ciation." The sixth section declares as follows: "That all the property or funds, real, personal or mixed, that may be received, held, or appropriated by, or for said association, for the exclusive purpose of relig ion or education, including a cemetery not exceeding forty acres, shall be forever exempt from taxation." On the 17th day of August, 1889, the association received by devise from Rev. John McAnulty, for the exclusive purposes of education, lot 140 on Constitution street, in the city of Emporia, in this state. Upon the lot is a dwelling house. The property is held by the association for sale, but, in the absence of an acceptable buyer, it is rented, and the association uses the rents and proceeds thereof "for the purposes of education, in the support and maintenance of Baker University." The taxes in question were imposed in 1890. The contention on the part of the association is that under the provisions of its charter the real estate referred to is exempt from taxation. Section 1, art. 11, of the constitution of the state ordains that: "The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation." Section 1, c. 107, Gen. St., relating to taxation, reads: "That all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act." Assuming that the charter of the association is a "contract," with all that term implies, the question is raised, under section 6 thereof, whether the dwelling house in Emporia, owned by the association, is exempt from taxation. It was ruled in Ottawa University v. Board of Com'rs of Franklin Co., 48 Kan. 460, 29 Pac. 599, that: "Under our statutes, all property in the state, real and personal, not expressly exempt therefrom, is subject to taxation; and any person claiming immunity from the common burdens of taxation, which should rest equally upon all, must bring himself clearly within the exemption, and hence it is held that a provision creating an exemption should be strictly construed." Commissioners v. Brackenridge, 12 Kan. 114; Washburn College v. Commissioners of Shawnee Co., 8 Kan. 344. Mr. Justice Brewer, speaking for the court, observed in the last case that: "All property receives protection from the state. Every man is secured in the enjoyments of his own, no matter to what use he devotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war, or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is coextensive with the

protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the support of the authority which protects. It is an exception to a rule, and is justified and upheld upon the theory of peculiar benefits received by the state from the property exempted. Nevertheless, it is an exception, and they who claim under an exception must show themselves within its terms." Vail v. Beach, 10 Kan. 214. Within these and other similar decisions of this court, the provisions in section 6 of the charter, creating an exemption, must be construed strictly. All such laws are in derogation of equal rights.

On the part of the association, it is insisted that although the real estate in Emporia is not actually occupied or used for the exclusive purposes of religion or education, yet, as the rents or profits thereof are applied exclusively for the purpose of education, the property is exempt. The contention is that the charter "exempts all property of the association which has been received, or which is held or appropriated, for religion or education, and that it is not necessary that it is used exclusively for the designated purposes." This construction omits to give sufficient force to the following language of section 6, viz.: "For the exclusive purposes of religion or education." The property exempt from taxation must not only have been received, held, or appropriated by or for the association, but it must "be received, held, or appropriated for the exclusive purposes of religion or education," except the ground for a cemetery. Therefore, giving the provisions in the statute creating the exemption a strict construction, the charter must be interpreted to mean that the real or personal property of the association must be received, held, or appropriated "for the exclusive purposes of religion or education only." When received or held by the association, by devise, purchase, or otherwise, to be exempt from taxation, the property must be so received or held "for the exclusive purposes of religion or education" only,-not for lease, investment, or profit. When its real estate is rented to a tenant, or its funds invested in other property for profit, or loaned at interest, the property thus rented or invested or loaned will be liable to taxation, as much as any other property that is rented or invested or loaned, no matter in whose hands it might be. Cincinnati College v. State, 19 Ohio 110. If it had been intended by the legislative assembly of the territory to exempt from taxation all of the property of the association, language would have been used in its charter as broad as in that of the St. Anna's Asylum, of the city of New Orleans. The charter of that institution exempts "all the property, real and personal, belonging to the asylum." St. Anna's Asylum v. City of New Orleans, 105 U. S. 362. If the legislative assembly of the territory had intended to exempt from taxa

