in advance of Anderson, ran into an excava- to an effort to discover defects in the street. tion from three to six inches deep, made in The rule applicable is well stated in McCabe the street by a contractor for the city in v. City of Butte, 46 Mont. 65, 125 Pac. 133, laying a concrete sidewalk. The excavation as follows: "A traveler upon a public street was unguarded. There was a street light has the right to presume that it is in an of some character, probably an arc light, on ordinarily safe condition, because the law enone corner of the intersection of these joins upon the authorities of the municipalistreets; but notwithstanding this fact nei- ty the duty to exercise ordinary diligence to ther plaintiff nor Anderson saw the excava- make and keep the streets in a reasonably tion or knew of its existence until Nilson fell. safe condition for public travel; and when It was dark; the sun set about 4:58 p. m. they are rendered unsafe by reason of reon that day, and twilight disappeared about pairs being made therein, or have become 5:30. It was so dark at the point where defective or unsafe from any cause, and the plaintiff fell that the character of the authorities have notice of the condition, or wounds on his head and face could not be the circumstances are such as to warrant a determined until he was removed into the presumption of notice, the duty to warn the light. The street light was not burning public by lights or other means, while rebrightly some two hours after the accident. pairs are made, also arises. The traveler is The condition of the street had been the not bound to make investigations, and he same for some considerable time. The work cannot be charged with negligence if he fails was being done under contract with the city. to do so." See, also, 5 Thompson on NegliThere is evidence given on behalf of the city gence, § 6238. which is in conflict with plaintiff's version, but the trial court instructed the jury that "in this case contributory negligence has not been pleaded, nor has there been any evidence offered by the defendant showing or tending to show contributory negligence on the part of the plaintiff, and in the absence of any proof to the contrary you are bound to assume that the plaintiff was using the street as a highway in a proper manner and without negligence, unless the proof of fered by him shows that he was himself neg-es. ligent in the use of the highway." There was no exception saved to this portion of the charge, and the city is now bound by that theory of the case. It is no argument at all to say that if plaintiff had traveled in the middle of the street he would not have been injured, for there was a safe driveway about 12 feet wide provided in that part of the street. The most favorable view for appellant which can be entertained under the circumstances is that it was a question for the jury whether the city had exercised reasonable care to keep the street in a condition for use, by providing a safe driveway 12 or 14 feet wide. Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130. [3, 4] The very charge now made by the city, that the plaintiff was guilty of contributory negligence, presupposes actionable negligence on the city's part. Birsch v. Citizens' Electric Co., 36 Mont. 574, 93 Pac. 940; Wast v. Montana Union Ry. Co., 24 Mont. 159, 61 Pac. 9. Of course, if plaintiff's attention had been attracted to the excavation before he reached it, he probably would not have been injured; but his attention was not attracted to it, even though he was looking directly ahead when he ran into the excavation, and the city failed to display any signals of the danger. While plaintiff could not close his eyes to any obvious danger, he was [5] The instructions fairly presented to the jury the duty imposed upon plaintiff, as well as the rights and liabilities of the city. Under the facts and circumstances as thus presented by this defective record, we are entirely unwilling to say that the plaintiff is shown to have been negligent as a matter of law. The best that can be said of the evidence is that it presents a proper case for the jury. The jurors were the judges of the credibility of plaintiff and his other witnessThe plaintiff's story was accepted as true by the jury and by the trial court in passing upon the motion for a new trial. In the absence of anything indicating such inherent improbability in the story as to deny it credibility, we are not disposed to question the truth of his statements. Lehane v Butte El. Ry. Co., 37 Mont. 564, 97 Pac. 1038. The facts of this case are not at all similar to those considered in Zvanovich v. Gag. non & Co., 45 Mont. 180, 122 Pac. 272. [6] 3. Finally, appellant insists that the verdict is excessive. We shall not undertake to give even a summary of the evidence. There is not any fixed standard by which to measure the money compensation for a personal injury. In every instance where the elements of pain and suffering enter into consideration, much must be left to the enlightened judgment and common sense of the jurors. In Bourke v. Butte El. Ry. Co., 33 Mont. 267, 83 Pac. 470, this court said: "However, the elements of physical and mental pain and suffering are entirely uncertain, and no fixed standard can be established for ascertaining the damages occasioned