erty from the state. The court having convened for the special purpose of hearing the application for provisional relief, and the merits of the case not being determinable in the orderly course of the court's work for some time, the application for the appointment of a receiver was sustained, and receivers for the defendant's property were appointed pending the consideration of the cause. The authority of the court to seize the property of a defendant before final judgment in a quo warranto proceeding was vigorously contested as a breach of constitutional jurisdiction and a depredation upon the right of private property. It is proper, therefore, that, before rendering final judgment, the reasons for the court's conduct be stated.

It is always a delicate matter for a court of last resort to interpret its own jurisdiction. Pride of place, lust of power, zeal for spectacular innovation, and other weaknesses which exhibit themselves with sufficient frequency in those having authority may be tolerated for a time in other departments of government, however much they may be deplored, without registering lasting effects; but the administration of justice cannot be scandalized by usurpation of power without irreparable harm, and any act of a court from whose judgment there can be no appeal which proceeds from will or pleasure or other unjudicial motive inflicts a wound upon free institutions which cannot be tented. And no palliation for unauthorized stretches of power can be found in the fact that the person or corporation against whom it is directed is itself engaged in the most contemptuous disregard of law. Ours is a constitutional government. The people are sovereign, and in the adoption of a Constitution they have carefully limited the scope of the authority vested in the various agencies of government. More than this, they have limited even their own power. Doubtless there are vast funds of power resident with the people upon which they have not yet drawn; but, until an amendment of the Constitution takes place, the people themselves cannot lawfully make use of them. Much less can legislative, executive, or judicial officers, whose authority is derived solely from the Constitution, lay hands upon them, and, if they should attempt to do so, they gain no increment of lawful power. Thomas M. Cooley, whose competency to speak will scarcely be questioned, has said: "The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national Constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each state created a state government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the Constitution which they establish, they not only tie up the hands of their official agencies,

but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." Const. Lim. (7th Ed.) 56.

The question is, therefore, under the Constitution of the state of Kansas: what is the jurisdiction of its Supreme Court in quo warranto? The jurisdiction is original, and is established by the Constitution itself. "The Supreme Court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus, and such appellate jurisdiction as may be provided by law." Article 3, § 3. There is no definition in the Constitution of the phrase "proceedings in quo warranto." The words are used as if their meaning were a matter of common understanding, and there must have existed at the time the Constitution was adopted a body of knowledge in which the terms were concurrent and to which resort may be had to ascertain their signification. That body of knowledge was the common law. When the Constitution was adopted, various notions were entertained respecting some of the essential common-law features of jurisdiction in quo warranto. By some courts it was held that all the virtues of the ancient prerogative writ of right, the writ of quo warranto, still persisted, while it was contended by others that proceedings of that nature had been entirely superseded by informations in the nature of quo warranto; and it was the opinion of many that the naming of one remedy differentiated it from the other. In framing the Constitution the purpose appears to have been to confer jurisdiction broadly, and language was chosen which avoided the consequences of this diversity of opinion, and authorized all the relief which at common law could be given by a quo warranto proceeding of any kind. Such was the interpretation placed upon the Constitution by the Legislature of 1868, which in regulating the procedure authorized a civil action in any case in which a remedy might formerly have been obtained either by the writ of quo warranto of by an information in the nature of quo warranto. The court is of the opinion that this is the correct view, and holds that it possesses all the jurisdiction which the common law afforded in quo warranto in any form. The writ was of a civil nature. The information in the nature of quo warranto was originally criminal in form and purpose; the object of the proceeding being, not merely to oust, but to fine, the usurper. In the prog

ress of time the fine fell to a nominal amount, and its imposition was ultimately discontinued in England, although the practice still prevails in some of the American states. Therefore through a gradual process of evolution the procedure by information became essentially civil in character. State ex rel. v. Foster, 32 Kan. 14, 41, 3 Pac. 534. In no case was it used as an adjunct of the crimi

