tion 1, art. 9, of the constitution, and that an assessment upon such classification would be void; third, that the evidence shows that the state board of equalization assessed his mortgage at a higher per centum than other real estate in said county; and, fourth, that there is now no law under which a mortgage upon real estate can be assessed, or taxes levied or collected thereon.

Geo. H. Williams and W. D. Fenton, for appellant. Geo. E. Chamberlain, Atty. Gen., and John Hall, Dep. Dist. Atty., for respondents.

MOORE, J., (after stating the facts.) 1. Section 7 of the act creating the state board of equalization provides that said board, in equalizing the valuation of property, as assessed in the different counties, shall consider real estate, including town and city lots, and personal property, separately; and section 8 of said act provides that said board in the performance of its duties shall add to or subtract from the aggregate valuation of the real and several kinds or classes of personal property of every county which they believe to be valued below or above the true and fair value thereof in money such per centum in each case as will bring the same to its true and fair value in money. Sess. Laws 1891, p. 182. From these sections appellant contends that there is but one class of real property, and the state board of equalization had no authority to make any change, except in the aggregate value thereof. The general rule for the interpretation of ambiguous statutes is to give them such construction as shall suppress the mischief and advance the remedy, putting down all subtile inventions and evasions for continuance of the mischief, and adding force and life to the cure and remedy, according to the true intent of the makers of the act. Parkinson v. State, 74 Amer. Dec. 522. The manifest object and intent of the legislature in creating the state board of equalization was to secure uniformity of assessment of the different classes of taxable property between the several counties. The tax levy for state purposes being uniform over the whole territory, and based upon the values fixed by the county assessor as approved by the local board, if that officer could undervalue property, notwithstanding the law requires him to assess it at its full cash value, (Code, § 2770,) the amount of state taxes collected thereon would be correspondingly low, and the temptation would present itself to each county assessor to undervalue property so that his county might escape the payment of as much as possible of its state taxes, while a high rate of taxation for county purposes could be computed upon a low assessment, and thus meet the demands of the county. Such a method would seem to offer a premium to that county whose assessor made

the lowest assessment of property. The legislature created the state board of equalization to suppress the mischief that might possibly arise from such a system of assessment, and provided the remedy by equalization among the several counties. Anoth

Real

er rule of interpretation is that all the sections of a statute shall be considered together, so as to harmonize and give effect to each clause if possible. Section 3 of the act, supra, prescribes the oath of office required of the members of the board, and each swears that he will equalize all the property, both real and personal, as enumerated upon the equalized county assessment rolis of the several counties of the state. estate is divided into three classes: (1) City, village, or town property, which, if divided into lots and blocks, shall be separately described on the assessment roll, (Code, §§ 2770, 2771;) (2) mortgages, deeds of trust, contracts, or obligations whereby land situated in no more than one county is made security for the payment of a debt; and (3) all other real property, which is to be described by legal subdivisions, or in such manner as to make the description certain. Sections 2770,2773. These three classes are enumerated on the assessment roll by the county assessor, and the members of the state board of equalization swear that they will equalize them among the several counties. If appellant's contention were true that the several kinds of real property constituted but one class, and either kind was assessed in the judgment of the board at its full cash value, and the others at less than such value, then any addition to the aggregate valuation would increase the assessment of one kind of real property above its full cash value, and thus clearly become a violation of section 32, art. 1, of the constitution, which requires that all taxation shall be equal and uniform. To illustrate: Mortgages might be assessed in a county at their full cash value, and the other kinds of real property at a nominal sum. In such case the state board of equaliza tion would be powerless to remedy the evil since any increase of the aggregate valuation would raise the assessed value of mortgages above their full cash value. Ir Railroad Co. v. Croisan, 22 Or. 393, 30 Pac. Rep. 219, Bean, J., says: "To say that the act creating the state board of equalization is a piece of hasty and crude legislation is to say what is obvious; but laws of this kind are remedial in their character, intended to correct an admitted evil by requiring each county to pay its just proportion of the burden of maintaining the state government, to suppress wrong, and to promote the public good, and should be liberally construed, so as to bring under their operation, says Mr. Endlich, 'as well that which is within their meaning as that which is within their letter.' End. Interp. St. 346. And when the act in question is so con

tioned it relates back to the levy of the county courts made at the September terms. The levy should be made by the several county courts at that time for the county, and other known rates, and also for such rate as may be subsequently apportioned by the state officers for current expenses. "When an act of parliament is repealed, it must be considered (except as to transactions past and closed) as if it never existed." Potter's Dwar. St. 160. In Newsom v. Greenwood, 4 Or. 119, it was held that a statute repealing or modifying the remedy of a party by suit or action should not be construed to affect suits or actions brought before the repeal or modification, and that when the suit or action had been commenced it followed the principle governing in the exceptional cases. This being the rule heretofore adopted, and as applied to the case at bar, it would appear that the assessment of the property and levy of all taxes thereon "were past and closed" at the September term of the county courts preceding the repeal of the mortgage tax law on February 10, 1893, thus bringing it within the exception to the general rule. The assessment and levy are equivalent to the commencement of a suit or action, and when the warrant is attached to the tax roll it becomes a judgment which relates back to the levy.

