either by withholding appropriations for them, or by increasing the number and salaries of its own employés and enlarging its ordinary expenses, to consume for the legislative department alone all of the public revenues of the state. This may be a pursuasive argument to address to the members of a constitutional convention, to dissuade them from intrusting to the general assembly plenary power of this nature. But it is no argument against the existence of the power under the constitution as it is written. A similar argument could be made against the powers which unquestionably lie with the executive and judicial departments. The governor of the state may call out the militia to execute the laws, suppress insurrection, or to repel invasion. He might be tempted to use the militia to enforce some personal end of his own, not contemplated by the constitution, or to subvert the constitution itself. But this is no argument against the existence of the power which he undoubtedly has to call out the militia for a proper purpose, and we are not to presume that the governor would violate his duty. So, too, the supreme court of this state may pass upon the constitutionality of every act passed by the general assembly. Merely because it has this power is no reason for supposing that it would abuse it, and declare every valid act of the general assembly invalid, or hold constitutional every act clearly inhibited by the organic act. Neither are we justified in supposing that the general assembly will so far forget its duty as to neglect to make provision for the support of the co-ordinate branches of government, or that it will arbitrarily and recklessly so increase the expenses of the legislative department as that there will be no revenue left to defray the expenses of the others. When an attempt of that kind is made, there will be time enough for the courts to pass upon its action. The judgment of the court of appeals is affirmed, and the cause remanded, with instructions to that tribunal to reverse the judgment of the district court and remand the case for a new trial, with further directions to the trial court to permit the parties to amend their pleadings as they may be advised, to correspond to the rules of procedure announced in this opinion; and, if there be another trial, let it be in accordance with the law as declared in this opinion. Affirmed.

(15 Colo. App. 291)

CATLIN, Superintendent, v. CHRISTIE et al.: (Court of Appeals of Colorado. June 11, 1900.) COUNTY SUPERINTENDENT OF SCHOOLS-CAPACITY TO SUE-ACTION TO RESTRAIN VIOLATION OF SCHOOL LAW-COMPLAINT-SUFFICIENCY-CONCLUSION OF LAW.

1. Mills' Ann. St. § 3984, imposes on county superintendents the duty of general supervision of the school system within their respective counties, and makes it their duty to

1 Rehearing denied December 24, 1900.

see that all provisions of the general school law are observed by teachers and school officers. Held, that a county superintendent of schools has the legal capacity to maintain an action to restrain a board of directors from employing a person not possessed of a certificate to teach, since public officers have implied authority to sue commensurate with their public trusts and duties, if not expressly prohibited by statute from doing so.

2. Mills' Ann. St. § 4024, provides that no district board shall employ any person to teach in the public schools of the state unless such person shall have a license to teach, issued from the proper district, county, or state authority, and in full force at the date of employment. Held, that a complaint which alleged that a board of directors had employed a person holding a valid certificate at an exorbitant salary, with the understanding that such person was to employ at her own expense another person as assistant, who did not possess a valid certificate in force at the time of such employment, and that such arrangement was made for the purpose of evading and disregarding the law requiring a certificate, stated facts sufficient to constitute a cause of action to restrain the attempted violation of the statute.

3. Mills' Ann. St. § 4024, provides that no person shall be employed to teach in the public schools who does not hold a valid certificate in force at the time of such employment. Held, that an allegation, in a complaint to restrain defendants from employing J. to teach in the public schools, "that J. did not possess a certificate to teach in force during any of the times mentioned in the complaint," was not objectionable as the statement of a legal conclusion, since it constituted an averment of an essential fact in the express language of the statute.

Error to district court, Montrose county.

Action by Alice M. Catlin, county superintendent of schools, against C. C. Christie and others, to restrain defendants from violating the school law. From an order sustaining a demurrer to the complaint, plaintiff brings error. Reversed.

F. D. Catlin, for plaintiff in error. John Gray and S. S. Sherman, for defendants in

error.

