fixing the compensation and prescribing the duties of the attorney general, imposes on that officer certain narrowly limited powers to which other powers have been added by other statutes from time to time. Burns' Ann. St. 1914, § 9269, provides that the Attorney General shall prosecute and defend all suits instituted by or against the state, the prose cution and defense of which is not otherwise provided for by law. Held, that the Attorney General has no common-law authority to institute quo warranto proceedings, since it is the policy of this state, as shown by its Constitution, statutes, and judicial decisions, to hold administrative officers to the rule of delegated power, and moreover the word "prescribe" has a definite and very limited meaning and means to write before, to set down authority, to dictate, to impose as a peremptory order, and where an officer's duties are prescribed by statute he has no authority beyond the statute. State v. Home Brewing Co. of Indianapolis, 105 N. E. 909, 913, 182 Ind. 75. Under 17 Del. Laws, c. 207, authorizing city council to "prescribe and regulate" use of streets, and 18 Del. Laws, c. 188, creating street and sewer department, and conferring upon the board of directors thereof "entire jurisdiction and control" of streets, the street and sewer department could prohibit operation of busses on streets without permit from the department, notwithstanding 32 Del. Laws, c. 115, 33 Del. Laws, c. 121, and 26 Del. Laws, c. 206, since the word "jurisdiction" means power and authority, and the word "prescribe" has a broader meaning than word "regulate," and is defined to mean to lay. down authoritatively as a guide, direction, or rule. Cutrana v. City of Wilmington, 127 A. 421, 425, 14 Del. Ch. 434. PRESCRIBED BY LAW OR ORDINANCE See First and Second Series. The phrases "prescribed by law" and "provided by law," when used in constitutions, generally mean prescribed or provided by statutes. Lawson v. Kanawha County Court, 92 S. E. 786, 789, 80 W. Va. 612. As used in Comp. Laws 1897, § 1054, providing the punishment for a criminal convicted of a felony for which no punishment is "prescribed by law," the phrase quoted means prescribed by statute law, not by common law. Ex parte De Vore, 136 P. 47, 52, 18 N. M. 246. That which is "prescribed by law" means that which is prescribed by an existing law and not by a law which has ceased to exist. Governor's proclamation of Jan. 23, 1918, ordering special election in Seventh congressional district in manner "prescribed by law" for election of representatives to Congress at general elections, means in manner prescribed by Laws 1911, c. 890, as amended by Laws 1917, c. 797, changing boundaries of district pursuant to Act Cong. Aug. 8, 1911, c. 5, reapportioning number of representatives among states. People ex rel. Fitzgerald v. Voorhis, 119 N. E. 106, 108, 222 N. Y. 494. Supreme Court's jurisdiction on appeal from orders of Public Utilities Commission is one "prescribed by law, within Const. Amend. art. 12, § 1, and must be exercised in accordance with that law. Public Utilities Commission v. East Providence Water Co. (R. I.) 137 A. 387. PRESCRIBING UNDER SUPERVISION OF A PRECEPTOR Under Code 1897, § 2579, exempting from the penalties of the statute relating to the practice of medicine, students of medicine having stated qualifications, prescribing under the supervision of preceptors, the relation of consultant on occasion and occasional advice and direction, was not "prescribing under the supervision of a preceptor." State v. Collins, 159 N. W. 604, 608, 178 Iowa, 73. PRESCRIPTION See First and Second Series. See Highway by Prescription; Phy- Issuance of prescriptions as practice of An order, signed by a registered physician, calling for a narcotic drug, not issued in the course of his professional practice, but to a habitual user of the drug, for the purpose of providing it for his customary use, is not a "prescription," privileged under Harrison Anti-Narcotic Act, § 2 (26 USCA §§ 696, 697), and where the order is filled by a dealer with knowledge of the facts, the physician is chargeable as a "seller," under Criminal Code, § 332 (18 USCA § 550) making aiders and abettors principals. Manning v. U. S. (C. C. A. Mo.) 287 F. 800, 802. A "prescription" is the mere formula for the preparation of a drug and medicine. People v. Cohen, 157 N. Y. S. 591, 593, 94 Misc. Rep. 355. Physician's certificate that named person "has had the flu, and I recommend that he should use strychnine or whisky as a stimulant for his heart," held not prescription. (Per Lattimore, J.) Gandy v. State, 268 S. W. 951, 952, 99 Tex. Cr. R. 143. Rev. St. 1909, § 5784, declares that any physician who shall make any prescription to any person for intoxicating liquors to be used other than for medicinal purposes shall be deemed guilty of a misdemeanor. Section 5781, provides the character of prescription which will protect a druggist in making sales of intoxicants in quantities of less than four gallons. A physician who unlawfully issued a prescription for intoxicating