MOUNT, J. Mandamus to compel the trial | proval of the bond and the discharge of recourt to approve a bail bond in a criminal lator under the same did not affect the or case pending appeal. The relator was charged with the crime of murder in the first degree. He was tried and found guilty of manslaughter, and he appealed from the judgment pronounced thereon. The trial court thereupon fixed his bail in the sum of $8,000 pending the appeal. A bond satisfactory to the trial judge was furnished, but, before the judge approved the bond, the state served and filed a notice of appeal from the order allowing bail. The court thereupon refused to approve the bond, or to proceed further. Relator thereupon applied to this court for a writ, to compel the trial judge to approve a bail bond and permit the relator to be released from custody. The statute provides that: "In all criminal actions, except capital cases in which the proof of guilt is clear or the presumption great, upon an appeal being taken from a judgment of conviction, the court in which the judgment was rendered, or a judge thereof must, by an order entered on the journal or filed with the clerk, fix and determine the amount of bail to be required of the appellant." Rem. & Bal. Code, § 1747. See, also, Rem. & Bal. Code, § 2310; State Const. art. 1, § 20. [1, 2] It is plain that the relator was entitled to bail because, having been acquitted of the charge of murder in the first degree, he could thereafter be tried for no greater offense than manslaughter (State v. Murphy, 13 Wash. 229, 43 Pac. 44), which is a bailable offense. der appealed from, and were therefore within the jurisdiction of the court, notwithstanding the appeal. Relator argues that the order fixing bail in this case is not appealable by the state. We need not decide that question now, because, if we assume that the order is appealable, we are still satisfied that the notice of appeal did not operate as a stay and that the trial court did not lose jurisdiction to approve the bond and release the relator from custody pending the appeal. The peremptory writ is therefore ordered as prayed. DUNBAR, C. J., and GOSE, PARKER, and MORRIS, JJ., concur. (64 Wash. 99) STATE v. HALL. (Supreme Court of Washington. July 11, 1911.) 1. CRIMINAL LAW (§ 260*)-CONVICTION IN JUSTICE'S COURT FAILURE TO PROSECUTE APPEAL TO SUPERIOR Court. The failure of accused appealing from a conviction in justice's court to bring the case to trial in the superior court for nearly a year, but without intending to abandon the appeal or of the judgment for want of diligence. to delay the trial, does not justify an affirmance [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 260.*] 2. HIGHWAYS (§ 186*)-USE OF HIGHWAYSSTATUTORY OFFENSES-INFORMATION. Under Rem. & Bal. Code, § 2531, prohibiting the operation of an automobile at any place at a rate in excess of one mile in two and onehalf minutes, or on any public road at any unsafe speed, having regard to the safety of others. nated town approached with his automobile a an information alleging that accused at a desigvehicle drawn by horses at a speed in excess of 20 miles an hour, that the horses became frightened, and the driver of the vehicle signaled to accused to reduce the speed, but accused continued at such speed, does not charge an offense, since it does not charge accused with driving an automobile at an unlawful speed on any public road, for the place where the driving was done may have been in a private inclosure. [Ed. Note. For other cases, see Highways, Dec. Dig. § 186.*] 3. CRIMINAL LAW (§ 211*)-PLEADINGS IN JUSTICE'S COURT-CONSTRUCTION. [3] The trial judge was apparently of the opinion that, when the order was made fixing bail and the state appealed therefrom, the court was then without jurisdiction to proceed further. It is apparent, however, that the court retained jurisdiction to make the order for bail effective for the statute provides, at section 1731, Rem. & Bal. Code, that "the superior court shall, nevertheless, retain jurisdiction for the purpose of all proceedings by this act provided to be had in such court, and for the purpose of settlement and certifying the bills of exceptions and statements of facts, and for all purposes in so far as the cause is not affected by the appeal." In the absence of a statute providing for a stay, the mere notice of appeal does not operate to stay the proceedings. The respondent does not claim that there is a statute providing for such stay. No stay, therefore, exists. The Constitution and the statute provide for bail in cases like this. Relator is entitled thereto as of right. Surely the relator may not be deprived of his liberty, when he has complied with the statute and offered the bond required by an order of the court, simply by the prosecuting attorney giving a notice of appeal from such order. To hold that he may would be to defeat the plain mandate of the statute. We are satisfied that the apFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-38 Where a complaint before a justice shows things charged, and yet be guiltless, the comon its face that accused may have done the plaint is fatally bad. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 420-430; Dec. Dig. § 211.*] 4. CRIMINAL LAW (§ 260*)-CONVICTION IN JUSTICE'S COURT APPEAL TO SUPERIOR COURT-QUASHING INFORMATION. Where the information in justice's court does not state a crime, the superior court on appeal from a conviction must quash it. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 260.