STATE ex 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 "herein before provided," and never out of any other. Section 36 appropriates for the inspection fund, for two years, $10,000. Under the 1888 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.

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.1-1

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 disallowed." 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 respect, to do this. The act passed by the tenth legislative assembly of the territory (chapter 28, Sess. Laws 1888) provided for

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 secretary of the live-stock 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, into 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 or 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 1890, 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 live-stock 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 inspection fund "hereinbefore provided," and that no fees, salary, compensation, or expense 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 "here

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 live-stock 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 was 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 specific 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 can 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

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 bond that the information was insufficiently verified, or that the arrest of the principal on a warrant issued on such information was illegal.

3. A statute permitting informations to be filed without preliminary examination, whenever the prosecuting attorney is satisfied that a crime or offense has been committed in his county, is not invalid as an infringement of "due 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 Krohne. 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.

GROESBECK, C. 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. L

Blake, as county and prosecuting attorney, the verification stating that he has been reliably informed and believes that the facts stated in the information are true. This information was filed September 26, 1892, and the clerk of the court issued a warrant for the arrest of the defendants, including Krohne. The following day, Krohne was brought before the clerk of the court, and admitted to bail by him in the sum of $1,000, with the defendants in this action as sureties, conditioned for his appearance at the next term of the district court for said county, there to remain from day to day, and not to depart without leave of court, and to abide the judgment of said court, whereupon Krohne was discharged. He failed to appear at the first day of said court, next holden thereafter, the bond was declared forfeited, and proceedings in the nature of scire facias were begun by the direction of said court against the defendant's sureties. They appeared, and excepted to the rule to show cause, alleging as grounds therefor (1) that the information is in violation of the constitution of the United States, and of section 4 of article 1 of the constitution of this state, for the reason that no preliminary examination of Krohne, the principal on the bond, was had upon the charge set forth in the information, the same not having been waived, and because the information was not made upon probable cause, supported by oath or affirmation or affidavit, as required by the constitution of Wyoming; (2) that the statute under which the information was filed is contrary to the constitution of this state, and the constitution of the United States, in that it deprives the said Krohne and the sureties defendant of liberty and property without due process of law; (3) that said information and all proceedings had thereunder are of no effect, for the reason that no preliminary examination was had of said Krohne, as required by the laws of this state; and (4) the information is void, and all proceedings thereunder of no effect, for the reason that the information-and the statute under which the same was prosecuted-is in violation of the fourteenth amendment to the constitution of the United States, in that it deprives the said Krohne of equal protection of the laws. The court reserved the questions to this court for deAncision, pursuant to the statute supra. other question submitted on argument, not directly embodied in the exceptions, is that the clerk of the district court for Sheridan county had no authority, although conferred by statute, to fix the amount of bail, and to let to bail Krohne, the principal on the bond. It was stipulated in the hearing before us that the following questions should be considered as reserved by the district court for our determination: First, whether or not the bail bond of the defendant Krohne is void for any of the reasons charged in the exceptions of the sureties; and, second, wheth

er the sureties are liable under said bond, and judgment should be rendered against them in this proceeding.

1. The authority of the clerk of the court to issue the warrant, and to admit to bail, was conferred by statute. Section 8, c. 59, Sess. Laws 1890-91. This section was repealed by section 2, c. 21, Sess. Laws 1893, but was in force at the time of filing the information, the issuance of the warrant thereon, and the taking of the bail thereunder. It is contended that the statute was unconstitutional, in permitting the clerk of the court, in the vacation or recess thereof, to take bail, and fix the amount of such bail, as conferring upon the clerk judicial power. The case of Hall v. Marks, 34 Ill. 358, is cited in support of this contention, where the court held that a clerk could not render in vacation a judgment in default. In that case it seems that such was the practice of one of the circuit courts of Illinois, and it does not appear to have been warranted by statute. In some states such a practice obtains, to allow the clerk to enter judgment in vacation in certain cases of default, but this power I understand to be conferred by statute. Mr. Bishop says that "anciently the sheriff, possessing judicial with ministerial powers, was the principal bailing officer. In many of the states, he may take bail; in others, not." 1 Bish. Crim. Proc. (3d Ed.) § 251, and cases cited. The following cases hold that sheriffs or clerks may take bail, and some of them are to the effect that they can fix the amount thereof: Moss v. State, 6 How. (Miss.) 298; State v. Edwards, 4 Humph. 226; State v. Brown, 32 Miss. 275; Blackman v. State, 12 Ind. 556; Com. v. Roberts, 1 Duv. 199; Antonez v. State, 26 Ala. 81; Evans v. State, 63 Ala. 195; State v. Wyatt, 6 La. Ann. 701; State v. Gilbert, 10 La. Ann. 524; State v. Jones, 3 La. Ann. 10; Wallenweber v. Com., 3 Bush, 68; Schneider v. Com., 3 Metc. (Ky.) 411; McCole v. State, 10 Ind. 50; Dickinson v. Kingsbury, 2 Day, 1; State v. Hendricks, (La.) 5 South. Rep. 177; Ellis v. State, 10 Tex. App. 324; McClure v. Smith, 56 Ga. 439. It was held in Kansas that when a court has failed to fix the amount of bail of a defendant arrested upon a warrant issued upon information, and there is no district judge in the county, the clerk of the district court may fix the bail of the defendant, and this upon the ground that the statute so provided. State v. Schweiter, 27 Kan. 499. See People v. Kane, 4 Denio, 530; McCole v. State, 10 Ind. 50. In Ainsworth v. Territory, 3 Wash. T. 270, 14 Pac. Rep. 590, it was held that the judge of a criminal court of record might accept and approve a bail bond in vacation, even where the prisoner had been previously committed in default of bail and was in custody of the sheriff, as the statute authorized a judge at chambers to determine all matters where