liquor wrote the prescription in such a manner that the druggist who filled it was not protected. Held, that nevertheless he was guilty of a violation of section 5784; the word "prescription" as used in the statute meaning a direction of remedy or remedies for a disease and the manner of using them, and not necessarily a valid prescription which would protect the druggist who filled it. State v. Nicolay (Mo.) 184 S. W. 1183. Prescriptions for animals See First Series. PRESCRIPTION (In Law) See First and Second Series. See Title by Prescription. "Prescription" is a mode of acquiring title to property by immemorial or long-continued enjoyment. It refers to personal usage restricted to the claimant and his ancestors A way by "prescription" is acquired by exclusive, uninterrupted, continuous, and adverse use and enjoyment for 20 years, with the knowledge and acquiescence of the owner. Turner v. South & West Improvement Co., 88 S. E. 85, 118 Va. 720. To establish a highway by "prescription" the public use must be adverse, uninterrupted, claim of right. continuous, and under a Board of Com'rs of San Miguel County v. Friendly Haven Ranch Co. (N. M.) 257 P. 998. As applicable to private right of way See First and Second Series. Claim of right See First Series. To establish a right of way by "prescription," there must be a user by the general public under a claim of right, adverse to the occupancy of the owner, of some particular or defined way or tract, uninterruptedly, without substantial change, for a period of time necessary to bar an action for the recovery of the land. Dolese v. State, 212 P. 610, 611, 23 Okl. Cr. 81. To establish a highway by "prescription," it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way without interruption or substantial change for the statutory period. Burk v. Diers, 169 N. W. 263, 264, 102 Neb. 721. To acquire an easement by "prescription," the user must have been actual, open, continued, under a claim of right, adverse, and hostile to the true owner's title. Barlow v. Frink, 152 P. 290, 291, 171 Cal. 165. To maintain title to a water right by "prescription," the grantee must prove that for ten years the property or some definite portion thereof was in his possession or that of his grantors, and that such possession was or grantors. Zetrouer v. Zetrouer, 103 So. open, notorious, exclusive, and adverse to the 625, 627, 89 Fla. 253. To establish right of way easement in land of another, proof of same elements necessary as in establishment of public highway by "prescription," namely, adverse, uninterrupted, exclusive, and 'continuous use under claim of right. Parker v. Rosenberg, 148 N. E. 269, 272, 317 Ill. 511. Adverse use See First Series. claim of the defendant, and was made under a claim of right. Custer Consol. Mines Co. v. City of Helena, 156 P. 1090, 1094, 52 Mont. 35. To establish a highway by "prescription" it must be proved that the general public under an adverse and uninterrupted claim of right, not on permission or sufferance of the owner, has used a certain well-defined line of travel without interruption or substantial change for ten years. Vidaurri v. Martinez (Tex.) 260 S. W. 651, 652. To establish a highway by "prescription" open, continuous, exclusive, and under claim the public use must be adverse, uninterrupted, of right for statutory period. Minto v. Salem continuous, exclusive, and under claim of Water, Light & Power Co., 250 P. 722, 726, right, since an easement by prescription can 120 Or. 202. be created only by an adverse user of the privilege with the knowledge of the person against whom it is claimed, or by acts so open and exclusive that knowledge will be presumed, exercised under a claim of right adverse to the owner and acquiesced in by him. Thorworth v. Scheet, 110 N. E. 42, 45, 269 Ill. 573. To establish a highway or public way by "prescription," use must necessarily be under claim of right, adverse, open, notorious, exclusive, continuous, and uninterrupted for statutory period. Jobst v. Mayer, 158 N. E. 745, 747, 327 Ill. 423. An owner of a block of land conveyed a lot in the northwest corner, and thereafter opened up a strip of land adjoining the rear of the lot as a private alley or passway, and conveyed other lots adjoining the passway with the right to use the passway as a private right of way. Some time between 1887, when the passway was laid out, and 1891, the owner of the lot so conveyed began to use the passway to go to and from the rear of his lot for various purposes, and thereafter he and his successors in title for over 15 years continued in the actual and uninterrupted use of the passway for such purposes as of right. The court found that at some time be Continuous, uninterrupted possession tween the dates mentioned the owner of the See First Series. Easement by "prescription" can be created only by use during statutory period, which is open, notorious, continuous, and adverse, and cannot be predicated on permissive use. Bulkley v. Dunkin, 230 P. 429, 131 Wash. 422. block granted to the owner of the lot the right to