der heretofore issued is dissolved, and the plain-¡ state that this court may in its discretion so tiff's action is dismissed with prejudice."

act in aid of its appellate jurisdiction, we From this judgment appellant has perfect- need not bother ourselves with the question ed his appeal to this court. Immediately up- of appellant's strict legal right under the on perfecting his appeal he applied to the statute to have the superior court fix the judge of the superior court for an order fix- amount of a supersedeas bond to be given by ing the amount of a supersedeas bond which him to the end that he may thereby have such he might give to the end that the judgment stay as a matter of right without applicabe superseded in so far as it dissolved the tion to this court. Section 4, art. 4, State restraining order, and that that order be Constitution; Campbell Lumber Co. v. Deep kept in force as a temporary injunction pend- River Logging Co., 68 Wash. 431, 123 Pac. ing the appeal in this court. The superior | 596. court being of the opinion that the restrain- We think that little need be said in view ing order is not such an order as may be of the facts we have above noticed to show kept in force pending appeal, denied the ap- that in the exercise of its sound discretion plication to fix the amount of a supersedeas this court should now make such order as bond, and thereupon this application was will effectually restrain respondents from made in this court. Since the rendering of the judgment in the superior court and the perfecting of the appeal therefrom, some of the original defendants and respondents, county officers, have been succeeded in of fice by others elected at the general election held in November, 1916. The members of the new board of county commissioners so formed, now respondents, have by their attorneys filed in this court their consent that the judgment of the superior court be superseded as prayed for by appellant pending the determination of the cause upon appeal in this court. The bonds in question have not yet been executed in form, though they have been prepared and apparently need only the attesting signature of the county auditor and the impression of his seal of office thereon to render them complete in form as negotiable bonds, evidencing indebtedness of Benton county.

proceeding further in the signing, sealing, execution, issuance, or negotiation of the bonds in question pending the disposition of this case upon appeal. No material hardship can come to respondents by such a supersedeas, while great and irreparable injury might result to appellant for want of such a supersedeas in view of the fact that the bonds proposed to be issued are negotiable in form and apparently will carry upon their face such evidence of their negotiability, regularity, and power of the county officers to issue them as to render it highly probable that they would become absolute binding obligations, evidencing a debt of Benton county if they should fall into the hands of innocent holders. This, together with the fact that the county commissioners, the present respondents, have by their counsel consented that such a supersedeas may be had, we think, is sufficient to warrant us in granting supersedeas in aid of our appellate jurisdiction in the case. It seems almost inconceivable that the other respondents can be injured thereby.

bond we think is sufficient to protect respondents from all possible damage which can result to them by reason of the continuance of that writ in force until the final disposition of the cause in this court.

[1] Counsel for appellant insist that the restraining order became in effect a temporary injunction such as to entitle him to have it remain in force as a matter of right upon giving a supersedeas bond in view of the fact Upon the application being made to this that it was by express order of the superior court, we caused to be issued a temporary court continued in force after hearing the writ of supersedeas and stay of proceedings case upon the merits pending a final decision to remain in force pending a further hearing in the superior court. That a temporary in- when all parties could be heard. Appellant junction issued upon notice and hearing may executed, with a surety, a bond in complibe so kept in force by superseding the final ance with the court's order as a condition judgment upon appeal, in so far as the judg-precedent to the issuance of the writ. This ment dissolves such temporary injunction, is rendered plain by the provisions of section 1723, Rem. Code. It would also seem that a temporary restraining order may in form be continued in force by the superior court under such circumstances as to become in effect a temporary injunction, and thereby be rendered capable of being kept in force as such by a supersedeas bond, as provided by section 1723, Rem. Code. Such, in substance, was the view expressed by this court in State ex rel. Ferguson v. Grady, 71 Wash. 1, 5, 127 Pac. 305. However, being of the opinion that appellant is entitled to a stay of the effect of the judgment here appealed from in so far as it dissolves the temporary restraining order, and it being the settled law of this

It is therefore ordered that the writ of supersedeas so issued out of this court be continued in full force and effect until the final disposition of the cause in this court, and that all of the respondents, including those' who have become defendants and respondents as successors in office of the original defendants and respondents, be and they are hereby directed to refrain from proceeding further with the signing, sealing, issuing, negotiation, or sale of the bonds of Benton county in question until the final disposition

of the cause upon appeal in this court, or un-before the fact and a principal in a felony case til the further order of this court.

