Defendant was convicted of the crime of [ardy twice for the same offense, but it does larceny from the person, sentenced to the not follow that such an offense is a crime penitentiary for a period of two years, and within the purview of section 863. It has appeals. Upon the trial defendant testified been held that prosecutions for the violation in her own behalf, and in rebuttal the state, of city ordinances are not criminal actions. for the purpose of impeaching defendant, | Wong v. City of Astoria, 13 Or. 538, 11 Pac. over the objection of her counsel, introduced 295; Cranor v. Albany, 43 Or. 144, 71 Pac. in evidence five certified copies of the record 1042; Madison v. Horner, 15 S. D. 359, 89 of convictions in Portland's municipal court N. W. 474; Cooper v. People, 41 Mich. 403, for "disorderly conduct," "visiting an opium 2 N. W. 51; Mankato v. Arnold, 36 Minn. 62 joint," and like offenses on and between May 30 N. W. 305; Delaney v. Police, 167 Mo. 667, 16, 1906, and January 30, 1909, in violation of 67 S. W. 589; Fortune v. Wilburton, 142 Fed. Ordinance No. 14,049, for which in each case 114, 73 C. C. A. 338, 4 L. R. A. (N. S.) 782. a fine of $10 was imposed. While these records contain some of the elements of an offense prohibited by statute, they do not show a complete crime under the statute of this state. To their admission in evidence counsel for defendant duly saved an exception, which constitutes the only question raised on this appeal.

In Arhart v. Stark, 6 Misc. Rep. 579, 27 N. Y. Supp. 301, a civil case, under a statute providing that a prior conviction for a crime or misdemeanor might be proyed for the purpose of affecting the weight of a witness' testimony, the ruling was that admitting the evidence of a judgment of the municipal court of Buffalo convicting defendant of keep

John F. Logan (Charles A. Petrain, on the ing a house of ill fame in violation of a city

brief), for appellant. George J. Cameron, Dist. Atty. (Joseph H. Page, on the brief), for the State.

BEAN, J. (after stating the facts as above). The contention of defendant's counsel is that a witness cannot be impeached by showing a prior conviction for violating a city ordi- | nance, for the reason that such an offense is neither a felony nor a misdemeanor within the meaning of section 863, L. O. L., while counsel for the state claim the reverse. The statute referred to provides that a witness may be impeached by the party against whom he is called by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief, but not by evidence of particular wrongful acts, except it may be shown by the examination of the witness, or the record of the judgment that he has been convicted of a crime. Crimes are either felonies or misdemeanors. Section 1370, L. O. L.

In State v. Bacon, 13 Or. 143, 9 Pac. 393, 57 Am. Rep. 8, this court held that it is proper to show by an examination of a witness that he has been convicted of either a felony or misdemeanor, and the record may be introduced to prove such fact. Also, under section 1534, permitting the accused to be a witness in his own behalf, and sections 863, 870, a witness may be impeached by showing a prior conviction of crime, and the accused, as a witness in his own behalf, may be impeached in the same manner as any other witness. State v. Deal, 52 Or. 570, 98 Pac. 165. In the case of Portland v. Erickson, 39 Or. 1, 62 Pac. 753, relied upon by counsel for the state in this cause, it was ruled in effect that a prosecution for violation of a city ordinance was an offense within the inhibition of article 1, § 12, of the state Constitution, which

ordinance was reversible error. By the terms of the Penal Code of that state the offense was punishable by criminal procedure. A collation of authorities upon the law relating to the proof of crime for the purpose of affecting the credibility of a witness is found in Koch v. State, 126 Wis. 470, 478, 106 N. W. 531, 534, 3 L. R. A. (N. S.) 1086, 1089, where, after an elaborate discussion, Mr. Justice Kerwin observes: "We are therefore forced to the conclusion upon principle and authority that the term 'criminal offense,' within the meaning of section 4073, Rev. St. 1898, includes misdemeanors as well as felonies, but that conviction under a municipal ordinance is not a conviction of a criminal offense within the meaning of such statute." See, also, Coble v. State, 31 Ohio St. 100; Stoltman v. Lake, 124 Wis. 462, 102 N. W. 920. No offense is a crime which does not violate the law of the land. People v. Manistee Co., 26 Mich. 423; Northville v. Westfall, 75 Mich. 603, 42 N. W. 1068; McInerney v. Denver, 17 Colo. 302, 29 Pac. 516.

