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28 Pac. 1076, an affidavit or information is absolutely necessary in a proceeding to punish for constructive contempt. The petitioner will be discharged.

(5 Kan. A. 72)

CHUBB v. STEWARD et al. (Court of Appeals of Kansas, Northern Department, E. D. March 17, 1897.) PETITION IN ERROR RECORD · CERTIFICATE OF JUDGE.

Under paragraph 4642, Gen. St. 1889, where a case is brought to this court by petition in error from the district court, in a matter involving less than $100, not only must the record show that the case belongs to one of the excepted classes, but, in addition thereto, it must contain the certificate of the judge trying the same that it does so belong.

(Syllabus by the Court.)

Error to district court, Jackson county; L A. Myers, Judge.

Action by Jeremiah Chubb against Peter H. Steward and Cornelia Steward. Judgment for defendants, and plaintiff brings error. Dismissed.

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S. T. Price and R. G. Robinson, for plaintiff in error. Hayden & Hayden, for defendants in eror.

WELLS, J. This case is before us at this time on a motion filed by the defendants in error to dismiss the petition in error, for want of jurisdiction, claiming that the record does not show that the amount in controversy is more than $100, exclusive of costs, and that this cause was not certified to by the trial court as one of the cases mentioned and excepted in paragraph 4642, Gen. St. 1889. The plaintiff below, in the argument of this case, insisted that the record did show that the action involved more than $100, but a careful examination of the record satisfies us that such is not the case. The question, then, is as to what the record must show in cases involving less than $100; and we think, from a careful examination of the section of the statute referred to, that not only must the case appear to belong to one of the excepted classes, but the judge of the district court must certify in express terms that it does belong to one of said classes. The motion to dismiss the petition in error will be sustained.

(15 Utah, 14)

ECCLES v. UNION PAC. COAL CO. et al. (Supreme Court of Utah. March 17, 1897.) FORCIBLE ENTRY AND UNLAWFUL DETAINERDAMAGES.

appellant, under sections 3787 and 3801, Comp. Laws 1888, to recover damages for forcible and unlawful detention of the lands, subsequent to the judgment, and for treble damages, as provided for by statute, the jury found damages for appellant in the sum of $800. The court, on motion, declined to treble the damages. Held error, and that the court should have trebled the damages.

1. Appellant obtained judgment against the respondent, a corporation, for possession, and for damages resulting from an unlawful and forcible entry and detainer of lands he had obtained from the United States under the homestead laws; and the respondent still continued the unlawful and forcible detention of the premises after demand, and for about two years after judgment. In an action brought by the

2. Held, also, that the action was properly brought, under section 3787, Comp. Laws 1888. Bartch, J., dissenting.

(Syllabus by the Court.)

Appeal from district court, Carbon county; W. M. McCarty, Judge.

Action by John H. Eccles against the Union Pacific Coal Company and others to recover damages for forcible and unlawful detainer. There was a verdict for plaintiff, the amount of which the court lined to treble; and, from a judgment entered thereon, plaintiff appeals. Modified.

WilStephens & Smith, for appellant. liams, Van Cott & Sutherland, for respondents.

MINER, J. Plaintiff, on the 17th day of August, 1891, made settlement under the homestead laws of the United States upon a part of the unoccupied domain in question in this case, duly obtained his certificate of entry from the receiver of the United States land office, and otherwise complied with the laws of the United States with reference thereto, and has been in possession of the same ever since, except 35 acres thereof, which the de fendant, a corporation, has unlawfully, forci bly, and by threats, prevented the plaintiff from occupying; that on the 16th day of October, 1894, plaintiff recovered judgmen: against the defendant for the possession o! said land, and for damages for the unlawfu! and forcible detention and forcible and un lawful entry thereof up to September 5 1893; that said judgment remains in full force, and was not appealed from, but was satisfied by the payment of damages and costs; that demand has been made for the possession of said premises, and possession refused; that on February 1, 1896, peaceable possession of said land was delivered to the plaintiff. This action was brought under subdivision 1 of section 3787, and section 3801, Comp. Laws Utah 1888, to recover dam ages for the forcible and unlawful detention of said land, and for the rents, profits. and issues of the same, from the 5th day of September, 1893, to the 1st day of February. 1896. Plaintiff alleged and proved that said premises were forcibly detained by the defendant. In his complaint, the plaintiff asked for treble damages. On the trial, the jury rendered judgment in favor of the plaintiff, and against the defendant, for the unlawful and forcible detention of the premises, and assessed his damages therefor at the sum of $800. Thereupon counsel for plaintiff moved the court to treble the damages as found by the jury, and that judgment be entered in favor of the plaintiff in the

sum of $2,400 and costs. The court overruled the motion, and declined to enter judgment for treble the amount of damages found, but entered judgment for the sum of $800, as found by the jury, to which plaintiff excepted. This refusal is the only error assigned in the record. The respondent did not appeal from either judgment, but is here asking an affirmance of the judgment, without trebling the amount of damages.

