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$20 because of the failure of the appellant , uty sheriff. On the trial in the district court to complete his contract and pay for the it was proved, and admitted by the defendgoods ordered. A new trial should not be ant himself, that he carried a pistol upon his granted upon the ground of newly-discovered person at the time and place stated in the evidence unless such evidence is very clear complaint; but he insists that his conviction and satisfactory, and likely to seriously af- was illegal, because he was absolutely enfect the result if admitted. People v. Sack- titled to carry it, on account of his official ett, 14 Mich. 325; Tiernan v. Trewick, 2 character. This immunity he claims to find Utah, 393; Hopkins y. Ogden City, 5 Utah, in section 10, c. 30, of the act of 1887, de390, 16 Pac. Rep. 596. We find no error in fining the offense, which reads: "Sec. 10. the record. The judgment of the district Sheriffs and constables of the various councourt is affirmed.

ties, and marshals and police of cities and

towns, in this territory, and their lawfully BARTOH and SMITH, JJ., concur.

appointed deputies, may carry weapons in the legal discharge of the duties of their respective offices, when the same may be nec

essary, but it shall be for the court or the GUYSE V. TERRITORY.

jury to decide from the evidence whether (Supreme Court of New Mexico. Aug. 24,

such carrying of weapons was necessary or 1893.)

not, and for an improper carrying or using CARRYING WEAPONS-Rights of Officers.

deadly weapons by an officer, he shall be Sheriffs and constables have not the ab.

punished as other persons are punished for solute right, because of their office, to carry the violation of the preceding sections of this weapons at all times, since Act 1887, c. 30, act." This section does not afford complete $ 10, provides that sheriffs, constables, and other officers "may carry weapons in the legal dis

protection, as it leaves it "for the court or charge of the duties of their respective offices,

jury to decide whether such carrying of when the same may be necessary, but it shall weapons was necessary or not.” The jury, be for the court or jury to decide from the evidence whether such carrying of weapons was

on hearing all the facts in the case, decided necessary or not, and for an improper carrying

by their verdict that such carrying was not or using deadly weapons by an officer, he shall necessary. The court, upon the motion for be punished as other persons are punished."

a new trial, expressly ratified the legality of Error to district court, Lincoln county; the conviction. We should think that such A. A. Freeman, Judge.

unanimity ought to have satisfied defendant William H. Guyse was convicted of unlaw. of his error, and relieved him of the necesfully carrying a deadly weapon, and brings sity of compelling us to affirm the judgment. error. Affirmed.

Under the law, no sheriff, constable, or other Edward L. Bartlett, Sol. Gen., for the

peace officer, has any more right to carry Territory.

weapons than a private citizen, except when

the same is done in the proper or necessary O'BRIEN, O. J. This prosecution was

discharge of his official duties. It is to be commenced in a justice court of Lincoln

regretted that sheriffs, constables, and sim

ilar officers throughout the territory, appear county upon a criminal complaint charging

to believe that they are in all cases, and unthat “William H. Guyse did, on the 14th day of July, A. D. 1892, carry a deadly weapon,

der all circumstances, exempt from the opto wit, a pistol, concealed about his person,

eration of the law prohibiting the carrying within the settlements of said territory and

of deadly weapons. It is a grave mistake, county; that such carrying of said deadly

and is too often attended with dangerous weapon was not within the residence of the

consequences. No other reason than the illesaid William H. Guyse, or on his landed es

gality of the conviction on account of detate, or in the lawful defense of his person,

fendant's exemption from the operation of family, or property; and that such carrying

the statute being presented for our considerof said deadly weapon was not done by legal

ation, it follows that the judgment below is

affirmed. authority,-all of which is contrary to the form of the statute," etc. Upon a trial had before a justice of the peace of Lincoln coun

LEE, SEEDS, and FALL, JJ., concur. ty on July 15, 1892, defendant was convicted, and fined $50 and costs of prosecution. An appeal was taken to the district court, where a jury trial was had, resulting in a BOARD OF EDUCATION OF CITY OF verdict of guilty. From the judgment en

SOCORRO V. ROBINSON. tered upor that verdict the defendant has

(Supreme Court of New Mexico. Aug. 24, brought the cause to this court for review.

