This court has already declared, in accordance with the views adopted generally by other courts, "that if a man kills another while in a fit of voluntary intoxication, it is murder, and he must suffer the penalty." State v. Yarborough, 39 Kan. 581, 18 Pac. Rep. 474; Lawson, Insan. Def. Crime, 532-695, and cases cited. Of course, drunkenness may be considered, as the instructions declare in this case, in determining whether there was that deliberation, premeditation, and intent to kill necessary to constitute the offense charged. Cline v. State, 43 Ohio St. 334, 1 N. E. Rep. 22. Bishop, in his work on Criminal Law, which is quoted approvingly in the brief for the defendant, says: "When a man voluntarily becomes drunk there is the wrongful intent; and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination of act and intent he is liable criminally. It is, therefore, a legal doctrine, applicable in ordinary cases, that voluntary intoxication furnishes no excuse for crime committed under its influence. It is so even when the intoxication is so extreme as to make the person unconscious of what he is doing, or to create a temporary insanity." Section 400, (volume 1, 7th Ed.,) p. 258. In section 406 he says: "Again, the law holds men responsible for the immediate consequences of their acts, but not ordinarily for those more remote. If, therefore, one drinks so deeply, or is so affected by the liquor, that for the occasion he is oblivious or insane, he is still punishable for what of evil he does under the influence of the voluntary drunkenness. But, if the habit of drinking has created a fixed frenzy or insanity, whether permanent or intermittent,-as, for instance, delirum tremens, it is the same as if produced by any other cause excusing the act; for whenever a man loses his understanding, as a settled condition, he is entitled to legal protection, equally whether the loss is occasioned by his own misconduct or by the dispensation of Providence." Id. If drunkenness produces insanity through delirium tremens or mania a potu, or other disease, and a defendant at the time of the homicide has no sufficient capacity or reason to enabie him to determine between right and wrong as to the particular act he was doing, or has no power to know that the act was wrong and criminal, he would not be responsible. O'Grady v. State, (Neb.) 54 N. W. Rep. 556. In cases of delirium tremens or mania a potu, the insanity excuses the act, the frenzy being, not the immediate effect of indulgence in strong drink, but a remote consequence superinduced by antecedent drunkenness. State v. Nixon, 32 Kan. 205, 4 Pac. Rep. 159; State v. Mowry, 37 Kan. 369, 15 Pac. Rep. 282; also the various decisions cited in Lawson, Insan. Def. Crime, pp. 532-680; O'Grady v. State, supra; Cline v. State, supra.

But it is argued, on account of the instructions given and refused, that the jury were misled in not being permitted to excuse the defendant if alcoholism or other disease had created insanity. We think other instructions of the court sufficiently covered all forms of insanity, because in such instructions the jury were informed that, "when insanity is set up as a defense to crime committed, the rule that the jury must ever keep before their eyes and minds in determining the responsibility of defendant is this: 'Was the accused, at the time of doing the act complained of, conscious of the nature of his act, or did he know that it was wrong to do it?' * * Testimony has been introduced

in this case covering several years of the defendant's life prior to the commission of the acts alleged against him. The object was to show the defendant's conduct and habits of life. This is all proper testimony, and you should consider it for what you may think it is worth as bearing upon the question of the defendant's sanity or insanity at the time he committed the act charged against him. If you find that he did commit such an act, remembering that it is the condition of the defendant's mind at the time he committed the fatal assault upon which you are to judge him, and that all or any of this testimony is only competent as it may throw light upon his actual condition at the time of his commission of the act charged against him.

* If you believe that the defendant was laboring under such a defective reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that what he was doing was wrong, then the law does not hold him responsible for his acts. * * * When habitual unsoundness of mind is once shown to exist either wholly or partially, it is presumed to continue to exist until the presumption is rebutted by the state. * * * When a person at the time of the alleged crime has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong, he is responsible, if he commits such act or acts, whatever may be his capacity in other particulars; but if he does not possess this degree of capacity, then he is not so responsible. In other words, if he has mental capacity sufficient to distinguish between right and wrong with respect to the particular act or acts constituting the alleged crime, he should be held responsible for the commission of such act or acts, although he might be insane or imbecile with respect to other matters. Now, there are many sorts of diseases of the mind that are commented upon and discussed by physicians and psychologists in these days, and that are presented in court for the consideration of a jury, and upon which the jury is asked to find that the mind of the accused was, at the time in question,

so overthrown as to make him wholly irresponsible, and therefore that he should be acquitted for his otherwise unlawful acts. Now, however varied these diseases may be, I say to you they all come under the great head or generic head of insanity, and in the main test is the rule I have just given you; all else is argument or minor rule under this head, and which must revolve itself back to it." Therefore, in accordance with the prior decisions of this court, the jury were properly instructed upon the evidence concerning the defendant's insanity, whether caused from alcoholism, through delirium tremens, or mania a potu, or from any other disease.

