a monoply; second, because it increases the indebtedness and liability of the corporation beyond $20,000, which is the amount limited by sections 17 and 37 of the charter of the city; third, because it involved an expenditure of over $100, and was not advertised in accordance with the provisions of the city charter; fourth, that the ordinance is in violation of the act of congress passed the 10th of July, 1886. Those grounds in the motion to dissolve, and which were insisted upon, were that the bill was without equity, and that the writ was improvidently issued.

In the outset of the opinion, the organ of the court, Justice MCLEARY, while expressing the opinion that Woolston was not a party to the record by reason of the failure to summon him, nevertheless held that the parties before the court were sufficient to the complete determination of the controversy and the issues involved.

From a careful reading of that opinion we find that the following issues were determined in that controversy, brought about by the motion to dissolve: First. The court held that the plaintiff had the right to enjoin the council from the execution of and expenditure of the city's revenues, upon an illegal

contract.

Second. The court held that the defendant Woolston was not a party to the proceedings, never having been summoned, and was not a necessary party. Third. The court declines to express any opinion as to the divisibility of the franchise and contract.

Fourth. That part of the ordinance which gave to Woolston the exclusive right and power of selling water to the city of Helena for a period of 20 years, at a fixed rate, is a monopoly.

Fifth. That under the charter of the city no authority existed for the erection of monopclies.

Sixth. The ordinance granting the exclusive right and power to furnish the city water for a period of 20 years, at a fixed rate, was not for a reasonable period, under the circumstances, and the contract was one beyond the power of the council to enter into.

Seventh. The contract proposed was one forbidden by section 17 of the city charter, as amended by the act of 1883, p. 19, which limits the city indebtedness for any purpose whatever to $20,000.

Eighth. That the indebtedness of the city at that time already exceeded the limit fixed by the charter, $20,000.

Ninth. No further debts could be incurred without aid from the legislature of the territory.

Tenth. That, whether the contract was considered in the nature of a debt or liability, it is prohibited by section 37 of the city charter, which provides that the aggregate amount of bonds, and all indebtedness and liability of the city for any and all purposes whatever, shall not exceed the sum of $20,000. Eleventh. For this reason it is beyond the authority of the council to make it, or carry it out in any particular.

Twelfth. The court also holds that the contract is void because it involved an expenditure of over $100, and was not advertised before letting, as is required by the city charter, page 15.

Thirteenth. The contract does not create an indebtedness which falls within the act of congress of the 10th of July, 1886.

Fourteenth. The injunction was neither improvidently nor imprudently is

sued.

After this decision the defendants filed an answer admitting the assessed value of property in the city to be $5,000,000, as stated in the complaint, and that the bonded indebtedness is also as stated in the complaint, to-wit, $19,000; but they deny any floating indebtedness at all on the part of the city. They deny any contract, or intention to contract, between Woolston and the city, but that the tenor and effect of the ordinance is to authorize and empower

Woolston to lay pipes and mains, and to furnish the inhabitants of the city with water, and to procure from him such water as is needed for city purposes; and to pay for which the ordinance makes appropriation.

Without enumerating further the denials and allegations of new matter, we may say, generally, that the answer puts at issue all the points presented in the complaint, and passed upon in the opinion of the supreme court heretofore referred to. In passing upon the motion for judgment on the pleadings, the court, while sustaining it, modified the injunction in so far as it restrained Woolston from erecting his system of water-works under the franchise, but made the writ perpetual as to the council, and prohibited them from carrying out the ordinance wherein it gives the exclusive right and power to Woolston to furnish the city with water for fire and sewerage purposes for the period of 20 years. From this judgment it is plain that the question of the divisibility of the ordinance has been recognized by the judge a quo, and from the oral arguments and brief we understand the point to be conceded by counsel from both sides, and that it is therefore eliminated from the contract.

