Pac. 747; City of Indianapolis v. Bieler, 138 Ind. 30, 36 N. E. 857; Ritchie v. Richards (Utah) 47 Pac. 670; Santo v. State, 63 Am. Dec. 487; Railroad Cos. v. Schutte, 103 U. S. 118; Jones v. Robbins, 8 Gray, 329; Ingerman v. Noblesville Tp., 90 Ind. 393.

It follows that the erection, within the fire limits of Eureka city, of buildings of combustible material, other than such as are provided for in the ordinance, was unlawful, and that the appellant, having erected and maintained a building of the class prohibited, was guilty of an unlawful act, and amenable to the punishment inflicted. The fact that the building in controversy appears to have been moved from some other portion of the fire limits to the place where it was erected, in violation of the ordinances, does not change the unlawful character of the act. The ordinance did not interfere with the building where it stood before its removal, but prohibited new erections in the place of such as were in existence, and its provisions extended to and protected all vacant places within the fire limits. The ordinance in question is a measure for general security, and the protection of the inhabitants of the city, and was doubtless enacted to prevent the hazard of fire, incident to the continuing and placing of combustible material in a dangerous position. This is but a reasonable precaution, looking to the general welfare of the citizens; and we think it was the intention of the city council to regard as within the operation of the ordinance all buildings of the prohibited class placed where none existed before, whether by erection or removal from some other place. Such an interpretation seems to be warranted from the context, and to effect the salutary purposes for which the enactment was designed. Wadleigh v. Gilman, 12 Me. 403. There appears to be no reversible error in the record. judgment is affirmed.

ZANE, C. J., and MINER, J., concur.

(9 Colo. App. 201)

The

FOULKE v. BOARD OF COM'RS OF ARAPAHOE COUNTY. (Court of Appeals of Colorado. Feb. 8, 1897.) COUNTIES - LIABILITY FOR EXPENSES IN HABEAS CORPUS.

Defendant in habeas corpus proceeding cannot recover his expenses as against the county where the requisite statutory steps were not taken by him.

Appeal from district court, Arapahoe county.

Action by Joseph S. Foulke against the board of county commissioners of Arapahoe county. Judgment for defendant, and plaintiff appeals. Affirmed.

O. A. Erdman, for appellant. Mr. Goudy and Mr. Twitchell, for appellee.

THOMSON, J. The question in this case is whether Arapahoe county is liable for the

costs incurred by the appellant, as defendant in a habeas corpus proceeding, the facts concerning which will be found in Foulke v. People, 4 Colo. App. 519, 36 Pac. 640. By stipulation, the only questions submitted to us are: First, whether the habeas corpus case was a criminal case, within the meaning of section 699 of Mills' Annotated Statutes, relating to costs in criminal cases; and, second, whether these costs are chargeable against the county. It is unnecessary to decide whether the proceeding was civil or criminal in its nature. If it was a civil case, of course the costs are not payable by the county. If it was a criminal case, as the appellant was defendant, and the requisite statutory steps were not taken to make his expenses a charge against the county, the county is not liable for them. Board of Com'rs v. Wilson, 3 Colo. App. 492, 34 Pac. 265; Boykin v. People (Colo. Sup.) 46 Pac. 635. Let the judgment be affirmed. Affirmed.

(9 Colo. App. 268) CHAPMAN v. PEOPLE ex rel. BEARD.1 (Court of Appeals of Colorado. Feb. 8, 1897.) MANDAMUS TO JUSTICE-OFFICIAL RESIDENCE. Mandamus will not lie at the relation of a citizen to compel a justice of the peace to remove his official residence to the precinct in which, under the law, he should have such office.

Error to district court, Arapahoe county.

Mandamus by the people of the state of Colorado, on the relation of Harry A. Beard, against Charles A. Chapman. Judgment for relator, and defendant appeals. Reversed.

R. D. Rees and W. T. Rogers, for plaintiff in error. Goudy & Twitchell, for defendant

in error.

BISSELL, J. The ancient writ of mandamus has been used to accomplish many beneficent purposes, and its use is exemplified in many and various ways, but in none that I have observed has its original prerogative nature been sought to be applied to such novel uses as in the present proceeding. This may be accurately described as one brought to compel a justice of the peace to live and have his office on a particular side of an imaginary line. The petition on which the relator rested his rights substantially recited his citizenship and residence in what was formerly known as "Justice Precinct No. 6." His rights, if any, are derived from the fact of that citizenship and residence, and from the official position and public duties of the plaintiff in error, which flowed from his election as a justice in that particular precinct. At an election antecedent to the commencement of the proceedings. Chapman was elected justice of the peace in justice precinct No. 6. This justice precinct was 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 116,-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 office, 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 misconception 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 boundaries, 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.