This court has gone further than some other courts in holding "that the defendant on a plea of insanity is not required to establish his insanity by a preponderance of the evidence, but, if, upon the whole of the evidence introduced upon the trial, together with all the legal presumptions applicable to the case, under the evidence there is a reasonable doubt whether he is sane or insane, he must be acquitted. To doubt his insanity is to doubt his guilt, and to doubt his guilt (if the doubt be a reasonable one) is to acquit. The doubt of guilt cannot be of less degree than the doubt of sanity; and, if the doubt of sanity be a reasonable doubt, the doubt of guilt must also and necessarily be a reasonable doubt." State v. Crawford, 11 Kan. 32. The rule laid down by this court concerning the responsibility of a "person who, at the time of the commission of the alleged crime, has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong," is forcibly challenged by the counsel for the defendant. The theory of irresponsibility from an irresistible or uncontrollable impulse is ably presented. The following authorities are cited against the law declared in the former decisions of this court: State v. Pike, 49 N. H. 399; Parsons v. State, 81 Ala. 577, 2 South. Rep. 854. We have also been referred to a lengthy article "on the legal aspect of insanity," published in 1 N. W. Law Rev. 1, which states, among other things, that "it would be difficult to crowd into the same compass more erroneous ideas than are found in the charge of the court in the Guiteau Case, 10 Fed. Rep. 161." We have examined these authorities, and also read many similar articles in the magazines upon legal or forensic medicine, which support, and even go further than, the views expressed in the Law Review. Some of the articles in the medicolegal journals assert that all crime results from heredity, and therefore that all persons committing alleged offenses should be considered irresponsible, and be subjected to treatment for disease only; not for crime. The decisions cited above are sporadic cases, and against the overpowering weight of authority. Lawson, Insan. Def. Crime, 200-324.

Mr. Justice Valentine, in State v. Nixon, 32 Kan. 205, 4 Pac. Rep. 159, expressed himself as follows: "It is possible that an insane, uncontrollable impulse is sometimes sufficient to destroy criminal responsibility, but this is probably so only where it destroys the power of the accused to comprehend rationally the nature, character, and consequences of the particular act or acts charged against him, and not where the accused still has the power of knowing the character of the particular act or acts, and that they are wrong. Indeed, it would seem dangerous to society to say that a man who knows what is right and wrong may nevertheless, for any reason, do what he knows to be wrong without any legal responsibility therefor. The law will hardly recognize the theory that any uncontrollable impulse may so take possession of a man's faculties and powers as to compel him to do what he knows to be wrong, and a crime, and thereby relieve him from all criminal responsibility. Whenever a man understands the nature and character of an act and knows that it is wrong, it would seem that he ought to be held legally responsible for the commission of it, if in fact he does commit it. But upon this question of insane, uncontrollable imrulse, we do not wish to express any very definite opinions, as we do not think the question is presented to us in this case." In State v. Mowry, 37 Kan. 369, 15 Pac. Rep. 282, this court adopted the views thus expressed upon uncontrollable impulse. See State v. Miller, (Mo. Sup. 1892,) 20 S. W. Rep. 243, where the defendant Was charged with rape, and claimed he was irresponsible for the crime because committed under uncontrollable impulse. 27 Amer. Law Rev. pp. 299, 300. We are not willing to change the ruling of this court in favor of irresponsibility on account of uncontrollable impulse where the perpetrator is fully conscious that the act he is doing is wrong and criminal. If the law as declared by this court does not offer sufficient safeguards and protection for "that most unfortunate class, who cannot speak for themselves," an act of the legislature may establish a different rule. Until the legislature interferes, we prefer to follow the great weight of authority upon this matter. We are not inclined to adopt the theories of psychological enthusiasts to overthrow the long-established criminal practice in this class of cases, which is based on human experience from earliest times. The legislature might, however, very appropriately pass an act permitting the state or the accused to have the question of insanity tried before the main trial upon the information or indictment. In such a case a jury of physicians might be required to be summoned to determine the sanity or insanity. At present the question of insanity in a criminal case, where it is claimed that the accused was insane at the time of the commission of the alleged offense, is tried along

1. The mayor and council of a city of the first class may, by ordinance, provide for contesting the election of any person to any city office, but the rules or by-laws adopted must not conflict with the laws of the state.