*] Department 1. Appeal from Superior Court, Snohomish County; W. W. Black, Judge. L. C. Hall was convicted in justice's court; | hicle drawn by horses, in which a person was and, from a judgment of dismissal rendered riding, and the said L. C. Hall approached by the superior court, the State appeals. at a speed in excess of 20 miles an hour, and Affirmed. the horses attached to said vehicle became Ralph C. Bell and O. T. Webb, for the frightened, and the occupant of said vehicle State. signaled to said L. C. Hall to reduce the speed of said automobile, and the said L. C. Hall unlawfully refused to obey said signal, of said automobile, but continued at the and failed and refused to reduce the speed aforesaid speed to within ten feet of said Vehicle, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Washington." The statute under which the information was evidently drawn is as follows: "Every person who shall drive or oper DUNBAR, C. J. The respondent was convicted in the justice court for the precinct of Marysville, county of Snohomish, state of Washington, on August 16, 1909, and fined in the sum of $20 and costs. From this conviction he took his appeal to the superior court of the state of Washington in and for the county of Snohomish. No further proceed ings were had in the cause until the 23d day of July, 1910, when a motion was filed by the appellant in the superior court for the af-ate, and every owner, lessee or other perfirmance by that court of the judgment of son in charge thereof who shall permit to be guilty entered in the justice court, and the awarding of sentence against the respondent for the offense in manner as if he had been convicted thereof in the superior court, on the ground that respondent had failed to diligently prosecute his appeal. Respondent filed in his behalf an affidavit setting up the reasons why the appeal had not been sooner prosecuted, and this affidavit was replied to on behalf of appellant. The court denied the motion, and then proceeded to determine that the complaint against the respondent did not state facts sufficient to constitute a crime, a demurrer upon such ground having been interposed in the justice court. Judgment was thereafter entered, dismissing the cause, and this appeal has been taken from the order of the superior court denying the motion to award sentence against respondent and sustaining the demurrer of respondent, and from the judgment of dismissal. [1] We do not tlrink that the court erred in denying appellant's motion to affirm the judgment of guilty entered in the justice court for the reason that respondent had failed to diligently prosecute his appeal; for conceding, without deciding, that it was the respondent's duty, any more than it was the duty of the state, to bring the cause to a hearing, the affidavit filed satisfies us that there was no intention whatever on the part of the respondent to abandon the appeal or to hinder or delay the trial of the cause. [2] The learned attorney for the state insists that, while the information is crude, yet it sufficiently states a crime under the laws. The information, after the entitling of the cause, is as follows: "Donald McRae, being first duly sworn on oath, says that at Marysville, in said Snohomish county, state of Washington, on the 4th day of August, A. D. 1909, L. C. Hall did commit a misdemeanor as follows: Then and there being the said L. C. Hall, while having charge and control of an automobile, did approach a ve driven or operated, any automobile or motor vehicle * 4. Upon any public road, highway, park or park way, street or avenue, at any unsafe or unreasonable rate of speed, having proper regard to the safety of any other person or persons using the same, shall be guilty of a misdemeanor." Rem. & Bal. Code, § 2531. It will be observed that the automobile at an unlawful speed upon the respondent is not charged with driving any public road, highway, park, or parkway, street, or avenue, but the information charges him only with so driving in Marysville, Subdivision 3, § 2531, provides that such perin Snohomish county, state of Washington. son shall not drive his automobile at any rate of speed faster than one mile in 21⁄2 minother place than the place mentioned at a utes. This would be at the rate of 24 miles an hour. So that there is a place where the automobile could be driven at a faster rate of speed than the rate mentioned in the information, without violating the law. The been in a private inclosure, and, if so, the place where this driving was done may have rate of 20 miles an hour would have been a lawful rate. [3] It is true that pleadings in a justice court should be very liberally construed. At the same time there must be a crime charg ed, and, if the information shows on its face that the defendant might have done the thing or things charged in the information and yet have been guiltless of a crime, he ought not to be put upon his trial. that the court had no authority to pass upon [4] It is also contended by the appellant the demurrer, the demurrer having been presented in the justice court. But, if in the opinion of the court the information did not state a crime or misdemeanor, it was his duty to quash it. The judgment will be affirmed. MOUNT, PARKER, FULLERTON, and GOSE, JJ., concur. (34 Nev. 94) STATE ex rel. HOWELL v. WILDES. (No. 1,972.) TERFERENCE WITH JUDICIARY. heretofore appointed under the laws of this state; and said Bank Examiner shall thereupon proceed to administer, liquidate and set(Supreme Court of