ceedings in the case, and at the same time refrained from expressing any opinion as to the merits of the demurrer which had been filed against it. The relief sought against the mining corporation is incidental to the main issue. It is sought to restrain the sale of the stock for the collection of the assessment. In order, however, to sustain the action against the company, and restrain it from proceeding to collect the assessment duly and regularly made by its board of directors, it is essential to state more definitely, and with greater certainty than this complaint contains, a cause of action against the company, or some unlawful, fraudulent, or improper relation existing between its officers and the principal defendant, Rockwell. It would be necessary to in some way show by the complaint and the proofs that the assessment would never have been levied against the stock had it not been for the void transfer of this stock to Rockwell, and that Rockwell in some unlawful and wrongful manner controlled or influenced the board of directors to take this action which they otherwise would not have taken, or show that by reason of obtaining this stock he secured a change in the board of directors in a wrongful or unlawful manner, and following upon such action he also secured them to wrongfully or unlawfully levy this assessment. In other words, unless the plaintiff can show that this assessment has been made wrongfully and unlawfully and as a result of the wrongful or fraudulent action of Rockwell, there would be no reason or justification for prosecuting an action for injunction against the company. The mere fact that Rockwell combined his holdings with other stockholders, and by that combination was able to elect officers, would furnish no reason for vacating or avoiding the action of such officers, or for enjoining the company from carrying out the resolutions of its board of directors. As

we understand it, it is lawful and legitimate for one stockholder to combine his holdings with the holdings of one or more other stockholders for the purpose of the election of officers and controlling the management and business affairs of a corporation, and this is true until such time as the action of such stockholders becomes wrongful or unlawful or fraudulent, at which point the courts may take jurisdiction and act for the protection of the minority. Cook on Corporations (5th Ed.) at section 622a, says: "It is elementary law that stockholders owning a majority of the stock have a right to combine and control the election of the board of directors." To the same effect, see Havemeyer v. Havemeyer, 43 N. Y. Super. Ct. 506, affirmed 86 N. Y. 618; Faulds v. Yates, 57 Ill. 416, 11 Am. Rep. 24; Beitman v. Steiner Bros., 98 Ala. 241, 13 South. 87; Ziegler v. Lake St. El. R. Co. (C. C.) 69 Fed. 176.

It is likewise true that the necessity for an assessment on the capital stock of the corporation cannot be questioned by a stock

holder. 10 Cyc. 487; Budd v. Multnomah St, R. Co., 15 Or. 413, 15 Pac. 659, 3 Am. St. Rep. 169. In this case the plaintiff does not show that any change took place in the officers of the corporation subsequent to the transfer of the stock to Rockwell or on account thereof; nor does it show that any election of directors has ever taken place since that time, nor does it show that they have been under the control, influence, and direction of Rockwell, or that they have been wrongfully or improperly influenced by him; nor does it show any facts from which it may be fairly inferred that the assessment would not have been made just the same even though the transfer of stock to Rockwell had never taken place; nor does it show that Watt would not have been obliged to pay this same assessment if he had still held the stock just the same as he is called upon to do at this time. For the foregoing reasons, we are satisfied that the court erred in overruling the demurrer of the Della Mountain Mining Company.

As to the sufficiency of the complaint as against Rockwell, a different question arises. While the complaint is, as we said on the former appeal, "meager and open to some objections," still we are inclined to hold that it was sufficient for the purpose of charging that the transfer of the stock from Watt to Rockwell was void on the ground that Watt was insane at the time of making the alleged contract. As to whether that agreement was a contract of sale or of agency, we express no opinion here, for the reason that, as we view this case, the judgment must be reversed as to both defendants, and a new trial be granted, and, since some of the evidence offered was improperly rejected, a somewhat different state of facts may be shown on the next trial. Touching the question as to the degree or extent of incompetency or mental unsoundness on the part of the contracting party for or on account of which the contract may be avoided, we announced the rule to be followed in this state in the case of Ratliff v. Baltzer's Adm'r, 13 Idaho, 152, 89 Pac. 71. Should another trial take place, however, it will be necessary to determine whether the real contract was entered into on September 18th, or November 5th. All the evidence is before us on that question. The two agreements are in the record, and all the circumstances under which they were made and executed are presented. The only changes whatever made by the agreement of November 5th were as follows: First. Under the agreement of September 18th, Rockwell was to make a payment of $9,000 at the time he received the first 10,000 shares of stock, and executed his promissory notes for $9,000 each in payment of the balance of the purchase price, and apparently, from the terms of the agreement, was to receive the balance of the shares of stock on delivery of the promissory notes. By the second agreement, the $9,000 in cash was te

be paid on the delivery of the 10,000 shares of stock, and the remainder of the stock was to be held by the holder of the escrow and a certificate of 10,000 shares of stock was to be delivered as often as a $9,000 payment should be made. The other change in the agreement was merely that of the holder of the escrow or depositary. Under the first agreement, the stock and agreement were deposited with the Watt Banking Company. Under the second agreement, the deposit was Imade with George A. McLeod. It will be seen from these facts that the real and substantial contract between the parties was entered into September 18th, and that the subsequent agreement of November 5th was merely a change of depositary or escrow holder with a further proviso for additional security and collateral in favor of Watt as guaranty for the payment of the purchase price.