2. A city council, when organized for the trial of a contested election over a city office, is a tribunal exercising judicial functions, and a petition in error will lie from its decisions to the district court.

3. It is the duty of a city council organized for the trial of a contested election case to settle and sign a correct bill of exceptions, so that its judgment may be reviewed: but its decision as to the truthfulness of a bill, like that of a trial judge, is conclusive and final. Of course, in settling a bill of exceptions the trial judge or tribunal hearing the case should act fairly and impartially, and state fully the truth in the bill signed.

(Syllabus by the Court.)

Original application by W. T. Bland for mandamus to Charles W. Jackson, councilman, and president of the council of the city of Atchison, and others. On motion to quash alternative writ. Motion denied.

The other facts fully appear in the following statement by HORTON, C. J.:

An election was held in the city of Atchison for city officers on Tuesday, the 4th day of April, 1893. W. T. Bland and Marshall J. Cloyes were the candidates for the office of mayor. On Friday, the 7th day of April, 1893, the mayor and councilmen of the city, sitting as a board of canvassers to canvass the returns of the election, declared W. T. Bland had been elected mayor, and directed that the certificate of election to such office be given to him. On the 8th of April, 1893, he took the oath of office, and attempted to assume the duties thereof. On Saturday, April 9, 1893, Marshall J. Cloyes, claiming that he was elected mayor, and desiring to contest the election of W. T. Bland, filed a statement in writing with the city council, alleging his grounds of contest. The council fixed the 17th of April, 1893, at 7:30 P. M., as the time and place for hearing such contest. At such hearing the council, by resolution, proceeded to recount the ballots cast in the city of Atchison for the office of mayor on April 4, 1893, against the objection of W. T. Bland, and after such recount announced that Marshall J. Cloyes had received 1,099 votes for mayor; that W. T. Bland had received 1,098 votes only, and thereupon declared that Marshall J. Cloyes,

the contestor, had duly been elected to the office. To the declaration of the result of the election, and to all of the proceedings of the council, W. T. Bland excepted. At the conclusion of the hearing of the contest, about 3 o'clock A. M. of April 18, 1893, W. T. Bland requested the city council to adjourn to 6 P. M. of that day, or to some other reasonable time, in which to reduce to writing his exceptions, and present the same to the council, sitting as a contest court or tribunal, for examination and allowance. That application was refused, upon the ground that the council had no authority to allow or sign bills of exceptions. On April 19, 1893, W. T. Bland filed and presented his motion for a new trial before the city council, which motion was overruled, and thereupon he presented his bill of exceptions in writing to the council, and asked that the same be examined and allowed as a true bill. This application was overruled, upon the ground that the action of the council was final and conclusive, and that no provision had been made by ordinance or statute for appeal or review. On April 21, 1893, W. T. Bland filed in this court his motion. or application for writ of peremptory mandamus requiring the city council and the members thereof to allow and sign a true bill of exceptions. An alternative writ was issued by one of the justices of this court on the same day. Two of the members of the council, James W. Waggener and P. S. Mitchell, on May 2, 1893, filed answers admitting the allegations of the alternative writ of mandamus, and expressed their willingness to allow and sign the bill. The other members of the council, including the president thereof, and the city clerk of the city, filed their motion to quash the alternative writ upon the ground that the written application and the alternative writ did not state facts sufficient to constitute any cause of action against the defendants, or either of them, or show any cause for the issuance of either an alternative or peremptory writ. Hearing was had upon this motion at the May term, 1893, of this court.

