JUDGE B. F. BURWELL

So sudden came the announcement that friends scarcely believed when they read in the morning paper of April 3 of the death of Judge Benjamin Franklin Burwell, which occurred at his home at 8:25 o'clock Sunday, April 2. Judge Burwell had been suffering several days from a slight attack of heart trouble, the first illness he had felt for many years. Physicians attending announced that a heart stroke of a few days before had resulted in nephritis and acute dilation of the heart and that he had not rallied to medical aid.

Funeral services of Judge Burwell were held Tuesday, April 4. On that day, it being the regular day for the sitting of the state supreme court, that body transacted no business out of respect for the deceased jurist. Governor Williams issued an executive order also closing all state offices.

Benjamin Franklin Burwell was born in Armstrong county, Pa., April 15, 1866, therefore was almost 50 years of age, just in the prime of his life. Receiving his education in the public schools of his home place, he went to West Virginia and began studying law, but removed later to Kansas where he completed his law course. On December 25 he married Miss Agnes Jane Carnahan of Hope Kans. In 1890 he was admitted to the bar at Salina, Kans. He later removed to Gypsum City, Kans., where he practiced law and was also acting city clerk during 1890 and 1891.

It was in the latter year that he came to Oklahoma City where he has made his home since. He formed a law partnership with A. C. Scott. Judge Burwell became interested in the Indian cases and his attention to the condition and treatment of the different tribes led to his appointment as associate justice of the territorial supreme court in 1898. He established an enviable record both on the supreme and district court. No case decided by the territorial supreme court with Judge Burwell sitting was ever reversed by the United States Supreme Court.

At the time of his death Judge Burwell was a member of the firm of Burwell, Crockett & Johnson. He enjoyed the utmost confidence and esteem of those with whom he came in contact.

Funeral services were held under the auspices of the Masonic Lodge of which he was a member, Tuesday afternoon, April 4. Interment was made in Fairlawn cemetery. He is survived by his wife and one son.

HOME OWNERSHIP LAW

The attorney general has directed the following letter to the secretary of the school land commission, who had requested an opinion concerning a matter which is fully explained by the attorney general's letter: Mr. C. A. Smith, Secretary, City,

Dear Sir: I have your letter of this date in which you state that the commissioners desire an opinion from me.

"First. As to whether or not they can make

a rule authorizing the borrowers of home ownership money to pay the loan before maturity at any time after three or five years. "Second. Whether a borrower is eligible to borrow home ownership money when he owns more than 160 acres of land.

"To the first question I beg to advise that section 10 of the home ownership law gives the commissioners of the land office power to provide all necessary rules for the investment of the fund not inconsistent with the act.

"I am of the opinion, however, that a rule such as you mention would be inconsistent with the intention of the legislature. This matter was thoroughly discussed at the time the original rules were adopted and the forms of note and mortgage prepared and approved.

"To the second inquiry, I beg to advise that I find no provision in the law which prohibits loaning to individuals who own more than 160 acres of land. The loan, however, can only be made upon land upon which the borrower resides and holds as his homestead. Under the constitution the homestead is limited to 160 acres. ""

"To the second inquiry I beg to advise that I find no provision in the law which prohibits loaning to individuals who own more than 160 acres of land. The loan, however, can only be made upon land upon which the borrower resides and holds as his homestead. Under the constitution the homestead is limited to 160

CASE OF UNUSUAL INTEREST

Where there is no ordinance limiting the maximum speed at which a fire truck may travel in responding to a fire alarm, and under circumstances where the driver of the truck is endeavoring to get to the fire as quickly as possible, no defense can be maintained on a point of negligence on the part of the driver. This rule was laid down by the Supreme Court in the case of the Oklahoma Railway company v. Ross Thomas, appealed from the Oklahoma county district court. The judgment of the lower court is sustained in an opinion written by Justice Hardy. Ross Thomas, member of the fire company, was injured when a truck collided with a car of the street railway company. He brought suit for damages against the railway company and secured judgment. The railway company ap pealed on the ground that the fire truck was being driven at a high rate of speed; that Thomas knew when he boarded the truck that it would be driven rapidly and took the risk; that the driver of the truck was partially accountable for the injuring of the man, and the railway company pleaded contributory negligence.

