Held, that salaries of officers fixed by law do not rest upon the authorization of the board of supervisors, or any officer, nor are they subject to their control, and consequently do not fall within the provisions of the act.

2. SAME.

Act Cal. February 27, 1878, provided that no county officer shall pay in any month demands against the treasury exceeding in amount one-twelfth of the amount allowed to be expended in the year. The board of supervisors of San Francisco county limited the expense of the county clerk's office for deputies and copyists to $72,000 per year. The auditor of the county refused to audit the bills of the county clerk's office for a certain month, because they aggregated $8,000. These bills included salaries fixed by law. On application for mandamus to compel the audit of the claims, the auditor based his answer upon Const. Cal. art. 11, 18, which provides that no county shall incur any indebtedness exceeding in any one year the income and revenue provided for it for such year, without the assent of two-thirds of the electors. Held, that the amount fixed by the board of supervisors is not the limit of the revenue of the county clerk's office for salaries fixed by law, they being made payable out of the general fund of the county, and, in the absence of any showing that the general fund would be exhausted thereby, payment cannot be excused by the prohibition in the constitution.

in bank. Application for a writ of mandamus.

This was an application by L. W. Welch for a writ of mandamus directed to Fleet W. Strother, auditor of San Francisco county, commanding him to audit a claim for salary presented by the petitioner. The respondent moved to quash the writ, which motion was denied, and the respondent given 10 days to answer. The application now comes on to be heard on the merits.

McAllister & Bergin, for petitioner. George Flournoy, Jr., City and Co. Atty., (Samuel M. Wilson, of counsel,) for respondent.

MCFARLAND, J. During the month of July, 1887, the petitioner was a regularly appointed and acting deputy county clerk of the city and county of San Francisco, being register clerk of department 4 of the superior court of Jaid city and county His salary was fixed by law at $175 per month. In August, 1887, he presented his demand for his salary for the preceding month of July to the respondent, who was and is the auditor of said city and county, and he refused to audit the same. Petitioner then commenced this proceeding in mandamus in this court to compel the respondent to audit said demand.

The refusal of the respondent seems to have been based mainly upon these grounds: The board of supervisors passed an order fixing the estimate of expenses for "county clerk's deputies' and copyists' salaries" for the year at $72,000, and providing that such expense should be limited to that amount. And by an act of the legislature, relating to said city and county, passed February 27, 1878,-usually called the "One-Twelfth Act, "-it was enacted that neither the board of supervisors, nor any other officer having the power "to authorize or contract liabilities against the treasury," shall authorize, contract for, pay, etc., in any one month, any demand or demands against the treasury, or any of the funds thereof, which shall exceed one twelfth part of the amount allowed by laws existing at the time of such contract authorized, etc., to be expended within the fiscal year of which said month is a part. Worley's Consolidation Act, 219.

The said demand upon respondent was made on behalf of petitioner by the county clerk of said city and county, who at the same time presented demands of other deputy clerks and copyists in said month of July, which amounted in the aggregate to over $8,000; and respondent refused to audit any of them, because they were in excess of one-twelfth of the $72,000 which the board had declared to be the limit of such expenses for the year, as aforesaid. But this ground of refusal was expressly held by this court to be untenable in Cashin v. Dunn, 58 Cal. 582. That case was mandamus against the auditor, on application of a deputy street superintendent, to compel the former to audit the monthly salary of the latter. The defense set up was that

to audit the demand would be to allow in one month more than one-twelfth of the whole amount appropriated for the current fiscal year by the board of supervisors for the payment of salaries of deputies of the office of superintendent of streets. But the court held that the "One-Twelfth Act," (so called) "has no application to the auditing and payment of demands for salaries of officers whose appointment is provided for, and salaries fixed, by law." And we see no good reason for overruling that case, as we are asked to do by counsel for respondent. Salaries are not liabilities against the treasury which rest upon any authorization or contract by the board of supervisors, or any other officer. They are fixed by law, and are not subject to the control of such officers. They are payable out of the general fund, and are not limited to any particular part of that fund which the board may choose to set apart for their payment.

