J. P. Winter, of Portland (Winter & Ma

lant.

In 1917 the Legislature passed the act set

BENSON, J. (after stating the facts as above). For 50 years the plaintiff and his predecessors in interest have been the owners of a tract of land through which the Luckiamute river flows, and upon which, during all of that time, there has been maintained and operated a gristmill, for which the power is obtained by a dam across the river, using the waters of the stream, by

means of turbine wheels, to drive the ma

chinery of the mill. For 20 years past the stream has been used also by the defendant and others for floating logs and other forest products. In this connection the defendant maintains two dams across the river, one

being about 12 miles above the gristmill, and

the other about 16 miles above the same. The upper one of these dams has not been used by the defendant for about 10 years. The lower one, which is about 30 feet high, is used for the purpose of accumulating water for the storage of logs and for sluicing logs down the river. It has two sluice gates, each about 16 feet wide and 14 feet deep. The supply of water accumulated by this dam is sufficient for the storage of above 10,000,000 feet of logs. During the summer and fall the storage pond is filled with water and the logs deposited therein. During the winter the sluice gates are raised, thereby releasing the stored logs and, with them, the additional water, thereby raising the water in the bed of the stream about 6 feet, which accomplishes the desired floating of the logs. After the gates are thus opened, it requires about 4 hours for the increased flow and its burden of logs to reach the milldam, and about the same length of time to pass the mill. During this passage the increased volume of water in the stream "drowns" the water wheels, and the plaintiff's mill is compelled to suspend operation until the drive is concluded. During the periods when the storage pond at the dam is filling the supply of water is cut off from the gristmill for several hours at a time, at which times the milling operations must be suspended. 1905 the plaintiff began suit to enjoin the

In

to the Public Service Commission for a fran

hold logs, lumber, or other timber products in the Luckiamute river in Polk and Benton

counties within the state of Oregon." Thereafter, on March 29, 1918, the Public Service Commission made an order granting the franchise and formulated rules and regula tions for defendant's conduct thereunder, whereby, inter alia, the defendant is limited to "not more than three floods or splashes daily, at stated times, to be fixed and deter

mined by the applicant," etc. The use of splash dams is also limited to the period be tween the 1st day of November and the 1st day of May of each year. Thereupon plaincontention that the act of 1917 supra is in tiff commenced this suit. It is plaintiff's violation of section 4 of article 11 of the con

tention of Oregon, which reads as follows:

"No person's property shall be taken by any compensation being first made or secured in corporation, under authority of law, without such manner as may be prescribed by law."

Plaintiff's attack upon the validity of the statute is directed to the provisions therein which permit the use of splash dams and the entrance of loggers upon riparian lands for the purposes of reclaiming stranded logs, etc., without providing for the prior assessment and tender of compensation to the owner therefor.

The defendant concedes, of course, that neither the state nor the defendant, as its agent, has the right to take private property, even for a public use, without compensation being first made or secured, but it very earnestly maintains that increasing or decreasing the natural flow of the water in the stream, and going upon the riparian owner's private lands for reclaiming stranded logs, or aiding with their peevys the passage of the logs in the stream, do not constitute a taking of property.

[1] There is no question but that the Luckiamute river is a navigable stream for the purpose of floating timber products, not by virtue of the declaration of that fact in the act of 1917, but by reason of the fact that at certain periods of each year it is practicable to use it, in its natural stage, for such pur

from the city court is final, unless the constitutionality or validity of some statute which is material to the conviction is drawn in question. There being no assignment which assails the constitutionality or validity of any statute, the state insists that the judgment of the district court is final, and hence that this appeal cannot be sustained. The motion is based upon the decision of this court in the case of Salt Lake City v. Lee, 49 Utah, 197, 161 Pac. 926, and the case of State v. Falsetta, in which case the appeal was dismissed upon the ground stated in the motion in this case. In the Falsetta Case, no written opinion was filed. We are of the opinion that the motion to dismiss the appeal should prevail.

