Affirmed.

J. B. Traxler, for plaintiff in error. Chas. E. Gast and C. C. Goodale, for defendant in

error.

REED, J. An agreed statement of facts was filed in the court below, from which it appears that school district No. 18 in the county of Prowers was a school district of the third class; that the defendant had taxable property in the district to the value of $51,425; that on the 4th day of May, 1891, the annual meeting of the electors of the school district was held, and a director elected for the term of three years. At such annual meeting no question in regard to a special school tax was submitted to the electors, and no vote taken. No special meeting of the electors was called or had during the year, consequently such question was in no way submitted to the electors. Some time during the month of May the directors of the district met, and ordered a special district school tax of seven mills on the dollar on the taxable property of the district. A certificate of such levy was filed with the board of county commissioners, (plaintiff in error,) the tax assessed with other taxes. The amount of such special tax against the property of the defendant amounted to $359.98, the payment of which was resisted, in an action instituted. Upon the hearing the suit was dismissed.

Only one question is involved,-had the directors the power to make the assessment? The right and power of school districts to assess and collect special taxes for school purposes is purely statutory. No aid in the determination of the question can be gained from outside sources; it can only be determined from the statutory provisions and their construction according to well-known and generally accepted rules. In section 3036, Gen. St., it is ordered: "In districts of the first and second classes the boards, after organization, shall exercise all the powers given to the electors of districts of the third class as specified in section 62 [Gen. St. § 3058] of this act." In section 3058 it is provided: "The qualified electors of districts of the third class, when assembled at any regular or special meeting, shall have *Fourth. To order such tax on taxable property of the district as the meeting shall deem sufficient for any of the following purposes:" (enumerating them.) Section 61 (3057) is as follows: "In any district of the third class the board of directors may at any time call a special meeting of the electors of such district for any of the purposes specified in section sixty-two (62) of this act, and it shall be their duty to call such meeting, if petitioned so to do by ten

power:

specifying the time, place, and object of such meeting, shall be posted in three (3) public places, one of which shall be at the place of meeting, at least twenty (20) days prior to the time of holding such meeting." By section 29 of the Acts of 1887, p. 398, section 67 was amended as follows: "On or before the day designated by law for the commissioners of each county to levy the requisite taxes for the then ensuing year, the school board in each district shall certify to the county commissioners the number of mills per dollar which it is necessary to levy on the taxable property of the district, to raise a special fund for any of the purposes specified in section 51 of this chapter, and the county commissioners shall cause the same to be levied at the same time that other taxes are levied, and the amount of such special tax which shall be assessed to each taxpayer of such district, shall be placed in a separate column of the tax-book, which shall be headed 'Special School Tax:' provided, that a school board of a district of the third class shall not certify, as above, to a higher rate than fifteen mills per dollar." Also, last clause: "And, provided further, that the board of any district may order the levy of not to exceed one-tenth of one mill, the proceeds of which shall be used exclusively in the purchase of books for a library, to be open to the public, under such rules as the district board may deem needful for the proper care of the said library." It will be seen that in districts of the third class the power to levy a special tax is conferred only upon the electors. No power is given the board of directors to levy any special tax unless the last paragraph of section 29 of the act of 1887 should be construed as allowing the board to levy the tax of onetenth of one mill for library purposes. Whether it does or does not is not necessary to be determined in this case. According to well-established rules of statutory construction, in districts of the third class, the power being vested in the electors, is to the exclusion of the board of directors, and the power could not be assumed without an affirmative provision authorizing it. None such is found. "When a statute gives a new power, and at the same time provides the means of executing it, those who claim the power can execute it in no other way." Turnpike Co. v. Gould, 6 Mass. 40; Glass Co. v. White, 14 Mass. 286. "Where an act of parliament gives authority to one person expressly, all others are excluded. A special power is ever to be strictly pursued." Pott. Dwar. St. 275. "A purely statutory authority or right must be pursued in strict compliance with the terms of the statute." Endl. Interp. St. 493; Rex v. Loxdale, 1 Burrows, 445; Rex V. All Saints, 13 East, 143. "Statutes by the authority of which a citi zen may be deprived of his estate must have the strictest construction, and the power con

ferred must be executed precisely as it is given, and any departure from it will vitiate the proceedings, and this is so whether it be in the exercise of a public or private authority, whether it be ministerial or judicial." Pott. Dwar. St. 146; Sherwood v. Reade, 7 Hill, 431; Striker v. Kelly, 2 Denio, 323. These are but a few of the many authorities based upon the well known maxim, "Expressio unius est exclusio alterius." They might be multiplied indefinitely. The power to assess a special tax, in school districts of the third class, being by statute conferred only upon the electors, the assumption of the power by the directors was unwarranted, and the levy invalid. The judgment dismissing the action must be affirmed.