This being the case, we are confronted with the identical questions which were passed upon in the former appeal. It is true, however, that the allegations of the answer which go to show the enhanced or increased value of the taxed property and revenues of the city might make it necessary to review one of the questions; that is, whether or not the revenues are sufficient to meet the additional expenditure without increasing the debt or liability of the city. But, even if that point was well taken, we could not consider it, because the injunction must stand or fall by the state of facts which existed at the time the writ was granted. Counsel for defendants, in their exhaustive brief, announce the following questions, which will have to be decided in their favor, in order to entitle them to a decree: (1) Does the ordinance create a monopoly? (2) If so, can plaintiffs question it? (3) 1e contract part of the ordinance unreasonable as to time? (4) Does the ordinance create an indebtedness in violation of the city charter? (5) Was the suit prematurely brought, and was the danger imminent? We do not deem it necessary to proceed further than an examination of the first two questions, both of which must be decided adversely to the pretensions of the appellants.

It is a well-settled principle of jurisprudence that, when the supreme court has once laid down the law governing à case, it must be followed, even though the decision be erroneous. And this rule is based upon the fact that, the jurisdiction of the supreme court being only appellate, and the delays for rehearing having expired, the matter passes beyond the jurisdiction of the court. The principle is almost inflexible, and is supported by an overwhelming array of authorities, which make no distinction between public and private rights. See the case of Davidson v. Dallas, 15 Cal. 82, 83, where Justice BALDWIN, after expressing the disapproval of the court of its former decision, uses the following language: "But the respondents' counsel meets this view by opposing to it the decision and judgment heretofore made, and claims that, whether erroneous or not, that decision is the law by which we are bound. And we are compelled to yield our assent to the proposition. The question of the binding force upon this court of its own judgments rendered at a previous term in the same case is not an open one. It arose early, and was first announced in the case of Dewey v. Gray, 2 Cal. 376. In that case the court said: When this case was here before, the court decided that if a landlord entered upon his tenant's premises, without his consent, before the expiration of the lease, and relet the premises to another, such entry and reletting discharged the tenant from his covenant, except as to such part of the rent as had accrued at the time of the re-entry, which the landlord was entitled to recover.' The latter portion of that decision is in abrogation of one of the plainest principles of law, and, if this case was a new one, I would not hesitate to overrule it. But legal rules deprive us of the power to do so. The decision having been made

in this case, it has become the law of the case, and it is not now the subject of revision. The question was very fully argued and considered by the supreme court of the United States in the case of Bridge Co. v. Stewart, 3 How. 413; and, although in that case the question raised on the record was the important one of jurisdiction, it was notwithstanding held that the previous decision of the court in the same case was conclusive of the rights of the parties, and not revisable.' This decision was followed by the cases of Clary v. Hoagland, 5 Cal. 476, 6 Cal. 685; also, Gunter v. Laffan, 7 Cal. 592. See, also, the following cases: Bridge Co. v. Stewart, 3 How. 413, 424; Himely v. Rose, 5 Cranch, 313; Skillern's Ex'rs v. May's Ex'rs, 6 Cranch, 267; The Santa Maria, 10 Wheat. 442; Ex parte Sibbald, 12 Pet. 488, 491; Hosack's Ex'rs v. Rogers, 25 Wend. 313, 364; Stiver v. Stiver, 3 Ohio, 19; Booth v. Com., 7 Metc. 286; Russell v. La Roque, 13 Ala. 151.” See, also, Mulford

v. Estudillo, 32 Cal. 131; Kile v. Tubbs, Id. 332; Argenti v. Sawyer, Id. 414; Yates v. Smith, 40 Cal. 662.

