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Judge pro tem. by the bar. It is not selfoperative. It gives no rights to litigants, except through legislative action. such action there would be no warrant for the election of a judge pro tem., and the repeal of the law would take away any authority for such an election. How then, can It guaranty to a suitor the right to a trial before a judge pro tem.? These consider

ations have led us to the conclusion that the district judge erred in refusing to change the place of trial. We see the hardship which may result in some cases, and think the rule ought to be, as the district judge held it to be, that the court should have a discretion whether to change the place of trial or order the election of a judge pro tem. But we must take the law as we find it. We must ascertain and declare the legislative will as recorded, and, if the rule that body has established be a harsh one, it alone has the power to alter it."

We have quoted thus extensively from the opinion cited because of its clearness and comprehensiveness, and because of the high authority from whence it emanates, and because it covers and fully disposes of the entire question here presented. It settles the question, without further discussion, that in the case at bar, the plaintiff in error having presented a sufficient application for a change of venue, he should not be denied the same because there were other regulations whereby a change of judge could be had without change of venue. The court erred in its holding on this question, and for this the judgment of the court below must be reversed. There are numerous other questions raised by the petition in error which it is not now necessary for us to examine. The judgment of the court below is reversed, with costs of this proceeding against William A. Wallace, who filed the information, and with directions to proceed in accordance with these views. All of the justices concurring, except Justice SCOTT, not sitting.

(2 Okl. 601)

BROWN v. WOODS et al. (Supreme Court of Oklahoma. Feb. 16, 1895.) COUNTY ATTorney-Eligibility-StatUTES— CONSTRUCTION.

1. An attorney at law, who is suspended from the practice of law in the district court of a county in which he has been elected county attorney, is not eligible to enter upon the performance of the duties of such office so long as the order of suspension remains in full force, and not reversed.

2. That which is within the reason, purpose, and intention of a statute is as much a part of it as if it were within the letter of the legislative act.

(Syllabus by the Court.)

Mandamus by J. L. Brown against J. H. Woods, county attorney, and Henry W. Scott, judge of the district court, of Oklahoma county, Denied.

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BIERER, J. This is an original proceeding in mandamus brought in this court to compel J. H. Woods, as county attorney, to turn over the office of county attorney of Oklahoma county to the petitioner, and to require Henry W. Scott, judge of the district court of Oklahoma county, to recognize him as county attorney of said county. The petitioner shows that at the November election, 1894, he was duly elected to such office, and received the certificate of election for the same; that the time has arrived when he has a right to enter upon the duties of the office in pursuance to such election; and that he is duly admitted to practice in the supreme court, and has not been suspended or disbarred therefrom, and that he is refused admission to this office by J. H. Woods, who holds the office of county attorney of said county, and refused recognition as such officer by the judge of the district court. The return to the writ shows that a disbarment proceeding is pending in the district court of Oklahoma county against the petitioner, and that on the 22d day of December, 1894, he was suspended from practice by the district court of Oklahoma county pending the trial of the disbarment proceeding. The contention of the prisoner is that, as he has been admitted to the supreme court of the territory of Oklahoma, he is eligible to enter upon the performance of the duties of the office of county attorney in pursuance to his election to this office, although he has been by the judgment of the district court of Oklahoma county suspended from practice as an attorney, as is shown by the return to the alternative writ. A part of section 1702 of the Laws of Oklahoma of 1893 provides "that no person shall be eligible to the office of county attorney who is not duly admitted to practice as an attorney in some court of record in this territory." Section 1705 of the same statute provides: "It shall be the

duty of the county attorney of the several counties to appear in the district courts of their respective counties and prosecute and defend, on behalf of the territory, or his county, all actions or proceedings, civil or criminal, in which the territory or county is interested or a party; and whenever the venue is changed in any criminal case, or in any civil action or proceeding in which his county or the territory is interested or a party, it shall be the duty of the county attorney of the county where such indictment is found, or the county interested in such civil action or proceeding, to appear and prosecute such indictment, and to prosecute and defend such civil action or proceeding in the county to which the same may be changed." Now, the contention of the petitioner is that he is admitted to a court of