The high court in reviewing the case held that the driver of the truck had a right to drive as rapidly as he reasonably could, that the purpose of the fire company was to reach a fire as quickly as possible, and this is generally understood, that the sounding of the gong was notice to all others to clear the way; that the street car company has orders to stop away from any crossing when hearing a fire wagon gong.

Boards of county commissioners have no authority to reduce assessments made against banks, after the same have been certified back by the board. Chapter 107 of the 1915 session laws allows an appeal from county board's action, and this should be the procedure. The query came from Tulsa county and arose over the taxing of the banks. The attorney general cites the case now pending in the supreme court from Chickasha which has to do with whether or not banks are entitled to a reduction on their assessment on account of the amount of capital invested in public building fund bonds.

A justice of the peace has no authority to remit any part of a fine and costs or a jail sentence in a misdemeanor case within his jurisdiction, is the advice given J. D. Wilson, justice of the peace of Tahlequah. This officer had assessed a fine of $50 and costs and given the same man a jail sentence of thirty days. He asked if he could remit any part of the sentence. He was advised he could not.

The board of affairs must proceed anew in letting a contract for the printing and binding of the supreme court and criminal court of appeals reports. The board of affairs stated that the Co-operative Printing company of Guthrie and the West Publishing company of St. Paul originally bid on the work and the contract was awarded the former. The contract was later forfeited, and the question was submitted, should the contract then be transferred to the West Publishing company on the bid made by that company. answer is that new bids must be asked and the contract let for the same term as originally.

The

County commissioners have no authority to employ some individual other than the sheriff to handle collections of delinquent tax warrants on personal property, and pay them a per cent. for making such collections. This advice was given C. W. Mason, county attorney of Nowata county.

City boards of education in filling vacancies on boards are not required to appoint a person of the same political faith as the predecessor, is the advice given the state superintendent of public instruction, who made inquiry concerning a vacancy on the Anadarko board of education. It was pointed out that section 7, article 6, chapter 219, session laws, 1913, gives the board of education the power to fill the vacancy but does not require that the appointee shall be of the same political faith. Where this is required, however, relates to county and township officers.

MAY BUY PUBLIC BUILDING BONDS Funds accumulating in the loan division of the school land department may be invested in refunding or public building bonds, but the money cannot be used to redeem state warrants, is the answer of the attorney general's office to the inquiry of State Auditor Howard,

who wishes to know if warrants could be retired with the money. State warrants are drawing 6 per cent. interest, which the state must pay. The state is only receiving 3 per cent. on daily balances on the money that is accumulating in the school land fund. Public building and refunding bonds are drawing 4 and 5 per cent. It will be possible, under the opinion of the attorney general's office to invest the school land money in the bonds mentioned and make a margin for the state.

PROTEST BY AFFIDAVIT

Checks written across the face or on the back, "paid under protest, will not be recognized as a protest properly filed with the state auditor in the payment of the three per cent. gross production tax on oil, according to State Auditor F. B. Howard. The law provides that a protest must be made in the form of an affidavit accompanying the check, and this provision must be carried out in every respect before it will receive any recognition at the hands of the state auditor who collects the tax. The law also provides where there is no protest the check goes into the state treasury as other funds are deposited and once the money is there, there is no way to refund it except by legislative act. Consequently when a check comes in with the protest written on it no attention is paid to the protest, although it is plain what the intention of the payee is.

DIDN'T UNDERSTAND LAW

It

Because of apparent misunderstanding of the laws under which automobile license is paid the state department of highways is having to return many applications for 1916 automobile license, and the car owners suspect the department is not treating them fairly. The applications for 1916 license contain a clause and blank to be filled out as to whether or not the car was operated during 1915. does not make any difference, if it was oper ated only a month during the year, the owner is liable for the whole license which cannot be divided into so much for any one month. Many of the blanks are coming into the department with no reference whatever as to the operation of the car in 1915. Consequently, these applications must be returned to the owner for him to fill in the desired information. In the event the car has been operated in 1915 and no license paid for that year, then the owner must pay the license for that year in addition to his 1916 license. The department is only complying with the law in this respect and is no ruling of the department. But the application of the law has resulted in license being paid on many cars for 1915 that had not been paid.

SUNDAY MOVIE LAW UPHELD

The Tennessee supreme court has sustained the validity of a Chattanooga ordinance prohibiting Sunday moving picture shows. The court held such exhibitions were against public morals as well as a nuisance.