court said: "The defendant, not having shown any capacity in himself to acquire the government title to the demanded premises, nor any effort or intention to do so, stands in the position of a mere naked trespasser upon the public domain, with an inclosure erected and maintained contrary to the express provisions of the act of congress of February 25, 1885." "Plaintiff had a right to make his homestead entry on the whole tract, notwithstanding the possession of the defendant of the greater portion of it." The record shows that the jury found the issues in favor of the plaintiff, and against the defendant, and assessed plaintiff's damages in the sum of $800, for the unlawful and forcible detention of the land described in the complaint. The defendant does not seek to set aside this judgment, but asks that the same be affirmed, but not trebled. Section 3799, Comp. Laws Utah 1888, provides that, "on the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer."

Subdivision 1, § 3787, Comp. Laws Utah 1888, reads as follows: "Every person is guilty of a forcible detainer who either: (1) by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise." Section 3801, Comp. Laws Utah 1888, as amended by Sess. Laws 1892, p. 45, reads as follows: "If, upon the trial, the verdict of the jury, or if the case be tried without a jury, the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises, and if the proceedings be for unlawful detainer after neglect or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement. The jury or the court, if the proceeding be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, and any amount found due the plaintiff by reason of the waste of the premises by the defendant during the tenancy, alleged in the complaint, and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of the rent; and the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible or unlawful detainer, for three times amount of the damages thus assessed, and of the rent found due." Under the act of congress of February 25, 1885 (St. U. S. 1884-85, p. 321, found in 1 Comp. Laws Utah 1888, p. 239), an inclosure of public land of the United States by any corporation, etc., is declared unlawful, and the inclosure of the same, without right, is forbidden and prohibited. This court held, in Taylor v. Buford, 8 Utah, 113, 29 Pac. 880, that "one in possession of land which he holds in violation of the statutes can claim no damages under the estray law for trespassing animals," etc. In U. S. v. Buford, 8 Utah, 173, 30 Pac. 433, this court held, when appellants had erected a fence entirely upon their own lands, which fence inclosed a portion of the public lands of the United States, that they had committed the offense of unlawfully inclosing public lands. Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305. In Whittaker v. Pendola (Cal.) 20 Pac. 680, the

the

The judgments rendered are conclusive that the appellant was entitled to the possession of the premises at the time of the alleged forcible detainer; that such detainer was forcible; that the damages assessed were for the unlawful detainer alleged in the complaint. So that the only further question for us to consider is whether the damages found by the jury should have been trebled by the court. Chapter 4 of the Code of Civil Procedure, which contains the forcible entry and detainer provision of the statutes, embraces, as is shown by its title, a summary proceeding for obtaining possession of real property in certain cases therein specified; and section 3801, Comp. Laws Utah 18SS, above quoted, summarizes the remedy and judgment to be given under the several provisions of the statute. Under this section, if possession is asked for, and the proof justifies it, judgment of restitution is to be awarded. If the proceedings are for unlawful detainer, after neglect or failure to perform the conditions of the lease, or after default in payment of rent, judgment is to be awarded which shall declare a forfeiture of the lease. If damages for forcible entry or detainer and rent are declared for, the amount of the rent must be specified. If judgment is rendered against a defendant guilty of forcible entry or forcible and unlawful detainer, judgment for three times the amount of the damages assessed therefor, and for the rent found due, if any, should be entered. No rent is specified or found due in the verdict as rendered by the jury. In Conroy v. Duane, 45 Cal. 606, it is held: "If the detainer was unlawful and forcible, the defendant is liable for forci

ble detainer, whether he originally obtained the possession peaceably or otherwise. It is immaterial whether the entry was peaceable or violent, provided it was unlawful and the detainer was forcible." In Tewksbury v. O'Connell, 25 Cal. 265, the court said: "The damages are not necessarily confined to compensation for waste and injury only, as these terms are understood in their proper technical sense, but the value of the rents and profits may enter into the estimate of damages, as the language of the statute clearly imports. If no waste or other injury be committed, the loss of the use and occupation of the premises may be the only damage sustained by the complainant, and that value, when ascertained, is the proper measure of damages in such case. These damages are to be ascertained, or, in other words, assessed, by the jury, or by the court acting without a jury, according to the truth of case; and, when this is done, it is made the duty of the court to treble them."

