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thoughtful consideration. We approve the dortrine laid down by jurists and writers on constitutional law, that great deference is due to a contemporaneous legislative exposition of a constitutional provision. This doctrine rests on sound reason. Legal presumptions are in favor of the correctness of such expositions. It is said that the question whether a law is void for replignancy to the constitution is one of such delicacy that it is seldom, if ever, to be decided in the aifirmative in a doubtful case; also that where a construction of a constitutional provision has occurred contemporaneously with the adoption of the constitution, been acquiesced in for a long period of time, and valuable rights are claimed under it, great weight is to be given it on account of the opportunities afforded the law-makers for ascertaining the intention of the instrument, and the inconveniences likely to result from a decision that such construction was erroneous. Cooley, Const. Lim. 81-86, 219; Sedg. St. & Const. Law, 412; Dwar. St. 65; Fletcher v. Peck, 6 Cranch. 128. But these, after all, are only suggestions to be considered and weighed by the judiciary when called upon to pass upon the correctness of legislative acts. The rule upon the subject is that the constitution is to be regarded as higher authority than any other law; that it is the true intent of this instrument that is to be enforced; and that, when its meaning is plain, it is the solemn duty of the courts to enforce it, regardless of incidental effects. It has been well said that "contemporary construction can never abrogate the text; it can never narrow its true limitations; it can never enlarge its natural boundaries.” Story, Const. § 40.

After a careful examination of the subject under consideration, and giving due weight to all established rules and principles of construction applicable to a question of the nature and importance of that here presented, we are unable to interpret the limitation of the rate of taxation for state purposes otherwise than as already stated. In our judgment, there is no room for a reasonable doubt concerning the intention of the provision in question. The language employed is not ambiguous, and the intent to restrict the legislature to an annual rate of taxation for all state purposes, when the valuation of property should reach $100,000,000, appears to us to be clear, plain, and palpable.

It may be true, as alleged by the attorney general, that a levy of four mills on the dollar will not, at the present time, support the state institutions, and also provide a sufficient revenue to defray the necessary expenses of the departments of state. But this consideration, however serious, cannot control the decision of the question. “A constitution,” says Judge COOLEY, “is not to be made to mean one thing at one time, and another at some subsequent time, when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable.” Const. Lim. 67.

It was foreseen by the framers of the constitution that such an emergency as the present might arise. Their determination to protect the people from the imposition of onerous taxes to support a state government is unmistakable. But to fix the proper limitations, such as would effectually restrain extravagance on the one hand, and at the same time make anıple provision for the necessary expenses of a state government at different periods of its existence on the other hand, was, to a certain extent, experimental. To meet this difficulty it was provided, in the same section which limits the rate of taxation, that the rate might be increased, by submitting the proposed increase to a vote of the tax-payers of the state.

The last proposition of the relator is that, if section 11 is to be construed as restricting the legislature to a tax of four mills on the dollar for all state purposes and expenditures under the present valuation of the property within the state, then the act of April 7, 1885, repeals by implication the acts levying separate taxes for the state institutions. We cannot sustain this proposition. There is not such a repugnancy or conflict between the acts referred to as to justify the ruling contended for. The act of 1885, like the prior acts, levies a rate of tax for state purposes for the two fiscal years ensuing.