by them. The amount must, of necessity, rest in the sound discretion of the jury, and courts are ever reluctant to interfere with the verdict upon the ground that it is excessive or insufficient. The parties are entitled to a verdict from the jury, and courts ought not to substitute their judgments for those of ju RISDICTION-APPEAL FROM JUSTICE COURT. diction of a criminal prosecution upon appeal In order that a court may acquire jurisfrom a justice of the peace, it is necessary that the prosecution be one of which the justice had jurisdiction. it manifestly appears that the jurors made a |2. CRIMINAL LAW (§ 1017*)—APPELLATE JUmistake in calculation, considered an item or items of damages which should not have been considered, or abused that sound discretion which by law is vested in them." Again, in Hollenback v. Stone & Webster Engineering Corp., above, it was said: "If it is possible from the evidence in this record to account for the amount of the verdict, then this court ought not to interfere. Under the statute the amount of the verdict must, of necessity, rest in the sound discretion of the jury. The parties are entitled to a verdict from the jury, and it is only in rare instances that the court is justified in interfering, unless the record discloses that the elements of passion and prejudice have influenced the minds of the jurors in arriving at the result." [7] At the time of his injury plaintiff was an able-bodied man, 44 years of age, with a life expectancy of about 25 years. He was apparently a skilled mechanic, a woodworker by occupation, capable of earning, and actually earning, from $160 to $175 per month. For the first 9 months after the injury he was under the doctor's care, and for 6 or 7 months of that time he was not able to earn anything, and for the next 11 months, up to the time of the trial, his earning capacity was reduced more than $100 per month. He incurred doctors' bills for about $300 and a hospital bill of from $50 to $75. The jury had the opportunity to observe something of plaintiff's condition at the time of the trial, more than 18 months after he received his injuries. They heard his story and the testimony of the physicians, and returned a verdict for $3,500. Three-fourths of this amount can be accounted for without taking into consideration plaintiff's pain or suffering or his impaired earning capacity after the date of the trial. Under these circumstances it cannot be seriously urged that the verdict is excessive. The judgment and order are affirmed. Law, Cent. Dig. 88 2572-2576, 2589; Dec. Dig. [Ed. Note.-For other cases, see Criminal § 1017.*] Appeal from Superior Court, Gila County; G. W. Shute, Judge. The W. W. Brookner Company was convicted, on appeal from a justice of the peace, of unlawfully selling a sack of sugar without stamping thereon the correct weight of the contents, and it appeals. Reversed, with directions to discharge the defendant. Rawlins & Little, of Globe, for appellant. C. P. Bullard, Atty. Gen., and Leslie C. Hardy, Asst. Atty. Gen., for the State. ROSS, J. The appellant was tried in the justice's court of Globe precinct, Gila county, Ariz., upon the charge of violating section 22, chapter 91, Laws 1912 (First Session), in that it unlawfully sold a bag or sack of sugar without stamping or printing thereon, or on the wrapper thereof, the correct weight of the contents of such bag or sack. From a judgment of conviction in the justice's court it appealed to the superior court. A trial was had in the superior court upon a stipulation of the facts, and appellant was again found guilty, and sentenced to pay a fine of $100. The case comes to this court upon appeal from the judgment of the superior court. The counsel in this case expressed a keen desire to have this court go into its merits and decide the question of law as to whether, upon the facts of the case, appellant is guilty of any offense. However, we find that this is not possible, as none of the courts in which this case has been prosecuted ever acquired jurisdiction of the subject-matter. [1] The penalty fixed for the violation of the provisions of chapter 91, supra, is a fine of not less than $5, nor more than $250. Section 26, Id. Section 2 of chapter 8, Laws BRANTLY, C. J., and SANNER, J., con- 1912 (Second Session) amends paragraph cur. (14 Ariz. 546) W. W. BROOKNER CO. v. STATE. (Supreme Court of Arizona. June 6, 1913.) 1. CRIMINAL LAW (§ 90*)—JURISDICTION OF JUSTICE OF PEACE-AMOUNT OF PENALTY. A justice of the peace has no jurisdiction over a prosecution for selling a sack of sugar without stamping thereon the correct weight of the contents, as required by Laws 1912 (1st Sess.) c. 91, § 22, since the maximum penalty, a fine of $250, prescribed for the violation of that act exceeds the criminal jurisdiction of the justice of the peace, as provided in Laws 1912 (2d Sess.) c. 8, § 2. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 129-136; Dec. Dig. § 90.