The Constitution of Oregon (article 4, § 23, subd. 2) makes provision that in criminal laws there shall be uniformity. Hence it is obvious that the power to pass general criminal laws was not delegated to the city of Portland by its charter, under authority of which the ordinance referred to was enacted. This renders it unnecessary to consider the language of the charter authorizing the enactment of the ordinance. The ordinance under which the criminal proceedings were brought is unquestionably not a general criminal law of the state, but a local law, and an infringement of its provisions is necessarily punished in a summary manner. A conviction under a municipal ordinance, therefore, is not a conviction of a crime within the meaning of section 863, L. O. L., providing the manner of impeaching a witness.

Admitting the evidence of the record of

The plaintiff was a subscriber to stock of defendant mining company which was paid in part and at a meeting where a settlement between plaintiff and defendant was considered, the plaintiff said that if the company would not pay him a stated sum per month and advance a sum for improvements for the next season, he would have nothing further to do with it, and that he had no more money to put in,poration, its stock, officers, or stockholders; but nothing was said about the stock. Defendant thereafter made a charge and an assessment against the plaintiff's stock. Held, that plaintiff's statements not being a representation of existing facts but a statement of what he intended to do. he was not estopped to require the issue of stock to him.

that he did not expect to own the stock of defendant; and that he abandoned any interest, right, or claim to such stock. Defendant and its officers, relying upon those statements and believing them to be true, [Ed. Note.-For other cases, see Mines and paid and advanced on behalf of the company Minerals, Cent. Dig. § 228; Dec. Dig. § 104.*|| $9,800, with which to acquire the mining

property-$5,795 for its development, and $1,- | stock of plaintiff, it is sufficient to state, 500 for other purchases of mining property. The allegations of the answer are denied by the reply. The cause was referred to C. E. Runyon to take and report the testimony and state his conclusions of fact and law, which he did, and made findings in favor of defendant. At the time of reference, counsel for plaintiff objected to the referee making the findings, and also objected to the findings when filed, and asked the court to ignore them. The court overruled plaintiff's objections and approved the findings of the referee, except No. 16, which was to the effect that the sale of the stock for nonpayment of assessment was duly made, and rendered a decree thereon, dismissing plaintiff's suit, from which he appeals.

A. King Wilson (Wilson & Neal, on the brief), for appellant. Geo. R. Bagley (Bagley & Hare, on the brief), for respondent.

that the by-laws of the corporation provided that such sale may be had upon four weeks' notice, while the statute (section 6686, L. O. L.) provides that the corporation is authorized to make by-laws for the sale of any portion of its stock for unpaid assessments, "provided that no such sale shall be made without thirty days' notice of time and place of sale." Therefore, the by-laws of the corporation, so far as they provided for the sale of stock for nonpayment of assessments, are void. The corporation was without authority to make such sale, and it is not validated by the fact that the notice was given for 30 days, as the statute does not provide for or authorize the sale. The bylaws of the corporation must be the source of its authority.

