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v. Payn, 161 N. Y. 229, 55 N. E. 819; State , lawmaking body, neither can it refuse arbiex rel. y. Vorys, 69 Obio St. 56, 68 N. E. 580. trarily or capriciously to license those named

We think the form or mode of action and possessing the qualifications prescribed adopted in this case by the appellee is with by law, and which corporations have comin the terms of the statute when it used the plied with all the provisions of the law entiphrase "proper proceedings."

tling them to a license. This we say, in view [2] The statute provides that the commis- of the language used in the above constitusion shall reduce its ruling, order, or decision tional provision, and also in paragraph 3486, to writing and file the same in the office of Civil Code, supra. This paragraph says: the Corporation Commission, and shall fur- “Any society shall be entitled to a license to nish a copy thereof, together with a state-transact business within this state" upon filing ment of its reasons, to the officers of the so

with the commission the papers and statements

therein enumerated "and furnishing the Corpociety. The court is empowered to review the ration Commission with such other information commission's action as'expressed in its order, as the commission may deem necessary to a ruling, or decision, together with its reasons.

proper exhibit of its business and plan of work

ing.". The appellant does not undertake to justify its action by any order, ruling, or decision

"Other information” mentioned which the in writing, nor does it assign any reason

commission is authorized to demand is inforin its answer for refusing to issue a license,

mation that the commission may require from except that it contends the law lodges in it

the corporation applying for license, other the discretion to grant or refuse a license as

than that specifically enumerated and named it may choose and in doing so it is exercis

in the law. In this case no “other informaing quasi judicial functions.

tion" was asked for or demanded of the apThe appellant relies in part on section 5

pellee. It would seem that for some reason of article 15 of the state Constitution as

of its own, not in any way exhibited or Justifying its refusal to issue a license. That

shown in its order of refusal or answer to section reads as follows:

the complaint, the appellant, Corporation “The Corporation Commission shall have the

Commission, refused to issue the license apsole power to issue certificates of incorpora-plied for upon a showing in all respects fültion to companies organizing under the laws of filling the requirements of the law. this state, and to issue licenses to foreign cor- Notwithstanding the provision in the porations to do business in this state, as may be prescribed by law."

above statute that "any society shall be en

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

I judgment of the Legislature. We do not it may prescribe by law the kinds and quali. I think that the word “may” is used in a perfications of corporations and the rules and

missive or optional sense, but that it has the regulations for the conduct of their business. equivalent meaning of "shall," and that it is And it would seem that, if the Legislature the duty of the commission to issue a license has set forth what corporations may enter when the applicant has in all respects shown this state to transact business and the steps | itself qualified in the particulars nam to be taken by them to secure that privilege, the Legislature, and in addition thereto givand it is ascertained, by the method provid- en "such other information as the commission ed, that any such corporation has met the may deem necessary to a proper exhibit of its conditions of the law, which seems to be the business and plan of working.” The commiscase here, nothing remains for the Corpora-sion is an agency of the state created for the tion Commission to do but to issue a license purpose of exercising certain functions and or certificate. The power of the Legislature performing certain duties for the state, not to define the kinds of corporations and their for the purpose of prohibiting or restricting qualifications to do business in this state is insurance business, but for the purpose of unlimited, except that it may not lodge the regulating it in the manner provided by law. duty of issuing the certificate or license in Persons and corporations whose business is any other agency than the Corporation Com that of insurance are vitally interested in the mission. The commission cannot license cor- privileges conferred by licenses to do busiporations other than those named by the ness. They are forbidden to operate in this

state without a license; with a license they | orders assigned as error only upon appeals from may carry on the business for which they a final judgment. Paragraph 509 provides that were organized. In McLeod v. Scott, 21 Or.