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.

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 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

a joint appeal, it must be so prosecuted, or the appeal must ultimately be dismissed. The rule has been established in reference to appeals to the supreme court from the judgments of inferior courts, and we can conceive of no reason why the same rule should not be applicable to appeals from the county court. Mining Co. v. Faulkner, 14 Colo. 436, 24 Pac. 548. It seems to be thoroughly settled, both in this and other states, that the liability of the sureties is as fully fixed by a dismissal of the appeal as by its prosecution to an adverse judgment. Thalheimer v. Crow, 13 Colo. 398, 22 Pac. 779; Mueller v. Kelly (Colo. App.) 47 Pac. 72.

The only remaining question is whether, under circumstances like these, it is open to the surety to plead the joint character of the judgment and the joint character of the order allowing the appeal, and to insist that because the appeal was joint, and he gave the bond as upon an individual appeal, which occasioned the ultimate dismissal of the proceedings, he may assert these facts to avoid his liability. We are of opinion this cannot be done. The recitals in the bond bind the surety, and he may not be heard to say the facts are not in accordance with the bond which he has executed, and that the judgment is joint, rather than several. Having obligated himself to pay the judgment in case the appeal is not successfully prosecuted, he must answer under his contract when the appeal is ultimately dismissed. This has been adjudged in many cases, where the questions have been presented in divers forms. It has been applied to cases where appeals were prosecuted from unappealable orders and judgments, where bonds have been given after time, where there has been a failure to file a transcript in accordance with the statute or the orders of the court, and, in fact, in nearly all conceivable classes of cases wherein the appellant was unsuccessful in maintaining his right to further prosecute the suit. All the cases are based on the principle of estoppel, and the surety has been refused the right in all of them to be heard to say he was not bound by his contract because of the failure to obtain that for which the bond was given. Meserve v. Clark, 115 Ill. 580, 4 N. E. 770; Adams v. Thompson, 18 Neb. 541, 26 N. W. 316; Pratt v. Gilbert, 8 Utah, 54, 29 Pac. 965; Gudtner v. Kilpatrick, 14 Neb. 347, 15 N. W. 708; Skidmore v. Hull, 33 Mo. App. 41; Mueller v. Kelly, supra. There are some cases which seem to hold a contrary doctrine, but they are not inconsistent with these authorities. The opinions were rendered in states where the statutes were totally different from ours, and wherein the bond was void in case there was a failure to do what the statute provided. Many reasons can be urged why, in such cases, the sureties should not be estopped to assert the invalidity of their bond, and insist on the defense that, because the appellant had

failed to secure the right of review, the bond was not obligatory. These reasons do not exist under our statute, and we think those authorities totally inapplicable. The court erred in entering a judgment as of nonsuit, and the judgment will be reversed and remanded. Reversed.

(9 Colo. App. 181)

CORY v. NEWTON.1

(Court of Appeals of Colorado. Feb. 8, 1897.) CONTRACTS-CONSIDERATION.

Defendant employed plaintiff to circulate a petition for the paving of a street, plaintiff tc be paid when defendant received his commission, on condition that plaintiff obtained the signatures of the owners of a majority of the frontage, and that the contract was awarded to defendant's company. After plaintiff procured part of the signatures, defendant directed him to proceed no further, and promised to pay him the sum originally agreed on. The pav ing contract was afterwards awarded to defendant's company on another petition, and he received his commission. Held, that whether the circulation of the petition by plaintiff was stopped causelessly, or because it contained a provision which would prevent its acceptance if completed, as claimed by defendant, the promise to pay was supported by sufficient consideration.

Appeal from district court, Arapahoe county.

Action by Marshall C. Newton against Robert J. Cory on a contract for services. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John S. Mosby, Jr., for appellant. Talbot & Denison, for appellee.

THOMSON, J. The appellee brought this suit to recover for his services in circulating a petition for the paving of Nineteenth street, in the city of Denver, with asphalt. He alleged that he was employed by the defendant to circulate the petition, and that the defendant promised him that in case he procured the signatures of the owners of a majority of the frontage on that street to the petition, and the contract for laying the pavement was awarded to the Colorado Paving Company, in whose employ the defendant was, he (the defendant) would pay to the plaintiff 22 cents per square yard for each yard of asphalt laid by the company, when he (the defendant) should receive his commission thereon. The plaintiff alleged, further, that he had procured a large number of the required signatures, and was ready, able, and willing to procure the residue, when the defendant directed him to proceed no further in the matter, and promised to pay him the amount originally agreed upon, notwithstanding the requisite signatures were not procured; that thereupon the plaintiff, at the request of the defendant, delivered him the petition with the signatures which had been already procured, and did no more work under his employment; that the