ELLIS, C. J., and MOUNT, FULLERTON, principals, such instructions were not improper and HOLCOMB, JJ., concur.

STATE v. WILEY. (Supreme Court of Montana. 1. CRIMINAL LAW 829(3) B. S. Wiley was convicted of grand larIn a prosecution for grand larceny, where ceny, and from the judgment and an order the court charged that a felonious intent must denying him new trial, he appeals. Affirmed. have accompanied the taking to constitute larceny, and that, to find defendant guilty, it was J. D. Taylor, of Hamilton, for appellant. necessary to find that he took the property J. B. Poindexter, Atty. Gen., and J. H. Alknowing that it was not his, intending then to steal and convert it, the refusal of requested vord, Asst. Atty. Gen., for the State. instructions that the felonious intent to steal must have accompanied the original taking, and that, if it did not, larceny was not committed, though it might appear that defendant afterwards converted the property, was not erroneous; it not being error to refuse a correct instruction whose subject-matter is covered by appropriate instructions.

[1] 1. In each of the two offered instructions the defendant sought to have impressed upon the jury the idea that the felonious iuIn a prosecution for grand larceny, where tent to steal must have accompanied the the court charged, in substance, Rev. Codes, §§ 8119, 9167, defining a principal, and advising original taking, and that if it did not, larceny the jury that the distinction between accessory was not committed even though it might ap

pear that defendant afterwards converted the that they must find the allegations of the inanimal to his own use with intent to deprive formation to be true in order to return a the true owner of his property. Conceding, verdict of guilty. for the sake of argument, that each of these [4] 3. By instruction 11 the court advised tendered instructions is correct, it does not the jury of the probative value of evidence follow that the court erred in refusing them. of recent possession of stolen property. The In instruction 3, given, the court charged objection urged upon us is that there is not that "a felonious intent must have accom- any evidence that the defendant was in pospanied" the taking in order to constitute session of the animal in question, recently, larceny, and in instruction 5 the jury was that is, immediately before the information informed that in order to find the defendant was filed in June, 1915. Appellant miscopguilty, it was necessary to find that the de-ceives the meaning of the term "recently," as fendant took the animal into his possession, applied in this connection in the law of that he knew at the time that it was not his property, "and that he intended then to steal and convert it to his own use," etc. We think the jury could not have misunderstood the meaning which the court intended to convey by these expressions. It is not error to refuse a correct instruction when the court has fully covered the subject by appropriate instructions given. State v. Martin, 29 Mont. 273, 74 Pac. 725.

2. The court defined larceny in the language of section 8642, Revised Codes, and grand larceny in the language of subdivision 4, § 8645, Revised Codes. Counsel for appellant apparently assumes that the court gave different definitions of the same offense, some of which were not applicable to the facts of this case; but attention is directed to the fact that the substantive crime defined in chapter 5, tit. 13, pt. 1, of the Penal Code is larceny, and that grand larceny and petit larceny are but the two separate degrees of that crime. Section 8642 defines larceny, and section 8644 provides: .

"Larceny is divided into two degrees, the first of which is termed grand larceny, the second petit larceny."

larceny. "Recently" or "recent possession" refers to possession in the defendant soon after the commission of the larceny, and not to possession immediately before the information is filed or a trial had. 4 Words and Phrases, Second Series, 206; State v. Willette, 46 Mont. 326, 127 Pac. 1013.

[5] 4. The court gave, in substance, sections 8119 and 9167, Revised Codes, defining a principal and advising the jury that the distinction between accessory before the fact and a principal in a felony case has been abrogated by statute, and that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, are to be prosecuted as principals. The objection urged to these instructions is that there is not any evidence which warrants their submission, but with this we do not agree. Taking the evidence as a whole, we think the jury might, with propriety, have drawn the inference that Randolph was the titular principal, and that this defendant aided and abetted him in the comission of the offense.

