that a constitutional convention was near at hand, where the alleged defect in the broad and general language could be remedied and restricted. This suggestion bore fruit, and, in the constitution succeeding this decision, bail after conviction was denied in cases where the punishment was death or by imprisonment at hard labor. Yet the same court, in a later case (State v. Roger, 7 La. Ann. 382), while the decision in Longworth's Case was yet the law in Louisiana, upon habeas corpus proceedings in the case of one accused of murder for bail before trial, on the ground that he could not obtain a trial at the ensuing term of the district court, the bail was refused, and a speedy trial of his cause was directed. Speaking of the former case, the court says: "Although bound to grant a writ of habeas corpus to bail, even after conviction, as decided by this court in Longworth's Case, yet we exercise the power, as intimated in that case, with reluctance, because, in doing so, we are obliged to hold a law of the general assembly to be unconstitutional, because this court was divided in opinion, and because the district court holds a contrary opinion, and because we are all sensible of the evils to which the exercise of the power may lead. It is our duty, there fore, to avoid the exercise of the power, if it can be done consistently with the rights of the applicants. We thought it could be done in this case by affording him an immediate trial, which we directed." In Ex parte Ezell, 40 Tex. 451, the doctrine of the Louisiana court was repudiated, that of the North Carolina case in State v. Ward adopted, and, in addition to the grounds given in the case approved, the Texas court held that there were constitutional restrictions in that state upon the right to appeal in criminal cases, which was not a inatter of right, but only allowed by the surreme court or some judge thereof upon an inspection of the record, where it was believed that some error had been committed. The further reason found in this case was that the exception made as to bail in capital cases, "when the proof is evident and the presumption great," was of value in explaining and determining the force of the general language of the sentence, and the exception having reference to the proof upon which a prisoner is bailable is alluded to as indicating the class of "prisoners"-in our constitution "persons"-to which the clause is applicable, whether the prisoners be charged with capital or less felonies. The opinion further declares that the right to bail, which, in common with other great constitutional rights, was secured after a long struggle against tyranny and oppression, was the right to bail before conviction, the grievance complained of being the treatment of prisoners before trial and conviction. This case was affirmed in Ex parte Schwartz, 2 Tex. App. 80. It is directly in point here, particularly as we have no direct constitutional provision allowing appeals as a matter of right

in criminal cases, except that this court is clothed with appellate jurisdiction in criminal as well as in civil causes, and is invested with a general' superintendence and control over all inferior courts, under such rules and regulations as are prescribed by law (Const. Wyo. art. 5, § 2); but the statute relating to appeals, and which has stood practically untouched for a quarter of a century, provides for the allowance of writs of error in criminal causes, "for good cause shown," upon the application of the defendant, verified by him and by his attorney, if he have one, dispensing with the necessity of inspecting the record, until very recently required. Sess. Laws 1895, c. 27.

It has been the practice lately in this court to allow writs of error pro forma, but this is a matter of grace. Either the court or judge to whom the application for the writ of error is made may refuse the writ if it does not appear that sufficient reasons exist for its allowance. Donovan v. Territory, 3 Wyo. 90, 2 Pac. 532. Other restrictions are imposed in the statute regulating appeals in criminal cases, among which is the limitation of the time within which the application for the writ of error must be made, such period being one year after the rendition of the judgment. It was with all these provisions in view, relating to bail and the institution of proceedings in error, with the various limitations imposed by law as to time and method of procedure, that the constitutional provision was embodied in our organic law relating to bail. It was never the practice to let to bail in this jurisdiction after conviction, and this was well known to the framers of the constitution, a large number of whom were learned in the law, and from long residence were familiar with the laws and practice of the territory. They evidently had no desire to work any radical changes in existing laws, except where the changes were clearly expressed; and there is no indication anywhere in the constitution of an intention to enlarge the power of admission to bail, particularly to persons convicted of crime. The construction adopted in Texas, California, Ohio, and North Carolina, and feebly opposed in Louisiana, seems to be the one to govern us here. The guaranty of our constitution is the familiar one of a speedy trial before an impartial jury, and the right to admission to bail pending the trial, save only in capital cases, where the proof is evident or the presumption great, and these words of limitation to the grant of right to the citizen explain the meaning of the entire guaranty. In capital offenses, after conviction, the presumption is always great and the proof evident of the guilt of the defendant, and therefore bail is not granted to one convicted of a capital crime. This seems a guide to lead to the determination of the time when the constitutional guaranty of the right to give bail ceases. All persons thus granted the right must necessarily be

proposition shall have been submitted to and approved by a vote of the people thereof.