WILSON, J. This suit was brought by plaintiff, as county superintendent of schools of Montrose county, to restrain an alleged attempted violation of the school law by the directors of a school district in that county. The character of the violation charged can best be seen by the following extract from the complaint: "That Miss Jennie Jones is a teacher of Montrose county, and has a regular certificate as such from the county superintendent; but Miss Leila Jones, her sister, has no teacher's certificate in force which would entitle her to teach in said county, or would permit the directors of any district of said county to employ her as a teacher. That Miss Leila Jones has not had any certificate in force during any of the times mentioned in this complaint, but, disregarding the law in this respect, said defendants, the directors of said district No. 15, in September, 1898. employed Miss Jennie Jones and Miss Leila Jones to teach the schools of said district under the subterfuge and deceit of employing defendant Miss Jennie Jones at a salary of

$125 per month to teach the schools of said district, with a distinct understanding and agreement that she (Jennie Jones) was to employ her sister, Leila Jones, to teach one of the schools; all with the knowledge of the fact that Miss Leila Jones had no teacher's certificate, and with the intention and for the purpose of evading and disregarding the law. That Miss Jennie Jones' services were not worth more than $75 per month, and it was not intended to pay her more than $75 per month for her services; but the other $50 was intended for Miss Leila Jones. * That said two schools in said district are necessarily different and separate schools and separate grades, and are and were intended to be taught in different rooms; and it is a physical impossibility for said Jennie Jones to teach both said schools, and it was never intended she would or could. That said directors defendants have by said unlawful acts attempted to, and, unless restrained by order of this court, will, disburse the funds of said district unlawfully and fraudulently, and will delegate the employing of teachers to an agent, and pay out the funds of said district to compensate a teacher they have not hired and could not hire, and who could not teach in the county because she is not qualified by having a certificate to teach." The suit went off on demurrer to the complaint, and two questions are presented to us for determination: (1) Did the plaintiff have the legal capacity to sue? (2) Did the complaint state facts sufficient to constitute a cause of action?

The constitution contemplates the adoption and maintenance of a general system of public schools, and the general policy of the legislation in this state is and has been, under such constitutional provision, to provide a complete and harmonious system which shall effectuate to the greatest extent the beneficial objects desired. Various officers are provided for, each charged by statute with the performance of some special duty, and, like other public officers, invested by the state, whose instruments and agents they are, either directly or impliedly, with the powers necessary to discharge the duties imposed upon them. Section 6, art. 9, of the constitution provides for the election in each county of a county superintendent of schools, and that his duties shall be prescribed by law. In furtherance of this, the legislature has imposed upon county superintendents the duty of general supervision of the school system within their respective counties, and, among other things, has specially charged them with the duty "to see that all the provisions of this act [the general school law] are observed and followed by teachers and school officers." Section 3984, Mills' Ann. St. The statute is silent as to what powers, if any, they shall have in "seeing" that the school laws are observed and followed in their counties. It does not specifically give them any power to enforce obedience to the laws, or to restrain

their violation; but, if they have no such power, the requirement is idle and nugatory. It is never to be presumed that the legislature intends any such character of an act. It is, therefore, well settled by the overwhelming weight of authority that all public officers, though not expressly authorized by statute, if not expressly prohibited, have a capacity to sue commensurate with their public trusts and duties. Treasurer v. Bunbury, 45 Mich. 84, 7 N. W. 704; School Dist. v. Arnold, 21 Wis. 666; Supervisor v. Stimson, 4 Hill, 136; Haynes v. Butler, 30 Ark. 70; Mechem, Pub. Off. § 893. The last authority cited thus lays down the rule: "Where the law has not created prohibitions, public officers have an implied authority to bring and maintain all suits, as incident to their office, which the proper and faithful discharge of the duties of the office require." There is no prohibition in our statute against county superintendents maintaining suits which are required or which may be necessary to fulfill the duties of their office; and hence it follows that the plaintiff in this instance had the legal capacity to sue if the acts charged in the complaint constituted a violation of law. The law further contemplates that the schools shall be taught only by persons of proper and sufficient moral and educational qualifications. For this purpose it provides for the examination of those desiring to teach, and for the issuance to those qualified of certificates to that effect, which shall be licenses to teach. Section 3979, Mills' Ann. St. Further, to more effectually accomplish the purpose desired, the statute expressly provides that "no district board shall employ any person to teach in any of the public schools of the state, unless such person shall have a license to teach, issued from the proper district, county or state authority, and in full force at the date of employment." Section 4024, Id. Here is a direct and positive prohibition of the employment as teachers of any person except those having the proper certificates. It has been repeatedly held that contracts made in violation of this statutory provision, which exists gener-. ally in the states having a public-school system, are wholly void. Any attempted act of the school board in contravention of this section is absolutely null, and of no effect. It is a well-known principle requiring no discussion that what a public officer is prohibited by law from doing directly he cannot do indirectly. The complaint clearly alleges an attempted violation of this statutory provision, and hence it states a cause of action. The contention of defendants that the allegation in the complaint to the effect that Leila Jones did not have any certificate "in force during any of the times mentioned in the complaint" is no allegation at all, but a legal conclusion, is not tenable. It is a proper allegation, in the express language of the statute, of an essential fact. The prohibition, as will be seen from the part of the