1893.) Defendant was represented by counsel in SHERIFFS-COLLECTION OF LIQUOR LICENSESthe district court. In this court he is not

RIGHT TO COMMISSIONS. represented, but we learn from the tran- 1. Laws 1891, c. 9, $g 1, 3, provide for the script and the brief of the solicitor general

issuance of a liquor license by certain of the

county or city officials on payment by the apthat he claims the right to carry deadly

plicant therefor of the fee to the county treasweapons because he is a constable and dep- urer to be credited to the school fund. Comp. Laws 1884, 88 2903, 2904, provide for assess- the same in the hands of the sheriff, did aut ment of license fees and collection by the sher- authorize him to collect the same; that the iff. Held that, under the Laws of 1891, there is no provision for the collection of the license

payment to him was voluntary, and did not fee by any person, and, where the sheriff vol- constitute him the agent of the plaintiff untarily collects the license fee, he is entitled this suit. Third. That the defendant did to no commission thereon. 2. Where the sheriff collects such license

not collect or undertake to collect the sum fees, and turns a portion thereof over to the of money sued for as the agent of the plain. board of education, to whom they belong un- tiff, but as the agent of the county commisder the statute, he acts as the agent of such board in the collection thereof, and is liable to

sioners. Thereupon the court found for the such board for any money retained by him as

defendant. The plaintiff moved for a new his commission.

trial, which being overrulcd, he sued out a 3. The fact that by mistake the licenses

writ of error to this court, and assigns vaare issued by the probate clerk, who has no authority to do so, does not affect the liability

rious grounds of error. of the sheriff.

The whole question can be considered upon Error to district court, Socorro county;

the general assignment that the court erred

in holding that the defendant, in collecting A. A. Freeman, Judge.

the license fees, was not the agent of the Action by the board of education of the city of Socorro against Charles A. Robinson,

plaintiff. By the terms of the license act of

1891 it is provided that any person desiring sheriff. Judgment for defendant. Plaintiff brings error. Reversed.

to sell liquors in any incorporated city shall

make due application for a license to the James G. Fitch, for plaintiff in error. H.

mayor or city council. Section 1, c. 9, Laws B. Hamilton, for defendant in error.

1891. That act further provides that every

license provided for by the act shall be issued SEEDS, J. This was an action in assumpsit for the period of 12 months by the clerk of brought by the board of education of Socorro the board of county commissioners, upon oragainst Charles A. Robinson, at that time der of such board, or by the city or town sheriff of Socorro county, to recover from clerk or recorder, upon order of the mayor, him $240, which it alleged he held and re- city, or town council or board of trustees, tained from it. The case was tried below as the case may be, and shall by such clerk upon an agreed statement of facts before or recorder be turned over to the appliant the court, who found the issues for the de. for said license, upon the payment of said fendant, and the plaintiff brings this, its writ license fee by said applicant into the hands of error. The facts are in substance as fol. of the county treasurer, to be covered into lows: The plaintiff is the legal school board the general school fund of the county. Sec. of the city of Socorro. The defendant was tion 3. Sections 2903 and 2904 of the Com. then the sheriff of Socorro county. Certain piled Laws of 1884 provide for the assesspersons in the city of Socorro, desiring the ment of license fees by the county assessor, privilege of selling liquors, in accordance and their collection by the county collector, with the provisions of the license law of who is the sheriff. It was under authority 1891, made due application to the proper par- of these sections that the defendant herein ties, to wit, the city council of Socorro, for acted, and retained the 10 per cent now such licenses, which were granted; that sued for. Before considering the law applithereafter the probate clerk issued the li- cable to the case, we will see just what the ceuses in accordance with the applications,

ultimate facts of this record are. It is clear and placed them in the hands of the defend- that the applications for the licenses were apt, as sheriff and ex officio collector of made properly, and to the legal parties comtaxes, to deliver upon payment of the license petent to grant them, and were granted; that, tax; that the defendant collected the sums mistaking the law, the probate clerk, instead of the licenses, and paid them over to the of the city recorder, made out the licenses; proper persons, by whom that portion due to that, still under a mistake of law, the alleged this plaintiff were credited to it; that the licenses were placed in the hands of this de defendant paid over one license, less his 10 fendant for collection, who collected them, per cent., to the city treasurer; that the de- and they were paid to the proper parties by fendant had retained from the total col- this collector, less his 10 per cent. for collection 10 per cent. of the amount so col- lection. We think the necessary inferences lected by him: that, after the license fees from these facts are that the applicants paid were collected, they were charged up against their money in good faith, believing that they the defendant as collector upon the books of were obtaining the licenses for which they the county by the accountant employed to made application; that they paid said money write up the books of said county; and that to the defendant, believing that he repre the plaintiff, before beginning this action, de sented the parties who granted the applica. manded in writing the money so retained tion; that he himself believed he was collectby the defendant. Upon these facts the ing the license fees for the plaintiff herein, court found as matters of law as follows: as he paid a goodly portion of the same w First. The probate clerk was not authorized its proper representative, thereby admitting to issue the licenses in question. Second. by his act that it was entitled to the money; The issuance of such licenses, and placing that, as the plaintiff accepted the money