record, from which he has not been suspended or disbarred, by virtue of his being admitted to practice in the supreme court, and that his suspension from practice in the district court of Oklahoma county does not suspend him from practice in the supreme court of the territory, and cites high authority in support of the proposition that a suspension in one court does not suspend him from practice in the other. Be that as it may upon this last question, we do not think it affects the case. The evident purpose and intention of the legislative act, with reference to the eligibility of a person to the office of county attorney, was not only that he should possess the qualifications to perform the duties of the office of county attorney, but that there should be a judgment and determination of a court that he does possess the moral and mental qualifications of an attorney,-that there should be a determination of a court that he is a person of good moral character, and learned and skilled in the legal profession. It requires that he "shall have been duly admitted to practice," and then specifies the particular duties that he is required to perform. The statute, it is true, does not say, in terms, that he must not have been disbarred from practice in the very court in which the law requires him to perform certain professional duties, but the terms of the act show that this was within the reason and intention of the legislature. It was within the purpose and spirit of the act, and that which is within the reason, purpose, and intention of the language used is as much within the act as though it were a part of the language itself. Justice Davis, speaking for the supreme court of the United States in Heydenfeldt v. Mining Co., 93 U. S. 634, with reference to the interpretation of statutes, says: "If a literal interpretation of any part of it would operate unjustly, or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment." In Kohlsaat v. Murphy, 96 U. S. 153, the supreme court of the United States again says: "In the exposition of statutes, the established rule is that the intention of the lawmaker is to be deduced from a view of the whole statute, and every material part of the same; and, where there are several statutes relating to the same subject, they are all to be taken together, and one part compared with another in the construction of any one of the material provisions." In 1 Kent, Comm. 462, it is said: "And the reason and intention of the lawgiver will control the strict letter of the law, when the latter would lead to palpable injustice, contradiction, and absurdity." In Smith v. Townsend, 1 Okl. 117,

29 Pac. 80, the following language in People v. Insurance Co., 15 Johns. 358, is quoted as the law: "A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers; and such construction ought to be put upon it as does not suffer it to be eluded."

Now, the reason and intention of this act of the legislature, with reference to the eligibility and duties of a person holding the office of county attorney, is not only that he be admitted to practice in a court of record, but that he remain admitted to practice in the court where his duties must be performed; and the principal part of his duty, under this law, must necessarily be in the prosecution and defense of cases in the district court of his own county, involving the rights of his county, and, being suspended from practice, he is not in a position where he can perform these duties, so long as the suspension remains in force and unreversed. It would be an absurd construction to draw from this language of the statute that a person elected to the office of county attorney might enter upon the duties of such office while he is suspended from practice in the very court in which his principal duties lie, because he still remains admitted to practice in some other court. It could as well be contended that he remains eligible to assume the duties of the office of county attorney until he has been suspended or disbarred in every county in every district in which he might have been admitted to practice as to contend that he is eligible because he still remains a member of the bar of the supreme court, if we should concede that that be true, and that would be placing a construction upon the act never contemplated by the legislature in defining the eligibility and duties pertaining to the office of county attorney. As the petitioner was suspended from practice as an attorney in the district court of his county at the time he demanded the office of county attorney, he was, therefore, pending such suspension, disqualified to enter upon the duties of the office, and the writ prayed for must be denied. All the justices concurring, except SCOTT, J., not sitting.

(11 Utah, 29)

SHORT et al. v. PIERCE et al. (Supreme Court of Utah. Feb. 23, 1895.) FALSE REPRESENTATIONS-FAILURE TO MAKE EX

AMINATIONS.

1. In an action for false representations in inducing plaintiff to purchase land in the belief that the privilege of selling coal for a railroad company, which was also transferred to plaintiff, would exist for a definite length of time, where it appears that defendant acted in good faith, and that plaintiff, by making inquiry, could have found out that the privilege was te

exist only during the pleasure of the company, he cannot recover.

2. Where the evidence is conflicting, a new trial will not be granted on appeal on the ground that the findings are contrary to the evidence, unless there is a clear and marked preponderance of evidence against such findings.

Appeal from district court, Fourth district; before Justice J. A. Miner.

Action by Short & Randall against Pierce & Christoffersen. From a judgment dismissing the action, and an order denying a motion for new trial, plaintiffs appeal. Af

firmed.

Maloney & Perkins and Kimball & Gilbert, for appellants. John E. Bagley, for respondents.

