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geological formation of the country may | to ascertain facts and obtain documents, be such as scientific research and practical within his knowledge and control, which the experience have shown to be likely to yield oil in paying quantities. Taken with this there may be other surface indications, such as seepage of oil. Though all these things combined may be sufficient to justify the expectation and hope that, upon driving a well to sufficient depth, oil may be discovered, they do not amount to a "discovery." Miller v. Chrisman, 73 Pac. 1083, 1084, 140 Cal. 440.

In patent law.

Webster says:

complainants could not reach at law because of their inability to compel the examination of the defendant under oath. Every bill for relief exhibited in a court of equity is in effect a bill of "discovery," because it asks or may ask from the defendant an answer upon oath relative to the matters which it charges. The power to enforce such discovery is one of the original and inherent powers of a court of chancery. The federal and state statutes now in force which enable the complainant to obtain such examination have greatly diminished the need of these discoveries. Kelley v. Boettcher (U. S.) 85 Fed. 55, 57, 29 C. C. A. 14.

"Discovery," in relation to evidence, includes only facts or papers which the party or witness is compelled by subpoena, interrogatory, or other judicial process to disclose, whether he will or no, and is inapplicable to testimony voluntarily given, or to documents voluntarily produced. Tucker V. United States, 14 Sup. Ct. 299, 301, 151 U. S. 164, 38 L. Ed. 112.

"'Discover' differs from 'Invent.' We 'discover what before existed; we 'invent' what did not before exist." The word "discovery," as used in the Constitution and patent laws, is synonymous with "invention," and no discovery will entitle a discoverer to a patent which does not amount to the contrivance or production of something which did not exist before. Const. c. 4, art. 1, § 8, cl. 8, among the enumerated powers given to Congress, says: "To promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their DISCOVERY IN AID OF EXECUTION. respective writings and discoveries." There it is evident that the "discoveries," the use of which is to be secured, are the discoveries of inventors only. The applicant must invent, contrive, or produce something that did not exist before. A man may "discover" (i. e., may disclose) his invention, and for that discovery or disclosure he will be entitled to the exclusive use of his invention for a limited time. In re Kemper (U. S.) 14 Fed. Cas. 286, 287.

"Discovery in aid of execution" is the name of a special statutory proceeding, in a court of law, which was not known to the common law. Adler v. Turnbull, 30 Atl. 319, 57 N. J. Law (28 Vroom) 62.

DISCREDIT.

"Discredit," as defined by Webster, means to refuse credence to; not to accept

as true; to disbelieve. Howard v. State, 8 S. W. 929, 931, 25 Tex. App. 686.

Invention or "discovery" is the require ment which constitutes the foundation of the right to obtain a patent, and it is held that, "Discredit," as used in an instruction of unless more ingenuity and skill are required the court to a jury as follows: "If you be in making or applying the improvement than lieve that any witness has willfully testified are possessed by an ordinary machinist ac- falsely to any material fact, it is your duty quainted with the business, there is an ab- to discredit him"-means to distrust; that sence of that degree of skill and ingenuity is, to look at with suspicion. People v. which constitutes the essential element of Clark, 24 Pac. 313, 316, 84 Cal. 573. every invention. Dunbar v. Meyers, 94 U. S. | 187, 197, 24 L. Ed. 34.

The term "discovery," within the meaning of Const. art. 1, § 8, cl. 8, which confers on Congress the power to secure for limited time, to authors and inventors, the exclusive right to their respective writings, inventions, and discoveries, does not include a trademark. Trade-Mark Cases, 100 U. S. 82-93, 25 L. Ed. 550.

In practice.

DISCRETION.

See "Judicial Discretion"; "Legal Discre-
tion"; "Sound Discretion"; "Sound
Memory and Discretion"; "Abuse of
Discretion."

"Discretion" implies knowledge and prudence, and that discernment which enables a person to judge critically of what is correct and proper; judgment directed by circumspection. Towle v. State, 3 Fla. 202, 214. "Discretion" is defined as the knowledge The right of "discovery" in courts of of what is right and proper-as deliberate equity arose from the necessity of searching judgment. Citizens' St. R. Co. v. Heath, 62 the conscience of the opposing party in order N. E. 107, 111, 29 Ind. App. 395.

See "Bill of Discovery."

