and authorizes him to vote in case of a tie, but not otherwise. Under a pretense to amend this subject, it was re-enacted, but not amended, and most radical changes made in other portions of the chapter and affecting subjects wholly foreign to those mentioned in that section. Since, then, the essential condition to the validity of legislative enactments required by the constitution has been ignored in toto by the legislature, in the passage of the act of February 11, 1883, no part thereof being germane to the subject expressed in the title, it becomes our duty to declare said act to be void.

Counsel for the relator also insists that it is absurd, repugnant, and void upon another ground, viz., that in respect to all of the said city officers, it provides that they shall be elected on the first Tuesday of April in each and every year, and that each shall hold his office for the term of two years, and until his successor is elected and qualified. This would appear to be a proper case for the application of Lord COKE's doctrine, (which received such sharp criticism from the English jurists,) "that where an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common-law shall control it, and adjudge it to be void." Potter's Dwarris St. 76. Certain it is that, in this instance, the rule that in construing a statute, "full sense and meaning must be given to every clause and provision," cannot be complied with. Mr. Dwarris cites, as an instance of difficult construction, "where the design of the framers of a law cannot be seen," surely this must be a specimen of the class of legislation referred to. I venture the suggestion that a law which requires the mayor of a city to be elected on the first Tuesday of April in each and every year, and that he shall hold his office for the term of two years, equals in obscurity of design any act of the British parliament passed since the days of witena gemote of the early SaxBut whether Lord COKE's rule should be applied, and the statute held void, as against common reason, and impossible to be performed, or whether the more temperate doctrine of Sir WILLIAM BLACKSTONE is applicable, which avoids such a law only as to that portion thereof giving rise to absurd consequences, on the theory that they were not foreseen by its framers, it is unnecessary to decide, since we have already declared it void on another ground.


This ruling disposes of all questions respecting the effect of the several provisions of the act, except the repealing clause, which provides that "all acts and parts of acts inconsistent with this act are hereby repealed." There are cases which hold that the repealing clause of an unconstitutional statute may stand and have effect, notwithstanding the invalidity of the rest of the act. But there is another class of cases, apparently based on sounder reason, which hold that the repealing clause is to be understood as designed to repeal all conflicting provisions, in order that the new statute can have effect; and where the statute itself is held to be invalid, nothing can conflict with it, therefore nothing is repealed. Cooley, Const. Lim. 222, and cases

cited. We adopt the latter view in the present case, and hold the repealing clause void.

In view of the facts and the law arising thereon, we find, as to the respondents cited to appear and answer the rule entered against them, that the election by virtue of which they claim their respective offices was void and of no effect, and that they have severally been guilty of intruding into the said offices. But as to the said John D. Fleming not having been served with process, his case is not before us, and no action concerning it is taken.

It is therefore ordered and adjudged that said W. W. Officer be and he is hereby ousted and altogether excluded from the said office of city clerk; that the said H. T. Sale be and he is hereby ousted and altogether excluded from the said office of city attorney; and that the said Edward Cuddihee be and he is hereby ousted and altogether excluded from the said office of city marshal of said city of Leadville; and that each of them be excluded from all the franchises, privileges, and emoluments thereof.

(3 Utah, 334)


PEOPLE v. HILL. (Two cases.)

Filed February 22, 1884.

In an indictment for embezzlement it is sufficient to allege that the prisoner was "intrusted as bailec" with the property converted, without stating the circumstances of the bailment : this follows the language of the statute in section 2124. The reference in subdivision 2 of section 192 must be read as though it were to section 151 instead of section 152. The intention of the legislature is manifest, and it is the duty of this court to control the words used so as to carry out this intention, viz., to give the prisoner a right to demur to an indictment for all reasons named in section 151 appearing on the face thereof.

The objection that an indictment does not substantially comply with the requirements of sections 150 and 151 must be taken by special demurrer, specifically pointing out by apt words what conditions of those sections have been violated.

The sufficiency of an indictment is to be tested, not by the rules of the common law, but by the requirements of the criminal practice act, and it is sufficient 'if the charge be stated with such certainty that the defendant may know what he is called upon to answer, and the court how to render judgment. It is still essential that all matter material to constitute the particular crime be stated with such distinctness as not to need the aid of intendment or implication. In this regard the indictment in this case is sufficient. The indictment is not bad for duplicity by reason of charging the prisoner with the embezzlement of a sum of money obtained on two certificates; all the acts alleged are parts of, and resulted in the commission of, one offense; the embezzlement of the money, and the reference to the certificates is surplusage.

Where a demurrer to an indictment is sustained, the order resubmitting the case to the grand jury, and refusing to discharge the prisoner, is not appealable, and can only be reviewed on an appeal from the final judgment.

An order for resubmission to the "next succeeding grand jury" refers to the first grand jury that meets after the demurrer is allowed.

HUNTER, C. J., dissents.

Appeals from the Third district court.

Zera Snow and Arthur Brown, for the People.

Sutherland & McBride, for defendant.

