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v. Payn, 161 N. Y. 229, 55 N. E. 849; State ex rel. v. Vorys, 69 Ohio St. 56, 68 N. E. 580. We think the form or mode of action adopted in this case by the appellee is within the terms of the statute when it used the phrase "proper proceedings."

[2] The statute provides that the commission shall reduce its ruling, order, or decision to writing and file the same in the office of the Corporation Commission, and shall furnish a copy thereof, together with a statement of its reasons, to the officers of the society. The court is empowered to review the commission's action as 'expressed in its order, ruling, or decision, together with its reasons. The appellant does not undertake to justify its action by any order, ruling, or decision in writing, nor does it assign any reason in its answer for refusing to issue a license, except that it contends the law lodges in it the discretion to grant or refuse a license as it may choose and in doing so it is exercising quasi judicial functions.

The appellant relies in part on section 5 of article 15 of the state Constitution as justifying its refusal to issue a license. That section reads as follows:

"The Corporation Commission shall have the sole power to issue certificates of incorporation to companies organizing under the laws of this state, and to issue licenses to foreign corporations to do business in this state, as may be prescribed by law."

lawmaking body, neither can it refuse arbitrarily or capriciously to license those named and possessing the qualifications prescribed by law, and which corporations have complied with all the provisions of the law entitling them to a license. This we say, in view of the language used in the above constitutional provision, and also in paragraph 3486, Civil Code, supra. This paragraph says:

"Any society shall be entitled to a license to transact business within this state" upon filing with the commission the papers and statements therein enumerated "and furnishing the Corporation Commission with such other information as the commission may deem necessary to a proper exhibit of its business and plan of working.".

"Other information" mentioned which the commission is authorized to demand is information that the commission may require from the corporation applying for license, other than that specifically enumerated and named in the law. In this case no "other information" was asked for or demanded of the appellee. It would seem that for some reason of its own, not in any way exhibited or shown in its order of refusal or answer to the complaint, the appellant, Corporation Commission, refused to issue the license applied for upon a showing in all respects fulfilling the requirements of the law.

above statute that "any society shall be enNotwithstanding the provision in the

titled to a license to transact business in this

We think the meaning of this provision of state" upon qualifying as provided, that absothe Constitution is that the sole and exclu- lute right, it may be contended, is qualified sive power to issue certificates and licenses by the further statement that "the Corporais lodged in the Corporation Commission, but tion Commission may issue a license to such that the Legislature may prescribe the kinds society to do business in this state until the of corporations that may do business in this first day of the succeeding April." If there state and their qualifications and make it the is no obligation on the part of the commission duty of the Corporation Commission to issue to issue a license upon a proper and sufficient to such corporations, upon proper application application, then the right to one, as given in and showing, licenses and certificates. In this section, may be completely nullified by other words, the Legislature may not au- the nonaction or the arbitrary and capricious thorize any other commission, board, body, or action of the commission. Their judgment of person to issue certificates and licenses, that the qualifications of an applicant to do busiright or power being by the Constitution ness will be substituted in that event for the lodged in the Corporation Commission, but judgment of the Legislature. We do not it may prescribe by law the kinds and quali-think that the word "may" is used in a perfications of corporations and the rules and regulations for the conduct of their business. And it would seem that, if the Legislature has set forth what corporations may enter this state to transact business and the steps to be taken by them to secure that privilege, and it is ascertained, by the method provided, that any such corporation has met the conditions of the law, which seems to be the case here, nothing remains for the Corporation Commission to do but to issue a license or certificate. The power of the Legislature to define the kinds of corporations and their qualifications to do business in this state is unlimited, except that it may not lodge the duty of issuing the certificate or license in any other agency than the Corporation Com mission. The commission cannot license corporations other than those named by the

missive or optional sense, but that it has the equivalent meaning of "shall," and that it is the duty of the commission to issue a license when the applicant has in all respects shown itself qualified in the particulars named by the Legislature, and in addition thereto given "such other information as the commission may deem necessary to a proper exhibit of its business and plan of working." The commission is an agency of the state created for the purpose of exercising certain functions and performing certain duties for the state, not for the purpose of prohibiting or restricting insurance business, but for the purpose of regulating it in the manner provided by law. Persons and corporations whose business is that of insurance are vitally interested in the privileges conferred by licenses to do business. They are forbidden to operate in this

state without a license; with a license they may carry on the business for which they were organized. In McLeod v. Scott, 21 Or. 94, 26 Pac. 1061, it is said:

