Gambar halaman

ity of contracts made by such corporations, ages of the city. Green River Asphalt Co. an action by a foreign corporation must be v. City of St. Louis, 87 S. W. 985, 986, 188 stayed during the period of its noncompli- Mo. 576. ance with the law, on noncompliance being

The word "maintain," within Gen. St. properly pleaded in abatement; the word 1902, § 388, requiring widows to “maintain" "maintain" carrying a different meaning and keep in repair the property set apart to from "institute” or “begin," and implying them as dower, does not mean "to provide" that an action has been begun before it can

or "construct," but means to "keep up, not be maintained. National Fertilizer Co. v. to suffer to fail or decline”; “keep in repair" Fall River Five Cents Sav. Bank, 82 N. E. and “maintain” as used in the statute being 671, 672, 196 Mass. 458, 14 L. R. A. (N. S.) synonymous. Ferguson v. Rochford, 79 Atl. 561, 13 Ann. Cas. 510.

177, 178, 84 Conn. 202, Ann. Cas. 1912B, 1212. The words "may maintain an action,"

The word "maintain" is practically the as generally used, mean may successfully same thing as "repair,” which means to remaintain an action. Greentree v. Wallace, store to a sound or good state, after decay, 93 Pac. 598, 599, 77 Kan. 149 (citing and dis- injury, dilapidation, or partial destruction, tinguishing In re Massey, 42 Pac. 365, 56 and, when used in reference to railroad right Kan. 120).

of way, includes the idea of keeping the right As having control and custody of place of way in such a condition that it can be

A hotel porter who, for a guest of the used for the purpose for which it was inhotel, received and stored in a room of the tended. Missouri, K. & T. R. Co. of Texas v. house a barrel of bottled beer belonging to Bryan (Tex.) 107 S. W. 572, 576 (citing Verthe guest, and who afterwards, as required din v. City of St. Louis (Mo.) 27 S. W. 447). by the guest, iced the liquor and served it at

As make the guest's room, where it was drunk by him

See Make. and his friends, was guilty of maintaining a place where persons were permitted to re- As operation sort for the purpose of drinking intoxicating

The word “maintain," as used in a conliquor as a beverage, contrary to the provi- tract by which the owners of an adjoining sions of Laws 1901, c. 232, § 1 (Gen. Stat. office building agreed on a common entrance 1909, § 4387). State v. Ross, 121 Pac. 908, and hallway on the center line dividing the 909, 86 Kan. 799.

premises, and to pay the expense of keeping As erection

up and "maintaining" common conveniences The word “maintain” ordinarily means including an elevator, was held to include the to preserve something which is already in operation of such elevator, and not simply to existence; but, considering that, by the use

mean to put it in and have it stand idle at of the words “unless one of them chooses to the behest of one of the parties, which was let his land lie without fencing,” Civ. Code, contrary to the construction given the con$ 1301, declaring that coterminous owners tract by sharing the expense of operation. are mutually bound equally to maintain the Globe Ins. Co. v. Wayne, 80 N. E. 13, 18, boundaries and monuments between them 75 Ohio St. 451. and the fences between them, unless one of Permanence them chooses to let his land lie without fenc

Defendant railroad in May, 1848, coveing, applies to land not fenced, it is comprenanted with plaintiffs' predecessors, their hensive enough, in the light of the subject heirs and assigns, to construct and maintain matter, to include the erection, as well as the a turnout and side track at Dorsey's Run, to maintenance, of the fences. Hoar v. Hen

take up and set down at the siding by denessy, 74 Pac. 452, 454, 455, 29 Mont. 253. fendant's passenger cars all persons going to Keep synonymous

and from the farm then occupied by the first See Keep.