3 Colo.A. 414

CHICAGO, R. I. & P. RY. CO. v. FERGUSON. SAME v. CAMPBELL. SAME v. WALSH.

El Paso county to the eastern line of the state to one Webb at a given price per mile, the work to be done in accordance with the statutory specifications. A part of the distance the land or right of way of the plaintiff was of sufficient width to allow the plowing to be done within its limits. A part of the way, if plowed at all, it had to be upon the land of abutting owners. Defendants were such owners upon whose lands it was necessary to enter. It is in evidence, and undisputed, that where entry upon other land was necessary, Webb was, by virtue of his contract, required to see the owners of the land, and obtain permission to enter and do the work. It is also in evidence that in the cases under review he disregarded the requirement, and, with. out having obtained consent, cut the fences, made the entries, did the work, causing some slight damage aside from that of cutting the fences. It is also established by the evidence that plaintiff exercised no su

INJURIES BY CONTRACTOR-RESPONDEAT SUPERIOR.

Where a railroad company employs a contractor to plow fire guards along its right of way, as provided by Gen. St. § 2796, and instructs him that, where entry upon other land than that of the company was necessary for that purpose, he must obtain the owner's consent, the company is not liable where the contractor enters upon an abutting owner's land without his consent, and plows his land, injuring his fences in so doing.

Error to El Paso county court.

Actions for trespass by A. O. Ferguson, Charles Campbell, and D. T. Walsh against the Chicago, Rock Island & Pacific Railroad Company. Judgments for plaintiffs, and defendant appeals. Reversed.

Pattison & Edsall and E. E. Whitted, for plaintiff in error. T. A. McMorris, for defendants in error.

REED, J. The three cases embrace the same questions and issues, and were by stipulation of counsel submitted upon the same briefs and arguments of counsel. The suits were in the nature of trespass to real property for the breaking or cutting of fences, entry upon the lands of the respective plaintiffs, (defendants in error,) and alleged damages; were originally brought before a justice of the peace, and trials had, resulting in each instance in a small judgment against plaintiff in error. Appeals were taken to the county court, trials had to a jury, verdict and judgment in each against plaintiff, and appeals taken to this court.

Plaintiff is a corporation operating a railway. By an act of 1874 (Gen. St. p. 811, § 2796) it was provided that every railroad corporation operating lines of road within the state should each year plow fire guards n each side of its line. In compliance with the requirements of the statute, in the year 1891, the plaintiff, by contract, let the plowing of the fire guards from some point in

ting the contract, its only duties being to see that the work was properly done, and make the payment. It was assumed upon the trials that this state cf facts created the relation of master and servant; that plaintiff was liable for the torts of the contractor. The court, in its instructions, assumed the same position, and practically and in effect took from the jury all questions of fact except those of entry and damages. The only question necessary to be determined is whether, under the facts, a case was made where the doctrine of respondeat superior could be invoked and ap plied. The work contracted to be done was not only legal, but was required by the statute, and obligatory upon the corporation. By the contract the entry upon the land of others was to be legal under the consent of the owner, to be obtained by Webb previous to the entry. Admitting that the relation of master and servant existed as contended, it is very doubtful whether the corporation could be held responsible for the torts of the servant under the circumstances. The weight of authority, both English and American, is against it, but we do not find it nec essary to decide the question in this case. In Mechem on Agency (section 747) the rule of law deduced from the authorities, and lawfully stated, is: "Where, however, the principal has not this right of control, a different rule prevails. Neither reason nor justice requires that he should be held responsible for the manner of doing an act when he had no power or right to direct or control that manner. If, therefore, the principal, using due care in the selection of the person, enters into a contract with a person exercising an independent employment, by virtue of which the latter undertakes to accomplish a given result, being at liberty to select and employ his own means and methods, and the principal retains ne

