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should be overruled. The case at bar is controlled by the decision in Parker v. Dobson, 78 Kan. 62, 96 Pac. 472, the second paragraph of the syllabus of which reads:

"If in an action before a justice of the peace upon a promissory note the amount claimed in the bill of particulars do not exceed $300, the justice, or the district court upon appeal, may adjudicate the controversy, although the interest accruing before final judgment increase the amount due to more than $300; but whatever the balance found due may be the judgment cannot exceed $300."

The plaintiff elected to accept judgment for the amount within the jurisdiction of the court. The action was to recover no more than $300, and therefore the judgment is affirmed. All the Justices concurring.

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2. SCHOOLS AND SCHOOL DISTRICTS 97ELECTIONS-BALLOTS.

The intention of voters casting certain ballots at a school district bond election ascertain

ed and declared from the words and marks on the ballots.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 224-232; Dec. Dig. 97.]

3. SCHOOLS AND SCHOOL DISTRICTS ISSUANCE OF BONDS-INJUNCTION.

111

Whether or not a taxpayer of a school district may contest an election erroneously declared to have resulted favorably to the issuing of bonds, he may invoke the remedy afforded by section 265 of the Civil Code (Gen. St. 1909, 85859) to prevent the bonds from being issued. [Ed. Note.--For other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. 111.]

4. APPEAL AND ERROR_1011-FINDING OF FACT-CONFLICTING EVIDENCE.

A finding by the trial court that a proposition to change the site of the schoolhouse duly carried at a school district election held to determine the matter approved.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 1011.]

Appeal from District Court, Shawnee County; A. W. Dana, Judge.

Action by John V. Abrahams and others against School District No. 33 and others. From a judgment for defendants, plaintiffs appeal. Reversed in part, and affirmed in

part.

A. M. Harvey and J. E. Addington, both of Topeka, for appellants. Robert Stone and Geo. T. McDermott, both of Topeka, for appellees.

BURCH, J. The action was one to enjoin the issuing of school district bonds to build a schoolhouse and to enjoin changing the site of the schoolhouse. The plaintiffs were defeated, and appeal.

It is said the proposition to issue bonds did not carry at the bond election. The canvassing board rejected three ballots in the following form:

For the Bonds. Against the Bonds.

For the Bonds. Against the Bonds. No

For the Bonds. Against the Bonds. W. E. Stuart.

[1, 2] If the first ballot be counted for and the other two be counted against the bonds, the proposition did not carry. The defendants claim the Australian ballot law applies to the conduct of school district bond elections, and they interpret the ballots according to that law. The statutes involved contain provisions indicating that the Australian ballot law governs, and that it does not govern. The general practice, of which the Legislature certainly is cognizant, has been to ignore the law. It was ignored in the present instance. Without entering upon an extended discussion of the subject, it is sufficient to say that the court is of the opinion the Australian ballot law does not apply to school district bond elections. If this were not so, the ballots used in the bond election were not in the form prescribed by the Australian ballot law, and other material features of that law were disregarded in holding the election. The question then is: What was the intention of the voters casting the ballots which the canvassing board rejected? The first ballot was cast for the bonds. The word "No" written on the second ballot is a word of opposition used with reference to the proposition to vote bonds, and the ballot should be counted against the bonds. The third ballot was also cast against the bonds. The result is the proposition to vote bonds failed to carry.

[3] It is said that the plaintiffs had a remedy by way of contest of the election. If so, the remedy was not exclusive of that afforded the plaintiffs as taxpayers by section 265 of the Civil Code (Gen. St. 1909, § 5859).

The judgment of the district court with reference to issuing bonds is reversed, and the cause is remanded, with direction to enter judgment for the plaintiffs.

[4] It is said the proposition to change the site of the schoolhouse did not carry at the election held to determine the matter. The

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

solution of this question depends upon the application of well-understood principles of law to oral testimony which was conflicting in some particulars, and which the trial court was better able to estimate. Taking the testimony as it is found in the record, however, this court concludes that the prop osition carried.

The judgment of the district court with reference to changing the schoolhouse site is affirmed. All the Justices concurring.

policy and for an attorney fee. A supplemental application by the defendant for subrogation was denied. The defendant appeals. The policy was issued to the owner of the property involved. Loss was made payable for the assured's account to the plaintiff as mortgagee under a mortgage clause attached to the policy, which reads in part as follows: "It is agreed that whenever this company shall pay the mortgagee any sum for loss under this policy and shall claim that as to the grantors in the mortgage, or owners, no liability therefor existed, it shall at once be legally subrogated to all the rights of the mortgagee under all the securities held as collateral to the debt secured

MERRIAM MORTGAGE CO. v. ST. PAUL by the mortgage, to the extent of such payFIRE & MARINE INS. CO.