nal law generally, and in seizing the property of the defendant in this case the court had no purpose to distort the procedure into a mere auxiliary of the prohibitory liquor law. The proceeding, whether by original writ or by information, was a feature of a legal system in which law and equity were sharply distinguished and administered in different courts, and it was always instituted and maintained in a court of law. By the grant of jurisdiction in proceedings in quo warranto no equity jurisdiction was conferred upon the court, and the right to appoint a custodian of the defendant's property pending the hearing, who for convenience is called a "receiver," was not sought to be derived from the practice prevailing in matters relievable and cognizable only in courts of equity. Receivers for the defendant's property were not appointed for the ultimate purpose of confiscation or other appropriation, except to such an extent as might be necessary to prevent the defendant from rendering ineffectual a judgment for costs. There is no law of the state transferring to itself the title to property of a corporation which has unlawfully usurped franchises, and without such a law the court cannot enter a judgment of forfeiture. "The court has no power to create a forfeiture or to declare a forfeiture where none exists." State v. Wilson, 30 Kan. 661, 2 Pac. 828. Even if the defendant were ousted from certain franchises wrongfully exercised, it would continue to be a corporation, and its property would still belong to it for the prosecution of all enterprises in which it might lawfully engage elsewhere. If all its franchises were seized and the corporation dissolved, the further conduct of business would necessarily cease, but the claims of creditors upon the corporate assets could not be annihilated, and the residue upon the winding up of the concern would belong to its stockholders. All this is elementary. See State Bank v. State, 1 Blackf. (Ind.) 267; State v. West Wisconsin Railway Co., 34 Wis. 197, 215; People v. O'Brien et al., 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684. And at the hearing of the cause the Attorney General asserted no right of confiscation on behalf of the state.

From what source, then, is the power which was exercised to be derived, and to what end was it exercised in this proceeding? No principle of the common law is better established than that plenary power is vested in all courts to protect and preserve their jurisdiction, so that the exercise of granted functions may be made effectual, and in this case that power was exercised to prevent the defendant, by manipulations of property which it could not lawfully hold, from circumventing an actual ouster and rendering the whole proceeding a solemn farce, the expenses of which should be borne by an outraged commonwealth.

This power

not be ousted from its franchises to do business. It can only be forbidden to do business within the borders of the state of Kansas, and orders that are necessary to accomplish that end are the only orders that it is the province of the court within the terms of its jurisdiction to make. Indeed, it cannot be concerned with reference to the property that it may have brought into the state, except to see and to insure by its orders that that property shall not be used for an unlawful purpose or for a continuation of the business in which it is engaged." The exercise of jurisdiction of this character is in no sense new or strange. This court has no original jurisdiction to issue injunctions or writs of prohibition. It has original jurisdiction in mandamus, a prerogative proceeding which under common law was prosecuted in the court of King's Bench. An originai action of mandamus was brought here to compel the issuance of bonds by a county board. Meantime a local action had been commenced to restrain the issuance of such bonds, and an application was made for a restraining order to prohibit the further prosecution of the injunction action pending the determination of the mandamus proceeding. In the opinion vindicating the power of the court to protect its own jurisdic tion in this manner it was said: "The origi nal jurisdiction given by the Constitution to the Supreme Court is specific and named, while the appellate jurisdiction is such as may be provided by law. Hence, with respect to the original jurisdiction that it may be exercised by the Supreme Court, it would seem that it was the intention of the authors of the Constitution that the Supreme Court should exercise only just such original jurisdiction as is prescribed by the Constitution, and not any more nor any less; and that, as neither prohibition nor injunction is named or mentioned in the Constitution, such matters cannot rightfully come within the original jurisdiction of the Supreme Court. But this will not prevent the Supreme Court from exercising jurisdiction with regard to such matters, where they are mere incidents or auxiliaries necessary for the rightful and proper exercise of the jurisdiction actually conferred upon the Supreme Court by the Constitution and statutes. Inherently the Supreme Court must have the power to protect its own jurisdiction, its own process, its own proceedings, its own orders, and its own judgments; and for this purpose it may, when necessary, prohibit or restrain the performance of any act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before it. It can hardly be supposed that the action of the Supreme Court may be thwarted, impeded, or embarrassed by the unwarranted intermeddling of others without any power in the Supreme Court to pre vent it." C., K. & W. Rd. Co. v. Commissioners of Chase Co., 42 Kan. 223, 21 Pac. 1071.