B. F. Hudson and H. C. Solomon, for plaintiff. J. F. Tufts, for defendants.

HORTON, C. J., (after stating the facts.) The only question in this case for our determination is whether there is any power in the courts to revise the action of the mayor and council of a city of the first class sitting as a tribunal to try a contested election over a city office. If a petition in error will lie from the decision of such a tribunal, then it was the duty of the defendants to allow and sign a correct bill of exceptions. Section 540 of the Civil Code reads: "A judgment rendered or final order made by a justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be re

versed, vacated, or modified by the district court." A city council, when sitting to hear and determine a contested election case, is a tribunal exercising judicial functions. Its acts then are not ministerial, as when sitting to canvass the returns of an election. State v. Sheldon, 2 Kan. 322; Anthony v. Halderman, 7 Kan. 50; Buckland v. Goit, 23 Kan. 327. The contention, however, is that under the powers of the mayor and council of cities of the first class, granted by the legislature, an ordinance may be enacted making the decision of a city council in a contested election case final, and that, as an ordinance of the city of Atchison provides the determination of the city council in such a contest "shall be final and conclusive," there can be no appeal or review. We are referred to the following provisions of the statute concerning contest election cases in cities: Paragraph 555, Gen. St. 1889, reads: "The mayor and council shall have power to provide for the election of city officers, and prescribe the manner of conducting the same, and the returns thereof, and for deciding contested elections, in any manner not in conflict with the laws of the state." Paragraph 637, Id., reads: "The mayor and council may by ordinance provide for contesting the election of any person to any city office." Sess. Laws 1881, c. 37, § 11, subd. 35; Id. § 83. It is a cardinal rule of construction that all statutes in pari materia are to be read and construed together, as if they formed parts of the same statute, and were enacted at the same time. Wren v. Nemaha Co., 24 Kan. 305. Courts, as a rule, construe statutes so as to give every portion thereof some force and effect, some application and some operation. Points v. Jacobia, 12 Kan. 50; Republican River Bridge Co. v. Kansas Pac. Ry. Co., Id. 409. We must therefore harmonize, if possible, the provisions of the statute cited. We think they were not intended to conflict, or to have one section repeal the other. With this construction, there was no intention upon the part of the legislature in granting authority to the mayor and council to provide by ordinance for contesting the election of any person to any city office to prescribe any rules or by-laws "in conflict with the laws of the state." Under the law of the state, any judgment or final order made by any tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, modified by that court. That law was in force when the ordinances of the city of Atchison were adopted, and we must assume that the ordinance for deciding contest cases was passed with full knowledge of the laws of the state. The decision referred to in the ordinance of the city council is only final and conclusive when rendered in accordance with "the existing laws." It is subject to be reversed, vacated, or modified by the district court. Again, appeals are generally favored. Tribunals for contest election cases are pro

vided for all elected officers. Their decisions are reviewable except in the contests in the legislature over the members thereof. The action of the tribunal deciding contest elections for county officers may, by the statute, be revised. State v. Sheldon, supra. The tribunal deciding contest elections for township officers is subject to supervisory control. Buckland v. Goit, supra. We perceive no good reason, if the action of those tribunals may be reviewed, why the decision of a city council over the office of mayor shall be be yond the revision of the courts. Our conclusion is that, when a city council is organized for the trial of a contest election over a city office, it then becomes a tribunal exercising Judicial functions, and is subject to the supervisory control of the courts. Of course this court cannot settle a bill of exceptions in a case tried before a city council. It is the duty of the council to settle and sign the same. We can command action, but we cannot say how the council shall act. Its decision, like that of a trial judge, as to the truthfulness of a bill, is conclusive and final. State v. Sheldon, supra. After a bill of exceptions is settled and signed by the city council, if the plaintiff shall file a petition in error in the district court to review the proceedings of the council sitting as a contest court or tribunal, this will not disturb or vacate the decision rendered, unless the district judge, in his discretion, stays or suspends the judgment. That judgment is conclusive until reversed or modified, if not stayed or suspended by the district court or the judge thereof. Until reversed, modified, or suspended, it settles the rights of the contesting parties. Section 558, Civil Code; Willard v. Ostrander, 50 Kan. 32 Pac. Rep. 1092. The motion to quash will be overruled. All the justices concurring.

(51 Kan. 684)

BELL et al. v. COFFIN.1 (Supreme Court of Kansas. June 10, 1893.) DISMISSING APPEAL-RECORD.

Where the only judgment of the court below, found in the record before the supreme court, is among papers purporting to be the evidence, affidavits, and journal entries attached to the case made, but not made a part thereof by reference, signature, or otherwise, the appeal will be dismissed.

Error from district court, Graham county; C. W. Smith, Judge.

Action between Lewis A. Bell and Malinda Bell and H. A. Coffin. From the judgment entered, the Bells brought error. Defendant in error now moves to dismiss the cause. Motion granted.