(No. 19701.)

ments. Or at its option may pay to the mortgagee the whole principal due or to become due

(Supreme Court of Kansas. Feb. 12, 1916.) upon the note or bond, and mortgage securing

(Syllabus by the Court.)

1. APPEAL AND ERROR 158-RIGHT TO APPEAL-WAIVER-PAYMENT OF JUDGMENT.

One who voluntarily pays a judgment rendered against him by a district court cannot question the justice or validity of the judgment by subsequent appeal to this court.

[Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 973-975, 977; Dec. Dig. 158.]

2. ELECTION OF REMEDIES

SUBROGATION-INSURANCE.

7-ESTOPPEL

The rule that the burdens and the benefits of a contract, remedy, or course of conduct must be accepted together or renounced together applied in considering an application by an insurance company for subrogation under a mortgage clause attached to one of its nolicies, made after all liability on the policy had been denied and the mortgagee had been compelled to establish his right by litigating the matter to final judgment.

[Ed. Note. For other cases, see Election of Remedies, Cent. Dig. § 12; Dec. Dig. 7.] 3. INSURANCE 675-ACTION ON FIRE POLICY-ATTORNEY FEE-RIGHT TO ALLOW.

Under sections 4262 and 4263 of the Gen

eral Statutes of 1909, the court, in rendering judgment against a fire insurance company on a policy of insurance written in this state, is authorized to allow the plaintiff a reasonable sum as an attorney fee, although the policy relates to property situated in the state of Oklahoma.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1805, 1806; Dec. Dig. ~675,] 4. COSTS 252-APPEAL-ATTORNEY FEE. The statute referred to does not authorize this court to allow the plaintiff an attorney fee on appeal by an insurance company from a judgment rendered against it.

[Ed. Note.-For other cases, see Costs, Cent. Dig. § 961; Dec. Dig. 252.]

Appeal from District Court, Shawnee County.

Action by the Merriam Mortgage Company against the St. Paul Fire & Marine Insurance Company.. From judgment for plaintiff, defendant appeals. Affirmed.

Foulke, Matson & Wall, of Wichita, for appellant. Eugene S. Quinton, of Topeka, for appellee.

BURCH, J. The action was one to recover on a fire insurance policy. The plaintiff recovered judgment for the amount of the

the same, and shall thereupon receive a full assignment and transfer of the mortgage, without recourse, and all other securities held as collateral to the debt; but no such subrogation shall impair the right of the mortgagee to first recover the full amount of their claim."

[1] The cause was submitted on a demurrer to the petition and a stipulation covering certain facts. Judgment was rendered on February 21, 1914, which the defendant paid on April 8, 1914. The appeal was taken on August 19, 1914. The defendant assigns as error the rendition of judgment in favor of the plaintiff, and makes an extended argument against the plaintiff's right to recover. Having voluntarily paid the judgment the defendant cannot now question its justice or validity. Seaverns v. State, 76 Kan. 920, 93 Pac. 163; State v. Massa, 90 Kan. 129, 132 Pac. 1182. In the Seaverns Case previous decisions of this court discussing and applying the principle involved were collated and classified.

[2, 3] An attorney fee was allowed under sections 4262 and 4263 of the General Statutes of 1909, which read as follows:

"This act shall apply to all policies of insurance hereafter written in this state, and also to the renewals which shall hereafter be made of all policies written in this state, and the contracts made by such policies and renewals shall be construed to be contracts made under the laws of this state.

"The court in rendering judgment against any insurance company on any such policy of insurance shall allow the plaintiff a reasonable sum as an attorney's fee, to be recovered as a part of the costs."