USURY LAW AND GUARANTY FUND Alva,, Oklahoma.

Hon. C. S. Barrett,

Editor Oklahoma Law Journal,

Oklahoma City, Okla.

I feel constrained to address you concerning an editorial appearing in the last issue of the Journal on page 1, entitled: "Will Obey Law Strictly, in which it is said:

"It has been freely predicted that many of the smaller banks of the state would have to quit business, and that would entail the bank guaranty fund, because in the liquidation of banks if there is not enough cash on hand to meet all claims the guaranty fund would be called into requisition

The statement is carefully worded and is technically correct, but leaves the impression that should the usury law cause banks to liquidate the bank guaranty fund will certainly be called upon to make up deficits.

The statement has appeared so often and is so palpably misleading that it seems to me there should be a challenge issued against it.

In addition to the cash which a bank has on hand, it has other assets, viz: stocks, bonds, warrants, notes, sight exchange, etc., the sum of which equals the deposits and any other liabilities.

In addition to that available to the depositors in case of liquidation is the capital stock, profits and surplus, and if that be not sufficient the double liability of the stockholders.

Therefore, if a bank be solvent there is no possibility of the bank guaranty fund being called upon; but if the bank be insolvent it will necessarily entail the fund; nor should a usury law be required to close such a bank, it should be closed NOW and if the usury law accomplishes no other effect than that of exposing and closing the insolvent banks it has accomplished a good purpose, for the sooner such banks are liquidated the better it will be for the public and the banking fraternity as the inevitable and universal result of the continuance of business in such cases is only to get worse.

Respectfully yours,
W. M. BICKEL.

• PRIVILEGED COMMUNICATIONS—

WAIVER The National Corporation Report in a recent issue, speaking of a decision of the Michigan Supreme Court, said:

"We find some difficulty in approving the decision of the Michigan Supreme Court in Gilchrist v. Mystic Workers of the World, 154 N. W., 575, holding that a provision in a policy of life insurance, waiving the privi lege, given by statute, against the evidence of a physician as to communications made to him by the patient, is against the public policy of the state, wherefore the court held that the evidence of physicians who had attended the deceased as to admissions made by her to the effect that the illness from which she subsequently died was due to abortion, was inadmissible.

"The Michigan statute excludes the evidence of an attending physician as to all matters ascertained by him in attending the pa tient, with the exception of a case where a will is offered for probate, when the personal representative may waive the privilege. There is in the statute no provision against the waiver by the patient of his privilege. The waiver constituted an essential part of the consideration owing to the society for the execution of the contract of insurance. With such a provision in force, the ascertainment of the truth, in a case where the insurer has been made the victim of a fraud, as to the state of health of the deceased before or at the time of making the contract, or the cause of his death, is immensely simpler than where the physician is forbidden to testify. The privilege of the patient against such evidence is one which may be of great advantage to him or his successors in interest, and the evidence of waiver should be clear and convincing; but there seems no good reason why he may not waive it for a good consideration. And, in any event, where the contract rests upon the waived, he and his successors ought not to be allowed to take the proceeds while refusing to comply with its terms.

SUICIDE CLAUSE IN INSURANCE POLICY

The acceptance by insured of a new policy in place of the original does not constitute a new contract, and a clause in the second policy avoiding liability for suicide during first year of insurance relates back to date of first policy. Chief Justice Neil in Silliman v. International Ins. Co., 174 Southwestern Reporter 1131, holds: "The suicide clause in the policy sued on does not refer to the date of this policy, but within one year from the date on which this insurance begins." It is true that, if the policy stood alone, "this insurance" would have to be construed as referring to the date of the policy; but it appearing, from what we have already said, that the dominant purpose was to carry out the contract embraced in the policy of 1910, this clause must be held to apply to the date of that policy, since it was then that "the insurance" began. Any other construction would result in giving an effect to the clause in question which would nullify the whole tenor of the contract between the parties. It may be true that the suicide clause as thus construed was a useless stipulation in the policy sued on, considered alone, since the one year from the date the insurance began had long since elapsed; but it is more consonant with the agreement of the parties, as evidenced by everything else in the case, that this clause would be treated as mere surplusage even than that it should be permitted to stand apart, and out of harmony with all of the other facts showing the true intent of the parties. The commission of suicide by an insured while in his right mind, if such a thing be possible, which some doubt, in order that the beneficiary in the policy may collect it, is nothing less than a fraud on the company;

and so much of the clause as refers to persons of unsound mind is likewise worthy of such a consideration, since the evidence of such a condition is easy to fabricate and difficult for the insurer to overthrow. Therefore it is not at all improper that insurance companies should, by this clause, render unnecessary any inquiry into the mental condition of the insured at the time of his self-destruction.National Corporation Reporter.