(2) It is a general rule that, unless reserved, the repeal of a special tax law destroys the remedy for enforcing the collection of the tax; but when a tax system is revised, and the former law repealed, the legislative intent is assumed to be of prospective force only, and hence prior valid assessments will not be affected by such repeal. Cooley, Tax'n, 18. The sections repealed provide, in substance, that the mortgage note should not be assessed, but that the mortgage given to secure the debt should, for the purpose of assessment and taxation, be deemed real estate, and assessed to the extent of the debt secured; while section 2735 provided that the tax assessed upon mortgages should be a lien upon the debt and security, and that they might be sold to satisfy the tax. The repeal of the remedy cannot destroy the right. The owner of property owes a duty to the public to bear such a portion of the general burden as the value of his property bears to the value of the whole. Section 2803 of Hill's Code provides that, in case any person shall refuse or neglect to pay the tax imposed on him, the sheriff shall levy the same by distress and sale of his goods and chattels; and section 2816 provides that, if no personal property be found whereon to levy the warrant, it must be levied upon any real property of the person against whom the tax is levied or charged. The mortgage tax law was only a part of the general system, and the remedy for the collection of taxes due under it was furnished by sections 2803 and 2816, independent of section 2735. In Belvidere

v. Railroad Co., 34 N. J. Law, 193, it was held in a similar case that the repeal of the statute without a saving clause did not destroy the remedy if the collection of the tax was regulated by other acts, and that when the assessment was made the force of the act authorizing it was exhausted. This case was approved in Maine v. Bank, 68 Me. 515. In the case at bar a remedy was found in section 2735, which was repealed, but this remedy could not be pursued if the taxpayer had any personal property out of which the tax could be made. A remedy was also provided by section 2816 in case no personal property was found, identical with that of section 2735. The remedy provided in section 2735 added nothing to the general system, and hence its repeal could take nothing from it.

(3) The act of February 21, 1893, read in connection with the repealing act, leaves no room for doubt as to the legislative intent in reference to the collection of the tax on mortgages already levied. The legislature of Texas, on June 3, 1873, passed an act which repealed a tax law, without any saying clause. Sess. Laws Tex. 1873, p. 198. A supplemental act was passed on the same day, which provided that the repealing act did not relinquish the right to any taxes theretofore assessed. Id. 206. In Clegg v. State, 42 Tex. 605, it was said in a suit to enforce the tax levied prior to the repeal that "a fair construction of the law under which appellants claim this suit is brought does not deprive the state of the right to demand and collect taxes levied and assessed under former laws, though repealed prior to its institution. Potter's Dwar. St. p. 155, note 5; Sedg. St. & Const. Law, 31, 113. Evidently it was not the intention of the legislature by the passage of the act of June 3, 1873, regulating taxation, to relinquish the right to recover taxes previously levied, but not collected. To obviate all doubt, and guard against controversy, a supplemental act to this effect was passed on the same day. These two contemporaneous acts, relating to the same subject-matter, must be taken and construed as one statute." It is a well-recognized principle of statutory construction that contemporaneous statutes and statutes in pari materia shall be construed together, as though they constituted one act for the purpose of arriving at the intent of the legislature; and where a statute is made in addition to another statute on the same subject, without repealing any part of it, the provisions of both must be construed together. Suth. St. Const. § 288. Applying this rule to the acts of February 10th and 21st, they must be construed together, and this will incorporate into the repealing act of February 10th the saving clause of February 21st, and thus preserve the right to enforce the taxes upon mortgages; and hence the decree of the lower court is affirmed.

3 Colo.A. 401

LAWRENCE v. WEIR. (Court of Appeals of Colorado. June 12, 1893.) REAL-ESTATE BROKERS-COMPENSATION-EVI

DENCE.

