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Dee v. San Pedro, L. A. & S. L. R. Co., 50 Utah 167

In the note, 53 L. R. A. at page 40, it is said:

"The rule that speculative damages cannot be recovered applies where it is uncertain whether damages were sustained at all from the breach or not, and not to such as are merely uncertain in amount."

In Blagen v. Thompson, 23 Or. 239, 31 Pac. 647, 18 L. R. A. at page 320, the court says:

"The rule that damages which are uncertain or contingent cannot be recovered does not embrace an uncertainty as to the value of the benefit or gain to be derived from the performance of the contract, but an uncertainty or contingency as to whether such gain or benefit would be derived at all."'

In City of Elgin v. Welch, 16 Ill. App., a case cited by appellant, the court, at page 488, says:

"If from the nature of the case the jury could not ascertain with certainty the amount of the plaintiff's damages from the water set back by the concrete sidewalk, in contradistinction from that done by drainage in its natural course from other quarters or by percolation from the ditches of water other than that so set back, it was their province to estimate as best they could from the evidence how much of the whole amount was occasioned by it."

The point in question is not, How did the jury arrive at its conclusion? but, Is its conclusion and verdict within the evidence? As conceded by appellant, the court, by its instruction No. 3, limited the damage to the twenty head of horses solely to their being deprived of food during the last few hours, and did not submit to it in any form the right to award damages on any other account.

Unless it can be shown that the jury considered other causes of damage than that submitted to it by the court, it must be presumed that it followed the court's instruction, and that the damages awarded were exclusively for the injuries limited by the instruction.

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We think the damages awarded for injury to the twenty head of horses were clearly within the evidence, and this court, in such a case, has no power to disturb the findings of the jury.

We find no error in the record. It is therefore ordered that the judgment of the trial court be affirmed; appellant to pay costs.

FRICK, C. J., and MCCARTY, CORFMAN, and GIDEON, JJ., concur.

Original Quo Warranto Proceedings

STATE ex rel. SHIELDS v. BARKER

No. 3106. Decided August 8, 1917. (167 Pac. 262.)

1. STATUTES-SURPLUSAGE-DISREGARD. The preposition "in," in Laws 1917, c. 107, providing "that in all cities of the state having a population of more than 7,500 and less than 50,000 inhabitants may create by ordinance a court," is mere surplusage, and will be disregarded. (Page 191.)

2. CONSTITUTIONAL LAW-COURTS-LEGISLATIVE POWER-DELEGATION OF POWER TO CREATE COURTS. Laws 1917, c. 107, providing "that in all cities of the state having a population of more than 7,500 and less than 50,000 inhabitants may create by ordinance a court to be called,'' etc., is in violation of Const. art. 8, section 1, providing that "the judicial power of the state shall be vested in the Senate sitting as a court of impeachment, in a Supreme Court, in district courts, in justices of the peace, and such other courts inferior to the Supreme Court as may be established by law," in that it delegates the power to create the municipal courts mentioned to the city authorities. (Page 191.)

3. CONSTITUTIONAL LAW-STATUTES-CONSTRUCTION IN FAVOR OF VaLIDITY-DUAL MEANING. In case a change in any act admits of a dual meaning, that meaning must be adopted which upholds the act. (Page 193.)

4. CONSTITUTIONAL LAW-PRESUMPTION OF CONSTITUTIONALITY. Courts cannot declare an act invalid unless it clearly, palpably, and beyond a reasonable doubt contravenes some constitutional provisions. (Page 193.)

5. STATUTES-INVALIDITY IN PART.

Where different sections of the

Compiled Laws have been amended so as to make the amendatory act conform to the new condition contemplated, and the amendment is invalid as to one section, it must also be held invalid as to all. (Page 195.)

6. STATUTES REPEAL-UNCONSTITUTIONAL STATUTE EFFECT. Where an amendatory act repeals a former law upon the same subject and the amendatory act is held invalid on constitutional grounds, the amendatory act is impotent to repeal the whole law. (Page 195.) Original quo warranto proceedings by the State on the relation of Dan B. Shields, against George S. Barker.

Petition discharged without costs.

Stuart P. Dobbs and A. G. Horn for plaintiff.

E. T. Hulaniski and John G. Willis for defendant.

State ex rel. Shields v. Barker, 50 Utah 189

FRICK, C. J.

Hon. Dan B. Shields, as Attorney General of this state, obtained leave of this court to bring this action in quo warranto as an original proceeding. The action is instituted against the defendant George S. Barker as judge of the municipal court of Ogden City to determine his right to discharge the duties as such judge and to test the validity of chapter 107, Laws Utah 1917, p. 377.