In its proper sense, the word "discre- | conferred upon them by law, of acting offition" implies judgment-soundness of judg- cially in certain circumstances according to ment. Thus, we speak of a "discreet" man, the dictates of their own judgment and conand of his "discretion"; and in this sense the science, uncontrolled by the judgment or conword applies well enough to those qualities science of others. Farrelly v. Cole, 56 Pac. of a fence which are in their nature unde- 492, 497, 60 Kan. 356, 44 L. R. A. 464 (citing fined, as when the statute describes it as Judges of Oneida Common Pleas v. People "of strong materials, put up in a good and [N. Y.] 18 Wend. 79; State v. Hultz, 16 S. substantial manner, with sufficiently small W. 940, 942, 106 Mo. 41). spaces," etc. These things were within their "discretion" or sound judgment, not in their mere option. McManus v. Finan, 4 Iowa (4 "in discretion" does not mean that it may Clarke) 283, 286. be granted or refused at the mere will or pleasure of the judge, but that he is to exercise a sound judicial judgment, in the interest of justice and prudence. Abbott v. L'Hommedieu, 10 W. Va. 677; Rose v. Brown, 11 W. Va. 122, 123.

"Discretion," when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor. It must not be arbitrary, vague, and fanciful, but legal and regular. Rex v. Wilkes, 4 Burrows, 2527, 2539; Harris v. Harris (Va.) 31 Grat. 13, 16; Sea Isle City Imp. Co. v. Assessors of Taxes of Borough of Sea Isle City, 39 Atl. 1063, 1064, 61 N. J. Law, 476; Lovinier v. Pearce, 70 N. C. 167,

171; Miller v. Wallace, 76 Ga. 479, 484, 2 Am. St. Rep. 48; People v. Superior Court of City of New York (N. Y.) 5 Wend. 114, 126; Platt v. Munroe (N. Y.) 34 Barb. 291, 292; Sharp v. Greene, 62 Pac. 147, 150, 22 Wash. 677; Haupt v. Independent Tel. Messenger Co., 63 Pac. 1033, 1035, 25 Mont. 122; State ex rel. Adamson v. Lafayette County Court, 41 Mo. 221, 222; Ex parte Mackey, 15 S. C.

322, 328.

"Discretion" is defined

as deliberate

To say that granting an application rests

"Discretion, when vested in an officer, does not mean absolute or arbitrary power. The discretion must be exercised in a reaSonable manner, and not maliciously, wantonof another. This is held to be the rule ap ly, and arbitrarily, to the wrong and injury

to exercise their deliberate judgment in the plicable to public officers, who are bound discharge of their official duties, and is applicable to all inferior magistrates and others called to the performance of functions, in their nature and character, quasi judicial, while acting within their jurisdiction and the legal scope of their powers as fixed by law." Taylor v. Robertson, 52 Pac. 1, 3, 16 Utah, 330.

Judicial power, as contradistinguished judgment. Stewart v. Stewart, 62 N. E. 1023, from the power of the laws, has no existence. 1024, 28 Ind. App. 378.

"Discretion" is defined as the discernment of what is right and proper-as deliberate judgment. Citizens' St. R. Co. v. Health, 62 N. E. 107, 111, 29 Ind. App. 395; Stewart v. Stewart, 62 N. E. 1023, 1025, 28 Ind. App. 378.

"Discretion" does mean and can mean nothing else but exercising the best of the court's judgment upon the occasion that calls for it. Tompkins v. Sands (N. Y.) 8 Wend. 462, 468, 24 Am. Dec. 46; Rex v. Young, 1 Burrows, 556, 560.

When it is said that something is left to the "discretion" of the judge, it signifies that he ought to decide according to the rules of equity and the nature of circumstances. Civ. Code La. 1900, art. 3556, subd. 10.

"Discretion," as applied to public functionaries, means the power or right of acting officially, according to what appears just and proper under the circumstances. Rio Grande County Com'rs v. Lewis, 65 Pac. 51, 28 Colo. 378 (citing Murray v. Buell, 74 Wis. 14, 18, 41 N. W. 1010).

Courts are the mere instruments of the law, and can will nothing. When they are said to exercise "discretion," it is a mere legal discretion; a discretion to be exercised in discerning the course prescribed by law, and when that is discerned it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the Legislature, or, in other words, to the will of the law.

Osborn v. United States Bank,

22 U. S. (9 Wheat.) 738, 866, 6 L. Ed. 204; State v. Cunningham, 53 N. W. 35, 53, 83 Wis. 90, 17 L. R. A. 145, 35 Am. St. Rep. 27.

"The most odious and dangerous of all laws would be those depending on the discretion of judges." Lord Camden, one of the greatest and purest of English judges, said that: "The discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends on constitution, temper, and passion. At best it is often caprice. In the worst it is every vice, folly, and passion to which human nature can be liable." State v. Cummings, 36 Mo. 263, 278.