parties and to leave at the siding to be un

loaded all freight weighing at least 3,000 As keep in repair

pounds shipped to the first parties on which Where plaintiff, under a contract with the cost of transportation had been paid at abutting property owners, constructed a the place of loading. Defendant complied payement and agreed to "maintain and keep with its covenant until 1907, when it conit in repair" for a period of five years, and structed a cut-off on its main stem by which after the pavement was completed it was a large part of the right of way over plaintorn up and damaged by the bursting of a tiff's land was abandoned, when it discontinwater main beneath the surface of the street, ued the turnout, and refused longer to mainplaintiff's contract to "maintain and keep tain a station at that point. Held, that the in repair" did not impose on it the duty of word “maintain" as used in such covenant repairing a damage of the kind in question, did not require defendant to continue the but merely contemplated such repairs as turnout and station permanently, and that use and wear might render necessary. Hence the length of time during which the covenant in repairing the pavement plaintiff was a had been complied with constituted a submere volunteer and could not recover dam-stantial performance thereof, so that the railroad company was not liable for dam- law, which provides for the creation as well ages for its breach. Whalen v. Baltimore as maintenance of a road system. Ex parte &0. R. Co., 76 Atl. 166, 167, 112 Md. 187. Cooks (Tex.) 135 S. W. 139, 141. As rebuild or reconstruct

Establishment of highway The word "maintain" in a contract for Const. art. 3, § 56, subd. 5, declares that the extension of a railway branch from a the Legislature shall not, except as otherrailroad company's railroad to the mines of wise provided in the Constitution, pass any a mining company, whereby the mining com- local or special laws authorizing the laying pany agreed to construct the substructure, out, opening, altering, or maintaining of and the railroad company to lay the track of roads. Article 11, § 2, declares that the laythe branch railroad, and to "maintain" and ing out, constructing, and repairing of county operate the same, requires the railroad com- roads shall be provided for by general laws. pany to reconstruct a bridge constructed by Article 8, § 9, declares that the Legislature the mining company after the bridge was may authorize an additional ad valorem tax washed away by an extraordinary freshet, for the further maintenance of the public though the bridge would become the mining roads, and that the Legislature may pass company's property after being completed local laws for the maintenance of public under the contract which contemplated that roads or highways without the local notice rethe structure should remain the mining com quired by special or local laws. Section 9, pany's property. Louisville & N. R. Co. v. art. 8, was added to the other provisions by United States Iron Co., 101 S. W. 414, 419, amendment. Held, that the word "mainte118 Tenn. 194.

nance" as used in article 8, § 9, included As supplying food

the laying out and constructing of roads, and

hence Acts 24th Leg. (Laws 1895) p. 213, c. Laws 1903, p. 14, c. 13, appropriating 132, creating a road system of Dallas county, money for “maintaining" the executive resis was not unconstitutional. Dallas County v. dence, does not authorize the employment of Plowman, 91 S. W. 221, 222, 99 Tex. 509. any part of the sum so appropriated for the purchase of provisions to be used there.

As rebuild or reconstruct Bailey v. Kelly, 79 Pac. 735, 70 Kan. 869. Ky. St. Å 1840, giving the fiscal court

power to appropriate county funds for the MAINTENANCE

maintenance of highways, and section 4306, The Kingston city charter created a giving the fiscal court general charge and board of water commissioners, with power, supervision of the public roads with authorwith the consent of the common council, to ity to repair same, the fiscal court had power construct and maintain a waterworks sys- to reconstruct a turnpike road. Hanlon v. tem. Section 98 provided that the moneys Cleary, 133 S. W. 953, 954, 142 Ky. 46. derived therefrom should be applied to the

State institution payment of the cost of maintaining, operating, and extending the waterworks, and to

The provision for “maintenance,” in the payment of principal and interest on

Laws 1907, p. 18, c. 23, making appropriabonds as they fall due. The board, by section tions for the Institution of the Feeble Minded 99, was given power to keep the system in at Grafton, does not include employé's wages, operation independent of the city council, fuel, etc., for which specific sums were apand to ix and collect water rates, and make propriated, but does include the cost of food and enforce rules and regulations. By sec

and clothing of inmates; there being no spetion 101 the moneys derived from water rates cific appropriation for these items. State v. and penalties were required to be paid to the Lewis, 119 N. W. 1037, 1039, 18 N. D. 125. city treasurer, to be credited to the water MAINTENANCE (Of Manual Training fund and applied to the payment of expenses

