new county is a matter addressed to the legislature. The question of what, if any, proportion of the debts of the old should be paid by the new county, with all other questions concerning division, is with the legislature. If the legislature deemed it just that some proportion of the debt of the old should be paid by the new county, and could not itself fix that proportion, it could provide the machinery by which this proportion could be ascertained by the courts or by commissioners, and the basis upon which to make the computation. The complaint shows that certain sums were paid out by plaintiff in three different years, and for each year the proportion of defendant's liability is fixed by taking the assessed valuation of the property of each county for that year, and charging defendant a proportion of the whole amount paid on the debt, in the ratio the assessment in the new county bears to that of the old. So far as any authority for taking this basis of settlement is concerned, it is arbitrary, and without any constitutional or legislative warrant. A large part of the debt was incurred for building a courthouse which remained in Tulare county. The legislature may have thought it inequitable to place any portion of this burden on the new county, as it would have to build one for its own uses. Possibly the road bonds were for expenditures on roads wholly within the remaining territory of Tulare county. These considerations, with all others bearing upon the question of county division, it must be presumed, were brought to the attention of the legislature.

In the case of Bristol v. New Chester, 3 N. H. 534, speaking of the power to divide towns, it was said that the power is strictly legislative, and that the power to prescribe the rule by which a division of the property of the old town shall be divided is incident to the power to divide the territory, and is in its nature purely legislative. In the case of Commissioners of Laramie Co. v. Commissioners of Albany Co., 92 U. S. 307, the principle stated in the case last cited is approved, and it is further held "that, if the legislature omit to make any provision as to the property and the debts of the old county, the presumption must be that they did not consider that any legislation in the particular case was necessary. Where the legislature does not prescribe any such regulations, the rule is that the old corporation owns all the public property within her new limits, and is responsible for all debts contracted by her before the act of separation was passed. Old debts she must pay without any claim for contribution"; citing numerous cases. See, also, Dill. Mun. Corp. § 188. Again, the constitution does not state to whom the liability for a just proportion of the debts of the old county shall be payable. It does not state when the liability shall begin or end, so as to guide the courts in determining what liabilities are to be deemed existing. It does not declare any rule by which to establish a basis of apportionment, whether upon an assessment for the year preceding the division,

or the year of the division, or some subsequent assessment to be made for that special purpose. It provides no machinery by which any such basis could be ascertained by the courts. It leaves the consideration of the value of the public property remaining in the old county entirely out of view, and this consideration alone might fully justify the imposition of the entire debt of the old county on that county alone. It would seem to me, if the courts should undertake to determine this question upon the authority of the constitution alone," they would have neither compass nor rudder by which to be guided. Since the new constitution went into effect, there have been five new counties created, viz. Glenn, Madera, Riverside, Orange, and Kings. In the acts creating three of these counties, to wit, Glenn, Madera, and Kings, no provision was made for payment of any part of the debts of the old counties. In the other two, provision was made. Here is a legislative construction given to the constitution, which, while not binding upon this court, contributes to the correctness of the position taken in this opinion.

But I think the very question has been settled by this court in Los Angeles Co. v. Orange Co., 97 Cal. 329, 32 Pac. 316. Plaintiff seeks to avoid the result of that case by declaring it to be dictum in so far as it construes section 3, art. 11, of the constitution. In this position counsel are, I think, wholly mistaken. The point was not so directly raised there as it is here, and yet its decision seems to me to have been naturally. if not necessarily, involved. The act under which Orange county was carved out of Los Angeles provided that the debts of the old county existing on the day the act took effect should be ascertained by commissioners, and paid proportionately to the assessed value of the property of the respective counties of a certain year. Los Angeles county claimed certain sums for expenditures after that date, March 11, 1889, and up to the date of the organization of the new county, August 2, 1889. Payment was refused when the claim was presented to the board of supervisors, and the action followed. The trial court sustained a demurrer to the complaint. and the judgment was affirmed here. The learned justice, in delivering the opinion of the court, called attention to the established rule that, where no provision is made by the legisiature as to the debts of the old county, they remain with the old county. He then takes up the constitutional provision in question, and says: "The mode of determining the just proportion' of the debts and liabilities for which the new county shall be liable is not prescribed in the constitution, but is left to the determination of the legislature in each particular case." He points out that the legislature did provide a mode of ascertaining the "just proportion" of the debts, by the appointment of commissioners, and limited the liabilities to those existing at the time the act took effect, and he says: "As the legislature could divide the public property and assets

