and had a telephone in her residence; that | power to discriminate, and, while offering she paid to the telephone company its regu- (themselves as) ready to serve some, refuse lar charges for her telephone for every month to serve others. The law requires them to since she first had the telephone, and that be impartial and to serve all alike, upon comshe paid the charges for March, April, and pliance with their reasonable rules and reguMay, 1908; that the defendant, claiming that lations." she was indebted to it in the sum of $4 for services rendered in some month in the past, and she claiming that she had paid it and refusing to pay it again, discontinued her telephone service on the 30th day of March, 1903, in the afternoon, until May 8, 1908, about 2 o'clock in the afternoon, when it was resumed, and during all that time her neighbors were furnished with telephone service. Other evidence was adduced by both parties. The court instructed the jury trying the issues in the case to return a verdict in favor of the defendant, which they did, and judgment was rendered accordingly, and plaintiff appealed.

The telephone company in devoting its property to a use in which the public has an interest becomes a public servant, and is bound to serve the public impartially. It is like common carriers, in that it is bound to serve those applying to it impartially and upon equal terms.

In State v. Nebraska Telephone Co., 17

Neb. 126, 22 N. W. 237, 52 Am. Rep. 404, the court said: "That the telephone by the ne

Section 7948 of Kirby's Digest provides: "Every telephone company doing business in this state and engaged in a general telephone business shall supply all applicants for telephone connection and facilities without discrimination or partiality; provided, such applicants comply or offer to comply with the reasonable regulations of the company, and no such company shall impose any condition or restriction upon any such applicant that is not imposed impartially upon all persons or companies in like situation; nor shall such company discriminate against any individual or company engaged in lawful business, by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant, or otherwise, under penalty of one hundred dollars for each day such company continues such discrimination, and refuses such facilities after compliance or offer to comply with the reasonable regulations and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.”

It cannot re

cessities of commerce and public use has be- ant, cannot refuse to serve any one of the A telephone company, being a public servcome a public servant, a factor in the commerce of the nation, and of a great part of public in that capacity in which it has underthe civilized world, cannot be questioned. It taken to serve the public when such one ofis to all intents and purposes a part of the fers to pay its rates and comply with its reatelegraphic system of the country, and, in sonable rules and regulations. so far as it has been introduced for public fuse to serve him until he pays a debt conuse and has been undertaken by the respond- tracted for services rendered in the past. ent, so far should the respondent be held to For the present services it has a right to dethe same obligation as the telegraph and oth-mand no more than the rate of charge fixed It has assumed the re- for such services. er public servants. sponsibilities of a common carrier of news. Its wires and poles line our public streets and thoroughfares. It has, and must be held to have, taken its place by the side of the telegraph as such common carrier."

ment.

In Chesapeake, etc., Telephone Co. v. Baltimore, etc., Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167, it is said: "The appellant (the telephone company) is in the exercise of a public employment, and has assumed the duty of serving the public while in that employThe telegraph and telephone are important instruments of commerce, and their services as such have become indispensable to the commercial and business public. They are public vehicles of intelligence, and they who own and control them can no more refuse to perform impartially the functions that they have assumed to discharge than a railroad company, as a common carrier can rightfully refuse to perform its duty to the public. They may make and establish all reasonable and proper rules and regulations for the government of their offices and

It transcended its duty State to the public when it demanded more. V. Citizens' Telephone Co., 61 S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870; Nebraska Telephone Case, 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404; State ex rel. Payne V. Kinloch Telephone Co., 93 Mo. App. 349, 67 S. W. 684; Jones on Telegraph and Telephone Companies, § 251, and cases cited.

A tender or payment to the telephone company of its rate or charge for service or rent of telephone for any particular time and offer to comply with its reasonable rules and regulations would entitle the applicant to such service or rent. Should the telephone company incur a penalty by refusing to rent or render such service, it could prevent the increase thereof by renting or offering to rent the telephone, or rendering, or offering to render, the applicant such service.

The evidence adduced by the plaintiff was sufficient to entitle her to a submission of the issues in the case to the jury for a verdict. The court erred in instructing the jury to return a verdict for the defendant.