[6] Neither of these instructions is open to There is no punishment prescribed for the charge that it implies that a felony had larceny as such, but the degree of punish-been committed. They might have been amment is made to depend upon the degree of plified somewhat to make a concrete applicathe crime. Sections 8647, 8648, Rev. Codes. tion, but defendant did not ask that any [2] Speaking generally, where a specific such application be made. crime is divided into degrees, it is sufficient to charge the commission of the substantive offense (State v. Copenhaver, 35 Mont. 342, 89 Pac. 61; State v. Mish, 36 Mont. 168, 92 Pac. 459, 122 Am. St. Rep. 343), and it is then made the duty of the jury to determine from the evidence the particular degree of the crime of which the accused is guilty, if guilt be shown. Rev. Codes, § 9324.

There is not any merit in the contentious made in behalf of appellant, and the judg ment and order are accordingly affirmed. Affirmed.

SANNER, J., concurs. Mr. Chief Justice BRANTLY, being absent, takes no part in the foregoing decision.

(30 Idaho, 213)

CORKER v. COWEN. (Supreme Court of Idaho. March 20, 1917.) 1. SCHOOLS AND SCHOOL DISTRICTS 53(5)— NONPERFORMANCE OF DUTIES-INFORMATION -STATUTE.

[3] It is true that the information charges the theft of an animal the stealing of which is grand larceny without reference to its value; but, even so, the substantive crime is larceny, and no fault can be found with the court for defining that offense as well Where, under section 7459, Rev. Codes, auas the particular degree of it, of which the thorizing the district court to entertain an indefendant was guilty, if guilty at all. There formation verified by the oath of any person is not anything said in State v. Dickinson, against an officer within its jurisdiction, accus21 Mont. 595, 55 Pac. 539, in conflict with ing him of charging and collecting illegal fees or with having refused or neglected to perform these views. In this instance the court re- his official duties, an information charges that peatedly impressed upon the jurors the fact the defendant knowingly, willfully, and inten

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tionally failed, neglected, and refused to perform | which the respondent is alleged to have failher duties, but the record shows that defendanted to perform the duties required of her by performed her duties, such an information was law. It is alleged that the respondent and properly dismissed by the district court.

[Ed. Note. For other cases, see Schools and one other, comprising a majority of said School Districts, Cent. Dig. § 133.] board, knowingly, willfully, and intention2. SCHOOLS AND SCHOOL DISTRICTS 53(5)-ally failed to make a report, both on the 1st NONPERFORMANCE OF DUTIES-APPLICATION day of July, 1912, and on the 1st day of July, OF STATUTE.

Where an information alleges that defend-1913, as required by section 61, c. 159, Sess. ant knowingly, willfully, and intentionally charg-Laws 1911, but made a pretended report, ed and collected large sums of money for her which was not properly itemized, contained services as clerk of a school board, in addition many misstatements, and made no reference to the salary allowed her by law, but it appears that such sums of money were paid to her under a contract for services independent of her duties as said clerk, section 7459, Rev. Codes, does not apply.

to other sums due and owing to the said district; that she knowingly, willfully, and intentionally failed, neglected, and refused to submit to competitive bids, as required by [Ed. Note.-For other cases, see Schools and subdivision "g," § 58, c. 115, Sess. Laws 1913, School Districts, Cent. Dig. § 133.] 3. SCHOOLS AND SCHOOL DISTRICTS 53(5)- certain construction and repair work of and OFFICERS-MISFEASANCE-CONSTRUCTION or pertaining to said school district; and that respondent, as clerk of said board, has failSection 7459, Rev. Codes, in so far as it re-ed, neglected, and refused to keep the records lates to the performance of official duties, is not designed to cover acts of officers amounting to a misfeasance, and such acts are not within the purview of said section. The section is aimed at nonfeasance, that is, failure on the part of officers to act at all, where an act is required by

STATUTE.

law.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 133.]