| all issues of law arising on the pleadings and

all pleas in abatement or which do not go to 94, 26 Pac. 1061, it is said:

the merits shall be disposed of by the court be "It is a general principle of statutory con- fore trial on the merits. In an action for an ac struction that, when the word 'may' is used in counting from orders overruling defendant's conferring power upon any officer, court, or tri- general and special demurrer and disallowing his bunal, and the public or a third person has an plea in bar, he appealed. Held, that while the interest in the exercise of the power, then the orders appealed from determined the issues of exercise of the power becomes imperative, and law raised by the pleading applicable to the Endl. Interp. St. par. 310, Sedg. St. & Const. facts, they left the questions of fact unsettled, Law, 377, and Potter, Dwar. St. p. 220, note 27, and were intermediate orders in contemplation are referred to as authority. Smith v. King, of the trial on the merits, and not final appeal14 Or. 10, 12 Pac. 8, is to the same effect, able orders. and the undoubted weight of authority is the [Ed. Note.-For other cases, see Appeal and same way. People v. Commissioners (130 Ill. Error, Cent. Dig. $$ 643-617; Dec. Dig. 93. 482) 22 Ñ. E. 596, 6 L. R. A. 161, and note.”

For other definitions, see Words and Phrases, Again it is said:

First and Second Series, Final Order.) "It is well settled in statutory, interpretation Appeal from Super

Appeal from Superior Court, Apache Counthat the word 'may' may be read 'shall.'" Rock Island County Supervisors v. United States, 71

Inited States. 71 ty; George W. Crosby, Jr., Judge. U. S. (4 Wall.) 435, 18 L. Ed. 419.

Action by Caroline Desmont and another This rule of interpreting “may” as meaning against the Navajo-Apache Bank & Trust “shall” in cases like this is so well settled we Company, a corporation, and others. From refrain from citing authorities to any extent. orders overruling a general demurrer and It is possible that cases might arise wherein disallowing a plea in bar, defendants appeal. the commission, passing upon an application Dismissed. for licenses to transact business in this state E. S. Clark, of Prescott, and Fred W. Nelby a foreign fraternal society or corporation, son, of St. Johns, for appellants. George would be required to exercise discretion or Estes, of El Paso, Tex., for appellees. judicial functions, but clearly this is not shown to be a case of that kind. Should

CUNNINGHAM. J. This action was comsuch a case arise, it will then be time enough

menced by the appellees praying for an acto determine whether the action of the com

counting and other relief, resulting from mission may be reviewed and revised by the

transactions dating from the year 1906, inproceeding in mandamus.

volving a note and a chattel mortgage on We think the act of issuing a license to the

sheep to secure the note and payment on acappellee authorizing it to do the business of

count. The appellants defended upon the insurance under the facts of this case was

| grounds of misjoinder of parties defendant specially enjoined as a duty resulting from

and nonjoinder of a necessary party and upthe office of the Corporation Commission, and

on the grounds that the action is barred by the judgment of the lower court should be

the five-year statute of limitations; that the sustained.

complaint fails to state facts sufficient to Judgment affirmed.

constitute a cause of action; that the matFRANKLIN and CUNNINGHAM, JJ., con

ters and things set forth in the complaint

have been formerly adjudicated by a compecur.

tent court in three separate actions and are (17 Ariz. 472)

barred; and an answer denying all and sinNAVAJO-APACHE BANK & TRUST CO.

gular the allegations of the complaint. OD et al. v. DESMONT et al. (No. 1503.)

the 13th day of June, 1915, the court ordered

the said pleas and special demurrer over(Supreme Court of Arizona. Jan. 13, 1916.)

ruled. The court ordered the general demur1. APPEAL AND ERROR Oml – NATURE OF rer overruled and the plea in bar, setting REMEDY.

forth former adjudication, disallowed, whereThe right to appeal in any case depends wholly upon the statute permitting an appeal in

upon the defendants gave notice in open such case.

court of appeal to the Supreme Court “from [Ed. Note.-For other cases, see Appeal and all orders and rulings of the court as to the Error, Cent. Dig. 88 1-4; Dec. Dig. Oml.) case. . . " On July 2, 1915, the court 2. APPEAL AND ERROR 93 – APPEALABLE refused to set the case for trial on the issues ORDERS - "FINAL ORDER" - DEMURRER –

of fact pending the decision of the Supreme PLEA IN BAR. Civ. Code 1913, par. 1227, provides for an

Court as to whether or not the orders inappeal from: (1) Final judgments in actions in volved are appealable orders. The documents the superior court; (2) from certain enumerated specified by the defendants as necessary to orders; (5) from orders affecting a substantial

| present the questions involved on appeal right and determining the action and preventing judgment from which an appeal might be taken.