3. A delay of 17 months between a vote in favor of the issuance of school-district bonds to refund the bonded indebtedness of the district, due to the financial stringency, will not invalidate the bonds on the ground of remoteness of the time of their issuance from the time of the vote authorizing them.

4. Constitutional and statutory restrictions upon the amount of bonded indebtedness that a school district or other municipality may incur are inapplicable to bonded debts created before the passage of any restrictions as to such indebtedness.

Reserved case from district court, Carbon county; Jesse Knight, Judge.

Action by Isaac C. Miller against school district No. 3 of Carbon county to enjoin the issuance of school bonds to refund the bonded debt of the district. Case reserved. junction denied.

In

Craig & Chatterton, for plaintiff. McMicken & Blydenburgh, for defendant.

GROESBECK, C. J. The following material facts are set forth in the agreed statement filed in the district court in this cause: Isaac C. Miller, the plaintiff, is a resident taxpayer and qualified elector of school district No. 3 in Carbon county, a legally organized school district. In 1886 the legislative assembly of the then territory of Wyoming passed an act authorizing the defendant school district to issue bonds to the amount of $25,000, for the purpose of building a schoolhouse in the district, and, in accordance with said act, the bonds of the district were thereafter issued in such sum, bearing interest at the rate of 8 per centum per annum, which are a valid debt against the district. The interest accrued thereon and $3,000 of the principal has been paid, leaving unpaid on the bonds the sum of $22,000. Under the authority of an act of the second state legislature, permitting the school districts of the state to refund their bonded indebtedness, notice was given according to law of the regular annual schooldistrict meeting to be held on Monday, May 1, 1893, in which, among other things, it was stated that the annual school meeting would determine by ballot whether the bonded indebtedness of the district should be refunded in accordance with said act (chapter 10, Sess. Laws 1893), and in this respect the clerk of the school district followed the direction of a special meeting of the board of trustees held April 18, 1893. At the annual schooldistrict meeting held pursuant to such notice, and under the provisions of the statute, on the first Monday of May, 1893, being the 1st day of that month, the matter of refunding the bonds of the school district was by resolution referred to a committee to report upon at a subsequent time, to which the annual meeting was adjourned. At the annual meeting, 82 votes were cast at the election of trustee, and at the adjourned annual meetng, held May 10, 1893, the committee report

ed in favor of the refunding proposition; and thereupon a resolution was passed authorizing the board of directors of the district to issue and sell the refunding bonds of the district in the sum of $23,000, then outstanding, in accordance with the act, the bonds issued to be known as the "15-30 bonds," and to be sold at the lowest possible rate of interest. A ballot was taken on this resolution, and it was adopted by a unanimous vote of the 31 electors present. After these proceedings, the district board corresponded with various parties dealing in bonds, relative to placing the refunding bonds, and they were advised that, owing to the financial stringency then prevailing, it would be impossible to sell or dispose of the bonds; and for this reason the district board took no further steps towards selling the bonds, until October, 1894, when a notice offering for sale the refunding bonds was published pursuant to the statute. The bids tendered under this offer were opened on the 30th day of November, 1894, and the bid of Mason, Lewis & Co., of Chicago, being the lowest and best bid, was accepted, the amount of the indebtedness, $22,000, to be issued in bonds to be dated January 1, 1895, to bear interest at the rate of 6 per centum per annum, the price offered being $22,669, or $669 in excess of the face of the bonds, and the bonds were to run, as advertised, for 30 years, to be redeemable at the pleasure of the district after 15 years from their date. The amount of the bonds of said school district at the time of the admission of the state into the Union, July 10, 1890, was less than 4 per centum of the assessed valuation of the taxable property of the school district. At the annual charter election held in the city of Rawlins, which lies wholly within the limits of the school district, held on the second Tuesday of April preceding the annual school-district meeting, more than 500 votes were cast. The agreed statement of facts closes with the statement that the board of trustees or directors of the school district is threatening to carry out its agreement by issuing the bonds of the district to the bidders whose bids were accepted, and will do so unless restrained from so doing, and an injunction is prayed for against the board of directors of the school district.

The plaintiff claims, under the agreed facts, that the board of directors or trustees of the district has no authority to issue the refunding bonds as contemplated (1) because the qualified electors have not authorized the same as required by law, and the vote of 34 in favor of the issuing of the bonds at the adjourned annual meeting, it is alleged, was not a majority of the qualified electors of the district, nor even a majority of the meetting, as it was an adjourned session of the same meeting at which 82 votes were cast; (2) because the debt which is thus to be created is not in conformity with section 4 of article 16 of the constitution of the state, as

the proposition to create such debt had not been submitted to a vote of the "people" of said school district; (3) because the vote taken May 10, 1893, if legal at that time, was not for the issue of $22,000, but for $23,000, of refunding bonds, and the latter proposition has never been submitted to the electors of the district; and (4) the time of the vote is too remote from the time of the issuance of the proposed bonds. The defendant claims that the proposed issue of the refunding bonds is legal in all respects, and all the necessary preliminaries have been fully complied with according to law.