Nevada. June 26, 1911.) tle the same as in this act provided, in so 1. CONSTITUTIONAL LAW (§ 55*)-LEGISLATIVE far as is necessary to complete the settle POWER-RIGHTS OF BANK EXAMINER-IN- ment and liquidation of the assets, business and affairs of such banks. And it is hereby of banks and providing that the State Bank Ex-made the duty of all such receivers, their aminer shall take possession of all banks and agents, employees and representatives to turn their property and accounts in the custody of over and deliver to said Bank Examiner, or any receiver previously appointed, and shall ad- deputy examiner appointed by him, all real minister and settle the same, and all such receivers shall be required to turn over the same and personal property, accounts, moneys, evito the Bank Examiner, or a deputy appointed dences of indebtedness and securities therefor, by him, constituted an interference with the books and things of every description belongduties and prerogatives of the court appointing such receivers and was unconstitutional as vio-ing to such bank or banks, or relating to their lating Const. art. 3. § 1, providing that no per- business, together with the possession and sons charged with the exercise of powers prop-custody thereof: Provided, that the Bank erly belonging to one department shall exercise Examiner shall permit any such receiver to any functions appertaining to either of the others, except as expressly directed or permitted. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 60; Dec. Dig. § 55.*] 2. CONSTITUTIONAL LAW (§ 55*)-LEGISLATIVE POWER-ENCROACHMENT ON JUDICIARY. The appointment of a receiver for a bank in involuntary liquidation proceedings, and his investiture of the bank's property for the purpose of liquidation under the orders of the court, constituted a part of the judgment ordering the bank into involuntary liquidation. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 60; Dec. Dig. § 55.*] Mandamus by the State, on the relation of Eugene Howell, as State Bank Examiner, against Frank L. Wildes, as receiver of the State Bank & Trust Company. Application dismissed. Cleveland H. Baker, Atty. Gen., and James R. Judge, Deputy Atty., for petitioner. Mack, Green, Brown & Heer, for respondent. Van Dyke, Smith & Danforth, Cheney, Downer, Price & Hawkins, and W. A. Massey, amici curiæ. inspect such books, papers and other memoranda, or the property and things so turned over and delivered to said Bank Examiner, for the purpose of preparing his final acall receivers of banks now holding office uncounts; and it is hereby made the duty of der appointment by any court in this state, within sixty days after the approval of this act, to file with the clerks of the respective ments of said receivers issued, a full and courts from which the respective appointtheir acts, receipts and disbursements, with complete statement and accounting of all proper vouchers, of their respective receiverships, and receive their discharges from such courts when such final accounts are duly accepted and approved by said courts. And such receivers shall also deliver to the Bank Examiner a true and correct copy of said statement and accounting so made to the court, together with a full and complete statement of all debtors and creditors of such respective banks and receiverships, with the amount due from or to each of such debtors NORCROSS, J. This is an original pro- or creditors; and the terms and conditions ceeding in mandamus brought by the state, of such indebtedness: Provided, also, that no upon the relation of the State Bank Exam-suit, action or proceeding which may have iner, to compel the respondent, Frank L. Wildes, as receiver of the State Bank & Trust Company, to deliver and surrender to the relator, as State Bank Examiner, the custody, possession, and control of the State Bank & Trust Company Bank, and all other property and accourts of whatever kind and nature which he now has in his custody, possession, or control as such receiver of said the State Bank & Trust Company. The application for the writ is based upon the provisions of section 79 of an act entitled "An act to regulate banking and other matters relating thereto," approved March 22, 1911 (Stats. 1911, p. 291). which section reads: [1] "Sec. 79. Within ten days after the approval of this act, the Bank Examiner shall take possession of all banks and their property and accounts of whatsoever kind and nature which may now be in the custody or possession or control of any receiver or receivers been begun by such receiver or receivers, or in which he or they is or are a party or parties, and no right of action which may have accrued to him or them, shall be avoided or rendered ineffectual by anything herein contained, or done pursuant hereto; but such suits, actions, proceedings and rights of action may be carried on and continued and shall inure to such Bank Examiner for the use and benefit of such respective trusts, as fully and effectually as if such receiver or receivers had continued as such; and the Bank Examiner shall not dismiss any such action, suit or other proceeding except on the order and approval of the state banking board. And the said Bank Examiner shall be substituted for any such receiver or receivers in any such action or proceeding now pending in which any such receiver or receivers is or are a party or parties. All attorneys, agents, clerks and assistants now in For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the employ or acting for and in behalf of any it shall be the duty of such Examiner to imsuch receiver or receivers shall continue to mediately report the condition of such coract in the same capacity, and on the same poration to the bank commissioners; and if terms and conditions, until such time as the the bank commissioners, either from the reBank Examiner and state banking board port of the Bank Examiner, or from their shall otherwise provide. All contracts and own knowledge, decide that it is unsafe for agreements heretofore entered into by any any such corporation to continue to transact such receiver duly authorized by the courts business, they shall authorize the Bank Exby which such receiver was appointed, shall aminer to take such control of such corporabe equally binding on said Bank Examiner tion, and of the property and effects thereof, for the use and benefit of such trust, and the as may be by them deemed necessary to preBank Examiner shall be deemed to be sub- vent waste, or diversion of the assets, and to stituted for such receiver in all such con- hold possession of the same until the order of tracts and agreements. For the purpose of court hereinafter mentioned, and it is hereby carrying out the provisions of this section, made the duty of the Attorney General, upon and subject to the approval of the state bank-being notified by the bank commissioners, to ing board, the Bank Examiner shall appoint | immediately commence suit in the proper such special deputies, clerks, assistants and court against such corporation and the direcattorneys as shall be deemed necessary, and tors and trustees thereof to enjoin and profix their compensation, same to be paid out hibit them from the transaction of any furof the funds and assets of the said respec- ther business. If upon the hearing of the tive trusts for the settlement and liquida- case the court shall find that such corporation of which such special deputies, clerks, tion is solvent, and may safely continue busiassistants and attorneys are appointed or em- ness, it may dismiss the action, and order ployed." that the corporation be restored to the possession of the property. But if the court shall find that it is unsafe for such corporation to continue business, or that such corporation is insolvent, said court shall by its decree order such corporation into involuntary liquidation, and shall issue the injunction applied for, and shall cause the same to be served according to law, and shall order the Examiner to surrender the property of the corporation in his possession to a receiver appointed by the court for the purpose of liquidation in such proceeding, under the orders and directions of the court. The respondent, Frank L. Wildes, as receiver of the said State Bank & Trust Company, came into possession of the said bank, and all other property thereof, under and by virtue of a judgment and decree of the First judicial district court of the state of Nevada, in and for Ormsby county, made on the 18th day of May, 1908, in an action brought by the state of Nevada, on the relation of the board of state bank commissioners, against the State Bank & Trust Company and the directors thereof, wherein it was adjudged that it was unsafe for the said the State Bank & Trust Company to continue business, and ordered said company into involuntary liquidation, enjoined the directors of said company from transacting any of its business affairs, appointing the respondent receiver of said company, and directing the then Bank Examiner to deliver and surrender to said receiver all the property and effects of said defendant corporation. The judgment and decree ordering the State Bank & Trust Company into involuntary liquidation and appointing the respondent herein as receiver was made under and by virtue of the provisions of section 10 of an act entitled "An act creating a board of bank commissioners, defining its duties, providing for the appointment of a Bank Examiner, prescribing his duties, fixing his compensation, providing penalties for the violation of the provisions of this act, and other matters relating thereto." Approved March 26, 1907 (St. 1907, c. 119), which section, in part, reads as follows: "Sec. 10. If the Bank Examiner, on the examination of the affairs of any corporation mentioned in section 4 of this act, shall find that any such corporation * is conducting business in an unsafe or if it shall appear to said Examiner that it is unsafe for any such manner * * " That the decree ordering the State Bank & Trust Company into involuntary liquidation and appointing a receiver thereof was a final judgment is conceded in this proceeding. It was treated as a final judgment by the parties to the proceeding, an appeal having been taken to this court by the defendants in the action, upon the theory that the same was a final judgment, and the judgment affirmed. State v. State Bank & Trust Co., 31 Nev. 456, 103 Pac. 407, 105 Pac. 567. See, also, Chicago Life Ins. Co. v. Auditor, 100 Ill. 478. The respondent, in his answer, and counsel for respondent, in their brief, have attacked the banking act of 1911 as violative of the Constitution, particularly section 79 thereof. It is unnecessary to consider many of the constitutional questions raised, and it would not be proper to do so, in the event any of the objections made to section 79 can be well taken. We think it unnecessary to go further than to consider the objection that the Legislature is without power to modify or annul the final judgment of a court. By section 1 of article 6 of the Constitution, the judicial power of the state is vested in a supreme court, district courts, justices of the peace, and such other courts, pal purposes only in incorporated cities and | 793, 18 Atl. 308, 4 L. R. A. 499; Searcy v. towns, and by section 1 of article 3 it is pro- Turnpike Co., 79 Ind. 274; Taylor v. Place, vided: "The powers of the government of the state of Nevada shall be divided into three separate departments-the legislative, the executive and the judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted." By the judgment entered in the case of the State v. State Bank & Trust Company et al., all of the property and interests of the bank were placed in the hands of the receiver, for the purpose of liquidation in such proceeding, under the orders and directions of the court. Section 10, Stats. 