were filed with the clerk of this court on Paragraph 1230 provides that, on appeal from a September 10, 1915. On November 29, 1915, final judgment the Supreme Court may review the plaintiffs, as appellees, appeared and any intermediate order involving the merits and necessarily affecting the judgment. Paragraph

moved to dismiss the appeal, because the or1231 requires the Supreme Court to review all ders appealed from are not final orders with

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

207

in the contemplation of the statute of appeals "Upon an appeal from a final judgment the and subject to appeal. Appellants have made Supreme Court may review any intermediate orno reply to this motion, although the affida-1

da der involving the merits and necessarily affecting

the judgment." vit of the attorney for the movent alleges

Paragraph 1232, Civil Code Ariz. 1913, and shows that a true copy of the motion

limits the right to appeal to any person ag. and a copy of the brief was mailed to one of

grieved in the cases prescribed in chapter 1, the attorneys for appellants with sufficient

tit. 6, of the Civil Code. postage thereon on the 27th day of November,

If the statute permits appeals from the 1915.

orders disposing of the issues of law arising [1, 2] The right to appeal in any case de

on the pleadings, the pleas in abatement and pends wholly upon the statute permitting an

other dilatory pleas and all pleas which do appeal in such case. Paragraph 1227, Civil

not go to the merits of the case, then necesCode Ariz. 1913, provides that:

sarily, an appeal would lie from each of said "An appeal may be taken to the Supreme

orders, and in order to receive the benefit of Court from a superior court in the following cases:

an appeal, all further proceedings must be "(1) From a final judgment entered in an ac suspended from the time of taking an appeal tion or special proceeding commenced in a su

until the appeal is finally adjudicated. Paraperior court, or brought into a superior court from any other court.

graph 1231, Civil Code Ariz. 1913, requires “(2) From an order granting or refusing a this court to review all orders and rulings new trial, or granting a motion in arrest of made by the court below, which are assigned judgment; granting or dissolving an injunc

as error, only upon appeals from a final judgtion, or refusing to grant or dissolve an injunction, or appointing a receiver, or dissolving or ment. The orders appealed from certainly refusing to dissolve an attachment or garnish- determined the issues of law raised by the ment; from any special order made after final pleading applicable to the facts, yet the judgment; from any interlocutory judgment, order, or decree made or entered in actions to re

questions of fact remained unsettled, and for deem real or personal property from a mortgage that reason such orders are not, in their nathereof, or lien thereon, determining such right ture, final judgments in contemplation of apto redeem and directing an accounting; from an

peals. 2 Cyc. 587; Potter v. Talkington, 5 interlocutory judgment in any action for partition which determines the rights and interests Idabo, 317, 49 Pac. 14. of the respective parties, and directs partition to "Sometimes several issues of law and of fact be made, and from any interlocutory judgment are presented for the consideration of the court which determines the rights of the parties and in the same suit or proceeding. In such case, directs an accounting or other proceeding to de- there can be no judgment from which an appeal termine the amount of the recovery.

may be taken until all the issues are determined. "(3) From [orders and judgments in probate For although the determination of an issue of matters].

law is a trial, and the decision rendered thereon "(4) From [orders and judgments adjudging a is not an order, * * * but a judgment, still person insane).

it is not until final judgment is entered that an “(5) From any order affecting a substantial appeal will lie.” Freeman on Judgments (3d right, made in any action when such order in ef- Ed.) § 10. fect determines the action and prevents judge | Such is the clear meaning of our statute, ment from which an appeal might be taken.

"(6) From a final order affecting a substantial and consequently the motion is well taken. right made in special proceedings or upon a The appeal is dismissed, and the cause resummary application in an action after judg- manded, for further proceedings according to ment. “(7) From an order or judgment in habeas

law. corpus cases.