Defendant also pleads and attempts to prove that plaintiff is estopped from claiming the stock for the reason that he has abandoned it, and declared that he would EAKIN, C. J. (after stating the facts as have nothing more to do with defendant, its above). The statute of 1874 (Laws 1874, p. officers, or stock; that defendant's officers 97, 4) amending section 805, D. & L. Gen. relied thereon and advanced more than $17,Laws, authorized the court in equity suits 000 to defendant company for the purchase to appoint a referee to take the testimony of property and the operation thereof. The in the case and report his conclusions. of only circumstance testified to, tending to esfact and law thereon. This statute was tablish an estoppel, is to the effect that, amended in 1893 (Laws 1893, p. 26) by au- at the board meeting on November 20, 1903, thorizing the court to refer the suit to a while a settlement was under consideration referee in the cases provided in section 397, between plaintiff and defendant, plaintiff Hill's Code 1892 (section 405, L. O. L.), to said, that if the company would not pay him take the testimony in the case and report $200 a month and advance $5,000 for imthe same to the court, thus eliminating the provement for the next season, he would have provisions authorizing the referee to make nothing further to do with it. J. W. Shute findings. Section 397, Hill's Code 1892, as testified that there was not a word spoken amended in 1893 (Laws 1893, p. 26), pro- about stock; that plaintiff said he had no vided that suits shall be tried by the court more money to put in, and was not going unless otherwise referred (as provided in to have any more to do with it. "It was section 815, Hill's Code 1892 [section 838, plain enough, his actions, just what he said, L. O. L.]), "provided that in districts com- that he wouldn't have anything more to do posed of no more than one county and having with it; and he went off and I never heard more than one judge of the circuit court. anything about him for some time afterno cause shall be referred to a referee with ward. ** * He never mentioned it (stock) out the consent of all parties to such suit in or asked for it at any place or time." W. writing filed in said cause except in suits D. Hare and J. C. Shute testified to the involving the examination of long and com- same effect. But this constitutes no repreplicated accounts." Washington county is sentation of any fact that justified defendin a district composed of four counties, at ant in assuming that he had surrendered that time having but one judge. Thus, ex- his stock or abandoned it to the corporation. cept in districts having more than one judge His acts and declarations only relate to what and composed of but one county, the judge he would or would not do in the future, and is authorized to refer cases for the taking was not a representation of any existing of testimony. Therefore, the reference of fact. The very first element of an estoppel this case was not unauthorized, even when is absent, namely, a representation of a made without the consent of counsel. But fact-a past or present state of things. Here the referee had no authority to make find- it was a mere statement of the intention ings. The fact, however, that such findings of plaintiff. There was no element of agreewere made by him and adopted by the court ment as to the future. Bigelow on Estop. as its findings, and that a decree was ren-570. His stock represented his interests in dered thereon, does not render the decree the corporation of which the certificate was void, and as the suit is tried anew in this the evidence of his title, and it was not lost court, the ruling of the lower court in regard or transferred by abandonment for failure thereto is not reversible error. Sutherlin to pay the value thereof. Nor did his statev. Bloomer, 50 Or. 398, 93 Pac. 135. ments involve the stock in any manner, and

his refusal to bear his portion of the burdens, as represented by his stock, they should have taken steps to cancel it or otherwise terminate his title thereto. The conduct of the officers thereafter shows that they did not consider that plaintiff had abandoned it, as at the meeting of the board of November 20, 1903, at which plaintiff was present, and participated in the business of the meeting, it was ordered that "A. W. Anthony be charged against his stock to be issued to him for his share, beginning with the $5,000 paid November 15, 1903, on mine." Again, at the meeting of May 21, 1904, an 80 per cent. assessment was levied on the stock of the company, and thereafter defendant proceeded to sell plaintiff's stock for nonpayment thereof. Therefore, there was no abandonment of his stock or conduct that estopped him from claiming it.

dered the services, and not that his time was to be the compensation for the stock. The money for the expenses and operation of the mine was placed to plaintiff's credit at Baker City, and without knowledge of the corporation he drew wages for himself, at ordinary miner's wages (namely, $553.50). Later, after some controversy, a small balance due upon the settlement was paid to him by the company. His stock by agreement is credited with the $200 consideration for the option. According to the account book, the money advanced by the stockholders, for expenses and on the purchase price of the mine, has been credited as payment on their stock, paying for it in full, and plaintiff is entitled to a credit for his season's work, less the cash he has drawn, viz., $246.50, being a sum proportionately equal to the amount advanced by the other stockholders for the improvement and operation of the mine (which was $4,000 or 80 per cent. of their stock). The act of the corporation in settling the balance of plaintiff's account, which included his wages, in no manner affects or reduces the amount due on the stock.

