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Pac. 747; City of Indianapolis v. Bieler, 138 costs incurred by the appellant, as defendant Ind. 30, 36 N. E. 857; Ritchie v. Richards in a habeas corpus proceeding, the facts con(Utah) 47 Pac. 670; Santo v. State, 63 Am. cerning which will be found in Foulke v. Dec. 487; Railroad Cos. v. Schutte, 103 U. S. People, 4 Colo. App. 519, 36 Pac. 610. By 118; Jones v. Robbins, 8 Gray, 329; Inger- stipulation, the only questions submitted to us man v. Noblesville Tp., 90 Ind. 393.

are: First, whether the habeas corpus case It follows that the erection, within the fire was a criminal case, within the meaning of limits of Eureka city, of buildings of combus- section 699 of Mills' Annotated Statutes, retible material, other than such as are pro-lating to costs in criminal cases; and, secvided for in the ordinance, was unlawful, ond, whether these costs are chargeable and that the appellant, having erected and against the county. It is unnecessary to demaintained a building of the class prohibited, cide whether the proceeding was civil or was guilty of an unlawful act, and amena- criminal in its nature. If it was a civil case, ble to the punishment inflicted. The fact of course the costs are not payable by the that the building in controversy appears to county. If it was a criminal case, as the have been moved from some other portion of appellant was defendant, and the requisite the fire limits to the place where it was erect- statutory steps were not taken to make his ed, in violation of the ordinances, does not expenses a charge against the county, the change the unlawful character of the act. county is not liable for them. Board of The ordinance did not interfere with the Com’rs v. Wilson, 3 Colo. App. 492, 34 Pac. building where it stood before its removal, 265; Boykin v. People (Colo. Sup.) 46 Pac. but prohibited new erections in the place of 635. Let the judgment be affirmed. Afsuch as were in existence, and its provisions firmed. extended to and protected all vacant places within the fire limits. The ordinance in

(9 Colo. App. 268) question is a measure for general security, and the protection of the inhabitants of the

CHAPMAN V. PEOPLE ex rel. BEARD.1 city, and was doubtless enacted to prevent (Court of Appeals of Colorado. Feb. 8, 1897.) the hazard of fire, incident to the continuing MANDAMUS TO Justice-OfficiaL RESIDENCE. and placing of combustible material in a dan

Mandamus will not lie at the relation of a gerous position. This is but a reasonable

citizen to compel a justice of the peace to reprecaution, looking to the general welfare of move his official residence to the precinct in the citizens; and we think it was the inten

which, under the law, he should have such of

fice. tion of the city council to regard as within the operation of the ordinance all buildings Error to district court, Arapahoe county. of the prohibited class placed where none ex- Mandamus by the people of the state of isted before, whether by erection or removal Colorado, on the relation of Harry A. Beard, from some other place. Such an interpreta- | against Charles A. Chapman. Judgment for tion seems to be warranted from the con- relator, and defendant appeals. Reversed. text, and to effect the salutary purposes for R. D. Rees and W. T. Rogers, for plaintiff which the enactment was designed. Wad- in error. Goudy & Twitchell, for defendant leigh v. Gilman, 12 Me. 403.

There appears in error. to be no reversible error in the record. The judgment is affirmed.

BISSELL, J. The ancient writ of mandaZANE, C. J., and MINER, J., concur.

mus has been used to accomplish many beneficent purposes, and its use is exemplified

in many and various ways, but in none that (9 Colo. App. 201)

I have observed has its original prerogative FOULKE V. BOARD OF COM’RS OF nature been sought to be applied to such ARAPAHOE COUNTY.

novel uses as in the present proceeding. (Court of Appeals of Colorado. Feb. 8, 1897.) This may be accurately described as COUNTIES - LIABILITY FOR EXPENSES IN Habeas brought to compel a justice of the peace to CORPCS.

