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victed, and affirmatively averred the said, persons convicted in police courts of offenses Joseph Hermann, as mayor, had said right against ordinances of the municipality, but to order the jailer to discharge the said can only pardop offenses against the laws of prisoners and to pardon the said prisoners, the state, even though the offense committed and that in pursuance to said right and power be one against both the city ordinance and he did pardon and release each of them from the state laws. custody. Further pleading, the defendants [2] Although the charter of a city fail to in each of the cases averred that pursuant specifically grant to the mayor or other execto subsection 17 of section 3235c, Kentucky utive officer or board the power to pardon Statutes, the board of commissioners of the or release persons convicted of violations of said city of Newport, Ky., which city then the ordinance of the city, the lawmaking was and now is organized under an act body of such municipality may confer upknown as the commission form of govern- on the mayor or other executive officer ment, same being section 3235c of or officers of the city such power. The Statutes, on January 5, 1916, duly passed a board could, as a body, exercise it, and had resolution, by the provision of which the the right to delegate that power to one of its power to pardon a prisoner confined in the members, as it did other governmental said jail was vested in the mayor of said city, powers. Naturally guoh a power should rest and he was thereby given the exclusive right in an individual, as the mayor, and not in a to pardon any prisoner whenever he deemed board. The board of commissioners had said prisoner entitled to such pardon, and power to pass ordinances determining the that said resolution at all times mentioned functions of each department and prescribing in the petition was and still is in full force the duties of its commissioners and its and effect. It reads:

employés. Section 3235c17, Kentucky Statutes. This

governmental function, “Whereas, the authority to pardon a prison being executive naturally passed to the er or prisoners confined in the city jail is now vested in the board of commissioners, and it mayor. The commission, therefore, could appearing, to better facilitate matters pertain- confer upon the mayor having charge of a ing to such authority, that such power be vest- department the power to perform the duties ed in his honor the mayor, now, therefore, be of that department, and to grant pardons. it resolved by the board of commissioners of Such is the general rule even where there is the city of Newport that the power to pardon no charter provision authorizing the mayor a prisoner or prisoners confined in the city jail to grant pardons or release prisoners. By be vested in the mayor of the city of Newport, section 3235c18, the mayor is made comand he shall have exclusive right to pardon a missioner of the department of public affairs prisoner or prisoners whenever upon due in- and is given general advisory supervision vestigation by himself he deems such prisoner over the affairs of all the departments. or prisoners are entitled to a pardon."

“The pardoning power is not, under our sys[1] Under section 3111, Kentucky Statutes, tem of government, inherent in any officer of which is a part of the charter of second class the state, or any department of the state, and cities, the mayor may discharge from con- the people in framing and adopting their Confinement any person convicted and sentenced stitution may lodge the power in any departin the police court, but he shall file with the ment they see fit, or in a board of pardons. board of aldermen a statement in writing, of this kind should be confided to the highest

However, there are many reasons why a power giving his reasons for so doing.

executive officer." 20 R. C. L. p. 543; Laird By section 3235c12, Kentucky Statutes, it v. Sims, 16 Ariz, 521, 147 Pac. 738, L. R. A. is provided that the mayor and four com- 1915F, 519. “Sometimes the mayor of a mumissioners shall constitute the board of com- nicipality possesses charter powers to remit missioners. In this board of commissioners fines and penalties imposed for a violation of is vested all legislative, executive and admin municipal ordinances; but it is not necessary istrative powers of the city, save as otherwise that the Legislature act in that regard, and the provided. It thus appears that all executive board of aldermen may pass an ordinance vestpowers of the city are vested in and may in the mayor and board of aldermen.” 20 R.

ing authority to grant pardons and remit fines be exercised by the board of commissioners. C. L. 546; Allen v. McGuire, 100 Miss. 781, 57 The power thus conferred by section 3111, South. 217, 38 L. R. A. (N. S.) 196, Ann. Cas. Kentucky Statutes, authorizing the mayor to 1914A, 483. grant pardons and release prisoners, is by section 3235c12, which is a part of the com The text of 29 Cyc. pp. 1562, 1563, is to mission form of government, vested in the the same effect. Commonwealth of Ky. F. board of commissioners, if it has been French, 130 Ky. 744, 114 S. W. 255, 17 Ann. changed at all by the act allowing the estab-Cas. 601; City of Paris v. Hinton, 132 Ky. lishment of the commission form of govern- 684, 116 S. W. 1197, 19 Ann. Cas. 114. ment, which is doubtful. We have held in [3] Reading the foregoing sections of the the case of City of Paris v. Hinton, Judge, statute together and considering the general 132 Ky. 684, 116 S. W. 1197, 19 Ann. Cas. 114, rule upon the subject, it would appear that