ROSS, C. J., and FRANKLIN, J., concur. The orders overruling a demurrer, a plea in abatement, or a plea in bar, are not such final determinative orders as are made the

(28 Idaho, 290) subject of appeal and separate review within GOLDEN MARGUERITE SILVER & COPthe purview of the said statute. Until final! PER MINING CO., Limited, v. NATIONjudgment in the cause, the trial court retains AL COPPER MINING CO., Limited.. the power to vacate such orders upon proper (Supreme Court of Idaho. Dec. 28, 1915.) grounds appearing, and grant the relief Costs 146, 162-TAXATION-ITEMS Taxsought without appeal. Such orders may ABLE. affect the final judgment, yet they are neces

Under the statutes of this state, only such

costs as are necessarily incurred in an action or sarily intermediate orders, made in con

proceeding in the courts of this state are chargetemplation of the trial on the merits as pro-able against the losing party as costs, unless vided in paragraph 509, Civil Code Ariz. 1913, the statute clearly provides that other necesas follows:

sary disbursements may be charged up as costs

in an action or proceeding. “All issues of law arising on the pleadings, Ed. Note.-For other cases, see Costs, Cent. and all pleas in abatement and other dilatory | Dig. $$ 567-569, 572-574, 580; Dec. Dig. Om pleas remaining, and all pleas which do not go 146, 162.) to the merits of the case shall be disposed of by the court before the case is called for trial on Appeal from District Court, Shoshone the merits."

County; Wm. W. Woods, Judge. Paragraph 1230, Civil Code Ariz. 1913, pro- Action by the Golden Marguerite Silver & vides that:

| Copper Mining Company, Limited, against

u

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

the National Copper Mining Company, Limit-ity Com’rs, 16 Idaho, 32, 100 Pac. 106, 21 L. ed. From an order denying motion to tax R. A. (N. S.) 199, 133 Am. St. Rep. 89, 17 costs, defendant appeals. Reversed and re- Ann. Cas. 1226, Steensland v. Hess, 25 Idaho, manded, with directions.

181, 136. Pac. 1124, and other authorities on John P. Gray, of Cour d'Alene, and Ther- the proposition that statutes allowing costs rett Towles, of Wallace, for appellant. A. G. are penal and must be strictly construed, Kerns, of Wallace, for respondent.

and appellant also contends that costs ex

pended in the United States Land Office in SULLIVAN, C. J. This is an action support of an adverse claim under the provibrought under the provisions of section 2326, sions of said section 2326, Rev. Stats, of the Rev, Stats. of the U. S. (U. S. Comp. St. 1913, U. S., cannot be recovered in a suit in the dis$ 4623) in support of an adverse claim against trict court of this state. an application for patent to certain mining Under the provisions of section 4912, Rev. ground. The appeal is from an order of the Codes, the party in whose favor the judg. court taxing costs. The items of the memo- ment is rendered and who claims his costs randum of costs which the court allowed and must, within five days after the verdict or from which order this appeal is taken, are as notice of the decision of the court or referee, follows:

file with the clerk, and serve upon the adTo filing fees paid the land office on filing verse party or his attorney, a copy of the protest and adverse claim.

$10.00

memorandum of the items of his costs and To paid for certified copy of notice for the land office ...................

necessary disbursements in the action or proTo paid for copy of articles of incorpora

ceeding. This section of the statute, as well tion for the land office ...

2.50

as other sections, refers only to such costs To paid for abstract of title for land of

and disbursements as are occasioned in the fice ......

action or proceeding in the courts of this Total ......... ............. $18.00 state, and does not contemplate costs OccaThe judgment was in favor of the adverse sioned by proceedings in the United States claimant, and awarded the area of conflict to Land Office. the adverse claimant. After judgment was We conclude, therefore, that the court entered the adverse claimant, who is re erred in allowing the items of cost above spondent here, filed his memorandum of mentioned, since they were all incurred on costs, and taxed, among other costs, the account of proceedings in the United States above set forth items. The allowance of Land Office. said items of cost is assigned as error.

The order of the district court must there The contention of appellant is that the fore be reversed and the cause remanded, allowance of costs is a matter dependent with instructions to sustain the motion and wholly upon the statute, and where there is disallow the items of cost above mentioned no statute authorizing it, no costs can be amounting to $18. Costs are awarded to apallowed, and cites in support of that conten- | pellant. tion Cronan V. District Court, 15 Idabo, 462, 98 Pac. 614, Schmelzel v. Board of Coun-| BUDGE and MORGAN, JI., concur.

