Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

that said assured was addicted to periodical and excessive indulgences in the use of alcoholic liquors or beverages which be- Injunction by School District No. 20, Spokcame habitual." We think this instruction ane County, against R. B. Bryan, as State contains a correct statement of the law ap- Superintendent of Public Instruction, and plicable to this class of actions. Holtum v. Charles P. Lund and others, as Board of Germania Life Ins. Co., 193 Cal. 645, 73 Pac. Trustees of the State Normal School at 591; Knickerbocker Life Ins. Co. v. Foley, Cheney. From a judgment in favor of plain105 U. S. 350, 26 L. Ed. 1055; National | tiff, defendants appeal. Affirmed. Fraternity v. Karnes, 24 Tex. Civ. App. 607, John D. Atkinson and William W. Manier, 60 S. W. 576; Mutual Life Ins. Co. v. Simp- for appellants. W. H. Winfree, for respondson (Tex. Civ. App.) 28 S. W. 837.

ent.

CHADWICK, J. In order to make effectual section 2550, Ballinger's Ann. Codes & St. (Pierce's Code, § 7463), the Legislature of this state, at its 1907 session, passed a law (chapter 97, p. 181, Laws 1907) providing for a model training school department to be established in the state normal schools. Its purpose is manifest. It is to provide material for the particular training of teachers, and to this end the boards of the several

The remaining assignment relates to the sufficiency of the testimony to sustain the verdict. The appellant requested the court to submit a number of special interrogatories to the jury, and the request was granted. These interrogatories covered every material issue in the case, and were each and all answered in favor of the respondent. The appellant complains that the testimony in support of the findings of the jury was largely of a negative character, but negative testimony is competent and at times the only tes-normal schools are authorized, and it is timony by which an issue may be established. Puls v. Grand Lodge A. O. U. W., 13 N. D. 559, 102 N. W. 165.

The testimony was sufficient to sustain the findings of the jury, and the judgment is affirmed.

made their duty, to file, on or before the first Monday in September in each year, with the board of the school district in which the normal school is situate, a requisition for the estimated number of public school pupils necessary to make up a model training school. It is thereupon made the duty of

FULLERTON, CROW, and MOUNT, JJ., the local board to apportion a sufficient num

concur

(51 Wash. 498)

ber of pupils to meet the requisition. It is also provided that the principal of the normal school may refuse to accept such pupils as in his judgment, by reason of incorrigibil

SCHOOL DIST. NO. 20, SPOKANE COUN-ity or mental defects, would tend to reduce TY, v. BRYAN, Superintendent of Public Instruction, et al.

(Supreme Court of Washington. Jan. 16, 1909.)

1. SCHOOLS AND SCHOOL DISTRICTS (§ 11*)DEFINITION OF "COMMON SCHOOL."

the efficiency of the training department. It is made the duty of the school clerk to keep a segregated list of those attending the model school, and, further, "that it shall be the duty of the superintendent of public instruction to apportion to the support of such normal training school out of the funds available for the support of the common schools of the district in which each normal school is situated, such proportion of the funds to which such school district shall be entitled as the number of pupils in attendance upon each such model training school 2. SCHOOLS AND SCHOOL DISTRICTS (§ 19*) which the apportionment was made for the bears to the whole number of pupils upon

A "common school," within the meaning of the Constitution (article 9, §§ 2, 3), is one that is common to all children of proper age and capacity, free, and subject to, and under the control of, the qualified voters of a school district. [Ed. Note.-For other cases, see Schools and School Districts, Dec. Dig. § 11.*

For other definitions, see Words and Phrases, vol. 2, pp. 1335, 1336.]

MODEL TRAINING SCHOOLS

RIGHT TO

SHARE IN COMMON SCHOOL FUNDS.

A model training school, intended to be established by Laws 1907, p. 181. c. 97, by drafting as many pupils as are necessary from the school district in which each normal school is situate, is not a common school within the meaning of Const. art. 9, §§ 2, 3, requiring that the revenue for common schools shall be exclusively applied to the use and support thereof, and hence so much of such chapter as provides (section 4) for an apportionment of the funds of the school district to the support of such training school contravenes the Constitution.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 34, 37; Dec. Dig. § 19.*]

common schools in the school district in which such normal school is situated, and the funds so apportioned shall be distributed by the board of trustees for the maintenance of such model training school." Section 4. Plaintiff brought an action in the superior court of Thurston county to restrain the defendant, as superintendent of public instruction, from apportioning to the model training department of the state normal school located at Cheney, Wash., any of the funds available for the support of the common schools. From an order directing an

injunction, and also holding "that so much | sion for the education of children was made of chapter 97, p. 180, Laws 1907, ‘Entitled paramount, and the duty was imposed upon an act relating to the model training school department of normal schools, authorized by section 7463 of Pierce's Code, section 2550 of Ballinger's Annotated Codes and Statutes of Washington, and providing for apportionment of funds therefor,' approved March 11, 1907, which seeks to apportion or appropriate any part of the common school fund or revenue therefrom or state tax for the support of the common schools is unconstitutional and void," the defendants have appealed.

