amount of the plaintiff's damages was submitted to a jury, which returned a verdict in favor of the plaintiff for $350. Thereafter the plaintiff's application for a new trial was denied, and this appeal was taken. The contention that the court erred in submitting the issue as to the amount of damages to a jury is clearly untenable. The question is not whether either party was entitled to a jury trial as a matter of right. It is simply whether the court was compelled to either try or refer such issue. There can be no doubt of the court's right to order the trial of the question of damages by jury. Such course in mandamus cases is expressly authorized by the statute (Comp. Laws, §§ 5522, 5527). While the order denying the plaintiff's application to have the proceeding tried during the regular November, 1899, term recites that no note of issue or notice of trial was served prior to the commencement of such term, it does not affirmatively appear that the court's refusal to try the case at that term was based upon the ground that a note of issue and notice of trial had not been served. It therefore should be assumed that the court, in the exercise of its discretion, declined to try the case at that time; and, as no abuse of discretion appears, its action will not be reversed. Where, as is usual in mandamus proceedings, the principal relief sought is to compel the performance of some act which the law specially enjoins as a duty resulting from an office, trust, or station, there should be as little delay as possible in conducting the proceedings; but where, as in the case at bar, the only remaining issue is the amount of damages, there is no reason for greater haste than in ordinary actions. The view we have taken renders it unnecessary to decide whether notes of issue and notices of trial are required under any circumstances in mandamus proceedings. The premises involved consisted of certain buildings in Sioux Falls; one of them being a large office building, with an elevator, and requiring the services of employés to properly care for its occupants. It is conceded that plaintiff was deprived of possession from June 22 to October 21, 1897. It is also conceded that the measure of his damages is the value of the use of the property during that period, the only controversy being as to the correct method of ascertaining the value of such use. It would appear that the evidence was received and the cause submitted to the jury on the theory that the rental value of the premises should be determined by adding to the amounts actually collected of tenants such sums as might have been collected for the use of other portions of the premises in the exercise of reasonable diligence to secure additional tenants and make collections, less the reasonable expense of operating the premises. We do not think this method should have been pursued, but the plaintiff is not in a position to complain, as he opened his case by introducing evidence, against the defendant's objections, showing the gross amount of moneys received during the period for which he was entitled to recover. We think the court, in ruling upon the introduction of evidence and in charging the jury, consistently followed the only proper method of ascertaining the amount of plaintiff's recovery, in view of the evidence offered by the plaintiff. The plaintiff requested the court to charge the jury that they should add to the amount found to be due the plaintiff interest at 7 per cent. per annum from October 21, 1897, to the date of the verdict. This request was refused, and the jury instructed that they might add interest or not, in their discretion, at 7 per cent. from that date to the time of the trial. As the recovery was for the breach of an obligation not arising from contract, the allowance of interest was properly left to the discretion of the jury. Comp. Laws, 4578. The judgment is affirmed. MOEN V. MOEN. (Supreme Court of South Dakota. Oct. 7. 1902.) DESCENT-ILLEGITIMATE CHILD ACKNOWLEDGMENT OF PATERNITY-STATUTES 1. Comp. Laws, § 4763, enacts that the provisions of the Code are to be liberally construed with a view to effect its objects and promote justice. Section 2733 provides that real property within the territory is governed by its laws. Section 3403 makes every illegitimate child an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child. Prior to the taking effect of section 3403, in 1877, a nonresident alien acknowledged in writing, in the presence of competent witnesses, that he was the father of an illegitimate child. Held, that on his Ideath after section 3403 took effect the child was his heir as to his realty in South Dakota. Appeal from circuit court, Lincoln county; Joseph W. Jones, Judge. Action by Johanna Bertina Johnsdatter From a judgMoen against John J. Moen. ment for defendant, plaintiff appeals. Reversed. P. J. Rogde and Frank R. Aikens, for appellant. O. S. Gifford, E. C. Ericson, and C. E. Benedict, for respondent. HANEY, P. J. In this action the learned circuit court found the facts to be as follows: "(1) That the plaintiff herein is the illegiti mate child of John Johannessen Moen, otherwise known as John K. Moen, deceased, described in the plaintiff's complaint. That she was born in Norway, Europe, on or about the 24th day of September, 1874, where she resided until the year 1893, when she came to South Dakota, and has since lived in said state. That Britta Iverson was