Respondent contends that the writ should not issue on account of that section of the state constitution which provides that "no county * * * shall incur any indebtedness in any manner, or for any purpose, exceeding in any year the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors," etc. But we do not see how this point can arise on the facts of this case. Leaving out of view the meaning of the words "indebtedness" and "liability," as used in the section of the constitution just quoted, and assuming, for the sake of the argument, that they include the salary of a public officer fixed by law, it nowhere appears, as we understand it, that there would be any excess of indebtedness over the revenue provided for the year. The averment of the answer is merely that, if all the demands presented by the county clerk for the month of July had been audited, they would have exceeded the one-twelfth of the $72,000 of the general fund to which the board had undertaken to limit the payment of these demands. Assuming, therefore, that the $72,000 was the "income and revenue provided" for the payment of county clerks' salaries, respondent contends that if over $6,000 had been audited for July, and a like amount should be audited for the other months, the excess of the aggregate over $72,000 would be an indebtedness unprovided for. But the $72,000 is not the revenue provided for the payment of salaries; they are paid out of the general fund. Moreover they are preferred claims; and there is no pretense of an averment that the payment of preferred claims would exhaust the revenue provided for the general fund. And, again, it is provided by law that, in case of a deficiency of funds for the payment of such demands, they shall be registered, and paid when there shall be such funds in the order of their registry. Const. arts. 95, 96. The demand of petitioner, therefore, should have been audited by respondent; and, as held in Cashin v. Dunn, supra, the writ of mandate is the proper remedy.

Let the writ issue as prayed for.

We concur:

SEARLS, C. J.; SHARPSTEIN, J.; TEMPLE, J.; MCKINSTRY, J.;

PATERSON, J.; THORNTON, J.

(10 Colo. 517)

CRAIG . THOMPSON et al.

(Supreme Court of Colorado. December 7, 1887.)

1. MINES AND MINING-LOCATION OF CLAIM-AMENDED CERTIFICATE. Where one had made a location of a mining claim, valid in other respects, but had failed to file for record a valid certificate, an amended certificate, made before defendant had acquired intervening rights, would, as to him, relate back to and preserve the claim as originally located and staked.

2. SAME-REQUISITES OF CERTIFICATE.

Under Rev. St. U. S. ? 2334, providing that the record of a mining claim shall contain a description of the claim located by reference to some natural object or

permanent monument, a certificate giving the courses of two mountain peaks, in degrees and minutes, from the discovery shaft, was prima facie sufficient, and properly admitted in evidence.

3. SAME-ADVERSE CLAIMS-TRIAL-INSTRUCTIONS.

In a suit to establish an adverse mining location, the court, of its own motion, instructed the jury concerning the statutory requirements relating to depths of discovery shafts or open cuts, and length of adits. Held, that as the jury were prop erly instructed, and their verdict was supported by the evidence, the rejection of instructions offered on the same points was not error.

4. SAME RIGHTS OF NON-CLAIMANTS-INSTRUCTIONS.

Where one had long since abandoned any rights he may have had in a mining claim, and was not a party asserting any rights in the action, nor was any one authorized to represent him, instructions asked by defendant as to his rights were properly rejected.