School) of ordinary maintenance and management, the balance, if any, to the payment of prin the husband of testatrix to found an institu

A will recited that it was the purpose of cipal and interest on bonds, and any surplus still remaining to be used for any lawful tion wherein sound business principles might Held, that additional filters,

be taught, and where pupils might be fitted requiring an expenditure of $16,235, was not for manufacturing and business careers, and an ordinary “maintenance” expense, and that that to carry out his wishes she made a do the board bad no power to incur such ex

nation to prepare, construct, and maintain a pense without the consent of the city council. manual training school to teach cooking, sewCoykendall v. Harrison, 134 N. Y. Supp. 446, ing, and domestic economy to girls, and all 450, 150 App. Div. 46.

things of mechanical and other technical

work to young men, and to teach both boys Creation of road system

and girls such things as are usually taught Const. art. 8, § 9, providing that the Leg. in modern manual training schools, and reislature may pass local laws for the "mainte-quired the city to raise a specified sum for nance" of public roads without the local no- the purpose, and provided that thereupon the tice ordinarily required for special laws, is property should be transferred to the city to applicable to the Shelby county special road ' perpetually maintain the school. Held, that

city purpose.

the will contemplated the "maintenance of nephew's maintenance and education; that a manual training school" within St. 1898, 8the nephew took no interest in the surplus 496b, as amended by Laws 1907, c. 503, and proceeds; that the "maintenance" contemthe charter of the city (Laws 1891, c. 59), au- plated was maintenance during the nephew's thorizing the maintenance of schools of man- minority; and that he, having reached his ual training, so that the city could accept majority before testatrix's death, is only enthe donation and comply with the conditions. titled to such part of the proceeds of the land Maxcy v. City of Oshkosh, 128 N. W. 899, on the husband's death as may be necessary 905, 144 Wis. 238, 31 L. R. A. (N. S.) 787. to educate him for a profession, if he in

good faith desires to be so educated. Knight MAINTENANCE (Of Office)

v. Collins (Ky.) 113 S. W. 131, 133. Under Stock Corporation Law (Consol. Permanent alimony synonymous Laws 1909, c. 59) § 33, which provides that

“ 'Maintenance and 'permanent alimony' every foreign stock corporation, having an office for the transaction of business in the are synonymous terms and mean an allow

ance in money to be recovered on decree of state, shall keep therein a stockbook, con

divorce from the party in fault for the suptaining the names of stockholders, the number of shares held by them, and the amounts Huffman, 86 Pac. 593, 595, 47 Or. 610, 114

port of the innocent party." Huffman V. paid thereon, which shall be open for the in

Am. St. Rep. 943. spection of stockholders, judgment creditors, and certain authorized state officers, and As support that, if any such foreign stock corporation The "maintenance" of dependents is such has a transfer agent, such stockbook may be support as consists in the furnishing of food, deposited with such agent, to be open to the clothing, lodging, or education. “Maintesame inspection, subject to a penalty on re nance" in the matter of clothing does not refusal, imposes such duty only upon stock fer to occasional gifts of clothing, but such corporations having an office for the trans- a regular supply of clothing as may be reaaction of business in this state; and the sonably necessary to make the body comfortmere fact that a foreign corporation, which able. Western Commercial Travelers' Ass'n, does not own, rent, or occupy an office of its v. Tennent, 106 S. W. 1073, 1077, 128 Mo. own within the state, has a transfer agent App. 541 (quoting Alexander v. Parker, 33 for the convenience of stockholders, does not N. E. 183, 144 ni. 355, 19 L. R. A. 187). constitute "the maintenance of an office for the transaction of business," and hence the MAINTENANCE (Of Suits) transfer agent is not subject to a penalty up- See, also, Champerty. on refusal to allow inspection of the stock

Maintenance is an officious intermedbook. Wadsworth v. Equitable Trust Co. aling in a suit that in no way belongs to one of New York, 138 N. Y. Supp. 842, 153 App. by assisting either party, with money or othDiv. 737.

erwise, to prosecute or defend. It is said MAINTENANCE (Of Persons)

to be an offense against good morals, in that

it keeps alive strife and perverts the remedial Kirby's Dig. $ 3803, requiring a guard- powers of the law into an engine of oppresian to give bond to faithfully conduct a sale, sion. Lacey v. Davis (Iowa) 98 N. W. 366, etc., applies only to sales for reinvestment, 367 (quoting 6 Cyc. p. 850); Smith v. Hartand a sale to discharge a mortgage on other sell, 63 S. Ē. 172, 174, 150 N. C. 71, 22 L. R. land was not a sale for reinvestment, though A. (N. S.) 203; Gelo v. Pfister & Vogel Leaththe petition and order for sale designated iter Co., 113 N. W. 69, 70, 132 Wis. 575 (quotas such; the words "education” and “mainte-ing and adopting definition in Andrews v. nance” in another statute authorizing sales Thayer, 30 Wis. 228, 233); Mud Valley Oil being broad enough to authorize a sale to & Gas Co. v. Hitchcock, 81 N. E. 111, 112, 40 protect the ward's estate. Harper v. Smith, Ind. App. 105 (citing Anderson's Law Dict.; 116 S. W. 674, 675, 89 Ark. 284, 131 Am. St. 4 Black. Comm. 135). "The terms of this Rep. 93.

definition obviously do not include all kinds Testator devised land to her husband, of aid in the prosecution of defenses of anwith power to sell and to have the proceeds, other's cause, and it has therefore always but charging the land or its proceeds with been held not to extend to persons having an the maintenance of a nephew, 14 years old interest in the thing in variance, nor to perwhen the will was made, and with the ex- sons acting in the lawful exercise of their pense of preparing him for "any profession profession as counsel or attorneys at law. he may wish” or testatrix's husband might Nor does the doctrine of the common law as "think best,” and reciting that it was suppos-) to maintenance apply to persons who either ed that the charge would take all the land or have a legal interest in the suit prosecuted by its proceeds, but that, if it did not, the re-them, or who act under the bona fide belief mainder was left to the husband to give to that they have." Gelo v. Pfister & Vogel the nephew or “to dispose of as he may Leather Co., 113 N. W. 69, 70, 132 Wis. 575 wish." Held, that the husband took a fee- (quoting and adopting definition in Davies v. simple title subject only to the charge for the Stowell, 47 N. W. 370, 78 Wis. 336, 10 L. R.

A. 190). Such contracts are unenforceable at, in the United States. The first two are common law, as they tend to pervert the pro- known as the "major leagues,” and the last cess of the law into an engine of oppression. as the “minor league.” Kelly v. Herrman, Mud Valley 01l & Gas Co. v. Hitchcock, 81 N. 155 Fed. 887, 888. E. 111, 112, 40 Ind. App. 105. Entire want of interest

MAJORITY "Maintenance" is an officious intermed

See Requisite Majority. dling in a suit that in no wise belongs to one,

See, also, Votes Cast. by maintaining or assisting either party with money or otherwise, to prosecute or defend By the word “majority" is meant the it "Champerty,” which is a species of main greater number; more than half of the whole tenance, is the unlawful maintaining of a number or a given number or group. A masuit in consideration of some bargain to have jority of voters is a greater part of such a part of the thing in dispute or some profit voters. Mills v. Hallgren, 124 N. W. 1077, out of it; the champertor agreeing to carry 1079, 146 Iowa, 215. on the suit at his own expense. Where, how- L. 0. L. 4052, subd. 14, authorizing ever, the person promoting the suit of an- selection of a school building site by a “maother has any interest in the subject-matter, jority of the voters present" at a school meethe is justified in participating and is not ing, requires a vote of more than one-half guilty of officious intermeddling within the of those present, and not a mere plurality. definition of "champerty” or “maintenance." Baxter v. Davis, 113 Pac. 438, 58 Or. 109 Finlen v. Heinze, 73 Pac. 123, 127, 28 Mont. (citing 5 Words and Phrases, p. 4286). 548.