[2] The case of Salt Lake City v. Lee, supra, was a prosecution for the violation of a city ordinance of Salt Lake City. The action was commenced in the city court, where the defendant was convicted. He appealed to the district court of Salt Lake county, where he was again convicted, and from which conviction he appealed to this court. The appeal in that case was based upon the identical statute upon which the appeal is based in the case at bar, and on which the appeal in the Falsetta Case was based. See Comp. Laws Utah 1917, § 1717. The section referred to is set forth at length in the case of Salt Lake City v. Lee, supra, and need not be repeated here. After that decision was handed down the Legislature re-enacted the section in the precise language as it was when it was construed in the Lee Case. Laws Utah 1919, c. 34, p. 57. The act relating to city courts of this state was amended by chapter 34, supra, and one of the principal changes made in said amendment was to make the section to which we have referred, giving the right of appeal from city courts of cities of the first

class, and which was construed in the Lee Case, applicable to all the city courts of this state, whether of the first or second class, whereas, before that time, that section had applied only to the courts of cities of the first class, which included Salt Lake City. By re-enacting said section we must assume that the Legislature was satisfied with the construction this court placed upon the statute in the Lee Case and therefore adopted the same and made it applicable to all the city courts of this state. It is needless, therefore, to enlarge upon the reasons why this appeal cannot be sustained.

2.

Costs 172-Attorney's fees not allowable in action for services appealed from justice court.

An action to recover attorney's fees, appealed from a justice of the peace to the district court, is tried as other trials in the district court under Rev. Laws, § 5794, and, since there is no statute authorizing allowance of attorney's fees to the successful plaintiff in such an action, none can be allowed in view of Rev. Laws, § 5376, providing that the compensation of the attorney is governed by agreement, express or implied.

3. Certiorari ☺64(2)—Inquiry limited to jurisdiction of lower court.

view a judgment including attorney's fees beIn original proceedings in certiorari to recause the court had no jurisdiction to allow such fees, the inquiry will not be extended further than to determine whether the lower court had jurisdiction to make the order complained of.

Original proceeding in certiorari by J. B. Dixon against the Second Judicial District Court of the State of Nevada in and for the County of Washoe. Writ granted, and judgment of court modified by striking therefrom the allowance of the attorney's fees. See, also, 183 Pac. 312.

J. R. Dixon, of Reno, for petitioner. Anthony M. Turano, of Reno, for respondent.

brought an action in the justice's court, Reno township, county of Washoe, against J. B. Dixon, to recover the sum of $138.88 for legal services rendered the defendant under a special contract of employment. The justice rendered judgment for the full amount and taxed and included in the judgment the costs allowed by law. J. B. Dixon appealed the case to the district court, where a trial was

(26 N. M. 170)

STATE ex rel. SANDOVAL v. BOARD OF
COM'RS OF GUADALUPE COUN-
TY. (No. 2375.)

(Supreme Court of New Mexico. May 27, 1920.)

(Syllabus by the Court.)

The court, in accordance with its findings of facts and conclusion of law, gave judgment as follows:

"Now, therefore, by reason of the premises, it is ordered, adjudged, and decreed that the plaintiffs herein have and recover from the said defendant the sum of $138.88, and also costs of this action and an attorney's fee of $75."

The relator contends that the trial court was without jurisdiction, power, or authority to include in its judgment the item of $75 as an attorney's fee. That this contention is correct we fully agree.

[1] Costs are wholly the creature of statute, and hence are not allowable in the absence of a statute permitting such allowance. 20 Cyc. 24; 5 Encyc. Pl. & Pr. 110; 7 R. C. L. 792.

[2] The compensation of an attorney and counselor for his services is governed by agreement, express or implied, and is not restrained by law. Section 5376, Rev. Laws. The general rule is that counsel fees are not recoverable by a successful party either in an action at law or in equity, except in the enumerated instances where they are expressly allowed by statute. Mooney v. Newton, 43 Nev., 187 Pac. 721; Miller v. Kehoe, 107 Cal. 340, 40 Pac. 485. And, in the absence of a statute authorizing it in plain terms, no such fee can be taxed on appeal. 11 Cyc. 231; 5 Standard, 1009.

Turning to our statute, we find no warrant therein for the allowance of an attorney's fee on appeal from a justice's court. When an action commenced in said court is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court. Section 5794, Rev. Laws. But there is nothing in this provision or under any other section of the Practice Act that confers upon

the district court power to award costs not expressly authorized by statute.

[3] The inquiry on a writ of certiorari will not be extended further than to determine whether the inferior tribunal has jurisdiction to make the order complained of.

Being of the opinion that the court exceeded its jurisdiction in awarding an attorney's fee, the judgment will be modified according to the views here expressed. As thus modified the same will be and is hereby affirmed.

COLEMAN, C. J., and DUCKER, J., concur.

follow exceptions stricken, the cause will be affirmed.

Where assignments of error are based solely upon matters shown by the bill of exceptions, and the bill of exceptions is stricken, the cause will be affirmed on motion.

Appeal from District Court, Guadalupe County; Leahy, Judge.

Proceeding between State of New Mexico, on the relation of Benito D. Sandoval for himself and others similarly situated, and the Board of County Commissioners of the County of Guadalupe, State of New Mexico, sitting as a canvassing board. Judgment for the former, and the latter appeals. Affirmed.