1 Rehearing denied March 22, 1897.

paving contract was afterwards awarded to the defendant's company; and that the defendant received his commission. The plaintiff fixed the value of his services at $337. The answer admitted the employment and agreement as to compensation, but alleged that the payment to the plaintiff was contingent upon the procuring of the signatures, and the award of the contract to the company under the petition which the defendant undertook to circulate. It denied that the defendant ever directed the plaintiff to procure no more signatures, denied the alleged subsequent promise to pay notwithstanding the signatures were not procured, and averred that the contract was awarded to the defendant's company upon a similar petition presented by the Blake Asphalt Company, and not upon the petition which plaintiff had. The testimony of the plaintiff accorded substantially with the statements of his complaint. In the matters wherein their pleadings disagree, the testimony of the plaintiff and that of the defendant conflicted, but the facts were settled in the plaintiff's favor by the verdict of the jury. The petition the plaintiff was circulating designated the material to be used in paving as "Trinidad Lake Asphalt," and it appears that all of that particular material was controlled by the Colorado Paving Company. The defendant claimed that he had received information that the petition he had furnished the plaintiff would not be considered by the board of public works, because it specified material which was in the exclusive control of the Colorado Paving Company, and its acceptance would prevent competition among bidders for the work, and for this reason he concluded it would be useless to proceed any further with that petition, and so notified the plaintiff.

It is argued that it was not the defendant who prevented the plaintiff from completing his work, but that he ceased work on account of the fact that it became apparent that the work would result in nothing, and that, therefore, the promise of payment made after cessation of the work from that cause was without consideration. It is also contended that, by the terms of the agreement, the plaintiff was to receive nothing unless he procured the requisite number of signatures to the petition, and unless the contract was awarded to the defendant's company under that petition. The plaintiff did not procure sufficient signatures, and the company did not obtain the contract under that petition; hence it is said the plaintiff is entitled to nothing. The evidence that the board of public works would not have received that petition consisted of hearsay, and proves nothing; but whether it would have considered the petition or not is unimportant. If the defendant employed the plaintiff to do certain work, and afterwards causelessly ordered it stopped, while the plaintiff was engaged in its performance, and before its completion, the defendant's liability would be the same as if the work had been finished, and

that liability would constitute an all-sufficient consideration for the promise. If, however, the work was stopped because it was useless to continue it on account of the character of the petition, then we are confronted with this state of facts: that the defendant provided the plaintiff with a petition which could accomplish nothing, and bound him to conditions which, through the defendant's own fault, were impossible of fulfillment. The defendant was responsible for the form and contents of the petition. The vice which inhered in it was due to him. The plaintiff accepted the employment, and entered upon it in good faith, but, while engaged in it, was directed to desist, because his work would be abortive, on account of something the defendant himself, whether wittingly or not, had done. These facts constituted a perfect consideration for the promise. The defendant cannot be heard to say that because the petition which he fathered would have been ineffectual to obtain the contract, and because, for that reason, the contract was not procured under it, therefore the plaintiff failed in the fulfillment of his agreement, and the subsequent promise to him was without consideration.

The defendant's company obtained the contract, and the defendant received his commission, in pursuance of another petition, which was presented and accepted. The result was therefore the same as if the defendant's petition had been successful; and the conditions upon which the plaintiff accepted the employment were literally fulfilled, except in so far as the defendant himself made them impossible of fulfillment. No errors were committed in receiving or excluding evidence; the instructions submitted the questions involved fairly; and the judgment must be affirmed. Affirmed.

(9 Colo. App. 161) BOARD OF COM'RS OF ARAPAHOE COUNTY v. CLAPP.1 (Court of Appeals of Colorado. Feb. 8, 1897.) COUNTY OFFICERS CLERK HIRE LIABILITY OF COUNTY.

1. Sess. Laws 1891, p. 307, § 20, providing that justices of the peace and certain other officers, whose salaries are paid from their fees, shall report to the county commissioners all necessary expenses of clerk hire, does not authorize a justice to appoint a clerk, or, if such authority can be implied, does not make the county liable for his compensation, unless the fee fund paid into the treasury by the justice is sufficient for that purpose.

2. A resolution of the county commissioners. adopted prior to plaintiff's employment as clerk of a justice of the peace, and fixing his compensation, but without specifying any definite time, creates no liability against the county, in the absence of any evidence that plaintiff was employed thereunder for a specific period.

ty.

Appeal from district court, Arapahoe coun

Action by John T. Clapp against the board of county commissioners of the county of

1 Rehearing denied March 22, 1897.