live and have his office on a particular side Defendant in habeas corpus proceeding of an imaginary line. The petition on which cannot recover his expenses as against the

the relator rested his rights substantially recounty where the requisite statutory steps were not taken by him.

cited his citizenship and residence in what

was formerly known as “Justice Precinct Appeal from district court, Arapahoe coun

No. 6." His rights, if any, are derived from ty.

the fact of that citizenship and residence, Action by Joseph S. Foulke against the

and from the official position and public duboard of county commissioners of Arapahoe

ties of the plaintiff in error, which flowed county. Judgment for defendant, and plain

from his election as a justice in that particutiff appeals. Affirmed.

lar precinct. At an election antecedent to 0. A. Erdman, for appellant. Mr. Goudy the commencement of the proceedings. Chapand Mr. Twitchell, for appellee.

man was elected justice of the peace in jus

tice precinct No. 6. This justice precinct was THOMSON, J. The question in this case 13 whether Arapahoe county is liable for the 1 Rehearing denied March 22, 1897.


composed of various election precincts in the county of Arapahoe, and, at the time of Chapman's election, included within its boundaries some parts of Highlands, Valverde, Barnum, and Colfax. Afterwards, by proceedings under a permissive statute, and as the result of an election held thereunder, Highlands became a part of the city of Denver, which is entirely located in Arapahoe county. Subsequent to this annexation, the board of county commissioners, acting under the authority of two statutes,-one the act of 1883, found in the Session Laws of that year, at page 121, and under another act, passed in 1891, and found in the Session Laws of that year, at page 110,-altered the boundaries of the original justice precinct No. 6, consolidated it with precinct No. 2, and thereby reduced the number of precincts in the city of Denver, enlarged the boundaries of precinct No. 2, and limited, by the resolution which was adopted, the number of justices which should thereafter exercise the functions of that office within the newlycreated precinct. The board of supervisors undertook, by their resolution, to somewhat legislate respecting this change in particulars over which, according to the statutes, they had no legislative jurisdiction. The resolution provided that their action and resolution should not in any way extend the territorial limits of the present incumbents holding the office of justice, but that their territorial jurisdiction should remain the same as it had theretofore been during their term of office. This part of the resolution may be rejected as of no avail in the present discussion, because the jurisdiction or authority of the justice is in no measure dependent on the action of the board of supervisors when he has once been elected to otlice, but is entirely controlled by the constitution of the state and the statutes which have been passed thereunder. After the passage of this resolution, Chapman moved his office from the north side of the Platte (where he had theretofore been, and probably was compellable to be, under the statutes) to the south side of the river, and into the more populous part of Denver. He opened up an office on Larimer street, and proceeded to do business. Thereupon the relator filed his petition, whereby he sought simply a writ commanding Chapman, at such time as the court might specify, to remove his office from Larimer street to the territorial limits of the former justice precinct No. 6, and there maintain it. This was the only relief sought, and the petition has been substantially stated. It will be observed the relator made no statement in his application that he had commenced a suit, or that he was a present or prospective litigant before Chapman, nor that the justice had refused in any wise to perform any official functions with which he was invested by virtue of his office.

The relator's only right, if any, was derivable from the fact that he was a citizen and a tax

payer and lived within the former precinct No. 6, and inferentially, of course, might, as a citizen, desire to bring some suit before that magistrate.

