The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-11-18

verdict rendered purUuant thereto 4nd1nG
S1ssis1y ana lsrcsSy q q eSsrssd q the
q Su1si.Sy: ana not saiity q the oilsn.s
In the information. was NOT one upon
which the defendant could DO rightly sem
fenced.
a. The Justices concerning.
Atte.t ia yALENTINE !
No. ls.sa&
J. A. Humphrey. Appellant.
The Board OF Commissioners nj of the city
OF Pratt. Appellees.
Appeal from Pratt County.
Syllabus BY the Court. Burch. J.
l. A commissioner Of city Of the Sec
ond class who IL guilty OF malfeasance
the laws Of 1911. ipso facto vacates his
office. but who continues IN possession of
the office and exercises its functions as II
knowledge and acquiescence Of the people
of the city and the law officers OF the
state. II commissioner de facto whose
can not be questioned in q collateral ac-
ton by taxpayer to enjoin the issuance
and sale OF bonds authorized by the cleo
ton.
9. A city ordinance calling a bond cleo
ton and the election proclamation need
not contain information for the guidance
issue Of bonds to build q municipal light
plant, authorized at city election. can
not be enjoined because the ordinances and
posed bonds would be paid by taxation.
5. The issuance Of bonds voted at q
city election to build municipal light
election was carried by false representa-
tons by agitators az to the public plight
resulting from the relations between the
plying the city with electric light.
l. Section 81 of the public utilities act.
(ch. 2S8 laws 1911), providing that no pub
lie utility shall transact business until It
shall have obtained a certificate from the
public utilities commission that the public
convenience will be promoted does not APP
ply to q public utility. such as an electric
light plant. owned and operated by
municipality.
5. Section 50 OF the public utilities act.
tiles commission Of franchise ordinances
passed by municipal councils or commits
stons. does not amend or repeal the refer
endum pfovision q the act relating to
mission form Of government Gen. Stat.
1909. sec. 15ol. and an ordinance contracting
with private corporation for electric
light. which upon protest duly made is
not repealed and upon submission to a
vote does not receive the approval Of a
majority of the electors, does not become
/ operative.
6. A city which has not limited or ex-
tfngufshed it's lawful power to make fur
Their provision for lighting its streets and
public places and supplying its inhabit-
ants with electric light by the terms Of
a franchise granted to q private corpora
ton. may construct and operate an cleo
stated without violating the obligation OF
, its contract.
| All the Justices concurring.
| Attest: D. A. VALENTINE
tSeaI1 Clerk Supreme Court.
| No 10 am
James H. Gorrell, Appellee,
A. c. Batteiie. Appellant.
Appeal from Franklin County.
AFFIRMED.
Syllabus. By the Court Burch. ).
1. The statutory presumption that all
employers affected by the workmens
compensation act are within its pro-
visions obtains until the contrary appears,
pensation because Of an election to stand
outside the provisions Of the act is an
affirmative defense.
2. An employer who in good faith de-
MES liability on the ground of such an
j election should ask the court to investi-
gate that subject first and thereby save
In all but the most exceptional cases the
certificate OF the secretary of state will
settle the dispute, and the court may re-
any time. Unless the record on appeal
clearly discloses that the defense was
specifically and uneQuivocally brought to
had possession of the case this court will
consider the defense as abandoned.
g. The workmen's compensation act
awards compensation for incapacity to
work as a result of injury. This means
compensation for loss of earning power
as workman as a result Of injury.
whether the loss manifest itself in In
ability to perform obtafnable work or In
ability to secure work to do.
4. Theworkmen's compensation act pro
vides for compensation during fncapacity
and the implication is that compensation
should cease when incapacity ends. In an
action for compensation the duration OF
incapacity is q question Of fact to be de-
termined as other questions of fact are
determined, and q challenge of the cor
irectness Of the trial courts conclusion
respecting the duration Of incapacity VIII
be considered on appeal in the same way
as other challenges of a similar nature
s. The workmen's compensation act
confers express power upon the trial
court to render judgment in lump sum
instead Of making an award OF periodical
payments.~ In every case the trial court
as to the best method of making COM
pensation in the light Of all the facts and
the result will not be disturbed on appeal
except for an abuse Of the power.
& In this case the injured workman
who was q mechanic. lost his right eye
and his left eve became weakened as tht
results Of an injury. The consequence wa!
his capacity to use tools was diminished
and he was reduced to an economic status
lower than he had previously occupied
There was no direct proof that he could
ever retrieve his former capacity. The
court examined him at some length and
g. had an opportunity to form an esti-
mate Of his personality as q matter at
fect!ng his probable future earning ca
pacity. Held. that an award OF conpen-
satson for partial fncapacity for the
maximum period allowed by the work
mems compensation act. and in q lump
sum, will not DO disturbed.
II All the Justices concurring.
| A true copy.
Il Attest: D. A. VALENTINE.
rSeaL1 Clerk Supreme Court
n No. 1AHA
w. C. Stout, Appellee,