Commissioners' decision. Appeal from district court, Chaffee county. This was an action brought by George M. Thompson, George Parry, and Daniel C. Sindlinger in support of an adverse claim to the ground in controversy, under the naine of the "Bristol Lode," against J. R. Craig, who claimed the same under the name of the "Mammoth Lode." From the evidence, it appears that Parry discovered the Bristol lode on the fourth day of August, 1880, then put up at the point of discovery a stake marked: “Bristol Mine. I locate this claim August 4, 1880, and claim 1,300 feet north, and 200 feet south. G. W. PARRY & COMPANY." On September 4, 1880, defendant, Craig, made his discovery of the Mammoth lode, and put up a stake marked: "The Mammoth lode, discovered September 4, 1880. I, the undersigned, claim, by right of discovery, 550 feet south, and 950 feet north." On the sixth day of September, 1880, Craig met Parry somewhere, (not on the premises,) and, while together, Parry remarked, "I must go up and do my work on the Bristol mine up there;" when Craig said to him, "I have got a stake pretty close to your ground, and I would like to get enough ground to work it," and spoke of buying some ground from Parry. Parry deferred until they would go up and see; so they started up the mountain to see. On the way met Thompson and Sindlinger. Craig requested them to go along to see Parry's stake, so all went together. When approaching the claims, Craig's stake was seen by Parry, whereupon Parry charged Craig with being on his claim. Craig disputed, and said Parry did not have a legal stake. Parry charged him with trying to jump his claim. From thenceforward the parties remained at difference concerning the claims. About the ninth of September, 1880, Thompson and Sindlingler completed with Parry the purchase of an interest in the Bristol, and appellees then proceeded to do the discovery work upon the Bristol, so that, towards the end of the month, they had done several days' work thereon, and what they considered and regarded sufficient discovery work. It appears from the evidence that at the time of discovery, and putting up of the stake on the Bristol, Parry contemplated investing an interest in the claim in a man by the name of Runkle, and says that is why he put the word "company" after his name on the stake; but that as Runkle afterwards sent for his tools, saying he could not do anything more, he was dropped out. About September 9th or 10th, Sindlinger saw Craig going up towards the claims with stakes, whereupon he notified Craig that he had an interest in the Bristol, and that Craig should not go onto it. Craig disputed the legality of Parry's claim. After finishing the discovery work upon the Bristol in September, 1880, the appellees surveyed the claim with fish-line and compass, following the vein north and south, and staked the claim according to law, made a location certificate, and had it recorded November 4, 1880; did the assessment work upon the Bristol for the year 1881, and, with surveyor, surveyed the Bristol, December 20, 1881, having the original location certificate as a guide to the same; made an amended certificate, and recorded it January 12, 1882. The amended certificate described the same ground that was described by the orig

inal certificate, but referred to natural objects to identify the claim, in which respect the original certificate was defective. Both these certificates were admitted in evidence, but afterwards the court excluded the original, for the reason of the defect aforesaid. The original certificate is as follows:

"State of Colorado, County of Chaffee-ss.: Know all men by these presents that G. W. Parry, D. C. Sindlinger, and G. M. Thompson, the undersigned, have this fourth day of August, 1880, located and claimed, and by these presents do locate and claim, by right of discovery and location, in compliance with the mining acts of congress, approved May 10, 1872, and by subsequent acts, and with local customs and laws and regulations, 1,500 linear feet and horizontal measurement on the Bristol lode, vein, ledge, or deposit, along the vein thereof, with all its dips, angles, and variations, as allowed by law, together with 150 feet on the west side, and 150 feet on the east side, of the middle of said vein at the surface, so far as can be determined from present developments, and all veins, lodes, ledges, or deposits, and surface ground within the line of said claim, 1,300 feet running north from center of discovery shaft, and 200 feet running south from center of discovery shaft; said discovery shaft being situate upon said lode, vein, ledge, or deposit, and within the lines of said claim, in La Plata mining district, county of Chaffee, state of Colorado, described by metes and bounds as follows, to-wit: Beginning at corner No. 1, running north 1,500 feet to Cor. No. 2; from thence 300 feet west to Cor. No. 3; thence 1,500 feet south to corner No. 4; and from thence 300 feet to Cor. No. 1. The above-named claim is located on Mount Hope; the said Mount Hope being situated on Clear creek, in La Plata mining district, county of Chaffee, and state of Colorado. Said claim is situated above timber line, and the stakes of corners Nos. 1 and 4 are located in what is known as 'Hewitt's Basin.' Said lode was discovered on the fourth day of August, A. D. 1880. [Signed]