In an action by a broker for commissions as for the sale of property on O. street, which defendant conveyed to G., it appeared that plaintiff was defendant's agent for the sale of property on V. street. Plaintiff testified that, while trying to sell to G. the V. street property, he mentioned the other property, and said whose it was. "I drove G. past the O. street property, and pointed it out while I was showing other properties._* I went down in front of the property. I did not afterwards take either of them [G. and another] to" it. G. testified that he negotiated the purchase with defendant, and that plaintiff did not point out the property to him as for sale, nor participate in the transaction. Held, that a nonsuit should have been granted.

* *

Appeal from district court, Arapahoe county.

Action by G. R. Weir against George A. Lawrence. Plaintiff had judgment, and defendant appeals. Reversed.

F. A. Williams, for appellant. Richard Wolfe, for appellee.

REED, J. Appellee (plaintiff below) brought the suit to recover commissions alleged to have been earned, as a real-estate broker in the sale of a residence property on Ogden street, in the city of Denver, owned by appellant, (defendant,) and purchased by F. C. Goudy, Esq. Defendant was the owner of two residence properties, one new, upon Venice street, and the other, the one sold, occupied by himself and family; placed them for sale with one F. Morey, a real-estate broker, with whom plaintiff was connected in some way, or operating. After the sale of the Ogden street property, Morey assigned his claim for commissions to appellee, who instituted the suit. The case was tried to a jury, resulting in a verdict for the plaintiff for $280. Judgment was entered upon the verdict, and an appeal taken to this court.

Numerous errors are assigned,-several upon the admission and rejection of evidence, one upon the refusal of the court to sustain a motion for a nonsuit, several to instructions given and refused, and a general one, that the judgment was against the law and the evidence. Most of them will be disregarded. A nonsuit should have been granted. There was an absolute failure in the proof of the plaintiff to make a case within the law governing such transactions, and the verdict was so clearly against an overwhelming weight of testimony that, if not willfully wrong, it could only have resulted from misapprehension or mistake of the law. The law in this class of cases is well settledFirst, before the broker can be said to have earned his commission, he must produce a purchaser who is ready, willing, and able to purchase the property upon the terms and at the price designated by the principal; second, the broker must be the efficient agent

or procuring cause of the sale. He must find the purchaser, and the sale must proceed from his efforts acting as broker. Babcock v. Merritt, 1 Colo. App. 84, 27 Pac. Rep. 882; Hungerford v. Hicks, 39 Conn. 259; Tombs v. Alexander, 101 Mass. 255; Barnard v. Monnot, *42 N. Y. 203; Rees v. Spruance, 45 Ill. 308; McClune v. Cain, *41 N. Y. 203; Lloyd v. Matthews, 51 N. Y. 124; Lyon v. Mitchell, 36 N. Y. 235; Briggs v. Rowe, *43 N. Y. 424; Murray v. Currie, 7 Car. & P. 584; Wilkinson v. Martin, 8 Car. & P. 5.

To apply the law, and make the opinion intelligible, an examination and synopsis of the evidence is necessary. One fact is well established, that appellee and Goudy were negotiating for the sale and purchase of the Venice street property, which would have been consummated but for a stable, consid ered a nuisance, on land adjoining, which the defendant could not get removed, and the purchase was abandoned. During the negotiations, defendant and Goudy had not met. Defendant was represented by the plaintiff. In regard to the Ogden street property, finally purchased, plaintiff testified that, while negotiations were going on in regard to the Venice street property, "I mentioned the other property to them, [Goudy and Cloud,] and on the way home pointed out to them the Ogden street property. I don't know that, in pointing it out, I said whose it was. *** I drove Mr. Goudy past the Ogden street property at first, * * and pointed it out while I was showing other properties to Mr. Goudy." Again: "I say Cloud and Goudy went out with me riding, to look at some property, and I pointed out this property to them on the way, riding in the buggy on Ogden street. I went down in front of the property. I did not afterwards take either of them to the property." This is all of the plaintiff's testimony directly connecting him with the transaction. He never informed his alleged principal that he had a possible purchaser; never gave Goudy the name of the owner of the property; never brought the parties together, nor gave a price, nor showed the property. His only claim is that, in company with Goudy and Cloud, he drove by the property, and from the street pointed it out as being for sale, and this was snown by Goudy and Cloud to have been a mistake. Considerable evidence by Morey and plaintiff was admitted in regard to negotiations with Cloud, who was assumed to be the agent of Goudy, which was denied by Cloud and Goudy. It is not important to determine which is correct. No agency of Cloud had been established, and the fact was he was not, at the time of the alleged interviews, the agent of Goudy to buy, but was trying to find some suitable property to sell to him, in the hopes of making a commission from the owner. Consequently, the testimony in regard to interviews with Cloud. without establishing an agency, was improperly admitted. Nearly all the testimony

