Leg The peremptory writ of prohibition will issue. therefore only necessary to allege the offi- [ of there was not any such offense as is decial capacity of the accused and that, acting fined by chapter 25 above. by virtue of his office, he collected certain fees which the law did not authorize. gatt v. Prideaux, 16 Mont. 205, 40 Pac. 377, 50 Am. St. Rep. 498; State ex rel. Rowe v. District Court, 44 Mont. 318, 119 Pac. 1103, Ann. Cas. 1913B, 616. [1, 2] By an act approved February 14, 1917 (Laws 1917, c. 25), it is declared that section 9006 is amended "to read as follows." Then follows the new enactment. Not only are the two statutes radically different in matters of procedure, but the very basis of the right is changed altogether. The gist of the offense defined by section 9006 was taking illegal fees, whether done ignorantly, in good faith, or with a dishonest purpose. The gist of the offense defined by the amended statute is the criminal intent. Unless the accused collects the illegal fees knowingly, willfully, and corruptly, he commits no offense under the new act. Under the original statute the accused was not entitled to a jury trial, but he is under the new act. Under this new provision he may offer evidence of good faith, honest mistake, or value received by the county, whereas under section 9006 none of these matters was relevant. When the Legislature declares that an existing statute is to be amended "to read as follows," etc., it thereby evinces an intention to make the new act a substitute for the old one, and to make it take the place of the amended act exclusively. City of Helena v. Rogan, 27 Mont. 135, 69 Pac. 709. In other words, so much only of the original act as is repeated in the new statute is continued in force (section 119, Rev. Codes), and all portions omitted from the new act are repealed. This is a general rule of construction (36 Cyc. 1083), and added emphasis is given to it in this instance by section 2 of the new act, which repeals all acts or parts of acts inconsistent with it. In this state we have no general saving clause provided by Constitution or statute for offenses other than those prosecuted by indictment or information, and the failure of the Legislature, in enacting chapter 25 above, to incorporate a clause saving all proceedings then pending under section 9006, deprived the district court of jurisdiction of the subject-matter of the accusation. This is likewise a general rule, particularly applicable to the repeal of a statute which created a cause of action and conferred jurisdiction over the same as did section 9006. 36 Cyc. 1228; Pullen v. City of Eugene, 77 Or. 320, 146 Pac. 822, 147 Pac. 768, 1191, 151 Pac. 474, Ann. Cas. 1917D, 933, 939. The accused cannot be tried for the offense defined by section 9006, for there is not now any such offense known to the law. He cannot be tried under the new statute, for at the time he committed the acts complained SANNER, J., concurs. being absent, takes no part in the foregoing BRANTLY, C. J., decision. STATE ex rel. WIECK v. DISTRICT COURT An order setting aside a default, made upon the relation of Anthony Wieck, against the Proceedings by the State of Montana, on District Court of the Eighteenth Judicial District in and for the County of Hill, to review an order setting aside a default. Order affirmed. Nelson & Turcotte, of Havre, and J. A. Walsh, of Helena, for relator. W. T. Pigott, of Helena, and Victor Griggs, of Havre, for respondent. HOLLOWAY, J. A motion for rehearing was granted upon a showing by respondent that through inadvertence the record certified to this court in the first instance was not correct. The record has been corrected in the court below and a supplemental return made. It appears from the record now before us that the order of January 12, 1917, setting aside the default of the defendants in the case of Anthony Wieck v. F. A. Buttrey and J. W. Wilson, was made by the court "upon agreement of counsel for plaintiff and defendants made in open court." Under these circumstances there is not any merit in this application. The order setting aside the default is affirmed. SANNER, J., concurs. BRANTLY, C. J., being absent, did not hear the argument and takes no part in the foregoing decision. CHICAGO, R. I. & P. RY. CO. v. EYSTER. (No. 8783.) (Supreme Court of Colorado. Jan. 7, 1918.) 1. RAILROADS 436-INJURIES TO STOCKCOMPLIANCE WITH STATUTE. The stock law of 1911 (Laws 1911, p. 400) requires a railroad company to notify the nearest live stock inspector and the section foreman who together must inspect the animals injured when an accident to stock occurs on its road. or killed. The inspector is required to estimate their value if killed, and the damages if the animals are injured, and ascertain the owner's tor, the state board of stock inspection commisAfter receiving the report of the inspec name. sioners must send a copy to the owner and to TO STOCK. INJURIES Under the stock law of 1911, providing that a railroad company shall be absolutely liable to the owner for all live stock killed or injured, but, if it shall duly build and keep in sufficient repair fences, gates, and cattle guards along its right of way, it shall not be liable, failure to maintain a fence as required by law is negligence per se, and, where such failure results in injury to stock, the railroad company is liable. En Banc. Error to District Court, El Paso County; J. W. Sheafor, Judge. railroad. There was evidence that the gate had been partly