The Pacific Reporter

or on his official bond.-Newman v. People,
Colo. App.) 34 P. 1006.
Powers of deputy.

9. Under Code Proc. § 59, providing that
he clerk of court or his deputy, "and the sher-
ff and auditor," shall place the jury ballots
n the box, and section 61, providing that, if
he sheriff or auditor or both shall not attend
and assist, the clerk may call in such other
county officer or officers as he may choose, the
leputy sheriff cannot serve in the sheriff's
place, without vitiating the panel. Section 80,
giving the deputy all the powers of the sheriff,
and authorizing him to perform any of the
duties prescribed by law to be performed by
the sheriff, does not apply to such extraordi-
nary duties.-State v. Payne, (Wash.) 34 P. 317.

Silence.

Estoppel by, see "Estoppel," 11.

Special Laws.

See "Constitutional Law," 7-10.
Special Venire.

See "Jury," 6-8.

SPECIFIC PERFORMANCE.
Adequate remedy at law.

1. Specific performance will lie at the in-
stance of the vendor to enforce a contract for
the purchase of land where he alleges and
makes tender of a deed therefor, since the de-
cree will compel the acceptance of the deed as
well as the payment of money.-Johnston v.
Wadsworth, (Or.) 34 P. 13.
Contracts enforceable.

2. Where, as an inducement to plaintiff
to purchase land through defendant, the latter
gives him a contract by which he agrees to
buy the land from him within a certain time
if plaintiff so desire, such contract is not void
for want of mutuality. - Johnston v. Wads-
worth, (Or.) 34 P. 13.

1. An act of congress enabling a territory
to become a state has no binding force on the
people of the territory until they have adopted
a constitution, and the territory has been ad-
mitted into the Union; and then, if, by their
constitution, the people have expressed no dis-
sent from any proposition contained in the en-
abling act, they are bound by its provisions.
But if the constitution contains any modifica-
tion of any of the provisions of the enabling
act, and the state has been formally admitted.
by the president and congress into the Union,
the modified provisions are to be taken as the
existing contract between the state and the fed-
eral government.-Romine v. State, (Wash.) 34
P. 924.

2 Act Cong. Feb. 22, 1889, enabling the
territory of Washington to come into the Union,
required (sections 10, 11) the public lands pre-
viously reserved by Act Cong. March 2, 1853,
for school purposes to be disposed of by the
state in a specified manner. The constitution
adopted by the people pursuant to such act con-
tained a provision (article 16, § 2) empowering
the state legislature to confirm all previous sales
of school lands made in good faith. Held that,
whether or not it was the intention of congress,
by the enabling act, to repudiate, as unauthor-
ized, all sales of school land made by the terri-
tory, the state of Washington could not question
the title of such purchasers, subsequently con-
firmed by the state legislature, since the above
constitutional provision, under which the state
was admitted, modified the proposition in the
enabling act.-Romine v. State, (Wash.) 34 P.
924.
Liabilities-Counsel fees.

3. Gen. St. § 1813, makes it the duty of
the state comptroller to institute and prosecute
all suits to recover the debts and moneys of
the state, and an annual appropriation for the
3. Defendant agreed to furnish the neces- purpose of enforcing the collection of the reve
sary stone for a church building to be erected nue is placed under his control. Held, that
by plaintiff, and to perform the masonry work, only the comptroller could employ counsel to
but after doing two-thirds of the work, and be- assist the attorney general in suing for deliu-
ing paid a much larger proportion of the stip-quent taxes so as to create a valid obligation
ulated price, became insolvent, and was unable payable out of such appropriation. — State ▾
to perform his contract. The stone required Horton, (Nev.) 34 P. 316.
was of a peculiar kind and color, and could be
procured only from defendant's quarry, and to
use other stone to complete the building would
destroy its beauty and harmony. Held, that
defendant should be compelled to furnish the
stone necessary to complete the building, and to
permit plaintiff to enter on his premises to pro-
cure such stone, and to use his derricks at the
quarry and the church building in quarrying,
transporting, and raising the stone.-Rector,
etc., of St. David's Church v. Wood, (Or.) 34
P. 18.