given by Morey was inadmissible. It was in regard to his conversations with the plaintiff, his own agent, and Cloud, the assumed agent of Goudy, but nothing as to the defendant or Goudy and the sale of the Ogden street property. Goudy was called by the plaintiff; was clearly a disinterested witness. His testimony, by which plaintiff was bound, should have been conclusive of the whole case. He minutely detailed the entire transaction from first to last, showing that the plaintiff in no way participated in the transaction; that plaintiff never mentioned the property as being for sale; that plaintiff did not drive through the street even, and point it out to him, in fact, did not drive into Ogden street at all; and in this he was corroborated by Cloud, who, plaintiff alleged, was with them on the occasion. Goudy narrated the circumstances under which he first met the defendant, made his acquaintance, and learned of the Ogden street property from him. Goudy was anxious to buy the Venice street property, if the stable nuisance could be abated. After some three weeks' negotiation with plaintiff, without getting anything definite in regard to the removal of the stable, he stopped at the property on Venice street, and found Mrs. Lawrence, wife of the defendant, preparing the house for occupancy. With a view, if possible, of concluding a purchase, he asked her where Mr. Lawrence (defendant) could be found, and was directed to the Ogden street property, where he found him. It was the first time they had met, or that he (Goudy) had any knowledge whatever of the property. The house was torn up for modern improvements, and defendant informed him, when they were completed, the property would be for sale. A day or two after, Mr. and Mrs. Goudy examined the house, and got the proposed price, after the improvements were completed. The negotiations between defendant and Goudy commenced on the basis of the defendant completing a portion of the improvements, and Goudy assuming the balance. There was a difference in regard to the price. Goudy, who was going away, employed Cloud, giving him a certain amount, provided he succeeded in getting the property at a certain price. Cloud met defendant, and, after two or three interviews, the price was made satisfactory, and on Goudy's return, about three days after, the purchase was closed. This was the only agency of Cloud for Goudy. This, it will be remembered, was the evidence of plaintiff's witness, showing conclusively no participation of the plaintiff. This was supplemented and corroborated in every important particular by the defendant and by Cloud, who were called for the defense.

Taking the case as made by plaintiff alone, it will at once be seen that it did not comply with the requirements of the law, and, when even that was destroyed by his own witness Goudy, it is apparent that the court erred in refusing the motion for a nonsuit.

The verdict of the jury was not only unwarranted by the evidence, but directly against it. There was no conflict in the legal acceptation of the term; the only conflict was between the plaintiff and his own witness Goudy, whose evidence was destructive of his case.

It is not necessary to review the instructions. They were evidently-some of them, at least utterly disregarded by the jury, and for that reason the verdict should have been set aside. Suits of this character, having no legal foundation, or at least very questionable in character, have become quite frequent,-far too frequent. The rules of law are plain and simple. "The broker must be the efficient agent or procuring cause of the sale. The means employed by him and his efforts must result in the sale. He must find the purchaser, and the sale must proceed from his efforts acting as broker." These facts, legally established by competent evidence, entitle the broker to his commission, and the courts will aid in its recovery, but nothing short of this will suffice. It opens up too broad a field for the practice of fraud and the levying of unwarranted tribute. The law in this class of cases has been strained to its utmost tension, and juries go further than courts. Judgments have been obtained on the most shadowy grounds of supposed intervention by the broker. If the broker honestly earns his fee, he should have it, but the property owner seems to be the party needing protection.

In this case the broker employed was Mr. Morey. No contract was made with the plaintiff. That the claim was not prosecuted by Morey, but assigned to plaintiff, is a circumstance that should not pass unnoticed. The judgment will be reversed, and cause remanded.

3 Colo.A. 392

MEYERS v. HART. (Court of Appeals of Colorado. June 12, 1893.) NONSUIT-WHEN DENIED-TRIAL-SPECIAL FIND

INGS.

1. In replevin, defendants, after denying all the allegations in the complaint, as a second defense, set up a settlement and full payment. To these allegations plaintiff tendered issue by replication, and evidence thereon was received. Held, that refusing to grant a nonsuit and a trial of the issues presented by the second defense was proper, though there was no evidence in support of the original complaint.

2. Under Civil Code, § 181, providing that, "in an action for the recovery of money only or specific property, the jury, in their discretion, may render a general or special verdict," where the pleadings in an action in replevin only raise issues as for the recovery of money the court has no power to order special findings.

Error to district court, La Plata county. Action in replevin by Thomas B. Hart against A. C. Meyers and others. Plaintiff had judgment, and defendant Meyers brings error. Affirmed.

The other facts fully appear in the fol lowing statement by REED, J.: