It 13 Sup. Ct. 638, 37 L. Ed. 495. The statute | ly, in that it described bonds to bear interest supra is mandatory in its provisions, both as to the term during which the bonds may run and as to the requirement that the council must reserve the option to redeem prior to maturity. The requirement in both these respects is a limitation upon the power to issue the bonds, and disregard of it in either would render them void. The purpose of the limitation as to the option to redeem is made manifest by the provision of the preceding section of the statute (3469) for the accumulation of a sinking fund, as well as by the mandatory provision in the latter part of the section itself, where it is made the duty of the treasurer, after such bonds have become redeemable, to call them for payment in numerical order as soon as the sum of $1,000 or more has been accumulated in this fund. Here is manifested unmistakably an intention by the Legislature that after a reasonable time the sinking fund shall not accumulate, but as fast as possible be applied to the payment of the debt and pro tanto discharge it. at a rate not to exceed 5 per cent. per annum. But it is said that the statute leaves it to the council to say in its discretion, in order to increase the salability of the bonds, when they shall be redeemable, and hence whether they shall be redeemable at all. If this be so, why may it not with equal propriety be said that the council may in its discretion, in order to make the bonds more salable, enlarge the time for which they may run before maturity? No one would say that the council has any discretion in this particular, and yet the language that imposes this limitation is of exactly the same import in enjoining the duty to make the reservation. If the whole matter is lodged in the discretion of the council, then the addition by the Legislature of the mandatory requirements touching the provision for a sinking fund and the calling of the bonds is without significance. It is clear that the Legislature intended that the council should use a reasonable discretion in fixing the time after which payment of the debt must begin, so that within reasonable limits it might be the exclusive judge as to the marketable quality of the bonds; but i' most clearly was not the intention that the wise precaution against the accumulation of the sinking fund and the attendant danger of its loss from dishonest diversion or bad investment of it should be wholly disregarded. Ordinance 717, providing for the election, and the election notice given in pursuance of it, notified the taxpayers that the bonds voted would be redeemable as the statute provides. The bonds proposed to be issued in the form exhibited in ordinance 747 show a distinct departure, both from the statute and from the ordinance, in the omission of the reserved option. Issued in that form, they would therefore be void. 10. It is said that the notice of election did not authorize the issuance of bonds to bear 11. It is argued that the council has no authority to issue bonds payable in "gold coin of the United States of America, of the present standard of weight and fineness." The people, it is said, by their vote authorized the issuance of bonds to a certain amount, in dollars; that dollars, cents, and mills are the only monetary denominations known in this state, and that the amount named in dollars means lawful money of the United States. While this is true, it does not follow that, in the absence of legislation declaring otherwise, the city has no power to make the bonds payable either in lawful money or in gold coin. The provisions of the statute authorizing the issuance of bonds such as these are silent upon the question as to the particular character of money in which they may be made payable, except that the treasurer must pay the interest coupons in lawful money of the United States. Whatever difference of opinion may have existed in the past on this subject, the controversy was authoritatively settled by the decision of the Supreme Court of the United States in Woodruff v. Mississippi et al., 162 U. S. 291, 16 Sup. Ct. 820, 40 L. Ed. 973. In this case the question at issue in the state court was the validity of certain bonds of the levee board of Mississippi, district No. 1. The bonds up for gold coin of the United States, which the board for itself and successors promised to pay. The coupons were payable in currency of the United States. The state court held, as is contended here, that the bonds on their face were payable in gold coin only, and that, since the Legislature authorized the board to borrow money generally, it intended money that constituted the basis of the general business of the country, and, since a contract to pay in gold coin could not be discharged in any of the different kinds of money having a legal tender quality, the bonds were void for want of power in the board to issue them. Woodruff v. Mississippi, 66 Miss. 298, 6 South. 235. The Supreme Court of the United States, however, held (1) that the bonds were not by specific promise made payable in gold coin, and (2) that, if such had been the case, they would nevertheless have been valid, because the statute authorizing their issuance was silent as to the particular kind of money in which they might be made payable, and that express and general power to issue negotiable bonds, in the absence of legislative restriction, carries the implied or incidental power to make them payable generally; that is, in, currency which is constitutionally a legal tender, or payable in the particular coin which constitutes the legal and commercial standard by which the value of other kinds of currency is measured. The same conclusion was reached by the Supreme Court of Alabama in Judson v. City of Bessemer, 87 Ala. 240, 6 South. 267, 4 L. R. A. 742, and by the Supreme Court of Texas in Winston v. Ft. Worth (Tex. Civ. App.) 47 S. W. 740, in which the court collates the authorities. 12. Finally, it is said that ordinances 747 and 748, passed and approved on March 1, 1909, providing for the issuance of the bonds, could not, under the provisions of the initiative and referendum law applicable to cities, become effective until April 1, 1909, and hence that the notice of sale, the publication of which began on March 2, 1909, I could not be deemed sufficient to render the sale valid. The initiative and referendum provisions referred to are found in the Revised Codes (sections 3266 to 3276). In order that the referendum provision may be made available, section 3268 declares: "No ordinance or resolution passed by the council of any city or town shall become effective until thirty days after its passage, except general appropriation ordinances providing for the ordinary and current expenses of the city or town, excepting also emergency measures, and in the case of emergency measures the emergency must be expressed in the preamble or in the body of the measure, and the measure must receive a two-thirds vote of all the members elected." The argument is that, since the ordinances could not be effective until April 1st, the notice must be deemed to have been published without authority and to be abortive to give the officers of the city jurisdiction to sell the bonds at 102 P.-4 the date fixed in the notice. That this would be the result if the referendum provisions of the statute were applicable, we have no doubt; but upon a careful reading of them, we find that they have no application. They in terms apply, and were evidently intended to apply only, to matters of general legislation in which all electors without distinction may take an active interest. The question whether the council should have authority to issue bonds could be submitted to the taxpayers only. They had already exercised their prerogative reserved by the Constitution, under the provisions of the statute (Rev. Codes, § 3259, and section 3454 et seq.) and ordinance 717. There is no provision for the submission to them of any other action taken by the council in pursuance of the authority thus granted by them; nor is there any necessity that they should be consulted further. Their consent, given upon the submission of the primary question whether the debt should be incurred by the issuance of bonds, fully clothed the council with the power to issue and sell them according to the direction of the general statutes applicable. Furthermore, there being no special provision by which ordinances 747 and 748 could be submitted to the taxpayers only, no submission of them could, under the general provisions, be made except to the electors generally, and a submission to them could not lawfully be made because it involved a question upon which they were not entitled to vote. Several other questions submitted in the briefs we have not deemed of sufficient merit to require special notice. Many of those which we have deemed it necessary to notice were urged by counsel representing the respondent, and others by counsel who were allowed to appear for other taxpayers. We have referred to them generally, as urged by counsel for respondent. The cause was submitted to the court on April 24, 1909. Since the time fixed for the notice of sale was May 1st, and the time intervening between the date of submission and that date was too brief to permit us to put our views in writing, we deemed it advisable to announce our conclusion that the judgment of the district court should be affirmed, and defer the delivery of a formal opinion to a later date. This we did, and now give the foregoing statement of our reasons therefor. Affirmed. HOLLOWAY, J., concurs. SMITH, J. I concur in the result reached in this case and in all that is said by the Chief Justice, with this exception relative to paragraph 6 of the opinion, videlicet: I think the only legal method of procedure is to first obtain from the taxpayers a general consent to the project of raising the limit of indebtedness, and that the council should, remedy sought by the plaintiff could be obthereafter select the particular water supply. Any other construction of the law will lead to the result that, if the council's first selection cannot be acquired, a new election will be necessary. And I foresee other complications. As this case was confessedly instituted to obtain a construction of the law (see Carlson v. City of Helena, 38 Mont. 101 Pac. 163), I think the method of procedure above indicated should be declared to be, not only the orderly method, but the only legal method, to the end that the "Helena water controversy" shall be forever settled so far as the courts are concerned. If the matter is submitted to the taxpayers, as I think it should be, then in case the supply first selected cannot be obtained, the council may proceed to negotiate for some other, and so on, until the will of the taxpayers that the city shall own its own water supply is carried into effect. (80 Kan. 161) tained only in an action of ejectment. They, therefore, demurred to the plaintiff's petition, which being overruled, they filed an answer, and demanded a jury, which was refused, and the case was then tried to the court upon the facts. A permanent injunction was allowed, from which judgment of the court the defendants prosecute error. To avoid the production of the entire petition, which is of great length, the material facts will be stated: The dispute arises over the ownership of real estate. It is conceded that the Kansas City, Ft. Scott & Gulf Railroad Company was the former owner of the land in controversy, and each party claims title from this source. The plaintiff claims that the Kansas City, Ft. Scott & Gulf Railroad Company sold the land to Jeremiah Hogan, reserving to itself the coal and mineral therein, together with the right to use the surface for the purposes of exploring for such coal and mineral, and for mining and removing the same from the land, and that Hogan had no other or fur ATKINSON et al. v. J. R. CROWE COAL & ther right or title in said land. It is fur MINING CO. ther claimed that the only right in the prem (Supreme Court of Kansas. May 8, 1909. Re- ises possessed by the defendants is the right hearing Denied June 12, 1909.) 1. JURY (§ 14*)-RIGHT TO JURY TRIAL-SETTLING TITLE TO LAND. In an action commenced for the purpose of settling disputed questions of title to real estate, and to recover the possession thereof, either party is entitled to a jury as matter of right, regardless of the form in which the action may be brought. [Ed. Note. For other cases, see Jury, Cent. Dig. §§ 66, 75, 76; Dec. Dig. § 14.*] 2. JURY (§ 14*)-RIGHT TO TRIAL BY JURYTITLE TO LAND. While a person was in the actual, exclusive, and peaceable possession of real estate, claiming to be the owner thereof, another person claiming to be the owner of the coal and mineral in such land, and to have a right to use the surface for mining purposes, attempted to enter thereon for such purpose, but was forcibly prevented by the person in possession, who denied such claimed ownership of the coal. The person out of possession then commenced an action to obtain a perpetual injunction to restrain the person in possession from interfering with the mining and removal of the coal. In that action the defendant was, upon demand, denied a trial by jury. Held error. [Ed. Note. For other cases, see Jury, Cent. Dig. $$ 66, 75, 76; Dec. Dig. § 14.*] (Syllabus by the Court.) Error from District Court, Cherokee County; C. A. McNeill, Judge. Action by the J. R. Crowe Coal & Mining Company against Lillie Atkinson and Ed Atkinson. Judgment for plaintiff, and defendants bring error. Reversed. of Hogan, which was obtained by a sheriff's deed issued upon the sale of the land, in foreclosure proceedings had in the foreclosure of claims to have succeeded to the rights of the a mortgage given by Hogan. The plaintiff railroad company under its reservation in the deed to Hogan, by a lease from it granting the right to enter upon the land and mine and remove coal and mineral therefrom. The defendants deny that the deed to Hogan contained any reservation, but insist that he acquired the entire estate in the land from the railroad, and that they succeeded to such estate through the sheriff's deed. At the time this action was commenced, and for about two years prior thereto, the defendants were in the actual possession of the land in controversy, claiming the entire estate therein and title thereto. Before this action was commenced, the plaintiff attempted to enter upon the land for the purpose of mining coal under its lease. The defendants, by force, denied it that privilege, and have ever since, by force, excluded it from the premises. This action was commenced to enjoin such interference. The original deed to Hogan is lost, and the record thereof is mutilated so as to render its contents uncertain. The plaintiff has never been in the actual possession of the land, or asserted its rights as lessee. Wm. F. Sapp, Andrew S. Wilson, and Francis M. Brady, for plaintiffs in error. A. H. Skidmore and S. L. Walker, for defendant in error. This action was commenced by the J. R. Crowe Coal & Mining Company in the district court of Cherokee county, to obtain a perpetual injunction against Lillie and Ed Atkinson. The defendants insisted that the GRAVES, J. (after stating the facts as above). The plaintiff freely admits that the defendants own the land in controversy, sub-remedy is invoked for a very different purject only to its rights as lessee to mine and pose. Its object is not to protect a right remove coal and mineral therefrom. It merely claims an easement in the surface, such as will enable it to exercise fully its rights as lessee, and does not wish to disturb the defendants in the enjoyment of the possession and use of the surface further than is reasonably necessary to the enjoyment of its own rights under its lease. It, therefore, insists that ejectment is neither an adequate nor an appropriate remedy under the facts of this case, and that injunction is both appropriate and adequate, and the only proper remedy. The defendants urge that the coal which the plaintiff claims to own, is a part of the land which they occupy, and of which they have exclusive, actual, peaceable possession, peaceable even against the plaintiff; that they claim to be the owners of the entire estate in the land, including the coal and mineral, and the only contention between them and the plaintiff is as to the ownership of the coal; that an injunction would deprive the defendants of their title to, and possession of, the coal as completely and effectually as could be done by an action of ejectment, and therefore they are entitled to have the issue tried by a jury as matter of right. which the plaintiff has in real estate, but its purpose is to obtain thereby a title to real estate from another who is already in possession and claiming to be the owner thereof. It is true, as has been suggested, that courts of equity often examine into questions of title, not for the mere purpose of determining the question of ownership between the parties but for the purpose of administering equitable relief concerning the use or occupancy of the land. Upon this point Chancellor Kent, in the case of Abbott v. Allen, 2 Johns. Ch. (N. Y.) 519, 7 Am. Dec. 554, said; "This court may perhaps try title to land when it arises incidentally; but it is understood not to be within its province when the case depends on a single legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated cases affording peculiar ground for equitable interference." In 24 Cyc. 109, it is said: "While courts of equity have jurisdiction to protect and enforce equitable titles, and may in certain cases try suits to quiet title or remove cloud without the intervention of a jury, questions as to the legal title to land are of right triable by jury, and this right cannot be abrogated by statute, or avoided by bringing an action which is, in effect, an action of ejectment in the form of a suit in equity." Attention has been called to section 5 of the Bill of Rights, which reads, "The right of trial by jury shall be inviolate," and also to section 4713, Gen. St. 1901, which reads: The rule that actions for the trial of title Issues of fact arising in actions to real estate shall be tried to a jury has alfor the recovery of money, or specific real ways been favored, and with practical unaor personal property, shall be tried by a ju- nimity has been upheld by the courts. The ry, unless a jury trial is waived, or a refer- difficulty encountered in the enforcement of ence be ordered, as hereinafter provided." this rule consists chiefly in determining It is everywhere held that this constitutional whether or not the action under consideraprovision preserves whatever rights of trial tion comes within the rule. The test upon by jury existed at common law when the this question which has been generally folprovision was adopted. We are inclined to lowed is that, where the real object of the acagree with the view of the defendants. It is tion, whatever its form, appears to be to setapparent that the real contention of the par- tle a disputed question of title, then either ties involves the ownership of the coal in party may demand a jury as matter of right. question. If the plaintiff has an easement in If, on the other hand, the purpose is to obthe surface of the land, it is because of, and tain proper equitable relief, then the chancelincident to, its ownership of the coal. Be- lor may administer it, even though it involves fore a court can enjoin the defendants from an examination of title. In the case of Martin interfering with the plaintiff in the use of v. Martin, 118 Ind. 228, 20 N. E. 763, it was the surface of the land for the purpose of said: "It is not every cause of action which mining coal, it must determine that the plain- the pleader styles an action of ejectment or tiff is the owner of the coal. The defendants to quiet title that entitles the parties to a tribeing in the actual possession of the coal as al by jury; nor will the prayer for relief nearly as such possession is possible, the have any controlling influence in determining granting of such an injunction would be the whether or not a jury may be called. The same, in effect, as a judgment in ejectment, court will look to the substantial averments as it would determine both the title and pos- of the complaint or cross-complaint, as the session of the real estate in controversy. The case may be, and from the facts so averred plaintiff has never been in the possession and | determine whether the action is one of equienjoyment of the so-called easement, and its table or common-law jurisdiction, and, if right thereto is now being asserted for the first time. It may be conceded that injunction is a proper and ordinary remedy for the protection of owners in the enjoyment of their rights in real estate, but here this the former, refuse a trial by jury." In the case of Spencer v. Robbins, 106 Ind. 580, 5 N. E. 726, it was said: "Where the purpose of the action is primarily to establish an equitable right to land, and acquire a legal (80 Kan. 798) CITY OF WELLSVILLE ▼. SEYLER. (Supreme Court of Kansas. May 8, 1909. Re- NANCE. It is sufficient to charge a misdemeanor in the language of the statute or of the ordinance. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. 110; Municipal Corporations, Cent. Dig. § 1406; Dec. Dig. § 639.*] title through such right by the decree of a Appeal from District Court, Franklin County; C. A. Smart, Judge. Harley Seyler was convicted of violating an ordinance of the city of Wellsville, and Elliot Seyler was convicted of disturbing the peace, and each defendant appeals. Af F. A. Waddle, for appellant Harley Seyler. W. J. Costigan and F. A. Waddle, for appellant Elliot Seyler.. Pleasant & Pleasant, for appellee City of Wellsville. F. S. Jackson, Atty. Gen., W. B. Pleasant, and Charles D. Shukers, Asst. Atty. Gen., for the State. PER CURIAM. The principal assignment of error in each of these cases is that the information is not sufficient to inform the accused of the specific offense of which he is charged. The offense charged is a minor misdemeanor (disturbing the peace), and in each case is charged in the language of the statute and ordinance. This has been uniformly held sufficient in this court, at least since the decision of the case of State v. White, 14 Kan. 438. We have examined the instructions in each case, and find nothing in either to justify a reversal of the judgment. The cases were submitted together, and the judgment in each is affirmed. 597, 27 Pac. 66. For other cases on this subject generally, see 3 Am. & Eng. Ann. Cas. 245-250, where they are collected in a note. The petition in this case is full and complete in its statement of fact. It is not difficult to ascertain from it what the plaintiff wants. It wants the coal. Its right to take the coal depends upon ownership. The own ership is strenuously denied; indeed the denial is asserted by force and arms. The defendants are in the actual possession of the land, and claim to have full title thereto. They are in a position to protect the coal by preventing the plaintiff from removing it. The important question, as it seems to us, is, Who owns the coal? If this question is answered, then the whole controversy will be settled; but nothing can be settled until it is answered. The coal is specific real property as much as the surface. Together they constitute the entire estate in the land. The HULEN v. NATIONAL FIRE INS. CO. OF plaintiff wants to try out the question of title to the coal without a jury, and then take possession of it under the protection of an injunction, which will prevent the opposition of the defendants. This avoids the real merits of the controversy. It gives undue prominence to the question of whether or not the plaintiff has an easement under which it may mine coal, and treats the ownership of the coal as a minor and comparatively unimportant inquiry. By such a proceeding the defendants are deprived of a right given to them both by the Constitution and the statute. This cannot be sustained. The judgment of the district court is reversed, with direction to proceed in accordance with the views herein expressed. All the Justices concurring. HARTFORD, CONN. (80 Kan. 127) (Supreme Court of Kansas. May 8, 1909.) 1. INSURANCE (§ 389*) - FIRE POLICY - CONCURRENT INSURANCE-WAIVER OF INDORSEMENT ON POLICY. A local agent of an insurance company, with authority to issue policies and consummate the contract, who is informed at the time a policy is issued that there is a certain amount of other insurance to be carried on the property, and issues the policy without indorsing the consent of the company thereto, waives the condition in a standard form policy requiring the fact of concurrent insurance to be indorsed thereon. [Ed. Note.-For other cases. see Insurance, Cent. Dig. §§ 1028-1031; Dec. Dig. § 389.*] 2. INSURANCE (§ 327*)-FIRE POLICY-HIGHER PREMIUM RATE-WAIVER. A policy of insurance covering a stock of merchandise contained the usual condition that it should be in force only while the property |