Upon the agreed statement of facts, substantially as recited, the district court for Carbon county found that an important and difficult question arose in the case, and a number of questions were by that court submitted to us for decision. They will now be considered in detail.

1. "Was the vote had at the adjourned meeting on May 10, 1893, sufficient to authorize the issuance of these bonds by the school district?" Answer. Yes. The language of the act (section 1, c. 10, Sess. Laws 1893) is: "The board of directors of each and every school district in the state of Wyoming, are hereby authorized to issue refunding bonds of such school district, for the purpose of taking up outstanding bonds of such school district, for any sum not exceeding the amount of outstanding bonds: provided that the qualified electors of any such school district shall so elect and determine at any regular meeting or at any special meeting held for such purpose." There is no dispute over the sufficiency of the notice given of the annual meeting, and, in the absence of any statute providing a different rule, the electors present of a school district are competent to act by the vote of a majority of the meeting, which would be a quorum. The common-law principle is that if an act is done by an indefinite body It is valid if passed by a majority of those present at a legal meeting, no matter how small a portion of the whole number entitled to be present they may constitute; and this has been deemed applicable to the town meetings in New England, which is a near approach to pure democracy. The corporate power in the New England towns resides in the inhabitants or citizens at large, and these form the constituent body. If the meeting has been duly warned or called, those who assemble, though less than a majority of the whole, have the power to act for and bind the whole, unless it is otherwise provided by law, and those who are absent are justly and conclusively presumed to assent fully to the action of those who attend. Dill. Mun. Corp. (4th Ed.) § 277, and cases there cited. The authorities seem to be uniform on this point, as there is a distinction between a corporate act to be done by a definite number of persons and one to be performed by an indefinite number. In v.39p.no.8-56

the former case a majority is necessary to constitute a quorum, and no act can be done unless a majority be present, and in the latter a majority of any number of those appearing may act. Ang. & A. Corp. (11th Ed.) § 501. The voters absenting themselves from the election are presumed to assent to the expressed will of the majority voting at an election held in pursuance of law and upon proper notice, and so with those who do attend and who do not vote upon the proposition, unless the statute requires a different rule, and prescribes that the majority shall be of the electors present, or of those voting at the election. State v. Swift, 69 Ind. 531, 542; State v. Binder, 38 Mo. 450; People v. Clute, 50 N. Y. 451; Smith v. Proctor, 130 N. Y. 319, 29 N. E. 312. The last case cited gives the rule of the common law, as declared by Lords Mansfield and Denman, to be that "whenever electors are present, and do not vote at all, they virtually acquiesce in the election made by those who do" (Oldknow v. Wainwright, 2 Burrows, 1017); and that a vote by a majority of a meeting means "a majority of those who choose to take a part in the proceedings of the assembly" (Gosling v. Veiey, 7 Q. B. 406); and the supreme court of the United States says: "All qualified electors who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise de clares." Cass Co. v. Johnston, 95 U. S. 360. See Louisville & N. R. Co. v. Davidson Co. Ct., 1 Sneed, 637; People v. Warfield, 20 Ill. 159; People v. Wiant, 48 Ill. 263. In the case at bar, it appears that all of the electors present at the adjourned annual meeting of the school district voted in favor of the issuing of the refunding bonds, although their number was not a majority of the 82 votes cast at the annual meeting, nor of the 500 or more votes cast at the charter election held in the city of Rawlins, which lies wholly within the limits of the school district, within the month preceding. The annual meeting of the school district had, under our statute, the power "to adjourn from time to time ás occasion shall require" (Rev. St. § 3927); and it seems that this power of adjournment would be inherent in the assembly of the electors of the district to secure full information on any subject to be voted upon, and even for the sake of the convenience of the electors of the district. As the meeting was properly and legally called under the notice prescribed by the statute, and in this notice was inserted the proposition of refunding the bonds, under the express direction of a previous special meeting of the district board, it seems that more than ordinary care was used in notifying the electors of the district that the proposition would be voted upon. The appointment of a committee to report on the proposition, and the adjournment to a subsequent day

to afford them sufficient time to report, show clearly that the matter submitted was carefully considered. Undoubtedly, full notice of the submission of the proposition was given, and the entire proceedings were conducted with a commendable caution. The electors present at the adjourned annual meeting had full power to transact the business of the district intrusted to their care by the statute, and they had the right to act and bind the district by the action of a majority, without regard to their numerical strength, and those who remained away are to be presumed as assenting to their action.