The assignments of error, four in number, all go to the question, does the act provide for a diversion of the common school fund in contravention of the following constitutional provisions: "The Legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools and technical schools as may hereafter be established. But the entire revenue derived from the common school fund, and the state tax for common schools, shall be exclusively applied to the support of the common schools." Article 9, § 2.

* The interest accruing on said fund together with all rentals and other revenues derived therefrom and from lands and other property devoted to the common school fund, shall be exclusively applied to the current use of the common schools." Article 9, § 3.

the Legislature of providing a general and uniform system of public schools. The system provided differentiates between the common school and the normal school, as does the Constitution, and, when adopted, such system has the force of the constitutional provision which it elaborates. The system must be uniform in that every child shall have the same advantages and be subject to the same discipline as every other child. A system of control through school boards and county superintendents is provided for, their duties defined, and a method supplied to secure, in theory at least, efficient teachers and instructors. When considered in this way, it would seem that the definition arrived at by counsel is too narrow. The words "common school" must measure up to every requirement of the Constitution and code of public instruction; and, whenever by any subterfuge it is sought to qualify or enlarge their meaning beyond the intent and spirit of the Constitution, the attempt must fail.

The propriety and benefit of the scheme are urged by counsel. They say: "Here we have a model training school, which is a portion of a state normal, which has as principal a person chosen for that position because of his experience as an educator, who gives personal supervision to the instruction of a certain number of the pupils who would otherwise be attending other graded schools of the district. This principal has under Counsel for appellants have made an elab- his charge a corps of teachers who are makorate research of the authorities in order to ing a study, a science, of the art of schoolarrive at a proper definition of the words teaching. Experience will show the benefits "common school," and from them deduced to the pupils attending this department. The the following: "The essential characteris- pupils are chosen in some way, mayhap by tics, therefore, of a common school are: (1) lot by the directors of the district; mayhap They must be maintained at public expense; as being residents within a certain portion (2) they must provide a course of elementary of the district in the vicinity of the normal education for children of all classes and peo- school; mayhap as being pupils in a certain ple." He concludes that the model training grade or grades. They are residents of the school comes within this definition, and is same district. They pursue the same studtherefore a common school within the mean- ies; in all probability receive better and ing of the Constitution. The word "defini- more careful instruction than do the others tion" is in itself difficult to define. What who attend the other common schools withwould be proper under a given state of facts in the district. Why is that not a common may be impossible under another. The word school within the meaning of the men who must be accepted with reference to its rela- framed the Constitution? There are no estion to other words and terms. The words sentials lacking." With these considerations "common school" cannot be arbitrarily de- we can have no concern. But if it were othfined, but must be considered in connection erwise, the argument meets itself, and furwith the general scheme of education out-nishes abundant reason why the act in queslined in the Constitution of the state. When tion cannot be sustained. The principal of so considered, they have no uncertain meaning. In adopting a Constitution the people of this state saw fit to devote a chapter to the subject of education. In it they were careful to emphasize the importance, as well as the distinct character, of the common school. They endeavored to protect and preserve the funds set apart by law for the support of the common school from invasion, so that they might be applied exclusively to the current uses of such schools. An ample provi

the normal school, however accomplished, is not an officer recognized by the law creating the common school system, and is in no way answerable to those who are charged with the duty of executing it. The teachers under his charge may be devoted in their pursuit of the art of teaching, but they are not teachers within the meaning of the law, which has undertaken to insure that public school children shall be taught only by those who have met (not, seeking to attain) a cer

tain standard of proficiency. In other words, a most sacred trust. Courts have been zealthe argument of counsel emphasizes the fact ous in protecting the money set apart for the that in its operation the act of 1907 would maintenance of the free schools of the counbreak the uniformity of the common school system. To summarize, a common school, within the meaning of our Constitution, is one that is common to all children of proper age and capacity, free, and subject to, and under the control of, the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with power to discharge them if they are incompetent. Under the system proposed, instead of the voter employing a teacher with proper vouchers of worthiness, they are made recruiting officers to meet a draft for material that the apprentice may be employed. A normal school has been defined as a school, "not intended for the education of the children of the inhabitants of the districts where they are to be located, but for the training of teachers for all the common schools. They are not open to all, but only to such as may be selected at times and in a manner to be prescribed by the superintendent of public instruction.

