Gambar halaman

Revised Statutes of 1898, § 2051, which reads Georgia Banking Co. v. Smith, 128 U. S., as follows: "District judges shall receive where, at page 181, 9 Sup. Ct. 49, 32 L. Ed. mileage at the rate of eight cents per mile 377, Mr. Justice Field, in referring to the for each mile actually and necessarily tray- term "provided," says that it may have no eled in the performance of their official du- greater signification than would be attached ties."

In 1901 this section was amended to the conjunction "but," or "and," and may (Laws 1901, p. 102, c. 103) by changing the serve only "to separate or distinguish the mileage from eight to five cents a mile for different paragraphs or sentences.” travel on railroads, and 15 cents a mile when In Bank V. Manufacturing Co., 96 N. C. traveling by other conveyance. In 1903 (Law's 307, 3 S. E. 363, it is held that the rule that 1903, p. 71, c. 86) an act was passed under the a proviso is a limitation upon or an exceptitle and in terms as follows:

tion to general words is not absolute, but

the meaning of the proviso must be ascer"An act fixing the salaries of judges of the tained by the same rules as the meaning of district court.

other parts of the statute is ascertained. In “Be it enacted by the Legislature of the the case of Wartensleben v. Haithcock, SO State of Utah:

Ala. 508, 1 South. 38, 40, Mr. Justice Clop“Section 1. Salaries of District Judges. ton, speaking for the court, uses the followThat the salaries of the judges of the district ing language: “Generally the appropriate court are hereby fixed at four thousand dol- ofüice of a proviso is to restrain or modify lars per annum, payable quarterly out of the enacting clause, or preceding matter, the state treasury; provided, that no mileage and should be confined to what precedes. or expenses shall be allowed."

unless the intention that it shall apply to

some other matter is apparent. When from At the same session (Laws 1903, p. 64, c.

the context, and a comparison of all the pro74) the salaries of the judges of this court

visions relating to the same subject-matter, it were also increased from the amount named is manifest that the object and intent were in the Constitution by an act the terms and

to give the proviso a scope extending beyond title of which were identical with the act the section, and effect beyond the phrase imlast above set forth, with the sole exception mediately preceding, it will be construed as that Supreme Court judges were named in

restraining or qualifying preceding sections the latter act, while district court judges relating to the subject-matter of the proviso, were named in the former. It will be ob- or as tanta mount to an enactment in a sepserved that no mention of the act of 1901 is

arate section, without regard to its position made in the act of 1903 quoted above except by and connection.” For rules of construction reference to mileage in the proviso, where it of provisos, and the collection of cases upon is provided that "no mileage or expenses shall the subject, see 6 Words & Phrases, p. 5755 be allowed.” The first contention of peti- et seq., under the title “Proviso.” tioner is that that part of the act of 1903 Recurring now to the history of the legcalled a proviso is not such; that a proviso islation upon the subject in question, we logically performs the office of either an ex- find that the framers of the Constitution, in ception to the thing granted, permitted, or the section above quoted, treated salary and prohibited, or is a condition engrafted there- mileage as one subject. We further observe, on. It is further asserted that, since this by having recourse to section 12 of the same so-called proviso is not such, it performs article of the Constitution above referred no office whatever in the act. and therefore to, that the terms "salary" and "compensashould be entirely disregarded. It may be tion" are treated as synonymous and used conceded that naturally and logically the interchangeably. Section 20, above quoted, purpose of a proviso is as claimed by the would thus be construed as if it read: “Unpetitioner, but a departure from this rule, til otherwise provided by law, the compensain a part of an act called a proviso, is n:t tion * *

