APPEAL-REVIEW-FINDINGS OF JUDGE-INTERPRETER-WATER RIGHTS. 1. The findings of fact made by the judge who decides a case without a jury are entitled to as much, if not more, consideration than the findings of a master or referee, and, where the decree based thereon is not manifestly wrong, the same will not be disturbed. 2. The appointing of an interpreter is in the discretion of the court, and is not appealable. 3. The failure to work an acequia, under the laws of the territory regulating the same, will not justify those who have no interest therein in wrongfully appropriating water flowing through it. (Syllabus by the Court.) Error to district court, Bernalillo county; before Justice J. W. Crumpacker. Action by pueblo of Santo Domingo against Marcos C. De Baca and others. Judgment for plaintiff. Defendants bring error. Affirmed. Thomas B. Catron and E. V. Chaves (H. L. Warren and Marcos C. de Baca, on the brief), for plaintiffs in error. F. W. Clancy and Geo. Hill Howard, for defendant in error. MILLS, C. J. 1. In this case a jury was waived, and the cause was tried by the court, which held in favor of the pueblo, the plaintiff below. We have carefully considered all of the evidence introduced at the trial, and find that there is testimony to support the findings on which the decree is based. The findings of fact made by the judge who decides a case without a jury are entitled to as much, if not more, consideration than the findings of a master or referee. As the decree in this case does not seem to be manifestly wrong, and as we are bound by the repeated decisions of this court, the decree will not be disturbed. Davis Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Kimberly v. Arms. 129 U. S. 524, 9 Sup. Ct. 355, 32 L. Ed. 764; Zanz v. Stover, 2 N. M. 29; Torlina v. Trorlicht, 5 N. M. 148, 21 Pac. 68; De Cordova v. Korte, 7 N. M. 678, 41 Pac. 526; Field v. Romero, 7 N. M. 630, 41 Pac. 517; Gentile v. Kennedy, 8 N. M. 347, 45 Pac. 879; Givens v. Veeder (N. M.) 50 Pac. 16; Express Co. v. Walker (N. M.) 54 Pac. 875; Bank v. McClellan (N. M.) 58 Pac. 347; Johnson v. Gallegos (decided at this term) 60 Pac. 71. V. 2. The court committed no error in appointing one of the Indians as interpreter. The appointment of an interpreter is in the discretion of the court, and is not appealable. 11 Am. & Eng. Enc. Law, p. 525; People v. Ramirez, 56 Cal. 533. 3. The ditch in question was built by the Indians very many years ago. It has been maintained by and belongs to them, and we are unable to see how their failure to elect a mayordomo and work the acequia, under the laws of the territory regulating such election and work, would justify the plaintiffs in error in wrongfully appropriating water flowing through it, which the court below finds does not belong to them. There is no error in the decree complained of, and the same is therefore affirmed. (Supreme Court of New Mexico. Jan. 29, 1900.) INTERSTATE COMMERCE-LICENSE-SALES IN ORIGINAL PACKAGES. 1. A territorial statute which imposes a license fee as a condition upon which coal oil may be sold in the territory is unconstitutional and void, in so far as it applies to sales in original packages by the importer of coal oil produced and refined without the territory. 2. Section 2 of the act of the territorial legislature approved March 15, 1899 (Sess. Laws 1899, p. 101). construed to apply to sales of coal oil in the territory in original packages by the importer, and held to be, to that extent, unconstitutional and void. (Syllabus by the Court.) Application of B. G. Wilson for a writ of habeas corpus. Writ granted. By an act approved March 15, 1899, the territorial legislature attempted to tax the sale of coal oil and its products; the pertinent provisions of said act being as follows: "Sec. 2. No corporation, either foreign or domestic, engaged in the business of producing or refining petroleum or coal-oil, or the products thereof, for illuminating purposes, shall have the right to sell said commodities within the territory of New Mexico, until a license has been issued by said territorial commerce commission [provided for in section 1 of the act] authorizing such corporation to engage in the business of selling and disposing of such products. No such license shall be issued in case of any foreign corporation until it shall have complied with the laws of the territory of New Mexico, authorizing it to do business in the territory, and then only upon written application therefor. For such license every such corporation shall pay the sum of five hundred dollars, to be paid If any such corporation shall attempt to do business in this territory without having obtained such li cense, or, if having obtained the same, shall attempt to do business after revocation thereof, it and its agents shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding five thousand dollars, or, in case of a natural person, imprisoned for a period not to exceed two years in the territorial penitentiary, or