2

No reference is made therein to the acts prescribing the rates levied for the state institutions. As suggested by counsel for respondent, several of these institutions were in existence at the time of the adoption of the constitution. Section 5, art. 8, provided that these several territorial institutions should, upon the adoption of the constitution, become institutions of the state; and section 1 of the same article provides that “educational, reformatory, and penal institutions, and those for the benefit of the insane, blind, deaf, and mute, and such other institutions as the public good may require, shall be established and supported by the state in such manner as may be prescribed by law.” The several acts in question were passed in conformity to, and in compliance with, the requirements of the constitution. Rates of taxation were fixed therein, supposed to be sufficient for the support of these several state institutions, and required to be levied annually. We have shown that the legislature was in error in supposing that a rate levied “for state purposes” could be properly construed as embracing a portion, and not all, state purposes. This construction being erroneous, it follows that the statutory direction to county clerks in making up the tax-lists, to “compute and carry out in the proper column a state tax at the rate aforesaid,” was likewise erroneous. We perceive no constitutional objection to the statute requiring the taxes levied for state institutions to be separately extended. But, if both directions were carried out literally, it would result in a state tax in excess of the constitutional limit, to-wit, five and seventeen-thirtieths mills on the dollar. The latter error being in the direction to county clerks to extend the whole rate levied for state purposes in one column, this direction must be construed to conform to the interpretation placed upon the clause “for state purposes.” Thus construed, the duty of the respondent is to extend, in the proper column of the tax-list, a state tax at the rate of four mills on the dollar, less the rates required by law to be extended in another column for the support of the state institutions.

The peremptory writ is denied.

(2 Ariz. 229) ORDENSTEIN, as Ordenstein & Co., v. BONES and another, Partners, etc.

(Supreme Court of Arizona. January 17, 1887.) ATTACHMENT—WHEN IT WILL Issue-Account StateD-Comp. Laws Ariz. 2257.

The indorsement of the words, “The above balance, $1,193.96, due 0. & Co., is correct. B. &. S.,”—made in Arizona on an open account of goods sold in California, though making an account stated, does not operate to create such a contract as will entitle 0. & Co., in a suit on the account against B. & S., to a writ of attachment under Comp. Laws Ariz. 2257, providing for the issuance of that writ only where the plaintiff sues to recover an indebtedness upon a contract, express or implied, made or payable in the territory, for the direct payment of money. Appeal from district court, Yavapai county. Attachment.

Herndon & Hawkins and E. M. Sanford, for appellant. Rush, Wells & Howard, for appellees.

BARNES, J. The statute (Comp. Laws, 2257) authorizes the issuing of an attachment writ where plaintiff sues to recover “an indebtedness upon a contract, expressed or implied, for the direct payment of money, and that such contract was made or is payable in this territory.” Plaintiff in this case was a merchant doing business in California, and sold goods to defendants, who were living in this territory. It is admitted that such sale of goods was made in California, and that such contract would not support an attachment writ. After the sale was made, however, defendants, when pressed for payment, and being unable to pay then, were asked to acknowledge the debt, and did so in the following words, in writing:

"PRESCOTT, November 16, 1885. "The above balance, fourteen hundred and ninety-three 96-100 dollars, due Ordenstein & Co., is correct.

BONES & SPENSER.” This was written on an account for goods sold, at the place of business of defendants, in Prescott, Arizona. This writing is made the basis of this suit, and an attachment writ was issued on the ground that this latter writing is a contract made in this territory, and payable here.

We have been referred to many cases tending to show that an account stated was a new contract at common law, and that the above writing creates an account stated. At common law, when an amount due on an open account was agreed upon, then the law iinplied a promise to pay that particular amount. So, when goods were sold and delivered, the law implies a contract to pay the price for them. It is insisted that, being an account stated, it became an implied contract to pay, and, made in this territory, brings the action within the attachment laws. While much has been said and written by way of argument which sustains this view, yet a careful analysis of an account stated at common law leads to the conclusion that it amounts to a solemn admission of the fact of indebtedness, which, if proved, makes un necessary other evidence of the indebtedness, rather than that it is a new contract.

It is said in Chace v. Trafford, 116 Mass. 532: “An account stated is an acknowledgment of the existing condition of liability between the parties. From it the law implies a promise to pay whatever balance is thus acknowledged to be due. It thereby becomes a new and unpaid cause of action, so far as that a recovery may be had upon it without setting forth or proving the separate items of liability from which the balance results.” This case, therefore, treats it rather as an admission of a fact than as a contract, and the case decides that the statute of limitations begins to run from the date of the last item of the account. The account stated is not a new promise, to bring an account within the statute of limitations. To the same effect is White v. Campbell, 25 Mich. 463.