DISHONEST ADVERTISING HELD TO BE CRIMINAL

The United States Supreme Court, Monday, April 24, handed down an interesting decision on advertising. The court defined what constituted dishonest advertising."

The Supreme Court held in effect that advertisers even though they give purchasers value received for their money, are guilty of fraud if by exaggerated advertising propaganda they have led the customers to expect more. Officials declare the decision will cause scores of precautions and make possible the enforcement of a much more stringent federal supervision of mail and advertising.

The decision was announced by Justice MeKenna, reversing the district court in southern Florida which quashed an indictment against officials of the New South Farm and Home company. The indictment charged unlawful use of the mails in selling ten-acre farms. The Florida court held that if a purchaser received his money's worth, exag gerated propaganda was not fraud. Justice McKenna took the position that it was an offense if the article sold did not serve the purpose represented no matter what the value might me.

In discussing what constituted a criminal offense under the statute governing the use of the mails Justice McKenna said:

"Mere puffing, that is, the mere exaggeration of the qualities which the article has might be no offense; but when a proposed seller goes beyond that and assigns to the article qualities which it does not possess, does not simply magnify in our opinion, advantages it has, but invests it with advantages and falsely asserts their existence he transcends the limits of 'puffing' and engages in false representation and pretenses.

"When the pretense or representations or promises which constitute the deception and fraud are false they become a scheme or artifice which the statute denounces. Especially is this true in the purchases of small tracts for homes."'

MAY PERFORM SPECIAL SERVICE

An opinion has been given to the governor by the attorney general that a member of the capitol commission may be employed by the chief executive for special services in connection with the construction of the capitol building, and that these services may be paid for out of the governor's contingent fund. The question of whether or not a member of the capitol commission, under the present law

could be considered a state officer was considered, but it is the opinion of the attorney general that he is not, and if he is, there could be no serious conflict as to his performing certain services for the governor. Authorities from various states were cited by the attorney general which would justify similar action on the part of the governor.

BENEFICIAL TO THE BOARD Members of the state board of equalization see in the sale of oil tracts in the Osage nation great help in future when it comes to placing valuations on oil and oil leases. The board has heretofore had great difficulty in arriving at what they thought was a fair valuation on oil and oil leases, because of the rulings of the Supreme Court. One tract producing 227 barrels of oil sold for $207,877. This was bid by the party who succeeded in securing it, and that evidently is what he thought it was worth. In all cases where bids were made on leases and sold, this could be taken as prima facia what the bidder thought the lease was worth. This system may be ap plied by the board in other cases when it comes to assessing oil and other oil producing property.

WATER BOND ELECTION

May 20th has been designated by the city commissioners when citizens of this city will be given an opportunity to vote on the proposed $1,500,000 water bond issue. With this amount of money it is proposed to construct a water system that will care for an increase in population for several years to come. Commercial organizations of the city have endorsed the proposed bond issue and many citi zens have personally advocated the bonds.

MAY SUE THE BANKS

Preparation is being made by the attorney general's office to bring suit against the banks which formerly were state banks but nationalized. A decision of the Supreme Court held that such unpaid portion of the assessment was a debt against the bank and that recovery of it could be made by the state by bringing suit against the bank. Nearly $600,000.00 is involved which, when collected, will be placed in the guarantee fund, and will almost put that fund on a cash basis, as there is now little more than $700,000.00 total warrant indebtedness against the fund.

MILEY LEAVES STATE EMPLOY

J. H. Miley, one of the assistant attorney generals, who has accepted a position with the McMann Oil company as general attorney for the company's interests, removed to Tulsa May 1, and began his work for the company. In accepting the position Mr. Miley feels justified from several viewpoints. He will receive a much higher salary than the state paid him, and he will be preparing himself for a more extensive line of endeavor. Attorney General Freeling feels that he lost a valuable assistant.