(220 P.)

the power to make orders, and prescribe their corporate limits, but, as to the transrules and regulations affecting transporta-portation for hire of passengers or property tion companies "notwithstanding the provi- by motor vehicles not exclusively and wholly sions of any charter, ordinance or permit conducted within the corporate limits of a of an incorporated city or town or county, city or town, the power to regulate it is conand, in case of conflict between any such or- ferred exclusively upon the Public Service der, rule or regulation of any such charter Commission of the state, and no power, provision, ordinance, or permit, the order or whether previously conferred by charter or regulation of the Public Service Commission legislative enactment, remains in the cities * shall in each instance prevail, but or towns except the mere power to pass or cities and towns may enact and enforce rea- enforce some purely regulatory ordinance sonable regulatory * licenses not de- which in no wise conflicts or interferes with structive of the general purposes of this act." the regulation of the traffic by the Public Section 26 of chapter 371 provides that the Service Commission. registration and license fees imposed upon motor vehicles "shall be in lieu of all other taxes and licenses, except municipal license fees under regulatory ordinances, to which such vehicles or the owners thereof by reason of such ownership may be subject."

Under the plain provisions of section 26, chapter 371, the payment by transportation companies of the registration and license fees prescribed by section 25 thereof, as amended, was made to and accepted by the state upon the express condition that no other tax or license fee should be exacted of any transportation company by the state or by any municipality or governmental agency of the state, except such reasonable municipal license fees as should be imposed by municipalities for purposes of regulation only, and then only for such an amount as would be necessary to cover the expenses of such regulation; while under the provisions of section 3 of chapter 10, quoted above, the ordinance in question cannot be upheld or enforced unless it (1) is a mere reasonable regulation not destructive of the general purposes of the act embraced in chapter 10, and (2) imposes the payment of a mere regulatory license fee and does not exact the payment of a tax.

[4] Plaintiff neither has nor maintains a terminal stage at Silverton, and in order for him to operate in conformity to the ordinance in question in carrying passengers between Salem and Silverton he will be required to pay an annual license fee of $300 per annum for each auto stage used in that connection. It is manifest that this is not the imposition of a charge for mere regulatory purposes only, but is a burden intended to be imposed for revenue purposes, and is therefore a tax, under the doctrines announced in Ellis v. Frazier, 38 Or. 462, 63 Pac. 642, 53 L. R. A. 454; Reser v. Umatilla County, 48 Or. 326, 86 Pac. 595, 120 Am. St. Rep. 815; Hofer v. Carson, 102 Or. 545, 203 Pac. 323. It is sought to be imposed for the mere privilege of receiving and discharging passengers upon the public streets of Silverton. It is unlawfully imposed because in direct conflict with the express terms of the statute, and is an attempt to exercise power not conferred by the Legislature upon the city. In order for plaintiff to transport passengers for hire between Salem and Silverton, as authorized by the Public Service Commission, it is necessary for him to receive and discharge his passengers upon the public streets of Silverton. He is authorized to transport them to and from Silverton, and he cannot be compelled to receive or discharge them outside of the corporate limits of that city. To receive and discharge passengers upon the public streets of a city is an essential and necessary part of the transportation by automobile busses of passengers from one place to another, and when this is being done in the usual and customary way, under a permit regularly issued by the Public Service Commission, it is not within the power of a municipality to prevent or prohibit it. This provision of the ordinance, as well as some of the others hereinberore alluded to, is in direct violation of the provisions of the statute, and is therefore illegal and void. The judgment of the circuit court, holding that this ordinance, in so far as it affects the operatlons of the plaintiff, is void, is therefore affirmed.

[1, 2] The public streets within the limits of an incorporated city or town are a part of the public highways of the state and belong to the whole people of the state. They are maintained primarily for the benefit of the people at large. Persons residing in the city or town have an equal, but not a superior, right to the use of the streets over those who reside elsewhere. All alike must make a reasonable use of them so as not unduly or unreasonably to interfere with the common right possessed equally by all. The municipalities themselves possess no legislative power over the public streets within their corporate limits unless conferred by some legislative authority. It is within the legislative power to delegate to municipalities the sole power to regulate and control the streets within their corporate limits and to withdraw this delegated power at will. [3] Under the provisions of chapter 10, municipalities are given the power to regulate and control traffic upon their streets which begins, ends, and is completed within of this case.

MCBRIDE, C. J., and HARRIS, J., concur.
BURNETT, J., took no part in the decision

of $180 per month, commencing the 6th day of

ROCKWELL v. SCHOOL DIST. NO. OF September, 1921, and that for such services,

"Said teacher [plaintiff] is to teach in the public schools of District No. 1, as High Sch. and Ath. Inst., with work subject to assignment, for the time of 10 months, for the sum By section 5275, Or. L., approved February For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied December 18, 1923.