If an account stated is not a new promise, to bring an open account within the statute of limitations, a fortiori, it is not a contract made in this territory, for goods sold out of the territory, to sustain an attachment. This is a summary remedy, and a plaintiff must clearly come within its provisions to invoke its powers. Eck v. Hoffman, 55 Cal. 502; Dulton v. Shelton, 3 Cal. 206. By the paper sued on in this case the defendants simply say: "The above balance due is correct." This is a solemn admission of indebtedness, which could only be questioned for mistake or fraud; but it is simply an admission by defendants that they owe plaintiff a certain amount for the goods sold as stated in the account. The parties intended no more than that. Gooding v. Hingston, 20 Mich. 441. There is a broad distinction between an "admission” and a “contract." Nothing short of a contract made or payable in this territory gives the right to a writ of attachment. We do not think this paper is more than an admission of indebtedness. It does not change the nature of the old contract, or make a new one in this territory, but it dispenses with proof of the account.

The judgment of the district court dissolving the attachment is attirmed.

a

PORTER, J., concurs.

(71 Cal. 545)
MCCUE v. SUPERIOR COURT OF MARIN Co. (No. 11,802.)

(Supreme Court of Culifornia. January 14, 1887.) RSVIEW-Writ or-WHEN IT LIES.

A writ of review will not lie where an appeal lies which is not available because the time for taking it has elapsed.

In bank.

Writ of review.

James S. McCue, in pro. per., for petitioner. Joseph Kirk, for respondent.

BY THE COURT. The writ must be dismissed. The writ will not lie where there is an appeal; and, if there is an appeal, but the time for taking it has elapsed, the writ will not lie. In re Stuttmeister, 12 Pac. Rep. 270; Miliken v. Huber, 21 Cal. 166; Bennett v. Wallace, 43 Cal. 25.

Writ dismissed.

MCFARLAND, J., (concurring.) I concur in the judgment; but, in my opinion, there might be a case where, on account of unusual circumstances, a writ of review would lie, although there had been, at one time, a right of appeal, as intimated in Kimple v. Superior Court of San Francisco, 66 Cal. 136; S. C. 4 Pac. Rep. 1149.

(2 Cal. Unrep. 736)

PEOPLE. FRINK. (No. 20,251.)

(Supreme Court of California. January 15, 1887.) CRIMINAL LAW-APPEAL-DELAY IN PERFECTING-DISMISSAL.

Under Pen. Code Cal. 1246, requiring the clerk with whom the notice of appeal is filed, within 10 days thereafter, or within 10 days after the settlement of the bill of exceptions, to transmit to the clerk of the appellate court a copy of the record, an appeal will be dismissed on a showing by certificate of the clerk below that four years have elapsed since the taking of the appeal; that defendant has never requested the clerk to make up a transcript; that the bill of exceptions has never been filed, though settled; and that no transcript has been sent to the supreme court.

(71 Cal. 541)

In bank. Appeal from supreme court, Stanislaus county.

Defendant was adjudged guilty of libel, sentenced, and took an appeal from the judgment and order denying a new trial. Respondent moved, on certificate of the clerk of court below, for a dismissal, showing that more than four years had elapsed since appeal taken; that defendant had never requested the clerk to send up a transcript of the judgment and proceedings; that the bill of exceptions had never been filed by defendant, though settled, and no transcript had been sent to the supreme court by the clerk of the superior court. Section 1246, Pen. Code Cal., requires the clerk with whom the notice of appeal is filed, within 10 days thereafter, or within 10 days after the settlement of the bill of exceptions, to transmit to the clerk of the appellate court a copy of the notice of appeal, record, bills of exception, and instructions given and refused; and section 1249, Pen. Code Cal., empowers the appellate court to dismiss the appeal, if section 1246 is not complied with.

P. J. Hazen and Wright & Hazen, for appellant. T. A. Coldwell, Dist. Atty., for the People.

BY THE COURT. Motion to dismiss appeal granted.