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(248 S.W.) confer upon the mayor, if it desired to do so, Appeal from Circuit Court, Johnson Coun. any of the executive functions of the city ty. government, including the power to pardon

Turner Delong was convicted of unlawfully or release offenders against the laws of the

transporting spirituous liquor, and he apmunicipality, but not against the common

peals. Affirmed. wealth. Appellant Juanita Montgomery was convicted under a city ordinance, and the J. B. Clark, of Inez, for appellant. mayor had power to pardon her; but, as ap Chas. I. Dawson, Atty. Gen., and T. B. Mcpellant Harry Sutt was convicted under sec- Gregor, Asst. Atty. Gen., for the Commontion 1977, Kentucky Statutes, for gaming, the wealth. mayor had no power to cause his release, and bis order to the jailer was void.

TURNER, C., Appellant was indicted The circuit court having reached the con- charged with unlawfully transporting spiritclusion that the mayor had no power to par- uous liquor. On his trial he was found don or release prisoners in any case, its judg- guilty, and a new trial having been denied ment must be reversed as to appellant Mont- him, he has appealed. gomery for proceedings consistent with this

On the trial only one witness testified for opinion, and affirmed as to appellant Sutt. the commonwealth, and he stated in sub

stance that he saw appellant on the road in Johnson county with six gillons of whisky, which he had brought on his horse from

Martin county, and that defendant had turnDELONG V. COMMONWEALTH.

ed over to witness the six gallons of whisky, (Court of Appeals of Kentucky, March 16, and he had taken it and hid it. Defendant 1923.)

himself testified, denying the statements of

the commonwealth's witness. 1. Criminal law E11701/2(5)-Cross-examina

[1] His first ground for reversal is that the tion of accused as to immaterial matter held court erred to his prejudice in permitting harmless. In a prosecution for unlawfully transport- him on cross-examination whether he had

the attorney for the commonwealth to ask ing intoxicating liquor, cross-examination of accused as to whether he had not frequently frequently been to see a certain widow on visited a certain widow was immaterial, and Greasy creek. Neither the name nor the not prejudicial to him, where neither the name character of the woman in question is given, nor the character of the woman were mention- and it is difficult to see how this could have ed, and especially where he denied having made been prejudicial. In any event, appellant in the visits.

his evidence denied ever having been there, 2. Witnesses On 270(2)-Cross-examination as or that be frequently went on such visits. to disposition made by witness of whisky The evidence was wholly immaterial in any transported by accused is immaterial. event, and could not have been prejudicial.

In a prosecution for unlawfully transport [2] A further reason assigned for reversal ing intoxicating liquor, it was immaterial what is that the court erred in refusing defendant disposition was made by the commonwealth's the right to cross-examine the commonwitness of the whisky which he testified defend- wealth's witness, and require him to show ant bad transported and delivered to him, so that it was not error to refuse the right to what he did with the liquor which appellant cross-examine the witness with reference there was charged with transporting. For the

purposes of this case it is perfectly immateri3. Criminal law w 507(1)-Witness receiving

al what the prosecuting witness did with the whisky transported by defendant held not an liquor. If the prosecuting witness himself accomplice.

was guilty of some infraction of the prohibiWhere there was no evidence that the com

tion laws, it neither added to nor subtracted monwealth's witness, who testified he received from the guilt of appellant in this case. fronı defendant the whisky which defendant was [3] The further claim is asserted that accused of transporting, had any coutrol over defendant was entitled to an instruction or custody of it while defendant was transport- under the provisions of section 241 of the ing it, he was not an accomplice of accused, Criminal Code, which provides the evidence under Cr. Code Prac. § 241, requiring corroboration, even if thereafter he also wag guilty of an accomplice must be corroborated, and of violating the prohibition laws.

that a conviction cannot be had upon such

evidence, unless corroborated by other evi4. Criminal law 942(2)-New evidence as to dence tending to connect the defendant with contradictory statements by witness for pros- the commission of the offense. There is ecution does not require new trial.

Newly discovered evidence that the witness nothing in the evidence, however, to suggest for the commonwealth had made statements to in the remotest sense that the witness was an several persons inconsistent with his testimony accomplice of appellant in the transportation is merely impeaching evidence, for which a new of the whisky. So far as the evidence shows, trial need not be granted.

the parties either met on the road, or appelFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to.