1907, p. 232. 4 R. I. 324; People v. Supervisors, 26 Mich. 22; U. S. v. Peters, Judge, 5 Cranch, 115, 3 L. Ed. 53; McCullough v. Virginia, 172 U. S. 102, 19 Sup. Ct. 134, 43 L. Ed. 382; Memphis v. U. S., 97 U. S. 293, 24 L. Ed. 920. In McCullough v. Virginia, supra, the court, by Brewer, J., said: "But there are more substantial reasons than this for not entering this motion. At the time the judgment was entered in the circuit court of the city of Norfolk, the act of 1882 was in force, and the judgment was rightfully entered under the authority of that act. The writ of error to the Court of Appeals of the state brought the validity of the judgment into review, and the question presented to that court was whether at the time it was entered it was lawful or not. If lawful, the [2] The appointment of the receiver and his | plaintiff therein had a vested right which no investiture of the property of the bank, for other legislation could disturb. It is not the purpose of liquidation, under the orders within the power of the Legislature to take and direction of the court, became a part of away rights which have been once vested by the judgment. It is well settled that an at- a judgment. Legislation may act on all subtempt upon the part of the Legislature to sequent proceedings, may abate actions pendvacate or modify the conditions of an exist- ing, but, when those actions have passed ing judgment is beyond its constitutional into judgment, the power of the Legislature powers, and that an enactment attempting to disturb the rights created thereby ceassuch an exercise of power is unconstitution-es." al and void. Ex parte Darling, 16 Nev. 98, 40 Am. Rep. 495; Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. 591; Skinner v. Holt, 9 S. D. 427, 69 N. W. 595, 62 Am. St. Rep. 878; Butler v. Supervisors, 26 Mich. 22; Gaines v. Executors, 9 B. Mon. (Ky.) 295, 48 Am. Dec. 425; Roche v. Waters, 72 Md. 264, 19 Atl. 535, 7 L. R. A. 533; Lincoln v. Alexander, 52 Cal. 482, 28 Am. Rep. 639; Merrill v. Sherburne, 1 N. H. 199, 8 Am. Dec. 52: In re Chetwood, 165 U. S. 443, 460, 17 Sup. Ct. 385, 41 L. Ed. 782. In Martin v. South Salem Land Co., supra, the court said: "The Legislature, within certain limitations, may alter or control remedies by which litigants ascertain their rights in the courts; but, when the litigation has proceeded to judgment and decree upon the merits of the controversy, it has passed beyond its power." The judgment ordering the State Bank & Trust Company into involuntary liquidation, and ordering its property and interests out of the control and management of the board of directors and into the hands of the receiver. vested in the receiver the control and disposition of the property, subject to the orders of the court, for the benefit of the creditors and stockholders of the company. The right to have the property of the corporation administered in accordance with the provisions of the judgment and the statute upon which it was based is a right of property which the Legislature is without power to disturb. Gilman v. Tucker, 128 N. Y. 190, 28 N. E. 1040, 13 L. R. A. 304, 26 Am. St. Rep. 464; Bates v. Kimball, 2 D. Chip. (Vt.) 77; Strafford v. Sharon, 61 Vt. 126, 17 Atl. In Gilman v. Tucker, supra, Ruger, C. J., delivering the opinion of the court, said: "We must bear in mind that a judgment has been rendered, and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudication the fruits of the judgment become rights of property. These rights became vested by the action of the court, and were thereby placed beyond the reach of legislative power to affect." The receiver is "the officer or agent of the court from which he derives his appointment; his possession is exclusively the possession of the court; the property being regarded as in the custody of the law, in gremio legis, for the benefit of whoever may be ultimately determined to be entitled thereto. * * And, since the possession of a receiver is that of the court, it is held that a change in the receiver does not have the effect of interrupting that possession." High on Receivers (4th Ed.) § 134. It is manifest, however, from a reading of section 79, supra, of the act of 1911, that something more than a mere change of receivers is sought to be accomplished thereby, for the property of the bank would be taken out of the direc tion and control of the court entirely, and it would cease to be in the custody of the law. The change would be from the custody of the court to the custody of an executive officer. The contention that the Legislature has merely affected the remedy for carrying out the judgment of the court and leaves the judgment of the court unaffected is without merit. The section in question requires the |