The policy related to property situated in the state of Oklahoma, but was written in this state. Sections 4262 and 4263 of the General Statutes of 1909 are sections 3 and 4 of chapter 142 of the Laws of 1897. The act of 1897 was amendatory of chapter 102 of the Laws of 1893, entitled "An act defining the liability of fire insurance companies in certain cases." Section 1 of this act provided that the amount of insurance written in a policy covering real property in this state should be taken as the true value of the property if totally destroyed and the true amount of the loss. Section 2 made the act apply to all policies of insurance written up

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

Cent. Dig. §§ 146, 173, 174; Dec. Dig.
[Ed. Note.-For other cases, see Statutes,
121; Taxation, Dec. Dig. 44.]

on real property in this state. Section 3 pro- | substantial basis or not germane to the purposvided for attorney fees. The act of 1897 es of the act. continued the original valued policy provision, added a new subject, amended section 2 to apply not merely to policies written on real property in this state, but to all fire insurance policies written in this state, and continued the provision relating to attorney Railway Company against the Board of fees. The result is the policy under consid-County Commissioners of the County of Coweration is governed by the statute, and it is not

material that the laws of Oklahoma do not provide for the allowance of attorney fees in actions on insurance policies.

The application for subrogation was made under the first part of the mortgage clause quoted above. The court authorized an assignment of the securities held by the plaintiff on full payment within a stated time of the balance due on the plaintiff's note and mortgage, under the latter part of the mortgage clause. The defendant declined to comply with the court's order, and stands on its right to pro tanto subrogation. Instead of recognizing the obligation of the contract to pay the loss to the mortgagee, liability to the mortgagor being denied, the defendant repudiated that obligation and with the obligation repudiated the reciprocal contract right to pro tanto subrogation. Having compelled the plaintiff to resort to litigation and to establish liability under the policy by final judgment, the defendant cannot now reverse its attitude and demand that the amount of the judgment be taken out of the plaintiff's security. The controlling principle is that of election. The burdens and the benefits of a contract, remedy, or course of conduct must be accepted together or must be renounced together. Decisions applying to principle are collated in the opinion in the case of Ullrich v. Bigger, 81 Kan. 756, 106 Pac. 1073.

Appeal from District Court, Cowley County.
Action by the Atchison, Topeka & Santa Fé

ley and others. From judgment for defendants, plaintiff appeals. Affirmed.

W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellant. J. A. McDermott, of Winfield, for appellees.

JOHNSTON, C. J. This was an action to recover taxes paid under protest by the railway company which it alleges exceeded the amount the company was legally bound to pay. The facts relating to valuations, the levies made, the total amount paid, and the amount paid under protest were included in an agreed statement of facts, and upon these facts the trial court decided that the taxes were legal obligations of the company.

In levying a tax upon property for 1908 it was provided by the Legislature, in effect, that the board of county commissioners could not impose a tax that would produce a sum of money in excess of 2 per cent. more than would have been produced by the levy of the maximum rate on the assessed valuation of the property for the year 1907. Laws Sp. Sess. 1908, c. 78, § 1. The levy authorized by that act being founded on the assessment made in 1907, it becomes important to examine the act under which the levy was made in 1907. It was competent for the Legislature to provide that the taxing officers should use the valuation of 1907 and the maximum levy authorized at that time as the basis of the assessment in 1908. Rail[4] An application is made for the allow-way Co. v. Harper County, 88 Kan. 651, 129 ance of an additional attorney fee to the plaintiff on account of the defendant's appeal. This court does not render judgment on the policy of insurance.

Pac. 1165.

It is contended, however, that the act of 1907 is itself invalid and afforded no legal basis for the levy of 1908. The contention is

The judgment of the district court is af- that the classification in the act is arbitrary firmed. All the Justices concurring.

ATCHISON, T. & S. F. RY. CO. v. BOARD
OF COM'RS OF COWLEY COUNTY
et al. (No. 18803.)

and unreasonable, giving it a special effect which renders it unconstitutional. It provides:

"The board of county commissioners of any county shall not levy upon the taxable property of such county a tax for current expenses of said county of any one year in excess of the following amounts: Upon a valuation of five

(Supreme Court of Kansas. Feb. 12, 1916.) million dollars and under, one per cent.; over

(Syllabus by the Court.)

STATUTES 121

TAXATION 44

TAX

LEVY-COUNTY EXPENSES-CLASSIFICATION
-VALIDITY OF STATUTE.