MCCULLOCH, C. J. Petitioner brings up

Taylor & Jones and Hunt & Toney, for appellant. White & Alexander, for appellees.

of Lula Beasely and father of Bertha Beasey, was a member of a subordinate lodge of the United Brothers of Friendship and Sisters of Mysterious Ten, called Pine Bluff Lodge No. 1. This order was a chartered

BATTLE, J. Willis Beasely, the husband

mutual aid association, and issued to a member when he joined a certificate, in which it agreed to pay, upon the death of such member, to any person named as beneficiary in the certificate the sum of $225 in accordance

with the laws of the order.

by certiorari for review a judgment by the circuit court of Sebastian county, Ft. Smith district, adjudging him and another person to be in contempt of the court, "on account of language and conduct in open court," and imposing a fine of $10 as punishment for the contempt. The above-quoted statement of the case is taken from the judgment of the court, and it is all which tends to describe the alleged contemptuous conduct. It is insisted that the judgment is void because it fails to set forth the particular language or to describe the conduct adjudged to be contemptuous. The court should have stated in its judgment the facts constituting the contempt, but the absence of such statement does not render the judgment void. Ex parte Davies, 73 Ark. 358, 84 S. W. 633; Ex parte Summers, 27 N. C. 149. Petitioner should have asked the court to recite the facts in the judgment; and, in the event of refusal, the facts could have been brought into the record by bill of exceptions. Having failed to do that, he has left nothing to be said in support of his attack on the validity of the judgment. The prayer of the petition is therefore de- Proof of his death was made to the Pine nied, and the judgment is affirmed.

BEASELY v. MUTUAL AID ASS'N et al. (Supreme Court of Arkansas. April 18, 1910.) 1. EVIDENCE (§ 389*) -PAROL EVIDENCEBENEFICIAL INSURANCE CONTRADICTING BOOKS-STATUTORY PROVISIONS. Under Kirby's Dig. § 944, relating to corporations for benevolent purposes, and making it the duty of the clerk or secretary of such corporation to record its proceedings in a book, which shall be open to the inspection of members, members impliedly agree that such records fairly kept and complete shall be the exclusive evidence of their proceedings, and hence, in an action on a beneficial association certificate, parol evidence that a deceased member had not in open lodge meeting asked for a change of beneficiary as shown by the record, but only for sick benefits, was inadmissible; the records not being attacked for fraud.

After Willis Beasely became a member of the association, it issued to him such a certificate, in which his wife, Lula Beasely, was named a beneficiary. Under the by-laws of the order any member in open lodge may by asking change the name of the beneficiary in the certificate issued to him. On the 17th day of August, 1908, Willis Beasely in open lodge caused the name of the beneficiary in his certificate to be changed from Lula Beasely to Bertha Beasely. On the 10th day of November, 1908, Willis Beasely, while he was in good standing with the subordinate lodge and the association, departed this life.

Bluff Lodge and the association. Lula Beasely then demanded the $225 of the association, but it refused to pay. Mrs. Beasely then brought an action against the mutual aid association, United Brothers of Friendship and Sisters of Mysterious Ten. The defendant answered, and, among other things, stated that since the death of the deceased Bertha Beasely had presented a claim for the sum named in the certificate, claiming it as beneficiary, that the money was due, and it was willing to pay it to whom it belonged, and asked that Bertha Beasely be made a party to the action, that it be permitted to pay the money into court, and that Bertha be required to appear within a reasonable time and maintain or relinquish her claim to the same.

Bertha was made a party and required to appear in court within 20 days, and maintain or relinquish her claim to the fund, which the defendant was ordered to pay into court. Bertha Beasely then appeared and answer

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1717, 1718; Dec. Dig. § 389.*] 2. INSURANCE (§ 780*)-BENEFICIAL ASSOCIATIONS CHANGE OF BENEFICIARY-LEGALITY. Where the by-laws of a beneficial associa-ed, stating that the association executed and tion expressly authorized a change of beneficiaries, a change made in accordance with such by-laws, which formed part of the contract evidenced by the certificate, was valid.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1946; Dec. Dig. § 780.*]

delivered its certain certificate of insurance upon the life of Willis Beasely, and named her as the beneficiary therein, and thereby promised to pay to her the sum of $225 upon the death of Willis Beasely, which occurred

Appeal from Circuit Court, Jefferson Coun- on the 10th day of November, 1908; that ty; Antonio B. Grace, Judge.