by both such fine and imprisonment." "Sec. 5. All corporations, co-partnerships or persons who purchase and sell more than three thousand dollars in value of such commodities per annum, estimated at the market price thereof, shall be deemed wholesale dealers, and all others shall be deemed retail dealers. Said commission shall charge for a wholesale license the sum of twentyfive dollars, and for retail license the sum of one dollar. The corporations mentioned in sections two and three of this act shall be deemed producers and refiners, and any corporation whether actually engaged in producing and refining said commodities or engaged in the distribution of said commodities as the agent under any contract or arrangement with the actual producer and refiner thereof, shall nevertheless be deemed such producer or refiner." Thereafter the petitioner was charged with a violation of said section 2, and was by the judge of the Second judicial district committed to answer said charge, whereupon petitioner sued out a writ of habeas corpus in this court, and the cause was heard upon the following agreed statement of facts: "(1) That the Continental Oil Company is a corporation created, organized, and existing under the laws of the state of Iowa, and doing business in the territory of New Mexico. (2) That the Continental Oil Company does not actually produce or refine petroleum or its products, but is engaged in distributing the same. Said company buys said commodities from the actual producers and refiners, and brings a portion thereof into the territory of New Mexico, and sells and disposes of the same to all persons desiring to purchase from it. (3) That portions of the coal oil so brought into the territory of New Mexico by the Continental Oil Company are shipped into said territory on orders received by it without said territory, from persons residing within said territory, in the original packages in which the same is put up by said Continental Oil Company for sale, and is delivered by said company to the purchaser in such original packages. (4) That other portions of the coal oil so brought into the territory of New Mexico by the Continental Oil Company are shipped to the various points within the territory where the said company has established distributing agencies, and is there stored in the tanks or otherwise, and delivered to purchasers in such quantities as may be desired, except that no delivery is made of less than five gal lons. (5) That the petitioner, B. G. Wilson, is the agent of the said Continental Oil Company, and transacts the business of said company within the territory of New Mexico, as its agent. The said B. G. Wilson is a citizen of the United States, and resides in the territory of New Mexico. (6) That the defendant has since the 15th day of March, 1899, continuously, as agent of the said Continental Oil Company, engaged in the business of selling within the county of Bernalillo, and territory of New Mexico, coal oil produced and refined and bought without the territory of New Mexico, as set forth in paragraphs 2, 3, and 4 of this statement, and no license has been issued to, or applied for by, the said Continental Oil Company or the said B. G. Wilson; nor has the said Continental Oil Company or the said B. G. Wilson paid the fee of five hundred dollars for such license, as required by section 2 of an act entitled 'An act relating to sales of coal oil and its products,' approved March 15, 1899, but, on the contrary, the said Continental Oil Company and the said B. G. Wilson have refused to apply for any such license, and to pay the license fee prescribed by said act. (7) That no petroleum is, or ever has been, produced or refined within the territory of New Mexico by any person or corporation, and all coal oil sold within said territory is, and always has been, produced and refined beyond the limits thereof. That all coal oil brought into the territory of New Mexico by the Continental Oil Company for sale is inspected by the territorial coaloil inspector appointed by law for that purpose, and no coal oil is sold or offered for sale by the petitioner or by the Continental Oil Company except such as is suitable for illuminating purposes, in accordance with the requirements of the statutes of said territory. (9) That the Continental Oil Company has fully complied with the provisions of all laws of the territory relating to foreign corporations doing business within said territory, except the provisions of the said act entitled 'An act relating to sales of coal oil and its products,' approved March 15, 1899, and has refused to comply with the provisions of said last-mentioned act on the ground that the same is unconstitutional and void." (8) N. B. Field, for petitioner. E. L. Bartlett, Sol. Gen., for the Territory. PARKER, J. (after stating the facts). Upon the foregoing record, this court discharged the petitioner, and it now remains for the court to express its reasons for holding this statute unconstitutional and void. The scope and effect of the commerce clause of the constitution of the United States has been a much-mooted question before the courts, both state and federal, ever since early in the century, and the number of cases in volving this important provision have constantly increased down to the present time. Without attempting to review or even cite the numerous cases involving the question under consideration, we think there are certain principles, firmly established by the supreme court of the United States, which are decisive of this case, and which may be stated as follows: (1) Commerce between a state and territory is "commerce among the several states," within the meaning of the constitution. Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256, 32 L. Ed. 637. (2) The right to conduct interstate commerce includes the right to sell in original packages the goods which are the subject of such commerce, free from state regulations. Gibbons v. Ogden, 9 Wheat. 1. 6 L. Ed. 23; Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49. (3) A state statute imposing a license tax upon the conduct of interstate commerce is a regulation of such commerce and invalid. Leloup v. Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311; Lyng v. Michigan, 135 U. S. 161, 10 Sup. Ct. 725, 34 L. Ed. 150; Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649. (4) A license may not be demanded of a foreign corporation or person engaged in interstate commerce for the privilege of conducting the same, nor may the same be prohibited, notwithstanding a like tax may be exacted for domestic business covering the same articles, and notwithstanding such domestic business may be prohibited. Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649; Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49; Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. (5) A state may tax or license a business wholly within the state, notwithstanding the person or corporation engaged in such business may also be, either incidentally or principally, engaged in interstate business, so long as the license or tax does not refer to, and is not imposed upon, the business which is interstate. Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586. (6) But where a license tax is laid generally upon the conduct of business in all forms, and without distinction as to whether it is interstate or local, and where the tax which is laid upon local business cannot be separated from that which is on interstate business, the whole tax is in contravention of the constitution and void. Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649; W. U. Tel. Co. v. Alabama, 132 U. S. 473, 10 Sup. Ct. 161, 33 L. Ed. 409; Ratterman v. Telegraph Co., 127 U. S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229; Leloup v. Mobile, 127 C. S. 640, 647, 8 Sup. Ct. 1380, 32 L. Ed. 311; Osborne v. Florida, 164 U. S. 650, 655, 17 Sup. Ct. 214, 41 L. Ed. 586. Applying the foregoing principles to the facts in this case, it seems clear that section 2 of the act of the territorial legislature under consideration is in contravention of the provisions of the constitution and void, so far as it applies to the business of the petitioner as agent of the Continental Oil Company. The petitioner, as such agent, is engaged in the business of buying coal oil, from the producers thereof, without the territory, and shipping the same into the territory for distribution and sale. Coal oil is a recognized article of commerce, and, as such, entitled to the protection of the commerce clause of the constitution. The sales of the petitioner are largely in origina! packages, and, as such, not subject to a license tax. It is true that the act provides for a like license for the sale of oil produced within the territory, but this fact does not take the business of the petitioner, which is interstate, out of the protection of the constitution. It is to be further observed that none of the exceptions, such as the right of inspection, the right to regulate sale in a particular way, as by auctioneers, peddlers, or hawkers, or the right to regulate sales of intoxicating liquors under the Wilson act (28 Stat. 509), or the right to exercise any of the police powers which are conceded to the states, intervene in this case to modify the principles announced above. It appears, however, that some portion of the business of the petitioner consists of the sale of coal oil in the territory after the original packages in which the same is put up for sale have been broken, and as to this portion of his business he or his company might be properly taxed. But section 2 of the act cannot be interpreted or construed to apply to such business. The act provides in section 5 for a license fee of $25 from all persons whose sales amount to $3,000 per annum, and who are termed "wholesale dealers," and a fee of $1 from all other persons who are termed "retail dealers." It may be that the petitioner is subject to