MERRITT, C. J. This is an action brought by Temple Short and Charles F. Randall, copartners under the firm name of Short & Randall, against John F. Pierce and E. R. Christoffersen, to cancel and rescind certain contracts for the purchase and sale of real estate, made by and between Temple Short and Reuben L. Short and defendants on February 6, 1893, and Temple Short and Charles F. Randall and defendants on May 26, 1893, on the ground of false representations made by the defendants to Temple and Reuben Short and to plaintiffs, inducing and leading up to the purchase of real estate, hereinafter mentioned, by Temple and Reuben Short and plaintiffs. The representations complained of are that defendants, at the time of the contract of sale by them to Temple and Reuben Short, and again at the time of the contract to sell to plaintiffs, falsely represented that they had a coal agency from the Union Pacific Railway Company to sell its coal on the premises contracted to be sold, for a period not expiring until December 31, 1896. The premises contracted to be sold by defendants to Temple Short, and his son Reuben L. Short, and afterwards to plaintiffs, Short & Randall, are described as situated in Weber county, Utah territory, to wit: "A part of the northeast quarter of section 17, township 6 north, of range 1 west of the Salt Lake meridian, beginning at a point 21 69/100 chains south, and 17 and 5/100 chains west, of the northeast corner of said quarter section, and running thence west 4 59/100 chains, thence south 2 50/100 chains, thence east 4 59/100 chains, thence north 2 50/100 chains, to the place of beginning,"-including all improve ments thereon, together with wagon and tools that are used and belong to the premises. The said contract of sale further provided that "it is further agreed that the parties of the first part [Pierce & Co.] are to turn over and assign their railroad lease with the Union Pacific Railway Company to the parties of the second part [Short & Son, afterwards Short & Randall] as soon as the consent of said company can be obtained, and that the parties of the second part are to assume all rights thereunder

that have heretofore been had by the parties of the first part." The plaintiffs allege that the rights theretofore had by the defendants herein were the rights to buy and receive from the said railroad company all the coal that the said Pierce & Co. could use and dispose of at the coal yards and coal bins mentioned in the said lease so assigned. Plaintiffs further allege that they believed and relied upon the representations of the defendants, and purchased this property, and, as they honestly thought, the full right of the coal agency of the railway company, and that the latter was the sole and only in ducement for them to agree to pay the sum of $10,000, ás stipulated in said contract. It is shown by the evideuce that the plaintiff Randall bought out the interest of Reuben L. Short in said property and coal business, and the firm then became Short & Randall; the said firm of Short & Randall assuming all the obligations and rights which had theretofore been assumed and enjoyed by Short & Son. The lease from the railroad company to the defendants provided that the defendants were to have the real estate described in the complaint for four and onethird years from the 1st day of September, 1892, for the site of a coal bin and business connected therewith only, and to pay the railroad company for the use of said property an annual rental of one dollar, and also pay all taxes and assessments during the continuance of the lease; and that, if the party of the second part abandoned the property thereby leased, the party of the first part (the railroad company) might enter upon and take possession thereof, and that a nonuser of the demised premises for three months should be sufficient and conclusive evidence of abandonment. The contract between the defendants and Short & Son provided that the defendants "do hereby covenant and agree to sell and convey by warranty deed to the party of the second part" the real estate herein before described; and the lease further provided that "the parties of the first part [Pierce & Co.] are to turn over and assign their railroad lease with the Union Pacific Railroad Company to the parties of the second part [Short & Son] as soon as the consent of said company can be obtained, and that the parties of the second part are to assume all rights thereunder that have heretofore been had by the parties of the first part." The assignment of lease from the defendants to Short & Son, under date of February 3, 1893, and also the assignment to Short & Randall, provided that the premises were to be used for a coal shed and business connected therewith only. The representations alleged to have been made by defendants are that they falsely and fraudulently represented to and assured the plaintiff Temple Short, and his son Reuben L. Short, that they (defendants) had the agency from the said railway company to sell coal, and the full and complete