"Discretion" is defined, when applied to It is said: "The discretion of a judge public functionaries, to be a power or right, is the law of tyrants; it is always unknown;

sons clearly untenable, or to an extent clearly unreasonable. That would be its abuse. In all cases courts must exercise a discretion in the sense of being discreet, circumspect, prudent, and exercising cautious judgment. Murray v. Buell, 41 N. W. 1010, 1012, 74 Wis. 14.

The use of the word "discretion," in an instruction authorizing a jury to exercise their discretion, was held to be erroneous, as being calculated to convey the impression that the jury were not confined to the facts, but were at liberty to exercise a discretion independent of the evidence; the court saying that, if the word "judgment" had been substituted for "discretion," the charge might have been unobjectionable. Seaboard Mfg. Co. v. Woodson, 11 South. 733, 736, 98 Ala. 378.

The word "discretion," in a statute authorizing an appeal from an order of a municipal court, and providing that it shall be in the discretion of such court, after hearing and considering said application, to allow such order or deny the same, means that the whole matter is to be submitted to the sound judgment of the court, to be exercised according to the rules of law. Lent v. Tilson, 14 Pac. 71, 77, 72 Cal. 404; Lent v. Tillson (U. S.) 11 Sup. Ct. 825, 830, 140 U. S. 316, 35 L. Ed. 419.

it is different in different men; it is casual, that it was exercised on grounds or for rea and depends upon constitution and passion. In the best it is often at times capricious; in the worst it is every vice, folly, and madness to which human nature is liable." 1 Bouv. Law Dict., vide "Discretion," p. 473. This may be to some extent an extreme statement of the objection, but every practitioner of experience well knows that it is not without much truth. The writer of this opinion has known a popular judicial officer grow quite angry with a suitor in his court, and threaten him with imprisonment, for no ostensible reason save the fact that he wore an overcoat made of wolfskins. Moreover, it cannot safely be denied that mere judicial discretion is sometimes very much interfered with by prejudice, which may be swayed and controlled by the merest trifles, such as the toothache, the rheumatism, the gout, or a fit of indigestion, or even through the very means by which indigestion is frequently sought to be avoided. In further illustration of what judicial discretion ought to be, but not infrequently is not, I add an extract from an opinion, in a case of national importance, by one of our country's greatest men, and ablest and purest judges. Chief Justice Marshall says: "Courts are mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion; a discretion to be exercised in discerning the course prescribed by law, and when that is discerned it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the Legislature, or, in other words, to the will of the law." Osborn v. United States Bank, 22 U. S. (9 Wheat.) 738, 866, 6 L. Ed. 204. Whatever may have been the construction of this important statute heretofore, it is now evidently unwise longer to keep so indispensable a right as that of a fair and impartial trial in a criminal case under the uncertain security of a power so uncontrollable and liable to error as mere judicial discretion-a power that may possibly be misdirected by a fit of temporary sickness, an extra mint julep, or the smell or looks of a peculiar overcoat, or things more trivial than these, which may imperil the due course of justice in the administration of the law. Ex parte Chase, 43 Ala. 303, 310.

There are different kinds of discretion that may be exercised by the trial court. There is the discretion in the sense of the exclusive right to decide as that court pleases, which will not be revised by the appellate tribunal. There is a discretion in the decision of what is just and proper under the circumstances. The latter kind of discretion will not be reviewed unless there is an abuse of it; that is, unless it appears

The term "discretion," in a statute allowing the county commissioners to make allowance at their discretion, means according to law, at their discretion. Scott v. City of La Porte (Ind.) 68 N. E. 278, 281.

The word "discretion," in an act authorizing the removal of certain officers for cause,

means a discretion to be exercised after a hearing for cause, as provided in the act. The mere fact that in the opinion of the council an officer has been guilty of misconduct in office, or that good cause for his removal exists, will not justify the exercise of this discretion in a summary manner.

The officer must be furnished with specific charges, and then have an opportunity to

call witnesses in explanation of his conduct or acts. People v. McAllister, 10 Utah, 357, 370, 37 Pac. 578, 581.

Absence of fixed rule implied.

"Discretion" implies that, in the absence of positive law or fixed rule, the judge is to decide by his view of expediency, or of the demands of equity and justice. Goodwin v. Prime, 42 Atl. 785, 787, 92 Me. 355 (citing State v. Wood, 23 N. J. Law [3 Zab.] 560).