We are very clearly of the opinion that mandamus will not lie to compel the justice to do the thing prayed for by the petitioner. The right of a citizen to file a petition for this writ to compel the performance of a duty on the part of a public officer in which the public generally are interested, and the petitioner only as a part of the general public, is well recognized and settled in many cases. The duty, however, the performance of which is sought to be enforced, must be a duty which the officer is obligated to perform in the discharge of the functions of his office. The writ can never be invoked for the purposes of determining the powers and duties of officers, unless in some way the rights or interests of the relator are involved or have been jeopardized. It can never be invoked for the purpose of compelling an officer to accept office, nor, so far as we know, to prevent him doing those things which amount to a vacation of his office. If it happens that the justice be without jurisdiction, by reason of his removal to Larimer street, to hear and try any case which may be brought before him, the parties in interest may, by proper proceedings, undoubtedly restrain him from exercising his judicial functions. So, likewise, if, being a justice, and occupying the office, he should refuse, on the application of a litigant, to do those things which the litigant had a right to call on him to perform, that litigant might, by this or some other writ, enforce the performance of his official duties. On what theory a citizen can insist that a justice shall have his office or residence in a particular place, or on one side of an imaginary line, we are wholly unable to conceive. We know of no writ which can be invoked to compel an American citizen to live or have his office at other than the place of his choice. There may be enforceable penalties in case of refusal, but it takes czar or king to fix a residence for a subject. If, according to the terms of the statute, the official residence and office of the justice must be as contended by the relator, then, possibly, his attempted performance of his duties elsewhere, and the refusal to maintain his office in the proper place, might possibly result in the vacation of his office. If this be so, the question could be determined by proper proceedings, or, possibly, the question could be raised by some litigant who had been injuriously affected by the acts of the justice in some one of the many ways provided to raise and litigate such matters. High, Extr. Rem. (3d Ed.) pt. 1, c. 2.

The fundamental trouble with the proceeding, it seems to us, arises from the miscon. ception of the history and status of the of. fice of justice of the peace and the legislation respecting it. Under the constitution, the justice is undoubtedly a constitutional officer. Article 14, § 11; article 6, § 29. By these provisions, a justice, when once elected, holds his office, not at the will of the people or of any person, but, having been elected, his term of office can neither be abridged nor lengthened unless, by reason of some violation of duty, he subjects himself to other penalties prescribed by the law. At the outset, then, Chapman having been duly elected as justice, he was entitled to hold his office during the term for which he was elected; and the board of county commissioners or legislature could neither by abridging his precinct, enlarging or restricting its borindaries, nor altering the limits of townships, legislate him out of office. That office he holds for the period for which he was elected. The only question actually involved is, therefore, one we have no right to determine, under the views which we have expressed. For these reasons, the judgment overruling the demurrer, and ordering the peremptory writ, will be reversed, and the matter returned for a dismissal of the petition. Reversed.

(9 Colo. App. 185)

CRESWELL v. HERR.1 (Court of Appeals of Colorado. Feb. 8, 1897.) APPEAL Bond - JOINT JUDGMENT SEVERAL AP

PEAL-LIABILITY OF SURETY. Where one of the defendants executes an individual appeal bond, and attempts to prosecute an appeal alone, the dismissal thereof, on the ground that the judgment and the order granting the appeal were joint, fixes the liability of his surety.

Appeal from district court, Arapahoe county.

Action by John Creswell against Willis B. Herr to recover on an appeal bond. From a judgment of nonsuit, plaintiff appeals. Reversed.