On the trial of the case the main question of fact which arose was as to the mental competency of Watt at the time of making and entering into these agreements or contracts. The plaintiff introduced a number of witnesses who testified as to Watt's mental condition at the time these transactions were had, and at various times prior and subsequent thereto. On the part of defendants, the defendant Rockwell, L. L. Sullivan, and F. B. Cross were called, and it was shown in substance by each of them that they had known Watt continuously for a number of years, and that they were acquainted with him during the times mentioned by the witnesses of the plaintiff, and that they were present at the time of these transactions and were familiar with his demeanor and conduct. They were thereupon asked if, judging from his acts and conduct, and all that they observed in other respects, they believed Watt to be mentally competent, sound, and sane at the time of these several transactions. The court refused to allow any of these witnesses to answer the questions. These rulings are assigned as error. It is too well settled law to require consideration or discussion here that the competency or incompetency, sanity or insanity, of a person at the time of a given transaction may be proven by laymen or nonexpert witnesses with equal certainty, and often greater satisfaction than by experts, and the fact that a witness who has been acquainted with the person and has seen him frequently, and has been familiar with all his transactions, and has had business dealings with him, is himself not an expert on the subject of insanity, and is not versed in the medical science or has had no training or education along those lines, is no reason whatever for excluding his evidence on a question of common, everyday observation. Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45; Heirs of Clark v. Ellis, 9 Or. 128; In re Christiansen's Estate, 17 Utah, 42, 53 Pac. 1003, 41 L. R. A. 504, 70 Am. St. Rep. 794; People v. Wreden, 59 Cal. 394; Arm

strong v. State, 30 Fla. 200, 11 South. 618, 17 L. R. A. 484. A nonexpert may be as able as an expert to make clear mental comparisons between the acts and conduct of a man who was at a given time sane, sound, and perfectly competent, and his acts at a time when he was laboring under mental disabilities. It was error for the court to refuse to allow these witnesses to answer the questions and testify and give their opinions as to the sanity or insanity of Watt and of his mental condition at the times in question.

Aside from the action of the court in overruling the mining company's demurrer, the most serious and the gravest error committed in this case, perhaps, was the ruling of the court in refusing to allow Rockwell to explain the affidavit that was introduced by the plaintiff against him. When the action was first instituted in the lower court, and after the issuance of the temporary restraining order, Rockwell filed an affidavit which was considered on the application for an order dissolving the injunction. That affidavit is set out in full in the previous decision. Weber v. Della Mountain Min. Co., 11 Idaho, 264, 81 Pac. 931. After the plaintiff had introduced his evidence in the trial court, the defendants moved for a nonsuit, and it seems that the court intimated that the motion was well taken, whereupon the plaintiff moved to reopen the case, and his motion was granted, and he thereupon introduced in evidence this affidavit made by Rockwell and used on his application for a dissolution of the injunction. This affidavit appears to have been introduced on the theory that it established the relation of principal and agent between Watt and Rockwell, and that it showed the contract of September 18th to be one of agency rather than one of sale. After the introduction of this affidavit, Rockwell was called and asked to explain the affidavitwhat was meant by it, the different transactions to which it referred, the conditions under which it was made, etc. The court sustained an objection to the offer and refused to permit Rockwell to testify in respect thereto. This was a gross error, and is within itself abundantly sufficient to reverse the judgment in this case. The affidavit was clearly admissible on behalf of the plaintiff, and any explanation that the defendant had to make of its contents was equally admissible on behalf of the defendant. 1 Ency, of Evidence, 476; 1 Jones on Evidence, § 298.

Our consideration of the sufficiency of the complaint as against the Della Mountain Mining Company disposes of the assignments of error with reference to the findings of fact made by the court, and renders it unnecessary for us to consider them further. We have considered all the questions presented in this record that are likely to arise on another trial of the case. The judgment must be reversed, and it is so ordered. The cause is remanded to the trial court, with direction to sustain the demurrer by the Della Moun

tain Mining Company, and take such further action as may be proper and in harmony with the views herein expressed. Costs awarded in favor of appellant.