The record shows that all the issues contained in the pleadings were found by the jury in favor of the plaintiff, and against the defendant, for the unlawful and wrongful detainer of the premises in question. As the case is presented, we are of the opinion that the court below should have trebled the damages found by the jury, and rendered judgment accordingly. Hitchcock v. Pratt, 51 Mich. 263, 16 N. W. 639; Conroy v. Duane, 45 Cal. 606; Whittaker v. Pendola, 20 Pac. 680; Kitts v. Austin (Cal.) 23 Pac. 290; Railway Co. v. Strand (Wash.) Id. 928; Wilson v. Shackelford, 41 Cal. 630; Rimmer v. Blasingame, 94 Cal. 139, 29 Pac. 857: Tewksbury v. O'Connell, 25 Cal. 262; Light Co. v. Morgan (Mont.) 34 Pac. 488; Section 3467, Comp. Laws Utah 1888, under which the respondent claims the damages should have been assessed, is found in chapter 2, tit. 10, of the Code of Civil Procedure, under the title of actions for a nuisance, waste, and willful trespass on real property. This section has reference to damages arising in actions for nuisances, waste, and willful trespass in certain cases to real property covered and particularly provided for by the preceding sections in the same chapter, and not to cases of this character. Title 10 has reference to actions in particular cases specified. Section 3801 appears to be a later enactment, and was amended in 1892 (Laws 1892, p. 45), by striking out the latter part of the section not quoted above, and by adding thereto the clause with reference to waste. This action was properly brought under section 3787, which deals with the subject of forcible entry and detainer; and we see no valid reason why the damages found for forcible detainer should not be trebled by the court, as provided by the act. Under the authorities, there seems to be no escape from this result. The plaintiff is entitled to have the damages for forcible and unlawful detainer trebled by the court, with costs. For the reasons given, the

case is remanded, with directions to the court below to modify the judgment by trebling the damages found by the jury, in accordance with the views herein expressed.

ZANE, C. J., concurs.

BARTCH, J. I dissent, because, in my judgment, no case is here presented in which treble damages ought to be allowed. To reverse the action of the lower court, and treble the damages, under the pleadings and record of this case, requires a more liberal construction of the statutes than appears to be warranted by the authorities.

(15 Utah, 67)

CITY OF EUREKA v. WILSON. (Supreme Court of Utah. Feb. 16, 1897.) SUPREME COURT-JURISDICTION-MUNICIPAL CORPORATIONS-POWERS-ORDINANCES-FIRE

LIMITS-POLICE POWER.

1. Under section 9 of article 8 of the constitution, the supreme court has power to consider the question of the validity or constitutionality of a statute or city ordinance on appeal, where such question was raised in the district court, and was decided, or if it ought to have been decided, by that court, in a case which was originally brought before a justice of the peace; but the supreme court, on such appeal, has no jurisdiction to determine any other question which does not affect the validity or constitutionality of a statute or ordinance. Case of City of Eureka v. Wilson (previously decided at the present term) 48 Pac. 41, followed.

2. Comp. Laws Utah 1888, § 1755, subd. 54. confers upon the city council of any incorporated city in this state the power to establish fire limits by ordinance, and to prohibit within such limits, without permission, the erection of any buildings thereon with combustible material; and such council may also, by ordinance, regulate and restrict the granting of permission to erect such buildings within such limits, but it cannot delegate to an officer or committee the power to enact regulations and restrictions respecting the erection of such buildings, although it may confer upon an officer or committee the power or discretion to grant permission in accordance with such lawful régulations and restrictions as the council may impose.

3. An ordinance of such character as is authorized by the statute is within the police power of the state, and does not contravene section 1 of article 14 of the amendments to the constitution of the United States.

4. Section 2, Ordinance No. 16 of Eureka City, in conformity with statute, prescribes the kind of material to be used in the construction of buildings within the fire limits of that city. and also prescribes that certain classes of buildings, giving particular descriptions of the same, may be constructed with combustible material within such limits. Then follows a proviso wherein the "committee on buildings" is empowered, on application therefor by any person, to grant permission to erect any building with combustible material within the inhibited district, under such "regulations and restrictions" as that committee may provide. Held, that the provisions contained in and those referring to the proviso must be stricken out as invalid and inoperative, and that the remaining provision of section 2 may stand, in conneetion with the other sections of the ordinance. Held, further, that the provisions of the ordi

nance extend to and protect all vacant places within the fire limits, and prohibit the removal of a wooden building to the inhibited district, or even from one part of such district to another.

