiating from the cities of St. Paul and Minneapolis. In December of that year defendant Minneapolis

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