1.50

4.00

...........:

(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.)

On June 18, 1878, Alexander Leslie (father (Supreme Court of Kansas. Jan. 8, 1916.) of the judgment debtor, and grandfather of (Syllabus by the Court.)

the plaintiff in the injunction action) made

la will which, without describing any specific 1. ESTOPPEL 90_EQUITABLE ESTOPPEL

property, gave a life interest in all the estate, PUBLIC LAND-WILLS.

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

was J. F. Leslie. At the time of making the land, which was patented to the heirs, she the will both tracts referred to were govand the children supposing that title had passed ernment land, occupied by the testator with in accordance with the terms of the will, no es

a view to acquiring title under the pre-emptoppel thereby arose such as to vest an equitable title to the fee in the children, subject to a life | tion and timber culture acts. He died July interest in the mother.

2, 1878. The widow elected to take under [Ed. Note.-For other cases, see Estoppel, the will. Patents were issued on one tract Cent. Dig. 88 242–244, 248-256; Dec. Dig. Omo 90.)

in 1880, and on the other in 1890, to the

heirs of Alexander Leslie, who were his wid2. DEEDS Ow114PROPERTY CONVEYED-INTEREST OF GRANTOR - MISTAKE AS TO Ex

low and the four sons named in his will. TENT.

The will, of course, did not affect the title A grantor who, in fact, owns an undivided to the land, which by virtue of the federal one-eighth interest in a tract of land derived

law passed to the heirs as grantees of the from the government, but who supposes that he owns an undivided one-fourth interest subject

government. Byerly y. 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

tion is made regarding this proposition, but an exception as to the life estate.

Frank Leslie maintains that the conduct [Ed. Note.-- For other cases, see Deeds, Cent. of the heirs produced the same result as Dig. 88 316-322, 326-329, 388; Dec. Dig. Om

though they had entered into an effective 117.)

agreement with each other that the land 3. JUDGMENT O 782-LIENS-GIFT OF LAND.

should be held in accordance with the terms Where one, under the mistaken belief that he is the owner of an interest in a tract of land,

of the will. Oral evidence was introduced executes a warranty deed thereto as a gift to his by Frank Leslie to the effect that they all son, a title afterwards acquired by him will pass understood that each son owned an undividto the grantee only in subjection to the lien of any judgment existing against the grantor at the

ed one-fourth interest, subject to a life estime of acquiring the title.

tate in their mother, and that she enjoyed [Ed. Note.-For other cases, see Judgment, all the rents and profits until her death. Cent. Dig. 1351; Dec. Dig. Om782.)

On August 2, 1904, J. F. Leslie (his wife 1. EXECUTION 171 - SALE – INJUNCTION joining) executed to his son Frank Leslie, -OWNER OF UNDIVIDED INTEREST IN LAND.

for a recited consideration of $1 and love An owner of an undivided one-fourth interest in land. one eighth interest being subject and affection, a general warranty deed in to the payment of a judgment against his gran- which the property conveyed was thus detor, and the other eighth not, is entitled to an

scribed: injunction against the sale of more than an undivided one-eighth interest in the land under an

"Our undivided one-fourth interest in and to execution issued on such judgment.

the east one-half of section thirty (30), in town

ship twenty-two_(22) south, of range nine (9) [Ed. Note.-For_other cases, see Execution,

west of the 6th P. M., being the interest arising Cent. Dig. 88 497-518; Dec. Dig. Om 171;

under the will of Alexander Leslie, deceased, the Judgment, Cent. Dig. $8 794, 795, 813, 825.)

father of John F. Leslie.” Appeal from District Court, Reno County.

The warranty clause contained an excepAction by Frank Leslie against the Harri.

tion as to the life interest of Elizabeth Leslie. son National Bank and another. From a

The bank sued J. F. Leslie July 21, 1901. judgment for defendants, plaintiff appeals. Its indomer

| Its judgment was rendered September 16, Modified and affirmed.

1904. Elizabeth Leslie died May 17, 1913, C. M. Williams, of Hutchinson, for appel- leaving all her property in equal shares to lant. Fairchild & Lewis, of Hutchinson, for the four sons already referred to. The exappellees.

ecution levied upon the real estate in ques

tion 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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