* shall be three thousand dolalone sufficient to require the so-called pro- lars per annum, and mileage, payable quarviso to be disregarded. It is a well-estab- | terly,” etc. The annual compensation to be lished principle that a proviso, like all other paid to judges was thus composed of two parts of a statute, must be accorded the nat- items, namely, $3,000, and mileage, payable ural meaning and purpose intended, and this quarterly. The same language as to salaintention must be ascertained, first, from the ries and compensation is found in the Caliwhole act; and, second, if the act relates fornia Constitution, and it is held by the Calto a particular matter or thing, by a refer- ifornia Supreme Court that these terms ence to such matter or thing, when neces- mean the same thing. Kirkwood v. Soto, 25 sary, to arrive at the true meaning of the Pac. 488, 87 Cal. 394. The Legislature, also, act or proviso. In this connection it is also by the first act passed (Laws 1896, supra), well to remember that matter set off from treated the inatter as one subject. In the other parts of a section by the term "pro- title of that act, which we have quoted vided" does not always constitute what in above, nothing is said about mileage, and yet legal phraseology is termed and understood mileage is fixed therein; and, so far as we as a proviso. This is well illustrated in / are aware,' no difficulty was encountered by the judges in obtaining mileage. It is only of the Constitution. That, as abstract propnatural, therefore, that when the act of 1903, ositions, they may be two subjects, cannot the act now under consideration, was passed, well be questioned. It is equally apparent the Legislature should treat the matter of that, for legislative purposes, in fixing the salary or compensation and mileage as one compensation of officers, they may quite as subject, precisely as this had theretofore been naturally form but one subject. As we have done. In ir.creasing the salary or compensa- already pointed out, both the framers of tion of the judges from $3,000 to $ 1,15 ki, it

the Constitution and the Legislature comwas manifestly intended to include mileage bined them as one subject, and hence we in the higher sum provided for. As mileage have no right nor legal cause for separating had, however, been fixed at a specific annount, them. It is urged, however, that, if we treat it was cut off by what is termed the proviso them so, then the effect of the act of 1903 in that act. While the so-called proviso, as

is to amend the act of 1901 without setting we have seen, is not logically such, it, for it forth as amended, and without mentionthat reason alone, is not to be left out of ing the former act in the title of the latter. consideration in enforcing that act. The In support of this contention State v. Beddo, meaning of the act is not at all obscure, and 22 Utah, 432, 63 Pac. 96, is cited. We have this is conceded on all hands. But it is con- already had occasion to point out that the tended by the petitioner that the act should

decision in the Beddo Case, if construed as be read as though it ended at the last word broadly as contended for, is too sweeping. preceding the proviso. We cannot assent to

We therefore modified the Beddo Case in the this. We think the act should be read as a

later case of Mill v. Brown (Utah) 88 Pac. whole, including the so-called proviso. Thus

609, where we think the true rule, as supread, it would mean that the salary or com- ported by the overwhelming weight of aupensation of the judges is fixed at $4,000 per thority, is stated. The rule, as there stated, annum, including mileage. Or, to state it

is that the constitutional provision forbidding negatively, as it is stated in the proviso, it

the amendment of statutes without setting would in effect mean that the compensation

forth the section as amended does not apply or salaries of the district judges shall be to new and independent acts which affect $4,000 per annum, and no mileage or ex- existing laws by implication merely. Coolpenses shall be allowed hereafter. While ey's Const. Lim. (7th Ed.) 216; 1 Lewis' Stat. this is a change in phraseology, it is not a Constr. (2d Ed.) 239, 240; King v. Pony Gold change in the sense nor of the meaning of Min. Co., 62 Pac. 783, 24 Mont. 470. the act. It would in law simply amount to It is argued, however, that, if the so-called an "iminaterial alteration." All that is added proviso is given effect, then it repeals the act in the foregoing rendering is clearly implied, of 1901, supra, and that this could not be and what is omitted would not change the done in that form, and therefore the act of sense or meaning in the slightest degree. 1901 in respect to mileage is still in force. Under the Constitution, mileage was not