destroyed by fire, which left it in a defective condition, with the top board down or entirely off, for a long time prior to the snowstorm, and, though often repaired, that the gate was not maintained at the proper height; that the snow had drifted against the gate and partly covered it; and that the animals walked on the snowdrift over the top of the gate onto the track and were killed by a train. The jury returned a verdict for plaintiff. Wm. V. Hodges, D. Edgar Wilson, and Harold H. Healy, all of Denver, and Franklin E. Brooks and George W. Bierbauer, both of Colorado Springs, for plaintiff in error. GARRIGUES, J. (after stating the facts as above). [1] In 1911 the Legislature passed a comprehensive stock-killing statute. S. L. 1911, p. 400. This statute requires the railway company to notify the nearest state live stock inspector and the section foreman, when such an accident occurs on its rail road, and they together must inspect the animals. The inspector must estimate their value if killed, and the damages if the animals are injured, ascertain the owner's name, and report his findings to the secretary of the state board of stock inspection commissioners. After receiving such report, the secretary must send a copy of it to the owner, also to the railway company, and request it to pay the estimated value to the board for the use of the owner. The owner, after receiving from the secretary such copy of the inspector's report, may, if satisfied, file proof of ownership with the secretary and accept the estimated value, which, if he does, is a final settlement. If dissatisfied, however, with the estimated value, but willing to arbitrate the damages, he may file proof of ownership and the amount of damages he claims with the board, and its award shall be final and binding upon each. But, after being so notified, he may decline to do either; that is, to accept the estimated value or to file his claim with the board, in which event he is required to file a demand with the station agent, and if he fails to do that within six months after the accident, when notified. his claim against the railway company is forever barred. If he pursues the latter course and files his demand with the station agent, then the company must within 30 days pay the full demand, if it does not, the owner may Action by Robert W. Eyster against the Chicago, Rock Island & Pacific Railway Company. There was a judgment for plaintiff, and defendant brings error. Affirmed. In this action, brought to recover the value of live stock killed on defendant's railroad by a'train, plaintiff alleges that along the railroad right of way the fence was broken down, and negligently permitted by the company to remain so defective as to allow animals to stray upon the railroad track. The answer denies the animals strayed upon the track and were killed by reason of defendant's negligence in failing to maintain a good and sufficient fence, or on account of its defective condition; alleges the railroad right of way where the animals were killed was inclosed with good and sufficient fences, gates, and cattle guards capable of keeping animals off the railroad, and that the fence was kept in good and proper condition of repair; and denies that its negligence was the cause of the accident. It then alleges that about three weeks prior to the accident there was an abnormal fall of snow, which drifted and so covered the fence that the animals walked on the drifted snow over the top of the fence onto the right of way and were killed; that plaintiff knew the condition regarding the snowdrifts, and failed to exercise ordinary care in keeping the animals inclosed, and negligently permitted them to run at large adjoining the right of way during the preva-sue and recover the full damages, provided he lence of such conditions. It then pleads its compliance, and plaintiff's noncompliance with what is usually termed the stock-killing statute. S. L. 1911, p. 400. The animals were in an inclosed pasture or range adjoining the railroad, which was also inclosed. At a farm crossing the company had constructed and was maintaining a gate, and it was here the animals got onto the brings suit within six months from the date of filing such demand with the station agent. The suit in this case is not based upon the inspector's estimated value which the company failed to pay, nor upon the award of the board, nor upon the company's failure to pay within 30 days the demand filed with the station agent. The company did not comply with the statute and none of these things trains on the railroad; if it duly builds and keeps in sufficient repair such fences, gates, and cattle guards, it will not be liable, and it may plead and prove such compliance as a defense. The statute makes the mere hap dence of negligence and provides that the company must pay full value for all damages, unless it show affirmatively on the trial that the accident was not caused by its neg negligence of the company for failure to maintain a fence amply sufficient to prevent animals from getting upon the railroad. It is not to recover a penalty, but is to recover compensation for actual damages. It is a remedial right given by statute' to recover the actual value of animals killed through the company's negligence in failing to comply with the statute. Failure to maintain a fence as required by the act is negligence per se, and, if that was the cause of the accident, plaintiff could recover. were done. The action is based upon sections 