tion the property of the association which was rented or invested with the intention of having the rents or profits applied to carrying on its religious or educational work, it would have stated explicitly in its charter, as in the Home of the Friendless, of the city of St. Louis, "that the property of the corporation shall be exempt from taxation." Home of the Friendless v. Rouse, 8 Wall. 430. If we were to construe the charter of the association as exempting from taxation real estate occupied by a tenant, because the rents or profits are applied "for the exclusive purposes of religion or education," then, under its charter, the association could receive and hold large amounts of property, which it could invest in business or loan at interest without paying taxes thereon, if the profits or interest were applied to the designated purposes. If the association might do that, it could go further, and operate a bank, a store, or any other enterprise, which it had obtained by devise or otherwise, if the profits were applied exclusively to the purposes of religion or education. Such, evidently, was not the intention of the legislative assembly of the territory. It was said in Washburn College v. Commissioners of Shawnee Co., 8 Kan. 344, that "the accumulation of large amounts of untaxed property by educational, charitable, religious, and other institutions is contrary to the fundamental rule requiring an equal rate of assessment and taxation." Some attempt is made, in behalf of the association, to support the exemption of its property from taxation, where the rents or profits thereof are applied exclusively for religion or education, on account of the provisions of section 7 of its charter, but these provisions do not relate to taxation. They are a limitation upon the power of the association to hold for any considerable length of time large tracts of land. Our conclusion is that the real estate of the association upon which the taxes in question were imposed, being occupied by a tenant paying rent, is not exempt from taxation, within the terms of its charter. The judgment of the district court will be reversed, and the cause remanded, with direction to sustain the demurrer filed by the defendants below. All the justices concurring.

(54 Kan. 504)

STATE v. DEETS, Sheriff. (Supreme Court of Kansas. Jan. 5, 1895.) CONSTITUTIONAL LAW -REGULATION OF FEES AND SALARIES.

Chapter 95, Sess. Laws 1893, entitled "An act regulating the fees and salaries and prescribIng certain duties of the county officers of Cherokee and Crawford counties, Kansas, and providing penalties for violation of the provisions of this act," is unconstitutional and void. (Syllabus by the Court.)

Appeal from district court, Crawford county; J. S. West, Judge.

John T. Deets, sheriff, was informed against

for unlawfully failing, neglecting, and refusing to present and file a statement of his fees and mileage with the board of county commissioners. From an order quashing the information, the state appeals. Affirmed.

On February 6, 1894, an information was filed in the district court of Crawford county charging John T. Deets, sheriff of that county, with unlawfully failing, neglecting, and refusing to present and file a statement of his fees and mileage with the board of county commissioners of the county on the 5th day of February, 1894, that being the first day of the regular session of the board of the county for the month of February, 1894.

The defendant filed a motion to quash the information, alleging the unconstitutionality of the act under which the information was drawn, being chapter 95, Sess. Laws 1893, entitled “An act regulating the fees and salaries and prescribing certain duties of the county officers of Cherokee and Crawford counties, Kansas, and providing penalties for the violation of the provisions of this act," approved March 10, 1893. The following sections of said chapter 95 read:

"Sec. 13. This act shall not affect the salaries of county officers of Cherokee and Crawford counties now holding office.

"Sec. 14. All acts or parts of acts heretofore passed and now in force that conflict with the provisions of this act are hereby repealed in so far only as they conflict with the operation of this act.

"Sec. 15. This act shall take effect and be in force from and after its publication in the statute book."

This motion was by the court sustained, and the state appeals from the judgment rendered thereon.

John T. Little, Atty. Gen., for the State. Fuller & Randolph and Gaitskill & Butterworth, for appellee.

HORTON, C. J. If chapter 95, Sess. Laws 1893, attempting to regulate the fees and salaries of the county officers of Cherokee and Crawford counties, be interpreted so that all of its provisions took effect from and after the 18th of May, 1893 (the date of its publication in the statute books), except those directly affecting the salaries of the officers, then a part of the act took effect at one time, and other parts will not take effect until later periods. Section 13 provides: "This act shall not affect the salaries of county officers of Cherokee and Crawford counties now holding office." At the time the act was published, Crawford county had a sheriff, coroner, county clerk, register of deeds. and county surveyor, whose terms of office expired in January, 1894; a treasurer whose term expired in October, 1894; a probate judge, district clerk, county superintendent. and county attorney, whose terms of office expired in January of 1895; and three county commissioners, one whose term expired

in January, 1894; the others will expire in 1895 and 1896, respectively. If chapter 95 be construed as not having any force or effect during the official life of the officers of Crawford county in office on March 10, 1893, the date of the approval of the act, then the intention was to make the act apply by piecemeal at four different times, to wit, January, 1894, October, 1894, January, 1895, and January 1896. "A legislative act, whether general or special, is passed as an entirety, approved as an entirety, and the generally accepted interpretation of the constitutional limitation is that it must become a law as an entirety." Commissioners v. Chew, 44 Kan. 162, 24 Pac. 62; Board v. Hiner (Kan.) 38 Pac. 286; Finnegan v. Sale (just decided) 38 Pac. 477. Further, chapter 95 is inimical to the provisions of section 16, art. 2, of the state constitution. It does not contain the section or sections sought to be amended, and, if full force be given to section 14, then several sections of prior statutes relating to the fees and salaries of the officials of Cherokee and Crawford counties were amended in part in January and October, 1894; others will be amended in part in January, 1895; and still others amended in January, 1896. Indeed, it is difficult to read chapter 95 with the prior statutes in force at the time of its passage, and understand what parts of the prior statutes are amended, in the absence of the new act, containing the section or sections amended. Then, again, the provisions of section 14 of chapter 95, if valid, repeal a part of the provisions of prior statutes relating to the fees and salaries of county officers at one time, and other parts at several other and different times. For these and other manifest and manifold reasons, chapter 95 is unconstitutional and void. The judgment will be affirmed. All the justices concurring.