Action by Lula Beasely against the Mutual Aid Association and others. From the judgment, plaintiff appeals. Affirmed.

proof of his death had been made and filed with the defendant in the mode and manner prescribed by the order; that the certificate in which Lula Beasely was named beneficiary

of the premium." The notes were dated ment in money and to accept the promissory October 10, 1908, and were due, respectively, note of the applicant or of a third party in on the 16th day of November and December, lieu thereof, or to undertake to make the 1908, and January 16, 1909. In the notes it payment to the company himself; and, when was stated that they were given "for pre- the cash payment is actually waived in eimium on my insurance applied for," and, if ther of these modes, the contract binds the not paid at maturity, the contract for insur- company notwithstanding the recital in the ance shall be null and void so long as the policy that it is not binding until the first notes or any part of same remained due and premium is paid in cash." Even if it had unpaid. The policy was issued to and in- been shown in this case that the policy consured Mrs. E. M. Stancell; and it does not tained a provision avoiding it on the failure appear from the testimony that there was to pay the premium or the notes given thereany provision in the policy that same should for, the agent waived such provision by acbe avoided by the failure to pay the notes, cepting as actual payment of the premium nor that the plaintiff was in any way a party the notes of A. C. Stancell. This agent was to said notes. At the time of the execution authorized to make contracts of insurance of said notes and continuously to the time and to issue policies by countersigning and of the trial of the case A. C. Stancell was delivering same, and to collect the premiums. perfectly solvent, but the plaintiff was not. The general power thus given him also gave The notes were forwarded by the agent to him authority to accept the notes of anoththe defendant, and, when the first note be- er in full payment of the premium, if it was came due, it notified A. C. Stancell by mail done in good faith. This action by the agent of its maturity, and asked that payment be bound the company. Mutual Life Ins. Co. sent to it at its home office at McAlester, v. Abbey, 76 Ark. 328, 88 S. W. 950; German Okl., at which place the notes stated that American Ins. Co. v. Humphrey, 62 Ark. 348, they were payable. Thereupon A. C. Stan- 35 S. W. 428, 54 Am. St. Rep. 297; Phoenix cell wrote to defendant that it was his un- Ins. Co. v. Pub. Parks Amusement Co., 63 derstanding that the notes were to be paid Ark. 187, 37 S. W. 959; Brooklyn Life Ins. to the agent at Heber, and that he did not Co. v. Miller, 12 Wall. 285, 20 L. Ed. 398; care to send payment to the home office, and 16 Am. & Eng. Ency. Law, 858. that, if defendant would not send the notes to its agent at Heber to be there paid, it could cancel the policy. Thereupon the defendant sent said first note to its agent at Heber with direction to collect, which he did. The defendant did not send the other two notes to its agent, and on this account they were not paid at the time of the loss which occurred on April 29, 1909.

It is claimed by plaintiff that the premium for the policy was paid when the defendant's agent took and accepted the notes of a solvent third party in payment of such premium. And, under the testimony adduced in this case, we think this position is correct. The payment of the premium is ordinarily a condition necessary to the operation of a policy of insurance, and usually a provision to that effect is made in the policy. But a valid payment of the premium may be made by property or note, or the obligation of another as well as by money; and, if something other is accepted in lieu of money, the sole question to be determined is whether or not the same was accepted as actual payment of the premium. Certainly the company could make such agreement for the payment of the premium, and we think its agent had such authority under the evidence in this case. In the case of American Employers', etc., Ins. Co. v. Fordyce, 62 Ark. 562, 36 S. W. 1051, 54 Am. St. Rep. 305, this court quotes with approval the following from Miss. Valley Ins. Co. v. Neyland, 9 Bush (Ky.) 430: "A general agent of an insurance company whose business it is to solicit applications for insurance and receive first premiums has the

The agent testified that A. C. Stancell was perfectly solvent, and that he accepted his notes in actual payment of the premium of the policy. This then became a payment of such premium, and the policy could not thereafter be avoided because the notes were not paid. The stipulations in the notes that "my insurance" should be null and void as long as the notes remained past due and unpaid would not have that effect. The notes were executed by A. C. Stancell and the contract therein was only his contract. It was not the contract of the plaintiff. It is not shown that the policy which was the only contract into which she entered contained any provision avoiding it upon the nonpayment of these notes. The provision to that effect in the notes of a third party were therefore nugatory. 2 May on Insurance, §§ 345, 345e; Dwelling House Ins. Co. v. Hardie, 37 Kan. 674, 16 Pac. 92; Union Central Life Ins. Co. v. Taggart, 55 Minn. 95, 56 N. W. 579, 43 Am. St. Rep. 474; 16 Am. & Eng. Ency. Law, 865.

Furthermore, we are of opinion that the defendant waived its right, if it had any, to declare a forfeiture of the policy by reason of a failure to pay the notes under the circumstances of this case. When the first note matured, the maker of the three notes wrote to defendant that he understood that the notes were to be sent to its agent Burt at Heber, to be collected by said agent at said place; and, in effect, asking that the notes should be sent to the agent at Heber to be by him presented for payment and collected. The defendant, in effect, by its conduct

So much of the judgment as allows recov

versed and the cause of action as to those items is dismissed. In all other respects the judgment is affirmed.