C. J. Blakeney, for appellant. Willis B. Herr (Chas. G. Clement, of counsel), pro se.

the dismissal of the appeal, in May, 1893; the filing of a transcript of the judgment; the suing out of an execution; and its partial satisfaction. The amount unpaid was stated, a demand for payment, and a prayer for judgment. The defendants demurred to the complaint, on the general theory that, according to its allegations, the judgment appealed from appeared to be joint, while the bond was given to support a several appeal prosecuted by Phelps. The demurrer was overruled, because the bond recited a several appeal by Phelps, and, barring any other proof, would permit a recovery. The defendants answered, admitted the execution of the instrument, but denied the taking of the appeal or the approval of the bond, and controverted the dismissal. The defendants also denied the breach alleged, and prayed that it be dismissed. When the case came on for trial, and the plaintiff undertook to prove his breach, and produced the clerk of the county court, with the execution and the return, together with other proofs showing the nonpayment of a part of the judgment, the examination of Dunlevy, who was clerk of the county court, in a measure, although not completely, exhibited the fact that the bond was given by Phelps to prosecute an appeal from a judgment which had been entered against himself and Pennock in the county court. Of course, this fact was well known to the attorneys, but it had been theretofore measurably excluded from the record. Thereupon the defendants alleged surprise, and asked a continuance, which was granted, and they filed another answer, wherein they attempted to set up the suit against Phelps & Pennock; the character of the judgment as a joint one, as contradistinguished from a several judgment against each; and a joint appeal prayed by both, rather than a several appeal prayed by each. The defendants conceded that Phelps, as principal, and the defendant, as surety, gave the bond for the purpose of taking an appeal to the district court, and an attempt to prosecute it. The defendants also averred that the appeal was dismissed in the district court, because of the joint prayer and the giving of an individual undertaking and the attempt to prosecute an individual appeal by Phelps. The plaintiff moved for judgment on the pleadings, which was denied, and the facts which have been before stated appeared in evidence. Of course, it was useless to attempt to conceal the situation, and the plaintiff's attorney admitted the general facts as they are outlined here, but insisted they were no defense to the bond.

On this proposition of law we quite agree with the appellant. It has, of course, been settled in this state that an appeal cannot be taken by one of several defendants, and successfully prosecuted, so long as the order granting the appeal grants it to the defendants jointly, and not severally. In case of

BISSELL, J. Judgment of nonsuit was entered against Creswell in the district court, and therefrom he prosecutes this appeal. He brought his action against Herr and Thomas, and alleged the recovery of a judgment in his favor against Phelps & Pennock, and the prosecution of an appeal by those parties to the district court from the county court, in which it was rendered in July, 1892. He set up in hæc verba the bond which those parties gave on this appeal. It was in the form prescribed by the statute, recited the recovery of a judgment against Phelps for a sum named, and an appeal by Phelps to the district court, and as a condition that he should prosecute the appeal to effect, and pay whatever costs or judgment might be awarded against him on trial or dismissal. The plaintiff then set up

1 Rehearing denied March 22, 1897.

The par.

a joint appeal, it must be so prosecuted, failed to secure the right of review, the bond or the appeal must ultimately be dismissed. was not obligatory. These reasons do not The rule has been established in reference exist under our statute, and we think those to appeals to the supreme court from the authorities totally inapplicable. The court judgments of inferior courts, and we can erred in entering a judgment as of nonsuit, conceive of no reason why the same rule and the judgment will be reversed and reshould not be applicable to appeals from the manded. Reversed. county court. Mining Co. v. Faulkner, 14 Colo. 436, 24 Pac. 548. It seems to be thoroughly settled, both in this and other states,

(9 Colo. App. 181) that the liability of the sureties is as fully

CORY V. NEWTON.1 fixed by a dismissal of the appeal as by its

(Court of Appeals of Colorado. Feb. 8, 1897.) prosecution to an adverse judgment. Thal

CONTRACTS –CONSIDERATION. heimer v. Crow, 13 Colo. 398, 22 Pac. 779; Mueller v. Kelly (Colo. App.) 47 Pac. 72.

Defendant employed plaintiff to circulate

a petition for the pa ving of a street, plaintiff to The only remaining question is whether, be paid when defendant received his commisunder circumstances like these, it is open to sion, on condition that plaintiff obtained the the surety to plead the joint character of the signatures of the owners of a majority of the

frontage, and that the contract was awarded judgment and the joint character of the or

to defendant's company. After plaintiff proder allowing the appeal, and to insist that cured part of the signatures, defendant directed because the appeal was joint, and he gave him to proceed no further, and promised to pay

him the sum originally agreed on. the bond as upon an individual appeal, which

ing contract was afterwards awarded to deoccasioned the ultimate dismissal of the fendant's company on another petition, and he proceedings, he may assert these facts to received his commission. Held, that whether avoid his liability. We are of opinion this the circulation of the petition by plaintiff was cannot be done. The recitals in the bond