from him, it approved his act of collecting sit. The court, in the cited case, say: "In the money, and thereby made him their short, there must be some privity existing agent. To us this seems conclusive. Was between the parties in relation to the money he entitled, then, to reserve out of his col- sought to be recovered in this action. This lections the 10 per cent. charged by him? privity may be either express or implied. There is a repealing clause to chapter 9, It is express where the defendant has reLaws 1891, but it quite narrow in its ceived the money as agent or bailiff for the phraseology, and it might be a question plaintiff, or where he consents or agrees to whether it repealed completely sections 2903, appropriate money in his hands belonging 2904, Comp. Laws 1884. But the language to another to the payment of the plaintiff, of section 3 provides that the applicant him. at the owner's request. But it can be imself is to pay the money into the hands of the plied only where the defendant has recounty treasurer, whereupon he is to obtain ceived money of the plaintiff, or money his license. By necessary implication, this belonging to the plaintiff by mistake or does away with the use of the collector. He fraud or duress. • • • In other words, the has nothing to do with the collection of money sought to be recovered in this aclicenses, and is therefore not entitled to his tion upon an implied promise must be 10 per cent. by reason of the sections cited. either identically the money of the plainBut has this plaintiff any interest in the sum tiff, of which the defendant has improperly which the defendant has retained out of the possessed himself, or

*." Page 409. license fees? Having no legal authority to It seems to us that the case before us comes collect the license fees, his acts become those within the spirit, if not the very words, of of a volunteer, and it only remains to de- this rule. The defendant had no authority termine whether, by reason of any of his to collect this money, but, believing he had, volunteer acts, he has become either the he presented himself to the parties who had agent of the plaintiff in the transaction, or made their application for the licenses, his received into his possession money be- and requested the payment. They promptly longing to it.

paid the money. Did they pay it to the de. The contention of the defendant in the fendant as their agent? Certainly not; they case is that there is no privity between the paid it to him as the supposed representaplaintiff and the defendant, and therefore tive of the plaintiff. Did he, the defendthis action cannot be maintained. Upon ant, receive the money as the money of the the other hand, the plaintiff contends that licensees, or of this plaintiff? Clearly of this there need be no privity between the par- plaintiff. And this plaintiff received the ties in order to sustain the action of as- money, or a part of it, as the money besumpsit, but only that the defendant should longing to it,-as the money due for the have in his possession, by some means,

licenses. Now is it not clear that the inmoney belonging to the plaintiff. There are tention of all the parties, as shown by the citations of authorities to sustain both of record,

was to pay this money to the these propositions, and there is no necessary board of education as of right belonging conflict between them. The defendant cites to it? The money came into the defendant's as sustaining his contention the case of Ser- hands by mistake, as the rule above laid geant v. Stryker, 32 Amer. Dec. 404. In that down requires, but all parties believing that case a sheriff had offered a reward of $50 it belonged to the plaintiff. It is urged, for apprehending a prisoner. Stryker caught however, that the so-called "licenses" dethe prisoner, lodged him in prison, and then livered to the licensees were so much waste proceeded to the sheriff to demand the re- paper, and would be no protection to the ward; but, upon reaching the sheriff, he holders of them, and hence that the money found that Sergeant and another had rep- delivered to the defendant was the money resented that they had apprehended the of the licensees, and not of this plaintiff. prisoner, and had been paid the reward. But that does not follow. The licensees had Thereupon Stryker sued Sergeant in assump- made proper applications, and, upon paying sit for money had and received to his use. the license fee into the hands of the counUpon the trial the sheriff swore that he did ty treasurer, were entitled to

a proper not pay Sergeant and the other for Stry- license. Now, we do not presume that it ker or on his account. The court held that will be contended that these applicants canthere was no privity between Stryker and not pay the money either into the hands Sergeant, and, therefore, that he could not of the agent of the treasurer, or to him recover in the action; and the holding was by their own agent, if they see fit, and manifestly correct. No money, by any act, then be entitled to their licenses. If the had ever belonged to the plaintiff. He treasurer has actually received their money, would have had no right to the reward until can they not compel the proper officer to he had proven his apprehension of the pris- issue to them their licenses? Does not the oner, and until that time any money which money belong to the board of education the sheriff might pay out to others would until the license is issued? If, then, this not be burdened with any rights of Stry- board of education has received the apker. There was no ground upon which he plicants' money, have they not claimed it could base or predicate a claim in assump- as their own? Supposing, then, that, by a


mistake, this defendant has collected the state board of medical examiners in a moneys actually intended for the board, he proceeding to revoke his license to practice recognizes it as belonging to it, the board medicine and surgery. Writ granted. claims the money as its property; does not the defendant thereby recognize the plaintiff

B. P. Carper and J. W. Kinsley, for re as entitled by right to the money, and does

lator. H. N. Blake and O. B. Nolan, for not the board approve the act of the de

respondent fendant, and thereby make him its agent? The very action of the defendant in this HARWOOD,J. Application is made here matter sustains this view of the case; for, in for a writ of mandate, directed to the unless all the money collected by him be- district court of the first judicial district, longed to the proper persons under the law requiring it to entertain the appeal of refor whom he was collecting it, he had no lator from the action of the board of med. right, under section 2904 of the Compiledical examiners of the state of Montana in Laws of 1884, to claim his 10 per cent. In revoking relator's license to practice medi. our judgment, there is no escaping the con- cine in this state. It appears that, pursuant clusion that all parties recognized that the to the provisions of the statute in that re money for the licenses was intended for this spect made and provided, (act to regulate plaintiff; that the defendant was acting the practice of medicine, etc.; Sess. Laws as its agent in collecting the same, or wrong. 1889, p. 175,) relator was proceded against fully received that which belonged to the before said board of medical examiners, upplaintiff, and in either case was liable in on certain charges alleged to constitute “un. this action for money had and received to professional, dishonorable, and immoral conthe plaintiff's use; and, as he was not en- duct” in the practice of said profession, and, titled to any of the money for collecting after hearing, said board found relator guilty, it, he should therefore pay over the amount as charged, and thereupon revoked his Liretained to plaintiff. The judgment of the cense to practice medicine and surgery in lower court ought to be reversed, and judg- this state. An appeal was duly prosecuted ment given for plaintiff.

from the decision of said board to the dis

trict court of the first judicial district in and O'BRIEN, O. J., and FALL and LEE, JJ., for Lewis and Clarke county, and, upon the

docketing of said appeal, motion to dismiss the same was interposed by said board of medical examiners on the following grounds:

"(a) That the papers in said cause are not STATE ex rel. KELLOGG v. DISTRICT

properly in court; (b) that there is no pro COURT OF FIRST JUDICIAL DIS- vision of law by which an appeal can be TRICT.

taken, in that the law purporting to permit (Supreme Court of Montana. Oct. 2, 1893.)

an appeal is in contravention of the constiDISTRICT COURT - APPEAL FROM STATE BOARD OF tution of the state of Montana, and void; MEDICAL EXAMINERS - JURISDICTION FAILURE


law by which and through which a hearing -REMEDY-WRIT OF MANDATE.

on appeal can be had; (d) that the action 1. Const. art. 8, § 11, which provides that of the medical board is final under the law, the district court "shall have appellate juris

except in so far that its action may be re diction in all cases arising in justice's and inferior courts, in their respective districts, as

viewed by the district court, through the may be provided by law, and consistent with medium of summary process." Thereupon this constitution," does not limit the appellate the court, after consideration, sustained the jurisdiction of such court to appeals from justices' and inferior courts only, and prohibit the

motion, and dismissed said appeal, and the legislature from providing for appeal to the same grounds are urged in this proceeding district court by the party aggrieved by the ac- as reasons for denial of the writ of mantion of the state board of medical examiners in revoking the license of a physician to prac

date prayed for; therefore the only question tice medicine and surgery.

involved in this consideration is whether or 2. The right of a physician to appeal to the not such appeal would lie in favor of re district court from the action of the state lator. board of medical examiners in revoking his license to practice his profession, as provided

The act of the legislature, cited supra, aftby Sess. Laws 1889, p. 175, is not nugatory,

er providing for the organization of said because the legislature has prescribed no rules board of medical examiners, and prescribof practice to guide the district court in adju- ing its duties in respect to the examination dicating such cases. 3. Mandamus is the proper remedy to re

of applicants desiring to practice medicine instate an appeal properly taken to the district and surgery in this state, as to their quallcourt, and which it has refused to entertain for fications to be licensed thereunto, and for supposed want of jurisdiction.

the issuance of a certificate of license by said Proceeding by the state of Montana, on board to persons found duly qualified, furrelation of Edwin S. Kellogg, for a writ of ther provides that "such board may refuse mandate directed to the district court of or revoke a certificate for unprofessional, the first judicial district of the state of Mon- dishonorable or immoral conduct, or refuse tana, to compel such court to reinstate and a certificate to any one who may publicly entertain an appeal taken by relator from profess to cure or treat disease, injury or

deformity, in such a manner as to deceive right of appeal in such cases, might lead the public. In all cases of refusal or revoca- to declaring those numerous statutes void tion, the applicant, if he or she feel ag- in toto; on the ground that the legislature grieved, may appeal to the district court would not have invested such boards with of the county where such applicant may the large powers committed to them if their have applied for a certificate." This provl- action had been understood to be final, and sion for appeal in such cases appears to beyond review, through the appeal provided have been held unconstitutional by the dis- in the same statute. It is therefore observed trict court, in dismissing relator's appeal, as how extensive and radical is the effect conaforesaid.

templated by the framers of the constitution The proposition is advanced that the dis- in the particular under consideration, if the trict court cannot lawfully entertain appeal interpretation contended for by the respondfrom the action of said board, as provided ent expresses the intention of its framers. for, because the constitution provides that But we think that, if such was the intention, the district court "shall have appellate ju- | it would have been indicated without unrisdiction in all cases arising in justices' and certainty, by a provision in the prohibitory other inferior courts, in their respective dis- form, unlike the clause under consideration, tricts, as may be provided by law, and con: but something like the form unto which said sistent with this constitution." Article 8, 8 clause is construed by the holding contended 11. Respondent contends that the proper in- for in this proceeding. But, as before obterpretation of this clause of the constitution served, the language of the constitution unis that the district courts can entertain ap- der consideration is not in such prohibitory peals from justice's and inferior courts only; form; nor do we think the framers of that and such must be the construction put upon instrument intended such interpretation, or it to sustain the ruling of the court below. the radical change in the system of laws so But the provision of the constitution under long prevailing in this jurisdiction, to which consideration is not in such prohibitory form, it leads, without any other provisions to sup and we do not think that provision imports | ply the place of those laws uprooted thereby. such intention. Even appeals which may be State V. Hickman, 11 Mont. 514, 29 Pac. allowed from justices' and inferior courts Rep. 92. are left by the constitution within the control While it is a fundamental principle that of the legislature. The construction con- the legislature cannot interfere with the extended for by respondent would introduce

istence, or abridge the jurisdiction bestowed a radical change in the system provided for

upon courts by the constitution, it has been the control of certain important public af

held by eminent authority that the legislafairs, which has prevailed in this jurisdic

ture may invest such courts with additional tion throughout the territorial regime, and

jurisdiction. This subject was extensively which provisions are still contained in the

considered in a singularly able opinion debody of the statute laws adopted by the

livered by the court of errors and appeals constitution for state government; for that

of New Jersey, in a case decided in 1869, holding, logically followed out, would cut off the appeal to the district court, provided 424;) reaching the conclusion that “an ex

(Harris v. Vandeveer's Ex'r, 21 N. J. Eq. by statute, from the action of the board of

tension of the jurisdiction of a court, such county commissioners, in respect to the allowance or disallowance of claims against

extension being in harmony with its char

acter, and not being a usurpation on the the county, (Comp. St. div. 5, $$ 764, 705;) appeals from the award of road viewers in

inherent powers of any other court, is not laying out highways, (Id. § 1821;) appeals

within the constitutional prevention.” The from the award of the commissioners in pro

same proposition is announced in Wells, Jur. ceedings where the power of eminent domain

54; and we have been unable to find any is exercised, (Code Civil Proc. $$ 607, 608;) authorities, either in cases or in works on and perhaps other appeals in similar cases.

constitutional law, to the contrary effect. All such appeals from the action of the board

Respondent's counsel cite some early cases to the district court of the proper district

from California in support of their view;

but the court in those cases had under conare provided for by statute in favor of the party aggrieved; and it is very doubtful that

sideration, not only a different judicial systhe legislature would have made provision tem, but entirely different constitutional profor action of boards in such important af

visions to construe, as shown in the Caulfield fairs as those statutes contemplate if such

Case, 3 Cal. 389, and others cited. There action was final, as it would be, in many

the constitution invested the district courts respects, without provision for appeal. It with original Jurisdiction in law and equity is well known that a review by a court cases, and was silent as to any appellate through the medium of certiorari would, un- jurisdiction in those courts; but the conder the rules governing such writs, be in- trolling provision in those cases seems to be adequate to reach a complete consideration that the California constitution empowered of the case on the merits, with power to the legislature to "give the county courts render such judgment as the justice of the original or appellate power, or both, in spe case might warrant, and, taking away the cial cases and in cases arising in justices

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