"It is a general principle of statutory construction that, when the word 'may' is used in conferring power upon any officer, court, or tribunal, and the public or a third person has an interest in the exercise of the power, then the exercise of the power becomes imperative, and Endl. Interp. St. par. 310, Sedg. St. & Const. Law, 377, and Potter, Dwar. St. p. 220, note 27, are referred to as authority. Smith v. King, 14 Or. 10, 12 Pac. 8, is to the same effect, and the undoubted weight of authority is the same way. People v. Commissioners [130 Ill. 482] 22 N. E. 596, 6 L. R. A. 161, and note."

Again it is said:

"It is well settled in statutory interpretation that the word 'may' may be read 'shall.'" Rock Island County Supervisors v. United States, 71 U. S. (4 Wall.) 435, 18 L. Ed. 419.

This rule of interpreting "may" as meaning "shall" in cases like this is so well settled we refrain from citing authorities to any extent. It is possible that cases might arise wherein the commission, passing upon an application for licenses to transact business in this state by a foreign fraternal society or corporation, would be required to exercise discretion or judicial functions, but clearly this is not shown to be a case of that kind. Should

such a case arise, it will then be time enough to determine whether the action of the commission may be reviewed and revised by the proceeding in mandamus.

We think the act of issuing a license to the appellee authorizing it to do the business of insurance under the facts of this case was specially enjoined as a duty resulting from the office of the Corporation Commission, and the judgment of the lower court should be

sustained.

Judgment affirmed.

orders assigned as error only upon appeals from a final judgment. Paragraph 509 provides that all pleas in abatement or which do not go to all issues of law arising on the pleadings and the merits shall be disposed of by the court before trial on the merits. In an action for an accounting, from orders overruling defendant's general and special demurrer and disallowing his plea in bar, he appealed. Held, that while the orders appealed from determined the issues of law raised by the pleading applicable to the facts, they left the questions of fact unsettled, and were intermediate orders in contemplation of the trial on the merits, and not final appealable orders.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 643-647; Dec. Dig. 93.

For other definitions, see Words and Phrases, First and Second Series, Final Order.]

Appeal from Superior Court, Apache County; George W. Crosby, Jr., Judge.

Action by Caroline Desmont and another against the Navajo-Apache Bank & Trust Company, a corporation, and others. From orders overruling a general demurrer and disallowing a plea in bar, defendants appeal. Dismissed.

E. S. Clark, of Prescott, and Fred W. Nelson, of St. Johns, for appellants. George Estes, of El Paso, Tex., for appellees.

CUNNINGHAM. J. This action was com

menced by the appellees praying for an accounting and other relief, resulting from transactions dating from the year 1906, involving a note and a chattel mortgage on sheep to secure the note and payment on account. The appellants defended upon the grounds of misjoinder of parties defendant and nonjoinder of a necessary party and upon the grounds that the action is barred by the five-year statute of limitations; that the complaint fails to state facts sufficient to constitute a cause of action; that the matters and things set forth in the complaint

FRANKLIN and CUNNINGHAM, JJ., con- have been formerly adjudicated by a compe

cur.

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tent court in three separate actions and are barred; and an answer denying all and singular the allegations of the complaint. On the 13th day of June, 1915, the court ordered the said pleas and special demurrer overruled. The court ordered the general demurrer overruled and the plea in bar, setting forth former adjudication, disallowed, whereupon the defendants gave notice in open court of appeal to the Supreme Court "from all orders and rulings of the court as to the On July 2, 1915, the court refused to set the case for trial on the issues of fact pending the decision of the Supreme Court as to whether or not the orders involved are appealable orders. The documents specified by the defendants as necessary to present the questions involved on appeal were filed with the clerk of this court on September 10, 1915. On November 29, 1915, the plaintiffs, as appellees, appeared and moved to dismiss the appeal, because the orders appealed from are not final orders with

case.