*] 2048, R. S. 1901, and therein limits the jurisdiction of justices of the peace in criminal cases to offenses other than felonies "where the punishment is a fine of less than two hundred dollars, or imprisonment in the county jail not exceeding three months, or both such fine and imprisonment." The test of the jurisdiction of the justice of the peace in this case, as in all others, is whether the maximum penalty that may be imposed upon convictions is greater than he is authorized to inflict. If the penalty may be greater than the maximum that he can impose, then he is without jurisdiction. Upon a conviction in this case, the court could punish the defendant by a fine of $250, which exceeds the jurisdiction of a justice of the peace. The law is well stated in 12 Cyc. 203: "Aquired filing the appeal bond, are jurisdicjustice of the peace, police judge, or other tional. In this case the bond on appeal was inferior magistrate has no jurisdiction to filed, but the record fails to show that appeltry one accused of a crime, the maximum lant gave the statutory notice of appeal. penalty or punishment of which exceeds the This is fatal, and this court has no jurisdicpower of his court to impose." tion of the case but to dismiss the appeal. [2] In order that the appellate court may acquire jurisdiction it is necessary that the court of first instance should have had jurisdiction. "As he (justice) had no jurisdiction, the circuit court acquired no jurisdiction. The jurisdiction of the circuit court depended entirely upon the justice's jurisdiction." Nace v. State, 117 Ind. 114, 119, 19 N. E. 729; State v. Babcock, 112 Iowa, 250, 83 N. W. 908. The judgment is reversed, with directions to the superior court to discharge the appellant. It may not be inappropriate to state that the manner of presenting the record to this court for review does not meet the requirements of the law and the rules of this court. The assignments of error are too general and indefinite to be considered; the appellant has prepared no abstract of the record, and in other particulars the manner of presenting the merits of the case for review are exceedingly informal. Attorneys who practice in this court must familiarize themselves with the statutory provisions and rules governing appeals and substantially comply with the appellate pro FRANKLIN, C. J., and CUNNINGHAM, cedure. This should be done to the end that J., concur. (14 Ariz. 556) THOMAS v. SPEESE. (Supreme Court of Arizona. June 6, 1913.) 1. APPEAL AND ERROR (§§ 396, 509*)-NOTICE OF APPEAL-DISMISSAL. as this court may be enabled to properly con- Under Civ. Code 1901, par. 1496, amended by Laws 1912, c. 21, providing that in all civil cases other than those where the appellant is not required to give bond on appeal the appeal is taken by giving notice of appeal, and within 20 days after such notice by filing an appeal bond, the notice of appeal is jurisdic-1. tional, and, where the record fails to show such notice, the appeal will be dismissed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2099, 2102, 2104, 2150, 2317; Dec. Dig. 88 396, 509.*] 2. APPEAL AND ERROR (§ 373*)-FILING APPEAL BOND. Where a bond on appeal is required, the filing of such bond is jurisdictional. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2001-2004; Dec. Dig. § 373.*] (Supreme Court of New Mexico. May 31, 1913.) HABEAS CORPUS (§ 116*)-COSTS-BONDS. Under Comp. Laws 1897, § 2812, providing that the officer granting a writ of habeas corment of the costs, the court is without discrepus may require a bond conditioned for the paytion in the matter, and must tax costs, however burdensome the statute may be. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 118; Dec. Dig. § 116.*] 2. HABEAS CORPUS (§ 116*)-COSTS-STENOGRAPHER'S FEES. Under Comp. Laws 1897, § 2812, providing that the officer granting a writ of habeas cor Appeal from Superior Court, Yuma Coun- pus may require a bond conditioned for payty; Frank Baxter, Judge. Action between W. Thomas and John M. Speese. Judgment for Speese, and Thomas appeals. Dismissed. Wupperman & Wupperman, of Yuma, for appellant. Peter T. Robertson, of Yuma, for appellee. FRANKLIN, C. J. [1, 2] In all civil cases other than those where the appellant is not required to give bond on appeal the appeal is taken by the appellant giving notice of appeal in open court, which shall be noted on the docket and entered of record and within 20 days after giving such notice by filing with the clerk of the court an appeal bond. Paragraph 1496, Rev. St. Arizona 1901, as amended, chapter 21, First Legislature, First Session, 1912. Giving the notice of appeal, and in cases where a bond on appeal is re ment of costs and expenses of proceeding. stenographer's fees for sending up the record upon certiorari are within the statute. [Ed. Note.--For other cases, see Habeas Corpus, Cent. Dig. § 118; Dec. Dig. § 116.