try. They have turned a deaf ear to every enticement, and frowned upon every attempt, however subtle, to evade the Constitution. Promised benefit and greater gain have been alike urged as reasons, but without avail. They have endeavored to say in unmistakable terms that the common school fund is just what it purports to be, a fund to be used for the sole purpose of supporting the graded schools of the commonwealth under the sanction of fixed and uniform laws. It follows that all experiments in education must be indulged, if at all, at the expense of the general fund. An attempt to divert a part of the common school fund to the education of children in certain orphanages was met by the Supreme Court of New York with the suggestion that, if it were accomplished, the Legislature "might by a simple enactment convert all our colleges and academies and all our seminaries into common schools. This cannot be tolerated." People v. Board, supra. The Supreme Court of Virginia, in defining the extent of legislative authority over these funds, said: "We think the ConApplicants for admission are required to pos- stitution has dedicated this fund to the pubsess certain qualifications which must be test-lic free schools of the state, and, intrenched ed by preliminary examinations, and on the behind its bulwarks, it is beyond the reach completion of their studies the pupils are to of the Legislature for any other purposes receive diplomas, which shall be evidence of their qualification to teach in common schools; but they are under no obligation to become teachers, and there is nothing to prevent their engaging in other pursuits." Gordon v. Cornes, 47 N. Y. 608. Nor can the Legislature by any contrivance, designation, or definition make a common school a normal school, or a normal school a common school, within the meaning of the Constitution. "To say that the Legislature can determine what institutions shall receive the proceeds of the school fund, and that whatever they determine to be entitled thereto becomes ipso facto a common school, is begging the whole question, and annulling the constitutional restriction." People v. Board of Education, 13 Barb. (N. Y.) 400.

*

*

Admitting for the sake of argument that the act would result in benefit to the schools as a complete system, the benefit would be only incidental. The main purpose is to benefit the normal pupil, and would result in a diversion of the fund from the exclusive use proposed in the Constitution. That the common school and the normal school are distinct is further made certain by reference to the enabling act creating this state. The people have spoken this difference in the Constitution, and the Legislature has maintained it in the code of public instruction. To take from the one and give to the other by indirect methods that which was designed for a special purpose would defeat the whole scheme of the law, and open a way for the

whatever." State Female Normal School v. The Auditors, 79 Va. 233. The Supreme Court of Kentucky in several cases has refused to countenance any diversion of the moneys set apart for the common schools, meeting a positive showing of economy to the public school system with the following: "The position that the school building is not sufficient in dimensions to accommodate all the children, and for that reason the Legislature had the power to divide the fund, cannot be sustained. If not sufficient, those in charge of the common school should make it so, and to allow the legislative department of the government to divide the fund in such a mode, when, in the opinion of those interested, the school buildings were insufficient, would be subversive of the whole school system. If a case could exist where such legislative action would be sanctioned, it is found in the case before us; but, when ample remedies are afforded by the law regulating common schools to prevent such results as is now attempted to justify this character of legislation, there is no reason for establishing a precedent that must, if followed, destroy the very existence of common schools." Underwood v. Wood, 93 Ky. 177, 19 S. W. 405, 15 L. R. A. 825. And the same court, in expressing its unwillingness to conjure an excuse for such legislation, said: "If the General Assembly may appropriate the revenues of the school fund for any purpose which cannot be clearly shown not to be in aid of common schools in any sense or in

ed and lost to the children of the state when-
ever the Legislature of the state so wills it."
Collins v. Henderson, 11 Bush. (Ky.) 74.
Other cases having a direct bearing on the
issue are Hall's Free School v. Horne, 80 | Company.
Va. 470, and Halbert v. Sparks, 72 Ky. 259. plaintiffs bring error. Reversed.
It is not that the Legislature cannot make
provision for the support of a model training
school, but in its attempt to do so, it has
made provision for it out of the wrong fund.
This conclusion makes it unnecessary to dis-
cuss the other questions raised by counsel
for respondent as to the sufficiency of the
title of the act.

Error to District Court, City and County
of Denver; John I. Mullins, Judge.
Action by William Harvey and another
against the Denver & Rio Grande Railroad
Judgment for defendant, and

Thomas B. Stuart and Charles A. Murray, for plaintiffs in error. Wolcott, Vaile & Waterman and E. N. Clark, for defendant in

MAXWELL, J. The complaint in this case stated two causes of action. The first cause of action alleged a balance of $564.04 due The judgment of the lower court is af- plaintiffs from defendant upon a written con

RUDKIN, C. J., and FULLERTON, CROW, foundations, abutments, walls, and stone work and MOUNT, JJ., concur.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

failed and refused, and still fail and refuse, to execute and deliver to this defendant such release and discharge as aforesaid."