Idaho)

GOLDEN MARGUERITE SILVER & C. M. CO. v. NATIONAL C. M. CO.

in the contemplation of the statute of appeals and subject to appeal. Appellants have made no reply to this motion, although the affidavit of the attorney for the movent alleges and shows that a true copy of the motion and a copy of the brief was mailed to one of the attorneys for appellants with sufficient postage thereon on the 27th day of November, 1915.

[1, 2] The right to appeal in any case depends wholly upon the statute permitting an appeal in such case. Paragraph 1227, Civil Code Ariz. 1913, provides that:

"An appeal may be taken to the Supreme Court from a superior court in the following

cases:

"(1) From a final judgment entered in an action or special proceeding commenced in a superior court, or brought into a superior court from any other court.

"(2) From an order granting or refusing a new trial, or granting a motion in arrest of judgment; granting or dissolving an injunction, or refusing to grant or dissolve an injunction, or appointing a receiver, or dissolving or refusing to dissolve an attachment or garnishment; from any special order made after final judgment; from any interlocutory judgment, order, or decree made or entered in actions to redeem real or personal property from a mortgage thereof, or lien thereon, determining such right to redeem and directing an accounting; from an interlocutory judgment in any action for partition which determines the rights and interests of the respective parties, and directs partition to be made, and from any interlocutory judgment which determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery.

"(3) From [orders and judgments in probate matters].

"(4) From [orders and judgments adjudging a person insane].

"(5) From any order affecting a substantial right, made in any action when such order in effect determines the action and prevents judgment from which an appeal might be taken.

"(6) From a final order affecting a substantial right made in special proceedings or upon a summary application in an action after judg

ment.

"(7) From an order or judgment in habeas corpus cases.

The orders overruling a demurrer, a plea in abatement, or a plea in bar, are not such final determinative orders as are made the subject of appeal and separate review within the purview of the said statute. Until final judgment in the cause, the trial court retains the power to vacate such orders upon proper grounds appearing, and grant the relief sought without appeal. Such orders may affect the final judgment, yet they are necessarily intermediate orders, made in contemplation of the trial on the merits as provided in paragraph 509, Civil Code Ariz. 1913, as follows:

"All issues of law arising on the pleadings, and all pleas in abatement and other dilatory pleas remaining, and all pleas which do not go to the merits of the case shall be disposed of by the court before the case is called for trial on the merits."

Paragraph 1230, Civil Code Ariz. 1913, provides that:

207

"Upon an appeal from a final judgment the Supreme Court may review any intermediate order involving the merits and necessarily affecting the judgment."

Paragraph 1232, Civil Code Ariz. 1913, limits the right to appeal to any person aggrieved in the cases prescribed in chapter 1, tit. 6, of the Civil Code.

If the statute permits appeals from the

orders disposing of the issues of law arising on the pleadings, the pleas in abatement and other dilatory pleas and all pleas which do not go to the merits of the case, then neces

sarily, an appeal would lie from each of said orders, and in order to receive the benefit of an appeal, all further proceedings must be suspended from the time of taking an appeal until the appeal is finally adjudicated. Paragraph 1231, Civil Code Ariz. 1913, requires this court to review all orders and rulings made by the court below, which are assigned as error, only upon appeals from a final judgment. The orders appealed from certainly determined the issues of law raised by the pleading applicable to the facts, yet the questions of fact remained unsettled, and for that reason such orders are not, in their nature, final judgments in contemplation of appeals. 2 Cyc. 587; Potter v. Talkington, 5 Idaho, 317, 49 Pac. 14.

"Sometimes several issues of law and of fact are presented for the consideration of the court in the same suit or proceeding. In such case, there can be no judgment from which an appeal may be taken until all the issues are determined. For although the determination of an issue of law is a trial, and the decision rendered thereon is not an order, * but a judgment, still it is not until final judgment is entered that an appeal will lie." Freeman on Judgments (3d Ed.) § 10.

*

*

Such is the clear meaning of our statute, and consequently the motion is well taken.

The appeal is dismissed, and the cause remanded, for further proceedings according to law.

ROSS, C. J., and FRANKLIN, J., concur.

(28 Idaho, 290) GOLDEN MARGUERITE SILVER & COPPER MINING CO., Limited, v. NATION

AL COPPER MINING CO., Limited. (Supreme Court of Idaho. Dec. 28, 1915.) COSTS 146, 162-TAXATION-ITEMS TAX

ABLE.