right or power to control or direct the manner in which the work shall be done, such a contract does not create the relation of principal and agent or master and servant, and the person contracting for the work is not liable for the negligence of the contractor, or of his servants or agents, in the performance of the work. The employment is regarded as independent where the person renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished." In Forsyth v. Hooper, 11 Allen, 421,-a wellconsidered case,-it is said: "When, however, the person employed is engaged under an entire contract, for a gross sum, and in an independent operation, not subject to the direction or control of his employer, the relation is not regarded as that of master and servant, but is said in modern phrase to be that of contractor and contractee; and the negligence of such contracting party, or of his servant, cannot be charged upon him for whom the work is contracted to be done. The question whether the relation be that of master and servant or not is mainly determined by ascertaining from the contract of employment whether the em ployer retains the power of directing and controlling the work, or has given it to the contractor." In Hilliard v. Richardson, 3 Gray, 349, the court, in speaking of the tort, said: "It was not done by one whom the defendant had the right to command, over whose conduct he had efficient control, whose operations he might direct, whose negligence he might restrain." In Fuller v. Bank, 15 Fed. Rep. 875, the court said: “If you find from the proof that the defendant let the whole work of excavating and finishing the vault to Tamlyn, as a contractor, to finish and complete the whole as a job, without reserving any control or direction over him in its construction, or over the construction of the work, or the place where it was being constructed, or the mode of its execution, or the workmen to be employed to do it, then he would be an independent contractor, and the defendant is not liable." In Blake v. Ferris, 5 N. Y. 48, the court says: "When a man is employed in doing a job or piece of work with his own means and his own men, and employs others to help him, or to execute the work for him and under his control, he is their superior, who is responsible for their conduct, no matter whom he is doing the work for. Το attempt to make the primary principal or employer responsible in such cases would be an attempt to push the doctrine of respondeat superior beyond the reason on which it is founded." In a recent case-Hexamer v. Webb, 101 N. Y. 383, 4 N. E. Rep. 755-the court said: "In the case considered we think that by the contract between the defendant and Burford the relation of master and servant was not created. Burford was a me

chanic engaged in a particular kind of business which qualified him for the performance of the work which he was employed to do. By the arrangement with the de fendant he was an independent contractor, engaged to perform the work in question. He was employed to accomplish a particular object by obviating the difficulty which he sought to remove. The mode and manner in which it was to be done, and the means to be employed in its accomplishment, were left entirely to his skill and judgment. Everything connected with the work was wholly under his direction and control. No right was reserved to the defendant to interfere with Burford or the conduct of the work. It was the result which was to be attained that was provided for by the contract, without any particular method or means by which it was to be accomplished. So long as the contractor did the work, the defendant had no right to interfere with his way of doing it." See, also, Steel v. Railway Co., 16 C. B. 550; Cuff v. Railway Co., 35 N. J. Law, 17; Painter v. Mayor, etc., of Pittsburgh, 46 Pa. St. 213; Eaton v. Railway Co., 59 Me. 520; Clark v. Railway Co., 28 Vt. 103; Blake v. Ferris, 5 N. Y. 48. It follows that the court erred in the law of the case, and that the instructions were erroneous. The instructions assume the only question, or first important question, to be determined, viz. that the relation of master and servant existed. The court said, "If the jury believes from a preponderance of the evidence that the defendant's servants or employes cut the fences,' etc. The judgments will be reversed, and the causes remanded.

1. It is negligence for a city to maintain within the graded portion of a street a post over which the wheels of a carriage cannot pass in safety.

2. The question of whether one injured by driving over a post in a street was guilty of contributory negligence is to be determined independently of the fact that he was driving at a rate of speed for which he was punishable as for a misdemeanor under an ordinance.

Appeal from district court, Pueblo county; Action by J. H. C. Smith against the city of Pueblo. Judgment for plaintiff. Defendant appeals. Affirmed.