the mother of plaintiff, and that she was also born and at all times lived in said Norway, Europe, where she now lives. (2) That the said John Johannessen Moen, otherwise known as John K. Moen, was born and lived in said Norway, Europe, until the latter part of 1874, or the early part of 1875, when he came to the United States, and settled in the territory of Dakota. That the said John Johannessen Moen, otherwise known as John K. Moen, did, before leaving said Norway, but while a resident and citizen of said country, and after the birth of plaintiff, to wit, in the latter part of the year 1874, acknowledge himself to be the father of the plaintiff, in writing, signed and executed by him, the said John Johannessen Moen, and in the presence of a competent witness. (3) That the said John Johannessen Moen, otherwise known as John K. Moen, came to the territory of Dakota in 1875, settled and made a homestead filing or entry upon the land described in plaintiff's complaint, as follows, to wit, the northeast quarter of section 30, in township 96 north, of range 49 west of the fifth principal meridian, Lincoln county, South Dakota; and the said John Johannessen Moen died in Lincoln county, Dakota territory, in the month of May, 1877, without completing or making final proof thereon. That the said John Johannessen Moen settled and filed upon said land under and by the name of John K. Moen, and that he never married. That he was, at the time of his death, a resident of Lincoln county, Dakota territory, and had been a resident thereof continuously since 1875. (4) That the defendant herein, John J. Moen, is a brother of the said John K. Moen, described in plaintiff's complaint. That the said defendant completed and complied with the requirements of the government regarding the improvement of said premises described herein, and made final proof upon the same, and presented said final proof to the government of the United States, whereupon the government did, on or about the 15th day of February, 1885, issue a grant or patent for said land to the heirs of said John Johannessen Moen, otherwise known as John K. Moen. That this defendant has been in possession of said premises since on or about the year 1885. That Johannes Knudsen Moen is the father of said John K. Moen and this defendant, and was living at the time of the issue of said patent to said premises by the government, and that he did, on or about the 21st day of March, 1887, convey said premises described in the complaint herein to the said defendant herein by quitclaim deed executed by him, the execution of which deed was acknowledged before the United States consul at Bergen, in said Norway, who duly certified to said acknowledgment over his official hand and seal. (5) That there was no law in Norway, Europe, at the time of the birth of plaintiff, nor has there been since, either written or unwritten, by which the plaintiff herein could inherit, under or by virtue of the instrument executed by said John Johannessen Moen, otherwise known as John K. Moen, and described in plaintiff's complaint and in the second finding of fact herein. (6) That John Johannessen Moen, otherwise known as John K. Moen, did not at any time publicly acknowledge the plaintiff as his child, nor did he treat her as if she were legitimate, nor did he adopt her in any manner as his child." The plaintiff contends that upon the facts so found the court below should have concluded that she was the absolute owner and entitled to the possession of the premises described in the complaint, instead of deciding that defendant was the owner and entitled to the possession. The land in controversy was conveyed by the United States to "the heirs of John K. Moen." It was located in the then territory of Dakota, now state of South Dakota. Who are intended as grantees in such a conveyance depends upon the law of the state or territory wherein the land is situated. Investment Co. v. Caldwell, 152 U. S. 65, 14 Sup. Ct. 504, 38 L. Ed. 356. It is an established principle, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. U. S. v. Fox, 94 U. S. 315, 24 L. Ed. 192; Comp. Laws, § 2733. Our Civil Code contains the following rules relating to succession or "the coming in of another to take the property of one who dies without disposing of it by will": "If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue." "Every illegitimate child is an heir of the person, who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child." Comp. Laws, 88 3399, 3401, 3403. The Civil Code now in force in this state had its origin in the report of a New York commission, which first took the form of a statute in an act passed at the fifth session of the legislative assembly of Dakota territory, approved January 12, 1866. The same report, revised and amended, was enacted as the Civil Code of California in 1873. In 1875 a commission was created to revise and codify the laws of Dakota territory. This commission revised the Civil Code then in force, incorporating therein many of the amendments made by the legislature of California. Its labors resulted in the Revised Codes of 1877, which took effect February 17, 1877. The provisions relating to succession, heretofore quoted, are found in the California Code, but not in the territorial Code previous to the revision of 1877. Thus it would appear that the law relied upon by the plaintiff came from California, and was in force