Jant brought the whisky to the witne s'l Appeal from Circuit Court, Livingston house, or place of business. There is nothing County. to suggest that the witness had any control

Action by B. B. Dunn and another against over or custody of the whisky while aj pellant C. H. Webb. Judgment for plaintiffs, and was transporting it. And if, after the trans- defendant appeals. Affirmed. portation and delivery of the whisky to the witness, he also was guilty of some infraction

C. C. Grassham and C. H. Wilson, both of of the prohibition law, it did not make him in

Smithland, for appellant. any sense an accomplice of appellant in the

Oharles Ferguson and J. R. Wells, both of transportation.

Smithland, for appellees. [4] With his motion for a new trial defendant filed certain affidavits as to alleged newly

CLAY, J. For the purpose of inducing the discovered evidence. The affidavits are in State Highway Department to locate a fedsubstance that the witness for the common- eral highway, known as the Ohio River route, wealth had said to several persons that he through Livingston county, the county of Livdid not make any indictment against appel- ingston guaranteed the payment of one fourth lant, and knew nothing about the indictment the cost, which was estimated at $138,500. against him, and did not see or know of his The county had no funds with which to meet transporting any liquor in Johnson county.

its obligation, and it was necessary to pro This is merely impeaching evidence, and cure a portion of the fund by private subtends only to contradict the witness for the scriptions and the remainder by issuing commonwealth. Waiving, for the purposes

bonds. For the purpose of obtaining the subof this opinion, the question of diligence, it scriptions notes were printed and placed in has often been held that a new trial will not the county, procured about 200 notes, aggre

the hands of solicitors, who, after canvassing be granted on account of newly discovered evidence, which only tends to impeach or gating the sum of $65,137.75, which were discredit the statements of a witness given nated by the fiscal court as special treasurer,

made to John Quertermous, who was desig. on the trial. Ray v. Commonwealth, 184 Ky. and who afterwards resigned and was sucS00, 212 S. W. 908.

ceeded by B. B. Dunn. Included in the list Judgment affirmed.

of subscribers was Chas. H. Webb, who executed the following note:

"I hereby promise to pay to the order of

John Quertermous, special treasurer of LivWEBB v, DUNN et al.

ingston county, Kentucky, the sum of $1,000.00

(one thousand dollars) for value received. To (Court of Appeals of Kentucky. Jan. 9, 1923. be paid in three equal installments as follows:

Rehearing Denied March 23, 1923.) $300.00 this July 1, 1919, $350.00 January 1, 1. Counties w218–Subscriptions mi-Note 1920, $350.00 January 1, 1921. For the confor subscription to highway fund payable to Ohio River highway, 'which passes through Liv

struction of a federal highway, known as the special treasurer held valid and enforceable by suit in joint names of county and such the Tennessee river, crossing the Cumberland

ingston county, beginning at Vicker's ferry on treasurer.

river at Smithland, thence via Salem to the Even though the fiscal court of a county Crittenden county line.'” had no authority to create the office of special treasurer to take notes from subscribers to a Webb having declined to pay the note, suit, highway fund, it did have power to appoint an to which the county afterwards became a agent for that purpose, and the one designated party plaintiff, was brought by Dunn as speas special treasurer was such agent, so that cial treasurer' to recover thereon. From a a note made payable to the special treasurer is valid, and can be enforced by suit in the judgment in favor of plaintiffs, Webb appeals. joint names of the special treasurer and the

[1] Nonliability on the note is predicated on county.

the theory that the fiscal court had no power

to appoint a special treasurer, and that the 2. Subscriptions cm 15(1)-Construction of

condition of the note was violated by the conhighway held substantial compliance with condition of note.

struction of the highway to Clark's ferry inEven if the provision in a note given for a stead of Vicker's ferry. Doubtless it is true subscription to a highway fund that the highway that the county had no authority to create should be constructed by a designated ferry the office of special treasurer, but we do not was a condition, the construction of the high- regard that fact as fatal to the validity of way by way of a different ferry which was situ- the note. It did have the power to appoint ated on the same land, and only three-quarters an agent, and Quertermous, though desig. of a mile from the designated ferry, and to nated as special treasurer, was nothing more reach which the highway followed practically than an agent appointed for the convenience the same route except for the short deviation in the vicinity of the ferries, was a substan- of the county, for whose benefit the note was tial compliance with the condition so as to en- executed. Therefore the county was the real title the county to recover on the note.