M. G. Saunders, for appellant. Hartman & Glenn, for appellee.

THOMSON, J. This was an action brought by J. H. C. Smith against the city of Pueblo, a municipal corporation, organized under the laws of the state of Colorado, to recover damages on account of injuries received by him while driving in one of its public streets in consequence of coming in

contact with a large post set in the street, and protruding a considerable distance above the surface of the ground. The testimony of the plaintiff is that about half past 7 o'clock in the evening of October 3, 1889, and after it was dark, he was driving along this street, when suddenly the buggy in which he was driving encountered a post and was upset, throwing him to the ground, and severely injuring him. He says that he was driving at a moderate gait,-probably at the rate of a mile in seven or eight minutes; that he might have been going at a rate of ten or twelve miles an hour, but that his speed was "a moderate jog of a trot, such as ladies drive;" and that he had never seen the post, and did not know of its existence. The evidence for plaintiff is that the post was solidly set in the ground, was about twenty-seven inches high, and had been there for about two years before the accident; and, although another portion of the street was most generally used for travel, yet that portion was also traveled, and used by the public for the passage of vehicles. Defendant introduced an ordinance of the city of Pueblo which provides that any person who shall ride or drive any horse, mule, or other animal in or through any street within the city at a rate faster than six miles an hour shall be guilty of a misdemeanor, and upon conviction shall be fined in a sum not less than $3 and not more than $100.

The giving of instructions numbered 1, 2, 4, and 8 by the court upon its own motion, and the refusal of an instruction requested by defendant, are assigned for error. In the argument the discussion is confined to the fourth and eighth instructions and the instruction refused. It seems to have been conceded that, if there was such an obstruction as is alleged, defendant was chargeable with notice of its existence, because the instruction declaring the law upon that question was not objected to. The first and second instructions submitted to the jury the question of defendant's negligence, and correctly state what may be considered in estimating the damages. They are unobjectionable, so far as we can see, and we presume were so regarded by defendant's counsel, as he gives them no attention in his argument. Instructions 4 and 8 are as follows: "No. 4. The court instructs the jury that it was the duty of the defendant, the city of Pueblo, to keep and maintain its streets free from obstructions artificially placed in the streets which would be dangerous to persons traveling upon the streets. Whatever rule of law might be applicable to public streets in the city that had not yet been formally accepted and opened for public use, or in the less frequented portions of the city in the outskirts of the same, the city might be said to have performed its duty if it provided a safe and convenient traveling way, sufficiently wide for

the accommodation of the public, and guarded against danger from the natural or artificial obstructions therein. But the court instructs the jury that in such portions of the city as are frequently traveled, and are liable to be traveled, and where the city has accepted the street and graded the same, it is the duty to keep the same free from obstructions to the extent and for the entire width of that portion of the street between the gutters which by its natural conformation is apparently set apart for public travel." "No. 8. The court further instructs the jury, that, while the answer does not allege contributory negligence as a defense, yet, if they find from the evidence of the plaintiff himself that the injury was occasioned by reason of his driving at a careless, negligent, and high rate of speed, and that such act upon his part was the cause of the injury, and that he would not have suffered the same had he been driving at an ordinary and prudent rate of speed upon the public highway, he would be guilty of contributory negligence, and could not recover; and it is a question of fact for you to determine from the evidence, without regard to any rate of speed fixed by the city ordinances, as to what rate of speed in fact would be negligent." The following is the instruction refused: "No. 1. If the jury be lieve from the evidence, at the time alleged in the complaint, and at the time the injury complained of is alleged to have occurred, plaintiff was violating an ordinance of the city of Pueblo, then in force, which said ordinance was introduced in evidence, by then and there driving upon and along a street in said city, at a rate of speed prohibited by said ordinance, to wit, at a rate of speed exceeding six miles per hour, it constituted negligence upon the part of the plaintiff."

"When municipal corporations are invested with exclusive authority and control over the streets and bridges within their corporate limits, with ample power for raising money for their construction, improvement, and repair, a duty arises to the public, by virtue of the powers granted, to keep the avenues of travel within such jurisdiction in a reasonably safe condition for the ordinary mode of use to which they are subjected, and a corresponding liability rests upon the corporation to respond in damages to those injured by a neglect to perform the duty." City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. Rep. 705. The fourth instruction correctly states the law in regard to the duty of cities to keep and maintain their streets free from obstructions which would be dangerous to persons traveling therein. This instruction is, however, objected to because, as counsel claims, it declares as matter of law that it is the duty of a municipal corporation to keep the entire width of its streets in repair; that the post, if it existed, was such an obstruction as to render the city liable for the in