Patton & Hatch, of Clovis, for appellant. F. Faircloth, of Santa Rosa, for appellee. ROBERTS, J. Heretofore the bill of exceptions in this case was stricken. Appellee moves for an affirmance of the judgment of the trial court, because the assignments of error are all based upon matters shown only by the bill of exceptions. This contention is correct, and the cause will therefore be affirmed; and it is so ordered.

The judge of the district court has no power to certify to the transcript of the testimony, or to sign and settle the bill of exceptions, more than 80 days after the appeal is allowed, unless the time for signing the same has been extended as authorized by the statute.

Appeal from District Court, Guadalupe County; Edwin Mechem, Judge.

Suit by Harry R. Roberson, Treasurer of the Village of Santa Rosa, N. M., against the Citizens' Lumber Company. Judgment for defendant, and plaintiff appeals. Appeal dismissed.

W. T. Brothers, of Santa Rosa, for appel

lant.

F. Faircloth, of Santa Rosa, for appellee. ROBERTS, J. Appellant, as treasurer of the village of Santa Rosa, brought suit against the Citizens' Lumber Company, a corporation doing business in the village, for the recovery of an occupation tax alleged to be due the village. From a judgment in favor of appellee, the town treasurer evidently attempted to prosecute an appeal, and has filed in this court an alleged transcript of record. Appellee moves to strike out the bill of exceptions and practically all the other portions of the record proper because of the failure of the transcript to show that any of the papers, such as the complaint, demurrer, answer and reply, and bill of exceptions, were ever filed in the office of the clerk of the district court. The method of preparing the transcript of record is subject to condemnation. There is nothing to show when any paper was filed in the office of the clerk, and, if such papers were ever filed, it is shown only by the certificate of the clerk to the transcript, in which he certifies that the foregoing papers are on file in his office. Certainly the transcript shows lack of care and attention on the part of both the clerk of the district court and the attorney for the appellant. But, if this were the only defect in the transcript, we would be inclined to hold that the certificate of the clerk showed that the papers certified to were on file in his office. There is a fatal defect, however, in the transcript which requires a dismissal of the appeal.

If an appeal was taken from the judgment, it is shown only by the bill of exceptions, and was taken on April 12, 1919. The bill of exceptions recites:

"Plaintiff in open court excepts to the findings of fact and judgment filed by the court in said cause, and gives notice (in open court) that it will appeal said cause to the Supreme Court of the state of New Mexico, which appeal is granted by the court."

of the appeal should be overlooked, and we should hold that, because such fact did appear in the bill of exceptions, the appeal would be entertained, nevertheless the appeal would be dismissed because no cost bond was filed within 30 days as required by section 15, c. 43, Laws 1917. Cost bond in this case was filed, or apparently was filed, some time after the 27th day of August, 1919, because that is the date upon which it was executed. If an appeal was taken in this case, it was taken on April 12, 1919, and the last day for filing cost bond was on May 12th.

[3] In the case of Hernandez v. Roberts, 24 N. M. 253, 173 Pac. 1034, we held that section

15, supra, had the effect of abating an appeal

or a writ of error where no cost bond is filed

within the time required by the statute. And again the certified transcript of the testimony could not be considered by the court, even if the appeal was not dismissed, because, taking April 12, 1919, as the date of the allowance of the appeal, the certified transcript of the testimony would necessarily have to be signed by the judge within 80 days thereafter, unless the time for signing the same had been extended. No order of extension appears in the record, and the transcript of evidence was certified by the trial judge August 25, 1919. The duty of having a proper transcript prepared, of course, rests upon the appellant.

Because of the failure to file a cost bond within 30 days after the allowance of the appeal, the appeal will be dismissed; and it is so ordered.

PARKER, C. J., and RAYNOLDS, J

concur.

(26 N. M. 174) ROBERSON, Treasurer, v. MOISE BROS. CO. (No. 2427.)

(Supreme Court of New Mexico. May 27, 1920. Rehearing Denied July 1, 1920.)

(Syllabus by the Court.)

Appeal and error 704(2)—Appeal presents no question without findings and conclusions in another cause stipulated to be controlling.

Where parties to a cause in the district court stipulated that the findings and conclusions in another case shall be accepted as the findings and conclusions of law in the case covered by the stipulation, there is no question for consideration on appeal from a judgment in the latter case, in the absence of the findings and conclusions of law in the cause which the stipulation provided should control.

Appeal from District Court, Guadalupe County; Edwin Mechem, Judge.