(220 P.)

21, 1919, physical training is made a part of the prescribed courses of instruction in public schools, and pursuant to this section school boards are authorized to employ teachers competent to give physical training instruction and to require them to give such instruction, but this physical training is not coaching high school boys in the art of playing football. If they are to receive such instruction from a teacher of the public schools, it ought to be done after school hours and without expense to the district. The physical training contemplated by the statute is a course of training for all of the pupils of a school, and not for the training of a few. Physical training is required to be given, in order to better the physical condition and welfare of all pupils, and, under the statute, such physical training shall conform to that prescribed by the state superintendent of public instruction. This prescribed course does not include the playing of football, nor the coaching of pupils for competition in football playing with other teams. The defense pleaded, therefore, is insufficient to justify plaintiff's discharge.

[2] The answer also contains the following allegations:

"That at the time plaintiff was so discharged he was tendered payment in full for one month's services under the said contract, and accepted the same; that said payment was made by defendant to the plaintiff as the payment and settlement in full of all sums owing or which might bcome owing to the plaintiff under said contract.”

These allegations are insufficient, in that they fail to allege that the plaintiff accepted the payment made to him as a settlement in full for all sums which might become due and owing under the contract.

2. Deeds 94-No presumption that grantee intended to surrender benefits of contract provisions not intended to be incorporated in deed unless it purports to execute them.

Unless a deed accepted in pursuance of a not intended to be incorporated in, or not necprior contract purports to execute provisions essarily performed or satisfied by execution and delivery of the deed, there is no presumption that grantee intended to surrender the benefits of such stipulations or that they are satisfied by the conveyance.

3. Deeds 94-Vendee accepting deed held not deprived of benefit of vendor's unincor-' porated covenant to pay for sidewalk.

Conveyance of land pursuant to an agree ment requiring grantor to pay the cost of a sidewalk and curb held not a performance of right to require such payment by grantor, in such covenant, so as to extinguish grantee's the absence of evidence that grantee, on accepting the deed, intended to give up such benefit.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by H. J. Van Hee against Daisy D. Rickman and husband. Judgment for plaintiff, and the named defendant appeals. Affirmed.

Q. L. Matthews, of Portland (Paul M. Long and Christopherson, & Matthews, all of Portland, on the brief), for appellant.

L. E. Crouch, of Portland, for respondent.

MCCOURT, J. Plaintiff commenced this action against the defendant to recover damages for the breach of a contract for the sale of real property. The cause being at issue and the parties consenting, a trial was had to the court without a jury. The court

[3] Under the rule followed in Crane v. School District No. 14, 95 Or. 644, 188 Pac. 712, the plaintiff was entitled to recover the amount he would have earned if he had been permitted to perform the contract, less the amount stipulated in mitigation of his dam-made findings and gave judgment in favor

ages.

The judgment is therefore affirmed.
BURNETT, J., took no part in the decision

of this case.

VAN HEE v. RICKMAN et al. (Supreme Court of Oregon. Nov. 20, 1923.) 1. Deeds 94-Acceptance of deed pursuant to agreement satisfies previous covenants. Generally, acceptance of a deed pursuant to an agreement to convey land is prima facie in execution of the contract, and satisfies and extinguishes all previous covenants relating to or connected with the title, possession, quantity, or emblements of the land.

of plaintiff. Defendant appeals.

Defendant owned lot 1 in block 80 in the town of Sellwood, now part of the city of Portland, Multnomah county, Or., and on November 3, 1920, contracted to sell and convey the same to plaintiff. The terms of the agreement between plaintiff and defendant were expressed in a written memorandum subscribed by defendant, a copy of which fol lows:

"Portland, Oregon, 11-3, 1920. "Received of Henry J. Van Hee one hundred dollars, part payment on lot 1, block 80, Sellwood, Portland, Ore. Terms, $1,000.00 cash and lot 3, block 4, Gilham's Add. to Portland. Said lot 1, Blk. 80, to be clear of all incumbrances except improvement of Sherrett Ave. Sidewalk, curb and sewer to be paid in full. "$100.00. Daisy D. Rickman."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

On November 17, 1920, or the day follow- (in execution of the contract, and satisfies and ing, defendant delivered to plaintiff a gen- extinguishes all previous covenants which reeral warranty deed, executed by herself and late to, or are connected with, the title, posher husband, Edward B. Rickman, convey- session, quantity, or emblements of the land ing the above-described premises to plain- which is the subject of the contract. Winn tiff, and at the same time plaintiff paid to, v. Taylor, 98 Or. 556, 576, 190 Pac. 342, 194 and expended in behalf of, defendant the Pac. 857, and authorities cited therein. sum of $900 cash, and conveyed to her lot 3, block 4, Gilham's addition to Portland. The deed from defendant to plaintiff contained the covenant by the grantors

that the above-granted premises are free from all incumbrances, except the bonded lien of Sherrett avenue, which grantee assumes and agrees to pay."