of the county in such mode as it might choose, it was competent for it to fix upon a date which it might select as the time for ascertaining their amount and value, as well as determining in connection therewith the 'just proportion' of the debts and liabilities to be assumed by the new county. In the present instance the legislature fixed the time when the act took effect as the proper period for ascertaining the amount of these assets and liabilities, and it cannot be held that the constitutional provision was violated in selecting that as the point of time at which to properly determine what would be a 'just proportion' of the debts and liabilities to be assumed by the new county." The expenditures for which the claim was made were incurred in the new county prior to its organization, but after the date of the act, and the commissioners had reported these separately, with the remark "that, as a matter of equity, the amount should be refunded by Orange county to Los Angeles county." The opinion upon this point continues: "The legislature may have considered that it would be necessary for the county of Los Angeles to expend money for municipal purposes within this territory; and, as it was within its discretion to determine that it should bear- the burden of any of the expenditures which it might thus make, the fact that it has made no provision for its reimbursement is indicative that it was not its intention that it should be reimbursed therefor." Now, this was just such a claim as counsel for plaintiff insists must be heard and determined by the judicial arm of government, and that over it the legislature has no jurisdiction or power whatever. It seems to me the decision necessarily settles the very question here, that it is a legislative, and not a judicial, function.

him"). This section presupposes some contractual relations between the parties, but no relations existed here except such as were created by the act authorizing the division of the counties. None were created by which a duty was imposed upon Kings county to pay directly, or to contribute to, the existing indebtedness.

3. Plaintiff also claims a right of action under section 2847, Civ. Code, relating to the obligation of a principal where the surety satisfies the obligation. I can see no application of the principle of that section to this case. Tulare county was not surety for Kings county in any legal sense.

4. Plaintiff further claims that the court has power to grant the relief under section 3523, Civ. Code, and section 187, Code Civ. Proc. The Civil Code section declares that for every wrong there is a remedy. This may not be questioned. The remedy in this case is with the legislature, as we have found, and not with the courts. The section of the Code of Civil Procedure cited provides that when jurisdiction by the constitution, or this Code, or by any other statute, is conferred on a court, all the means necessary to carry it into effect are also given, and if, in the exercise of its jurisdiction, the course of proceeding be not pointed out specifically, any suitable process or mode of proceeding may be adopted by the court which may seem most conformable to the Code. To make this section available, we must assume that the statute law or the constitution confers jurisdiction in such a case as this upon the courts. But we have found no such jurisdiction to exist, and hence the section does not apply, and it becomes unnecessary to notice the very numerous cases cited by plaintiff which its counsel have colThose nearest in point are cases where the legislature did in fact provide a mode of ascertaining the several liability of the two counties, and the courts were appealed to in aid of the remedy. Numerous citations of state constitutions with similar provision to ours in the matter of county division are given, but counsel admit their failure to find any case reported where the facts were like those here. I find no error in the conclusion reached by the trial court, and it is recommended that the judgment be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

SEARS v. FLODSTROM.

(5 Idaho, 314)

(Supreme Court of Idaho. May 18, 1897.) REVIEW ON APPEAL PROMISE TO PAY DEBT OF ANOTHER.

1. Where the sole question in a case is one of fact, and the evidence is conflicting, the finding of the jury will not be disturbed.