G. W. PARRY. "D. C. SINDLINGER. "GEO. M. THOMPSON.

"Recorded November 4, 1880, 6:30 o'clock P. M." Following is a copy of the amended location certificate of the Bristol lode: "State of Colorado, County of Chaffee-ss.: Know all men by these presents that we, G. W. Parry, D. C. Sindlinger, and G. M. Thompson, the undersigned, have this twentieth day of December, 1881, relocated and claimed, and by these presents do relocate and claim, by right of discovery and location, in compliance with the mining acts of congress, approved May 10, 1872, and by subsequent acts, and with local customs, laws, and regulations, 1,500 linear feet and horizontal measurement on the Bristol lode, vein, ledge, or deposit, along the vein thereof, with all its dips and angles and variations, as allowed by law, together with 150 feet on the east side, and 150 feet on the west side, of the middle of said vein at the surface, so far as can be determined from present development, and all veins, lodes, ledges, or deposits, and surface grounds within the lines of said claim, 1,300 feet running north from center of discovery shaft, and 200 feet running south from center of discovery shaft; said discovery shaft being situate upon said lode, vein, ledge, or deposit, and within the lines of said claim, in La Plata mining district, county of Chaffee, and state of Colorado, described by metes and bounds as follows, to-wit: Beginning at corner No. 1; thence north, 14° 26' east, 750 feet, to center side stake, and 1,500 feet to corner No. 2; thence north, 75° 34' west, 300 feet, to corner No. 3; thence south, 14° 21' west, 750 feet, to side center stake, and 1,500 feet to corner No. 4; thence south, 75° 34' east, 300 feet, to corner No. 1, the place of beginning, as originally staked on the surface variations, 14° 28′ east, being the same lode originally located on the eighteenth day of October, A. D. 1880, in Book No. 13, page 381, in the office of the recorder of said Chaffee county. From the discovery shaft of said lode, an unknown mountain peak on the east side of Mission gulch, on Clear creek, bears south, 49° 34' east, and

mountain peak at head of Lake Fork of Clear creek bears south, 12o 14' east. This further certificate of location being made without waiver of any previous rights, but to correct any error in prior location or record, and to secure all the benefits of section 1823 of the General Laws of Colorado.

"Date of relocation, December 20, 1881. "Date of certificate, January 9, 1882.

Craig worked his claim, staked it, surveyed and located it; his original location certificate being defective, and excluded as evidence. In the month of September, 1881, he made an amended certificate, including therein that portion of the Bristol in controversy here, being the same portion as he had before included within his stakes, and in his original location certificate, and recorded such amended certificate two days thereafter, viz., September 19, 1881, and had $500 worth of work done on the Mammoth when he made application for his patent. This amended certificate of the Mammoth was admitted in evidence.

The court instructed the jury, on its own motion, as follows: "(1) That to perfect a valid location of a mining claim, under the law, the locator must first discover a vein, ledge, or deposit of rock in place, carrying gold, silver, lead, or other valuable deposit. He must post, at the point of discovery, on the surface, a plain sign or notice, containing the name of the lode, the name of the locator, and date of discovery. He must also, within sixty days from the date of discovery, sink a discovery shaft to the depth of at least ten feet from the lowest part of the rim thereof at the surface, or deeper, if necessary to discover the vein thereof. Within three months from the date of discovery, and before the filing of the location certificate hereinafter referred to, he must erect six substantial posts, hewed on the sides in towards the claim, towit, one at each corner, and one at the center of each side line thereof, and, within three months of the date of discovery, he must further file with the clerk and recorder of the county in which the claim is located a location certificate, containing the name of the lode, the name of the locator, the date of location, the number of feet claimed on each side of the center of the discovery shaft, the general course of the lode, as near as may be, and such a general description as shall identify the claim with reasonable certainty: provided, that if such location certificate is not filed within three months from the date of discovery, but is so filed afterwards, and before third parties have acquired rights in the premises, it is sufficient compliance with this requirement of the law. An open cut or tunnel, which shall cut the lode at the depth of ten feet perpendicularly below the surface, or an adit of at least ten (10) feet in along the vein from the point at which the same is discovered, shall hold the lode the same as though a discovery shaft had been sunk as aforesaid. (2) If you find from the evidence that plaintiffs, during 1880, made a location of the premises in dispute by a full compliance with the law, as stated in the foregoing instruction, and that, during the year 1881, they placed thereon $100 worth of work or improvements, or both, then you will find a verdict for the plaintiffs: provided, you further find from the evidence that the date of their discovery preceded the discovery of defendant. (3) But, on the contrary, if you find from the evidence that plaintiffs failed to make a valid location of the premises in dispute, and that defendant has made the same by a full compliance with the law, as aforesaid, and, during the year 1881, defendant has performed the annual assessment work by the expenditure thereon of $100, as aforesaid, then you will find for defendant. (4) If you find from the evidence that plaintiffs were prevented from performing the annual assessment work of 1881 by defendant, his agents or employes, by force or violence, or by threats or intimidation, then, in law, plaintiffs are in the same position as though the