statute which we have quoted, is against the employment as a teacher of one who, not only has no license to teach, but none in full force at the date of attempted employment. These latter words were necessary allegations in a complaint in order to bring the alleged violation within the terms of the statute, This provision of the statute is a wise one, and should be upheld. School directors should not be permitted to violate it, either directly or by evasion. This suit is not, as contended, an attempted interference with the discretionary power of the board in the selection of a teacher, because it had no discretion to employ a teacher disqualified by law. It does not attack the selection of Miss Jennie Jones, who is admitted to have had a regular certificate as teacher, but only the employment, in the alleged violation of the statute, of Miss Leila Jones as an assistant. It may be questionable whether the former had any right at all to select and employ an assistant or proxy. Directors v. Hudson, 88 III. 563; State v. Williams, 29 Ohio St. 163. But, even if she had, it is unquestionably true that she had no authority to engage one whose employment in such capacity was expressly prohibited by statute. If this was done with the consent, connivance, or permission of the school board of the district, then its acts were in attempted violation of the statute, and this suit could be maintained. For these reasons it follows that the demurrer should have been overruled, and the judgment must be reversed. Such will be the order, and the cause will be remanded for further proceedings in accordance with this opinion. Reversed.

1. Where, in an action on a redelivery bond in attachment, there was no evidence that the diminution in value of the goods from the date of their release to the date of their redelivery was $360, an instruction that if the goods, when they were redelivered, were not in substantially the condition they were when released to the defendants, plaintiff was entitled to a verdict of $360, was properly refused.

2. Where goods retained by defendants under an attachment bond were returned to the sheriff and sold, and plaintiff brought an action on the redelivery bond for diminution in their value, an instruction that if plaintiff inspected the property prior to its redelivery, and after such inspection made a demand for its return, without objecting to its quality or quantity, and the proper officer advertised it and sold it to plaintiff, and defendants were thereby misled and prevented from taking steps to protect themselves by electing to pay its value, plaintiff was estopped from asserting the property was injured, was erroneous, since the goods were returned to the sheriff, who was bound to receive them, and plaintiff had nothing to do with their inspection.

3. Where property retained by defendants under a redelivery bond was returned to the sheriff, and advertised and sold at public auction, and purchased by plaintiff, who subsequently brought an action on the redelivery bond for diminution in the value of the goods while detained by defendants, an instruction that the sum for which the property sold at the sheriff's sale was not conclusive as to its value was erroneous.

Appeal from district court, Arapahoe county.

Action by John Creswell against A. J. Woodside and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

C. J. Blakeney, for appellant. Thos. W. Lipscomb, for appellees.

THOMSON, J. In an action brought by the appellant against C. W. Phelps and W. D. Pennock, a writ of attachment was issued and levied upon a printing press, and certain type and other printing material, belonging to the attachment defendants. The latter procured the release of the property so taken, by executing a bond or undertaking as provided by the statute, with A. J. Woodside and S. J. McClanathan as sureties, conditioned for the redelivery of the property to the proper officer in case the plaintiff should recover judgment in the action and the attachment should not be dissolved, and for the payment of the value of the property in default of such redelivery. This suit was brought upon the redelivery bond. The complaint set forth the instrument; alleged that the attachment was sustained, and that the plaintiff recovered judgment in the action for $546.63 and costs; and averred that default was made in the redelivery of the property, in that, when the property was released to the attachment defendants, it was new and in good condition, whereas, when it was redelivered by them, it was injured and damaged by the use which they had given it while it was in their possession. The damage was laid at $420. The denials in the answer are unintelligible. Each is confined to a numbered paragraph of the complaint. There are no numbered paragraphs in the complaint. The answer alleged that, at the time of the redelivery, the plaintiff had ample opportunity to examine it, and that it was accepted by the officer in his presence, without objection from him. The trial resulted in a verdict and judgment for the defendants, and the plaintiff appealed.