right to have the said railway company furnish them at said coal bins all the coal they could use or sell till the 31st day of December, 1896, and that this right was well worth the sum of $5,000. The plaintiffs further allege that the defendants, nor either of them, on the 6th day of February, 1893, nor on the 26th day of May, 1893, being the times at which the contracts were made between the defendants and Short & Son, and between the defendants and Short & Randall, or at any other time, or at all, ever had the agency to sell coal or any agency for the said railroad or any railroad company, and that defendants' statements to the contrary were knowingly false and fraudulent. The cause was tried in the court below without a jury, and the court found "that on the 6th day of February, 1893, defendants made a written contract with Short & Son to sell them the real estate mentioned in the complaint; that on the 26th day of May, 1893, Randall bought out the interest of R. L. Short, and assumed his obligations and all his rights in the original contract; that plaintiffs in the contract were to assume all the rights thereunder that have heretofore been had by defendants; that Short & Son, and subsequently Short & Randall, entered into the possession of the property so conveyed at the time the contracts were respectively made, and continued so to do without hindrance from defendants; that the consideration therefore was $10,000; that the railroad lease was assigned to plaintiffs; that at the date of the first contract, on February 6, 1893, defendants were engaged in the coal business upon the property, buying and selling coal for the Union Pacific Railway Company, and, although the coal business engaged in by said defendants was not mentioned on said written contract, it was turned over and delivered by defendants to plaintiffs, who took possession of the same, and continued to occupy and enjoy the same, and to conduct the coal business of buying and selling coal for said railway company until September 6, 1893, at which time the plaintiffs in this action were prevented from further buying and selling coal for the said railway company, and their business in this respect was canceled by said railway company; that at the time defendants sold to Short & Son they (defendants) had only the right to conduct said business during the pleasure of the said railway company; that when Randall came in on May 26th defendants only turned over to plaintiffs their right to do business for said railway company during its pleasure, which right could be determined at the will of the railway company, at any time it saw fit; that when said coal business was turned over to plaintiffs they took possession with a full understanding and agreement that the same was subject to cancellation at any time by said railway company; that they were so informed at the

time by defendants and the railway company; that on the 6th day of September the railway company saw fit and canceled their relations in said coal business with the plaintiffs, and refused to longer permit them to buy and sell their coal for them, or in any way act for them in that relation; that the land and the improvements, at the time of the conveyance, was worth the consideration named of $10,000; that defendants did not promote or instigate the said cancellation." The lease and contract between defendants and the Union Pacific Railroad Company was assigned by the defendants to the plaintiffs in this action by and with the written consent of said railroad company. Judgment was entered in favor of respondents that said action be dismissed, and the injunction theretofore granted was dissolved, from which judgment, and the order overruling the motion for a new trial thereafter made by the plaintiffs, plaintiffs appealed.

The evidence introduced at the trial in the court below was conflicting, but it appears from the great preponderance of evidence that the defendants acted in good faith in all their dealings with the plaintiffs. The plaintiffs were informed of all their rights before they entered into the contract. There was no concealment or misrepresentation on the part of the defendants, and plaintiffs went into the matter knowing what might be a possible, but not probable, termination of their business relation with the railroad company. They took the risk when they made the contract, and must stand by it, whether they gain or lose. Where it is shown, as in this case, that a person has ample opportunity of examining for himself, he cannot rest his rights upon the statements of others. It is his business to inquire into and ascertain what those rights are. "A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness." Slaughter's Adm'r v. Gerson, 13 Wall. 379. "Proof of a contemporaneous parol agreement is inadmissible to alter or contradict a contract in writing." Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894. "Where a contract in writing contains no warranty, parol evidence is not admissible to add warranty." De Witt v. Berry, 134 U. S. 306, 10 Sup. Ct. 536. The evidence in this case fully sustained the findings of the court below, but, even if this court should find the evidence conflicting, still the findings must be sustained, and the judgment affirmed. By numerous decisions, this court has stated the rule that, "where the evidence is conflicting, an appellate court will not grant a new trial upon the ground that the findings are contrary to the evidence, unless the preponderance is so apparent and marked that the court can have no hesitancy in deciding that the particular findings under review are against

the evidence." Harrington v. Chambers, 3 Utah, 94, 1 Pac. 362; Chamberlain v. Raymond, 3 Utah, 117, 1 Pac. 850; Hopkins v. Ogden City, 5 Utah, 390, 16 Pac. 596; Irrigation Co. v. Moyle, 4 Utah, 327, 9 Pac. 867; Dooly Block v. Salt Lake Rapid-Transit Co., 9 Utah, 32, 33 Pac. 229; Hannaman v. Karrick, 9 Utah, 239, 33 Pac. 1039. Upon a full consideration of the case, the judgment of the court below is affirmed.