Therefore, the decree of the lower court will be modified to the effect that, upon the payment by plaintiff of $553.50, with interest thereon at 6 per cent. per annum from May 21, 1904, the date of the assessment, said 1,000 shares of stock in defendant company be issued to plaintiff; and that each party pay his own costs in both courts.

MCBRIDE, J., having tried this cause in the lower court took no part in the decision.

(19 Idaho, 332)

EMMETT IRR. DIST. v. SHANE (Supreme Court of Idaho. Feb. 14, 1911.) (Official Syllabus.)

It is also urged that plaintiff's stock was not paid in full, and therefore he is not entitled to have it issued. Thus it is necessary to ascertain the terms of the agreement under which the service was rendered. Plaintiff claims that he made his agreement with J. W. Shute early in September or late in August, 1902, as they rode from the mine to Sparta, when Shute first talked of purchasing it, by which he was to have a laborer's wages for the work done, and that his service as superintendent was to pay the balance due on his stock. He says that was the only agreement he had about the stock; that nothing was said about the amount, its value or the capital stock of the corporation; nor how long he was to serve for the stock. Again he says: "Mr. Shute at that time had no associates. He went over there to examine that mine, and he seemed pleased with it, and on the way back he agreed and asked me if I would superintend the mine provided he bought it." Evidently no arrangement had been made at that time to incorporate, nor any agreement made binding 1. STATUTES (§ 85*)-LOCAL OR SPECIAL LAWS Mr. Shute. On the contrary Shute expressly denies that he made such an agreement, and W. D. Hare testifies that on or about November 20, 1902, at Hillsboro, an agreement was made by which "Anthony was to put in his time and Mr. Shute, Joseph and I, and Artie (meaning J. W. Shute, J. C. Hare, himself, and A. C. Shute) was to furnish the money to run the mine, to operate for that He was to put in his time against the use of our money in operating it." J. W. Shute testified, that "he (Anthony) was willing to take hold for the season and run it if we would furnish the money to fix it up and run it through. * He said, 'I am going to take chances with you, and if you put in the money * * to show you I have faith in it I am willing to take chances with you. I will put up my time against your money.' This is evidently the arrangement under which Anthony ren

year.

*

*

**

-REGULATING PRACTICE OF COURTS OF JUS

TICE.

Sections 2401, 2402, 2403, Rev. Codes, of directors of an irrigation district may, by which prescribe a procedure whereby the board petition, obtain a judgment of the district court approving and confirming the organization of such district and all the proceedings relating section' 19. art. 3, of the Constitution, which thereto, are not in conflict with that part of provides that "the Legislature shall not pass local or special laws regulating the practice of the courts of justice."

*

[Ed. Note. For other cases, see Statutes, Dec. Dig. § 85.*]

2. STATUTES (§ 85*)-LOCAL OR SPECIAL LAWS -REGULATING PRACTICE OF COURTS of Jus

TICE.

Sections 2401, 2402, 2403, Rev. Codes, are general in their application, and were enacted for the purpose of providing for the organization of irrigation districts throughout the state, and the Legislature provided the summary proceedings prescribed in said sections for the purpose of simplifying the procedure in the or

ganization of such districts and facilitating the | of the district and the issuance of said bonds. issuance of their bonds.

Boise Irrigation, etc., Co. v.
Judge, 10 Idaho, 38, 77 Pac. 25,
Hettinger v. Good Roads Dist. No. 1,
- approved and followed.
4. WATERS AND WATER COURSES (8 230*)-
ORGANIZATION
IRRIGATION DISTRICTS
SUFFICIENCY OF PETITION.