At the trial the plaintiff produced evidence showing that the property had been used by the attachment defendants after it was released to them, and that the consequence of its use was a considerable diminution of its value. It appeared that at the sheriff's sale of the property it was bid in by the plaintiff for $250. In Creswell v. Woodside, 8 Colo. App. 514, 46 Pac. 842, a former proceeding upon the same bond by the same plaintiff against the same defendants, although we ad

judged the complaint bad, we held that a return of property worn and damaged by use, which was in good condition when received, was not a return of substantially the same property, and constituted a breach of the conditions of the bond. The plaintiff requested an instruction to the effect that if the goods, when they were redelivered, were not in substantially the condition they were in when released to the attachment defendants, and that if the difference in their condition was caused by the use made of them by the attachment defendants, the plaintiff was entitled to a verdict for $360. We do not entirely understand what was meant by $360. That sum was possibly intended to represent the difference between the judgment, with interest added, and the amount for which the goods were sold, after deducting costs. The court committed no error in refusing the request. The utmost to which the plaintiff was entitled was the amount of diminution in value of the goods between the date of their release and the date of their redelivery, resulting from their use by the attachment defendants, not to exceed the unpaid residue of the judgment, and that amount could be ascertained only by proof.

Over the objection of the plaintiff, the court. instructed the jury as follows: "(7) The undertaking given by the defendants herein was in the alternative, to redeliver the attached property on demand to the proper officer or pay the value thereof; and the defendants had the right to do either the one thing or the other. The plaintiff had the right, if, upon inspection and examination of said property, he found it to be injured or damaged, and for that reason in a worse condition than when attached, to decline to receive it in a damaged or injured condition, and in that event could have claimed of the defendants the value thereof, to the extent of the amount actually remaining at that time unpaid on the judgment in the county court rendered on June 6, 1892, in his favor against Phelps and Pennock. If the jury find from the evidence that the plaintiff, either himself or through his agent, examined said property, or had the opportunity and means of examining the same, prior to said redelivery, and after such examination, or opportunity to examine, himself, or by his agent, made demand on said Phelps for a redelivery of said property under said undertaking, and accepted a redelivery from him, without objections to the quantity, quality, or condition thereof, and without making any claim that said property was injured or damaged, and that the proper officer, with the knowledge of the plaintiff, advertised said property for sale, and sold the same to the plaintiff, and that the defendants were thereby led to and did believe that the plaintiff had accepted said redelivery as a compliance with the primary condition of said undertaking, and were thereby misled and deceived or lulled into a sense of feeling of security with reference to their liability on said

undertaking, and thereby prevented from taking steps to protect themselves, and from exercising their right of election to pay the value of said property to the extent of the amount remaining unpaid on said judgment, and retain the same, such conduct on the part of the plaintiff would amount to an acceptance by him of said redelivery as a compliance with the primary condition of said undertaking, and he would thereby be estopped from thereafter asserting that said defendants had made default therein, or that said property was injured or damaged. (8) The liability of the defendants on said undertaking, in case of a failure to redeliver said property, was to pay the full value thereof, up to the amount, but not in excess, of the judgment recovered by the plaintiff against Phelps and Pennock; and if the jury find upon the evidence that the value of the attached property, when redelivered to the proper officer by Phelps, on May 10, 1893, together with the cash payment of $300, made by Willis B. Herr to the plaintiff on December 18, 1897, equals or exceeds the amount of said judgment, including interest and costs, in that event the plaintiff is not entitled to recover; and you are further instructed that the sum for which said property sold at sheriff's sale is not conclusive of its value, but a circumstance merely in evidence, which you may consider in connection with all the other evidence in the case."

Both these instructions are fatally erroneous. The seventh assumes that the plaintiff accepted the property, and applies to him a doctrine which obtains in the case of a debt payable in personal property in good condition, and which doctrine is that it devolves upon the payee, when the property is tendered, to determine whether it is in good order or not, and that, if he accepts it, he is not permitted to question its condition. Manufacturing Co. v. Funge, 109 U. S. 651, 3 Sup. Ct. 436, 27 L. Ed. 1064. Between such a case and the one at bar there is no likeness or analogy. These goods were not delivered in payment of a debt. With their acceptance or rejection the plaintiff had nothing to do. They had been levied upon by the sheriff, released to the attachment defendants, and were returned, not to the plaintiff, but to the sheriff. Upon their receipt by the latter, it became his duty to sell them, and apply the proceeds on the judgment. Inasmuch as the identical articles released were brought to him, he was bound to receive them. In the matter of their acceptance, the sheriff had no discretion. And a refusal by him to receive the property, with or without the consent of the plaintiff, would have discharged the sureties. It was the right of the latter that the property, whether damaged or not, should be received and sold, and the proceeds applied upon the judgment in reduction of their own liability. So far as we can see, in the acceptance of the property and the subsequent proceedings, there was a substantial

compliance with the law. See Yelton v. Slinkard, 85 Ind. 190. The instruction we have been considering is explicable only on the hypothesis of a complete misconception of the

case.

