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Pase Wells, People v. (Cal.).

718 Williams, Union Pac., D. & G. R. Co. v. Wells, People v. (Cal.). .1078 (Colo. App.)

731 Wenzel v. Schultz (Cal.).

696 Willson v. Northern Pac. R. Co. (Wash.) 146 Weringer's Estate, In re (Cal.). 825 | Wilson v. City of Salem (Or.)..

9 West v. Conant (Cal.). 705 / Wilson v. City of Salem (Or.)...

691 Westenfelder v. Green (Or.). 23 Wilson v. People (Colo. Sup.).

944 Western Mill Co. v. Cooper, Clark-Harris Wilson v. Wilson (Colo. Sup.).

175 Co. (Wash.)...

774 Wilson, Board of Com'rs of Fremont Wetzstein v. Joy (Mont.).

876
County
v. (Colo. App.)..

26.1 Weymouth v. Port Townsend & S. R. Co. Wilson, Greenawalt v. (Kan.).

403 (Wash.) 154 Wilson, Nelmes v. (Cal.).

311 Whatcom County v. Fairhaven Land Co. Winterbotham, Union Pac. R. Co. (Wash.) 563 (Kan.)

.1052 Wheeler, Pengra v. (Or.). 354 Winterburg v. Winterburg (Kan.).

971 White, Adair v. Cal.).

338 Witham, Moline Plow Co. v. (Kan.). 751 Whiting, Bourke v. (Colo. Sup.). 172 Wolf, In re (Kan.)....

.1049 Whiting Manuf'g Co. v. Gephart (Wash.) 161 Wong Ah Leong, People v. (Cal.).

105 Whitney, Turpin v. (Wash.).

151 Wood. Rector, etc., of St. David's Church Wickersham, Bank of San Luis Obispo v. v. (Or.)....

18 (Cal.) 444 Woodman v. Calkins (Mont.).

187 Widber, Von Schmidt v. (Cal.). 109 Woods v. Tanquary (Colo. App.).

737 Wilcox, Cole v. (Cal.).. .114 | Woods, Lowe v. (Cal.)..

959 Wile v. Butler (Colo. App.).

.1110 Woodward v. Fruitvale Sanitary Dist. Will v. Lytle Creek Water Co. (Cal.).... 830 (Cal.) Willamette Steam Mills Lumbering & Woodward, Howard v. (Kan.).

315 Manuf'g Co., Security Loan & Trust Co. Work v. Northern Pac. R. Co. (Mont.)... 726 v. (Cal.) 321 Wren v. Wren (Cal.). .

775 Willamette Transp. & Locks Co., Lovejoy Wright, Carpenter v. (Kan.).

798 V. (Or.)

660 Willapa, The, Portland Butchering Co. v. Yancy, Weber v. (Wash.).

473 (Or.) 689 Young v. Andrews (Wash.).

913 William Mercantile Co. v. Fussy (Mont.) 189 Young, Hill v. (Wash.)..

144 Williams v. Bisagno (Cal.). 610 Young, Johnson v. (Colo. Sup.).

173 Williams 7. Mountaineer Gold Min. Co. (Cal.)

702 Zimmerman, Larimer County Ditch Co. v. Williams v. Williams (Colo. Sup.)... 285 (Colo. App.)...

.1111

239

REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original op nions in 32 and 33 Pac. This list does not include cases where an opinion has been filed on the denial of the rehearing)

Hyman v. Barmon, (Wash.) 33 Pac. 1076.
Poynter v. Chipman, (Utah) 32 Pac. 690.
Wood v. Fox, (Utah) 32 Pac. 48.

THE

PACIFIC REPORTER.

VOLUME 34.

STATE es rel. IJAMS v. BURDICK, State

Auditor. (Supreme Court of Wyoming. Oct. 2, 1893.)

STATE OFFICERS-STOCK COMMISSION.

