Messrs. Springer & Smith, for appellee: The laws of the order and the statutes of the state enter into and become a part of the contract of insurance.

Wendt v. Iowa L. of H. 72 Iowa, 682, 34 N. W. 470.

A member has no power to designate by will one outside of the class named in the certificate.

un

In Code, § 1824, it is provided that "no fraternal association . . . shall issue any certificate of membership, less the beneficiary under said certificate shall be the husband, wife, relative, legal representative, heir, or legatee of such member." The plaintiff was the niece of the first wife of the father of the deceased member, deceased being the issue of the second wife;

McClure v. Johnson, 56 Iowa, 620, 10 N. and the contention of appellant is that there

W. 217.

The plaintiff herein was not related by affinity to the insured.

See title Affinity, in 1 Am. & Eng. Enc. Law, 2d ed. p. 911, also title Relative, 24 Am. & Eng. Enc. Law, 2d ed. p. 278; Chinn v. Ohio, 11 L. R. A. 630, note, 47 Ohio St. 575, 26 N. E. 986; Waterhouse v. Martin, Peck (Tenn.) 390; Kohler v. Centennial Mut. L. Ins. Co. 66 Iowa, 325, 23 N. W. 687. If a beneficiary is designated who does not belong to the class of persons enumerated by statute and the laws of the order, the insurance becomes payable to those who would have been entitled to it in the absence of any designation.

Schmidt v. Northern Life Asso. 112 Iowa, 41, 51 L. R. A. 141, 84 Am. St. Rep. 323, 83 N. W. 800; Byram v. Sovereign Camp, W. W. 108 Iowa, 440, 75 Am. St. Rep. 265, 79 N. W. 144; 3 Am. & Eng. Enc. Law, 2d ed. p. 960; Norwegian Old People's Home Soc. v. Wilson, 176 Ill. 94, 52 N. E. 41: Alexander v. Parker, 144 Ill. 355, 19 L. R. A. 187, 33 N. E. 183; Palmer v. Welch, 132 Ill. 141, 23 N. E. 412; Rindge v. New England Mut. Aid Soc. 146 Mass. 286, 15 N. E. 628; Newman v. Covenant Mut. Ins. Asso. 76 Iowa, 56, 1 L. R. A. 659, 14 Am. St. Rep. 196, 40 N. W. 87; Britton v. Supreme Council, R. A. 46 N. J. Eq. 102, 19 Am. St. Rep. 376, 18 Atl. 675; Niblack, Ben. Soc. 2d ed. §§ 13, 136, 158, 177; Article entitled Rights of beneficia ries erroneously or falsely described in benefit society certificates, 57 Cent. L. J. 383.

fore plaintiff was a "relative" of the deceased, under the statutory language. Conceding that the term "relative" is to be extended to cover relatives by marriage as well as by blood, we are still unable to reach the conclusion that the plaintiff was a relative of deceased. During the life of the first wife, the father of deceased was the uncle by marriage of the plaintiff, and, perhaps, after the death of the first wife, the father of deceased was still her uncle by affinity. Simcoke v. Grand Lodge, A. O. U. W. 84 Iowa, 383, 387, 15 L. R. A. 114, 51 N. W. 8. But there was no relationship by either blood or affinity between the plaintiff and the deceased, the son of her uncle by marriage by his second wife. The general proposition seems to be this: That relationship by affinity is not created between the blood relatives on either side of the parties to the marriage relation. Chinn v. State, 47 Ohio St. 575, 11 L. R. A. 630, 26 N. E. 986; Waterhouse v. Martin, Peck (Tenn.) 374, 389; Winchester v. Hinsdale, 12 Conn. 88, 94; 1 Bouvier, Law Dict. Affinity. It appears, then, that in no legal sense was the plaintiff a relative of the deceased member. They might, perhaps, be said to be connections by marriage, but they were not relatives by marriage.

The argument of counsel for appellant is, however, that, although no recognized legal relationship existed between them, the statute should be broadly construed as including all persons who by common understanding are recognized as relatives. But we cannot

McClain, J., delivered the opinion of the properly give to the words used in the stat

court:

The certificate was taken by one Daniel J. Bantz, benefit payable to plaintiff. On the death of the member, plaintiff brought action against defendant, and intervener, father of the deceased member, as administrator of his estate, and also as assignee of the mother of deceased, who, under the provisions of the by-laws of the association, would be entitled to the proceeds in preference to the father, made claim to such proceeds as against the plaintiff. The defendant does not resist payment of the sum named in the certificate, and the only question for decision in the lower court was as to which of the two claimants was entitled to the proceeds.

ute any other meaning than their true legal meaning. It must be presumed that the legislature intended to use the terms employed in the statute with accuracy and definiteness, and not with indefiniteness and uncertainty. Furthermore, there is nothing in the record, or within our judicial knowledge, to justify us in saying that, according to common use or understanding, the plaintiff and deceased were related.