5. Where the portion of a statute or ordinance which is invalid is distinctly separable from the remainder, and the remainder in itself contains the essentials of a complete enactment, the invalid portion may be rejected, and the remainder stand as valid and operative. (Syllabus by the Court.)

Appeal from district court, Fifth district; E. V. Higgins, Judge.

R. G. Wilson was convicted of violating an ordinance of Eureka city, and appeals. Affirmed.

J. W. N. Whitecotton, for appellant. B. N. C. Stott, Co. Atty., and Williams, Van Cott & Sutherland, for respondent.

BARTCH, J. This case was commenced before a justice of the peace, and the defendant, after having been convicted of a violation of an ordinance of Eureka city which forbids the erection of wooden buildings, without permission, within certain defined limits, appealed to the district court, and, upon conviction and fine there, to this court.

The record presents several questions, raised on behalf of the appellant, respecting the rulings of the district court as to the sufficiency of the complaint before the justice of the peace, and the allowance of amendments thereto. These questions simply relate to the interpretation which the district court put upon various provisions of statute, and do not affect the validity or constitutionality of a statute. We have no power to consider such questions in this class of cases, because, under section 9 of article 8 of the constitution, the decision of a district court on all questions except those affecting the validity or constitutionality of a statute is final and conclusive. We so held in the case of City of Eureka v. Wilson (decided at the present term) 48 Pac. 41, to which we refer for our opinion on this point. In that case we also discussed the question whether an appeal would lie in a case like the one at bar, where the validity of a city ordinance, and not of a statute, is involved; and on the authority of that case, and in conformIty with it, we hold that the appeal herein was properly taken, and that we have jurisdiction to determine the validity of the ordinance under which the appellant was convicted, but have no jurisdiction to determine any other question presented.

The principal question to be determined in this case, therefore, is whether the ordinance under which the appellant was convicted and ined is constitutional and valid. Counsel on behalf of the appellant insists that it conflicts with section 1 of article 14 of the amendments to the constitution of the United States, and that it delegates legislative power to a committee of the city council, and is therefore void. The provisions of the ordinance in controversy here may be found in section 2,

Ordinance No. 16 of Eureka city, and read as follows: "Every building hereafter erected within the fire limits of this city shall be of brick, stone, iron, or other substantial or incombustible material, and only the following wooden buildings shall be allowed to be erected, except as hereinafter provided, viz.: Sheds to facilitate the erection of authorized buildings, coal sheds not exceeding ten feet in height, and not to exceed one hundred feet in area, and privies, not to exceed thirty-six feet in area and ten feet in height, and all such such sheds and privies shall be separate structures: provided, that any person desiring to erect a building of other material than those above specified within said fire limits, shall first apply to the committee on buildings within said fire limits of the city for permission so to do, and if the consent of the committee on building within said fire limits shall be given, they shall issue a permit, and it shall thereupon be lawful to erect such building under such regulations and restrictions as the committee on building within said fire limits may provide." The authority under which this ordinance was passed can be found in subdivision 54, § 1755, Comp. Laws Utah, 1888, which provides that the city council shall have power, among other things, as follows: "To define the fire limits and prescribe limits with in which no building shall be constructed, except brick, stone, or other incombustible material, without permission, and to cause the destruction or removal of any building constructed or repaired in violation of any ordi nance; and to cause all buildings and inclosures which may be in a dangerous state to be put in a safe condition." This provision of the statute confers upon the city council of any incorporated city in this state the pow er to establish fire limits, and to prohibit. within such limits, without permission, the erection of any building with combustible ma terial, leaving all persons free to erect build ings of brick, stone, or other incombustible material within such limits. The erection of buildings with combustible material may be prohibited by ordinance, and the granting of permission for the erection of such buildings may likewise, by ordinance, be regulated and restricted. Such was doubtless the intention of the legislature. The power thus conferred by the legislature upon the city council is. however, of a legislative character, and may not be delegated by the council to a committee. Such power being vested in the council, it must be exercised by it. If an ordinance specifies fire limits in a city in accordance with the statute, and prohibits the construction of buildings of wood or of any combustible material within such limits, without permission, and also prescribes proper regulations and restrictions under which such permission shall be granted to all applicants under like cir cumstances, it is valid, notwithstanding it confers power upon an officer or committee to grant permission to erect such buildings in conformity with its provisions. The power

to grant the permission does not vest in the officer or committee an arbitrary discretion, but it vests in him or them merely a legal discretion, which must be exercised fairly, reasonably, and honestly. An ordinance of such a character is authorized by the statute, as well as by the police power of the state, and does not contravene section 1 of article 14 of the amendments to the constitution of the United States. City of Eureka v. Wilson, supra.