Chapter 409 of the Laws of 1907, which provides for the levy of taxes for the current expenses of the different counties of the state and classifies them according to the valuations of taxable property therein, and creating a class of counties in which the population is great and the valuations of taxable property are small, cannot be held to be invalid on the grounds that the classifications are unreasonable, without a

five millions and under six millions, eight and one-half mills; over six millions and under seven millions, seven and one-half mills; over seven millions and under eight millions, six and one-half mills; over eight millions and under nine millions, five and three-fourths mills; over nine millions, one-half of one per cent.: Provided, that in counties having a population of thirty thousand or more the board of county commissioners is authorized and empowered to levy one and one-half per cent. upon the valuation when the same is seven million dollars or under: Provided further, that the electors of any county in the state, by a direct vote, may

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

order an increase of such levies." Laws 1907, tion low, it devolves upon the Legislature c. 409, § 1.

to determine where the limitation shall be If this act and that of 1908 are invalid, placed, and, if not obviously unreasonable, it would follow that the act of 1885, which their determination will be valid. In such the act of 1907 purported to repeal, would a case the limitation must be placed somebe in force and if still in force, would au- where, and it belongs to the Legislature to thorize a larger levy than the one actually decide what the necessities of the municipalmade under the law of 1907. But is the act ities are and to fix the line where the limiof 1907 invalid? Is the classification so ar- tation shall be placed. A limitation based bitrary, capricious, and unreasonable as to on a particular number or amount is artificonflict with the Constitution? It will be cial to some extent, but it has to be fixed, observed that the classification is founded on and the lawmakers are the ones to decide valuations, and these have long been recog- what classification is the most judicious and nized as a proper basis of classification in the most appropriate, and where the line of legislation providing for taxation and the division between the classes shall be fixed. expenses of municipal government. Under Such limitations are found in the Constituthe provisions the rates decrease as the val- tion itself, and, although in a sense arbitrary, uation ascends, but it is provided that, when it was deemed necessary and reasonable to the population exceeds 30,000, and the valua- make the particular limitations that were tion is less than $7,000,000, an increased made. For instance, it is ordained that a rate may be levied. It is insisted that this county shall be entitled to a representative feature of the law renders the act inopera- in the Legislature, in which 250 legal votes tive. A classification on the basis of popula- were cast at the next preceding general election and on valuations is frequently made, tion, and yet it may not readily appear why and is sustained where it is based upon sub- it was fixed at that number, rather than at stantial distinctions which are reasonably 10 more or less than the limit fixed. In progermane and pertinent to the subject-mat-viding a scheme of taxation the Constitution ter. Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781. If there is an essential difference between counties having a large population and a low valuation, and those counties where the population is more nearly in proportion with the valuation, then it may be said that there is a reasonable basis for the classification. It is not easy to find an absolutely just basis for taxation, but it is generally recognized that equality of taxation can only be attained by classification. Is there a substantial distinction for the classification that has been made for counties which have a great number of people and a small valuation of taxable property? It appears that Cowley county had a population of about 34,000, and that the assessed valuation of the property was less than $7,000,000. It is well known that the salaries of officers increase as the population of a county increases, and also that other expenses of government are augmented as the county be comes more populous. This condition then appears to afford a reasonable basis for a classification so that counties of that class may be able to meet the general expenses under the prescribed rates.

It is said that the fixing of the limitation of population at 30,000 and the valuation at $7,000,000 is arbitrary, and that there is little reason for a different rate in counties where the population is 30,000, instead of 29,000, or the valuation a little less than $7,000,000, instead of a little more. It may be that there is little difference where the population is a few more or less than the number fixed, or a little more or less in the valuation than that prescribed by the act; but, if there is a real basis for a distinction

requires that each family shall be entitled to an exemption on its personal property to at least the amount of $200. The wisdom of placing it at exactly $200 instead of $250 or $300 may not be readily apparent, but a limit had to be fixed, and the wisdom of fixing the limits was vested in the makers of the Constitution. In legislation where there is an essential difference and a real basis for the classification which is made, the mere fact that the line dividing the classes is placed at one point rather than another will not impair the validity of the classification. It is the function of the Legislature to adopt the classification, and within the limits of the Constitution, it may place the line of division between them at the point which it decides is most suitable and will bring the best results. The function of the court is not to decide whether the classification is the wisest or the best that could be made,. but only to inquire whether it rests on a substantial basis, and is germane to the purposes of the law. The court can go no farther than to decide whether the Legislature has kept within the limits of the Constitution.

In our view the classification herein appears to be germane to the subject-matter of the law and to be based on substantial distinctions. The law applies to all within the classes established, and appears substantially to cover the entire ground of classification. In that respect it differs from the cited case of Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885, which excluded a number of municipalities from the classes created, and made classes for which no rational theory or basis could be found.

tion at over $7,000,000 and under $8,000,000, and made no provision for cases where the valuation is exactly $7,000,000 or $8,000,000 is not substantial.

The judgment of the district court is affirmed. All the Justices concurring.

W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellant. M. A. Gorrill and Henry H. Asher, both of Lawrence, for appellees.