the payment of the wholesale or retail dealer's tax as prescribed by the act, but as to this it is unnecessary to express any opinion. It is clear, however, that the license tax of $500 applies to some character of business other and different from that of a wholesale or retail dealer in coal oil. There being no method furnished by section 2 of the act whereby the tax of $500 can be apportioned between the local and interstate business of the petitioner, and it not being susceptible of construction so as to apply solely to local business, the same must be held to apply to the interstate business of the petitioner, and to be, consequently, unconstitutional and void, so far as it applies to the business in which the petitioner is shown to be engaged. MILLS, C. J., and McFIE, J., concur. CLYNE, Sheriff, v. BINGHAM COUNTY. EXPENSES-HOTEL BILLS-APPEAL-ALLOW- 1. Under Act March 7, 1899, it is the duty of every county officer to prepare his quarterly statement or account, showing each item of expense necessarily incurred in the performance of official duty, and each item of fees received during the quarter, at the end of each quarter, accompany the same with proper vouchers, verify the same with his oath, and file the same with the clerk of the board of commissioners for its consideration. Such statement, under said act, must be full and complete. 2. Items of expense incurred by a county officer cannot be considered by the board of commissioners, or by such board allowed, as an independent account, but must be considered and acted upon by such board only when included in the officer's quarterly statement or account_required by Act March 7, 1899, and not otherwise. 3. An appeal will not lie from the action of a board of county commissioners in disallowing a portion of a claim against the county, as, under the statute, the claimant must accept or reject the action of the board as a whole, upon the entire claim. 4. Where a claimant presents a claim against a county, and the board of commissioners allows a portion only thereof, acceptance of a warrant by the claimant for the portion allowed estops him from appealing from the action of the board, or from afterwards asserting any claim against the county for the portions or items disallowed. 5. Items in a claim or account against a county must be specifically set forth, with such certainty that each item can be identified; and any item for expense incurred by an officer must be so set forth that it can be ascertained from the The statement thereof that it was necessary. law contemplates and requires this, for the purpose of protecting the public, and to enable any taxpayer who may desire to do so to investigate and ascertain the correctness of any and all items. 6. A sheriff cannot go out of the state or out of his county to serve a subpoena at the expense of his county; he having no authority to act out of the state, and it being unnecessary for him to go out of his county, as the process can and should be served by an officer of the county where service is had. 7. Living expenses which are not merely incidental to the performance of an official act, such as items for bed and board, are not legal charges against the county, and boards of commissioners have no authority to allow such items. 8. On appeal from the action of a board of commissioners in allowing or disallowing a claim against the county, the transcript consists of "the notice of appeal, the order or decision appealed from, together with the accounts, bills, contracts or papers connected therewith and necessary to a proper hearing thereof, or certified copies thereof"; and, when such transcript is not brought into the district court on such appeal, the appeal should be dismissed. 9. On appeal from an order or action of a board of commissioners to the district court, the matter must be tried anew, and the jurisdiction of the court and its duties in the premises cannot be abridged or curtailed by stipulation of counsel. 10. When the transcript on appeal contains no judgment or order from which an appeal will lie, the appeal will be dismissed by the appellate court on its own motion. (Syllabus by the Court.) Appeal from district court, Bingham county; Joseph C. Rich, Judge. Action by D. H. Clyne against Bingham county. Judgment for plaintiff. Defendant appeals. Dismissed. N. H. Clark, for appellant. QUARLES, J. This is an apparent attempt on the part of the appellant to have a portion only of his quarterly statement or account as sheriff of Bingham county reviewed on appeal by the courts. The transcript in this case is imperfect, meager, and merits severe criticism. In order to intelligently understand this cause as it comes before us, it is necessary to set forth the transcript at length. transcript consists of 25 printed folios, which, after omitting title of court and of the action, is in words and figures as follows: The "Bingham County, Idaho, to D. H. Clyne, as Sheriff, Dr. "Hotel and Horse Feed. State of Idaho