BATTLE and HART, JJ., dissent.

FIRST NAT. BANK OF WALDRON v.
WHISENHUNT et al.

agreement sent the first note to its agent at Heber for presentation for payment and col-ery for damages and attorney's fees is relection, and it was promptly paid. By this conduct it led the maker of the notes to believe that it would send the other notes to the same place before payment thereof would be demanded or expected, and before any forfeiture of the policy would be insisted on. This it failed to do, and thereby it misled the maker. Refusal of payment of the notes was never made; on the contrary, the testimony shows that they would have been promptly paid at maturity if they had been pre sented at Heber as the maker had a right to expect would be done on account of the actions and conduct of defendant. "Forfeitures are so odious in law that they will be enforced only where it is by the clearest evidence shown that such was the intention of the parties. If the practice and conduct of the company and its course of dealing leads the insured to believe that by conforming to that course no forfeiture will be insisted on, the company will not be allowed to set up such forfeiture against one in whom their conduct has induced such belief." 2 May on Ins. § 361.

The circuit court rendered a judgment in favor of the plaintiff for the amount of the loss and also for 12 per cent. damages upon the amount of such loss and attorney's fees. These amounts for damages and attorney's fees were allowed under the provisions of the act of the General Assembly approved March 29, 1905 (Acts 1905, p. 307). But the provisions of that act only apply in cases where the loss occurs and a fire, life, health, or accident insurance company is liable therefor. It does not provide for the allowance of such damages and attorney's fees in case where the loss is caused by a cyclone, and a cyclone insurance company is liable therefor. The act is highly penal, and it should not be held to apply to any loss or company that is not therein expressly named. It therefore should not be held to apply to cases where the loss is caused by cyclone and a cyclone insurance company is liable there for.

It is urged by counsel for plaintiff that the court did not err in making these allowances, because in the agreed statement of facts it was provided that, if no defense was made to the suit, the recovery would be had for certain named amounts for the loss, damages, and attorney's fees. But we think that the parties intended by said agreed statement of facts only to provide the amount that should be recovered on each item sued for in the event that the court should determine that the plaintiff was under the law entitled to recover such items.

We are therefore of the opinion that the court erred in allowing the amounts of said damages and attorney's fees, but that in all other respects the judgment is correct.

(Supreme Court of Arkansas. April 25, 1910.) 1. SCHOOLS AND SCHOOL DISTRICTS (§ 21*)NATURE OF DISTRICT-"QUASI PUBLIC CORPORATION."

A school district is a body corporate by statute, and is a "quasi public corporation. which can exercise only those powers expressly conferred upon it or arising by necessary implication.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 39, 40; Dec. Dig. § 21.*

For other definitions, see Words and Phrases, vol. 7, p. 5886; vol. 8, p. 7777.] 2. SCHOOLS AND SCHOOL DISTRICTS (§ 82*)— CONTRACT-VALIDITY.

Since a school district has only those powers expressly or by necessary implication granted it by statute, a contract made by school directors beyond the powers conferred upon them is void.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 197; Dec. Dig. § 82.*]

3. SCHOOLS AND SCHOOL DISTRICTS (§ 79*)— OFFICERS-CONTRACTS-POWERS.

All persons who contract with school officers are presumed to know the extent of their powers.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 188; Dec. Dig. $ 79.*]

4. SCHOOLS AND SCHOOL DISTRICTS (§ 80*)— CONTRACTS-VALIDITY-CONTRACTS IN VIOLATION OF STATUTE.

Under Kirby's Dig. § 7620, providing that the directors of a school may annually expend the purchase of the maps to be approved by not more than $25 for maps, etc., and requiring the state superintendent as to price and merit, and to be authorized by the majority of the electors of the district, directors have no power to purchase maps until authorized to do so by popular vote, and a contract not so authorized is void.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 192-194; Dec. Dig. § 80.*]

5. SCHOOLS AND SCHOOL DISTRICTS (§ 95*)— WARRANTS-ACTIONS-BURDEN OF PROOF.

Since directors of a school district, have no authority to contract for the purchase of maps unless the purchase was authorized by popular vote, in an action on warrants given show that the contracts were so authorized. for maps, the burden was upon plaintiff to

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 222; Dec. Dig. § 95.*]

6. SCHOOLS AND SCHOOL DISTRICTS (§ 82*)CONTRACTS UNAUTHORIZED CONTRACTS RATIFICATION.

Where a contract by a school district for the purchase of maps was void because not au

not in violation of the anti-trust law of 1905 and inventions; to install the same; and to do (Acts 1905, p. 1), prohibiting combinations among competitors.