use the passway. Held, that all the elements necessary for the acquisition of title by "prescription" appeared, as the use was necessarily open and visible and was under a claim of right, continuous and uninterrupted for over 15 years, and the fact that it began as the result of a grant, whether one by parol or otherwise ineffective and invalid, instead of militating against the adverse character of the use, only emphasized it, and such grant was not only consistent with possession or In order to create a public highway by "prescription," use of the road by the public must have continued uninterrupted under adverse claim of right for the full prescriptive period, which is ordinarily 10 years. Phillips v. Texas & P. Ry. Co. (Tex.) 296 S. W. 877, enjoyment under a claim of right, but furnish 880. Dedication distinguished See First Series. The distinction between a highway by prescription and one by dedication is that "prescription" is an adverse holding under color of right, while a "dedication," whether expressed or implied, rests upon the consent of the owner. Hatch Bros. Co. v. Black, 171 P. 267, 270, 25 Wyo. 416. Elements of prescription See Second Series. Elements necessary to acquire easement by "prescription" are open, visible, and continuous use under claim of right, adverse to and with knowledge of owner. F. C. Ayres Mercantile Co. v. Union Pac. R. Co. (C. C. A. Colo.) 16 F.(2d) 395, 399. To create an easement by "prescription," it is essential that the use must have been ed a natural basis for and prima facie evidence of such possession and enjoyment. U. B. Alling Realty Co. v. Olderman, 96 A. 944, 946, 90 Conn. 241. Equivalent to a deed See First Series. Grant or right presumed "Prescription" rests upon adverse user for such a length of time that a lost grant is presumed. Olin v. Kingsbury, 168 N. Y. S. 766, 770, 181 App. Div. 348. "Prescription" is a mode at common law of acquiring title to incorporeal hereditaments by immemorial and long-continued enjoyment, the reason of the rule being that from length of time the law presumes that a grant was once made, but not appearing, has been lost. Gwinn v. Gwinn, 87 S. E. 371, 373, 77 W. Va. 281. Limitation distinguished There is a distinction between title by "limitation" and a "prescriptive" title, in that the latter is based upon a presumed grant to the property or use, while the former is not. Martin v. Burr (Tex.) 171 S. W. 1044, 1046. Doctrine of "limitations,” unlike that of "prescription," assumes title to be in the own-. er, but refuses to allow him to assert it because of his want of possession; the essence of the doctrine being the nonpossession of the true owner, prescription being positive and creative, and limitation being negative and destructive. Abel v. Love, 143 N. E. 515, 520, 81 Ind. App. 328. As limitation or adverse user See First Series. As right or title See First Series. Time See First Series. As applicable to use of highway See First Series. To establish a highway or public way. by “prescription,” use of way must have been under a claim of right, adverse, open, notorious, exclusive, continuous, and uninterrupted for statutory period, and must have amounted to something more than mere travel over uninclosed lands, though express notice is not necessary. Gietl v. Smith, 151 N. E. 253, 257, 320 Ill. 467. PRESCRIPTION IN A QUE ESTATE See First Series. PRESCRIPTIVE RIGHT In order to establish a "prescriptive right," there must appear, first, a user for a period at least equal to that of the statute of limitations in cases at law; second, that the user was adverse; third, that it was under a claim of right, and fourth, notice to the owner of the user and of its character and of the claim of right. Bruner Granitoid Co. v. Glencoe Lime & Cement Co., 152 S. W. 601, 604, 169 Mo. App. 295. In order to establish a "prescriptive" right to the maintenance of a nuisance, the user must not only be open, adverse, and continuous, etc., but with the knowledge and acquiescence of the person whose right is in PRESENCE See First and Second Series. See Constructive Presence. Actual presence of principal, see Principal. An offense is committed or attempted "in the presence of an officer," within the meaning of the law, where such officer is apprised by any of his senses that a misdemeanor is being committed or attempted, or by information of such fact communicated by the person arrested prior to his arrest. Miles v. State (Okl.) 236 P. 907, 908. A crime is committed "in the presence of the officer" when the facts and circumstances occurring within his observation, in connection with what, under the circumstances, may be considered as common knowledge, give him probable cause to believe or reasonable ground to suspect, that such is the case. should be an eye or an ear witness of every It is not necessary, therefore, that the officer fact and circumstance involved in the charge, or necessary to the commission of the crime. Agnello v. U. S. (C. C. A. N. Y.) 290 F. 671, 679. A crime is committed "in the presence of an officer," when the facts and circumstances occurring within his observation, in connection with what, under the circumstances, may be considered as common knowledge, give him probable cause to believe or reasonable grounds to suspect that such is the case. A case in which the evidence is insufficient to show the commission of an offense by the defendant in the presence of an officer. State v. Koil, 136 S. E. 510, 511, 103 W. Va. 19. Whenever any officer is apprised by any of his senses, including that of smell, that a crime is being committed, it is being committed in his "presence," within meaning of Rev. Codes 1921, § 11106. State v. District Court of Ninth Jud. Dist. in and for Gallatin County, 231 P. 1107, 1108, 72 Mont. 77. Under Code Cr. Proc. § 177, authorizing a peace officer to arrest without warrant for a crime committed or attempted in his presence, arrest and search without a warrant of a person unlawfully carrying a concealed revolver was legal, since personal "presence" includes corporeal extension within the sphere of sense perception, and is not the same as "view." People v. Esposito, 194 N. Y. S. 326, 331, 118 Misc. Rep. 867. When evidence of commission of offense reaches officer through his senses and is sufficient to render ultimate fact morally certain and is augmented by other strongly persuasive facts in his possession, all conveying virtual knowledge to any normal mind that offense is being committed, and it turns out that he was correctly convinced, arrest will be upheld as for offense committed in officer's presence. Ingle v. Commonwealth, 264 S. W. 1088, 1091, 204 Ky. 518. An offense can be said to be committed in the "presence of an officer" only when he sees it with his own eyes, or sees one or more of a series of acts constituting the offense, and is aided by his other senses or by information as to the others. State v. Lutz, 101 S. E. 434, 437, 85 W. Va. 330. Offense of carrying concealed weapon held committed "in officer's presence," so as to warrant arrest, under Cr. Code Prac. § 36, subd. 2, where defendant wore overalls and officer could see imprint of pistol in pocket “well enough to know that it was a pistol." Robinson v. Commonwealth, 268 S. W. 840, 207 Ky. 53. It is not necessary to the validity of an information for robbery that money be alleged to have been taken "from the person" in possession thereof, and where it was charged that a taking was in his presence and against his will it is sufficient, as the words "in his presence" are judicially construed as substitutionary or tantamount in meaning to the words "from his person." State v. Craft, 253 S. W. 224, 227, 299 Mo. 332. Where robbery was committed inside bank, and could not be seen or heard by persons 300 feet away, held not within "presence" or view of such persons within Code Cr. Proc. 1925, art. 212, entitling them to arrest robber without warrant. U. S. Fidelity & Guaranty Co. v. Henderson (Tex.) 293 S. W. 339, 340. Criminal offense is not committed in presence of officer authorizing arrest without warrant unless acts constituting it become known to him through his sense of sight or through other senses. Combest v. State (Okl.) 239 P. 936, 937. Constructive presence See First Serics. Under Pen. Code 1911, art. 78, one is a "principal" who, having advised or agreed to the commission of an offense, is present when it is committed, whether he then aids or not, and it is not necessary to make one "present" that he be in immediate contact with the other actors. Rowan v. State, 260 S. W. 591, 595, 97 Tex. Cr. R. 130. Where one heard hinge of his garage door creak, and, on going out, found the door open, he was warranted in arresting one in the vicinity for an attempt to steal a car therein, and that without a warrant; the crime being committed in his "presence" within the meaning of C. S. §§ 4235, 4543. State v. Blackwelder, 109 S. E. 644, 648, 182 N. C. 899. To constitute signing of will within presence of attesting witnesses, as required by Decedent Estate Law, § 21, it is not sufficient that witnesses and testator be in same inclosure, but witnesses must actually see testator write his name, or have their attention directed to act of signing while it is taking place. In re Crill's Estate, 207 N. Y. S. 775, 783, 124 Misc. Rep. 134. Knowledge Where the officer does not know of the act constituting the offense, it is not committed in his "presence." State v. Pluth, 195 N. W. 789, 791, 157 Minn. 145; Keith v. State (Okl.) 235 P. 631, 632; Graham v. State (Okl.) 237 P. 462, 463; Whitford v. State (Okl.) 247 P. 424, 425; Wells v. State (Okl.) 258 P. 285; Sowards v. State (Okl.) 259 P. 157, 158. The words "in his presence," as used in connection with an officer's authority to make an arrest without a warrant for an offense committed "in his presence," cannot be construed technically or strictly; it being sufficient to justify an arrest if the officer knows the offense was committed, which knowledge he may obtain, not only by seeing but by accused's admissions before arrest. State v. Gulczynski, 120 A. 88, 89, 2 W. W. Harr. (Del.) 120. |