(54 Kan. 507)

STATE v. TREADWELL. (Supreme Court of Kansas. Jan. 5, 1895.) COMPETENCY OF JUROR-EXPRESSION OF OPINION.

Impressions or opinions, which are not of a fixed and positive character, received from rumor or newspaper statements, do not disqualify a juror who appears to be free from bias or prejudice, and whose mind is open to a fair consideration of the testimony to be offered.

(Syllabus by the Court.)

Appeal from district court, Lyon county; W. A. Randolph, Judge.

A. B. Treadwell, convicted of breaking and escaping from jail, appeals. Affirmed.

J. Jay Buck, for appellant. John T. Little, Atty. Gen., and W. C. Simpson, for the State.

JOHNSTON, J. A. B. Treadwell was convicted upon a charge of breaking and escaping from jail, and the penalty adjudged was imprisonment in the penitentiary for a term of three years, and from that conviction and judgment he appeals to this court.

The principal objection urged against the conviction is the action of the court in overruling the challenges of certain jurors. It appears that the only evidence offered in the case was that presented in behalf of the state. While there is a plea of not guilty, there is not a syllable of evidence to contradict the proof offered by the state that the defendant broke and escaped from jail and from legal custody, as charged in the information. Several of those who were called and accepted as jurors had what they termed "impressions," "beliefs," and "opinions" that the jail had been broken and a prisoner had escaped, but they were based on general rumor and on newspaper reports. They had no personal knowledge of the facts in the case; had not talked with the officers from whose custody the defendant escaped, nor with any of the witnesses in the case; and evidently the impressions or opinions which they held were not of such a fixed and positive character as to disqualify them from fairly and impartially trying the case upon the evidence. The examination of these jurors did not show any bias or prejudice against the defendant, and there was nothing in the testimony to show that their minds were not open to a fair consideration of the testimony that might be offered. The impressions which they had were received from rumor and newspaper statements, and, not being of a fixed and settled character, are not good cause for challenge. State v. Medlicott, 9 Kan. 257; State v. Crawford, 11 Kan. 32; State v. Spaulding, 24 Kan. 1; State v. Snodgrass, 52 Kan. 177, 34 Pac. 750. In this case there was no conflict in the evidence, and no essential fact was disputed by any evidence that was brought before the jury. Looking at that testimony, there is no room for doubt that he was guilty of the charge, and no honest jury could have arrived at any other conclusion. None of the jurors had any opinion upon the guilt or innocence of the defendant, and, in view of the undisputed testimony, it is clear that no prejudice resulted to the rights of the defendant from their retention on the jury. The judgment of the district court will be affirmed.

1. A deed to his homestead made by an insane person and his wife, after he has been duly adjudged insane, and placed under guardianship, and a record thereof duly made in the probate court, while he is out on a temporary leave of absence, after having been confined in the insane asylum, is void, and conveys no title to the purchaser.

2. A mortgagee of the grantee in such deed. having actual notice of such insanity and such adjudication by the probate court, acquires no lien on the land.

3. A mortgage on the homestead of an insane person, executed by his wife and guardian, without any order of the probate court, is absolutely void.

4. A person who pays purchase money due from the wife of an insane person to her vendor for a part of the lands included in the homestead, and takes a conveyance of the legal title from such vendor to himself, to secure the amount so paid, acquires a valid lien for the money advanced, and he may mortgage the land to a third person to the extent of his interest. The plaintiff in error in this case, having paid off and discharged a mortgage so executed, and also discharged said land from tax liens, to obtain the delivery of a deed conveying the legal title to such wife, is entitled to a lien for the moneys advanced to clear such land from valid and subsisting liens.

(Syllabus by the Court.)

Error from district court, Miami county; John T. Burris, Judge.

Action by Benjamin Spitler and others against the New England Loan & Trust Company and others to quiet title to lands. From a judgment in favor of plaintiffs, the New England Loan & Trust Company alone brings error. Modified.