Counsel also urge that the use of the word "legatee" indicates a purpose on the part of the legislature to permit certificates to be made to any beneficiary whom the member shall see fit to name, because, as anyone may be made a legatee, the member might, by making a will in favor of one not a relative,

support a certificate naming such person as payment of the claim, we have no occasion beneficiary. But the statute is explicit into elaborate the question as to whether the limiting the authority of such associations intervener is entitled to the proceeds. But as to the persons who may be entitled to the benefits of certificates issued, and we have no power to enlarge the statute to cover persons not thus designated. If the deceased member had made a will in favor of the plaintiff, then the plaintiff might have been the beneficiary in the certificate; but he did not do so, and it seems to us this is an end to the argument.

Plaintiff, then, not being one of the persons who by statute may be made beneficiaries in such a certificate, it follows that she was not entitled to the proceeds of the certificate. As the association does not resist

it seems to be well settled that, where the beneficiary named is incapable of taking the proceeds under the law, the administrator of the deceased person can recover the proceeds, just as he might if no beneficiary had been named. Schmidt v. Northern Life Asso. 112 Iowa, 41, 51 L. R. A. 141, 84 Am. St. Rep. 323, 83 N. W. 800, and cases therein cited.

The decree that plaintiff is not entitled to the fund, on the grounds that she is not related by consanguinity or affinity, and that the intervener is the beneficiary entitled to the fund, is affirmed.

KANSAS SUPREME COURT.

STATE of Kansas, Appt.,

v.

Charles M. BOWLES.

(......Kan......)

*1. Whenever required by the governor to appear and prosecute criminal proceedings in any county, the attorney general becomes prosecuting attorney of that county in those proceedings, and as such may sign indictments presented by the grand jury.

2. The district court of any county is obliged to take judicial notice of an executive order upon the attorney general to appear and prosecute criminal proceedings there, and such authority need not be expressed on the face of an indictment which he signs.

3. The solicitation of a bribe does not constitute an attempt to accept or receive

a bribe.

indictments found by a grand jury. The powers belonging to the office of attorney general at common law are retained, in addition to those conferred by statute.

3 Am. & Eng. Enc. Law, 2d ed. p. 479; People v. Miner, 2 Lans. 396; Hunt v. Chicago & D. R. Co. 20 Ill. App. 282; Craft v. Jackson County, 5 Kan. 521; Atchison, T. & S. F. R. Co. v. State, 22 Kan. 1; Barber County v. Smith, 48 Kan. 331, 29 Pac. 565.

Under his general authority as attorney general, he may, in his discretion, institute prosecutions in any court he may choose.

The proceedings before a grand jury are as much a part of a prosecution as the proceedings in the trial court.

23 Am. & Eng. Enc. Law, 2d ed. p. 268; Choen v. State, 85 Ind. 210; Territory v. Harding, 6 Mont. 327, 12 Pac. 750; Territory v. Layne, 7 Mont. 225, 14 Pac. 705; State ex rel. Nolan v. District Court, 22 Mont. 25, 55 Pac. 916.

When power is placed in the hands of an officer, all incidental powers necessary for the due and efficient exercise of the power

APPEAL by the State from an order of expressly granted are conferred by impli

District Court for Wyandotte

County quashing an indictment charging defendant with offering to accept a bribe. Affirmed.

The facts are stated in the opinion. Messrs. C. C. Coleman, Attorney General, and Jay F. Close, for appellant:

The attorney general has authority to sign

*Headnotes by BURCH, J.

NOTE.-As to criminality of solicitation to crime which is not consummated, including solicitation of bribe, see also note to State v. Butler, 25 L. R. A. 434.

cation.

Throop, Pub. Off. § 543.

Where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution.