[Ed. Note.-For other cases, see Monopolies, Dec. Dig. § 13.*] 15. CONTRACTS

TRACTS.

(§ 137*) - DIVISIBLE CON

The contract was divisible, and the provision as to the right to fix the price of gas, if invalid as in restraint of trade, could be disregarded, and the balance of the contract given effect.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 701-712; Dec. Dig. § 137.*] 16. MUNICIPAL CORPORATIONS (8 697*)-USE OF STREET-INJUNCTION-SUIT BY PRIVATE PERSON.

Where the act of one in laying pipes in the streets of a city to supply natural gas to the inhabitants thereof was a breach of his contract with another having, under the contract, an exclusive right to supply natural gas, the latter suffered special injury not shared in by the inhabitants of the city, and could sue in equity to enjoin the laying of the pipes.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 697.*]

17. INJUNCTION (§ 61*) - BREACH OF CON

all things incident to or connected with any of the aforesaid purposes which might further and aid the purposes and objects aforesaid." In pursuance of those powers, the Ft. Smith Light & Traction Company was maintaining and operating an electric light and power plant in Ft. Smith; also an artificial gas plant and a system of mains and pipes for its distribution. On December 23, 1904, Kelley and the Mansfield Gas Company, appellees, entered into a contract with the Ft. Smith Light & Traction Company, appellant, "for the purpose," as the contract declares, "of selling natural gas to consumers in the city of Fort Smith, Arkansas, under the franchises granted in ordinance No. 634."

This contract provides, among other things, that "in consideration of the terms, conditions and agreements" set forth, the appellees are to supply natural gas to appellant "for and during the period of forty nine years," within the corporate limits of the city of Ft. Smith and its suburbs, "to be sold and disposed of" by appellant in the territory mentioned. It further provides that appellant "shall have the exclusive right to sell and dispose of said natural gas and to distribute the same within the limits aforesaid.” The contract provides that appellant "shall use its system of mains and pipes in said city and the pipes of 'appellees' already laid in said city," and that appellees at their own

[Ed. Note. For other cases, see Injunction, expense should make such additions to their Dec. Dig. 59.*]

Hart and Frauenthal, JJ., dissenting.

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor.

Suit by the Ft. Smith Light & Traction Company against Harry E. Kelley and another, in which defendants filed a cross-complaint. From a decree dismissing the complaint and cross-complaint, both sides appeal. Reversed, with directions to grant the relief prayed for in the complaint, and dismissing the cross-complaint for want of equity.

mains and pipes in the city of Ft. Smith and suburbs as the demand for natural gas should warrant. The contract gave to appellees the power to control the prices of natural gas to the consumers, for all purposes except for illumination. For the latter purpose, the appellant had the right to fix the rate at $1 per thousand cubic feet. Under the contract appellant agreed to pay appellees for the natural gas, from the 1st day of January, 1905, to the 1st day of April, 1905, 25 per cent. of the gross earnings from the sale of it, as determined by meters, and, from the 1st day of April, 1905, to the expiration of the contract, 75 per cent. of the gross earnings, less 10 per cent. allowed appellant under certain conditions. Appellant was also to pay, in nine monthly installments, beginning April 1, 1905, a sum equal to 50 per cent. of the gross earnings (less 10 per cent. under certain conditions), from January 1, to April 1, 1905. "The gross earnings over and above the payments above stipulated" were to be retained by appellant as its compensation.

On the 21st day of December, 1903, the city of Ft. Smith, by ordinance No. 634, granted to Harry E. Kelley and "assigns" a franchise to furnish natural gas to the inhabitants of the city for a period of 50 years. The Mansfield Gas Company, a corporation, owned natural gas wells in the vicinity of Ft. Smith and a plant or system of mains and pipes for operating same in the city. Kelley owned 95 per cent. of its stock. The Ft. Smith Light & Traction Company, a corporation, had the power under its charter to "generate, produce There was a provision in the contract by and furnish gas and electricity for lighting, which appellant was to purchase of appellees heating, power and domestic uses," and "to the "distribution system" of the latter at the furnish same to public or private consumers" actual cost of installing same. Appellant was in the city of Ft. Smith and suburbs. It also to pay 10 per cent. per annum on the cost of had the power "to buy and sell gas," and "to the distribution system (4 per cent. of this bedo a general merchandise business in elec- ing designated “depreciation fund"), the paytrical and gas appliances, supplies, fixtures ments to be made monthly, and to continue For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes