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cause a passenger to go upon the platform the wrongful detention thereof by the tenant unnecessarily at a time when a sudden stop- after the expiration of his lease. . ping of the train is to be expected. If the Tenant, Cent. Dig. $ 130; Dec. Dig. & 53.*]

[Ed. Note.-For other cases, see Landlord and conductor had called out that a collision or

§ wreck was imminent, or had warned the pas

(Syllabus by the Court.) sengers to leave the car, a rush to escape 2. LANDLORD AND TENANT (8 53*)—"GIVEN."

. would obviously have been a natural conse

The word “given" as used in such clause quence. That a fire in any part of a freight rendered” or “granted.”

must be construed as synonymous with "surtrain could occasion immediate peril to the

[Ed. Note.-For other cases, see Landlord and occupants of a caboose, but seven in num- Tenant, Cent. Dig. $ 130; Dec. Dig. $ 53.*

§ § ber, seems very unlikely. But the court con- For other definitions, see Words and Phrases, cludes that an announcement of a fire un- vol. 4, pp. 3094–3098.] der such circumstances might be made in so

Error from District Court, Pottawatomie sudden, startling, and alarming a manner

County; Robt. C. Heizer, Judge. as naturally to cause a momentary panic,

Action by Henry C. Schwitzgebel against and that whether the announcement made in this case was of that character is a question Stella C. Beakey. Judgment for plaintiff,

and defendant brings error. Affirmed. upon which reasonable minds might differ, and therefore was a fair matter for the de- In July, 1900, Ed Vander Meershen extermination of the jury.

ecuted and delivered to Stella C. Beakey a The plaintiff in shipping his cattle signed warranty deed for 1,630 acres of land in a contract containing a provision that no suit Pottawatomie county, Kan., and to secure should be brought by him to recover any the payment of the purchase price, or the claim by virtue of it unless within six principal part thereof, took a note for $17,months after the cause of action should "oc- 500 due March 1, 1901, and a mortgage on


, , cur,” obviously meaning “accrue.” The in

The in- the land to secure the note. The warranty jury was received July 9, 1905, and the ac- deed was in the usual form, warranting the tion was brought January 10, 1906. The land to be free and clear of all incumbrancontract also provided that as a condition ces, and agreeing to defend the grantee, “her

a precedent to the bringing of any suit for heirs and assigns, against said parties of the damages for any injury to persons or proper- first part, their heirs and all and every perty covered by it the claimant should give son or persons whomsoever lawfully claimthe company notice of the claim within 90 ing or to claim the same." Preceding the days after the injury. Such a notice was habendum clause of the deed, however, was given in September, 1905. Therefore, assum- this provision:

provision: “The possession

"of said ing that the contract was valid, the suit was above-described premises to be given to parbrought in due time, for the cause of action ty of second part, her heirs and assigns, on did not accrue until the giving of the notice, or before the first day of March, 1901. Par


, and the plaintiff had six months thereafter ty of first part reserves the right to collect in which to file his petition.

all rents due from said described property The judgment is affirmed.

for the year 1900.” At the time of the ex

ecution of said deed, J. 0. Benton was in JOIINSTON, C. J., and SMITH, GRAVES, possession of the land under a written lease

, and BENSON, JJ., concurring. BURCH and which would expire on the last day of FebPORTER, JJ., dissenting, on the grounds stat-ruary, 1901, but on the 1st of March, 1901, ed in the original opinion.

he not only refused to deliver possession, but claimed to be the equitable owner of the property under a contract of purchase and

he brought an action to enforce his alleged BEAKEY V. SCHWITZGEBEL.

contract, in which he was defeated. Mrs. (Supreme Court of Kansas. March 6, 1909. On Beakey brought three or four actions against Rehearing, Nov. 6, 1909.)

Benton for the unlawful detention, and to 1. LANDLORD AND TENANT (8 53*)-TRANSFER recover the possession of the land, and finalOF REVERSION-CONSTRUCTION-DUTY TO RE

ly recovered judgment for the possession MOVE TENANT.

The owner of lands of which a tenant of thereof and for nearly $4,000 damages. No the owner was in possession under a lease which part of the mortgage debt or the interest would expire some months after the execution thereon was paid by Mrs. Beakey, and, after of the deed executed to a third person, who knew of the lease and the possession by the the full maturity thereof, Ed Vander Meertenant, a warranty deed in the usual form, with shen assigned the same to the defendant in this provision inserted, “The possession of said error, Henry C. Schwitzgebel, who in Auabove-described premises to be given to party of second part, her heirs and assigns, on or before gust, 1905, commenced this action against the 1st day of March, 1901,” which was the next Mrs. Beakey and her husband to obtain judgday after the expiration of the lease. Held,

Held, ment for the amount of the indebtedness, under the circumstances, the provision in the and for a decree foreclosing the mortgage, deed did not obligate the grantor to remove the tenant and place the grantee in possession of and finally obtained a judgment and decree the premises, nor make the grantor liable for as prayed for. To reverse this judgment, which denied her offset for the damages she import such a contract unless the legal sigsustained by the unlawful detention of the nificance thereof clearly compels such conpremises by Benton, Mrs. Beakey brings the struction. Also, it is the general rule of case here. J. 0. Benton was also made a construction of warranty deeds that they defendant in the action, but did not appeal obligate the grantor to defend the title and from the judgment determining that he had right of possession against the lawful claims no interest in the property.

only of others than the grantee thereto, unE. A. Austin and Otis Hungate, for plain- less the language used clearly indicates a tiff in error. Crane & Woodburn Bros. and

different intention. Bedell v. Christy, 62 Thomas R. Marks, for defendant in error.

Kan. 760, 64 Pac. 629. Again, it is a well

recognized rule in this and other courts to SMITH, J. (after stating the facts as construe all the parts of a written contract above). From the conclusion we have reach- together and in the light of the circumstaned, an extended statement and discussion ces under which it was made. It was well of the defenses and offsets which Mrs. known to the parties to the deed that VanBeakey pleaded in the action becomes un- der Meershen prior to the execution of the necessary. We shall assume that whatever deed had conveyed the right of possession defense or offset she would have been en-to the land described in the deed until the titled to had the action been brought by Ed 1st of March, 1901, and that, upon the delivVander Meershen she was entitled to main-ery of the deed, he would forever part with tain against Schwitzgebel. Upon the con- all right or interest in the possession of the struction of the special covenant in the deed land conveyed by it. In the habendum to Mrs. Beakey "the possession of the above- clause of the deed, the grantor covenants described premises to be given to the party that the land is free and clear of all incumof the second part, her heirs and assigns, on brances, yet Benton's lease was an incumor before the first day of March, 1901. Par-brance. Clark v. Fisher, 54 Kan. 403, 38 Pac. ty of the first part reserves the right to 493. It is not contended, however, and collect all lents due from said described could not be, that the reservation of the property for the year 1900"-rests the de- possession until March 1, 1901, constitutes termination of the case here. By its ruling a breach of this covenant. On the other upon plaintiff's demurrer to the evidence hand, it will be read into the covenant as a produced by Mrs. Beakey, the court held, in modification thereof. Then in the warranty substance, that this covenant did not obligate clause of the deed the grantor undertakes to the grantor to put Benton out of possession warrant and defend the title to the land inand her into possession on the 1st day of cluding the modified right of possession March, 1901 ; but that the covenant amount- thereof "against all and every person or ed to a reservation of the right of posses- persons whomsoever lawfully claiming or to sion until that date. The plaintiff in error claim the same.” Benton had no lawful in her brief says that, if this construction claim to the possession of the land after the of the covenant be correct, all other ques- expiration of the term of his lease thereon; tions raised by her become immaterial. hence there was no breach of the warran

Under the provisions of our Code, an ac-ty, and Vander Meershen was not responsible tion for the recovery of the land in question to Mrs. Beakey for Benton's wrongful assermust have been brought in the name of the tion of a claim to the land nor for his wrongreal party in interest. Previous to the deed ful detention of the possession after March to Mrs. Beakey, Vander Veershen had by 1, 1901. See Bedell v. Christy, supra; Gazlease conveyed the right to the possession zolo v. Chambers, 73 Ill. 75. of the premises to Benton until the 1st day The word "given," as used in the clause of March, 1901, and by the deed he surely of the deed, "the possession of the above-deconveyed all of his right to possession there- scribed premises to be given to party of secin to Mrs. Beakey after that date. There ond part, her heirs and assigns, on or before was, therefore, no interim within which he the 1st day of March, 1901,” must be concould have maintained an action in his own strued as synonymous with "surrendered" name to oust Benton from the possession of or "granted.” Also, the clause of the deed, the land. This is not a conclusive test of last above quoted, construed in connection his liability in damages, as one owning real with the whole instrument, is held to be a ty may lease the same to two different per- reservation of the right of possession in the sons for the same term or a part of the same grantor's tenant until March 1, 1901, and not term, and the one failing to get possession an undertaking on the part of the grantor to under his contract may recover damages remove the tenant and put the grantee in against his grantor.

possession of the land on that date. This It is suggested, however, that the parties also seems to be the construction placed to the deed, knowing the facts and presum- upon this provision of the deed by the plainably knowing the law, would not be presum- tiff in error. Upon the refusal of Benton to

. ed to have inserted in the deed a contract surrender possession of the land on the 1st which one party was then known to be in- of March, 1901, it does not appear that she capable of performing. In other words, the called upon Vander Meershen to put her in

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directly against Benton to recover from him class. The State Agricultural College is lothe possession of the land, and, after several cated in that city. About 2,000 students atyears' litigation, succeeded therein.

tend this college. These students room and The judgment is therefore affirmed. All board at club and boarding houses in the the Justices concurring.

city. In the early spring of 1909, the small

pox appeared among the students in some On Rehearing.

of these club and boarding houses. The conPER CURIAM. We have fully reconsider tagion spread so rapidly that the board of ed the opinion heretofore rendered in this health was unable to control it with any case, after extended reargument, and are quarantine regulations or by any plans of satisfied therewith, and the decision therein isolation which could be adopted. * An ep

idemic seemed imminent. In this extremity rendered will stand unchanged.

the board sought for houses throughout the city which could be temporarily used for

pesthouse purposes, but none could be obCITY OF MANHATTAN et al. v. HESSIN. tained. The city owns a public park which

has been used for several public purposes, (Supreme Court of Kansas. Nov. 6, 1909.)

among which was the holding of public fairs. 1. INJUNCTION (8 74*) - PUBLIC OFFICERS - A stone building had been erected for a


Public officers who are required by law to floral hall, and was used for that purpose perform duties involving the exercise of judg- while the fair was in operation, but, when ment and discretion cannot be controlled by in- taken by the city to use as a pesthouse, it junction while in good faith performing such was not occupied for any purpose. It could duties. [Ed. Note.–For other cases, see Injunction, temporary pesthouse, and was adopted by

be used fairly well for the purposes of a Cent. Dig. $ 142; Dec. Dig. $ 74.*] 2. INJUNCTION ($ 77*) - PUBLIC OFFICERS

the city for that use. Twelve patients were SUPPRESSION OF DISEASE.

placed therein, and guards properly stationThe mayor and councilmen of a city of the ed to prevent the further spread of the dissecond class, while in good faith providing means

ease. The disease was in that stage of defor the control and suppression of smallpox which exists in the city, and has increased sovelopment when it was most contagious. rapidly and to such an extent as to make an The plaintiff resided in property adjoining epidemic imminent, cannot be controlled in such the park about 500 feet from this building. work by injunction.

Fearing contagion, he obtained from the [Ed. Note.-For other cases, see Injunction, judge of the district court a temporary order Dec. Dig. $ 77.*] 3. INJUNCTION ($ 77*) - PUBLIC OFFICERS

of injunction prohibiting the removal of any SUPPRESSION OF DISEASE,

other patients to such building, and requirIn a city of the second class, large numbers ing those already there to be removed within of students were located in club and rooming 10 days. The city appeals to this court. houses throughout the city. The disease of smallpox appeared among such students, and R. J. Brock, R. W. Blair, H. A. Scandrett, increased to such an extent that the health of- and B. W. Scandrett, for appellant. John E. ficers were unable to control or diminish the Hessin, for appellee. contagion by the ordinary methods of quarantine. The officers of the city decided that a pesthouse was necessary to manage successfully GRAVES, J. (after stating the facts as the threatened epidemic. A stone building be-above). The city insists that its officers longing to the city and formerly used for a floral hall when fairs were being held stood in were charged at the time this action was the city park unoccupied. This building was commenced with the duty of providing prepared for temporary use as a pesthouse, and means to prevent an epidemic of smallpox; 12 patients were placed therein. No other bụild, that the performance of such duty involved ing suitable for such purpose could be obtained in the city. A citizen whose residence was 500 the exercise of official discretion which canfeet from this building, being afraid of con- not be judicially controlled by injunction. tagion, caused the district judge to enjoin such

It appears that the smallpox made its officers from placing any more patients in the building, and to remove those already there with- / first appearance among the students who in 10 days. Held error.

were boarding and rooming in club and [Ed. Note.-For other cases, see Injunction, boarding houses throughout the city. The Dec. Dig. § 77.*]

presence of the disease was concealed by (Syllabus by the Court.)

the owners of the houses to avoid being clos

ed by quarantine regulations. This was at Appeal from District Court, Riley County; least an alarming situation. The health and Sam Kimble, Judge.

safety of these students and of the citizens Action by John E. Hessin against the City of the whole city demanded immediate and of Manhattan and others for an injunction.energetic action. The officers of the city deFrom a temporary order of injunction, the cided that the only manner in which this city appeals. Injunction dissolved.

condition could be successfully managed This is an action to enjoin the city of was to provide a pesthouse where all disManhattan from using one of its buildings eased persons could be taken, and there as a pesthouse. It is a city of the second cared for and kept isolated from other people. To carry out this plan required the exercise, fined not less than twenty-five dollars nor of discretion of the most delicate and im- more than one hundred dollars for each ofportant character. The patients were nec-fense." Section 3316. The performance of essarily taken from home while sick, and such duties is generally beyond judicial conkept isolated in the house used for that pur- trol by injunction. Holton Electric Co. v. pose. Mere considerations of ordinary hu- Board Co. Com’rs (just decided) 105 Pac. manity required the officers to provide a 453; National Bank v. Com’rs of Barber Co., comfortable building, and to furnish the best 43 Kan. 648, 23 Pac. 1079; National Bank care possible under the circumstances. Atv. Peck, 43 Kan. 643, 23 Pac. 1077; Insurthe same time the citizens generally were en- ance Co. v. Wilder, 40 Kan. 561, 20 Pac. titled to adequate protection from contagion. | 265; Com’rs of Harper Co. v. State ex rel., The city officers were compelled to perform 47 Kan. 283, 27 Pac. 997; 20 A. & E. Encycl. these difficult duties promptly. It was im- of L. (2d Ed.) 1229; 22 Cyc. 889; Beach on possible for want of time to select a site and Injunction, $ 1373. erect a suitable building. The situation pre- In section 1240 of High on Injunctions, it sented an emergency which the officers were is said: “A municipal corporation being a compelled to manage without delay, and in political body, clothed with certain legissuch a manner as would protect the rights lative and discretionary powers, equity is of all interested parties. It was necessary to ordinarily averse to interfering by injuncprocure a house suitable for temporary use tion with the exercise of those powers at the wherever obtainable. Such a building would suit of a private citizen. And no principle naturally be nearer the residence of some cit- of equity jurisprudence is better established izens than others, and would necessarily ex- than that courts of equity will not sit in repose some citizens to more danger from con- view of the proceedings of subordinate potagion than others; but this condition could litical or municipal tribunals, and that, where not be avoided. Chapter 46a of the General matters are left to the discretion of such Statutes of 1901 provides for the perform- bodies, the exercise of that discretion in ance of these duties, and imposes a penalty good faith is conclusive, and will not, in for failure to comply with the requirements the absence of fraud, be disturbed. And of the statute. These sections read: "Any the fact that the court would have exercised municipal or county board of health or the discretion in a different manner will not health officer having knowledge of any infec- warrant it in departing from the rule.” In tious or contagious disease, or of a death section 687 of 1 Spelling on Injunctions and from such disease, within their jurisdiction, Other Extraordinary Remedies, it is said: shall immediately exercise and maintain a “The general rule of noninterference with supervision over such case or cases during the exercise of discretionary powers legally their continuance, seeing that all such cases conferred applies with exceptional force are properly cared for and that the provi- and appropriateness to municipal bodies sions of this act as to isolation, restriction having extensive and important trusts of of communication, placarding, quarantine a public character confided to them, and beand disinfection are duly enforced. The lo- ing generally vested with important legiscal board of health or health officer shall lative powers. And it is a well-settled eqcommunicate without delay all information uitable doctrine that the domain of discreas to existing conditions to the state board tionary powers conferred upon municipal of health. Said health officer will confer per- bodies will in no case be invaded by the sonally, if practicable, otherwise by letter, courts. This rule is very strictly adhered with the physician in attendance upon the to with respect to the legislative powers case, as to its future management and con- conferred by statute. So long as the mutrol and with the authorities of the place, nicipal body does not transcend the scope as to their duties in the premises. Should of its authority to enact ordinances, or viothe disease show a tendency to become ep- late any of the limitations to the exercise idemic, the public and private schools must of such power, it will not in the absence of be closed, and, in extreme cases, church serv- fraud be interfered with by injunction. Nor ices suspended and public assemblages of will courts, when it is found that municipal people at shows, circuses, theaters, fairs or legislative bodies have acted in good faith other gatherings prohibited. In case of and within the scope of the authority confersmallpox, a general and thorough vaccina- red upon them, investigate as to the wisdom tion should be recommended and insisted or expediency of their action, or interfere upon.” Section 3308. "All persons sick with because in the light of circumstances the smallpox, cholera, scarlet fever, diphtheria, court would have acted differently.” In the epidemic cerebro-spinal meningitis or any case of Baltimore v. Fairfield, 87 Md. 352, contagious or infectious diseases dangerous 360, 39 Atl. 1081, 1082, 40 L. R. A. 494, 495, to the public health shall be thoroughly iso- 67 Am. St. Rep. 344, 345, it was said: “The lated from the public and properly quaran- statute law of the state confers upon the tined." Section 3309. “Any person found mayor and city council plenary power to guilty of violating any of the provisions of establish, both within and beyond the city this act or failing to comply with any re- limits, hospitals and pesthouses for the iso

fectious diseases.

The preserva- , istrate committing a person upon a criminas tion of the public health renders such legis- charge, and he is upon such proceedings dislation highly essential, and the authority of able cause to hold him for trial, there is no

charged by the district court for want of probthe General Assembly to enact it, in the ex- authority for an appeal to this court from the ercise of the police power of the state, is order discharging the prisoner. beyond question or controversy. Within [Ed. Note.-For other cases, see Habeas Corthe scope of the power thus granted the pus, Cent. Dig. § 106; Dec. Dig. $ 113.*] whole authority of the state is included and

(Syllabus by the Court.) delegated (Harrison v. Mayor, etc., 1 Gill,

Appeal from District Court, Leavenworth 264); and therefore whatever the state may County; Eli Nirdlinger, Judge Pro Tem. directly do in furtherance of these objects

George Ray was discharged on habeas corthe municipality, clothed with a delegated pus and the State appeals. Dismissed. power from the state, may also lawfull perform." In the case of Frazer v. Chica

F. S. Jackson, Atty. Gen., and Lee Bond, go, 186 Ill. 480, 57 N. E. 1055, 51 L. R. A. Co. Atty. (W. W. Hooper, of counsel), for the 306, 78 Am. St. Rep. 296, the above language State. John T. O'Keefe, for appellee. is quoted and approved. In the case of Burwell v. Commissioners of Vance County, 93

BENSON, J. The defendant was arrested N. C. 73, 53 Am. Rep. 454, the second sylla- upon a charge of perjury, and upon a prebus reads: “An injunction will not be grant- liminary examination was held for trial in ed to restrain or supervise the exercise of the district court. He was then taken from the discretion conferred by law upon public the custody of the sheriff in proceedings in officers in the discharge of their duties."

habeas corpus before the district court, and In this case the city and its officers were upon the trial was discharged. From this orprohibited from performing an important der the state appeals. public duty—one which, by the statute, they

The record contains the testimony given beare expressly and clearly commanded to do.fore the committing magistrate which was To the extent that the duty was performed repeated on the trial in the district court, toit seems to have been done in good faith, gether with other evidence; but, in view of for the best interests of all persons concern- | the conclusions reached, it will not be necesed, and, under the circumstances shown, sary to review this evidence. with commendable promptness and good The question whether the order discharging judgment. The building selected belonged the defendant is appealable must be considto the public and was the best that could be ered. Section 672 of the Civil Code provides obtained in the city. The location was as that: "No person shall be discharged from free from objection as could have been se- an order of commitment issued by any judicured. The claim that the use of the park cial or peace officer for want of bail, or in for this purpose operated to divert it to an cases not bailable, on account of any defect illegal use does not seem to be well taken. in the charge or process, or for alleged want The park is public property, given by a ded- of probable cause; but in all such cases the ication which does not limit its use. It court or judge shall summon the prosecuting might be used for any public purpose. A witnesses, investigate the criminal charge, pesthouse is a public purpose for which it and discharge, let to bail, or recommit the might be properly used temporarily in an prisoner, as may be just and legal, and recogemergency such as existed here.

nize witnesses when proper." Gen. St. 1901, Under these circumstances, an injunction $ 5168. The same provision is continued as preventing the performance of this duty section 700 of the Civil Code of 1905 (Laws was improper and erroneous. The tempora- 1909, p. 459, c. 182, § 700).

| , . $ This court has ry injunction is dissolved, and the costs are held that: “Under this section we hold that taxed to the appellee. All the Justices con- when a writ of habeas corpus issues on a curring.

complaint of illegal imprisonment, for alleged want of probable cause, the judge or court issuing the writ may, even in cases where

there is no defect in the charge or process, STATE V. RAY.

summon the prosecuting witness, investigate (Supreme Court of Kansas. Nov. 6, 1909.) the criminal charge, and discharge, let to 1. HABEAS CORPUS ( 21*)-WHEN GRANTED. bail, or recommit the prisoner, as may be just The Civil Code (Gen. St. 1901, $ 5168; and legal. This section gives a party commit

, ] 700) | gives a party committed for a crime by an ex- ted for a crime by an examining magistrate amining magistrate an appeal to the district an appeal from his commitment by virtue court by the writ of habeas corpus.

of the writ of habeas corpus.” In re Sny[Ed. Note.-For other cases, see Habeas Cor- der, Petitioner, etc., 17 Kan. 542, 552. In pus, Cent. Dig. $ 19; Dec. Dig. & 21.*]*

this case, as in that, the appeal was taken 2. HABEAS CORPUS ($ 113*). - DISCHARGE OF upon the ground that the facts proven before PETITIONER-APPEAL BY STATE.

Where an appeal is so taken to the dis- the magistrate did not show the commission trict court from the order of an examining mag- of a crime; in other words, that there was

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