STEWART, J., concurs. SULLIVAN, J., sat at the hearing, but took no part in the decision.

(14 Idaho, 353)

I. A. WEST & CO. et al. v. BOARD OF COM'RS OF LATAH COUNTY. (Supreme Court of Idaho. Feb. 26, 1908.) 1. INTOXICATING LIQUORS-LICENSES — AUTHORITY TO ISSUE-COUNTY COMMISSIONERS -STATUTORY PROVISIONS.

Section 2 of the act of March 4, 1901 (Laws 1901, p. 13), having been added to and made a part of the act of February 6, 1891 (Laws 1891, p. 33), as amended February 2, 1899 (Laws 1899, p. 21), becomes a part of said act, and in the absence of authority to be found in said added section, to issue such license, the law of 1891 as amended February 2, 1899, vesting such authority in the board of county commissioners, will govern.

2. SAME DISCRETION TO ISSUE-CONTROL BY COURTS.

Where the power to issue a license for the sale of intoxicating liquors, not to be drank in, on, or about the premises where sold, is vested in the board of county commissioners, and they are granted discretionary powers in the issuing of said license and authorized to refuse such license upon their own motion, or upon objections duly filed upon the part of any citizen or resident of the precinct within which it is intended to carry on such sale, when in their judgment the granting of such license will not be conducive to the best interest of the community in which such saloon or business is proposed to be established, their action in refusing to grant a license to such applicant cannot be interfered with or controlled by a mandate from this court.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 29, Intoxicating Liquors, § 75.]

3. STATUTES-EXPRESSION IN TITLE OF SUBJECT OF ACT.

Where the title to an act provides for amending another act and adding thereto a section, and the body of the act provides for the amendment, but makes no addition of the section, the omission does not render such amendatory act unconstitutional or void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 138, 204.] 4. SAME.

An amended section of an act takes the place of the original section in the act amended, and the failure of the Legislature in amending the same section of the original act a second time, to specifically refer to it as having been amended by the first amendatory act, does not affect the validity or constitutionality of the second amendment of the amended section.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 138, 204.]

(Syllabus by the Court.)

Original proceeding for mandamus to compel the board of commissioners of the county of Latah to issue a license to I. A. West & Company and others to sell intoxicating liquor not to be drunk in, on, or about the premises where sold. Writ denied.

Stewart S. Denning, for plaintiffs. Wm. E. Stillinger, for defendant.

STEWART, J. This is an original application in this court for a writ of mandate against the board of commissioners of the county of Latah. The petitioners allege, in substance, that they are partners, for the purpose of carrying on the liquor business, dealing in liquor, not to be drank in, on, or about the premises where sold, in the town of Onaway, in the state of Idaho; that, on the 14th day of January, 1908, at a regular meeting of the board of county commissioners of Latah county, the petitioners herein presented to said board their application for a liquor license to sell intoxicating liquors in the village of Onaway, Latah county, for the period of one year, said liquor not to be drank in, on, or about the premises where sold; that said petition was signed by the applicants and accompanied by a good and sufficient bond in the sum of $1,000 and by receipt of J. J. Keane, sheriff of Latah county, in the sum of $201, which was the amount of money paid by the plaintiffs to the sheriff of Latah county for the purpose of obtaining a license; that on the said 14th day of January the plaintiffs were refused a license by said board, and still refused the same; that the petitioners are beneficially interested, and have no plain, speedy, or adequate remedy at law; that on the 18th day of January, 1908, an application was made to Hon. E. C. Steele, judge of the Second judicial district of the state of Idaho, in which district said Latah county is situated, for a writ of mandate compelling said defendants to issue to plaintiffs herein a license as herein prayed for, which application was denied by said judge; that, in denying said license, the action of said board of commissioners was illegal and without authority of law. To this petition the defendant filed a demurrer upon the ground that the same did not state facts sufficient to constitute a cause of action. There is also filed in this case and used on the hearing a stipulation, which, among other things recites, "that the said board of county commissioners, upon their own motion, made and entered an order rejecting the said application for license, setting forth as their reason that the granting of said license would not be conducive to the best interests of the community in which said saloon or business is proposed to be established."

