offense, to any greater or different punishment." In that case a heavier penalty was prescribed when the crime of adultery was committed by a white person and a negro than in a case where the crime was committed by persons of the same race and color. It is apparent that the respective criminal acts in §§ 2 and 5 are not of the -difference in same import, and so far as the penalty is concerned it may be assumed that the legislature regarded the possession of concealed weapons by aliens of graver consequence than in the case of citizens having such possession without a license.

penalty.

(b) The second point is that the right of the people to bear arms is infringed upon by this statute. The 2d Amendment of the Constitution of the United States is as follows: "A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

-right to bear arms-effect on

state government.

It will suffice to state that this point is without merit, since this Amendment offers no protection against the state governments, but applies only to the Federal government. "The right of the people to keep and bear arms" is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The 2d Amendment declares that this right shall not be infringed, but this means no more than that it shall not be infringed by Congress. This Amendment is one of those that have no other effect than to restrict the powers of the national government, and not those of the state. United States v. Cruikshank, 92 U. S. 542, 553, 23 L. ed. 588, 591. See also Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874. It was said in Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21, 22: "that the first ten articles of

amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone, was decided more than half a century ago, and that decision has been steadily adhered to since."

See also Presser v. Illinois, 116 U. S. 252, 265, 29 L. ed. 615, 618, 6 Sup. Ct. Rep. 580.

If there is an inhibition upon the legislature, it must be found in the state Constitution, and not in the 2d Amendment of the Federal Constitution. The Constitution of this state contains no provision on the subject. An examination of the numerous authorities in various states will show that the right to keep and bear arms as guaranteed by a state constitutional provision similar to the Federal Amendment refers only to the

ons-constitutent of right to

bearing of arms by Carrying weapthe citizens in de- tional law-exfense of a com- bear arms. mon cause, and not to their use in private broils and affrays. Thus, it is not an invasion of the right to make it unlawful for any person to carry a dirk, sword cane, Spanish stiletto, or other similar weapon. Aymette v. State, 2 Humph. 154; State v. Wilburn, 7 Baxt. 57, 32 Am. Rep. 551; Andrews v. State, 3 Heisk. 165, 8 Am. Rep. 8; English v. State, 35 Tex. 473, 14 Am. Rep. 374; State v. Workman, 35 W. Va. 367, 14 L.R.A. 600, 14 S. E. 9. It may be remarked that an absolute prohibition of such right might be held to infringe a fundamental right.

In Nunn v. State, 1 Ga. 243, the court said: "We are of the opinion, then, that so far as the Act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defense, or of his constitutional right to keep and bear arms. But that so much of it as contains a prohibition against bearing arms openly is in conflict with the Constitution, and void, and that,

as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed."

It appears, therefore, that, although state Constitutions declare that every citizen has the right to bear arms, in defense of himself and the state, and do not expressly or by implication deny to the legislature the right to enact laws in regard to the manner in which arms shall be borne, this can be done, and the absence of such a guaranty in the state Constitution leaves the legislature entirely free to deal with the subject.

(c) The conclusions that the legislation comes within the police power, and that it is a reasonable exercise thereof, render unnecessary any discussion of the last point that rights of private property under § 17, art. 1, of the state Constitution, are infringed by the statute in question, since the principle law-protection of law that private of private propproperty rights of erty-effect. individuals are required to yield when in conflict with reasonable police regulations is applicable. 5 Cal. Jur. 882.

Constitutional

Writ discharged and petitioner remanded.

We concur: Myers, Ch. J.; Waste, J.; Richards, J.; Seawell, J.

acted upon the report. Their contract was with the Foster Company, and their undertakings were necessarily subject to modifications and waiver by the contracting parties. If defendant in error or other third persons can acquire a right in this contract, the contracting parties are deprived of control over their own contract. The fact that plaintiffs in error held themselves out as expert inspectors, and the fact that business men relied upon their reports in purchasing materials, do not change the rule. They only assumed the duties and obligations of experts when they were employed to render expert services, and their obligations in that regard extended only to persons who bought and paid for their services.

In Gordon v. Livingston, 12 Mo. App. 267, Livingston, an expert grain inspector, certified to a mill that certain wheat was No. 1 red winter wheat, when in fact it was of an inferior grade. The mill sold the wheat to Gordon, and he, relying on the certificate of inspection, paid for the wheat without examining it. It was held that Gordon could not recover damages from Livingston, for the reason that Livingston owed no legal duty to Gordon. In Kahl v. Love, 37 N. J. L. 5, a collector of taxes issued a receipt showing payment of certain taxes in full, when in fact a part of the taxes was unpaid. The lots subject to these taxes were sold, and the purchaser sought to recover damages from the collector by reason of his neglect in issuing the false receipt, but recovery was denied. In National Sav. Bank v. Ward, 100 U. S. 195, 25 L. ed. 621, an attorney certified to A that he had a clear title to a certain lot. A applied to B for a loan, and B, relying on the opinion of the title furnished by the attorney to A, loaned the money. Payment not being made when due, B sought to collect by selling the premises, and discovered that A had no title to the lot and was insolvent. Thereupon B

sought to recover damages from the attorney because of his negligent examination of the title, but the court held that there was no privity of contract between the attorney and B, and that the former was not liable to B for any loss sustained by reason of the opinion furnished to A. In Thomas v. Guarantee Title & T. Co. 81 Ohio St. 432, 26 L.R.A. (N.S.) 1210, 91 N. E. 183, 2 N. C. C. A. 80, an action was brought to recover damages from an abstracter who had furnished to the owner of a tract of land a defective abstract of title. A subsequent purchaser sought to maintain the action on the ground that parties dealing in real estate rely upon abstracts furnished former owners, and that the abstracter owes a legal duty to all persons dealing with the land to make the abstract accurate. The court

held that there was no contractual relation between the abstracter and the subsequent purchaser, and that usage or custom could not create a contract or a liability where none otherwise existed, otherwise existed. and concluded that the action could not be maintained. In Buckley v. Gray, 110 Cal. 339, 31 L.R.A. 862, 52 Am. St. Rep. 88, 42 Pac. 900, it was held that an attorney employed to draw a will is not liable to a person who, through the attorney's neglect or ignorance in the discharge of his professional duties, has been deprived of the portion of the estate which the testator instructed the attorney should be given such person by his will; the basis of the decision being that there was no privity between the attorney and the disappointed beneficiary. In Landell v. Lybrand, 264 Pa. 406, 8 A.L.R. 461, 107 Atl. 783, it was held trespass for neglect will not lie against certified public accountants, by one having no contractual relation with them, for loss caused by reliance upon their false report in purchasing stock of a corporation upon which they reported, where the report was shown to the purchaser by one suggesting the purchase, and