On the 8th of February, 1890, Sarah J. Spitler, as guardian of Benjamin Spitler, her husband (a lunatic), and for herself, brought this action in the district court of Miami county against the New England Loan & Trust Company and numerous other defendants to cancel various deeds, mortgages, leases, and contracts affecting the title to certain lands in Miami county, and to quiet the title to said lands in the plaintiffs. The case was tried to the court, and the facts specially found. From these findings it appears that the lands in controversy embraced in the aggregate less than 160 acres of farming land, and had been occupied by the plaintiffs and their children as their homestead for more than 15 years. The land consisted of two contiguous tracts, the title to one of which was vested in Benjamin Spitler on the 15th day of June, 1867. The facts with reference to the title to the other tract are stated in the findings of the court copied below, So much of the findings as is necessary for an understanding of the questions decided is as follows:

"(1) The plaintiffs, Benjamin Spitler and Sarah J. Spitler, are husband and wife, and have been for more than thirty years.

"(2) The plaintiff Benjamin Spitler is a lunatic, a person of unsound mind, and has been continuously for more than six years last past a lunatic and of unsound mind, in a state of chronic dementia, and utterly incompetent to transact business, and incapable of contracting.

"(4) That upon the 7th day of December, A. D. 1884, said Benjamin Spitler was (upon a trial duly had according to law in the probate court of Miami county, Kansas) duly and legally found and adjudged to be insane, and a fit person to be sent to the State Insane Asylum; and the said Benjamin Spitler was, pursuant to said finding and adju

dication, thereupon duly committed to the State Insane Asylum at Osawattomie, without delay, of all of which proceedings a proper récord was made in said court according to law.

"(5) That upon the 11th day of September, A. D. 1885, John H. Ayers was by the probate court of Miami county, Kansas, duly and legally appointed the guardian of the person and estate of said Benjamin Spitler; and the said John H. Ayers afterwards qualified and served as such guardian,-of all which proceedings a proper record was made in said probate court according to law.

"(6) That the said John H. Ayers, after he had qualified, and while serving as guardian of the person and estate of said Benjamin Spitler, departed this life; and after the death of the said John H. Ayers, to wit, upon the 31st day of December, A. D. 1887, the said Sarah J. Spitler was by said probate court duly appointed the guardian of the person and estate of said Benjamin Spitler; and afterwards, upon the 31st day of December, A. D. 1887, the said Sarah J. Spitler duly qualified as such guardian,-of all which proceedings a proper record was made in said probate court according to law.

**

"(8) That upon the 5th day of June, 1884, that portion of the lands mentioned in the petition of the plaintiff as the property of the said Sarah J. Spitler was conveyed by the owners thereof to John H. Ayers, his heirs and assigns, forever, by warranty deed. Said warranty deed was on the 23d day of December, 1884, filed for record in the office of the register of deeds of Miami county, Kansas, and recorded in Book 46, at page 334. * But the said John H. Ayers (who was the brother of said Sarah J. Spitler) purchased and held said land in trust for the use and benefit of the said Sarah J. Spitler, and to secure himself for money advanced to pay for said land, the purchase price paid for said land being two hundred and twenty dollars ($220), paid by said J. H. Ayers.

*

"(9) That after said 44 acres of land had been conveyed to said J. H. Ayers, as stated in finding No. 8, to wit, upon the 14th day of February, 1885, the said John H. Ayers and Hannah E. Ayers, his wife, executed and delivered to Florence M. Chestnut a mortgage upon said tract of land, to secure the payment of a promissory note of even date therewith. Said promissory note was executed by the said John H. Ayers for money then loaned him by the said Florence M. Chestnut. Said promissory note was for the principal sum of three hundred dollars ($300), and with interest coupons thereto attached. And said mortgage was on the 14th day of February, 1885, filed for record in the office of the register of deeds of Miami county, Kansas, and recorded in Book X. of Mortgages, at page 80.