The defendant is the duly elected judge of the municipal court of Ogden City, under the provisions of Comp. Laws 1907, section 686x37. The Legislature, at the 1917 session, however, amended section 686x37, supra, together with other sections which we shall refer to later in this opinion. It is contended on the part of the defendant that the amendatory act of 1917 is unconstitutional and void, and that he is lawfully acting under the old law. Upon the other hand, it is insisted that if said act is not void, then the old law under which the defendant was elected and is acting has been repealed, and hence he is unlawfully holding and exercising the functions of a public office.

The defendant entered a voluntary appearance, and, while admitting all the allegations of the complaint, he, nevertheless, insists that chapter 107, Laws Utah 1917, is unconstitutional and void, and for that reason the old law is still in full force and effect. The part of section 686x37 as originally enacted, and which is material here reads as follows:

"In all cities of this state having a population of more than 15,000 and less than 40,000 inhabitants, there is hereby created a court to be called 'the Municipal Court for City, Utah,'" (Italics ours.)

The section then prescribes the qualifications of the judge, when and how elected, and the term of office, etc. That section was amended by chapter 107 aforesaid to read as follows:

"That in all cities of the state having a population of more than seventy-five hundred and less than fifty thousand inhabitants may create by ordinance a court to be called 'the Municipal Court for City, Utah.'" (Italics ours.)

Original Quo Warranto Proceedings

It must be apparent to all that the preposition "in" in the foregoing quotation is mere surplusage, and it therefore will receive no further consideration.

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The same provisions that are contained in the original section are then re-enacted in the amendatory act, except that the first election under the new act is to be held in November, 1917. Our Constitution, article 8, section 1, reads as follows: "The judicial power of the state shall be vested in the Senate sitting as a court of impeachment, in a Supreme Court, in district courts, in justices of the peace, and such other courts inferior to the Supreme Court as may be established by law."

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The principal questions that arise in this controversy are: Does the amendatory act delegate the power to create the municipal courts mentioned therein to the city authorities of the cities enumerated in the act; and, if so, may that power be delegated by the Legislature? When those two propositions are solved, all the other questions are merely incidental.

What is meant by the expression "as may be established by law" in the constitutional provision we have quoted? To our minds the expression admits of but one meaning, and that is, if, in the judgment of the Legislature, it becomes necessary to establish courts in addition to those enumerated in the constitutional provision, then the Legislature may, by law duly passed, create such other courts inferior to the Supreme. Court as in the judgment of that body may be necessary. To be "established by law" means just what it says, namely, by a law duly passed by the lawmaking power of this state. The Supreme Court of Michigan in Fennell v. Common Council, etc. 36 Mich., in referring to what is meant in the Michigan Constitution by the term "law," at page 190, says: "We have heretofore on more than one occasion intimated that the penal laws referred to in the state Constitution were the laws of the state. The term 'law,' as defined by the elementary writers, emanates from the Sovereignty and not from its creatures. The legislative power of the state is vested in the state Legislature, and their enactments are the only instruments that can in any proper sense be called laws,"

State ex rel. Shields v. Barker, 50 Utah 189

The question in that case was whether certain ordinances ought to be considered laws within the purview of the Constitution. The intention of the framers of the constitutional provision we have quoted from our Constitution, in using the term "law," is, however, much clearer and stronger than was the case in the decision just quoted from. Here the framers of the Constitution, who represented the sovereign people, were conferring an express power to create courts, which is the exclusive prerogative of the sovereign. Upon whom, therefore, did they confer the power to create such courts? Manifestly, upon those who were chosen by and who represent the people, namely, the members of the Legislature when duly assembled to enact laws. How were such courts to be created? Most clearly by the only method known to legislative bodies, namely, by the passage of a law in due and proper form. "Inferior courts," therefore, if created at all, must be created by the Legislature by the adoption of a law to that effect.

We need not pause to point out that the powers delegated to the Legislature may not be redelegated by that body, and that in no event may a law be passed except by the Legislature, unless the Constitution provides to the contrary. In this instance the Constitution requires the regular method.

While counsel on both sides have frankly conceded that the amendatory act is probably unconstitutional, yet in view that courts are very reluctant to declare laws unconstitutional, they have suggested that the amendatory act may perhaps be construed so that the courts mentioned in the act are in fact established by a law passed by the Legislature, and that the act merely authorizes the city authorities to adopt the act or to refuse to do so, as they may elect. Several cases are cited in which, under the peculiar wording of the acts there in question, such acts were so construed. Such was the case in State ex. rel Hagestad v. Sullivan, 67 Minn. 379, 69 N. W. 1094; Lytle v. May, 49 Iowa, 224, and in Page v. Millerton, 114 Iowa, 378, 86 N. W. 440. We could subserve no good purpose in pausing here to set forth the acts that were passed on in those cases. It is sufficient to call attention to the fact that we have a case here where the change of language between the

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