Under the statutes of this state, only such costs as are necessarily incurred in an action or proceeding in the courts of this state are chargeable against the losing party as costs, unless the statute clearly provides that other necessary disbursements may be charged up as costs in an action or proceeding.

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 567-569, 572-574, 580; Dec. Dig. 146, 162.]

Appeal from District Court, Shoshone County; Wm. W. Woods, Judge.

Action by the Golden Marguerite Silver & Copper Mining Company, Limited, against

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

the National Copper Mining Company, Limit- ty Com'rs, 16 Idaho, 32, 100 Pac. 106, 21 L. ed. From an order denying motion to tax costs, defendant appeals. Reversed and remanded, with directions.

John P. Gray, of Cœur d'Alene, and Therrett Towles, of Wallace, for appellant. A. G. Kerns, of Wallace, for respondent.

SULLIVAN, C. J. This is an action brought under the provisions of section 2326, Rev. Stats. of the U. S. (U. S. Comp. St. 1913, § 4623) in support of an adverse claim against an application for patent to certain mining ground. The appeal is from an order of the court taxing costs. The items of the memorandum of costs which the court allowed and from which order this appeal is taken, are as follows:

To filing fees paid the land office on filing protest and adverse claim.

To paid for certified copy of notice for the land office.....

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R. A. (N. S.) 199, 133 Am. St. Rep. 89, 17 Ann. Cas. 1226, Steensland v. Hess, 25 Idaho, 181, 136 Pac. 1124, and other authorities on the proposition that statutes allowing costs are penal and must be strictly construed, and appellant also contends that costs expended in the United States Land Office in support of an adverse claim under the provisions of said section 2326, Rev. Stats, of the U. S., cannot be recovered in a suit in the district court of this state.

Under the provisions of section 4912, Rev. Codes, the party in whose favor the judgment is rendered and who claims his costs must, within five days after the verdict or notice of the decision of the court or referee, file with the clerk, and serve upon the adverse party or his attorney, a copy of the $10.00 memorandum of the items of his costs and 1.50 necessary disbursements in the action or proceeding. This section of the statute, as well 2.50 as other sections, refers only to such costs and disbursements as are occasioned in the 4.00 action or proceeding in the courts of this $18.00 state, and does not contemplate costs occasioned by proceedings in the United States Land Office.

The judgment was in favor of the adverse claimant, and awarded the area of conflict to the adverse claimant. After judgment was entered the adverse claimant, who is re spondent here, filed his memorandum of costs, and taxed, among other costs, the above set forth items. The allowance of said items of cost is assigned as error.

The contention of appellant is that the allowance of costs is a matter dependent wholly upon the statute, and where there is no statute authorizing it, no costs can be allowed, and cites in support of that contention Cronan v. District Court, 15 Idaho, 462, 98 Pac. 614, Schmelzel v. Board of Coun

We conclude, therefore, that the court erred in allowing the items of cost above mentioned, since they were all incurred on account of proceedings in the United States Land Office.

The order of the district court must therefore be reversed and the cause remanded, with instructions to sustain the motion and disallow the items of cost above mentioned amounting to $18. Costs are awarded to appellant.

BUDGE and MORGAN, JJ., concur.

(97 Kan. 22)

lief was denied, and an appeal is taken from LESLIE v. HARRISON NAT. BANK et al. the decision refusing the injunction.

(No. 19784.)

(Supreme Court of Kansas. Jan. 8, 1916.)

(Syllabus by the Court.)

1. ESTOPPEL 90-EQUITABLE ESTOPPELPUBLIC LAND-WILLS.

On June 18, 1878, Alexander Leslie (father of the judgment debtor, and grandfather of the plaintiff in the injunction action) made a will which, without describing any specific property, gave a life interest in all the estate, Where a settler upon public land of the both real and personal, of which he should United States died, leaving a will giving a life die seised, to his wife, with a remainder in estate in all his property to his wife, with a re-equal shares to their four sons, one of whom mainder to their children, and the widow enjoyed during her life all the rents and profits of the land, which was patented to the heirs, she and the children supposing that title had passed in accordance with the terms of the will, no estoppel thereby arose such as to vest an equitable title to the fee in the children, subject to a life

interest in the mother.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. 88 242-244, 248-256; Dec. Dig. 90.]