tutional jurisdiction in quo warranto. If so, its power would be completely emasculated if the Legislature failed or refused to act. State v. Allen, 5 Kan. 213; State of Florida v. William H. Gleason, 12 Fla. 190; State ex rel. Attorney General v. Messmore, 14 Wis. 115; People, etc., v. Boughton, 5 Colo. 487; Commonwealth of Ky. v. Dennison, Governor, etc., 24 How. (U. S.) 66, 16 L. Ed. 717; State ex rel. Wood v. Baker, 38 Wis. 71; State ex rel. Macklin v. Rombauer, 104 Mo. 619, 15 S. W. 850, 16 S. W. 502. And the court will brook no abatement of its authority by the Legislature. It is true that legislative regulations of matters of procedure which do not impair jurisdiction will be recognized and utilized, and the Legislature may invent new processes and new forms of remedy calculated to aid the court in the exercise of its jurisdiction, but the jurisdiction itself can neither be augmented nor diminished. State v. Allen, 5. Kan. 213; State v. Wilson, 30 Kan. 661, 2 Pac. 828; Auditor of State v. A., T. & S. F. Ry. Co., 6 Kan. 500, 7 Am. Rep. 575; In re Burnette, 73 Kan. 609, 85 Pac. 575. The statute cited serves to illustrate the principle. The court may avail itself of the authority given by the Code to make restraining orders and to appoint receivers to any extent necessary effectually to exercise its constitutional power, but it cannot, under the guise of a statutory quo warranto, undertake to entertain general equity jurisdiction over the winding up of the affairs of dissolved corporations. If the foregoing views are sound, and such is the opinion of the court, the restraining order was lawfully issued, and custodians of the defendant's property were rightfully appointed.

Upon the merits of the case, the court finds for the plaintiff and judgment is rendered for the ouster of the defendant and for costs. The defendant is permanently ousted and enjoined from owning, holding, or using property either real or personal in this state contrary to law, but the restraining order is otherwise vacated. The receivers are continued in office and in possession to execute the judgment. Saloon fixtures, equipments and paraphernalia, and other personal property employed in and about the unlawful sale or keeping for sale of intoxicating liquors or in keeping places where such liquors are sold or drunk, contrary to law, shall, as soon as practicable, be removed from the state. Personal property whose ordinary use is lawful may be sold or removed from the state at the defendant's option expressed to the receivers. The receivers may permit removals and sales of personal property to be made by the defendant, but only under their supervision and when satisfied of the good faith of the transaction. All real estate belonging to the defendant shall be sold. The defendant is allowed a reasonable time in which to make sales, and, upon application to the court, accompanied by proof of an

actual sale in good faith, any parcel of real estate will be discharged from the custody of the receivers. If after reasonable opportunity to dispose of it without undue sacrifice any real estate remains unsold, the receivers shall sell it as upon execution and pay the proceeds, after deducting expenses, to the defendant. The receivers shall reserve and sell as upon execution sufficient property to pay costs and accruing costs, unless the same are voluntarily paid by the defendant. The receivers shall report their conduct to the court. Applications for allowances and expenses will be determined upon notice to the defendant. All the Justices concurring.

(77 Kan. 797)

UNITED JEWELERS' MFG. CO. v. KECK

LEY.

(Supreme Court of Kansas. June 8, 1907.) GAMING-GIFT ENTERPRISE.

Where each purchaser of goods receives from the seller, in furtherance of an advertising scheme, a certificate entitling him to a gift of a hat pin, which, so far as appears, is the same in each case, the contract is not void, as part of a gift enterprise, under Laws 1895, p. 289, c. 152; each scheme prohibited thereby involving the element of chance as the determining factor on which property or money may be procured.

Error from District Court, Norton County; A. T. C. Geiger, Judge.

Action by the United Jewelers' Manufacturing Company against E. E. Keckley. Demurrer to the petition was sustained, and plaintiff brings error. Reversed and remanded.

J. R. Hamilton, for plaintiff in error. L. H. Thompson and W. T. Hayes, for defendant in error.

PER CURIAM. In this case the contract sued upon contained a provision for a gift to each purchaser of jewelry in furtherance of an advertising scheme, and the claim is that it is void as a gift enterprise under chapter 152, p. 289, of the Laws of 1895.

Every scheme prohibited by that statute, no matter what the device employed, involves the element of chance as the determining factor upon which money or property may be procured. Here there is no chance. Each purchaser receives a certificate of purchase entitling him to a hat pin, which, so far as the contract discloses, is the same in all cases. If by answer it should be made to appear that chance enters into the distribution of the hat pins, so that some purchasers may receive advantages over others, a gift enterprise might be made out, but on the face of the contract the appeal is simply to those who will buy an entire suit of cloths to get a 25-cent pair of suspenders "thrown in," at the same time agreeing to tell their neigh bors where they trade.

The judgment of the district court is re

versed, and the cause is remanded, with direction to overrule the demurrer to the petition.