in the jurisdiction wherein the land in controversy was situated when her father died, but was not in force therein when he, in writing, In the presence of a competent witness, ac this case is ineffectual because it was executed before the statute took effect. A different conclusion was reached by the United States circuit court in Iowa. Hartinger v. Ferring (C. C.) 24 Fed. 15. We prefer, however, to follow the opinion of the supreme court of that state on this subject. In a recent case involving the right of an illegitimate child to inherit property in Iowa that court, speaking by Justice McClain, uses this language: "Appellees insist that evidence of recognition must be strictly limited to acts and conversations subsequent to the time when such recognition would by law entitle the plaintiff, if an illegitimate son, to inherit. For this contention they cite the case of Hartinger v. Ferring (C. C.) 24 Fed. 15, in which the circuit court of the United States for the Northern district of Iowa reached the conclusion contended for; but we think this position is untenable. The legislature, having the right to determine the rules of inheritance in accordance with which the property of persons subsequently dying shall be distributed, may provide as it sees fit with reference to who shall be heirs. There is no vested right to inherit until the death of the ancestor. It may, therefore, be provided that illegitimate children already born and recognized shall be considered heirs. The recognition contemplated by the statute is not recognition as prospective heir, but recognition as an illegitimate child; and whoever fulfills the conditions of the statute as to the right to inherit existing at the time of the death of the ancestor is entitled to inherit under the statute. There is nothing in the language indicating that it was to be applicable to such recognition as should afterwards be made. It describes a class of persons, and declares that persons of that description shall inherit. It does not refer to or create a status. It is prospective in its operation as to the right, but there is nothing to suggest that persons of the class described-that is, illegitimates already recognized knowledged himself to be her father. Though the facts relating to such acknowledgment, as found by the court below, comply literally with the language of the statute, defendant contends that the plaintiff did not succeed to her father's estate, because: (1) Such acknowledgment was executed before the statute took effect; and (2) because it was executed in Norway, where there was and is no law by which she could inherit under such an instrument. The statute does not, by its express terms, support respondent's contention. It relates to the subject of succession; it is broad and comprehensive, and should be "liberally construed with a view to effect its objects and to promote justice." Comp. Laws, § 4763. Undoubtedly, the principal object of the legislature was to enable an illegitimate child to inherit its father's estate, and incidentally to prescribe the character of evidence required to establish its paternity. Recurring to the language of the statute, when is a child an heir? Manifestly, upon the death of its ancestor. An heir, as the term is here used, is always appointed by the law. Its title is called into existence by the death of its ancestor, and its rights are governed by the law in force at the time of such death. 2 Washb. Real Prop. pp. 6-17. No one can take real property except those who are recognized as heirs by the law of the country where the property is situated. Story, Confl. Laws, § 483. No one has any vested rights in his ancestor's property until the latter's death. He may not survive the ancestor. The ancestor may dispose of the property by will, or the law of succession may be changed before his title becomes vested. The acknowledgment required by the statute cannot be executed after the ancestor's death. Hence the thought of the lawmaker would have been more accurately expressed in these words: "Every illegitimate child shall inherit of the person who, at the time of his death, shall have acknowledged himself to be the father of such child, in writing, sign--shall not inherit under it. It would be just ed in the presence of a competent witness." The inquiry demanded by the statute to be answered at the time of the property owner's death is simply this: Has the paternity of the person claiming to be an heir been acknowledged by the deceased, in writing, signed in the presence of a competent witness? The time and place of such acknowledgment are not prescribed by the statute. have been made at any place and at any time after the birth of the claimant and before the death of the ancestor. The effect of the acknowledgment is to clothe the child with the same rights as to real property as are possessed by one born in lawful wedlock. This is clearly what the legislature intended, and it was within the legislative power to make such rules regarding succession to real property within its jurisdiction as it deemed expedient. There is, therefore, no merit in the contention that the acknowledgment in It may as reasonable to limit the provisions of the statute to illegitimates afterwards begotten and born as to so limit it to illegitimates afterwards recognized, and it would be just as reasonable in the one case as in the other to argue that to adopt a construction making it applicable to existing illegitimate children would be to give the statute a retrospective effect." Alston v. Alston (Iowa) 86 N. W. 55. If the acts constituting the acknowledgment are in themselves such as the statute prescribes, they confer the right to inherit in the state where the real property is situated, without reference to the intent with which they were performed. In re Rohrer's Estate (Wash.) 60 Pac. 122, 50 L. R. A. 350; Blythe v. Ayres (Cal.) 31 Pac. 915, 19 L. R. A. 40; Brock v. State, 85 Ind. 397; Crane v. Crane, 31 Iowa, 296. It is, therefore, wholly immaterial what law existed in Norway relating to the recognition of illegitimate chil Robert C. Hayes, State's Atty., for appellant. Moody, Kellar & Moody, for respondents. Iren when the writing in this case was signed by the plaintiff's father. It may be conceded that he neither knew nor intended that its execution would confer upon the child the right to inherit his property in any jurisdic- HANEY, P. J. The question presented by tion. Nevertheless, it had the effect of fur- this appeal is whether certain real property nishing the proof required by the laws of in Lawrence county, owned jointly by Golden this jurisdiction to establish the fact that he Star Lodge, No. 9, A. F. & A. M., and Lead was the father of the child, and such fact City Lodge No. 17, I. O. O. F., is exempt from being thus established makes her an heir of taxation. It appears that these lodges own her deceased father, and entitled to the land "the west 30 feet of block 2, lot 12, according in controversy. We do not apprehend that to the Hopkins map of the city of Lead," the decision in Eddie v. Eddie (N. D.) 79 N. whereon is situated a two-story brick buildW. 856, 73 Am. St. Rep. 765, conflicts with ing, the basement and upper story of which this conclusion. In that case the father are used by the lodges for the purpose of never acknowledged the children to be his holding their meetings and transacting their own by any written instrument. The court business, and by other charitable, religious, was dealing with the statute of North Da- and fraternal organizations to which the same kota relating to the adoption of children, and from time to time are rented; that the lower may have been right in concluding that the story of the building is rented and occupied status of the persons claiming to have been by a retail store, but the entire proceeds of adopted by acts performed in Norway could such rentals are applied to religious and not be determined by the law of North Da- charitable purposes, and none other; that kota. Here we are dealing simply with a the lodges cannot, under and by virtue of the rule of succession as it was in force and terms of their organizations, distribute any affected title to real property in Dakota ter- of the proceeds of such rentals to any of their ritory at the time of the owner's death. If, own members, pay any dividends, or use any however, our views do conflict with the de- of such rentals for any commercial business, cision in North Dakota, we cannot, with all speculative or mercantile purposes, or for any due respect to the able court of that state, other than religious and charitable purposes, arrive at any other conclusions than those and in paying ordinary and usual operating announced herein. Upon the facts as found expenses, which are of a trivial and insignifiby the learned circuit court, we think the cant character; and that the disposition of plaintiff should have been adjudged to be the rentals received by the lodges is not the owner in fee and entitled to the posses- confined to their own members, but that the sion of the premises in controversy. proceeds of such rentals are distributed to sundry public charities, and for the benefit of the needy, indigent, and suffering poor, whether members of the order or not. Not having appealed, the defendant is in no position to question the correctness of the findings of fact. The judgment of the circuit court is reversed, and the case remanded, with directions to enter a judgment decreeing the plaintiff to be the owner in fee of the premises described in the complaint, and entitled to the possession thereof, and for her costs and disbursements. STATE ex rel. HAYES, State's Atty., v. TAXATION-EXEMPTIONS-USE FOR CHARITY. Appeal from circuit court, Lawrence county; Joseph B. Moore, Judge. Certiorari proceeding by the state of South Dakota, on the relation of Robert C. Hayes, state's attorney for Lawrence county, against the county board of equalization for said county, and the members thereof. Judgment for defendants. Plaintiff appeals. Reversed. Article 11 of the state constitution contains these provisions: "Sec. 5. The property of the United States and of the state, county, and municipal corporations, both real and personal, shall be exempt from taxation. "Sec. 6. The legislature shall, by general law, exempt from taxation, property used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, and personal property to any amount not exceeding in value two hundred dollars, for each individual liable to taxation. "Sec. 7. All laws exempting property from taxation, other than that enumerated in sections 5 and 6 of this article, shall be void." The statute, so far as applicable to this case, reads as follows: "All property described in this section to the extent herein limited shall be exempt from taxation, that is to say: **Third. All property belonging to any charitable, benevolent or religious society, or used exclusively for charitable, benevolent or religious purposes." Laws 1897, c. 28, § 5. In so far as the statute is broader than the constitution, it is conceded to be invalid. The inquiry, therefore, will be whether the property is exempt under the organic law. It is also conceded by counsel that the owners of the property are organized for charitable purposes, within the meaning of the constitutional provision quoted. This proposition will be accepted for the purposes of this appeal, without expressing any opinion concerning the rights of fraternal organizations, as such, to claim exemptions. Assuming, then, that these lodges existed for charitable purposes, and that their property is exempt while used exclusively for the purposes for which they are organized, we will proceed to consider whether the property involved in this action is being so used. Appellant contends that, whereas the lower story of the building is occupied by a stock of merchandise, the property to that extent is used for the purpose of retailing merchandise, and is not exempt. On the other hand, it is insisted by respondents that, whereas the rentals of the storeroom are used for charitable purposes, the entire property is so used, and consequently exempt. Therefore the controversy turns upon the meaning of the word "use," as employed in the statute. The verb "use" is thus defined by Webster: "To make use of; to employ; to put to a purpose; as to use a plow; to use a chair; to use a book; to use time; to use flour for food; to use water for irrigation." In the language of Judge Brewer: "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." Washburn College v. Shawnee Co. Com'rs, 8 Kan. 344. To avail themselves of the exemption claimed in this action, the owners of the property must show themselves to be clearly within the exception as defined and limited by the constitution. Do not the express terms of that instrument require that the property itself shall be exclusively used for the excepted purpose? As the constitutional provision on this subject is substantially the same in Kansas as in this state, we quote at length from a decision by the supreme court of that state: "Under the laws of this state, all property not expressly exempted is subjected to taxation. Gen. St. p. 1019, c. 107, § 1. And no property is exempted because it is used for educational purposes 92 N.W.-2 unless it is exclusively so used. Const. art. 11, § 1. Property used partially for educational purposes and partially for some other purpose is not exempt. Even property used mainly for educational purposes, but not exclusively, is not exempt. In the present case we shall not discuss separately the taxability of each article or piece of property claimed to be exempt, but shall discuss more especially the taxability of the inclosed arable and cultivated land; for, if any portion of the plaintiff's property is exempt from taxation, it is certainly that portion. This property was used for at least three purposes: (1) It was used for the purpose of teaching certain Indians agriculture; (2) it was used for the purpose of raising food for a large amount of live stock kept on the farm, and food for said Indians, their tutors, etc.; (3) it was used for the purpose of raising produce to sell. The proceeds of the sales, however, were used to feed and clothe the Indians, to feed and clothe 'the employés in their training,' and to feed and clothe 'the missionaries among them.' We suppose it will be conceded that, if the property were used exclusively for the purpose of teaching the Indians agriculture, it would be exempt. But even this may not be certain, for agriculture was hardly considered a branch of education when our constitution was framed. For the purposes of this case, it may also be conceded that if the property were used exclusively for teaching the Indians agriculture, and for raising food for them and the professors, and the necessary stock kept on the farm, it would still be exempt. But when it is used to raise food for stock not necessary to be kept on the farm, and to raise produce to sell, no further concessions in favor of its exemption can be made. Such use goes at least one step beyond where concessions can be made in favor of its exemption. It is solely the use of the property which determines whether the property is exempt or not. Washburn College v. Shawnee Co. Com'rs, 8 Kan. 344. It makes no difference who owns the property, nor who uses it. Property used exclusively for educational purposes is exempt, whoever may own it or whoever may use it. Property not used exclusively for educational purposes, if otherwise taxable, is not exempt, whoever may own it or whoever may use it. And this use must be direct and immediate, and not indirect or remote. Cincinnati College v. State, 19 Ohio, 110. If a farm be used for the purpose of raising produce to sell and get money to carry on a school, it will not be exempt. The use for educational purposes is in such a case too remote. The immediate or primary object for cultivating the farm in such a case is to obtain the produce, the secondary object is to obtain the money that the produce will bring, and the remote object is to aid and foster the school. The farm itself, in such a case, is not used in teaching anything or in illustrating or explaining anything, as books, |