Broom, Legal Maxims, 5th ed. 637; 22 Am. & Eng. Enc. Law, 2d ed. p. 1267; Me

chem, Pub. Off. § 525; Throop, Pub. Off. § 558; State v. Farrar, 41 N. H. 53; San Luis Obispo County v. Hendricks, 71 Cal. 242, 11 Pac. 682; Wolffe v. State, 79 Ala. 201, 58 Am. Rep. 590; Lowell v. Flint, 20 Me. 404;

Miller v. Lewis, 4 N. Y. 555; Choen v. State, | 1093; 1 Bishop, Crim. Law, ¶¶ 760, 762, 764; 85 Ind. 210; State v. Thompson, 64 Tex. 690; Reg. v. Taylor, 1 Fost. & F. 511; Smith v. Tierney v. Cornell, 3 Neb. 267; Ward v. Com. 54 Pa. 209, 93 Am. Dec. 686; Com. v. Barrows, 2 Ohio St. 241; Coombs v. Lane, Willard, 22 Pick. 476. 4 Ohio St. 112; Valley Twp. v. King Iron Bridge & Mfg. Co. 4 Kan. App. 622, 45 Pac. 660; State v. Nield, 4 Kan. App. 626, 45 Pac. 623; Smith v. Payton, 13 Kan. 364; Rex v. Verelst, 3 Campb. 432; M'Gahey v. Alston, 2 Mees. & W. 206; Faulkner v. Johnson, 11 Mees. & W. 581; M'Mahon v. Lennard, 6 H. L. Cas. 970; Nofire v. United States, 164 U. S. 657, 41 L. ed. 588, 17 Sup. Ct. Rep. 212.

jury of Wyandotte county. The indictmenting attorney; and when the grand jury recharged that the defendant did unlawfully, turn any indictment into court the judge feloniously, wickedly, and corruptly offer must examine it, and if the foreman has and promise to a person named that he neglected to indorse it, 'A true bill,' with would give his vote, opinion, judgment, and his name signed thereto, or if the prosecutaction as a member of the board of education ing attorney has neglected to sign his name, of the city of Kansas City in favor of a cer- the court must cause the foreman to intain matter on condition that he be paid a dorse, or the prosecuting attorney to sign, sum of money as a bribe and reward for it, as the case may require, in the presence so doing, and did unlawfully, feloniously, of the jury." In the case of State v. Nulf, and corruptly seek and solicit from the 15 Kan. 404, the following language is used: party named the payment of the sum of mon- "Under the laws of Kansas the 'prosecuting ey stated as a reward and bribe unlawfully attorney' is always the 'county attorney' and corruptly to be given to influence him in │(Gen. Stat. 283, 284, §§ 135–137). That is, the giving of his opinion, vote, judgment, every criminal action prosecuted in the name and action. The indictment concluded and of the state must be prosecuted by the counwas signed as follows: "And the said grand ty attorney, who is the public prosecutor. jurors do present that, by the means and acts Therefore, for the purpose of prosecuting aforesaid, the said Charles M. Bowles did criminal actions, the prosecuting attorney then and there unlawfully, feloniously, and and the county attorney is one and the corruptly attempt to commit the crime of un- same person." And in the case of United lawfully, feloniously, and corruptly accept- States v. Weld, 1 Kan. Dassler's ed., 21 Aping and receiving money from the said px., decided in 1860 by the United States disGeorge E. Rose under an understanding and trict court for the first judicial district of agreement which he, the said Charles M. the territory of Kansas, the syllabus reads: Bowles, then and there unlawfully, feloni- "When one person or class of persons is ously, and corruptly attempted to make and named in a power of attorney, or an act of enter into, that the vote, opinion, and judg- the lawmaking power, as being authorized to ment of the said Charles M. Bowles should do a certain thing therein named, all other thereby be corruptly influenced to be cast persons are thereby excluded from doing and given in favor of the election of the the same thing as effectually as if they were said George E. Rose as principal and teacher positively forbidden." in the said public schools, contrary to the The attorney general justifies his constatutes in such case made and provided, duct under § 7271 Gen. Stat. 1901, which and against the peace and dignity of the provides: "The attorney general shall apstate of Kansas. C. C. Coleman, Attorney pear for the state, and prosecute and deGeneral of the State of Kansas, prosecuting | in Wyandotte County." A motion was made to quash the indictment on the following grounds: "(1) The indictment is not signed by the county attorney, as required by law. (2) That said indictment is not signed by the prosecuting attorney of said county, as required by law. (3) That said indictment is not signed by any person as attorney who by law is authorized to sign indictments in said county. (4) That the facts stated in such indictment are not sufficient to constitute any offense or crime under the laws of the state of Kansas." The district court sustained the motion and quashed the indictment. The state appeals upon a question re-tory or county all suits, indictments, appliserved.

