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"Gentlemen of the jury, you are instructed | 2. Statutes 114(2)-Title to act relating to that Choctaw beer is an intoxicating liquor as the working day for public employés held defined by the laws of this state. Exception allowed. G. T. Burrows, Co. Judge."

The defendant requested the court to give an instruction to the effect that the court cannot take judicial notice that Choctaw beer is intoxicating liquor, and the burden is upon the state to prove beyond a reasonable doubt that the Choctaw beer which it is alleged that the defendant manufactured was intoxicating liquor, which instruction was refused and exception allowed.

In the case of Gill v. State, 18 Okl. Cr. 200 Pac. 882, this court said: "As a general rule, in criminal cases the burden of proof never shifts, but rests on the prosecution throughout, and before a conviction can be had the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the accusation; so in this case, where it was not such liquor as the courts judicially know to be malt and intoxicating liquor, if the state, upon the whole evidence, failed to prove that the socalled beer or liquor was intoxicating, or that it contained as much as one-half of 1 per cent. of alcohol, measured by volume, it fails to make out a case."

It follows that the court erred in giving the instruction excepted to, and in refusing to give the instruction requested.

The judgment of the lower court is therefore reversed.

STATE v. TIBBETTS et al. (No. A-4036.) (Criminal Court of Appeals of Oklahoma. March 8, 1922. On Rehearing, April 8, 1922.)

(Syllabus by the Court.)

1. Constitutional law 146 Master and servant 13, 69-Municipal corporations 590-Hours of service and wage law within police power; statute providing hours of labor in public work held not to violate federal Constitution prohibiting impairing contract; such state's "police power" not exclusively delegated to the city of Pawhuska.

It is within the police power of the state to regulate the number of hours constituting a day's work for laborers employed by or on behalf of the state or any municipality, and to provide that the compensation therefor shall not be less than current wages for like labor. as provided in section 3757, Rev. Laws 1910, and it is not in violation of section 3, article 18, of the Constitution of Oklahoma, nor of section 10, article 1, of the federal Constitution, prohibiting the impairing of the obligations of contracts.

This power is inherent in the state, and no part of this power has by general law or by special charter been exclusively delegated to the city of Pawhuska.

sufficiently broad to support object.

The title of the act is sufficiently broad and comprehensive to support the object of the act, as recited in the text, and is not in violation of section 57, art. 5, of our Constitution, providing that every act shall include but one subject, which shall be clearly stated in the title.

3. Master and servant 69-Provision In statute relating to labor employed for state held not to restrict meaning of context, the word "provided" being used as "and."

Held, that the so-called proviso in this act does not limit or restrict the meaning of the context, but rather extends or adds to its meaning, and that the word "provided" as here used is equivalent to the word "and." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Provided.]

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Appeal from County Court, Osage County; G. B. Sturgel, Judge.

E. R. Tibbetts and others were charged by an information with acting together wrongfully and unlawfully in violation of statute by refusing to pay workmen the current rate of wages for the class of work performed by them. The defendants' demurrer to the information was sustained, and the State appeals. Reversed.

S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State. Peters, Sands, Holcombe & Holden, of Pawhuska, for defendants in error.

BESSEY, J. The information filed in this case was based upon section 3757, R. L. 1910,

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

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(205 P.)

form of government, and that the general laws of the state of Oklahoma have no application to the construction of public utilities in such a city, and that the construction of the sewer in question was a municipal improvement in which the state had no interest.

(2) That the statute under which this case was brought is unconstitutional and void because it tends to impair the obligation of contracts and interferes with the freedom of contracts between individuals.

and charged, in substance, that the defend-of the first class and has a special charter ants in error, E. R. Tibbetts and Carl Pleasant, on and before the 20th day of December, 1920, were contractors and partners, doing contract work for the city of Pawhuska in laying and installing sewer extensions for that city; and that defendant Raderick MacDonald was their foreman, and assisted and aided the contractors, and was overseer and general manager of the work being done; that the current rate of wages in the city of Pawhuska, for the class of labor employed by these contractors, was $6.50 per day, but that these defendants, acting together, wrongfully and unlawfully violated section 3757, R. L. 1910, by refusing to pay their workmen and laborers the current rate of wages for the class of work performed by them, but, on the contrary, paid them at the rate of $5.60 per day. To this information the defendants filed a demurrer, which was sustained by the court and the action dismissed. From this order of the court the state saved and reserved an exception, and appeals to this court upon the question of law therein involved.