party in interest, and when it united in the

(248 S.W.) suit brought by the special treasurer, appel- , on the Tennessee river but to a ferry on the lant had no further ground of complaint. same land as Vicker's ferry and only three

As originally surveyed and located, the quarters of a mile therefrom, it seems to us propesed highway ran from Vicker's ferry to that, even if it can be said that the note was Smithland. Later on, the department of executed on condition, there has been a subpublic roads changed the route and located stantial performance of the condition. it between Clark's ferry and Smithland, and Judgment affirmed. a considerable portion of the highway has been constructed. Appellant and others who executed notes say that prior to their execution meetings were held, at which the county

UNITED FUEL GAS CO. V. ADAMS. judge of Livingston county and the commis

(Court of Appeals of Kentucky. March 16, sioner of public roads stated that the route

1923.) would be from Vicker's ferry to Smithland, and that they declined to execute the notes Mines and minerals 78(3)-Notice to develuntil assured that such would be the route.

op held sufficient where lessee was holding for

speculation. Not only so, but they and their witnesses say

Where the lessee of an oil and gas lease that it is much more convenient to go to

was holding it purely for speculation without Paducah by Vicker's ferry than by Clark's bona fide intention to develop, so as not to be ferry. On the other hand, it appears that entitled to the same notice as one intending Vicker's ferry and Clark's ferry are both on to develop, a notice requiring development withthe same tract of land on the Tennessee river, in six months was sufficient, though those and only from one-half to three-quarters of a months came during the winter season, when mile apart. No ferry is in operation between weather conditions made the development diffi

cult. Vicker's ferry and Paducah, and when in operation, it is no more convenient than Clark's

Appeal from Circuit Court, Lawrence CounFerry. The highway is from 12 to 14 miles

ty. long, and, as being constructed, runs straight to Clark's ferry on the Tennessee river. If

Suit by D. B. Adams against the United it had been constructed to Vicker's ferry, it Fuel Gas Company to cancel an oil and gas would have turned off at a point about 2,500 lease. Judgment for plaintiff, and defendant feet before reaching the river, and then have appeals. Affirmed. gone through bottom land for a distance of Kirk & Kirk, of Paintsville, and R. G. Al. à mile and a half to a point on the same tizer, of Charlestown, W. Va., for appellant. river.

Cain & Thompson, of Louisa, for appellee, [2] Passing the question of pleading and the sufficiency of the evidence to show that CLARKE, J. This is an appeal from a the note was conditional, it must not be judgment canceling an oil and gas lease for overlooked that, even in the case of condi- failure of the lessee to develop the lease, afttional subscriptions, a substantial perform-er the lessor bad refused longer to accept ance is all that is required. Thus it has been nominal rentals and demanded development, held that a condition that the structure sub-as under many decisions of this court he had scribed for shall be erected "at" or "in" a the right to do. Monarch Oil & Gas Co. v. certain' town does not necessarily require Richardson, 124 Ky. 602, 99 S. W. 668, 30 Ky. that it be built within the incorporated lim- Law Rep. 824; Soaper v. King, 167 Ky. 121, its of such town, but a question of fact may 180 8. W. 46; Dinsmoor v. Combs, 177 Ky. arise as to whether the condition is per- 740, 198 S. W. 58; Hughes v. Busseyville Oil formed when the structure is located without & Gas Co., 180 Ky. 545, 203 S. W. 515; Warthe limits, but near the boundary. Rogers ren Oil & Gas Co. v. Gilliam, 182 Ky. 807, 207 v. Galloway Female College, 64 Ark, 627, 44 S. W. 698; Ohio Valley Oil & Gas Co. v. Ir8. W. 454, 39 L. R. A. 636. It has also been vine Development Co., 184 Ky. 517, 212 S. W. held that a conditional subscription for a 110; Maverick Oil & Gas Co. v. Howell, 193 monument to be erected in a certain city Ky. 433, 237 S. W. 40. does not require the site selected to be one The only ground urged for reversal that we within the corporate limits of the city at the consider of sufficient importance to merit distime the subscription was made, but it may cussion is that the time allowed for develop be placed within adjoining built-up territory ment after notice and before this suit was identified in the popular mind as part of the filed was not a reasonable time for the purcity. Cincinnati Societies' Appeal, 154 Pa. pose, under the above cases. 621, 26 Atl. 647, 20 L, R. a. 323. Therefore, In the last of the cases supra, Maverick Oil when we take into consideration the fact that & Gas Co. v. Howell, we held that the court the highway in question is from 12 to 14 did not err in canceling a similar lease, where miles in length, and, with the exception of but four months elapsed between the notice a few hundred feet, follows the route origi- to develop and the suit for cancellation. In nally surveyed, and not only goes to a ferry | the course of that opinion we said:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

