*

"All male persons between twenty-one and forty-five years of age, who have resided thirty days in this state, who are capable of performing labor on public highways, and who are not a township charge, shall be liable each year to perform two days' work of eight hours each on the public roads, under the direction of the road overseer within whose district they respectively reside, or furnish a substitute to do the same, or pay the sum of one dollar and fifty cents per day to said road overseer, who shall receipt for the same, and expend it in repairs on the public roads within his district. Gen. St. 1901, § 6033. "Each incorporated city of more than six hundred inhabitants shall constitute a separate road district, and the corporate authorities of such corporation shall have power to appoint a road overseer for such corporation, fix his term of office and compensation, and remove him from of fice for any misconduct, and any such city shall have the power to pass any by-law or ordinance necessary to carry out fully the provisions of this act." Gen. St. 1901, § 6031. In 1907 section 6031 was amended by striking out "each incorporated city of more than six hundred inhabitants," and inserting in lieu thereof "each incorporated city of the third class." Laws 1907, p. 466, c. 295, § 1. There seems no escape from the conclusion that this change deprived cities of the second class of the power they had possessed under the earlier statute. The power is one not readily implied from mere general provisions. 27 A. & E. Encycl. of L. 916. But, if the ordinary rule of interpretation were otherwise, it could not well be applied here. The Legislature had its attention directed to the very matter involved. A special enactment was made covering the subject. The repeal of this enactment must be deemed not only a withdrawal of the authority thereby expressly granted, but, in effect, a denial that a like authority was conferred elsewhere by implication, for it evidences a legislative policy unfavorable to the existence of that particular power. Galloway v. Tavares, 37 Fla. 58, 19 South. 170; 28 Cyc. 266.

son lives, to be expended as above provided; unless the commissioners of roads and highways shall when they meet recommend that all such male persons shall perform two days' work, or one day's work with a team, upon the highways, in lieu of said three dollars, in which event all such persons shall be liable each year to perform two days' work of eight hours each or one day's work with team on the public roads, under the direction of the road overseer within whose district they may respectively reside, or furnish a substitute to do the same, or pay the sum of three dollars." Laws 1909, p. 499, c. 198, § 8. The provision making all male residents of the state between certain ages amenable to the statute, being essentially a re-enactment of the old law, does not indicate any change of policy in that regard. The provisions regarding cities have a field of operation, since cities of the third class are affected by them. We discover in the legislation of 1909 nothing to indicate a restoration of the former plan of constituting cities of the first and second class road districts. Were it not that the enrolled bill is practically unassailable evidence of the action of the Legislature, the Senate and House Journals would afford convincing proof that section 6031 as amended in 1907 in fact covered cities of all classes, not using the phrase "of the third class" at all. That was the form in which the bill passed both houses, according to the journals. Senate Journal, 492; House Journal, 828.

The judgment is reversed and the cause remanded, with directions to overrule the demurrer to the petition. All the Justices concurring.

(81 Kan. 206) MCLAUGHLIN et al. v. WALL et al. (Supreme Court of Kansas. Nov. 6, 1909.) 1. ASSOCIATIONS (§ 20*)-ACTIONS-PLEADING -CAPACITY OF PARTIES.

that the action is brought by an association of The title and body of the petition showing individuals as an entirety, the character of which is fully described, but in their own names, capacity to sue is shown.

[Ed. Note.-For other cases, see Associations, Cent. Dig. § 43; Dec. Dig. § 20.*] 2. ASSOCIATIONS (§ 20*)-ACTION-PLEADING -DEMAND.

The petition in an action by an association showing that defendants withdrew from it, but wrongfully keep its property, no formal allegation of demand is necessary.

[Ed. Note.-For other cases, see Associations, Cent. Dig. § 43; Dec. Dig. § 20.*]

Appeal from District Court, Neosho County; James W. Finley, Judge.