(77 Kan. 839)

DREW v. CORRIGAN.

(Supreme Court of Kansas. June 8, 1907.) 1. WRIT OF ERROR-REVIEW-QUESTIONS OF FACT GRANT OF NEW TRIAL.

An order of a trial judge who had seen the witnesses and heard their testimony setting aside a verdict in favor of plaintiff, and granting a new trial, because he was convinced that the jury clearly erred in its interpretation of the evidence, which was conflicting, would not be reviewed on a writ of error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3862, 3863.] 2. SAME SECOND TRIAL.

The fact that the case had been tried once before was insufficient to authorize the Supreme Court on a writ of error to reinstate a verdict which the trial court had condemned as procured by untrustworthy testimony, unjust, and unsupported by the preponderance of the evidence.

Appeal from Court of Common Pleas, Wyandotte County; William G. Holt, Judge.

Action by James M. Drew against Edward J. Corrigan, doing business as the Dwyer Brick Company. From an order setting aside a verdict and granting a new trial, plaintiff appeals. Affirmed.

Bird & Pope, for appellant. John A. Hale and O. L. Miller, for appellee.

PER CURIAM. There is nothing in this case to take it out of the rule authorizing the trial judge who has seen the witnesses and heard their testimony to set aside the verdict and grant a new trial, when he is convinced the jury has clearly erred in its interpretation of the evidence. The duty in such cases has been discussed in so many formal opinions that it is not necessary to incumber the reports with another.

The plaintiff contends he produced so much evidence in his favor that this court should say the case was not even doubtful, and that the trial judge merely substituted his opinion for that of the jury. Quantity is not always the controlling factor in weighing oral testimony. Many other considerations affect its value. The trial judge acquired his competency to act upon the motion for a new trial by presiding at the trial. The members of this court have no such means of qualifying themselves to pass upon the facts and must decline to interfere. The trial judge's reasons for condemning the verdict as against the great weight of the evidence were given independently of his estimate of the legal sufficiency of the plaintiff's evidence, and are abundant to sustain his action in granting a new trial, even if this court were to disagree with him upon the latter question, which, however, has not been considered. The fact that the case was tried once before is scarcely sufficient to authorize this court to reinstate a verdict which the trial court

has condemned as procured by untrustworthy testimony, as altogether unjust, and as unsupported by the evidence when properly sifted. The trial court has the same power to vacate special findings which are not sustained by sufficient evidence that it has to set aside a verdict which finds the same facts generally. In this case the findings were directly and specifically assailed. True the attack was made in the motion for a new trial, but it brought the question to the attention of the court and that is the substantial matter. The form is of little consequence.

The judgment of the district court is affirmed.

(75 Kan. 837)

ST. LOUIS JEWELRY CO. v. BAIRD. (Supreme Court of Kansas. April 6, 1907. Re hearing Denied May 18, 1907.)

Error from District Court, Wilson County; L. Stillwell, Judge.

Action by the St. Louis Jewelry Company against R. S. Baird Judgment for defendant, and plaintiff brings error. Affirmed.

T. J. Hudson, for plaintiff in error. S. S. Kirkpatrick, for defendant in error.

PER CURIAM. The controverted question in this case was whether there was fraud in the execution of the contract for the sale of jewelry upon which plaintiff relied. If the signature of defendant was procured by the fraud of the plaintiff, the former is not bound, although he failed to read the paper to which he attached his name. Shook v. Puritan Manufacturing Company (just decided) 89 Pac. 653. There is testimony tending to show that defendant's signature was obtained by fraud; that he was induced to sign the paper by the fraudulent representations of plaintiff to the effect that the paper contained the stipulations previously agreed upon, when in fact it did not. The testimony was sufficient to sustain the verdict of the jury, and hence the controversy is finally settled.

Judgment affirmed.

(76 Kan. 145)

DISNEY V. ST. LOUIS JEWELRY CO. (Supreme Court of Kansas. June 8, 1907.) 1. SALE ACTION FOR PRICE - INCONSISTENT DEFENSES.

In an action for the price of goods, a defense that defendant was fraudulently induced to sign what purported to be a contract of sale, prepared by the plaintiff, on the false representations of plaintiff that it contained the stipulations previously agreed upon to the effect that the goods were placed in defendant's hands for sale on commission, and were not purchased by him, is not inconsistent with the defense that the goods delivered to defendant were not of the quality stipulated in the writing, and defendant cannot be compelled to elect between them.