stopped causelessly, or because it contained a

provision which would prevent its acceptance bind the surety, and he may not be heard if completed, as claimet by defendant, the to say the facts are not in accordance with promise to pay was supported by sufficient con

sideration. the bond which he has executed, and that the judgment is joint, rather than several. Appeal from district court, Arapahoe counHaving obligated himself to pay the judg. | ty. ment in case the appeal is not successfully Action by Marshall C. Newton against Robprosecuted, he must answer under his con- ert J. Cory on a contract for services. From tract when the appeal is ultimately dismiss- a judgment in favor of plaintiff, defendant aped. This has been adjudged in many cases, peals. Affirmed. where the questions have been presented in

John S. Mosby, Jr., for appellant. Talbot divers forms. It has been applied to cases

& Denison, for appellee. where appeals were prosecuted from unappealable orders and judgments, where bunds

THOMSON, J. The appellee brought this have been given after time, where there has suit to recover for his services in circulating been a failure to file a transcript in accord

a petition for the paving of Nineteenth street, ance with the statute or the orders of the

in the city of Denver, with asphalt. He alcourt, and, in fact, in nearly all conceivable leged that he was employed by the defendant classes of cases wherein the appellant was

to circulate the petition, and that the defendunsuccessful in maintaining his right to fur- ant promised him that in case be procured ther prosecute the suit. All the cases are the signatures of the owners of a majority of based on the principle of estoppel, and the

the frontage on that street to the petition, and surety has been refused the right in all

the contract for laying the pavement was of them to be heard to say he was not bound awarded to the Colorado Paving Company, in by his contract because of the failure to ob

whose employ the defendant was, he (the detain that for which the bond was given. fendant) would pay to the plaintiff 242 cents Meserve v. Clark, 115 Ill. 580, 4 N. E. 770;

per square yard for each yard of asphalt laid Adams v. Thompson, 18 Neb, 541, 26 N. W.

by the company, when he (the defendant) 316; Pratt y. Gilbert, 8 Utah, 54, 29 Pac.

should receive his commission thereon. The 965; Gudtner v. Kilpatrick, 14 Neb. 347, 15

plaintiff alleged, further, that he had procured N. W. 708; Skidmore v. Hull, 33 Mo. App. a large number of the required signatures, 41; Mueller v. Kelly, supra. There are some and was ready, able, and willing to procure cases which seem to hold a contrary doc

the residue, when the defendant directed him trine, but they are not inconsistent with

to proceed no further in the matter, and promthese authorities. The opinions were ren

ised to pay him the amount originally agreed dered in states where the statutes were to

upon, notwithstanding the requisite signatally different from ours, and wherein the

tures were not procured; that thereupon the bond was void in case there was a failure to

plaintiff, at the request of the defendant, dedo what the statute provided. Many rea

livered him the petition with the signatures sons can be urged why, in such cases, the

which had been already procured, and did no sureties should not be estopped to assert

more work under his employment; that the the invalidity of their bond, and insist on the defense that, because the appellant had 1 Rehearing denied March 22, 1897.