It must be conceded that the method adopted intended as a permanent allowance, any more by the Legislature in passing the act of 1903 than was the sum of $3,000 as salary named in effecting a repeal of the act of 1901 is therein. It was to continue only "until oth- not the most approved method of accomplisherwise provided by law." The Legislature ing that result. That, however, is not a matcould thus cut off the allowance of mileage ter to be determined here. If the Legislature when it fixed the permanent salary or com- violated no express constitutional provision pensation of the judges, and that is just in accomplishing that result, then the later what was intended to be done by passing the act is lawful, although better methods might act of 1903. This intention is manifest, and have been employed. The question, thereis conceded. It is urged, however, that if it | fore, is: Did the Legislature violate a conbe conceded that this was the intention of the stitutional provision in passing the act of Legislature, and the act be given the meaning | 1903? As that act is directly opposed or • we have given it above, still the matter con- repugnant to the act of 1901 in respect to the tained in the so-called proviso is void for allowance of mileage, the former must give two reasons: (1) That the act would then

way to the latter upon that subject. In this consist of a double subject; or, (2) if this connection, it is argued by the petitioner be found not to be so, that the subject of the that, if it was intended to repeal the foract is not clearly expressed in the title, and mer act by the latter, in view of the dual that the first of the foregoing propositions nature of the subject, the purpose to repeal is prohibited, and the second required, by should have been expressed in the title of the Constitution of this state. In support the act of 1903. It is not contended that in of the first ground, it is argued that salary all cases the purpose to repeal need be stated and inileage are two separate and distinct in the title, but, as we understand petitionsubjects, and hence cannot be joined in one er, he contends that in this case, if it was act. We need not discuss at length the rea- intended to repeal the act of 1901, the insons why salary or compensation and mile- tention should have been manifested in the age may be one subject within the purview | title of the act of 1903, which became the

repealing act. But we have to deal with Statutory Construction, p. 209, says: “These the effect of the act of 1903, not merely with decisions have been referred to in detail beits form. The effect was clearly to repeal cause no general rule on the subject can safethe act of 1901, and such was likewise the ly be formulated. This will be manifest manifest intention of the Legislature. If, when the cases cited in this section are contherefore, salary or compensation and mile- pared with those citel in the following secage constituted one Legislative subject, then tion." Continuing the subject i'urther, Sume mileage was included within the general volume, at pages 216 and 217, the same ausubject of the latter act, and would, by im- thor says:

thor says: "If the words of a title, taken in plication, repeal the former so far as they aus sense or meaning which they will bear, were in conflict. While repeals by implica- are sufficient to cover the provisions of the tion are not favored, they must be given ef- act, the act will be sustained, though the fect when the intention of the lawmaking

of the lawmaking | meaning so given the words may not be the power is clear. Two acts upon the same most obvious or common. The same rules of subject inconsistent with each other cannot construction apply to titles or (als) to other stand, and the former must give way to the parts of a statute, but it is to be remembered latter. Judge v. Spencer, 1.3 Utah, 2+2, 18 that these rules of construction are servants Pac. 1097; Furniture Co. v. l'urniture Co., and not masters, and should not be applied 10 Utah, 31, 30 l'ac. 132; In re Gannett. 11 to defeat the legislative intent." In Johnson

Iņ Utah, 283, 39 Par. 196; Kepley v. People, V. IIarrison, 17 Minn. 575, 50 N. W. 923, 28 12:3 Ill. 370, 377, 13 X. E. 512; Devine r. ('om- Am. St. Rep. 384, Mitchell, J., speaking for the missioners, 84 Ill. 590; Lydiy v. Long Island Supreme Court of Minnesota, says: “The City, 104 X. Y. 218, 10 X. E. 1.3.7: Railroad connection or relationship of several matters, Co. v. Dunlap, 112 Ind. 93. 13 1. E. 103. such as will render them germane to one subThis brings us to the last, and, as we con

ject and to each other. can be of various ceive, the most serious, question in the case.