Defendant failed and neglected to pay $257.49, the cost of a cement sidewalk and curb that had been constructed by the city in front of the premises in November, 1919. While the city, under its charter, was en titled to assess the cost of the improvement against the property in suit and to impress a lien thereon for its payment, the proceedings necessary to perfect the lien had not been completed at the time of the delivery of

the deed.

[2] The foregoing rule, however, does not apply to provisions in the antecedent contract which are not intended by the parties to be incorporated in the deed, or which are not necessarily performed or satisfied by execution and delivery of the stipulated conveyance. And unless the deed accepted in pursuance of the prior contract purports to execute such provisions there is no presumption that the grantee intended to surrender the benefits of stipulations of the character last mentioned, or that they are satisfied by the conveyance. 2 C. J. 271, and cases cited in notes 81 and 82; Morris v. Whitcher, 20 N. Y. 41, 46; Bennett v. Abrams, 41 Barb. (N. Y.) 625; Disbrow v. Harris, 122 N. Y. 362, 25 N. E. 356; Brennan v. Schellhamer (Com. Pl.) 13 N. Y. Supp. 558; Sage v. Trus

low, 88 N. Y. 240, 243; Selden v. Williams, 9 Watts (Pa.) 12; Caveny v. Curtis, 257 Pa. 575, 581, 101 Atl. 853; Reid v. Sycks, 27 Ohio St. 285; Davis v. Clark, 47. N. J. Law, 338, 1 Atl. 239; In re Null (D. C.) 2 Fed.

71, 73.

The records of liens of the city of Portland did not disclose that the city had any claim or lien upon the premises for the cost of constructing a sidewalk and curb in front of, or around, the same; plaintiff supposed that [3] The memorandum of agreement subthe cost of the improvement had been paid by defendant, and was so informed by the scribed by defendant, required the latter: husband of defendant, and accordingly ac- (1) To make a conveyance; and (2) to pay cepted the deed tendered by defendant, and in full the cost of the sidewalk and curb paid to her the full amount of the considera- theretofore constructed in front of the proption called for by the preliminary contract.erty. Defendant performed the first of such After delivery of the deed, and on Novem- undertakings, but did not perform the secber 22, 1920, the amount assessed against de- ond, either in whole or in part, but she now fendant's property for the construction of claims that the performance of the first of the sidewalk and curb mentioned was ensuch obligations satisfies both. tered in the city lien docket, and became a lien against the property.

It is conceded that at the time of the preliminary contract between the parties, and About November 25, 1920, defendant re- at the date of the delivery of the deed to ceived official notice, which she immediately plaintiff, the charge for the sidewalk and communicated to plaintiff, that the charge curb was not an incumbrance upon the premfor the sidewalk and curb had been docketed ises. Defendant agreed to pay the amount as a lien against the property. Plaintiff de- thereof, so that it might not become a lien manded that defendant pay the amount upon the property after plaintiff acquired the Part of the consideration moving thereof, and she refused. Thereafter plain- same. tiff paid and discharged the lien, and brought from defendant in the transaction between this action to recover the amount so paid. the parties consisted of payment of that At the trial in the circuit court, defendant charge. Payment was to be made to the city. contended that the preliminary contract be- Obviously, the conveyance to plaintiff did tween the parties upon which plaintiff's ac- not satisfy the claim of the city. Did such tion is founded was satisfied and extinguish-conveyance then extinguish the right of plained by the deed given and accepted in pur- tiff to require defendant to make the paysuance thereof, and that consequently plain-ment? tiff could not maintain his action.

Defendant's principal assignments of error are directed at the rejection of the abovestated contention by the circuit court.

[1] It is a general rule that acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie

Manifestly, it was not the intention of the parties to incorporate in the deed the obligation of the defendant to make the payment under consideration. It is also clear that execution and delivery of the deed called for by the prior contract did not necessarily con stitute performance of the antecedent agree

(220 P.)

The judgment of the circuit court is af-attorney, an additional order was procured, firmed.

extending the time until the 1st day of April, 1923. On the 29th day of March, 1923, upon

MCBRIDE, C. J., and BEAN and BROWN, the application of the then city attorney

MCBRIDE, C. J. (after stating the facts as above). [1] Subdivision 2 of section 554, Oregon Laws, is as follows:

"(2) If the transcript or abstract is not filed with the clerk of the appellate court within the time provided, the appeal shall be deemed but the trial court or the judge thereof, or the abandoned, and the effect thereof terminated, Supreme Court or a justice thereof, may, upon such terms as may be just, by order enlarge the time for filing the same; but such order

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
220 P.-10