jury it occasioned; and that portion of the street shown to be in repair was not sufficient to accommodate travel thereon. By no analysis of the instruction can the implication be found that the portion of the street shown to be in repair was not sufficient to accommodate travel thereon. Neither do we think it can be fairly implied from the instruction that it is the duty of municipal corporations to keep and maintain the entire width of its streets in repair, or that the post, if it existed, was such obstruction as necessarily rendered the city liable for the injury occasioned; but, if these two propositions had been given to the jury in direct terms, we do not conceive that the instructions would be therefore erroneous. Whatever may be the rule applicable to small towns, or the country, when a populous city grades and prepares its streets for use, and throws them open to the public, it invites the public to use their whole width, and it cannot say, after an injury is sustained in consequence of an obstruction in a portion of a street, that part of such street was intended to be used and part not. The purpose of opening a street is that it may be traveled. The duty of keeping it in a reasonably safe condition extends to one part as well as to another, and on principle we are unable to see why it should escape liability because an obstruction causing an injury was placed on a particular portion of the street instead of somewhere else. Montgomery v. Wright, 72 Ala. 411; Saltmarsh v. Bow, 56 N. H. 428. The instruction, however, does not go to this extent, and there is evidence that the part of the city where the accident occurred was actually used by the public, who avoided the post by going around it. If the obstruction complained of had been comparatively trifling in its dimensions and character, so that it was doubtful if the passing over it of the wheels of a vehicle would occasion any injury, then it would have been for the jury to say, under proper instructions, whether permitting it to continue was negligence on the part of the city; but there is nothing doubtful about the obstruction described by the witnesses. We do not think that the wheels of a wagon or carriage could safely pass over a post 8 by 8 inches, or even less, firmly imbedded in the ground and projecting above the surface 27 inches. Knowingly suffering such obstruction to remain in a public and traveled street was negligence per se, and to have so declared it would not have been error.

The remaining question arises out of the giving of the eighth instruction, and the refusal of defendant's instruction. In disposing of this, the effect of the ordinance upon the question of plaintiff's contributory negligence is the only important matter to consider. The proposition submitted by defendant's counsel is that "a city ordinance, passed in pursuance of the power conferred by the legislature, has the force of an ex

press statute, and every violator thereof is a wrongdoer, and ex necessitate negligent in the eyes of the law;" and he argues further that, if the plaintiff was driving over the street at a greater rate of speed than six miles an hour, the city owed him no duty, and contributory negligence was conclusively established against him. This is not the law. If the plaintiff, while driving at a rate of speed in excess of that limited by the ordinance, had run into and injured some other person using the street, the evidence that his speed was illegal might have been sufficient proof of negligence as against him in the first instance, although it would not be conclusive, and it would not excuse the contributory negligence of the person injured. Cooley. Torts, (2d Ed.) 804. But it seems to be quite well settled that the fact that one is engaged in violating the law does not prevent him from recovering damages for an injury which could not have been avoided by the exercise of ordinary care, unless the unlawful act contributed proximately to produce the injury. 2 Thomp. Neg. 1161, and cases cited; Beach, Contrib. Neg. § 257. In the case of Baker v. Portland, 58 Me. 199, this precise question was elaborately discussed. There, as here, the plaintiff was injured in consequence of a defect in a street while driving over it. The ordinance made a rate of speed greater than six miles an hour unlawful. The defendant contended that the fact that plaintiff was in the act of violating the law at the time of the injury was a bar to the right of recovery. The jury were instructed in that case, as they were in this, that defendant's contributory negligence must be found by them independently of the mere fact that he was engaged in an illegal act. The court held that, while the violation of the ordinance might subject the offender to a penalty, unless the commission of the act contributed to produce the injury, the negligence of the defendant was not thereby excused; and stated that the true question was whether plaintiff was using due and reasonable care under all the circumstances, or whether a want of care on his part contributed to produce the injury. The judgment of the court below was sustained.

The eighth instruction states the law applicable to this case correctly, and, inasmuch as the instruction asked by defendant contains the proposition that driving along the street at a rate of speed prohibited by the ordinance constituted negligence on the part of plaintiff, it was properly refused. No error appears upon the face of the record, and the judgment must be affirmed.