Page images
PDF
EPUB

Pare

v.

Page 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.).

2007 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.)

239 Willamette Steam Mills Lumbering & Woodward, Howard v. (Kan.).

315 Manuf'g Co., Security Loan & Trust Co. Work v. Northern Pac. R. Co. (Mont.) 720 V. (Cal.)

321 Wren v. Wren (Cal.)... 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.).. Williams v. Mountaineer Gold Min. Co. (Cal.)

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

.1111

775

173

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 ]

[merged small][ocr errors]

THE

PACIFIC REPORTER.

VOLUME 34.

paid over and delivered to the state treasSTATE ex rel. IJAMS v. BURDICK, State

urer, in accordance with the provisions of Auditor.

the act, the sum of $606.13, the amount be(Supreme Court of Wyoming. Oct. 2, 1893.)

ing unclaimed moneys derived from the sale

of estrays under the act; and this amount STATE OFFICERS-STOCK COMMISSION.

remains in the custody of the treasurer, Sess. Laws 1890-91, c. 33, § 30, directs unclaimed estray moneys to be paid into

intact and unexpended, and constitutes the the general fund;. and section 33 requires the only moneys of any kind which have been payment of expenses of inspection, and of the received by the treasurer under the act. coin mission and its servants, out of the inspec

On August 2, 1893, the relator rendered tion fund "herein before provided,” and never out of any other. Section 36 appropriates for

to the defendant, the state auditor, his acthe inspection fund, for two years, $10,000. count for salary for the month of April, Under the 1888 law the estray moneys had

1893, duly verified and certified as required been paid into the inspection fund, and used for said expenses, no other appropriation being

by law, which was disallowed by the audimade. The 1890 law directed the moneys to be

tor for the following reason, indorsed upon covered into the general fund, and appropriated the account: “No appropriation having been $10,000 for the expenses for one year. Held, that the 1890-91 law intended the estray mon

made by the second state legislature for eys to become ultimately part of the inspection

the expenses of the Wyoming live-stock comfund, together with the appropriation, and, the mission for the current year, this claim is latter having been expended, the secretary of therefore disallowed." These facts are adthe board was entitled to be paid his salary froin said estray moneys.

mitted to be true, in the submission of the

case. The controversy is entirely upon the Application for writ of mandamus to com

construction to be given to the statute crepel State Auditor Charles W. Burdick to

ating the board of live-stock commissioners. allow the claim of relator, H. B. Ijams, as

Chapter 33, Sess. Laws 1890–91.' On the secretary of the board of live-stock com

one hand, it is urged that the unclaimed missioners, and to draw a warrant therefor on the inspection fund. Peremptory writ

moneys for the sale of estrays, received by

the secretary of the commission, must be allowed.

paid into the general fund of the state, Frank H. Clark, for relator. Charles N. and, on the other, that they must be held Potter, Atty. Gen., for respondent.

in a separate and distinct fund, designated

in the act as the "Inspection Fund,” and GROESBECK, C. J. The relator applies subject to the order of the board of liveto this court for a peremptory writ of man

stock commissioners. damus, commanding the state auditor to Legislation in this jurisdiction for the pro draw a warrant in his favor on the in- tection of the live-stock interests has been spection fund in the state treasury. The a fruitful one, and it is marvelous that such cause was submitted upon the petition for a confusion of provisions in the same act the writ, and the demurrer thereto. The should be found after so many repeated relator, Ijams, is the duly and regularly trials on the part of the legislature to obappointed, qualified, and acting secretary of tain a satisfactory law on the subject. the board of live-stock commissioners, a com- It seems difficult to reconcile the conflictmission created and organized under the laws ing provisions of the act before us, and, of this state. In accordance with the stat- in order to ascertain the legislative intent, ute, his salary was fixed by said board for we must ok to prior legislation ou the the term of two years, including the month same subject. It is not necessary to review of April, 1893, at the rate of $1,200 per the legislation at every session in this re annum, which, under the terms of the act, spect, to do this. The act passed by the is required to be paid in monthly install- tenth legislative assembly of the territory ments of $100 each. On July 5, 1892, he (chapter 28, Sess. Laws 1888) provided for