PER CURIAM. The title and body of the petition show that the action is brought by an association of individuals as an entity, the character of which is fully described, but in their own names, so that capacity to sue appears. The petition does not disclose a joint ownership or tenancy in common of the property with the defendants. It shows ownership by the association of which the defendants are no longer members. The allegations respecting ownership by the associated plaintiffs are plain enough. Since the facts are stated, it is not necessary to name the kind of ownership by calling it either general or special. If the so-called disjunctive allegation confused the matter, then the amendment ought to have been allowed. The petition shows that the defendants withdrew from the association, but wrongfully keep its property; hence a formal allegation of demand is not essential. The allegations of value in the petition control in this proceeding. If, as the petition alleges, the defendants are not members of the order, they have no standing to invoke its laws, but, if they have, there is nothing in the laws pleaded to prevent the civil courts from settling the title to this property.

The demurrer to the petition was rightfully overruled, and the objection to the introduction of testimony was wrongfully sustained.

Reversed and remanded.

(81 Kan. 76)

In a case tried by the court, where the court submits questions of fact to the jury in an advisory capacity, and adopts their findings, it will be assumed that the court gave proper weight to all the competent evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3765, 3766; Dec. Dig. § 931.*]

4. JUDGMENT (§ 256*)-CONFORMITY TO FIND.

INGS.

In a case tried by the court, where the court makes special findings in favor of the defendants, and finds generally on all the issues in their favor, and renders judgment accordingly, and some of the special findings appear to be insufficient to support the judgment, and the plaintiffs have neglected to ask the court to make further findings or to modify those made, the general finding held sufficient to support the the special findings will be disregarded, and judgment.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 447; Dec. Dig. § 256.*] (Syllabus by the Court.)

Error from District Court, Montgomery County; Thomas J. Flannelly, Judge.

Suit by the People's Gas Company and the Atlas Crude Oil Company against Joseph Fletcher and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

The plaintiffs sought to enjoin Fletcher and wife and Yoke from operating for oil or gas or removing the same from land belonging to the Fletchers. The petition alleged that on September 4, 1899, Joseph and Matilda Fletcher executed and delivered to the Pennsylvania Oil Company, a partnership, an oil and gas lease to the northwest quarter of section 20, township 34, range 16, for a period of 10 years from that date, and as much longer as oil or gas should be produced in paying quantities, and that, by subsequent assignments, the lease became the property

if no oil or gas well was sunk on the premises within 12 months, the lease should beshould pipe gas to within 100 feet of the resicome null and void unless the second party dence of the parties of the first part, and give them the right to use gas in consideration of the terms of the lease until a well should be drilled. The petition alleged a compliance by plaintiff with the terms of the lease, and that in October, 1905, the Fletchers executed and recorded a lease to the defendant,

EVIDENCE.

Where the parties have actually appeared and signed an instrument, and afterwards attempt to contradict the certificate as to what took place, the evidence to impeach the acknowledgment must be clear and convincing. Gabbey v. Forgeus, Adm'r, 38 Kan. 62, 15 Pac. 866. But, where the parties deny the execution of the instrument and claim neither to have signed nor acknowledged it, their testimony is admissible to impeach the certificate, and will be entitled to as much weight as that of any other interested witness.

Yoke accepted with full knowledge of the rights of the plaintiffs, and had erected a derrick on the premises for the purpose of boring for oil and gas, and prayed that defendants be enjoined from operating under the second lease. The defendants Fletcher and wife filed an answer, in which each denied under oath the execution of the lease described in plaintiffs' petition. The defendants further answered that the premises

"(3) If you answer question No. 1 by saying that the lease was changed after it was signed and acknowledged, when, if at all, did Fletcher and wife first learn that such change or alteration had been made? Ans. Some time after copy of lease was returned to Fletcher and wife.

"(4) If you answer question No. 2 by saying that the lease was changed and the addition of the signature of Mrs. Fletcher after it had been signed and acknowledged, when, if at all, did the defendants Fletcher and wife first learn that such change or alteration had been made? Ans. When Fletcher and wife read copy of the lease.

“(5) If you say the lease was changed, did Mr. Fletcher consent to the change? Ans. No.