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BARTCH, SMITH, and KING, JJ., con

cur.

(11 Utah, 41)

PEOPLE v. WRIGHT. (Supreme Court of Utah. Jan. 21, 1895.) INDICTMENT ALLEGATION AS TO TIME-NECESSITY OF PROOF-LARCENY-EVIDENCE.

1. Where the indictment alleges that property was stolen on the 4th day of the month, and there is evidence that it was stolen on the 3d day, it is proper to charge that the exact time of the offense is not material; and defendant cannot claim that this is, in effect, a direction to disregard his proof of an alibi on the 3d day of the month.

.

2. On a prosecution for stealing a bicycle, it appeared that, three days after it was stolen, it was found in a woodshed on premises occupied by defendant, his father, and his grandmother, alone, and that at the same time another stolen bicycle, which had been seen in defendant's possession a few days before, was likewise found on the premises. It also appeared that defendant had been before convicted of grand larceny. Held, that a conviction was proper.

Appeal from district court, Salt Lake county; before Justice George W. Bartch.

Roy Wright, convicted of grand larceny, appeals from the judgment rendered,- and from an order denying a new trial. Affirmed.

Booth, Lee & Gray, for appellant. J. T. Richards, for respondent.

He

SMITH, J. The defendant in this case was convicted of the crime of grand larceny on the 28th day of September, 1894. subsequently moved for a new trial, which was denied, and was sentenced to the penitentiary for the period of 18 months. It is charged in the indictment that the defendant feloniously stole one Union bicycle, of the value of $75, of the personal property of David T. Edwards, on the 3d day of April, 1894, in Salt Lake county. Two errors are assigned on this appeal: First. That the court erred in its charge to the jury, the particular portion of the charge to which exception is taken being the following language: "The exact time when the offense was committed is not material if it was committed at any time within four years of the time when the indictment was found against the defendant." The second error assigned is that the evidence is insufficient to justify the verdict, and that a new trial should have been granted.

As to the error of law to be relied upon, it is quite difficult for us to comprehend how

it could have prejudiced the defendant, or why it was erroneous in any sense or any view of the case. Section 4934 of the Compiled Laws provides: "The precise time at which the offense was committed need not be stated in the indictment, but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense." It is not claimed that time is a material ingredient in this charge against the defendant. The charge is that he stole the bicycle, but it is claimed that the proof corresponds with the charge in the indictment, to wit, that the bicycle was stolen on the 3d day of April, 1894; and it is claimed that the defendant proved an alibi on that date, and that, therefore, the charge was prejudicial. Inasmuch as the jury must have been convinced beyond a reasonable doubt that the defendant actually did the act charged against him, it is impossible to see how the instruction of the court that the precise time was not material can be construed into a direction that they may disregard his proof of an alibi. But there is another reason in this case why this instruction was not only not misleading or improper, but was requisite and necessary, under the evidence in the case. There was evidence before the jury tending to show the bicycle was stolen on the 4th day of April, instead of the 3d. Under such circumstances, it would appear there could be no question but that the instruction given was a proper one.

The next question urged is that the evidence is insufficient to justify the finding of guilty. We have examined the evidence as set forth in the bill of exceptions fully and carefully, and, after such investigation, we are unable to see how a trial jury could have arrived at any other conclusion than the one at which they did arrive in regard to the facts in the case. There was no question but that the bicycle was stolen. It was a peculiar bicycle; had distinctive marks upon it, to wit, it had the handle broken and a step off. At about the date it was stolen, the defendant had in his possession a bicycle with the handle broken and with the step off. Two or three days later, the bicycle was found at the defendant's place of residence, in a woodshed back of the house. It was thoroughly identified as belonging to Edwards. No one lived at the place where the bicycle was found, except the defendant, his father, and his grandmother. At the same time another stolen bicycle, which had been seen in the possession of the defendant, and which he had been using a few days prior, was found in a barn adjoining the same premises where he lived. The defendant, in his own testimony in his defense, claimed to know nothing about how the bicycle of Edwards came to be upon the premises; but, as to the other stolen bicycle found in the adjoining barn, he admitted that he had possession of

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