vs. Sam Kuntz, Aug. 7. Jr.; team feed for eight days.. $ 6 00 1550 $8 75 pœna; Falls on sub at Idaho Sept. 2. Sept. 19. Six meals, same case. two "In and Before the Board of County Commissioners of Bingham County, Idaho. "In the Matter of the Appeal of D. H. Clyne from Certain Orders Made by Said Board. "Notice of Appeal. "To the Board of County Commissioners of Bingham County, Idaho, and to Geo. F. Gagon, Clerk of Said Board, and to N. H. Clark, County Attorney of Bingham County, Idaho: You, and each of you, will please take notice that D. H. Clyne, sheriff of Bingham county, and who is the claimant upon the bill hereinafter described, hereby appeals from the order of the board of county commissioners of Bingham county, Idaho, made upon the 12th day of October, 1899, disallowing the said bill, to the district court of the Fifth judicial district of Idaho, in and for Bingham county. This appeal is taken from said order wherein the following described bill was disallowed, to wit, the bill of D. H. Clyne, filed with said board on the 11th day of October, 1899, for the sum of $64 and 50/100 dollars. This appeal is taken on both questions of law and fact. Dated this 24 day of November, 1899. Clark & Holden, Attorneys for Appellant. "Filed Nov. 3, 1899. "Stipulation. "This cause having come on regularly to be heard before the court, sitting without a jury, whereupon it was stipulated and agreed by the counsel in open court that each, all, and every of the items of the bill in controversy in this appeal are true and correct, and the amounts as set forth in said bill were paid for the purposes therein set forth, and that the sheriff of Bingham county, while being away from the court house on official business, serving regular process, incurred and paid for board and lodging the amounts as set forth in the said bill on file in this cause, which bill was duly presented to the board of county commissioners for their allowance, and which bill was by said board disallowed, from which action disallowing said bill the said D. H. Clyne, sheriff, appeals to this court; that the only question to be tried in this appeal is whether the board and lodging of a county officer, necessarily incurred while away from home on official business for the county, is an expense of said officer for which the county is liable. N. H. Clark, Attorney for Bingham County. Clark & Holden, Attorneys for D. H. Clyne, Sheriff. "Filed Dec. 5, 1899. "Finding and Decree of Court. "This cause came regularly on for trial on the 10th day of November, A. D. 1899, before the court without a jury; a jury trial having been duly waived in open court by the parties; and Clark & Holden, Esqs., appearing as attorneys for plaintiff, and N. H. Clark, Esq., county attorney, for defendant; and from the evidence introduced the court finds the facts as follows, to wit: "That the following bills and amounts are actual and necessary expenses actually incurred by D. H. Clyne, sheriff of Bingham county, in and about the performance of his duty as such sheriff, to wit: State vs. Dan Hopkins; hotel expenses $875 State vs. J. H. Jackson; two meals.. State vs. Jack Farrell; hotel at Weiser F. J. Fowers vs. Eagle Rock Water Co.; R. R. McElroy vs. Lillis and Crow; two Wm. S. Dillibor vs. American H. P. First National Bank Pocatello, for Fre- J. P. Porter vs. Sam J. Rich, one meal 150 50 2.50 5.75 3 25 1 50 75 50 3 75 2.00 6.00 1.25 25 $38 25 "As a conclusion of law from the foregoing facts, the court finds that plaintiff is entitled to judgment for the sum of thirty-eight and 25/100 dollars, in lawful money of the United States, and costs of suit. "Joseph C. Rich, Judge. "Notice of Appeal. "You will take notice that the defendant in the above-entitled action hereby appeals to the supreme court of this state from the judgment therein made and entered in the said district court on the 11th day of November, A. D. 1899, in favor of the plaintiff in said action and against said defendant, and from the whole thereof. Dated this 5th day of December, A. D. 1899. N. H. Clark, Attorney for Bingham County. To the Clerk of said District Court, and Clark & Holden, Attorneys for Plaintiff. "Due service admitted this 5th day of December, 1899, of notice of appeal. Clark & Holden, Attorneys for Plaintiff. "Filed Dec. 5th, 1899. "Certificate. "I, the undersigned, clerk of the Fifth judicial district of said state, in and for said county, do hereby certify the foregoing to be a true copy of the judgment entered in the above-entitled action, and recorded in Judg. nient Book 2 of said court, at page 212. Aud I further certify that the foregoing papers hereunto annexed constitute the judgment roll in said action. In witness whereof I have hereunto set my hand and affixed the seal of said district court this 11th day o' November, A. D. 1899. Geo. F. Gagon, Clerk. "Stipulation. "It is hereby stipulated and agreed by and between the counsel for the respective par ties that the foregoing is a full, true, and |