Section 1 of the ordinance in question in this case defines the fire limits of Eureka city. Section 2, above quoted, in conformity with the statutes, prescribes the kind of material to be used in the construction of buildings within the fire limits, which shall be brick, stone, iron, or other incombustible material. It also prescribes that certain classes of buildings, giving particular descriptions of the same, may be constructed with combustible material within such limits. Then follows a proviso wherein the "Committee on Building" is empowered, on application therefor by any person, to grant permission to erect any building with combustible material, under such "regulations and restrictions," as that committee may provide. All the provisions of section 2 not contained in the proviso appear to be authorized by the statute, and to conform to the principles herein before stated, respecting ordinances. By adding the proviso, however, the council has attempted to confer upon a committee, not only an absolute power, which would enable it to defeat the very object of the ordinance at its mere will and pleasure, but also a legislative power, which would enable it to perform a duty imposed upon the council itself by the statute, and that is to provide regulations and restrictions to control the granting of permission according to the provisions of the ordinance. This the council had no power to do. The erection of a wooden building in any part of the city is not in itself unlawful. It only becomes so when forbidden by law, within the fire limits, for the security of persons and property, and the promotion of the interests and good order of the city; and while a city council in this state may prohibit, by ordinance, the construction of buildings, within fire limits, of combustible material, still it cannot confer a power upon a committee, such as is attempted to be conferred by the proviso, which may be used as a means for unjust and arbitrary discrimination between citizens. If this proviso were valid, then, no matter what regulations and restrictions the committee might adopt, it would still be within its power to grant permission to one person to erect a wooden building, and refuse the privilege to another under the same circumstances. The statute vested in the council the exercise of powers of legislation respecting the establishing of fire limits and the construction of buildings therein. This demands a discretion in the council itself,

and cannot be delegated. The proviso cannot be justified as a reasonable exercise of the authority conferred by the statute, and is void. Horr & B. Mun. Ord. § 10; Newton v. Belger, 143 Mass. 598, 10 N. E. 464.

The fact that the proviso is void, however, affords no sufficient reason to declare the whole ordinance invalid. The ordinance is capable of enforcement independent of the proviso. The provision defining the fire limits and the prohibition against the erection therein of buildings of inflammable material, except certain described classes of buildings, are complete, distinct, absolute, and apparently in no essential manner dependent upon the void provision. It is apparent from the valid portion of the ordinance that the council intend to prohibit the construction of buildings of the objectionable material, so as to promote the security and protection of persons and property, and the good order of the city; and the council itself doubtless has authority, under the statute, to exercise the power, in a proper manner, which it attempted to delegate to the committee. There is nothing apparent which would justify this court in holding that the city council would not have enacted the ordinance except in connection with the proviso. The provisions contained in, and those referring to, the proviso, must be stricken out as invalid and inoperative; and the remaining provisions of section 2 may stand in connection with the other sections of the ordinance. It is a wellsettled rule that where the portion of a statute or ordinance which is invalid is distinctly separable from the remainder, and the remainder in itself contains the essentials of a complete enactment, the invalid portion may be rejected, and the remainder stand as valid and operative. In City of Detroit v. Ft. Wayne & B. I. Ry. Co., 95 Mich. 456, 54 N. W. 959, Mr. Justice McGrath, speaking for the court, said: "It is well settled that an ordinance may be good in part, although bad in part. It is only necessary that the good and bad parts be so distinct and independent that the invalid parts may be eliminated, and that what remains contain all the essentials of a complete ordinance." In Fisher v. McGirr, 1 Gray, 1, Mr. Chief Justice Shaw, delivering the opinion of the court, said: "We suppose the principle is now well understood that where a statute has been passed by the legislature, under all the forms and sanctions requisite to the making of laws, some part of which is not within the competency of legislative power, or is repugnant to any provision of the constitution, such part thereof will be adjudged void, and of no avail, while all other parts of the act, not obnoxious to the same objection, will be held valid, and have the force of law. There is nothing inconsistent, therefore, in declaring one part of the same statute valid, and another part void." 1 Dill. Mun. Corp. § 421; State v. Kantler, 33 Minn. 69, 21 N. W. 856; Ex parte Christensen, 85 Cal. 208, 24

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