Sess. Laws 1890–91, c. 33, § 30, directs unclaimed estray moneys to be paid into the general fund; and section 33 requires the payment of expenses of inspection, and of the commission and its servants, out of the inspection fund "hereinbefore provided," and never out of any other. Section 36 appropriates for the inspection fund, for two years, $10,000. Under the 1883 law the estray moneys had been paid into the inspection fund, and used for said expenses, no other appropriation being made. The 1890 law directed the moneys to be covered into the general fund, and appropriated $10,000 for the expenses for one year. Held, that the 1890-91 law intended the estray moneys to become ultimately part of the inspection fund, together with the appropriation, and, the latter having been expended, the secretary of the board was entitled to be paid his salary from said estray moneys.

Application for writ of mandamus to compel State Auditor Charles W. Burdick to allow the claim of relator, H. B. Ijams, as secretary of the board of live-stock commissioners, and to draw a warrant therefor on the inspection fund. Peremptory writ allowed.

Frank H. Clark, for relator. Charles N. Potter, Atty. Gen., for respondent.

paid over and delivered to the state treasurer, in accordance with the provisions of the act, the sum of $606.13, the amount being unclaimed moneys derived from the sale of estrays under the act; and this amount remains in the custody of the treasurer, intact and unexpended, and constitutes the only moneys of any kind which have been received by the treasurer under the act. On August 2, 1893, the relator rendered to the defendant, the state auditor, his account for salary for the month of April, 1893, duly verified and certified as required by law, which was disallowed by the auditor for the following reason, indorsed upon the account: "No appropriation having been made by the second state legislature for the expenses of the Wyoming live-stock commission for the current year, this claim is therefore dísallowed." These facts are admitted to be true, in the submission of the case. The controversy is entirely upon the construction to be given to the statute creating the board of live-stock commissioners. Chapter 33, Sess. Laws 1890-91. On the one hand, it is urged that the unclaimed moneys for the sale of estrays, received by the secretary of the commission, must be paid into the general fund of the state, and, on the other, that they must be held in a separate and distinct fund, designated in the act as the "Inspection Fund," and subject to the order of the board of livestock commissioners.

Legislation in this jurisdiction for the protection of the live-stock interests has been a fruitful one, and it is marvelous that such a confusion of provisions in the same act should be found after so many repeated trials on the part of the legislature to obtain a satisfactory law on the subject. It seems difficult to reconcile the conflicting provisions of the act before us, and, in order to ascertain the legislative intent, we must look to prior legislation on the same subject. It is not necessary to review the legislation at every session in this re spect, to do this. The act passed by the tenth legislative assembly of the territory (chapter 28, Sess. Laws 1888) provided for

GROESBECK, C. J. The relator applies to this court for a peremptory writ of mandamus, commanding the state auditor to draw a warrant in his favor on the inspection fund in the state treasury. The cause was submitted upon the petition for the writ, and the demurrer thereto. The relator, Ijams, is the duly and regularly appointed, qualified, and acting secretary of the board of live-stock commissioners, a commission created and organized under the laws of this state. In accordance with the statute, his salary was fixed by said board for the term of two years, including the month of April, 1893, at the rate of $1,200 per annum, which, under the terms of the act, is required to be paid in monthly installments of $100 each. On July 5, 1892, he