By turning to the opinion of Justice MCLEARY as it appears on pages 522524, 6 Mont., 13 Pac. Rep. 251, it will be seen that he has most exhaustively considered the question of the right of the parties plaintiff to institute this suit, and concludes by saying: "The right of these plaintiffs, being tax-payers, to bring this suit, and in a proper case to procure an injunction to restrain the illegal disposition of the city's money, cannot be doubted." Passing now to the question of the monopolistic feature of the proposed contract which is by way of ordinance, a copy of which is attached to the complaint, and thus before the court, Justice McLEARY not only declares it a monopoly, but that it is void, as being beyond the power and scope of the city council to create. In these two propositions, he analyzes the ordinance, comments upon its construction, and reviews many authorities which conclusively demonstrate to him that it is open to the objectionable charge. After devoting six pages to the discussion of this question, he uses the following forcible and expressive language: "Tried both by the square of principle and the plumb line of authority, this contract proves itself in all essential particulars a monopoly; and for that reason the making of it is beyond the powers of the city council, unless it were expressly authorized by the legislature."

We not deem it proper or necessary to recapitulate the arguments or reasons of the court on these points. The decision is the law of the case, and must govern in all its stages. It also appears that the question to the right of the writ was in issue upon the motion to dissolve, and, after being thoroughly considered, the court held that it had been properly issued. There is neither law nor reason in reopening the questions which have once been decided by the supreme court in this litigation. Without going any further in the examination of the points raised by the able counsel for defense, we are unanimously of the opinion that the right of the plaintiffs to institute this suit, and to the writ of injunction, and the nullity of the ordinance on account of its monopolistic features, having been once decided in this litigation, the same questions cannot again be reviewed on this appeal.

The judgment of the lower court is therefore affirmed.

BACH and DE WOLFE, JJ., concur.

BELT, District Attorney, v. SPAULDING et al.

(Supreme Court of Oregon. December 14, 1888.)

1. BAIL-UNDERTAKING-DESCRIPTION OF OFFENSE.

An undertaking of bail taken before a magistrate upon a criminal examination must state briefly the nature of the crime charged, or it will be invalid.

2. SAME-ABORTION.

An undertaking which describes the offense which the defendant must appear and answer as abortion fails to describe any offense defined or made punishable by the law of this state.

3. SAME.

If the crime charged be one that has a technical name, as arson, murder, burglary, rape, larceny, and the like, it will be sufficient to indicate the charge by such general name; if not, enough must be stated in the undertaking to describe briefly some crime made punishable by the laws of this state.

4. SAME-FILING.

Section 1476, Hill's Code, makes it the duty of the magistrate taking bail to file the same with the proper clerk forthwith, upon the close of the examination. 5. SAME-FORFEITURE.

Until such undertaking be filed with the clerk of the proper court, no judgment of forfeiture can be given or rendered by such court.

(Syllabus by the Court.)

Appeal from circuit court, Multnomah county.

Action by G. W. Belt, district attorney, against W W. Spaulding and Cleveland Rockwell. Defendants appeal.

Moreland & Masters and Geo. H. Burnett, for appellants. H. H. Hewitt, Dist. Atty., and R. & E. B. Williams, for respondent.

STRAHAN, J. This action is brought by George W. Belt, district attorney of the Third judicial district, to recover $2,000 alleged to be due from the defendants as bail for one G. H. Davis. It appears from the court's findings that on the 18th day of June, 1887, one William Yergen charged one Dr. Davis, in effect, with the crime of manslaughter by assaulting one Lizzie Yergen in Marion county, Or., on the 7th day of June, 1887, who was then pregnant with a quick child, and by the use of instruments destroying said child; the same not being necessary to preserve the life of said Lizzie Yergen, the mother of said child. Upon this information said justice issued a warrant, and G. H. Davis was arrested and brought before him, and waived an examination of said charge, and submitted to the order of said court in said matter, whereupon said justice made an order that said Davis be held to answer the charge of manslaughter by abortion, and that he be admitted to bail in the sum of $2,000 for his appearance at the October term, 1887, of the circuit court of Marion county, and thereupon said Davis deposited with said justice, in lieu of bail, the sum of $2,000, and was discharged from custody on the 5th day of July, 1887. Afterwards, on the 23d day of September, 1887, the undertaking sued on was attempted to be substituted in place and lieu of said $2,000. The undertaking is as follows:

"JUSTICE COURT FOR THE PRECINCT OF EAST SALEM.