“In determining what is a reasonable time, H. L. James, of Elizabethtown, for appelevery case must be controlled by the facts lant. proved in that particular case. Where it ap

Harper & Denton, of Scottsville, for appelpears that the holder of the lease is holding

lees. it purely for speculative purposes, the time for development after notice necessarily must be shorter than where it is shown that the

SAMPSON, C. J. In February, 1916, H. K. holder in good faith intends to develop but Lewis executed an oil and gas lease on a is temporarily delayed in carrying out his in- tract of land in Allen county to Gilliam and tentions."

Meredith for a term of five years from its This latter statement is of peculiar perti- date, and “as long thereafter as oil and gas, nency, since it was conclusively shown that or either, is produced therefrom by the lesappellant was holding this lease purely for sees, or either of them, their successors and speculative purposes, and did not in good assigns." The title to the land passed from taith intend to develop at all, unless some

Lewis to appellee Woods, and the oil lease other operator should strike oil in the imme-was assigned and transferred several times, diate vicinity of this land.

until it reached appellant, Enfield, shortly In these circumstances, the mere fact that before February 17, 1921. Appellant, Enfield, the six months allowed for development was had previous to the assignment of the lease to þetween November and April, when drilling him drilled a well on the leased premises for operations might have been difficult because his predecessor in title, but, finding no oil, of weather conditions, is not, in our judg- he plugged it and moved his machinery away. ment, material, and certainly not sufficient to in the settlement of accounts between appelexcuse no effort whatever upon the part of lant and his assignor, the lease passed by asappellant to comply with the notice, or to signment to appellant, and he immediately render the time insufficient when, as here, moved his machinery back onto the premises there is no showing by the lessee that his and began to drill a well. This was in Janufailure to begin operations was due to condi- ary or February, 1921. The lease by its tions actually encountered in a bona fide ef- terms was to expire on February 17th of that fort to comply with the notice.

year. Finding that he would be unable to We are therefore of the opinion that there complete a well before the 17th of February, is no merit in this contention.

he moved his machinery from the hole he Judgment affirmed.

was drilling to the old well drilled on the lease for his predecessor, and there drilled out the plug and sank the well a few feet

into another sand, and on February 17th shot ENFIELD v, WOODS et al,

the well. About this time appellant had a

conversation with appellee Woods, in which (Court of Appeals of Kentucky. March 16, 1923.)

he asked Woods for additional time in which

to further develop the property, but received 1. Mines and minerals Ow73/2-Oil "produc- no satisfactory answer. Woods, however, ex

ed,” to continue lease, must be in quantity tended the time so as to give appellant opsusceptible of division.

portunity to see whether the well which had In an oil lease, which was to continue so been shot was a producer. After the well long as oil was produced on the premises, without requiring it to be produced in paying quan; pumped. Appellant, Enfield, testified that it

was shot, machinery was installed and it was tities, the term "oil produced” is not satisfied by the production of a mere showing of oil, but produced some oil, but he admits the quantity means a production of oil in such quantities as was very small. He introduced some witto be susceptible of division, so as to pay the nesses, who testified in substance the same. landowner a royalty, even though small.

On the other hand, appellee Woods testi[Ed. Note.-For other definitions, see Words fied that he was on the premises at the time and Phrases, First and Second Series, Pro- the well was originally drilled in, and that it duce.)

was a dry hole; that it was plugged slightly 2. Appeal and error Car 1009(4)-Finding of above the sand, and again at the depth of 72 chancellor not disturbed, unless against weight feet; that appellant then gave the well to apof evidence.

pellee Woods for water purposes and moved A finding of the chancellor that oil was not the machinery away, abandoning the lease; produced on the premises within the term of the that a very short time before February 17, lease will not be disturbed on appeal, unless 1921, appellant moved his machinery back on against the weight of the evidence.

the lease and began to drill, but finally placed

his machinery over the old well and drilled Appeal from Circuit Court, Allen County.

the plugs out, and sank it a little deeper, and Suit by W. R. Woods and others against shot it, and thereafter pumped it, but found George Enfield to cancel an oil lease. Decree no oil of consequence, if any at all; that the for complainants, and defendant appeals. Af- product of the well was clear and looked like firmed.

water; that there was nothing more than a

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