"(6) If you say that the lease was changed, did Mrs. Fletcher consent to the change? Ans. No."

The court adopted the findings of fact made by the jury, and, in addition, found all the issues in favor of the defendants and against the plaintiffs, and rendered judgment as prayed for in the cross-petitions; and this judgment the plaintiffs seek to reverse.

John J. Jones and Zeigler & Dana (Eugene Mackey and Jones & Reid, of counsel), for plaintiffs in error. Charles D. Welch and Luther Perkins, for defendants in error.

PORTER, J. (after stating the facts as above). The plaintiffs' main contention is that as to innocent purchasers the certificate of acknowledgment of an instrument regular on its face cannot be impeached by the uncorroborated testimony of the interested parties. The rule contended for may obtain in a certain class of cases in those states where the act of acknowledgment is regarded as judicial, but manifestly such a rule has no place in Kansas. In this state the person taking the acknowledgment acts in a ministerial, and not in a judicial, capacity. Heaton v. Bank, 59 Kan. 281, 289, 52 Pac. 876. Even in those states where the certificate is held to be conclusive of every fact appearing on the face of the certificate which the officer is by law authorized to certify, and where it is held that evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate except in case of fraud or imposition, the certificate may always be impeached by proof that the party did not in fact appear before the officer certifying to the acknowledgment nor otherwise acknowledge the instrument. Michener and Wife v. Cavender, 38 Pa. 334, 80 Am. Dec. 486; Le Mesnager v. Hamilton, 101 Cal. 532, 35 Pac. 1054, 40 Am. St. Rep. 81; Grider v. American Freehold Land Mortgage Co., 99 Ala. 281, 12 South. 775, 42 Am.

In 1 Cyc. 622, it is said: "Where, in fact, the grantor has never appeared before the officer and acknowledged the instrument, evidence to show that the certificate, though regular on its face, is a forgery or an entire fabrication of the officer, is admissible even as against an innocent purchaser for value and without notice." While the certificate of acknowledgment is entitled to a strong presumption in favor of its truth, in this state it is only prima facie evidence of the execution of the instrument. Wilkins v. Moore, 20 Kan. 538; Heil v. Redden, 45 Kan. 562, 26 Pac. 2; Heaton v. Bank, supra. The following language from the opinion by Mr. Justice Brewer, in Wilkins v. Moore, supra, while dictum in that case, is undoubtedly a correct statement of the law: "Of course, the matter is still open for further testimony, either written or oral, for the acknowledgment is not conclusive evidence." In Devlin on Deeds, § 534, it is said: "The certificate standing by itself without other proof is prima facie evidence of all that it rightfully contains. While not conclusive, it is entitled to the utmost consideration." With respect to the character of proof nec essary to overcome the certificate of an acknowledging officer, where the parties have actually appeared and signed an instrument and afterwards attempt to contradict the certificate as to what took place, the rule is that the evidence to impeach the acknowledgment must be clear and convincing. Gabbey v. Forgeus, Adm'r, 38 Kan. 62, 15 Pac. 866. There, the wife admitted her signature to the instrument, and it was duly acknowledged and certified by a proper officer. It was held that, to sustain the defense of duress, the burden of proof was on the wife, and that "the genuine signature and duly certified acknowledgment of the mortgage could not be resisted by doubtful and unsatisfactory statements and circumstances. The evidence to impeach them should be strong and convincing." See, also, Winston v. Burnell, 44 Kan. 367, 24 Pac. 477, 21 Am. St. Rep. 289.

The general

Here the wife denies the execution of the instrument, and alleges that she neither signed nor acknowledged it. Her testimony was competent, and stands as the testimony of any other interested witness. rule is stated in 1 Cyc. 624, as follows: "The testimony of parties to the suit, while carefully scrutinized, is admissible to impeach the certificate, and is entitled to the same weight as that of any other interested witness." Moreover, the testimony of Mrs. Fletcher was not wholly uncorroborated. There were circumstances in connection with it which may have had more or less weight with the court in determining its truth. The husband testified that she was not present