LOVELAND v. GARNER and others. (No. 11,374.)
(Supreme Court of California. January 14, 1887.)

1. CORPORATIONS-MINING COMPANIES-REPORTS-LIABILITY OF DIRECTORS-ACTS CAL 1880, PAGE 134.

The California statute (Acts 1880, p. 134) regulating the conduct of mining business, and requiring the directors of corporations organized for that purpose, under a joint and several penalty of $1,000, recoverable by any stockholder, to post in a conspicuous place in the office of the company, on the first Monday of each month a duly-verified and itemized account or balance-sheet for the preceding month, is penal in its character; and, as it does not specifically declare that the penalty may be recovered for each failure to comply with its requirements, there can be but one recovery for all such failures prior to the commencement of suit.

2. Qui TAX AND PENAL ACTIONS-PLEADING-STATUTORY DUTIES.

The joining in one action of several matters of fact which show as many failures to perform a duty enjoined by law, and claiming the legal right, as a conclusion of law, to recover a penalty for each, when the law itself allows the recovery of only one penalty for one and all of such violations, is not a joining of several distinct

causes of action. 3. APPEAL-WAIVER-PLEADING—AMENDMENT AFTER DEMURRER SUSTAINED.

Where a demurrer to a complaint has been sustained, if the plaintiff files an amended complaint, in which he unites and pleads anew in one count all the causes of action which he had pleaded in his first complaint in separate counts, he waives his right, on appeal from an order sustaining a demurrer to the amended complaint, to object to the ruling on the demurrer to the original complaint. Commissioners' decision. In bank. Appeal from superior court, San Bernardino county.

Hargrave & Gray, for appellant. Byron Waters and Harris & Allen, for respondents.

FOOTE, C. The plaintiff brought his action to recover from the defendants $7,000, as liquidated demands, for their seven distinct failures to comply with the provisions of a certain act of the California legislature in reference to the carrying on and conducting the business of mining. The act referred to is to be found in St. 1880, p. 134.

The complaint first filed in the action contained seven distinct counts npon as many alleged causes of action, each claiming the right to recover of the defendants a penalty of $1,000 for their sep ate failures, on the first Mondays of seven different months, “to have the reports and accounts current made and posted,” as in the first section of the act provided. The defendants demurred to that complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and because the causes of action as set out were improperly united with each other. The demurrer was sustaineil.

The plaintiff then filed an amended complaint, in which was charged in one count seven distinct failures on the part of the defendants, on the tirst Mondays of as many different months, “to have the reports and accounts current made and posted,” as required by the statute heretofore mentioned; ard demand was made for the recovery of a penalty of $1,000 for each failure on the part of the defendants to comply with their alleged obligations under that statute. That pleading also was demurred to, on the ground that it did not state facts sufficient to constitute a cause of action, and that several causes of action were improperly united, and the court sustained the demurrer.

The plaintiff declining to amend his pleading, judgment for costs was rendered for the defendants, and from that this appeal was taken.

The ruling sustaining the first demurrer cannot now be attacked, for the reason that afterwards the plaintiff filed an amended complaint, in which he united and pleaded anew in one count all the causes of action which he had in nis first com'laint pleaded in separate counts, and thus waived his right to object to such action of the court. Hugely v. Hayely, 9 Pac. Rep. 305.

The further contention of the defendants is that, upon a fair construction of the statute upon which the action was predicated, it will be found to contain no warrant for a recovery of more than one penalty of $1,000, even if they should have neglected for any number of months to comply with its requirements, and that the amended complaint is demurrable because it states, joined together, several instances of their violation of that statute, and demands judgment for $1,000 for each violation.

So much of that act as is necessary to be considered for the purposes of this controversy reads as follows:

“Section 1. It shall be the duty of the directors, on the first Monday of each and every month, to cause to be made an itemized account or balance-sheet for the previous month.

Such account or balance-sheet shall be

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