Wherever the words "the council for Champerty distinguished

the time being shall, by a majority vote of "Maintenance” is defined as an "officious all the members elected,” or words of like imintermeddling in a suit that no way belongs port, occur in the charter of a municipal to one, by assisting either party, with money corporation, relative to the members of the or otherwise, to prosecute or defend." The common council thereof, they will be conoffense may be committed by stepping in aft- strued to mean a majority of the whole numer litigation has been begun, as by encourag- ber of members to which the common coun

Wood v. ing and aiding its origin. "Champerty” is cil is entitled under the charter. generally treated in connection with "main- Gordon, 52 S. E. 261, 262, 58 W. Va. 321 (distenance." The champertor has in view a tinguishing Osburn v. Staley, 5 W. Va. 85, 13 profit to himself in a share of the spoils of Am. Rep. 640). the litigation. The maintainer is more of a In a will devising property to four trusvoluntary intermeddler and stirs up the tees named “and to the survivors of them," strife for the love of it. He is described as and empowering them to act, “or the 'majoran officious intermeddler. In other words, ity' of them," "the term 'majority' has refhe interferes where he has no business. erence to a majority of the survivors and not Breeden v. Frankford Marine, Accident & to a majority of the full number of trustees." Plate Glass Ins. Co., 85 S. W. 930, 931, 110 Bascom v. Weed, 105 N. Y. Supp. 459, 466, Mo. App. 312 (citing Duke v. Harper, 66 Mo. 53 Misc. Rep. 496. 51, 37 Am. Rep. 314).

Under chapter 341, p. 624, Laws 1899, Aiding poor man

the word "majority" means a majority of all The law of “maintenance," as I under- votes cast at the caucus, including blank balstand it, upon the modern construction, is lots. State ex rel. Dietrich v. Patterson, 96 confined to cases where a man improperly, N. W. 1135, 119 Wis. 52. for the purpose of stirring up litigation and

As majority of entire body strife, encourages others either to bring ac

As used in Ky. St. 1903 (Charter of Cittions or to make defenses which they have ies of the Second Class) § 3044, providing no right to make. To give financial aid to that a majority of members elect of both a poor suitor who is prosecuting a meritori- the board of aldermen and the general counous cause of action does not constitute cil shall constitute a quorum for the transac“maintenance,” in the absence of any bar- tion of business in joint session, a “majority gain to share the recovery, and is not viola- of both boards” means a majority of the tive of law or public policy. Jahn v. Cham- members taken as a whole, and not a majoripagne Lumber Co., 157 Fed. 407, 418 (citing ty of each board considered separately. DavDavies v. Stowell, 47 N. W. 371, 78 Wis. 334, is v. Claus, 100 S. W. 263, 265, 125 Ky. 4. 338, 10 L. R. A. 190).

As majority of those acting as a body

in session MAJOR LEAGUE

Where a city charter provided that the Three organizations, the National League, mayor should nominate all appointive officers, the American League, and the National and that his appointment should be final unAssociation, include in their membership less within five days thereafter a “majority practically every professional baseball club of the common council" should file objections in writing, the term “majority of the common The "majority of ballots" necessary, uncouncil" did not mean the common council der Rev. St. 1898, § 865, to determine the acting as a body in session, but the provision question of incorporation of a village means was satisfied by the filing of objections by a the majority of the legal ballots cast on the majority of the body without reference to proposition and not a majority of those who the time or manner of their action. State vote or attempt to vote but whose ballots are ex rel. Paulette v. Bandel, 97 S. W. 222, 223, properly rejected because illegal. State ex 121 Mo. App. 516.

rel. Town of Holland v. Lammers, 86 N. W. The statute authorizing majority of the 677, 679, 89 N. W. 501, 113 Wis. 398. board to hire a teacher means a majority As majority of quorum acting at a legal meeting, and not a majority