Appeal from District Court, Elmore County; Chas. O. Stockslager, Judge.

Action by C. E. Corker to remove Kittie S. Cowen, school trustee, under the provisions of Rev. Codes, § 7459, and to recover a penalty. Judgment for defendant dismissing the information, and plaintiff appeals. Affirmed. W. C. Howie, of Mountain Home, for appellant. L. B. Green, of Mountain Home, and K. I. Perky and Wyman & Wyman, all of Boise, for respondent.

and minutes of said board's proceedings as required by law. Upon the strength of this information the court issued a citation to the respondent, who thereupon filed her answer, in effect denying all the allegations of said information. The cause came on regularly for trial before the court on the 10th day of March, 1914. A trial was thereupon had and the information was dismissed by the

trial court, for the reason that the charges contained therein were not sustained by the evidence. This is an appeal from the judgment of dismissal of said information. The appellant relies upon the following assignments of error, to wit:

"The court erred in his statement, which may be termed his findings,' in not passing upon the question as to whether or not the defendant had charged and collected illegal fees for services rendered by her, in not finding as to whether or not she had let the contracts spoken of without calling for sealed bids, and whether or not she had failed to keep proper records as required by law. The court erred in not holding that the penalties of the law should be imposed upon the defendant for her failure to comply with the law."

PER CURIAM. This action was brought under section 7459, Rev. Codes, for the purpose of depriving respondent of her office as member and clerk of the board of school trustees of school district No. 6, of Elmore county, and obtaining a judgment of $500 against said [1] As to those matters referred to in the respondent and in favor of appellant, the in- first paragraph of appellant's assignment of former. Two separate causes of action are errors this court is without jurisdiction, for set out in the verified information, which was the reason that the errors there assigned filed by appellant on the 24th day of Febru- have reference to the opinion of the trial ary, 1914. The first cause of action, after court, which, though incorporated into the setting out the respondent's election as a record, is not properly a part thereof under member and clerk of said board in 1909 and section 4818, Rev. Codes, as amended by Sess. her continual service since that date, alleges Laws 1911, p. 375, which specifies the conthat for the years ending July 1, 1912, and tents of the record on appeal. Graham v. July 1, 1913, the respondent knowingly, will- Linehan, 1 Idaho, 780; Williams v. Boise fully, and intentionally charged and collect- Basin Min., etc., Co., 11 Idaho, 233, 81 Pac. ed from said school district large sums of 646; Taylor v. McCormick, 7 Idaho, 524, 64 money as compensation for her services as Pac. 239; Stewart Mining Co. v. Ontario Minsaid clerk, in addition to the amount allowed ing Co., 23 Idaho, 724, 132 Pac. 787; Smith her by law for the taking of the census of v. Faris-Kesl Construction Co., 27 Idaho, 407, said school district. The second cause of ac- 150 Pac. 25. It is not within the province of tion, after alleging the election and service this court on an appeal to question the of the respondent as a member and clerk of soundness of the trial court's reasons in givthe said board of school trustees, as above ing its decision, for they cannot affect the stated, proceeds to enumerate instances in judgment itself, however enlightening they

may be to counsel contemplating an appeal. Pennsylvania Co. v. Versten, 140 Ill. 637, 30 N. E. 540, 15 L. R. A. 798.

Under appellant's second assignment of error, above quoted, we think may be considered the merits of this appeal. However, it is not the purpose of the court to discuss all of the details appearing in the record and raised by the briefs of counsel, for the reason that practically every vital issue raised on this appeal has been passed on previously by this court, in cases where the surrounding circumstances were very similar to the one at

bar.