*] On motion to retax costs. Motion denied. For former opinion, see 128 Pac. 64. Wilson, Bowman & Dunlavy, of Santa Fé, for relator. HANNA, J. The costs of this proceeding having been taxed against this petitioner, a motion to retax is now presented, on behalf of petitioner, for our consideration. It is argued in support of this motion: First, that at the common law a court could not tax costs in a habeas corpus proceeding, and, in the absence of statutory authority, the court is without discretion in taxing such costs. Second, the question of the taxing of costs in this proceeding falls within the scope For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes of section 3148 of the Compiled Laws of 1897, which reads as follows: "For all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law." This question has presented many difficult matters for our consideration. We find that it has been held by the territorial Supreme Court in the case of In re Borrego et al., 8 N. M. 657, 46 Pac. 211, that: "It is well settled that a proceeding in habeas corpus is a civil and not a criminal proceeding"-citing Farnsworth v. Montana, 129 U. S. 104, 9 Sup. Ct. 253, 32 L. Ed. 616; Ex parte Tom Tong, 108 U. S. 558, 2 Sup. Ct. 871, 27 L. Ed. 826; Kurtz v. Moffitt, 115 U. S. 487, 6 Sup. Ct. 148, 29 L. Ed. 458. Much controversy has arisen with respect to the proceedings, as to whether it is a civil or criminal action, or a special proceeding, and the purpose of the determination has usually been necessary to fix the jurisdiction of the reviewing court. We have examined numerous authorities, and are disposed to agree with the Supreme Court of Wisconsin, which says: "The issuance of a writ of habeas corpus is to all intents and purposes the commencement of a civil action, not an action strictly so called, within the meaning of the statute (section 2629), * but in the same sense that proceedings to enforce the remedy by mandamus and proceedings by writ of error are civil suits, as has been repeatedly held. *** Whether the issuance of such a writ be called by the Code the commencement of a civil action or special proceeding, it is to all intents and purposes the commencement of a suit and the final determination thereof is a final judgment in a suit or proceeding in the nature of a civil action." State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700. [1] In considering the question of costs, we find that this court, at the time of the presentation of the petition, required the cost bond provided for in section 2812, C. L. 1897, the pertinent provision of which section is as follows: "The officer granting the writ may, in his discretion, require a bond in a penalty not exceeding one thousand dollars, with sufficient sureties, conditioned that the obligators will pay all costs and expenses of the proceeding and the reasonable charges of restoring the prisoner to the person from whose custody he was taken, if he is remanded. Such bond shall run to the sheriff of the county, and be filed in the office of the clerk of the court from which the writ issues." Section 2817, C. L. 1897, further provides with respect to costs as follows: "The sheriff or person who shall be required to bring up a person on habeas corpus, if the prisoner be held by virtue of any legal process directed to such person as an officer, shall be entitled lowed to sheriffs for removing prisoners in other cases." We have found in our investigation that many states have fully provided for the taxation of costs in proceedings of this kind, and that such provisions are more definite than are the provisions of our statutes above referred to. It has evidently been assumed, however, by the Legislature, that the bond provided for by section 2812 was for the protection of the officer, and would enable him to recover, not only compensation for actual moneys disbursed, and reimbursement for all costs and expenses of the proceeding, and reasonable charges for restoring the prisoner to his custody, if remanded. We fully appreciate the arguments of counsel for petitioner, in their able brief, that the taxation of costs against the petitioner penalizes the petitioner and puts upon him an undue burden, which should not be imposed in a proceeding of this character. With this contention we fully agree, and think that the condition should be speedily remedied by the Legislature, as we can readily contemplate a case where the fees which might be demanded would preclude petitioner availing himself of this remedy, which has so long been a bulwark of liberty. The bond executed in this proceeding was in the sum of $500, conditioned that the principal, Sara B. Metcalf, and her surety, would pay all legal fees, costs, and expenses and reasonable charges incurred in said proceeding. It does not seem to us that the taxing of costs under the terms of the bond against the principal and surety, or either of them, is an exercise of discretion by this court, but is, on the other hand, the result of the provision of section 2812, which, however erroneous and burdensome, must be enforced by us until a different provision is made by law. It was evidently the intention of the Legislature that the petitioner might be required to either advance the costs to the person in whose custody the prisoner is, as is also provided by section 2812, but that the officer granting the writ might require bond, conditioned for the payment of all costs and expenses of the proceeding. Some states require that the county shall pay the costs incurred by officers in cases such as this and justice would seem to require that such should be the rule; but we do not have such a statute, and the Legislature, on the contrary, intended that the petitioner should pay the costs and expenses of the proceeding. [2] We also note that a portion of the costs are for the stenographer's fees for the transcript which was ordered to be sent by certiorari issuing out of this court in this proceeding. We cannot see, however, but that such items of expense are within the purview of the language used in section 2812; 1. e., the "costs and expenses of a necessary thing to have in passing upon the | to have been done was not a general election proceeding, and would seem to be an incidental item of costs in connection therewith. For the reasons given, we are under the necessity of denying the motion to retax costs; and it is so ordered. day within the meaning of the statute. This demurrer was overruled, but subsequently, by stipulation of the district attorney and counsel for appellee, the order overruling the demurrer was set aside, and a pro forma judgment entered sustaining the demurrer, ROBERTS, C. J., and PARKER, J., concur. from which judgment the territory appealed (18 N. M. 10) TERRITORY v. RICORDATI. (Supreme Court of New Mexico. May 31, 1913.) (Syllabus by the Court.) 