"State of Oregon, County of Marion—ss.: An order having been made on third day of July, 1887, by J. O'Donald, justice of the peace in and for East Salem precinct in Marion county, Oregon, that G. H. Davis be held to answer upon a charge of abortion, upon which he has been duly admitted to bail in the sum of two thousand dollars, we, W. W. Spaulding, of Portland, Oregon, by occupation a wholesale meat dealer, and Cleveland Rockwell, of Portland, Oregon, by occupation a capitalist, hereby undertake that the above-named G. H. Davis shall appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and precepts of the court, and, if convicted, shall appear

for judgment, and render himself in the execution thereof, or, if he fail to perform either of those conditions, that we will pay to the state of Oregon the sum of two thousand dollars.

"Dated this 22d day of September, 1887. [Signed]

"W. W. SPAULDING,
"CLEVELAND ROCKWELL."

"Taken and acknowledged before me the day and year above written.

66

"Justice of the Peace."

Then follow the affidavits of Spaulding and Rockwell, showing that they possessed the requisite qualifications to become sureties, and that each of them was worth over $2,000, exclusive of property exempt from execution, and over and above all just debts and liabilities. There is no mark on the undertaking to indicate that it was at any time filed with the county clerk. At the October term, 1887, of the circuit court of the state for Marion county, the grand jury returned an indictment, indorsed "a true bill," charging G. H. Davis with the crime of manslaughter by producing abortion. The indictment sets out with the necessary particularity the same offense charged in the information filed with Justice O'Donald. It also appears from the findings in the case that at the October term of said circuit court, 1887, said G. II. Davis was duly called to answer said indictment, but failed and neglected to appear in said court for arraignment, or for any purpose whatsoever, and that the present defendants, sureties for said Davis, failed to produce said Davis in court, or to furnish any excuse for Davis' absence, or his failure to appear. Said court thereupon directed that the fact of said failure of said Davis to appear to answer said indictment be entered in the journal, and said undertaking be deemed forfeited. The venue was changed to Multnomah county, where the cause was tried by the court without the intervention of a jury, which trial resulted in a finding and a judgment for the plaintiff for the sum of $2,000, and for costs and disbursements, from which judgment the defendants have appealed to this court. The notice of appeal contains numerous assignments of error. Such of them only will be noticed as are necessary to the determination of the case.

1. It is claimed by the appellants that the undertaking sued on does not describe any crime known to the laws of this state, and that it is therefore invalid and insufficient. This objection suggests two questions: First, whether an undertaking in a criminal proceeding which fails to describe an offense punishable by the laws of this state is for that reason invalid; and, second, whether the undertaking in question describes such offense. These questions will be considered in the order stated.

First. In an early case in this state (Williams v. Shelby, 2 Or. 145) this court laid down what I conceive to be the true rule applicable to this class of undertakings. It is there said: "The circuit court held that, although there was no statute then in existence authorizing the taking of this bond by the justice, yet it might be sustained and held valid as a common-law undertaking; that the discharge of the principal for the time being was a sufficient consideration to sustain the promise and agreement entered into. This holding, we think, cannot be sustained by the authorities; in fact, none have been produced to that effect. Authority has been cited to this effect, that another class of bonds might well be sustained, from their form and structure, without the aid of statute; such as injunction bonds, replevin bonds, bail bonds, in civil cases, forthcoming bonds, appeal bonds, and all such as are made payable to the beneficiary or interested party. Such have been held valid at common law without resorting to the statute to give them effect; but it is held otherwise in criminal cases." There is no other rule by which the question under consideration can be solved except by reference to the adjudged