vided for by the terms of the contract. To claim, and made a demand on defendant for the second cause of action the defendant an- some $3,000, for work done near Pueblo and swered, a general denial of each and every at Fountain. Under date April 21, 1902, the allegation thereof, except such as were ex- plaintiffs executed and delivered to defendant pressly admitted, and for a second and fur- a receipt, release, discharge, and acquittance ther defense denied that any agent of de- for $1,294.60, a voucher and a receipt for the fendant company had authority to request same amount, and a receipt, release, discharge, or procure the plaintiffs to render the serv- and acquittance for $12,412.57. Exhibits 1, ices or furnish the materials referred to; de- 2, and 4. Plaintiffs objected to the introducnied that defendant requested or procured tion in evidence of these exhibits, upon the the plaintiffs to render such services or fur- ground that they had not been pleaded. The nish such materials; denied that the plain- answer to the second cause of action, hereintiffs rendered or furnished the services or before outlined, was a general and specific materials; and alleged that on the 10th day denial of the allegations of the complaint, of September, 1901, plaintiffs and defendant and a further answer to the effect, that, if entered into a written contract for certain plaintiffs rendered the services and furnishwork in the construction of certain bridge ed the materials sued for, the same were renabutments, subject to the covenants, condi- dered and furnished under the contract of tions, and limitations in said contract set September 10th, and not otherwise, and that forth, a copy of which contract was set forth payment of the balance admitted to be due in hæc verba in the answer. The answer upon said contract was subject to the confurther alleged that all services rendered and dition that plaintiffs execute and deliver to appliances and materials furnished defend- defendant a full and valid release and comant by the plaintiffs, as alleged in their sec-plete discharge of all claims and demands ond cause of action, if any such were render- whatsoever, "and that said plaintiffs have ed or furnished, were rendered and furnished under and in accordance with the terms, conditions, covenants, and agreements of said contract, and not otherwise, and that under the terms and conditions of said contract there is due the plaintiffs the amount of money sued for in the first cause of action; that payment of said amount of money was conditional upon the execution and delivery by plaintiffs to defendant of a full and valid release and complete discharge of and from all claims and demands whatsoever growing out of, or in any way connected with, said contract, and that plaintiffs had failed and refused to execute and deliver to defendant such release and discharge. A reply put in issue the allegations of new matter in the answer. The trial was to the court and a jury. Upon the conclusion of all the evidence offered, upon defendant's motion, the court directed the jury to return a verdict in favor of the plaintiffs for the sum of $564.04, being the amount sued for in the first cause of action, and admitted to be due by the answer. The following facts are uncontroverted: The only written contracts between the parties, during the period of time covered by the matters in controversy herein, were the contracts of September 3, and September 10, 1901. Previous to the commencement of this suit the balances due plaintiffs from defendant under these contracts were ascertained and determined by the parties. The balance due under the contract of September 3d does not appear from the evidence, but was included in the sum of $12,412.57, as shown by the receipt, release, and discharge signed by plaintiffs, dated April 21, 1902 (defendant's Exhibit 4 of the record). The balance due under the contract of September 10th was ascertained to be $564.04, as alleged in the complaint and admitted by the answer. About

Under this state of the pleadings defendant contends that, the complaint having alleged nonpayment, proof of payment was admissible under the general issue raised by the answer, and authorities are cited in support of this position. Whatever may be the rule in other jurisdictions, it is settled in this state that payment is an affirmative defense, and must be specially pleaded. Esbensen v. Hover, 3 Colo. App. 467, 33 Pac. 1008; Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 Am. St. Rep. 258; Thomas v. Carey, 26 Colo. 485, 58 Pac. 1093; Florence O. & R. Co. v. First Nat. Bank, 38 Colo. 119, 88 Pac. 182. Exhibits 1 and 4, by their express terms stating, "This receipt, release, discharge, and acquittance made and executed," etc., clearly indicate that they were something more than simple receipts evidencing payment. An examination of Exhibit 1, which was the one principally relied on to defeat a recovery in this action, shows that it was a release and an accord and satisfaction. In Alden v. Carpenter, 7 Colo. 87, 91, 1 Pac. 904, 907, it is said: "In New York it is held that evidence of payment, release, accord, and satisfaction, and such like defenses, is not admissible under a general denial, but must be specially pleaded, and this ruling is put upon the ground that the general denial, under the Code, is wholly unlike the general issue at common law." If a party intends to rely upon an accord and satisfaction, it should be set up as a defense in the answer. Berdell v. Bissell, 6 Colo. 162, 164. "In California it is held that a general denial puts in issue an allegation of nonpayment in the complaint. But in that state the averment of nonpayment seems to be essential, and without it