paving contract was afterwards awarded to that liability would constitute an all-sufficient the defendant's company; and that the de- consideration for the promise. If, however, fendant received his commission. The plain- the work was stopped because it was useless tiff fixed the value of his services at $337. to continue it on account of the character of The answer admitted the employment and the petition, then we are confronted with this agreement as to compensation, but alleged state of facts: that the defendant provided that the payment to the plaintiff was contin- the plaintiff with a petition which could acgent upon the procuring of the signatures, complish nothing, and bound bim to condiand the award of the contract to the company tions which, through the defendant's own under the petition which the defendant under- fault, were impossible of fulfillment. The detook to circulate. It denied that the defend- fendant was responsible for the form and conant ever directed the plaintiff to procure no tents of the petition. The vice which inhered more signatures, denied the alleged subse- in it was due to him. The plaintiff accepted quent promise to pay notwithstanding the the employment, and entered upon it in good signatures were not procured, and averred faith, but, while engaged in it, was directed that the contract was awarded to the defend- to desist, because his work would be abortive, ant's company upon a similar petition pre- on account of something the defendant himsented by the Blake Asphalt Company, and self, whether wittingly or not, had done. not upon the petition which plaintiff bad, The These facts constituted a perfect consideratestimony of the plaintiff' accorded substan- tion for the promise. The defendant cannot tially with the statements of his complaint. In be heard to say that because the petition the matters wherein their pleadings disagree, which he fathered would have been ineffectual the testimony of the plaintiff and that of the to obtain the contract, and because, for that defendant conflicted, but the facts were set- reason, the contract was not procured under tled in the plaintiff's favor by the verdict of it, therefore the plaintiff failed in the fulfillthe jury. The petition the plaintiff was cir- ment of his agreement, and the subsequent culating designated the material to be used promise to him was without consideration. in paving as "Trinidad Lake Asphalt," and it The defendant's company obtained the conappears that all of that particular material tract, and the defendant received his comwas controlled by the Colorado Paving Commission, in pursuance of another petition, pany. The defendant claimed that he had re- which was presented and accepted. The received information that the petition he had sult was therefore the same as if the defendfurnished the plaintiff would not be considered ant's petition had been successful; and the by the board of public works, because it speci-conditions upon wbich the plaintiff accepted fied material which was in the exclusive con- the employment were literally fulfilled, except trol of the Colorado Paving Company, and its in so far as the defendant himself made them acceptance would prevent competition among | impossible of fulfillment. No errors were bidders for the work, and for this reason he committed in receiving or excluding evidence; concluded it would be useless to proceed any the instructions submitted the questions infurther with that petition, and so notified the volved fairly; and the judgment must be afplaintiff.

firmed. Affirmed. It is argued that it was not the defendant who prevented the plaintiff from completing his work, but that he ceased work on account

(9 Colo. App. 161) of the fact that it became apparent that the

BOARD OF COM’RS OF ARAPAHOD work would result in nothing, and that, there

COUNTY v. CLAPP.1 fore, the promise of payment made after ces

(Court of Appeals of Colorado. Feb. 8, 1897.) sation of the work from that cause was with


COUNTY. out consideration. It is also contended that,

1. Sess. Laws 1891, p. 307, § 20, providing by the terms of the agreement, the plaintiff

that justices of the peace and certain other ofwas to receive nothing unless he procured the ficers, whose salaries are paid from their fees, requisite number of signatures to the petition, shall report to the county commissioners all and unless the contract was awarded to the

necessary expenses of clerk hire, does not au

thorize a justice to appoint a clerk, or, if such defendant's company under that petition. The

authority can be implied, does not make the plaintiff did not procure sufficient signatures, county liable for his compensation, unless the and the company di not obtain the contract fee fund paid into the treasury by the justice

is sufficient for that purpose. under that petition; hence it is said the plain

2. A resolution of the county commissioners, tiff is entitled to nothing. The evidence that adopted prior to plaintiff's employment as clerk the board of public works would not have re- of a justice of the peace, and fixing his comceived that petition consisted of hearsay, and

pensation, but without specifying any definite proves nothing; but whether it would have

time, creates no liability against the county, in

the absence of any evidence that plaintiff was considered the petition or not is unii ortant employed thereunder for a specific period. If the defendant employed the plaintiff to do

Appeal from district court, Arapahoe councertain work, and afterwards causelessly or

ty. dered it stopped, while the plaintiff was en

Action by John T. Clapp against the board gaged in its performance, and before its com

of county commissioners of the county of pletion, the defendant's liability would be the same as if the work had been finished, and 1 Rehearing denied March 22, 1897.

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