kinds, as, for example, of means to ends, of Holding, as we do, in view of the past his- different subdivisions of the same subject, or tory of legislation, both constitutional and that all are designed for the same purpose, statutory, that the salary or compensation or that both are designated by the same term. and mileage of the judges constituted but one Neither is it necessary that the connection or legislative subject, is that subject expressed relationship should be logical. It is enough in the title of the act of 1903 as required by that the matters are connected with and rethe Constitution of this state? As may well lated to a single subject in popular significabe expected, upon a subject as intricate as tion. The generality of the title of an act is the one under consideration the authorities no ohjertion, provided only it is sufficient to are not in entire harmony. Some bold to a give notice of the general subject of the prostrict, others to a more liberal, view. It is posel legislation, and of the interests likely conceded by all courts that the title may be to be affected. The title was never intended so framed as to restrict the act itself to mat- to be an index to the law." In the case of ters which, under a proper title, might legiti- Mills v. County Treasurer. 29 Wis. 410, 9 Am. mately have been included therein; that by Rep. 57.5. the rule is also well statel in the fola restricted title matters may be foreign lowing language: “As already observed, the which otherwise night be closely related to subjects of legislation are usually expressed the subject-matter of the act. The authori- with the utmost brevity and conciseness in ties, however, make clear one point, and that these titles, and some consideration must be is that a hard and fast rule governing all given to this circumstance in determining the cases cannot be formulated. This in the na- question. The court is not to set aside or deture of things must be so, since what may be clare an act void because the subject was not treated as one single legislative subject by as fully or as unequiyocally expressed as it both the framers of the Constitution and might otherwise bave been. A liberal rule Legislature of one state may be treated as of interpretation must prevail in this respect, two distinct and separate subjects in another not only for the reason just stated, but bestate. By saying this we do not mean that cause the proposition is to strike down and the Legislature may arbitrarily make one defeat the act of the Legislature, which can subject out of that which naturally and log- never be done on slight or untenable grounds. ically constitutes two; but what we mean is It is a truth which has been often asserted that the Legislature may include a per diem, and often acted upon by the courts that to or other stipend, with mileage as a fixed com- justify the annulling of a statute by judicial pensation, and when these are combined as sentence the violation of the constitution compensation, then this compensation con- must be clear and unmistakable." The rule stitutes the legislative subject, and not the is also well stated in a case entitled Matter stipend and mileage separately considered. of Application of New York City, 99 N. Y. This, we think, is a fair deduction from the 577, ?X. E. 612. The same thought is inauthorities upon this subject.

ferreil, if not expressed, by this court, in the After giving a large number of concrete in- following uses: Wystrom v. ('lark, 27 titali, stances, the author, in 1 Lewis' Sutherland's 156, 75 Pac. 378; State 1. Lewis, 26 Utah, 120, 72 Pac. 388; State v. Tingey, 24 Utah, 1903 did no more than fix the salary or 225, 67 Pac. 33. It is not contended that the compensation at a fixed amount to which Utah cases cited above are decisive of the nothing should be added. precise point under consideration, but they The petitioner cites numerous authorities, do state the rule applicable in passing upon many of which are clearly distinguishable constitutional objections to legislative acts. from the case at bar, while others as clearly The followirg cases are likewise instructive

support his contentions, if we eliminate the upon the point involved: In re Pinkney, 47 history of prior legislation, and treat the Kan, 89, 27 Pac. 179; Gibbs v. Northampton

act of 1903 as an entirely independent and Township, 52 N. J. Law, 496, 19 Atl. 975;

abstract proposition. Space forbids us from Winters v. City of Duluth, 82 Minn. 127, 84

reviewing and pointing out the reasons why N. W. 788.

we feel constrained to declare a result difBy reference to 7 Words & Phrases, p. ferent from those reached in some of the 6287 et seq., under the title "Salary,” it will cases cited by him. We desire, however, to be seen that the term "salary" may be and notice one case cited and upon which petiis variously applied. It is usually used as tioner seems strongly to rely, namely, the designating recompense, reward, or compen- case of Howard v. Schneider, 62 Pac. 435, sation for services rendered. Mileage may be- 10 Kan. App. 137, decided by the Kansas come a part of compensation. If the mileage Court of Appeals. Petitioner, evidently by allowance is limited to the amount actually inadvertence, has overlooked the fact that expended in traveling, then it cannot, of that case was disapproved in a later case by course, add anything to the income of the the Supreme Court of Kansas, reported unrecipient of the salary. But, if the mileage der the title of Stewart v. Thomas, 68 Pac. is not so limited, as where a certain amount 70, 64 Kan. 511. The opinion in the later is allowed for each mile traveled and this case clearly illustrates that the history of amount exceeds the actual mileage charged, legislation of the state, or the law upon any then the balance above such charge becomes subject, may affect the meaning or scope that a part of the official income or compensation is to be given to titles as well as such matthe same as though it were a part of the ters may affect the acts themselves. The sa la ry. As a concrete proposition, it is not later case from Kansas will be found in encontrolling that such accretions to official tire harmony with the spirit we invoke in compensation are not designated as salary. this case upon this subject. The case at It is not unusual, as is generally known, to