"(10) On the 5th day of September, 1887

(after the death of said John H. Ayers), James Caton and James E. Caton, administrators of the estate of said John H. Ayers, as such administrators, executed and acknowledged to said Sarah J. Spitler, an administrators' deed for the forty-four (44) acres of land mentioned and described in finding No. 8, conveying to her all the interest in said land held by said John H. Ayers at the time of his death. Said deed was executed pursuant to an order of the probate court of Miami county, Kansas, and approved by said court, and was left in the hands of the probate judge, to be delivered to said Sarah J. Spitler or her order on receipt of the aggregate amount due to said J. H. Ayers' estate, to reimburse his expenditures for the purchase of the land described in said deed, which said amount consisted of said sum of $116.40, mentioned in the 19th finding herein as being due to said Ayers' estate, and the amount of the mortgage to Florence M. Chestnut, mentioned in said 19th finding as amounting to $329.50; and the agent of the New England Loan and Trust Company paid the whole thereof from the consideration of the mortgages executed and delivered to it by said J. P. McNaughton and his wife, and received and recorded said deed, and said deed was filed for record in the office of the register of deeds of Miami county, Kansas, on the 19th day of March, 1888, and recorded in Book 55, at page 1.

"(11) On the 12th day of September, 1885, Sarah J. Spitler and John H. Ayers, guardian of Benjamin Spitler, executed and acknowledged and delivered to Alice M. Risdon a mortgage upon the lands of Benjamin Spitler, mentioned and described in finding No. 7. Said mortgage was filed for record in the office of the register of deeds of Miami county, Kansas, on the same day it was executed, and was recorded in Book Z of Mortgages, at page 350. Said mortgage was given to secure the sum of five hundred dollars ($500), and interest thereon at rate of 81⁄2 per cent. per annum from date, due in five years from the date of said mortgage.

"(12) On the 16th day of January, 1888, said Benjamin Spitler and Sarah J. Spitler executed, acknowledged, and delivered a deed purporting to convey to the defendant J. P. McNaughton the lands of Benjamin Spitler, mentioned and described in finding No. 7. Said deed was afterwards, upon the 27th day of February, 1888, filed for record in the office of the register of deeds of Miami county, Kansas, and recorded in Book 52, at page 400. And at the same time the said

deed was executed, to wit, January 16, 1888,the said Benjamin Spitler and Sarah J. Spitler executed and delivered their writen agreement to convey to said J. P. McNaughton the 44 acres of land mentioned in the 8th finding of fact. The consideration for said deed and the written agreement was the assignment by defendant J. P. McNaughton to Sarah J. Spitler of the contract from James v.38p.no.12-51

Charley and Alforatia Charley to J. P. McNaughton, recited in the petition, and the sum of four hundred dollars ($400) to be paid in money to the said Sarah J. Spitler by' said J. P. McNaughton. Said sum of four hundred dollars ($400) was not paid at or before the time of the execution and delivery of said deed, nor was any part thereof. But afterwards the defendant J. P. McNaughton gave said Sarah J. Spitler two promissory notes, signed by himself, and payable to Sarah J. Spitler or order,-one for two hundred and fifty dollars, and the other for one hundred and fifty dollars. And the said J. P. McNaughton has, since executing said notes, paid to said Sarah J. Spitler the sum of one hundred and ninety dollars and twen ty-one cents ($190.21), and no more. And, at the time of the execution and delivery of the said deed, the said Benjamin Spitler was insane and incompetent to make a contract; and he was at that time absent from the State Insane Asylum on a temporary leave of absence, and he and his wife, Sarah J. Spitler, and their children, were then occupying as their homestead all the land mentioned in said deed, together with the land of Sarah J. Spitler, described in the deed mentioned in finding No. 13.

"(13) And upon the 28th day of February, 1888, said Sarah J. Spitler and Benjamin Spitler, her husband, pursuant to said written agreement mentioned in the 12th finding of fact, executed and acknowledged and delivered to J. P. McNaughton a warranty deed purporting to convey to said J. P. McNaughton the forty-four acres of land mentioned and described in finding No. 8; and, at the time said deed was executed and delivered, the said Benjamin Spitler was insane, and incompetent to make a contract, and was absent from the State Insane Asylum on temporary leave of absence, living with his family; and the said land was a part of the homestead of the said Benjamin Spitler and Sarah J. Spitler. Said deed was afterwards, upon the 6th day of March, 1888, filed for record in the office of the register of deeds of Miami county, Kansas, and recorded in Book 52, at page 409.

"(14) The deeds to J. P. McNaughton mentioned in findings No. 12 and 13 were not executed pursuant to any order of the probate court of Miami county, Kansas, neither was either of them; and said deeds were' not approved by said court, neither was either of them.

"(15) After the execution and delivery of said deeds from Benjamin Spitler and Sarah J. Spitler, his wife, to J. P. McNaughton, the said Benjamin Spitler and Sarah J. Spitler and their children moved to the Peoria reservation, in the Indian Territory, and occupied a rented farm there for two years; but they never occupied the land mentioned in the written instrument copied into the petition, and purporting to be subscribed by James Charley and Alforatia Charley; and