(3) That the statute is void because the title of the act is insufficiently set forth to describe its contents, as provided by the Constitution.

(4) That this prosecution was predicated upon a proviso contained in the section of the statute quoted, and that this proviso had no application to the facts set out in the information.

The demurrer interposed was a general demurrer, to the effect that the facts stated were not sufficient to constitute a public offense. The court, in stating his reasons for sustaining the demurrer, quoted the second proviso of the statute, and, among other things, made the following observations:

"It is not the legitimate office of a proviso to enlarge the amendment to which it is appended, neither does it create a new right, its clauses and cannot be held to enlarge such an act. It is argued by defendants that the entire bill is unconstitutional because the same is vague and uncertain, and, further, for the reason that it destroys the rights and takes away the liberty and freedom of citizens and confiscates their property. This contention is not well founded, the subject under consideration being the measure of a commodity, to wit, a day's labor and what constitutes the same.

[1] Section 3757, R. L. 1910, is as follows: "Eight hours shall constitute a day's work for all laborers, workmen, mechanics, prison guards, janitors of public institutions, or other persons now employed or who may hereafter be employed by or on behalf of the state, or by or on behalf of any county, city, town-office being to limit and restrain the preceding ship or other municipality, except in cases of extraordinary emergency which may arise in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life: Provided, that in all such cases the laborers, workmen, mechanics or other persons so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day's work: Provided, further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by or on behalf of the state, or any county, city, township or other municipality, and laborers, workmen, mechanics, or other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state, or with any county, city, township, or other municipality thereof, shall be deemed to be employed by or on behalf of the state, or of such county, city, township, or other municipality."

Section 3759 provides for a penalty for the violation of this law in any form, not less than $50 nor more than $500, or by imprisonment for not less than three months nor more than six months, and provides that each day such violation continues shall constitute a separate offense.

The defendants in error say that the demurrer to the information was properly sustained for the following reasons:

"In the light of the decisions referred to, I find that the section of the statutes upon which this information is founded has for its purpose, primarily, to define a labor day, or a day in labor, as measured in terms of time, and especially overtime, and does not destroy the rights of an individual citizen to contract to perform labor for that particular time, and therefore the information does not state or set forth facts sufficient to show a violation of any law."

[4] We think there is no merit in the claim that the state has no interest in regulating the wages of labor or the hours of labor affecting employment in the installation of a municipal sewer system in a city having a special charter form of government. The police power is an inherent attribute of state sovereignty, under which the state may establish wholesome and reasonable laws and regulations designed to promote the good order and general welfare of its subjects.

There is no inherent police power in municipalities to enact police regulations. Mu

(1) That the city of Pawhuska is a city | nicipalities have only such police power as

as a proper exercise of the police power of the state. Norris v. City of Lawton, 47 Okl. 216, 148 Pac. 123; Stettler v. O'Hara, 69 Or. 519, 139 Pac. 743, L. R. A. 1917C, 944, 950, Ann. Cas. 1916A, 217; State ex rel. v. Howell, 85 Wash. 281, 147 Pac. 1162; Malette v. City of Spokane, 77 Wash. 205, 214, 137 P. 496, 51 L. R. A. (N. S.) 686. 695, Ann. Cas. 1915D, 225; note, 24 L. R. A. (N. S.) 202; note, Ann. Cas. 1912A, 765; State v. Bunting, 71 Or. 259, 269, 139 Pac. 731, L. R. A. 1917C, 1162, 1166, Ann. Cas. 1916C, 1003; note, Ann. Cas. 1912D, 393; 16 R. C. L. Labor, § 48, and citations under note 18; also sections 66 and 68, Id.

is delegated to them by general laws and by regulations affecting compensation for labor, special charters. 19 R. C. L. Municipal Corporations, § 108. There is no delegation of this power, express or implied, to the city of Pawhuska in the Constitution or the general laws of this state. Section 3 of article 18 of our Constitution provides that special charters shall be consistent with and subject to the Constitution and laws of this state. The regulation of the hours of labor is a state function, designed to promote the general welfare of all the people of the state, which has not been and possibly cannot be delegated to a municipality. A municipality is a creature of the state, exercising delegated powers only, and cannot, under our Constitution, arrogate to itself governmental powers in conflict with the general laws and fixed policies of state government. Keefe v. People, 37 Colo. 317, 87 Pac. 791, 8 L. R. A. (N. S.) 131; 19 R. C. L. Municipal Corporations, § 35, 36, 39.

It is next urged that the act is unconstitutional, in that it impairs the obligation of contracts and interferes with the freedom of

contracts between individuals. In constru

ing a statute almost identical with our statute, the United States Supreme Court held in Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148, that it was within the power of a state to enforce such a regulation, and that it did not impair the obligation of contracts or interfere with any constitutional right. There is a well-considered New York case to the same effect on

this subject (Ryan v. State, 177 N. Y. 271, 69 N. E. 599). Our own court, in Byars v. State, 2 Okl. Cr. 481, 102 Pac. 804, Ann. Cas. 1912A, 765, has spoken in no uncertain terms, in an exhaustive opinion written by Presiding Judge Doyle holding that this statute is valid and in no way infringes upon the provisions of the Constitution. The fourth syllabus of this opinion is as follows:

[2] The title of this act is as follows:

"An Act prescribing the condition upon which public work shall be done in behalf of the state or its municipalities; prescribing penalties for violation thereof and declaring an emergency."

It is urged that the title of this act fails act as recited in the text. All that is reto sufficiently indicate the contents of the

quired to comply with our constitutional shall indicate, in a general way, the subject provisions on this subject is that the title and purpose of the act, and, according to this rule, this title is sufficient. City of Pond Creek v. Haskell, 21 Okl. 711, 97 Pac.. 338; Insurance Co., etc., v. Welch, 49 Okl. 620, 154 Pac. 48, Ann. Cas. 1918E, 471; State

v. Howard (Okl. Sup.) 171 Pac. 30; Okl.

City Land & Development Co. v. Hare (Okl.

Sup.) 168 Pac. 407.

[3] From the reasons recited in the court's order sustaining the demurrer, it seems that the court construed the act to mean that the current per diem wage referred only to instances where the laborer, in cases of emergency, was required to work in excess of eight hours per day. This, it seems to us, is a strained construction of its provisions, and one not warranted by any rule of statutory construction. A proviso or an excep in a statute is often used to exclude

"It is within the power of a state, as guarddian and trustee for its people and having full control of its affairs, to prescribe the condition tions upon which it will permit public work to be done on behalf of itself, its counties, cities some ground of misinterpretation of it and or other municipalities. In the exercise of is often employed, out of abundant caution, these powers, it may by statute provide that to explain the general words of the enacteight hours shall constitute a day's work for ment and to guard against a possible conall laborers employed by or on behalf of the struction that was not intended. Frequently, state or any of its municipalities, and make it and we think in this case, the word "prounlawful for any one thereafter contracting to vided" is equivalent to the word "and,” do any public work to require or permit any and extends rather than limits the meaning laborer to work longer than eight hours per of the act. The prime object of all rules day, and require such contractors to pay the current rate of daily wages." of statutory construction is to carry out the legislative intention, and it would amount to an absurdity to hold, construing this statute as a whole, that the Legislature intended to prescribe the rate of wages only for overtime work. 25 R. C. L. Statutes, §§ 222, 231.

Since these decisions were rendered the general trend of legislation and judicial decisions in the several states has been in the same direction, so that this contention is no longer an open question. The courts now almost uniformly recognize the right to regulate the hours of labor and make reasonable

DOYLE, P. J., and MATSON, J., concur.

(205 P.)

On Rehearing. PER CURIAM. It is contended on rehearing that the statute is void for uncertainty, in that the word "locality" must have in its practical application a relative and variable meaning, so indefinite that it is impossible to determine how much territory is or should be embraced by the phrase "in the locality where the work is performed."

The word "locality," considered in a common-sense way with the context and the purpose of the act, is no more difficult of construction than multitudes of other words and phrases upheld by the courts in the administration of criminal law. There are many legal terms that cannot be defined with mathematical certainty, such as "culpable negligence," "reasonable doubt," "felonious intent," and "res gestæ." These and other

terms must be construed in their common and ordinary significance, as they reasonably apply to the subject or object to which they relate. "Locality," as used here, is equivalent to "place," "near the place," "vicinity," or "neighborhood." Hart v. Atlantic Coast Line, 144 N. C. 91, 56 S. E. 559, 12 Ann. Cas. 706; Brazier v. Philadelphia, 215 Pa. 297, 64 Atl. 508, 7 Ann. Cas. 548; Babcock v. Hahn, 175 Mo. 136, 75 S. W. 93; Town of Grove v. Haskell, 24 Okl. 707, 104 Pac. 56; Landis v. Thos. Milville Gas Light Co., 72 N. J. Eq. 347, 65 Atl. 716; volume 3, Second Series, Words and Phrases, 587.

The question here presented is not similar to the one involved in the case of Street v.

Varney Elec. Co., 160 Ind. 338, 66 N. E. 895, 61 L. R. A. 154, 98 Am. St. Rep. 325, relied upon by petitioner. In the Varney Case the court said:

"The act of March 9, 1901, undertakes to fix the minimum rate of compensation to be paid to a particular and limited class of laborers employed upon any public work of the state, counties, cities, and towns, without regard to the actual value of such labor, or the rate paid by other persons, natural or artificial, for the same kind of labor in the same vicinity."

The statute here in question avoids this vice. It provides that the same wages shall be paid as are paid for like labor in that vicinity. There is nothing inherently difficult about ascertaining whether there is an established current wage for like labor in any locality. If there is no similar labor being performed in any particular locality, then the contractor is at liberty to contract as he pleases; otherwise, he must conform to the established wage scale in that locality, as

defined above.

court made no

I work done was in all respects the same as
that done for private persons, firms, or cor-
While the
porations in Kansas City, Kan.
comment concerning the
meaning of the word "locality," or concern-
ing the character of the work, we assume
that it considered both sufficiently definite
under the agreed statement of facts.

Since this is an appeal upon a question of law, by the state, and no order was made in the trial court to hold the defendants, the dismissal below became final, so that as to the petitioners no further orders can be made affecting them.

(111 Kan. 1)

BRINKERHOFF et al. v. HOME TRUST &
SAVINGS BANK et al. (No. 23046.)
(Supreme Court of Kansas. Nov. 12, 1921.
On Rehearing April 8, 1921.)

(Syllabus by the Court.)

1. Judgment 735-Only conclusive between parties as to matters substantially in issue and actually litigated.

A judgment is only conclusive between parties as to matters substantially in issue and actually litigated, and does not conclude the parties as to everything incidentally brought into the controversy or as to matters immaterial to the subject-matter in litigation.

2. Judgment 736-General accounting in former action not in issue held not conclusive.

The issues in the case in which the judgment in question was rendered examined, and it is held that the matter of a general accounting between two defendants was not in issue or determined, and an instruction in the present case that by the judgment in that case a full accounting between the parties was had was not warranted.

3. Mortgages 32(3), 297-Warranty deed to secure debt remains equitable mortgage until sufficient writing executed.

A warranty deed given to secure the payment of a debt is an equitable mortgage, and is to be regarded as no more than a mortgage until a written agreement or instrument is executed sufficient to satisfy the statute of frauds and transfer the interest of the mortgagor.

4. Frauds, statute of 99-Mortgagor's interest sufficiently transferred to mortgage where intent to transfer appears.

A brief instrument duly signed to which the deed formerly executed was attached, and of which instrument the deed was made a part, In the case of Atkin v. Kansas, decided by which together evince an intention to transfer the Supreme Court of the United States, 191 is duly delivered, is sufficient to accomplish a the mortgagor's interest in the land, and which U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148, the surrender and transfer of his interest to the court construed a statute with identical pro- mortgagee or grantee, but, if not so executed visions and sustained its validity, where it and delivered, it will not operate to convert was stipulated as part of the facts that the the mortgage into a deed or transfer of title.

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

5. Witnesses 379 (2)
by plaintiff held admissible.
Statements made by plaintiff in the trial of
other cases and elsewhere that he had sold and
conveyed the land and parted with all owner-
ship of it were inconsistent with the claims
made by him in the present action and were
properly admitted in evidence.

Inconsistent claims, tracts of land situated in Butler and Greenwood counties, and designated as the Red ranch. The plaintiffs H. L. Brinkerhoff and his wife aleged that they were owners of their uncle, A. B. Brinkerhoff, they executed the ranch in 1910, and, being indebted to a mortgage on the ranch to him to secure an indebtedness which was in form an absolute 6. Judgment 956(2)-Witnesses 71-Ex-deed. They further alleged that plaintiffs trinsic evidence as to identity of matters in- held a lien on 2,400 acres of land in Nebrasvolved admissible on question of former ad-ka, called the Neleigh ranch, and that in judication; trial judge a competent witness, March, 1912, they proposed to their uncle to but unexpressed reasons of court for decision transfer a note and mortgage and certain not admissible. collaterals on the Neleigh ranch in lieu of the lien which he held on the Red ranch; that these papers were held by the uncle for some time before acceptance, but in 1913 the uncle did accept the note and mortgage, and at that time executed a quitclaim deed to the Red ranch intended to be a release of the lien which he held on that ranch. They allege that, after the acceptance of the lien on the Neleigh ranch in satisfaction of the lien held by the uncle, the collateral notes were surrendered to the plaintiffs, and the uncle afterwards asserted and foreclosed a lien on the Neleigh ranch. It was therefore claimed

On a question of former adjudication extrinsic evidence not inconsistent with the record may be received as to the identity of the matters that were actually involved and litigated | in the former action, and the judge of the trial court is a competent witness as to such identity, but the secret and unexpressed reasons which moved him to make the decision are not

admissible.

On Rehearing.

(Additional Syllabus by Editorial Staff.) 7. Appeal and error 1066-Instruction ignoring a part of the evidence held material

error.

from them to their uncle, had been fully satisfied, and that neither A. B. Brinkerhoff, who has since died, nor the defendants, who held possession under him, have any interest in the Red ranch.

In an ejectment action, involving the ques-by the plaintiffs that the indebtedness due tion of satisfaction of mortgage by the transfer of another mortgage, where the whole case was submitted on the question of the ownership of the land in controversy, and whether plaintiffs were entitled to possession, it was necessary to instruct the jury fully on the evidence bearing on these questions, and an instruction that the only question for determination was whether a quitclaim deed was given to plaintiffs ma-curity for indebtedness and for such further terial error.

8. Mortgages 297-Cancellation of debts held sufficient consideration for mortgage transfer.

In an action in ejectment by mortgagors against mortgagee, held that, if debts were canceled by mortgage transfers as claimed, or other rights surrendered by the mortgagee, this would be sufficient consideration for a transfer otherwise valid.

In their answer the defendants stated that

the deed of January 24, 1910, was originally executed by plaintiffs to their uncle as se

advances as he might make to them, that the indebtedness was increased, and that on October 17, 1912, the nephew proposed to the uncle that he take over the Red ranch, consisting of 4,560 acres, at a valuation of $25 uncle which then amounted to approximately per acre in payment of indebtedness to the $145,000. It was averred that an agreement between them was reached by which the uncle did take the title to the ranch and gave

Appeal from District Court, Greenwood the plaintiffs a credit of $114,000 on their County.

indebtedness to him. As an evidence of this agreement and a transfer of the plaintiffs' inAction by H. L. Brinkerhoff (revived after terest in the ranch, it is alleged that plainhis death in the name of S. F. Wicker, as tiffs took the original mortgage deed, which administrator) and wife against the Home on its face was an absolute deed, and attachTrust & Savings Bank and others. Judged thereto the following instrument in writment for defendants, and plaintiffs appeal. ing: Reversed, and remanded for new trial.

J. F. Hoffman, S. F. Wicker, and Gordon A. Badger, all of Eureka, and F. S. Jackson, of Topeka, for appellants.

W. J. Gregg, of Frankfort, Blair & Lillard, of Topeka, and J. A. Fuller, of Eureka, for appellees.

JOHNSTON, C. J. This was an action of ejectment to recover possession of large

"Huntley, Ill., October 17, 1912.

"This is to certify that the attached warranty deed is given without any conditions, verbal or written, and the deed dated January 10, 1910, given as collateral, but not recorded, has been canceled and returned to us. "H. L. Brinkerhoff. "Edith Nye Brinkerhoff."

The defendants further averred that this combination instrument was executed in pur

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

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