bar is a border-line case upon this subject, allow large mileage to eke out the compen- and as such is not free from doubt. Much sation of officers. It can make no difference can be said in favor of petitioner's contenin principle, however, whether the mileage tions, and, were the act in question an indeallowance be much or little above the actual pendent act, and freed from the complicacharge, so long as it is not limited to the tions arising out of the provisions of previ. actual cost of mileage, but is fixed by a ous constitutional and statutory enactments, round sum per mile. In such event the por- we might feel inclined to arrive at a different tion of unexpended mileage may be added to result. the compensation, and hence may be intend- In conclusion, in order to avoid a misconed as a part of the compensation. It is as- ception of the scope of this decision, we reserted that to fix the salaries of district mark that the Legislature may not disrejudges was the only matter referred to in gard the constitutional provision requiring the act of 1903; that mileage was not men- that no act shall contain "more than one subtioned, and hence could not be affected by ject, which shall be clearly expressed in its the act. In a broad sense nothing was done title," by simply making the legislative inby the act of 1903 except to fix the salary tention clear in the act itself. But when a or compensation of the judges. Up to the reasonable doubt exists, as in this case, uptime of the passage of that act the judges on the question whether the subject of the received $3,000 per annum with a stated act is expressed in the title, then such doubt amount for each mile traveled (regardless of will be resolved in favor of the act. While the actual cost imposed in traveling) as com- the subject of the act of 1903 is not as pensation. In the act of 1903 their compen- clearly expressed as it might have been done, sation was fixed at $4,000 per annum. Be

yet we thing that the manifest intent of the for the act was passed the compensation of Legislature as expressed in the act is suffithe judges may have been in excess of $3,000 ciently indicated in the title, and that the per annum, depending entirely on whether title is not misleading, and hence sufficient there was any difference between the mileage to bring it within the constitutional proviallowed to and the amount expended by them sion. for mileage. This mileage was thus not en- As the act is not assailed upon any other tirely foreign to the subject of salary or com- ground, we are constrained to hold that the pensation, and in one sense, in view of the act, by implication, repealed the act of 1901 previous legislation respecting the allow- allowing mileage, and hence the demurrer to ance and app ication of mileage, the act of the petition should be and accordingly is sustained. In view that the petition cannot be ceeds to his own use, states a cause of action for amended so as to allow the relief prayed for,

an accounting. it is ordered that the action be, and the 7. APPEAL-REVIEW-PRESUMPTIONS. same is hereby, dismissed, with costs.

In the absence of a showing to the contrary, it must be presumed, on appeal from an

order requiring an attorney to account to his MCCARTY, C. J., and STRAUP, J., con

client for notes and money's received, that the

order was properly made. cur.

[Ed. Xote. For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $ 3073.] (32 Utah, 489)


That an attorney failed to comply with an EVERETT V. JONES.

order of court requiring him to account to his

client did not warrant the court in treating such (Supreme Court of Utah. July 16, 1907.)

failure as a confession of the plaintiil's demand 1. APPEAL-DECISIONS APPEALABLE.

and entering a judgment against him for such

an amount, in the face of his general denial An appeal lies only from a judgment, and

and of his counterclaims. not from an order denying or granting a new trial.