1, 2, 3, and 4 of the act, to recover the actual value of the animals. It is only in the event the owner, after being notified, declined to accept the estimated value, or to file a claim with the board that he was re-pening of such an accident prima facie eviquired to file a demand with the station agent. He was not notified, and given an opportunity to file proof of ownership with the secretary and accept the estimated value or to arbitrate. The company neglected to no-ligence. This suit is based upon the alleged tify the inspector, and there was no inspection so far as the record shows. The owner was required to file his demand with the station agent as required by section 10 of the act, only in the event he declined, after being notified, to accept the estimated value or to arbitrate. He had no opportunity to do either. Before the six months' statute could bar his right to recover, he first had to be notified and given an opportunity to accept or arbitrate. The railroad company's compliance with the act is a condition precedent to the requirement that the owner file proof of ownership as required by section 8, or a demand with the station agent as required by section 10. It is only in the event that the owner, after being notified, declines to açcept the provisions of section 8, that he is affected by the provisions of section 10. Therefore the company's contention that the owner failed to file proof of ownership, and failed to file a demand with the station agent, and that the six months' statute of limitations bars the action, is not availing to it as a defense in this case. [2] Sections 1, 2, 3, and 4 of the act provide in substance that if the railway company fails to inclose its railroad with a good fence, gates, and cattle guards amply sufficient to prevent animals from getting on the railroad, it shall be absolutely liable to the owner for all live stock killed or injured by There was evidence on the trial that the fence at the farm crossing where the animals got upon the track was in a defective condition some time prior to the snowstorm. The jury could have found under the evidence that, if the gate at the farm crossing had been kept and maintained in the condition required by the act, the animals would not have gone upon the railroad. If this is true, the failure to properly maintain the gate was the proximate cause of the acci dent. We We have read the entire record, including the instructions given and refused, and carefully considered the statute. think the jury was properly instructed, and we have found no errors of sufficient importance to reverse the judgment, and it is therefore affirmed. Affirmed. END OF CASES IN VOL. 169 INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and ABANDONMENT. See Homestead, 154-1812; Municipal Corporations, 657; Public Lands, 40. ABATEMENT. See Nuisance, 77-82. ABATEMENT AND REVIVAL. See Continuance, 10; Election of Remedies. 6 (Or.) Suit against husband and wife commenced against husband alone July 17th, amended complaint making wife party defendant being filed July 31st, was "pending" when wife's suit against plaintiff was instituted July 28th to justify denial of defendants' plea in abatement. -Oregon-Washington R. & Nav. Co. v. Reed, 169 P. 342. V. DEATH OF PARTY AND REVIVAL (A) Abatement or Survival of Action. P. 819. ABUTTING OWNERS. an accounting cannot be stated at law. Ferem v. Olson & Mahony, 169 P. 386. ACKNOWLEDGMENT. See Evidence, 208-236; Limitation of Ac tions, 34. IV. PLEADING AND EVIDENCE. requiring bail bonds to be acknowledged before 60 (Cal.App.) Under Pen. Code, § 1287, court, the certificate of acknowledgment is but prima facie evidence of acknowledgment.-People v. Lepori, 169 P. 692. ACTION. See Abatement and Revival; Continuance, III. JOINDER, SPLITTING, CONSOLI- by purchaser of realty against his vendor, which alleges two causes of action, one for specific performance, other for repayment of purchase money paid, is defective in that causes of action are inconsistent.-Lynn v. Knob Hill Improvement Co., 169 P. 1009. 50(5) (Wash.) In action against contractor, his surety, and subcontractor for materials sold the subcontractor and materials sold the con See Eminent Domain, 148; Municipal Cor- tractor and used by the subcontractor, held, porations, See Dedication, 657-706. ACCEPTANCE. 90; Sales, 31, 34; Frauds, Statute of, ACCESSORIES. er, 17. See Homicide, 305. ACCOMPLICES. See Criminal Law, 507–511. ACCORD AND SATISFACTION. See Novation; Payment; Release. ACCOUNT. that there was no misjoinder of causes under Rem. Code 1915, § 296.-Cascade Lumber & Shingle Co. v. Wright, 169 P. 833. tire claim or demand cannot be split up so as 53(1) (Okl.) A single cause of action or ento be made the subject of different actions for parts.-Akin v. Bonfils, 169 P. 899. 53(2) (Okl.) Action to enjoin a trespass on one tract in plaintiff's possession, and subsequent action for possession of another tract in defendant's possession before commencement of the former action, were not upon a single cause of action within rule against splitting causes of action.-Akin v. Bonfils, 169 P. 899. ADJOINING LANDOWNERS. See Boundaries. See Account Stated; Assignments for Benefit See Judgment. ACCOUNT STATED. 354; 2 (Cal.) Where the managing owner of a vessel rendered accounts to minority owners and they took no action thereon, the accounts did not become stated, since between partners See Shipping. ADMIRALTY. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER 169 P.-75 |