It will thus be seen that there is but one question presented in this case; and that is, whether or not the board of commissioners, in refusing a liquor license, is vested with discretionary power, or whether or not they can be compelled by a writ of mandate to act in any particular way upon an application for a liquor license. The law of this state in relation to granting a license to sell intoxicating liquors is in a very unsatisfactory condition, especially with reference to a license to sell liquor not to be drank on the premises where sold. But the power

now vested by law in the board of county commissioners, to grant or refuse a license, we think is plain and decisive. The first act of the Legislature of this state, dealing with the subject of granting a license to sell intoxicating liquors by the board of county commissioners, was approved February 6, 1891 (Laws 1891, p. 33), and makes it unlawful for any person to sell spirituous, malt or fermented liquors or wines to be drank on, in, or about the premises where sold without procuring a license and giving a bond. Section 2 of this act requires application to be made to the board of county commissioners, and provides that they shall grant a license upon giving the bond required by the act, and paying the fee provided by the act, to the sheriff of said county. This act expressly repealed section 1648, Rev. St. 1887, which authorized the tax collector to issue a license to persons desiring to sell intoxicating liquors in less quantities than one quart. On March 9, 1895 (Laws 1895, p. 82), the Legislature passed an act purporting to amend section 4 of the act of February 6, 1891, but which, in fact, made no change whatever in said section, and also adding thereto what was designated as section 23, providing for issuing a license to persons selling liquors not to be drank in, on, or about the premises where sold. This added section, however, said nothing whatever as to whom the money should be paid for the license, whether a bond shall be required, or by whom said license should be issued. On February 2, 1899 (Laws 1899, p. 21), the Legislature passed another act, which is practically a re-enactment of the act of March 9, 1895. On March 4, 1901, the Legislature passed an act amending section 4 of the act of February 6, 1891, as amended on March 2, 1899 (Laws 1901, p. 13). The only change was in relation to amount of the license fee and the period for which the same might be issued. The act also purports to amend section 23 of the act of February 2, 1899. This is the section in relation to procuring a license to sell liquors not to be drank in, on, or about the premises where sold. This amendment alters the section enacted in 1899, and provides that the license shall be granted for a period not less than one year, instead of not less than three months. It will thus be seen by these various acts that the only body authorized to grant a license is the board of county commissioners.

Section 23, as found in the acts of 1895, 1899, and 1901, in relation to issuing a license for the sale of intoxicating liquors not to be drank in, on, or about the premises where sold, says nothing whatever as to the proceedings required to secure such license, or by whom such license shall be issued. But, inasmuch as no provision is made for issuing a license for the sale of intoxicating liquors, except by the board of county commissioners, it was evidently the intention of the Legislature, after section 1648 had

been repealed by the act of 1891, and a law was passed at that session in relation to granting license for the sale of intoxicating liquors, to vest in the board of county commissioners the exclusive authority to grant licenses for the sale of intoxicating liquors. We are forced to this conclusion for the following reasons: first, because the section in relation to a license for the sale of intoxicating liquor not to be drank in, on, or about the premises where sold, is added to and made a part of the act dealing with the subject of granting a license for the sale of intoxicating liquors to be drank on the premises where sold. Second, that if this be not so, the section in relation to a license for the sale of intoxicating liquors not to be drank in, on, or about the premises where sold would leave the issuing of such license without any one having authority to issue the same. Unless the board of county commissioners had authority to issue the license. then no one had, and unless the license fee was payable to the sheriff, as provided in the section in relation to a retail license, then the person to whom such license fee was payable would be omitted entirely, and there would be no one authorized to receive the money for such license. Unless the Legislature, by adding this section, intended that the same officer should receive the license fee and the same authority grant the license, as is provided for a license for the sale of liquor to be drank on the premises where sold, the section would be ineffectual as a license measure. It was clearly the intention of the Legislature to place the issuing of a license for the sale of intoxicating liquor not to be drank in, on, or about the premises where sold with the same authority as was vested the power to issue a license for the sale of intoxicating liquors to be drank on the premises where sold. If this construction be correct, we are then led to the consideration of the act of March 12, 1907 (Laws 1907, p. 219). This latter act purports "to amend sections 2, 3, and 6 of an act entitled 'An act regulating the sale of intoxicating liquors,' passed and approved February 6, 1891, and to amend section 4 of an act entitled 'An act to regulate the sale of intoxicating liquors,' approved February 6, 1891, as amended by an act approved March 4, 1901."