9. JUDGES-CHANGE-AUTHORITY OF SUBSTI[Ed. Note.-For cases in point, see Cent. Dig.


Where, after the taking of evidence in an vol. 2, Appeal and Error, $ 740.]

action by a client against an attorney for an 2. JUDGMEXT-WHEN BECOMES FINAL.

accounting, and after the judge had found that A judgment is not final while a motion for plaintiff was entitled to an accounting and ora new trial made within the time allotted by

dered defendant to account on a future day, and, law is pending and undisposed of.

upon defendant's objection to the judge further

proceeding in the cause, another judge was au[Ed. Note.For cases in point, see Cent. Dig. thorized to further try the case, the substitute vol. 2, Appeal and Error, $$ 329, 330.)

judge could make findings on the whole case. 3. APPEAL-TIME FOR TAKING.

[Ed. Note.--For cases in point, see Cent. Dig. An appeal from a judgment may be taken vol. 29, Judges, $ 158.] within six months from the overruling of a motion for a new trial.


A court must find upon all the material is(Ed. Xote.--For cases in point, see Cent. Dig. sues, including those raised by counterclaims, revol. 2, Appeal and Error, $$ 1879-1882.)

gardless of the insuficiency of evidence to sup

port them, or though no evidence in their sup4. New TRIAL – NOTICE OF INTENTION TO

port is introduced. MOVE-LIMITATION. Under Rev. St. 1898, § 3294, providing that

[Ed. Note.-For cases in point, see Cent. Dig. one intending to move for a new trial must,

vol. 46, Trial. § 914.] within five days after the verdict, or after notice 11. JUDGMENT-NECESSITY FOR FINDINGS ON of a decision if the cause were tried without a MATERIAL ISSUES. jury, serve and file a notice of such intention, and section 3330, providing that all notices

No judgment can properly be rendered until must be in writing, one intending to move has

there are findings upon all of the material isa right to wait for a notice in writing of the de

sues.t cision from the adverse party before giving no

[Ed. Note.-For cases in point, see Cent. Dig. tice of intention to move for a new trial, though

vol. 30, Judgment, $ 355.] the movant participated in the final proceedings, objecting to the findings and the signing of a Appeal from District Court, Box Elder decree.*

County; John E. Booth, Judge. {Ed. Note.-For cases in point, see Cent. Dig. Action by M. N. Everett against R. H. vol. 37, New Trial, $ 280.)

Jones. From a judgment for plaintiff, de5. SAME-WAIVER.

fendant appeals. Judgment vacated, and Under Rer. St. 1898, 8 3291, providing that cause remanded. one intending to move for a new trial must, within five days after the verdict, or after no- T. D. Johnson, O. W. Powers, and R. H. tice of the decision if the action were tried without a jury, serve and file a notice of such

Jones, for appellant. J. D. Call, for reintention, the written notice of a decision may

spondent. be waived; but, to constitute a waiver, the party must do some affirmative act pointed out in the statute as not necessary to be done until

STRAUP, J. This is an action brought by after the notice. i

plaintiff against defendant for an accounting. [Ed. Note.-For cases in point, see Cent. Dig. It is alleged in the complaint that the plainvol. 37, New Trial, $ 280.]

tiff delivered to the defendant, an attorney 6. ATTORNEY AND CLIENT-ACCOUNTING-Cox

at law, moneys and notes to the amount and PLAINT.

value of $3,042.80, to be by him loaned and A complaint alleging that plaintiff delivered collected for the use and benefit of the plainto defendant, an attorney at law, moneys and tiff, and that the defendant had neglected notes valued at $3,042.80, to be loaned and col

and refused to account to her, but had conlected for the use and benefit of plaintiff, and defendant neglected and refused to account to

verted the moneys and proceeds to his own plaintiff, but had converted the moneys and pro- use. Defendant demurred to the complaint

for want of facts, and on the further ground *Mercantile Co. v. Glen, 21 Pac. 500, 6 Utah, 139; Burlock v. Shupe, 17 Pac. 19, 5 Utah, 429.

Dillon Imp. Co. V. Cleaveland (Utah) 88 Pac. fBurlock v. Shupe, 17 Pac, 19, 5 Utah, 429,


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