2. Plaintiff was the proprietor of a meat market. Defendant was the owner of a board

ty, state of Idaho, having paid the city clerk the sum of fifty dollars for one-quarter thereof, conformably with the laws of said state and Ordinance No. 155 of Boise City, passed and approved Jan. 7, 1895. [Signed] H. E. Neal, City Treasurer. [Countersigned] Arch Cunningham, City Clerk,"-as his justification for conducting said gambling game. The court rejected said offered evidence as immaterial and no justification, to which ruling the defendant then and there duly excepted. The defendant then offered in evidence Ordinance No. 155 of said city, which is entitled "An ordinance licensing banking games at cards and the game known as 'American Tan,'" which proffered evidence was rejected by the court, for the reason that it was immaterial and no justification. Said ordinance is as follows: "Section 1. There shall be levied and collected by the city auditor, as tax collector, licenses as follows: Sec. 2. From each and every person who keeps or runs, or in whose saloon, house or place of business is kept or run, in Boise City, Idaho, any faro, monte, American tan or twenty-one game, or any other banking game or games at cards, dice or other device, must pay a license of fifty dollars per quarter, or any less time, for each and every game,"-approved January 7, 1895. Said ordinance contains two other sections, not necessary to be set forth here. The defendant then offered in evidence an act of the state legislature entitled "An act to amend sections three, five and eleven of an act incorporating the city of Boise," approved Jan. 11, 1866, being sections 130, 132, and 138 of the Special and Local Laws of Idaho. Said firstmentioned act was approved March 12, 1897. The particular part of said act offered in evidence is as follows: "The mayor and common council shall have full power and authority within Boise City to regulate and restrain, in their discretion, upon special application, to license and tax: * Gaming and gambling houses." The court rejected said offered act as immaterial, to which the defendant excepted. The defendant then rested. Thereupon the cause was adjourned to the following day, and the court on that day found the defendant guilty as charged in the information, and sentenced him to pay a fine of $200, and, in default of payment thereof, to be confined in the county jail one day for each $2 of said fine. The fine not being paid, the defendant was thereupon confined in the county jail. He thereafter made application to be released on habeas corpus.

*

It is conceded by counsel that the decision of this case depends upon the provisions of the constitution and laws of this commonwealth. The city of Boise was incorporated by a special act of the legislature, approved January 11, 1866. See Special & Local Laws Idaho 1863-87, p. 22. By the fourth subdivision of section 5 of said act, the mayor and common council are empowered to license gambling

houses. By the thirtieth subdivision of said section 5, the city council is empowered to make all needful by-laws, ordinances, and regulations not repugnant to the constitution and the laws of the United States, or of this state. The authority of the city council, by ordinance, to license gambling houses, continued, at least, to the 8th day of May, 1897, at which date a general law prohibiting gambling went into effect. Said act prohibiting gambling went into effect on May 8, 1897, and expressly repeals all acts or parts of acts inconsistent with the provisions of said act. Sess. Laws 1897, p. 53. It is also conceded that the only question for decision in this case is: Did the general law prohibiting gambling repeal that provision of the city charter empowering the city council to license gambling? Section 19 of article 3 of the constitution provides that the legislature shall not pass local or special laws in certain enumerated cases, one of which is for the punishment of crimes and misdemeanors. While it is true the legislature has not attempted to pass a local or spe cial law against gambling, or for the punishment of an act made a crime by said antigambling law, yet, if that law be so construed as to make an act lawful in one part of the state which is in another part made a misdemeanor, the result would be a local or special law. The legislature would then be enabled to do indirectly what it is prohibited from doing directly. But the legislature did not intend that said anti-gambling act should apply to only part of the state. It was intended as a general law applying equally to the entire state. Section 2 of article 12 of our constitution is as follows: "Any county or incorporated city or town may make and enforce within its limits, all such local, police, sanitary and other regulations as are not in conflict with its charter or with the general law." This provision of the constitution authorizes the council of Boise City to make and enforce ordinances that are not in conflict with the general laws, and forbids the making and enforcing of any ordinance in conflict with the general laws. The act amending sections 3, 5, and 11 of the charter of Boise City, approved March 12, 1897, provides that the city council may pass ordinances not repugnant to the constitution and laws of the United States, or the laws of this state necessary or convenient for carrying the powers and authority granted into effect. See Sess. Laws 1897, p. 85. Thus, it is shown by the original charter of Boise City, also by section 2 of article 12 of the constitution, and the act amending the charter of Boise City, that it was not the intention of the legislature or the framers of the constitution to empower the council of incorporated cities and towns to pass ordinances in conflict with the general laws of the state. The cardinal rule in construing constitutional, as well as statutory, provisions, is to discover and enforce the intention of those who made them. Said provision of the constitution, as well as the provisions of the original charter