WEST, J. November 4, 1913, the plaintiffs delivered to the defendant at Kansas City two carloads of cattle to be transported to Woodward, Okl., and paid the freight there

BROADHEAD et al. v. ATCHISON, T. & S. on. The shipment was permitted to stand on

F. RY. CO. (No. 19887.)

(Supreme Court of Kansas. Feb. 12, 1916.)

(Syllabus by the Court.)

1. EVIDENCE 448-PAROL-UNAMBIGUOUS

TELEGRAM-QUARANTINE.

the side tracks at Argentine about four hours after the cattle were loaded, and when reaching Waynoka, Okl., there was not sufficient time remaining to reach the point of destination without violating the federal 28hour act, and the cattle were unloaded in the In an action for damages to a shipment of yards there. It developed that these yards cattle caused by a delay in starting after they were loaded and by unloading in transit in yards had, by an officer of the Bureau of Animal which had been ordered quarantined by the Bu- Industry, been ordered quarantined, and the reau of Animal Industry, so that such cattle cattle were held therein until the 13th of had to be kept there several days and disinfect-November, and in the meantime were dised, evidence was offered for the purpose of showing that the following telegram: A., T. & S. infected under the order of the Bureau of F. yards Waynoka infected scabies account El- Animal Industry, and as a result thereof wood cattle. Quarantine until disinfected. Bu- were damaged. To recover for this damage reau Supervision. [Signed] Allan"-required only the quarantining of certain portions of such the plaintiffs brought this action, alleging yards in which infected cattle had been recent- negligence in the delay at Argentine and in ly handled, which evidence was rejected. Held, unloading into infected yards at Waynoka; that such ruling was proper. that the defendant knew and was fully advised that these yards had been on the 5th day of November, 1913, quarantined by an inspector in charge of the Bureau of Animal Industry on account of being infected with

[Ed. Note.-For other cases. see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. 448.]

2. CARRIERS

218-SHIPMENT OF LIVE STOCK

scabies.

un

-NOTICE OF INJURY. The shipping contract provided that written notice of a claim for damages should be giv- [1] The cattle were unloaded at Waynoka en to some officer of the company or to the near- at 12:50 p. m., November 6th, The yards est station agent before the stock should be re- at Waynoka comprise 42 pens, most of them moved from the destination or place of delivery and before it had been slaughtered or intermin- 30 by 54 feet, 3 loading chutes, and 1 ungled with other stock. The cattle were kept at loading platform. October 31st a shipment the quarantined yards seven days and there dip-of cattle from Abernathy, Tex., was ped by the servants of the defendant under the loaded in the Waynoka yards through the supervision of the Bureau of Animal Industry. No claim was made for damages caused after north chute into pen No. 42 at the northeast the shipment left the yards. Held, under such corner of the yards. On November 3d some circumstances written notice was not required cattle from Kenna, N. M., were unloaded as to damages then apparent, but in order to recover for damages so caused, but thereafter de- and placed in pens Nos. 5 and 6 on the west veloping, notice was required, unless waived. side of the yards and near the central por[Ed. Note.-For other cases, see Carriers, tion thereof. These were reloaded through Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. the south and center loading chutes. On Dig. 218.] November 5th the station agent received a telegram from Inspector Allan of the Bureau of Animal Industry at Ft. Worth, reading as follows:

3. TRIAL 350-SHIPMENT OF CATTLE-SPECIAL QUESTIONS-REFUSAL.

The allegations, proof, and instructions involved two grounds of damage, delay at Argentine and the treatment received at Waynoka. The defendant requested that the jury be required to state, if they found the defendant negligent, in what respect or respects they considered it negligent, which request was refused. Held error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. West, J., dissenting.

350.]

Appeal from District Court, Douglas County.

Action by Ross B. Broadhead and another against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

"A., T. & S. F. yards Waynoka infected scabies account Elwood cattle. Quarantine until disinfected. Bureau Supervision. "[Signed] Allan."

November 3d a notice was served upon the railway company, Kansas City, Mo., to"clean and disinfect car 52461 A., T. & S. F.; Until scabby cattle from Abernathy, Texas. chutes and pens through which these cattle were handled are cleaned and disinfected all cattle handled through them will be classed as cattle exposed to scabies. Walter A. Smith, Veterinary Inspector, B. A. I. Unloaded Waynoka, October 31, 1912."

From all of which it appears that when the plaintiff's cattle arrived at Waynoka on November 6th the defendant had notice that

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

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