G. W. Jones, for plaintiffs in error. Z. C. Tritt, for defendant in error.

PER CURIAM. And now comes on the motion filed in this cause to dismiss the same for the reasons on file, and therapon come

For opinion on rehearing, see 33 Pac. Rep. 621.

Judgment, and defendant brings error. Affirmed.

Geo. R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. L. B. & S. E. Wheat, for defendants in error.

the defendant in error, by his attorney Z. C. Tritt, and the plaintiffs in error, by their attorney, G. W. Jones, and said motion is thereupon duly argued and submitted to the court. And it appearing to the court that, after signing and attestation of the case made, there are about 20 pages of what purports to be questions of fact, affidavits, and a journal entry containing the judgment of the district court, but which are not included or made a part of the case made by reference, signature, or otherwise, and it further appearing that except in the papers attached, as stated, there is no entry of judgment or other final order embraced in the case made, this court cannot review any of the alleged errors, and therefore the motion to dismiss will be sustained, upon the fifth ground alleged therein. Mullaney v. Humes, 47 Kan. 99, 27 Pac. Rep. 817. In the absence of a judgment against the plaintiffs in error, this court cannot say whether any of the alleged errors are material or immaterial. The judgment, or the substance thereof, should have been stated before the signature of the judge and the attestation on the case made, or the papers attached to the case made after such signature and attestation should have been referred to, and made a part of the case made, as exhibits, or in some other clear and conclusive manner.

(51 Kan. 432)

JOHNSTON, J. This action was brought by Cornelius W. and Bridget E. Curtan against the railway company to recover damages suffered by reason of the permanent obstruction of two alleys in the rear of a lot owned by them, by which the ingress and egress to and from the same were prevented and destroyed. The Curtan property which was damaged, being lot 3, is in block 116 of Leavenworth city, through which block the railway of the plaintiff in error was built in January, 1888. The lot is 44 feet wide and 140 feet deep, and is in the east part of the block, which abuts on Broadway on the east. Shawnee street lies on the south side of the block, and Seneca street bounds it on the north; and an alley, shown to be 16 feet wide, runs through the miuule of the block from Seneca street to Shawnee street, passing on the rear of lot 3. From this alley, and at the rear of lots 3 and 4, another alley extends westwardly through the block to Eighth street. The course of the railway built through the block was from the southeast towards the northwest, across both of the alleys mentioned, and, besides making a deep excavation, the company, in fencing its right of way, built a high stone wall across the alley running from Seneca street to Shawnee street, and also across the alley extending westwardly. Upon the top of this wall a high fence was built, and a depot of a permanent character, which extended across both alleys, was constructed by the company, making it absolutely impossible to pass south or west through the alleys from the rear of lot 3. No part of lot 3 was appropriated by the company, but the stone wall and fence were built from the southwest corner of the lot in a northwesterly direction across the alley, leaving only an angle of the alley at the rear of the lot. The location and obstructions mentioned may be seen from the following sketch or plat, which was used as evidence in the trial of the cause:

LEAVENWORTH, N. & S. RY. CO. v. CURTAN et al.

(Supreme Court of Kansas. May 6, 1893.) RAILROAD IN ALLEY- - OBSTRUCTIONS-DAMAGESLICENSE FROM CITY.

1. An action was brought by a lot owner to recover damages from a railroad company for obstructing the alley at the rear of his lot, and preventing passage to and from the same. It was tried by the parties and court below upon the theory that the occupancy and obstruction were permanent and enduring. Held, that it will be so considered and treated in the supreme court.

2. It is not necessary that a portion of the lot should actually have been taken by the railroad company in order to entitle the owner to damages for the obstruction; but, if access to and egress from the property have been cut off by the construction of a railroad, the owner suffers a peculiar and special injury, for which he is entitled to compensation.

3. No license or consent from the city will exempt the company from liability to the owner for placing an obstruction across the alley which practically excludes access to the lot for the ordinary purposes for which an alley is used by

an owner.

4. Although the obstruction may not wholly prevent access to the property, if it is such as to practically preclude the ordinary and reasonable use of the alley as a means of entering and leaving the rear of the lot the company is liable for the injury suffered.

(Syllabus by the Court.)

Error from district court, Leavenworth county; Robert Crozier, Judge.

Action by Cornelius W. Curtan and another against the Leavenworth, Northern & Southern Railway Company. Plaintiffs had