2. DEEDS 114-PROPERTY CONVEYED-INTEREST OF GRANTOR MISTAKE AS TO EX

TENT.

was J. F. Leslie.

At the time of making the will both tracts referred to were government land, occupied by the testator with a view to acquiring title under the pre-emption and timber culture acts. He died July 2, 1878. The widow elected to take under the will. Patents were issued on one tract in 1880, and on the other in 1890, to the heirs of Alexander Leslie, who were his widow and the four sons named in his will. The will, of course, did not affect the title to the land, which by virtue of the federal law passed to the heirs as grantees of the

A grantor who, in fact, owns an undivided one-eighth interest in a tract of land derived from the government, but who supposes that he owns an undivided one-fourth interest subject government. Byerly v. Eadie, 95 Kan. 400, to a life estate derived from a will, passes all 148 Pac. 757; Buxton v. Traver, 130 U. S. the title he has by a deed describing the prop-232, 9 Sup. Ct. 509, 32 L. Ed. 920. No queserty conveyed as a one-fourth interest arising under the will; the warranty clause containing an exception as to the life estate.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 316-322, 326–329, 388; Dec. Dig. 114.]

3. JUDGMENT 782-LIENS-GIFT OF LAND. Where one, under the mistaken belief that he is the owner of an interest in a tract of land, executes a warranty deed thereto as a gift to his son, a title afterwards acquired by him will pass to the grantee only in subjection to the lien of any judgment existing against the grantor at the time of acquiring the title.

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782.]

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1351; Dec. Dig. 1. EXECUTION 171 - SALE INJUNCTION -OWNER OF UNDIVIDED INTEREST IN LAND. An owner of an undivided one-fourth interest in land, one eighth interest being subject to the payment of a judgment against his grantor, and the other eighth not, is entitled to an injunction against the sale of more than an undivided one-eighth interest in the land under an execution issued on such judgment.

[Ed. Note. For other cases, see Execution, Cent. Dig. 88 497-518; Dec. Dig. 171; Judgment, Cent. Dig. §§ 794, 795, 813, 825.]

Appeal from District Court, Reno County. Action by Frank Leslie against the Harrison National Bank and another. From a judgment for defendants, plaintiff appeals.

Modified and affirmed.

C. M. Williams, of Hutchinson, for appellant. Fairchild & Lewis, of Hutchinson, for appellees.

tion is made regarding this proposition, but

Frank Leslie maintains that the conduct of the heirs produced the same result as though they had entered into an effective agreement with each other that the land should be held in accordance with the terms of the will. Oral evidence was introduced by Frank Leslie to the effect that they all understood that each son owned an undivided one-fourth interest, subject to a life estate in their mother, and that she enjoyed all the rents and profits until her death.

On August 2, 1904, J. F. Leslie (his wife joining) executed to his son Frank Leslie, for a recited consideration of $1 and love and affection, a general warranty deed in which the property conveyed was thus described:

the east one-half of section thirty (30), in townwest of the 6th P. M., being the interest arising ship twenty-two_(22) south, of range nine (9) under the will of Alexander Leslie, deceased, the father of John F. Leslie."

"Our undivided one-fourth interest in and to

The warranty clause contained an exception as to the life interest of Elizabeth Leslie. The bank sued J. F. Leslie July 21, 1901. Its judgment was rendered September 16, 1904. Elizabeth Leslie died May 17, 1913, leaving all her property in equal shares to the four sons already referred to. The execution levied upon the real estate in question was issued October 20, 1913.

MASON, J. The Harrison National Bank, [1] 1. Frank Leslie maintains that his having a judgment against J. F. Leslie, levied grandmother, having acquiesced in and rean execution upon the undivided one-fourth ceived the benefits of the arrangement by interest in two tracts of land, and was about which she was treated as owning a life esto sell it as his property, when his son Frank tate, was estopped to assert any other title, Leslie brought an action to enjoin the sale and therefore that his father should be reon the ground that he was the owner of the garded as having owned a one-fourth interinterest sought to be sold. Upon a trial re-est in the land when he executed the deed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-14

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