The essence of the defendant's claim in reference to the form of the indictment is that it can be signed by no officer of the state except the county attorney of the county in which the grand jury sits. While the argument is re-enforced from other sources, its fundamental content is derived from the Code of Criminal Procedure and two decisions rendered in this state. Section 5540, Gen. Stat. 1901, reads as follows: "Each indictment must be signed by the prosecut

fend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party; and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court, or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested." In the year 1855 the legislature of the territory of Kansas provided for the election of a district attorney for each district organized for judicial purposes. He was required to appear in each county at the district court and prosecute and defend on behalf of the terri

cations, or motions, civil or criminal, in which the territory or county should be a party, and, among other things, to draw, and sign all indictments or other pleadings connected with his office. The same legislature adopted a Code of Criminal Procedure which made it the duty of the attorney prosecuting in the county to attend any grand jury whenever required, and aid in various ways in the conduct of its proceedings; but no reference was made to the matter of signatures to indictments. By an act approved

ever required by the governor or either branch of the legislature, should appear for the state and prosecute or defend, in any court, or before any officer, in any cause or matter, civil or criminal, in which the state might be a party or interested. The substance of this act has been preserved in all subsequent revisions of the law, and it now appears as § 7271, Gen. Stat. 1901. The experience of members of the legislature during territorial times had taught them the necessity of a state government equipped with sufficient power to protect public rights and redress public injuries through

February 12, 1858 (Laws 1857-58, chap. 13, | provided that the attorney general, whenp. 195), the territorial legislature changed the system relating to local prosecutors, and created the office of county attorney for each county organized for judicial purposes. Its incumbent was required to appear in the several courts of the county and prosecute or defend actions, attend the sittings of the grand jury when required, and draw bills of indictment. The law provided that county attorneys should be elected at the general election following the session of the legislature; and, of necessity, district attorneys remained in office until the new system became operative. By another act, approved February 12, 1858, the same legis-out the entire state, independent of the atlature changed the Code of Criminal Procedure, and adopted a provision in reference to the manner in which indictments should be signed, in all respects identical with § 5540, Gen. Stat. 1901, already quoted. This act took effect immediately after its passage. It is plain, therefore, that the words "prosecuting attorney," in the new Code, were designed to embrace both the district attorney who would have authority to prosecute until the next general election and the county attorney, who would then be the local prosecutor.

titude of local authorities who might be indifferent, incapable, or even antagonistic. They had suffered from the baleful manifestations of sectionalism within the state as well as between different states, and the purpose was to make the authority of the government felt, through its chief law officer, in every part of its territory, if the chief executive or either branch of the legislature should determine it to be necessary. The language of the statute indicates that the intention was to grant plenary power to the attorney general to this end, and he was invested with full authority to use all the means afforded by the law to meet the requirements of any situation and fully

directed by the governor or either branch of the legislature to appear and prosecute criminal proceedings in any county, he becomes the prosecuting attorney of that county in those proceedings, and has all the rights that any prosecuting officer there may have, including those of appearing before the grand jury, signing indictments, and pursuing cases to final determination.

During territorial days the attorney general was an official deriving his power and authority from the government of the United States. There was therefore no multi-protect the interests of the state. When plicity of officers, some one of whom needed to be designated to perform the special duty of signing indictments, to the exclusion of all others. All that was necessary was to provide for the due authentication of true bills returned by the grand jury. The object of the statute was not to confer a special power upon an individual, according to the principle announced in the case of the United States v. Weld, but to protect the legitimacy of a document. To the attorney in charge of the territory's case at the time was assigned this duty. He might be district attorney, with jurisdiction extending over all the counties of a judicial district, or he might be county attorney, with a much more limited range of authority, but the prosecuting attorney, whatever his official title and whatever the scope of his territory, was to sign indictments. Upon its admission into the Union the new state abolished the office of county attorney, and re-tribunal, and pursuing them to final judg turned to the former system of district attorneys. In 1864 the office of county attorney was restored. But the statute of 1858 relating to the authentication of indictments has persisted, unmodified, to the present time. In the organization of the state government the office of attorney general was created, and by an act approved June 3, 1861 (Laws 1861, chap. 58, p. 216), it was

In 23 Am. & Eng. Enc. Law, 2d ed. p. 268, there is a fair statement of what is included in the term "prosecute:" "To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal

ment on behalf of the state or government, as by indictment or information." The reasoning of decided cases, involving differing states of fact, leads to the same conclusion. Choen v. State, 85 Ind. 209; Territory v. Harding, 6 Mont. 323, 12 Pac. 750; State ex rel. Nolan v. District Court, 22 Mont. 25, 55 Pac. 916, 918.

The remark of Mr. Justice Valentine in