The eighth instruction is equally bad. In glancing over the record, we failed to discover any evidence of the payment of $300. In so far as we have observed, the only intimation of such payment is contained in this instruction. But we do not think it necessary to make this feature of the instruction the subject of criticism. Our objection goes deeper. Whether the recital of the payment is warranted by the facts or not, the principle of the instruction is the same. It undertakes to charge the plaintiff with the value of the property returned, regardless of the amount which it brought at the sale. A general statement of the proposition would be that a fair and legal sale of property taken on execution would not conclude the parties to the Judgment. The judgment defendant might say that it was worth more than it brought, submit the question of its value to a jury, and, if they should find for him, compel the judgment plaintiff to account to him for the excess; that is, for something which was never received. This is a new doctrine to us. If a creditor, after he has reduced his claim to judgment, is compelled to take property he does not want, at a valuation fixed by a stranger, or if, after its sale by the proper officer in conformity with law, he is compelled to make good to the defendant such excess of value as a jury may find over the amount realized at the sale, his situation is certainly not a comfortable one. Upon that theory, it behooves every person to avoid being a creditor. But the law is not so. Property which has been released to the attachment defendant, where the attachment is sustained and judgment recovered against him, is redelivered to the sheriff for the purpose of being applied to the payment of the Judgment. Mills' Ann. Code, § 112. The law provides but one method of applying property levied upon to the payment of a judgment, and that is by its sale. And, if the sale is regular and fair, the amount of the highest responsible bid is, as between the parties, conclusive of the value of the property. There is no significance in the fact that in this case the plaintiff was the purchaser at the sheriff's sale. He was under no disability. He was upon the same footing with any other bidder, and, if the sale was in all respects fair, the result was precisely the same as if he had been a stranger. His bid was the highest, and, surely, these defendants cannot complain of an act by means of which the Judgment received a larger credit than it would have received otherwise; and the supposition of the seventh instruction, that they were, or could have been, misled or deceived by an act from which they knew they derived a benefit, is not to be entertained. The judgment should be reversed. Reversed.

(23 Utah, 56)

CAMP v. SIMON et al. (Supreme Court of Utah. Dec. 18, 1900.) CONTRACT-INTERPRETATION-FINDINGS—EV

IDENCE HEARSAY ADMISSION OF IMMATERIAL JOINT CONTRACT-INSOLVENCY OF SOME NO DEFENSE FOR OTHERS-ASSIGNEE OF FOREIGN EXECUTORS-RIGHT OF ACTION. 1. The term "ninety days from the expiration of said five years, expressed in a contract, and referring solely to a time limit within which the obligees therein could exercise a certain option therein given them, can be given no other effect than to fix the period of time within which, after the expiration of five years, the obligees should exercise the right and option specified; and this although the contract may by other terms provide a similar option upon default by the obligors.

2. When findings are justified by the evidence, and, in connection with facts admitted by the pleadings, support the judgment, the judgment must be aflirmed, unless some reversible error was committed in the course of the trial.

3. When certain facts are admitted by the pleadings, the admission of certain letters in evidence as additional proof of such facts is not reversible error, although such letters may be hearsay and incompetent.

4. Defendants all being principals in the contract sued on, the insolvency of some of them cannot affect the plaintiff's rights regarding the others, and no delay in the enforcement of the contract short of the statutory period of limitation can defeat his claim.

5. Where plaintiff sues as the assignee of the executors of a certain estate administered in New York, and it appears that under the law of New York the executors had authority to transfer the contract sued on, plaintiff had the right to sue and maintain the suit as such assignee, without regard to any administration of the estate in this state.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by E. M. Camp against Fred Simon and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Brown & Henderson, for appellants. S. McDowall and Richards & Varian, for respondent.

BASKIN, J. This action is based upon a written contract entered into on the 8th day of March, 1892, by and between T. H. Camp and George W. Wiggins, parties of the first part, and the defendants, who are the appellants in this action. The contract is set out in full in the complaint, and is as follows, to wit: "Whereas, the undersigned are interested in the Union Stock-Yards Company, of Salt Lake county, Utah, and are desirous of assisting the said company in securing money with which to continue improvements now in progress; and whereas, T. H. Camp and G. W. Wiggins, both of Watertown, Jefferson county, New York, have agreed to subscribe and pay for one hundred and fifty shares of the capital stock of said Union Stock-Yards Company: Now, therefore, in consideration of said subscription and payment by said Camp and Wiggins into the treasury of said company of the sum of fifteen thousand dollars, the par value of said stock, and in further consideration of the