1. INTOXICATING LIQUORS (8_163*)-ILLEGAL SALE "GENERAL ELECTION." An election which is general within the meaning of the term "general election," as used in section 4138, Comp. Laws 1897, is one that is held throughout the entire state or territory. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 179; Dec. Dig. § 163.* For other definitions, see Words and Phrases, vol. 4, pp. 3062, 3063; vol. 8, p. 7669.] 2. INTOXICATING LIQUORS (§ 163*)-ILLEGAL SALE-GENERAL ELECTION. The election of September 6, 1910, was a general election within the meaning of the term "general election" as used in section 4138, Comp. Laws of 1897. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 179; Dec. Dig. § 163.*] Appeal from District Court, Bernalillo County; before Justice H. F. Raynolds. Agostino Ricordati was indicted for selling liquor on a general election day. From an order sustaining a demurrer to the indictment, the Territory appeals. Reversed. The indictment in this case charged that the 6th day of September was the day of a general election in the territory of New Mexico, held pursuant to the provisions of an act of Congress authorizing the people of New Mexico to form a Constitution and state government; that by the provisions of said congressional act the Governor of the then territory of New Mexico, by proclamation dated June 29, 1910, designated the 6th day of September, 1910, as the day for said general election for delegates to the constitutional convention, which election was duly held on the day designated; that defendant, appellee here, on said general election day, being then and there a liquor dealer and having a place of business as such, did sell, allow to be sold, give away, and allow to be given away intoxicating liquors. The second count of the indictment charged that upon the same day the defendant did refuse, neglect, and omit to close his place of business between the hours provided by statute for the closing of such places of business. to this court. Frank W. Clancy, Atty. Gen., for the Territory. Marron & Wood, of Albuquerque, for appellee. HANNA, J. (after stating the facts as above). The question presented is whether the 6th day of September, 1910, was a general election day within the meaning of the statute under which this indictment was framed. The statute appears in the Compiled Laws of 1897 as section 4138, and is as follows: "No license shall be issued under the provisions of this act during a period of not less than sixty days prior to any general election, and every liquor dealer shall close his place of business and not sell or allow to be sold, give away or allow to be given away, any intoxicating liquors from his said place of business, from the hour of twelve o'clock, midnight, last before the day of any general election, until the hour of twelve o'clock, midnight, upon such day of election, and shall keep his said place of business closed between said hours, and upon conviction thereof, shall be fined not less than twenty-five nor more than five hundred dollars, or be imprisoned for not less than twenty days, nor more than one year, in the discretion of the court." The contention of appellee is that the election of delegates to the convention, which framed New Mexico's Constitution, was a special election, and was not "the day of any general election" within the meaning of the statute forbidding sales of intoxicating liquor on those days. It is to be conceded that the legislative intent is controlling. Our attention is called to the first act of the Legislature, upon the same subject, approved February 6, 1880, being section 1 of chapter 22. Laws of 1880, and appearing as section 1272 of the Compiled Laws of 1897, said act being as follows: "It shall be illegal for any person or persons in this territory to sell, use or give, drink or dispose of any intoxicating or spirituous liquors on the day of any general or special election in this territory." This act was entitled "An act prohibiting the sale of spirituous liquors on election day," and plainly included the day of any general or special election. Section 4138, first quoted above, was enacted as a portion of chapter 9, Laws of 1891, which act was entitled "An act licensing the sale of intoxicating liquors and regulating the same." The legislative intent, in connection with A demurrer to the indictment was interposed, raising the question that the indictment did not charge an offense, because the day, upon which the alleged illegal opening of the saloon and selling of liquor is charged |