v.34P.no.141

the sale of mavericks, or cattle whose own written at length. It contains provisions ership could not be ascertained, the proceeds common to the statutes of 1888 and 1990, of which was directed to be paid into an in and eliminates provisions common to both. spection fund, and the proceeds of all estrays The inspection fund of 1888 is revived, and shipped with other cattle of undoubted own by section 21 of the act it is the duty of ership were directed to be paid to the secre the state treasurer to keep a separate actary of the live-stock commission, and consti count of all moneys received by him under tuted the “estray stock fund," to be paid over this act, designated as the "Inspection Fund," to the owners, if discovered, and, if not dis and to pay all warrants properly drawn, covered after advertisement describing the as provided in the act, out of said fund, cattle, to be paid by the secretary to the terri which shall not be used for any other purtorial treasurer, to the credit of the inspec poses than the expenditures contemplated by tion fund provided by the act. No appropria the act. Section 22 provides that the intion was made by this legislative assembly spection fund shall be under the control of for the expenses of the live-stock commission, the board of livestock commissioners, to be and the inspection officers stationed at various expended in such manner as shall best proshipping points within and without the state, mote the live-stock interests of the state, from the general fund; and it is clear, from and in conformity with the provisions of the the express term of the act itself, that all act, and for no other purpose, and by folsuch charges were to be paid out of the in- lowing sections it is provided that all of spection fund, into which the unclaimed mon the expenses and indebtedness of the comeys for estrays, and the proceeds of the sale mission are to be paid out of the inspection of mavericks, were directed to be paid. The fund. The provision of the acts of 1888 eleventh legislative assembly of the terri and 1890, relating to the sale of mavericks. tory, by chapter 53 of the Session Laws are omitted from this act; and the moneys for 1890, provided that the moneys realized realized from the proceeds of unclaimed from the proceeds of mavericks sold, and estrays are to be kept by the secretary of unclaimed estray money, should be paid in the commission in the "estray fund," to be to the general fund of the state, and appro paid to the owners upon proof, or, in case priated the sum of $10,000 for the "pur they do not appear within one year after the poses of the live-stock commission defined publication of estray lists, posted by the and provided for" in the act for the year county clerk of each county in his office, ending March 31, 1891, the close of the fiscal and in a conspicuous place in the courthouse, year, as defined by statute. This appropria to be paid to the state treasurer, "and shall tion for but one year, instead of the cus go into the general fund of the state." Foltomary biennial period, was doubtless within lowing this last-quoted provision, taken from view of an act passed by the same legis section 30 of the act, is the declaration in lature, providing for the meeting of the section 33 that all fees, salaries, compensanext territorial legislature in the following tion, and expenses incurred under the proviJanuary, which became nugatory by the ad sions of the act shall be paid out of the inmission of the state into the Union, July 10, speotion fund "hereinbefore provided," and 1890. By a succeeding chapter of the Ses that no fees, salary, compensation, or ex. sion Laws of 1890, the moneys in the pos pense incurred under the act "shall ever session of the commission, or coming into under any circumstances be paid out of any its hands, on or before March 31, 1890, "from fund other than the said inspection fund." the proceeds of mavericks unknown Section 36—the last section of the act, exestrays," were to be covered into the treas cept the one providing for the immediate ury, to the credit of the general fund, and taking effect of the act-appropriates for any balance to the credit of the inspec the biennial period ending March 31, 1893, tion fund, created by chapter 28, Sess. the sum of $10,000, one-half of which for Laws 1888, supra, on said date, was direct each fiscal year of the said term, for the ed to become part of the general fund on purposes of the commission, as defined in that date, and the act of 1888 was repealed. the act, and "it shall be known as the InThen the inspection fund provided for by spection Fund.” the statute of 1888, out of which the ex We think it manifest from this review penses of the commission, including the inspec of the statute, in the light of prior legislation of live stock, were to be paid, was sup tion, and by applying familiar rules of conplanted by the act of 1890, under the terms struction, that the legislature intended to reof which the commission was to be sup store the inspection fund created by the act ported, and live stock inspected, under the of 1888, and abrogated by the act of 1890, specific appropriation made in the act, and so far as it provided for the application not by the moneys received from the pro of the proceeds derived from unclaimed ceeds of unclaimed estrays, and the sale of estrays to the purposes of the live-stock mavericks, which were directed by the act commission, notwithstanding the declaration to be paid over to the general fund. The in section 30 of the act that such moneys existing statute (chapter 33, Sess. Laws shall become part of the general fund of 1890-91) repealed anew the act of 1888, and the state. The inspection fund is the only also the act of 1890, and the act was re fund mentioned prior to section 33 as "here

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inbefore provided,” and evidently contains the moneys derived from the proceeds of unclaimed estrays which finds its way, through the hands of the secretary of the live-stock commission, into the state treasury; and the specific appropriation for two fiscal years thereafter provided, although termed the "Inspection Fund," must be considered as only a portion thereof, the other part of it being derived from the proceeds of unclaimed estrays. It will be noticed that the specific appropriation per annum, in the statute, is reduced one-half from the amount appropriated by the act of 1890; and it would seem that the legislature considered that by restoring to the inspection fund the moneys resulting from the proceeds of unclaimed estrays the reduced appropriation might be sufficient for the purposes of the commission for two years, at least. Although the provision in section 30 is unambiguous, directing unclaimed estray moneys to be paid into the general fund, it is no clearer than the later section, 33, providing that the expenses of inspection, and the support of the commission and its employes, must be paid out of the inspection fund "hereinbefore provided,” and never, under any circumstances, out of any other fund. It follows that the moneys received by the treasurer from the secretary of the livestock commission, not claimed by the unknown owners of estrays, must finally go into the Inspection fund created by the act, even if first it passes into the general fund of the state; otherwise, several important sections of the act would be meaningless, and the plain legislative intent, gathered from prior legislation, and even from the act itself, would be violated. No specific appropriation made by the second legislature to defray the expenses of the live-stock commission, but the existing statute stands unrepealed and unmodified. The decisions of this court at the present term in the case of State v. Burdick, 33 Pac. Rep. 125, 131, control our decision in this case, under the construction of the act we have now under consideration. As we read the act, the inspection fund must be preserved intact for the use of the live-stock commission so long as the existing law is in force. The semiannual payments made to the state treasurer by the secretary of the commission, under the terms of the act, as unclaimed moneys derived from the sale of estrays, are part of the Inspection fund; and since the specifio appropriation for the biennial period ending March 31, 1893, is exhausted, they constitute the fund itself. The salary of the relator is a proper charge upon this fund. It an be paid out of no other fund, as the statutes now exist, and it appears that there are sufficient moneys in the fund to pay his claim. It is a continuing fund, and may be used for the purposes of the commission. The peremptory writ is allowed, requiring

STATE V. SURETIES OF KROHNE. (Supreme Court of Wyoming. Oct. 2, 1893.) BAIL-PROCEEDING BY INFORMATION - DUE PRO

CESS OF LAW. 1. A law permitting the clerk of court, in vacation, to take bail, and fix its amount, is not unconstitutional, as conferring on said clerk judicial power.

2. It is no defense for the sureties on a bail hond that the information was insufficient. ly verified, or that the arrest of the principal on a warrant issued on such information was illegal.

3. A statute permitting inforinations to be filed without preliminary examination, when. ever the prosecuting attorney is satisfied that a crime or offense has been committed in his county, is not invalid as an infringement of "dne process of law."

Case reserved from district court, Sheridan county; W. S. Metz, Judge.

Proceedings in the nature of scire facias against the sureties of Henry Krobne. They raise these questions: (1) That the clerk of the district court cannot admit to bail under the statute conferring that power; (2) that the arrest of their principal was illegal, as the information was verified upon information and belief; (3) that the entire proceedings are void, because their principal had no preliminary examination before the inforination was filed, and before he was admitted to bail, he not having waived the same. Bond held valid, and judgment directed against the sureties.

Charles N. Potter, Atty. Gen., for the State. A. C. Campbell and R. W. Breckons, for de fendants.

was

GROESBECK, O. J. This proceeding was reserved by the district court of Sheridan county for the decision of this court, under the statute providing that, when an important or difficult question arises in an action or proceeding pending before the district court in any county of this territory, (state) the judge of said court may, on motion of either party, or upon his own motion, cause the same to be reserved, and sent to the supreme court for its decision. Chapter 66, Sess. Laws 1888. An information was filed in the district court of Sheridan county, accusing one Henry Krohue and others of grand larceny committed in said county, as alleged, on March 15, 1892, by the county and prosecuting atttorney of said county, without any preliminary examination of the defendant Krohne, in the vacation of the district court of said county; and this information was verified by the affidavit of M. La

Blake, as county and prosecuting attorney, 1 er the sureties are llable under said bond, the verification stating that he has been and judgment should be rendered against reliably informed and believes that the facts them in this proceeding. stated in the information are true. This 1. The authority of the clerk of the court information was filed September 26, 1892, to issue the warrant, and to admit to bail, and the clerk of the court issued a warrant was conferred by statute. Section 8, c. 59, for the arrest of the defendants, including Sess. Laws 1890–91. This section was reKrohne. The following day, Krohne was pealed by section 2, c. 21, Sess. Laws 1893, brought before the clerk of the court, and but was in force at the time of filing the inadmitted to bail by him in the sum of $1,000, formation, the issuance of the warrant with the defendants in this action as sureties, thereon, and the taking of the bail thereconditioned for his appearance at the next under. It is contended that the statute was term of the district court for said county, unconstitutional, in permitting the clerk of there to remain from day to day, and not to the court, in the vacation or recess thereof, depart without leave of court, and to abide to take bail, and fix the amount of such the judgment of said court, whereupon bail, as conferring upon the clerk judicial Krobne was discharged. He failed to appear power. The case of Hall v. Marks, 34 Ill. at the first day of said court, next holden 358, is cited in support of this contention, thereafter, the bond was declared forfeited, where the court held that a clerk could not and proceedings in the nature of scire facias render in vacation a judgment in default. were begun by the direction of said court

In that case it seems that such was the against the defendant's sureties. They ap

practice of one of the circuit courts of Illipeared, and excepted to the rule to show

nois, and it does not appear to have been cause, alleging as grounds therefor (1) that

warranted by statute. In some states such the information is in violation of the con

a practice obtains, to allow the clerk to enstitution of the United States, and of sec

ter judgment in vacation in certain cases of tion 4 of article 1 of the constitution of

default, but this power I understand to be this state, for the reason that no preliminary

coníerred by statute. Mr. Bishop says that examination of Krohne, the principal on the

"anciently the sheriff, possessing judicial bond, was had upon the charge set forth

with ministerial powers, was the principal in the information, the same not having been

bailing officer. In many of the states, he waived, and because the information was

may take bail; in others, not." 1 Bish. not made upon probable cause, supported by

Crim. Proc. (3d Ed.) $251, and cases cited. oath or affirmation or affidavit, as required

The following cases hold that sheriffs or by the constitution of Wyoming; (2) that the

clerks may take bail, and some of them are statute under which the information was filed

to the effect that they can fix the amount is contrary to the constitution of this state,

thereof: Moss v. State, 6 How. (Miss.) 298; and the constitution of the United States,

State v. Edwards, 4 Humph. 226; State v. in that it deprives the said Krohne and the

Brown, 32 Miss. 275; Blackman v. State, 12 sureties defendant of liberty and property

Ind. 556; Com. v. Roberts, 1 Duv. 199; without due process of law; (3) that said in

Antonez v. State, 26 Ala. 81; Evans v. State, formation and all proceedings had thereun

63 Ala. 195; State v. Wyatt, 6 La. Ann. 701; der are of no effect, for the reason that no

State v. Gilbert, 10 La. Ann. 524; State v. preliminary examination was bad of said

Jones, 3 La. Ann. 10; Wallenweber v. Com., Krohne, as required by the laws of this state; and (4) the information is void, and

3 Bush, 68; Schneider v. Com., 3 Metc. (Ky.) all proceedings thereunder of no effect, for

411; McCole v. State, 10 Ind. 50; Dickinson the reason that the information-and the

v. Kingsbury, 2 Day, 1; State v. Hendricks, statute under which the same was prose

(La.) 5 South. Rep. 177; Ellis v. State, 10

Tex. App. 324; McClure v. Smith, 56 Ga. cuted-is in violation of the fourteenth amendment to the constitution of the United

439. It was held in Kansas that when a

court has failed to fix the amount of bail States, in that it deprives the said Krohne of equal protection of the laws. The court

of a defendant arrested upon a warrant isreserved the questions to this court for de

sued upon information, and there is no discision, pursuant to the statute supra. An

trict judge in the county, the clerk of the other question submitted on argument, not

district court may fix the bail of the defenddirectly embodied in the exceptions, is that

ant, and this upon the ground that the stat. the clerk of the district court for Sheridan

ute so provided. State v. Schweiter, 27 county had no authority, although conferred Kan. 499. See People v. Kane, 4 Denio, by statute, to fix the amount of bail, and to 530; McCole v. State, 10 Ind. 50. In Ainslet to bail Krohne, the principal on the bond. worth v. Territory, 3 Wash. T. 270, 14 Pac. It was stipulated in the hearing before us Rep. 590, it was held that the judge of a that the following questions should be con criminal court of record might accept and sidered as reserved by the district court for approve a bail bond in vacation, even where our determination: First, whether or not the the prisoner had been previously committed bail bond of the defendant Krobne is void in default of bail and was in custody of the for any of the reasons charged in the ex sheriff, as the statute authorized a judge ceptions of the sureties; and, second, wheth at chambers to determine all matters where

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