of Boise City, and as amended, are too plain to require construction. It was not the intention to permit or authorize the councils of incorporated cities to legalize, by ordinance, acts prohibited as criminal by the general criminal laws of the state, or to enforce ordinances in conflict with the general law. In case of a conflict the ordinance must give way. The ordinances authorized by the charter of Boise City must be in harmony with the general laws of the state. On the point involved in this case, see Black, Interp. Laws, 116 et seq.; Heinssen v. State (Colo. Sup.) 23 Pac. 995; Ex parte Solomon, 91 Cal. 440, 27 Pac. 757. The petitioner relies upon the authority of Davis v. State, 2 Tex. App. 425; State v. Clark, 54 Mo. 17; 1 Dill. Mun. Corp. § 54; Chamberlain v. City of Evansville, 77 Ind. 542; and other authorities. If any of the said authorities are under a constitution like ours, or a charter like that of Boise City, we are not disposed to follow them. Some of said authorities are not under constitutions or laws like those of this state; hence are not in point. The judgment of this court is that the discharge of the petitioner is denied, and he is remanded to the custody of the sheriff of Ada county.

1. A final judgment is one that fully settles the rights of the parties to the action. A judgment or order of court determining the law applicable to the issues of an action, but leaving questions of fact unsettled, is not a final judgment, or such judgment as is reviewable on appeal.

2. The clerk of a district court could not be required, at the time the controversy herein arose, to certify a transcript on appeal from his court, unless the legal fees for copying and certifying such transcript provided by law should be tendered to him.

(Syllabus by the Court.)

Appeal from district court, Idaho county; W. G. Piper, Judge.

Submission of controversy between Carrie M. Potter and others and A. W. Talkington. From a judgment for plaintiffs, defendant appeals. Dismissed.

James E. Babb, for appellant. James W. Reid, for respondents.

QUARLES, J. A question arose between the parties to this proceeding as to the fees allowable by law to the appellant as clerk of the district court below, and the matter was submitted by stipulation, without action. The judgment of the lower court is in words and figures as follows: "In the above-entitled action, the parties having submitted the controversy to the decision of the court upon a statement of facts agreed upon by and between them, Jas. W. Reid appearing as counsel for

No

the plaintiffs, and W. N. Seales as counsel for the defendant, and the court having considered the same, and being fully advised in the premises, it is ordered, adjudged, and decreed, and the court doth hereby order and adjudge, that the plaintiffs pay to the defendant the fees allowed by law to clerks of court for a seal and certificate, to wit, the sum of fifty cents, and, in addition thereto, a reasonable fee for the time and labor required by the de fendant in comparing said transcript with the original papers and certifying as to their accuracy. The said reasonable fee is hereby adjudged to be at the rate of five dollars per day for each day of seven hours-business hours-actually required in comparing said transcript with said original papers, and such pay of fifty cents and five dollars per day is in lieu of all other compensation for certifying said transcript. Dated this 10th day of October, 1896. W. G. Piper, District Judge." "Said judgment filed Nov. 10, 1896, and entered same day in Judgment Book No. 1, p. 278." The aforesaid judgment purports to settle the law applicable to the pending controversy erroneously, we think, but does not determine the facts involved, or fix absolutely the amount of fees due the appellant. execution or final process could issue on said judgment; hence it is not a final judgment, and for that reason no appeal will lie therefrom. But, as the parties are proceeding informally, and are seeking to ascertain wha the lawful fees of the clerk for certifying a transcript on appeal which has been prepared by the appellant are, we express the opinion that in such case the clerk is entitled to the full fees allowed by law for copying and certifying such transcript. To lessen the costs of appeals, this court has adopted a rule which permits the appellant to prepare the transcript on appeal, and present it to the attorney for the respondents, and the attorneys of the respective parties may then certify to such transcript. Under said rule, if the respondent's attorney fails to certify the transcript, the respondent is liable to the appellant for the cost of procuring a certification of such transcript, and it is incumbent on this court to see that the rule is enforced. Under the law as it existed when this controversy arose the clerk could not be required to authenticate any record except such as should be made by him, and then only on payment of the fee allowed for making and certifying the transcript, and this was true although the transcript should have been made by some one else. Edmondson v. Mason, 16 Cal. 387; Chambers v. Appleton, 47 N. Y. Super. Ct. 524; State v. Kelsey, 44 N. J. Law, 1; Morrison v. Rodes, 7 T. B. Mon. 20. As to the fees allowable to a clerk in such cases since the adoption of the act of March 12, 1897, we express no opinion. The appeal herein is dismissed, with costs to respondents.

SULLIVAN, C. J., and HUSTON, J., con

cur.