the state at the preceding general election has been confined to primary elections or to the filling of vacancies by the governing authority of parties, but parties, or aggregations of voters supporting a policy or principle, which did not cast at the last general election two per centum of the total vote of the state must yet find a place for their candidates upon ballots, as provided by section 1453, supra, and the other sections of chapter 41, Ky. Stats., which relate to regular elections other than primary elections. That statute made provision for the candidates of a party, or the candidates of an aggregation of voters, who support or desire to support a common principle, to be printed upon the ballots under a device of its or their selection. In the instant case, the voters, who signed the petition, formed themselves into a party called the Law and Order party, and the common principle to which they proposed to give adhesion was law and order, and they designated that as a brief name of the party and principle which their candidates represent. In Creech v. Davis, 21 K. L. R. 325, a number of separate petitions were filed, each of which requested the name of a candidate to be printed upon the ballots as a representative of "Citizens Party" and "under title and name of said party, and that said party be designated upon the ballots by and under the following device, viz." Each petition named the same device as the device of the party. These petitioners had thus formed a party which at the last general election had not cast two per centum of the total vote of the state, and had no existence until it was created by the voters who signed the petitions. The only difference between the facts of that case and the instant one, is that in that case a petition was filed for each candidate, while in this case the four candidates representing the party or principle designated, were all nominated by one petition, but it was requested that the name of each of them be printed in the same column under a common device. The court held in Creech v. Davis, supra, as follows:

"It was clearly the duty of the clerk, or his deputy, to group in one column the names of the candidates on the Citizens ticket under the device selected by them, heading the column with the device and putting under it the words 'Citizens Party' as requested in the petition. In Browning v. Lovett, 139 Ky. 480, upon a similar state of facts, the court said:

"The voting population of Whitley county is largely Republican, and in 1905, growing out of dissatisfaction with the conduct of affairs by those in control of the party organization, an independent Republican ticket for five county offices was nominated by petition in the manner provided by section 1453 of the Ky. Stats. The petition. requested the county clerk to have the names of all these candidates placed on the official ballot under the device selected by them, and in one and the same column, and it was the duty of the county clerk to place the names of all these candidates in one and the same column as requested and under the device selected."

Section 1460, Ky. Stats., provides that the county clerk shall cause the names of all candidates, where nominations have been duly made, "to be printed on one ballot, all nominations of any party, or group of petitioners, as designated by them in their certificate or petition; or if none be selected, under some suitable title or device. If the same device for designating candidates be selected by two parties or groups of petitioners, it shall be given to the one which first selected it. .

There could be no essential difference in permitting an aggregation of voters to nominate a number of candidates by one petition, designating therein the office for which each candidate is named, if all represent the same party or principle, and designating a common device under which the names of all should be printed on the ballots, and permitting them to nominate the same persons for the same offices, and requesting that the names be printed on the ballots under the common device, by a separate petition for each candidate. There certainly could be no reason for such holding, and there is nothing in the statutes which requires separate petitions for each candidate representing the same party or principle, but the inhibition is against naming two or more candidates for the same office in a petition or certificate. Section 1454, Ky. Stats., does not convey a contrary meaning, as insisted, when it provides that "if any certificate or petition of nomination shall contain the name of more than one candidate for any office to be filled, neither name shall be printed as a candidate for such office." To insist that this language means that a petition which nominates two candidates, each for a different office, that neither shall be printed upon the ballots, is to insist that its meaning is altogether different from what is said.

It is argued that to give to it its literal meaning which is that if a certificate or nominating petition contains more than the name of one candidate for the same office, that neither name shall be printed upon the ballot, would be an absurdity, since no set of petitioners would ever name two or more candidates for the same office. It could, also, be argued with the same effect that no committee would ever certify the name of more than one candidate for a nomination for the same office, but because the legislature has provided against a circumstance which is not likely, in the course of ordinary events, to happen, is not a reason why it has not done so, and does not authorize the placing on it a construction of its language contrary to its plain intent and meaning.

The motion is, therefore, overruled.

Judges Thomas, Clarke and Quin concur in the conclusion reached.

2.

Turner v. Lick Creek Oil and Gas Company.

(Decided October 21, 1921.)

Appeal from Simpson Circuit Court.

1. Mines and Minerals-Lease-Rentals-Tender.-If an oil and gas lease does not provide that rentals accruing upon non-development shall be paid in advance they may be paid or tendered at any time during the rental period for which they are due. Mines and Minerals-Lease Forfeiture.-The fact the lease term is so short that the customary forfeiture clause could not become operative before the expiration of the term, is not sufficient reason for giving the customary provisions of such a lease an unusual construction, where the insertion of such a clause under the circumstances is more reasonably attributable to inadvertence than to a design to give to it and other clauses in common use in such leases an unusual meaning that could have been expressed otherwise more easily and simply.

3.

Landlord and Tenant-Lack of Mutuality.-A lease is not void for lack of mutuality as to an extension period for which the lessee is irrevocably bound to pay a stipulated rental.

C. B. MOORE for appellant.

L. B. FINN for appellee.

OPINION OF THE COURT BY JUDGE CLARKE-Affirming.

This is an appeal by the plaintiff from a judgment sustaining a demurrer to his petition and dismissing

same.

The petition, filed May 19, 1920, seeks the cancellation of an oil and gas lease executed by plaintiff to defendant on May 3, 1919, upon the ground that the defendant had forfeited same by failing to bore a well on the premises or pay rentals as agreed.

The provisions of the lease involved are: That "this lease shall remain in force for the term of two years from this date and as long thereafter as oil or gas is produced;" that the lessee shall drill a well on said premises within 365 days from the date hereof or pay at the rate of $1.00 an acre per year for each additional year such drilling is delayed, from the time above mentioned for the beginning of such well until a well is completed;" that "the completion of said well shall be and operate as a full liquidation of all rentals during the remainder of the term of lease;" and that "unless said well is completed or the rental paid as hereinbefore stipulated this lease shall become null and void and of no other force or effect."

Provisions identical in substance and almost so in language, except as to rental periods and charges, were before us in the recent case of Warren Oil & Gas Co. v. Gilliam, 182 Ky. 807, 207 S. W. 698. And as in that case the contention here is that the lease was forfeited by a failure to drill the well within the specified time or to pay the stipulated rentals in advance thereafter. This contention was held to be without merit in the Gilliam case, as it was also in the still more recent case of McNutt v. Whitney, etc., 192 Ky. 132, and for the reasons therein. fully set out we must so hold here, unless this case presents some peculiar reason for a contrary holding.

The only ground advanced here in addition to those urged and overruled in the two cases above referred to, is that this lease is for only two years and that unless it be construed to provide for payment of rentals in advance for the second year after a failure to drill a well within the first year, the provision "that unless said well is completed or the rental paid as hereinbefore stipulated this lease shall become void" is meaningless. It is only true, however, that an occasion for the operation of this clause could not arise because of the short period of the lease, since the meaning and effect of it and the other clauses quoted above have been determined by this court in many

cases and are thoroughly settled to the extent, at least, that they do not provide for payment of rentals in advance and the mere fact that they have been used in a lease for so short a period that one of them cannot become operative unless given another and unusual construction is not sufficient reason for so doing where, as is evidently the case here, the several provisions are such as are usually employed in printed forms of leases and may therefore be most reasonably construed as used in the usual way and with their customary significance.

Under such circumstances the fact that a customary clause is inserted where inapplicable is more reasonably attributed to inadvertence rather than to a design to give it and other customary clauses an unusual meaning which could otherwise have been stated more easily and simply.

We are, therefore, of the opinion that the parties did not provide by the lease for payment of rentals in advance for the second year.

In addition to the alleged failure to pay in advance it is averred in the petition that it was orally agreed and understood between the parties that the payments for the second year were to be made in advance and that this provision was omitted from the lease by mistake. It is not alleged, however, that the mistake was mutual, nor is a reformation of the terms of the lease prayed for. We are, therefore, of the opinion this allegation can neither affect the construction of the lease nor make the petition good upon demurrer.

Another insistence for appellant is that the lease is unilateral as to the second year because by its terms the lessee may or not pay rentals as he likes; but this is not true since as we have seen the lessee agrees to drill a well the first year or pay rentals "for each additional year" thereafter. Not having drilled a well within the first year he is bound and can be made to pay rentals for the remaining year of the two years' term unless appellant sooner terminated the lease by giving notice, etc., in the way pointed out in Monarch Oil & Gas Co. v. Richardson, 124 Ky. 602, 99 S. W. 668, and many other cases, which is not alleged.

Wherefore the judgment is affirmed.