Within the rule that a master of a vessel must act in good faith and exercise his best discretion for the benefit of all concerned, the term "discretion" implies the ab

sence of a hard and fast rule, for the estab-porary injunction is within the discretion of lishment of a clearly defined rule of action the court, means a sound judicial discretion. would be the end of discretion. And yet "discretion" should not be a word for arbitrary will or inconsiderate action. "Discretion" means the equitable decision of what is just and proper under the circumstances; it means the liberty or power of acting, without other control, in one's own judgment. The Styria v. Munroe, 22 Sup. Ct. 731, 734, 186 U. S. 1, 46 L. Ed. 1027.

The term "discretion" implies the absence of a hard and fast rule, and the establishment of a clearly-defined rule would be the end of discretion; but the term is not a word for arbitrary will and unstable caprice. Judicial discretion should not be, as Lord Coke pronounced it, "a crooked cord," but rather, as Lord Mansfield defined it, "exercising the best of their judgment upon the occasion that calls for it." Norris v. Clinkscales, 25 S. E. 797, 801, 47 S. C. 488.

Whenever a clear and well-defined rule has been adopted, not depending upon circumstances, the court has parted with its discretion as a rule of judgment. Discretion may be, and is to a very great extent, regulated by usage, or by principles which courts have learned by experience, when applied to the great majority of cases, will best promote the ends of justice; but it is still left to the court to determine whether a case is exactly alike in every color, circumstance, and feature to those upon which the usage or principle is founded, or in which it has been applied. State v. Hultz, 16 S. W. 940, 942, 106 Mo. 41.

When it appears, from the nature of the case and all the facts, that a party is not entitled to an injunction, the granting thereof is error, because unauthorized. The granting of an injunction is not in such cases a matter of discretion. Shilling v. Reagan, 48 Pac. 1109, 1110, 19 Mont. 508.

As legal discretion.

"Discretion," as used in an agreement by one to whom property had been conveyed in satisfaction of a debt, by which he agreed to pay certain demands against the transferror of the goods, and dispose of such goods to the best advantage in his discretion, and pay the balance to the other bona fide creditors of the transferror, means a legal discretion; that is, a discretion to be exercised within the limits which the law fixes in such cases. It must be held to apply to the mode of sale, as to whether it shall be public or private, by the quantity or single article, and the various other details of such transaction, and does not necessarily imply an authority to sell on credit. Norton v. Kearney, 10 Wis. 443, 450.

The "discretion" vested by the Legislature in the city council of Salt Lake City by Comp. Laws 1888, § 1755, subd. 40, to license, regulate, and tax the sale of intoxicating liquors, is not an arbitrary power, to be exercised as the caprice or prejudice of that body may dictate, but a legal discretion, whereby the council is to determine whether or not the applicant has substantially complied with the provisions of law.

As authorizing submission to arbitra- The common council of a city must be gov tion.

"Discretion," as used in a vote authorizing the selectmen of a town to settle a claim against it at their discretion, should be construed to authorize the selectmen to submit the claim to arbitration. Campbell v. Inhabitants of Upton, 113 Mass. 67, 70.

As impartial discretion.

The term "discretion," in Hill's Ann. Laws, § 102, providing that the court rendering a judgment may in its discretion relieve a party from the judgment, means an impartial discretion, guided and controlled in its exercise by fixed legal principles; a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to defeat the ends of substantial justice; and for a manifest abuse thereof it is reviewable by an appellate jurisdiction. Thompson v. Connell, 48 Pac. 467, 468, 31 Or. 231, 65 Am. St. Rep.

818.

As judicial discretion.

The term "discretion," in the rule that the granting or refusing to grant a tem

erned by the same rules of law in their ac tion upon the granting of these licenses as other bodies who are called upon by the statute to pass upon the qualifications of others to engage in any business or calling requiring special conditions preliminary to its exercise, and they are bound in all cases to act fairly, and to treat each application upon its own merits impartially; and the mere fact that there is one saloon in the neighborhood already licensed, and the council think this sufficient for the needs of the neighborhood, does not give them the right to deny an application for another license. The council did not decide that the place or neighborhood was improper wherein to carry on the traffic, nor that the relator was disqualified in any manner, but merely said, in effect, that in that neighborhood one man may engage in the business, but another may not. This is not a question of prohibiting the traffic in that locality, but of prohibiting a particular individual against whom no disqualification is alleged, and who has complied with law, from engaging in the business, and at the same time permit ting another, under no worse legal circum

stances, to do so. This cannot be within the discretionary powers of the council. Perry v. Salt Lake City Council, 25 Pac. 998, 1000, 7 Utah, 143, 11 L. R. A. 446.