EMERSON, J. The defendant was arraigned in the Third district court upon an indictment for embezzlement, the charging part of which is as follows:

"The said Alexander S. Hill, on the eigth day of March, A. D. eighteen hundred and eighty-three, at the county of Salt Lake, in said territory of Utah, having been intrusted, as bailee of one Lucy J. Hill, with two certificates of deposit of money in the Deseret National Bank, to-wit, one for the sum of five thousand dollars and the other for the sum of four thousand dollars, both payable to the order of, and both being the property of, said Lucy J. Hill, did collect and receive thereon and therefor from said bank, and, as bailee, was by said bank, and said Lucy J. Hill, intrusted to carry and convey from said bank to said Lucy J. Hill, within said county, money to the amount and

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value of nine thousand dollars, proceeds of said two certificates, an exact description of which is to the jury unknown, and said Alexander S. Hill being as aforesaid intrusted as bailee with said certificates and said money to said amount of $9,000, the property of said Lucy J. Hill, afterwards, on the twelfth day of March, 1883, at said county of Salt Lake, fraudently and feloniously did convert the same and the proceeds thereof to his own use, contrary,' etc.

To this indictment the defendant interposed a demurrer upon the following grounds: (1) On the ground that the said indictment does not substantially conform to the requirements of section 150 and 151 of the Code of Procedure in criminal cases, as to the offense charged and the particular circumstances; (2) that more than one offense is charged in the said indictment. The demurrer was sustained, to which ruling the prosecution excepted. Thereupon the counsel for the defendant moved for an order discharging the defendant from custody, and the prosecution moved "for an order of resubmission to the grand jury as provided by statute." The defendant's motion was denied, and that of the prosecution granted, whereupon the following order was entered: "And it is further ordered and adjudged by the court that. the case be resubmitted to the grand jury of this court at the next sitting thereof for further consideration and action by such grand jury, and that in the mean time the said Alexander S. Hill be and remain in the custody of the United States marshal." To all of which the defendant duly excepted.

I have been thus particular in reciting the order made subsequent to that sustaining the demurrer to demonstrate that the right of the prosecution to prosecute this appeal is in accordance with the doctrine laid down in the dissenting opinion in the case of People v. Ah Own, 39 Cal. 608, which, in my opinion, is a correct interpretation of the statute, our statute upon that subject being a literal copy of that of California. The people appeal from the judgment sustaining the demurrer.

Section 192 of the criminal practice act points out what objections appearing upon the face of the indictment may be taken advantage of by way of demurrer. The defendant selects subdivisions 2 and 3 of that section with which to assail this indictment, and they are as follows: "(2) That it does not substantially confirm to the requirements of sections 150 and 152; (3) that more than one offense is charged in the indictment.


Section 150 prescribes what the indictment must contain, viz.: "(1) The title of the action specifying the name of the court to which the indictment is presented and the name of the parties; (2) a clear and concise statement of the acts or omissions constituting the offense, with such particulars of the time, place, person, and property as will enable the defendant to understand distinctly the character of the offense complained of, and answer the indictments," and then give a form for an indictment which must be substantially followed. "Sec. 151. It must be direct and certain, as it regards

(1) the party charged; (2) the offense charged; (3) the particular circumstances of the offense."

Section 152 prescribes what shall be done when a defendant is indicted by a fictitious or erroneous name, upon the discovery of his true


The reference to section 152, in subdivision 2, of section 192, is manifestly a mistake, and does not express the legislative intent. Considering the subject-matter of which they are treating, that intent can only find expression in section 151. This statute being for the protection of the individual, it should not receive such a construction as would deprive him of any right. The intention of the legislature to give the defendant, in a criminal prosecution, the right to demur to an indictment for any or all the reasons mentioned in section 151, appearing on the face thereof, is manifest, and it is our duty to carry this intention into effect, and so control the words used as to make them refer to the section evidently intended. Subdivision 2 of section 192 will be read as though the reference was to section 151, instead of 152. Any other construction would lead to an absurdity, and should be rejected. In the construction of a statute, if the meaning of the legislature is manifest, the intention will be carried into effect, although apt words are not used in the act. Crocker v. Crane, 2 Wend. 211. And this rule ought and does go to the extent of correcting errors and mistakes which are clear and obvious, and without which correction no effect could be given to the statute. People v. King, 28 Cal. 274; Ex parte Hedley, 31 Cal. 114. The prosecution contends that the demurrer does not sufficiently specify the objections to the indictment to meet the requirements of section 193 of the criminal practice act. That section provides that "the demurrer must be in writing, signed either by defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment, or it must be disregarded."

The objection raised by the first ground of the demurrer is that the indictment does not substantially conform to the requirements of sections 150 and 151, and, under this allegation, specifies that two of the direct and certain essentials mentioned in section 151 are not found in this indictment, viz., subdivisions 2 and 3, as to the offense charged and the particular circumstances. This is a sufficient specification of the grounds of the objection, and satisfies the mandate of section 193.

Having disposed of these preliminary matters, we come to the questions raised by the demurrer. By a reference to the first ground upon which the indictment is assailed, it will be seen that the specific objections raised by the demurrer are that the requirements of subdivisions 2 and 3 of section 151 are not met and complied with. Although section 150 is referred to in the demurrer, yet, as the specification of the grounds of objection required by section 193 does not refer to any of the requisites contained in section 150, it cannot be

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