Under a by-law of a social corporation of the directors acting separately. Johnson providing that an assessment could be made v. Dye, 127 S. W. 413, 414, 142 Mo. App. 424. by a majority of the executive committee, As majority of those entitled to vote

which consisted of 20 members, 5 of whom The words “majority of the qualified constituted a quorum, by a “majority of the voters and taxpayers of any school district," committee” was meant a majority of the as used in Rev. St. 1899, § 9772 (Ann. St. 1906, whole committee, and not a majority of a P. 4483), providing that when a majority of quorum of 5. Rogers v. Boston Club, 91 N. the qualified voters and taxpayers of any

E. 321, 322, 325, 205 Mass. 261, 28 L. R. A. school district, at any annual or special meet- (N. S.) 743. ing called for that purpose, shall deem it Where an orphan asylum claimed, for necessary to have additional ground for support of children committed to its care by school purposes, the board of directors may a county after the adoption of a resolution by proceed to condemn, etc., meant that the a majority vote of a quorum of the board of proposition must receive a majority of all supervisors, that such children be removed the qualified voters and taxpayers of the dis- therefrom, and, after demand for the children trict, and that a mere majority of all those and refusal to surrender, no recovery could present, unless it also be a majority of all be had, since Laws 1895, c. 267, § 2, authorizthe qualified voters and taxpayers of the dis- es a county, by a majority vote of its county trict, is insufficient. School District Mo. 3 v. board of supervisors, to remove such children, Oellien, 108 S. W. 529, 530, 209 Mo. 464. to the support of which it contributes, and

Rev. St. & 665, declares that a majority of the As majority of legal votes cast

supervisors entitled to a seat constitute a Under St. 1912, c. 559, pt. 3, § 1, revising quorum for the transaction of business, and the charter of the city of Salem, which pro- make all questions determinable by a majorivided that the act should be submitted to the ty of the supervisors present, unless otherregistered voters at the state election in 1912, wise provided. St. Æmilianus Orphan Asylfor a vote primarily on the question whether um v. Milwaukee County, 82 N. W. 704, 705, the present charter should be repealed, and 107 Wis. 80. secondarily on the question whether, if it was repealed, the new charter should be plan 1 or As majority of those present and votplan 2, and that if, on a “majority of the bal

ing lots cast," the votes should be for a repeal, Rev. St. 1899, § 9750, subd. 11 (Ann. St. the plan receiving the largest number of 1906, p. 4470), providing that in each case a votes cast should be adopted as the city char- “majority vote of the voters who are resident ter, the ballot on which the questions were taxpayers" of the district shall be necessary printed contained, besides the names of a to remove a site nearer the center of the dislarge number of candidates for state and trict, means a majority of the taxpayers of national offices, questions upon the adop- the district, present and voting in the election of constitutional amendments, and the tion. Tucker v. McKay, 111 S. W. 867, 868, total number of ballots cast was 6,966, of 131 Mo. App. 728. which, on the question of repealing the charter 1,676 were blank, 2,240 were against re

As majority of those voting peal, and 3,050 were for repeal. Held that,

The phrase "majority vote of legal votin view of the legislative policy to make an ers," in Sp. Act Feb. 26, 1903, providing that acceptance of a city charter turn upon the af- it shall take effect when approved by a mafirmative votes of a majority of those voting jority vote of the legal voters within the dison the question, the word "ballots” was syn- trict, means, according to Act March 18, onymous with "votes," and that only the 1903, a majority vote of the legal voters votballots carrying votes on the question of re- ing. Foy v. Gardiner Water Dist., 56 Atl. peal were to be counted, and hence that, as 201, 202, 98 Me. 82. there was a “majority of the ballots cast" in "A majority of the registered voters of favor of repeal, the old charter was repealed, the city," as used in Acts 1889, c. 3963, $ 12, and the plan receiving the larger number of means a majority of the qualified electors votes was adopted as the new charter. who actually voted at the election in quesCashman v. Entwistle, 100 N. E. 58, 59, 213 tion, and not a majority of all the voters who Mass. 153.

had the right to vote; those voters who are

« SebelumnyaLanjutkan »