V.34P.no.1-1

the sale of mavericks, or cattle whose ownership could not be ascertained, the proceeds of which was directed to be paid into an inspection fund, and the proceeds of all estrays shipped with other cattle of undoubted ownership were directed to be paid to the secre tary of the livestock commission, and constituted the “estray stock fund," to be paid over to the owners, if discovered, and, if not discovered after advertisement describing the cattle, to be paid by the secretary to the territorial treasurer, to the credit of the inspec tion fund provided by the act. No appropriation was made by this legislative assembly for the expenses of the live-stock commission, and the inspection officers stationed at various shipping points within and without the state, from the general fund; and it is clear, from the express term of the act itself, that all such charges were to be paid out of the inspection fund, infto which the unclaimed moneys for estrays, and the proceeds of the sale of mavericks, were directed to be paid. The eleventh legislative assembly of the territory, by chapter 53 of the Session Laws for 1890, provided that the moneys realized from the proceeds of mavericks sold, and unclaimed estray money, should be paid into the general fund of the state, and appropriated the sum of $10,000 for the “purposes of the live-stock commission defined and provided for" in the act for the year ending March 31, 1891, the close of the fiscal year, as defined by statute. This appropriation for but one year, instead of the customary biennial period, was doubtless within view of an act passed by the same legislature, providing for the meeting of the next territorial legislature in the following January, which became nugatory by the admission of the state into the Union, July 10, 1890. By a succeeding chapter of the Session Laws of 1890, the moneys in the possession of the commission, or coming into its hands, on or before March 31, 1890, “from the proceeds of mavericks unknown estrays," were to be covered into the treasury, to the credit of the general fund, and any balance to the credit of the inspection fund, created by chapter 28, Sess. Laws 1888, supra, on said date, was directed to become part of the general fund on that date, and the act of 1888 was repealed. Then the inspection fund provided for by the statute of 1888, out of which the expenses of the commission, including the inspection of live stock, were to be paid, was supplanted by the act of 1890, under the terms of which the commission was to be supported, and live stock inspected, under the specific appropriation made in the act, and not by the moneys received from the proceeds of unclaimed estrays, and the sale of mavericks, which were directed by the act to be paid over to the general fund. The existing statute (chapter 33, Sess. Laws 1890-91) repealed anew the act of 1888, and Also the act of 1890, and the act was re

written at length. It contains provisions common to the statutes of 1888 and 1990, and eliminates provisions common to both. The inspection fund of 1888 is revived, and by section 21 of the act it is the duty of the state treasurer to keep a separate account of all moneys received by him under this act, designated as the "Inspection Fund," and to pay all warrants properly drawn, as provided in the act, out of said fund, which shall not be used for any other purposes than the expenditures contemplated by the act. Section 22 provides that the inspection fund shall be under the control of the board of livestock commissioners, to be expended in such manner as shall best promote the live-stock interests of the state, and in conformity with the provisions of the act, and for no other purpose, and by following sections it is provided that all of the expenses and indebtedness of the commission are to be paid out of the inspection fund. The provision of the acts of 1888 and 1890, relating to the sale of mavericks. are omitted from this act; and the moneys realized from the proceeds of unclaimed estrays are to be kept by the secretary of the commission in the "estray fund," to be paid to the owners upon proof, or, in case they do not appear within one year after the publication of estray lists, posted by the county clerk of each county in his office, and in a conspicuous place in the courthouse, to be paid to the state treasurer, "and shall go into the general fund of the state." Following this last-quoted provision, taken from section 30 of the act, is the declaration in section 33 that all fees, salaries, compensation, and expenses incurred under the provisions of the act shall be paid out of the inspeotion fund "hereinbefore provided," and that no fees, salary, compensation, or pense incurred under the act "shall ever under any circumstances be paid out of any fund other than the said inspection fund." Section 36-the last section of the act, except the one providing for the immediate taking effect of the act-appropriates for the biennial period ending March 31, 1893, the sum of $10,000, one-half of which for each fiscal year of the said term, for the purposes of the commission, as defined in the act, and "it shall be known as the Inspection Fund.”

We think it manifest from this review of the statute, in the light of prior legislation, and by applying familiar rules of construction, that the legislature intended to restore the inspection fund created by the act of 1888, and abrogated by the act of 1890, so far as it provided for the application of the proceeds derived from unclaimed estrays to the purposes of the live-stock commission, notwithstanding the declaration in section 30 of the act that such moneys shall become part of the general fund of the state. The inspection fund is the only fund mentioned prior to section 33 as "hera

ex

or

[ocr errors]

Inbefore provided," and evidently contains the auditor to audit and allow the claim the moneys derived from the proceeds of of the relator, and to draw his warrant unclaimed estrays which finds its way, therefor upon the treasurer for the payment through the hands of the secretary of the of the amount of the claim out of the 10live-stock commission, into the state treas- spection fund. ury; and the specific appropriation for two fiscal years thereafter provided, although CONAWAY and CLARK, JJ., concur. 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 STATE . SURETIES OF KROHNE. that the specific appropriation per annum,