A petition filed in the district court by the board of directors of an irrigation district, under the provisions of section 2401, which sets forth in a series of special allegations the various steps taken in the issuance of its bonds, but omits to allege generally that "due and lawful proceedings were taken to issue bonds," is sufficient, where the allegations of fact are such as to support the finding of the court that such proceedings had been duly and regularly taken.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 230.*]

5. WATERS AND WATER COURSES (§ 230*)— IRRIGATION DISTRICTS ESTABLISHMENT SUFFICIENCY OF PETITION FOR CONFIRMA

TION.

In considering the sufficiency of a petition for the confirmation of the proceedings of an irrigation district, as provided for in section 2401, said section must be read in connection with section 2403, which provides that the court "shall disregard every error, irregularity or omission which does not affect the substantial rights of any party."

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 230.*]

Appeal from District Court, Canyon County; Ed. L. Bryan, Judge.

Action by the Emmett Irrigation District against W. H. Shane. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Rhodes & Reed, for appellant. Thompson & Buckner, for respondent.

The court made its findings of fact and conclusions of law, and entered a judgment approving and confirming each and all of the proceedings had for the organization of said district, and adjudging the same to be duly organized, and that said bonds had been legally and properly authorized by the votes

of the electors of the district. A motion

for a new trial was made, which was overruled. The defendant thereupon appealed from the order overruling the motion for a new trial and from the judgment entered by the court.

While there are numerous assignments of error, there are only two questions involved in this appeal which were argued by counsel for the respective parties:

First. Are sections 2401, 2402, and 2403 of the Revised Codes repugnant to the provisions of section 19, art. 3, of the Constitution?

Second. Did the court err in overruling the demurrer to plaintiff's petition, for the reason that plaintiff failed to allege, in the words of the statute, generally that "due and lawful proceedings were taken to issue bonds in an amount to be stated," and in overruling defendant's motion for a new trial?

The appellant contends that sections 2401, 2402, 2403, Rev. Codes (under which proceedings were had in this case), are unconstitutional, for the reason that said sections are in conflict with that part of the Constitution of the state of Idaho (section 19, art. 3) which provides that "the Legislature shall not pass local or special laws

reg

ulating the practice of the courts of justice." The above cited sections prescribe a Rice, procedure whereby the board of directors of an irrigation district may, by petition, obtain a judgment of the district court approving and confirming the organization of an irrigation district, and all of the proceedings relating thereto, and leading up to the issuance of the bonds of the district. The appellant contends that this is a special priv ilege that is granted to no other public corporation, individual, or association, and is therefore special legislation within the meaning of the above quoted section of the Constitution, and that it is unreasonable and arbitrary.

BUDGE, District Judge. This action was brought under the procedure of section 2401, Rev. Codes 1905, to secure a confirmation of the proceedings had in connection with the organization of the Emmett irrigation district and the issuance of $1,100,000 of the bonds of said district. In its petition the plaintiff below and respondent here sought a decree of the district court adjudging its organization and the issuance of its bonds to be regular and valid, and set out the various steps taken for the organization of the district This court, in the case of the Boise Irriand for the issuance of said bonds. The de- gation Co. v. Stewart, Judge, 10 Idaho, 50, fendant below and appellant here (being a 77 Pac. 25, 321, has defined what is a general party in interest as provided in section 2402, or a special law, and has adopted the conRev. Codes) appeared and filed a demurrer struction contained in Sutherland on Statto the petition. The demurrer was overrul- utory Construction, § 121; and this court, ed and exception noted. The defendant speaking through Stewart, C. J., at this thereupon filed his answer, putting in issue term (February 8, 1911), in the case of Permost of the material allegations of the peti- ry F. Hettinger v. Good Roads Dist. No. 1 tion. A hearing was had and proofs intro- of Washington Co., Idaho, 113 Pac. 721, uses duced including exhibits showing the various the following language: "It is next contendsteps taken in completing the organization ed that the act authorizing the organiza