2. "Does the word 'people,' as used in setion 4 of article 16 of the constitution of the state, mean the same as the words 'qualified electors,' used in the act of February 10, 1893, and is this section of the constitution applicable to said act?" Answer. The section of the constitution referred to is as follows: "No debt in excess of the taxes of the current year shall, in any manner, be created by any county or subdivision thereof, or any city, town or village, or any subdivision thereof in the state of Wyoming, unless the proposition to create such debt shall have been submitted to a vote of the people thereof and by them approved." It is unnecessary to consider this question, or to determine whether a school district is a "subdivision of a county" or not. The refunding of the bonded indebtedness of the district is in no sense the creation of a debt, for the debt already existed in another form, that of bonds issued under express legislative sanction, before there was any congressional restriction, and expressly excepted from the provisions of the act of congress restricting the amount of indebtedness incurred by any quasi corporation in the territories, the original issue of bonds having been under the territorial regime. School Dist. No. 3 v. Western Tube Co. (Wyo.) 38 Pac. 922. See Board of County Com'rs v. Rollins Inv. Co., 3 Wyo. 470, 27 Pac. 683; Powell v. City of Madison, 107 Ind. 106, 8 N. E. 31. The section of the constitution invoked has no application to the case at bar.

3. "How many votes of qualified electors are required to authorize the issue of refunding bonds under said law? Is a majority of those present and voting sufficient?" swer. Yes. This question is sufficiently answered in the answer to the first question.

An

4. "The meeting of May 10, 1893, being an adjourned session of the meeting of May 1st, and 82 votes being cast at said meeting of May 1st, was 34 votes of May 10th a majority of the electors present at said meeting, and a sufficient number of votes to authorize the issue of the bonds?" Answer. The answer to this question is also comprehended in the answer to the first question.

5. "If the action taken on May 10, 1893, was then sufficient to authorize the issue of $22,000 [of bonds] on January 1, 1895, the debt of the district having been reduced $1,000, and the vote of May 10, 1893, authorizing the is

sue of $23,000 [was legal]; or should not the authority conferred, if any was conferred, by the election of May 10, 1893, have been promptly acted upon and carried out, or does it continue an indefinite time, if not distinctly rescinded?" Answer. The question is not presented in an intelligible form. So far as we can aid the meaning by supplying omitted words, it will be answered. The bonds voted for the purpose of refunding outstanding bonds amounted to the sum of $23,000, and this amourt was subsequently reduced by the payment of bonds by $1,000, but this reduction in the amount of the original indebtedness was probably for the benefit of the district or in accordance with law. This would be the presumption, in the absence of any showing to the contrary. The reason of the delay of some 17 months, including the time necessarily employed in advertising for proposals for purchasing the refunding bonds, is explained in the agreed statement of facts, and was owing to the financial stringency then prevailing during the period elapsing be tween the vote in favor of the refunding proposition and the time the bids were accepted, which prevented the disposal of the bonds upon any terms whatever. This delay would seem to be prudent on the part of the district board, and does not seem too remote from the time of the vote in favor of the refunding of the bonds. It would be a harsh rule to establish that such a necessary delay, purely for the advantage of the school district, should invalidate all the proceedings taken to refund the debt of the district, apparently most advantageous to it, backed by a unanimous vote of the electors of the district voting on the proposition.

6. "Do the words, or other subdivision thereof,' occurring in the proviso in section 3, art. 16, of the constitution, embrace a school district?" Answer. The proviso contains a permission, extended to the several counties, cities, towns, villages, "or other subdivision thereof," to bond its public debt existing at the time of the adoption of the constitution, in any sum not exceeding 4 per centum on the assessed value of the taxable property in such county, city, town, village, "or other subdivision," as shown by the last general assessment for taxation. The agreed facts state that, at the time of the admission of the state into the Union, the amount of school bonds outstanding was less than 4 per centum of the assessed valuation of the district, as shown by the assessment list for county and territorial purposes for the year A. D. 1889. The original bonds of the district were issued under legislative authority in 1886, before there were any congressional or state restrictions as to incurring indebtedness, and it was neither the intention of the act of congress nor of the state constitution to impair this pre-existing contract. The congressional legislation expressly excepted the bonds issued prior to its enactment, as these original bonds were, and neither the state constitution nor any act of