The statute in question in effect provides that any officer found "guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or [who] has refused or neglected to perform the official duties pertaining to his office," must be deprived of said office, and a judgment of $500 entered against him and in favor of the informer. The object of this statute is to enable an individual, having the knowledge that an officer is using his official position as a medium of extortion and wrong, to oust said official; the provision for a judgment of $500 in favor of the informer being merely incidental to the main object. In re Smith v. Ling, 68 Cal. 324, 9 Pac. 171. Its provisions are penal and very severe. Miller v. Smith, 7 Idaho, 204, 61 Pac. 824; Triplett v. Munter, 50 Cal. 644; Thurston v. Clark, 107 Cal. 285, 40 Pac. 435; Kilburn v. Law, 111 Cal. 237, 43 Pac. 615.

had met and acted was sufficient to clear them of the accusations with which they were charged. The court also stated that if the parties had acted corruptly they would not be within the purview of section 7459, supra, but rather within section 7445, Rev. Codes.

While the wording of the information in the instant case follows the words of the statute very closely, and if the appellant had proven all that he alleged, the information, no doubt, would not have been dismissed, still without discussing separately the alleged wrongful actions of respondent in connection with other members of the board, namely, her failure and neglect to submit certain work done for and on behalf of the school district to competitive bids, the building of the temporary Reverse schoolhouse without submitting the construction thereof to competitive bids, and her alleged failure and neglect to keep proper records of the proceedings of said school district and proper minutes of the meetings of said board, suffice it to say, the evidence offered in support of these various charges is not, in our opinion, sufficient to warrant us in reversing the judgment of the trial court, and, even if true, would not establish the charges made against respondent, namely, that she was guilty of charging and collecting illegal fees for services rendered, or to be rendered, in her office, or that she refused to perform the official duties pertaining to her office. The acts complained of, if proven, would con[2] Under the charge of collection of il- stitute, not a nonfeasance in office, but a mislegal fees, the appellant alleges that respond-feasance in office, and would not come withent, in addition to her salary, annually re- in the provisions of section 7459, supra. ceived $75, under an agreement with the Daugherty v. Nagel, 28 Idaho, 302, 154 Pac. school board. This was for making copies of 375; Collman v. Gordon, 27 Idaho, 351, 149 the census report. It is claimed that this is Pac. 294. an illegal contract, and within the purview of the statute in question. This point has been decided by this court in the case of McRoberts v. Hoar, 28 Idaho, 163, 152 Pac. 1016, where the court, though finding that a contract, somewhat similar to that alleged in the instant case, was void ab initio, yet held that such an illegal contract was not within the spirit of section 7459, Rev. Codes.

[3] It is contended at some length that the respondent failed, neglected, and refused to perform her official duties, in that she failed to make two annual reports, as required by law. But it is conceded that she did make the reports. Having done so, there was not a failure, neglect, or refusal upon her part to perform her official duties in this respect, although the reports may not have been technically correct, and therefore she would not be subject to removal from office or the payment of the penalty prescribed under the provisions of section 7459, supra. Corker V. Pence, 12 Idaho, 152, 85 Pac. 388. In that case it was shown that the board of equalization had failed completely in assessing the property of their county at its fair cash value, but it was held that the fact that they

Judgment of the trial court is sustained. Costs awarded to respondent.

(30 Idaho, 218)

CORKER v. AKE.
March 20, 1917.)
(Supreme Court of Idaho.
Appeal from District Court, Elmore County;
Chas. O. Stockslager, Judge.
Action by C. E. Corker against F. P. Ake.
Judgment for defendant, and plaintiff appeals.
Affirmed.

W. C. Howie, of Mountain Home, for appellant. E. M. Wolfe, of Twin Falls, L. B. Green, of Mountain Home, and Perky & Crow, of Boise, for respondent.

PER CURIAM. By stipulation, the aboveentitled case is submitted with the case of the latter case to constitute the record in the Corker v. Cowen, 164 Pac. 85, the record in above-entitled case, with the following exception, to wit:

"That either of the parties to this action may desire, and shall offer such modifications and reintroduce such additional evidence as they shall offers of evidence as they shall desire."

At the trial certain additional evidence was

introduced by both parties to this action, but we do not think that any of the evidence so introduced materially differentiates the instant case from that of Corker v. Cowen, supra.

On