Where anything is left to any person to be done according to his "discretion," the law intends it must be done with a sound discretion and according to law. Schlaudecker v. Marshall, 72 Pa. (22 P. F. Smith) 200, 206 (citing Tomlins, Law Dict.).

As subject to control of court.

A will creating a trust, the management of which was left in the "discretion" of the executors or trustees, did not confer an authority not subject to the control of the court. Holcomb v. Holcomb's Ex'rs, 11 N. J. Eq. (3 Stockt.) 281, 290.

DISCRETIONARY POWER.

"A power is discretionary when it is not imperative, or, if imperative, when the time or manner or extent of its execution is left to the discretion of the donee. Generally the courts will not compel the execution of discretionary powers, nor review the discretion, when exercised in good faith." Gosson v. Ladd, 77 Ala. 223, 232.

A "discretionary power" involves an alternative power; that is, a power to do or refrain from doing a certain thing. Bennett v. Norton, 32 Atl. 1112, 1116, 171 Pa. 221.

The terms "discretionary power" and "judicial power" are often used interchangeably; but there are many acts requiring the exercise of judgment which may fairly be considered of a judicial nature, and yet do not in any proper sense come within the judicial power as applicable to the courts. The phrase "judicial power" is commonly employed to designate that department of government which it was intended should interpret and administer the laws and decide private disputes between and concerning persons. By the "judicial power" of courts is generally understood the power to hear and determine controversies between adverse parties and questions in litigation. State v. Le Clair, 30 Atl. 7, 9, 86 Me. 522.

DISCRETIONARY TRUST.

A "discretionary trust" is when, by the terms of the trust, no direction is given as to the manner in which the trust fund shall be invested until the time arrives at which it is to be appropriated in satisfaction of the trust. Deaderick v. Cantrell, 18 Tenn. (10 Yerg.) 263, 269, 31 Am. Dec. 576.

DISCRIMINATION.

"Discrimination," as applied to rates charged for freight, consists of the single 3 WDS. & P.—7

fact, without other qualification or exception, of charging a greater rate to the one person than to the other or others. Houston & T. C. Ry. Co. v. Rust, 58 Tex. 98, 107.

"Discrimination," as used in Interstate Commerce Act, § 3, cl. 2, relating to the discrimination between connecting carriers, does not apply to that which arises from a refusal to permit the forwarding company to perform an act which involves the use of the track or terminal facilities of the receiving company. Little Rock & M. R. Co. v. St. Louis, I. M. & S. Ry. Co. (U. S.) 59 Fed. 400, 402.

Rev. St. art. 4574, subd. 2, declares that to receive or transport the tonnage and cars every railroad company failing or refusing of any connecting line without delay or discrimination, as prescribed by the regulations of the railroad commission, shall be deemed guilty of unjust discrimination; and article 4575 imposes a penalty on any company Held, that the guilty of discrimination. terms "delay" and "discrimination" were to be used as convertible, and that "delay" was "discrimination," within the terms of the statute; and hence. delay in a shipment having been admitted, it was proper to direct a verdict for plaintiff. Gulf, C. & S. F. Ry. Co. v. Lone Star Salt Co., 63 S. W. 1025, 1026, 26 Tex. Civ. App. 531.

in

The expression "discrimination freights," as used in Acts 1874-75, c. 240, entitled "An act to prevent discrimination in freight tariffs by railroad companies operating in the state," is a term well understood in the nomenclature of transportation over railroads. "It may have a wider signification, but for the present purpose it implies, to charge shippers of freight as compensa. tion for carrying the same over railroads unequal sums of money for the same quantity of freight for equal distances; more for a shorter than a longer distance, more in proportion to distance for a shorter than a longer distance; more for freight called 'local freights,' than those designated otherwise; more for the former in proportion to distance such freights may be carried than the latter." Hines v. Wilmington & W. R. Co., 95 N. C. 434, 446, 59 Am. Rep. 250.

DISCUSS.

The word "discussed," within the rule that assignments of error which are not discussed will not be considered on appeal, does not include a mere reference by counsel in his brief to the grounds of objection stated in the trial court, and insisting that the objection there made should have been sustained. Baldwin v. Threlkeld, 34 N. E. 851, 853, 8 Ind. App. 312.

The phrase "discussing the propriety of finding a bill of indictment" in Code Civ.

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