(Supreme Court of Wyoming. Oct. 2, 1893.) in the statute, is reduced one-half from the

BAILPROCEEDING BY INFORMATION DUE PROamount appropriated by the act of 1890;

CESS OF LAW. and it would seem that the legislature con- 1. A law permitting the clerk of court, in sidered that by restoring to the inspection vacation, to take bail, and is its amount, is fund the moneys resulting from the proceeds

not unconstitutional, as conferring on said

clerk judicial power. of unclaimed estrays the reduced appropria

2. It is no defense for the sureties on a tion might be sufficient for the purposes bail bond that the information was insufficient. of the commission for two years, at least. ly verified, or that the arrest of the principal Although the provision in section 30 is un

on a warrant issued on such information was

illegal. ambiguous, directing unclaimed estray mon

3. A statute permitting inforinations to be eys to be paid into the general fund, it is filed without preliminary examination, when. no clearer than the later section, 33, pro- ever the prosecuting attorney is satisfied that

& crime or offense has been committed in his viding that the expenses of inspection, and

county, is not invalid as an infringement of the support of the commission and its em- "dne process of law." ployes, must be paid out of the inspection fund "hereinbefore provided," and never, un

Case reserved from district court, Sheridan der any circumstances, out of any other

county; W. S. Metz, Judge, fund. It follows that the moneys received

Proceedings in the nature of scire facias by the treasurer from the secretary of the

against the sureties of Henry Krohne. They livestock commission, not claimed by the un

raise these questions: (1) That the clerk of known owners of estrays, must finally go

the district court cannot admit to bail under into the inspection fund created by the

the statute conferring that power; (2) that act, even if first it passes into the gen

the arrest of their principal was illegal, as the eral fund of the state; otherwise,

information was verified upon information

sey. eral important sections of the act would

and belief; (3) that the entire proceedings are be meaningless, and the plain legislative

void, because their principal had no prelimiintent, gathered from prior legislation,

nary examination before the inforination was and even from the act itself, would be

filed, and before he was admitted to bail, he violated.

Bond held No specific appropriation

not having waived the same.

valid, and judgment directed against the made by the second legislature to defray

sureties. the expenses of the live-stock commission, but the existing statute stands unrepealed Charles N. Potter, Atty. Gen., for the State. and unmodified. The decisions of this court A. C. Campbell and R. W. Breckons, for de at the present term in the case of State v. fendants. Burdick, 33 Pac. Rep. 125, 131, control our decision in this case, under the construction GROESBECK, O. J. This proceeding was of the act we have now under considera- reserved by the district court of Sheridan tion. As we read the act, the inspection county for the decision of this court, under fund must be preserved intact for the use the statute providing that, when an imporof the live-stock commission so long as the tant or difficult question arises in an action existing law is in force. The semiannual or proceeding pending before the district payments made to the state treasurer by the court in any county of this territory, (state.) secretary of the commission, under the terms the judge of said court may, on motion of of the act, as unclaimed moneys derived either party, or upon his own motion, cause from the sale of estrays, are part of the the same to be reserved, and sent to the suInspection fund; and since the specifio ap- preme court for its decision. Chapter 66, propriation for the biennial period ending Sess. Laws 1888. An information was filed March 31, 1893, is exhausted, they consti- in the district court of Sheridan county, actute the fund itself. The salary of the cusing one Henry Krohue and others of relator is a proper charge upon this fund. grand larceny committed in said county, as It can be paid out of no other fund, as the alleged, on March 15, 1892, by the county statutes now exist, and it appears that there and prosecuting atttorney of said county, are sufficient moneys in the fund to pay his without any preliminary examination of the claim. It is a continuing fund, and may be defendant Krohne, in the vacation of the disused for the purposes of the commission. trict court of said county; and this informaThe peremptory writ is allowed, requiring tion was verified by the affidavit of M. L.

was

Blake, ás county and prosecuting attorney, er the sureties are liable 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, a 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 Krohne 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. without due process of law; (3) that said in

v. Roberts, 1 Duy. 199;

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 had 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.)

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 cuted-is in violation of the fourteenth

Tex. App. 324; McClure V. Smith, 56 Ga.

439. amendment to the constitution of the United

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 statthe 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 whera

« PreviousContinue »