Section 2 of the act of 1891, which was not in any way amended by either of the acts of 1895, 1899, or 1901, vested the authority to issue a license for the sale of intoxicating liquors to be drank on the premises where sold in the board of county commissioners. This authority, by the amendment of 1907, is vested in the board of county commissioners, and in that respect no change is made in the act of 1891. Section 3 of the act of 1891, which likewise was not amended by the acts of 1895, 1899, or 1901, provides for paying the license fee to the sheriff and the giving of the bond, and, among other things,

provides: "That when an application is made for the sale of intoxicating liquors as in this section provided for a place outside of any incorporated city, either upon their own motion or upon objections duly filed upon the part of any citizen and resident of the precinct within which it is intended to carry on such sale, the county commissioners shall determine whether or not the granting of such license will be conducive to the best interests of the community in which such saloon or business is proposed to be established, and whether or not such applicant is a fit person to have such license and carry on said business and whether or not such place of sale and business will likely be conducted in a quiet, orderly and peaceable manner, and should said board of county commissioners determine adversely to the applicant upon any grounds above specified, the license must be refused, and the sheriff shall return the amount deposited to said applicant; otherwise the said license may be granted; and such order of the board of county commissioners shall be subject to appeal to the district court as in the case of other orders of said board." Thus it will be seen by this act that authority is vested in the board of county commissioners, either upon their own motion or upon objections filed by others, to refuse a license. It is entirely discretionary with the board whether or not they grant the license. The remedy of the applicant if he feels aggrieved is by appeal to the district court. In this case as set forth above it stipulated "that the board of county commissioners refused the license in question upon the grounds that it would not be conducive to the best interest of the community in which said saloon or business is proposed to be established." This, they have authority to do, and their discretionary action in this matter cannot be controlled by this court or any other court; the remedy is by appeal from the action of the board.

Looking at section 23 as found in the acts of 1895, 1899, and 1901, we find that this is the section which deals entirely with the sale of intoxicating liquors not to be drank in, on, or about the premises where sold. This section was added to the law of 1891 by the act of March 9, 1895, p. 82, the title of which reads: "To amend sections 4 and 23 of an act to regulate the sale of intoxicating liquors, approved February 6, 1891, and adding section 23 thereto." Section 23 of the act of 1891, which this act purports to amend, provides for the time the act shall take effect, and in the body of the act of 1895 it provides that section 23 of said act is amended to read as follows: "Sec. 24. This act shall take effect and be in force on the first day of July, 1895." Then follows: "Insert in said act the following: Sec. 23." Then follow the provisions for a license for the sale of intoxicating liquors not to be drank in, on, or about the premises where sold. The title to the act of 1899 reads: "An act relating to

liquor licenses; and amending sections 4 and 23 of an act entitled 'An act to regulate the sale of intoxicating liquors, approved February 6, 1891, and adding section 23 thereto.'" Thus it will be seen that this act ignores entirely the act of 1895. In the body of the act of 1899 it provides:

"Sec. 2. Section 23 of said act is amended to read as follows:

"Sec. 23. This act shall take effect and be in force on the first day of July, 1895." Laws 1899, p. 21.

Then follows the provisions for a license for the sale of intoxicating liquors not to be drank in, on, or about the premises where sold. This act then amends section 23 of the act of 1891, which fixed the time of the taking effect of that act, by making the act of 1899 take effect on July, 1895; followed by the provisions with reference to the sale of liquor not to be drank in, on, or about the premises. The act of 1899, however, while it says in the title that section 23 is added, yet, in the body of the act, it nowhere provides for the adding of section 23, but does provide for amending section 23, as above stated. The title therefore of the act is broader than the act itself, in that the title purports to add a section as 23, while the body of the act does not provide for such addition. The title of the act of 1901 reads as follows: "An act relating to liquor licenses and amending sections 4 and 23 of an act entitled, 'An act to regulate the sale of intoxicating liquors,' approved February 6, 1891, as amended by an act entitled, 'An act relating to liquor licenses and amending sections 4 and 23 of an act entitled, "An act to regulate the sale of intoxicating liquors," approved February 6, 1891, and adding section 23 thereto,' passed February 2, 1899." This title indicates that this act will amend sections 4 and 23 of the act of 1891, as amended by the act of February 2, 1899. While in the body of the act, section 2 is made to read: "Section 23 of said act, as amended February 2, 1899, is hereby amended to read as follows:" then follow the provisions for the sale of intoxicating liquors not to be drank in, on, or about the premises where sold. While it is true, therefore, that section 23 of the act of 1895 was added as a part of the act of 1891, yet in the re-enactment of said statute in 1899 the provision as to adding said section 23 as a part of the act of 1891 was omitted from the body of the act, although it was provided for in the title, and section 23 of the act of 1891, which provides for the time the act should take effect was amended by the act of 1899, the provision for a license for the sale of intoxicating liquors to be drank in, on, or about the premises where sold becomes a part of said act by amendment, and not by addition thereto. The amendments were in accordance with the requirements of the Constitution unless the amendment made in 1899 is unconstitutional by reason of the fact that the title also provided for addin