Parol contracts.

4. Plaintiff, who purchased land, paying
part cash, the balance payable within a year,
under oral agreement that he should have a
deed thereof on final payment, cut wood on the
land for fuel, but never entered into posses-
sion. Before the year expired, his grantor
conveyed the land to defendants, who verbally
agreed to carry out his contract with plaintiff.
Held an insufficient part performance by plain-
tiff to warrant a decree compelling defendants
to convey the land to plaintiff.-Fulton v. Jan-
sen, (Cal.) 34 P. 331.

State Legislature.

4. The fact that counsel rendered services
in such case, and that his claim therefor was
approved by the board of examiners, does not
entitle him to recover, as Gen. St. § 1811, pro-
vides that no claim for services rendered to the
state shall be allowed unless such services
have been specially authorized by law.-State
v. Horton, (Nev.) 34 P. 316.
Limitation of indebtedness.

5. Act April 17, 1893, providing for pay-
ment of materials and labor in the completion
of a state canal by certificates of indebtedness
to be issued by the state auditor, which may
be accepted by the state in payment for car-
riage of water or for lands, but shall not be a
claim against the state, cannot violate the con-
stitutional provision limiting state indebted-
ness, as it permits of no such indebtedness.-
In re Canal Certificates, (Colo. Sup.) 34 P. 274.
Funds applicable to payment of claims.

6. Where, during a certain fiscal year, the
governor offers a reward for the arrest and
conviction of certain criminals, and they are
arrested during such year, but not convicted
till the following year, after the unused funds
appropriated for rewards for such previous
year have been transferred by the state treas-
urer to the general fund, as required by law,

Submission of questions to courts by governor the state auditor cannot be compelled to issue
and legislature, see "Courts," 1.

a warrant, in favor of the person entitled to

such reward, on the fund appropriated for re-
wards for such previous year.-State v. Cook,
(Mont.) 34 P. 770.

Funds applicable to payment of claims
-Payment of officers.

such seal to and countersign a commi-sion »
sued by the governor to a person appoined t
him to the office of fish commissioner betal
in his judgment, the governor had no su
to make the appointment. - State v. Barac
(Wyo.) 34 P. 1028.

Statute of Frauds.

Statute of Limitations.

STATUTES.

7. Sess. Laws 1890-91, c. 33, § 30. directs unclaimed estray moneys to be paid into the general fund; and section 33 requires the payment of expenses of inspection, and of the See "Frauds, Statute of." commission and its servants, out of the inspection fund "hereinbefore provided." and never out of any other. Section 36 appropriates for the inspection fund, for two years, $10,000. See "Limitation of Actions." Under the 1888 law the estray moneys had been paid into the inspection fund, and used for said expenses, no other appropriation being made. The 1890 law directed the moneys to be covered into the general fund, and appropriated $10,000 for the expenses for one year. Held, that the 1890-91 law intended the estray moneys to become ultimately part of the inspection fund, together with the appropriation, and, the latter having been expended, the secretary of the board was entitled to be paid his salary from said estray moneys.-State v. Burdick, (Wyo.) 34 P. 1.

Appropriations.

8. Act March 15, 1893, (creating the state board of land commissioners, "making appropriations therefor," etc..) § 3, fixes the salaries of the members, and that they shall be repaid all necessary expenses, to be paid monthly, the same as other state officers. Section 4 author izes the board to expend a sum not exceeding $1,800 per annum for clerical work, and requires the state auditor to issue his warrant for the amounts thus expended, and for the salaries of the board, and directs the state treasurer "to pay the same out of any moneys in the state treasury not otherwise appropriated." Held, that there was an appropriation for the payment of salaries of such board, within the requirements of Const. art. 8, § 4, which provides that every law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and its object.-State v. Grimes, (Wash.) 34 P. 833. Enjoining threatened acts of officersRight of taxpayer.

9. A private citizen cannot bring a suit against a state board to enjoin the erection of a public building at a place other than prescribed by law, unless his burden of taxation will thereby be increased.-Sherman v. Bellows, (Or.) 34 P. 549.

Joinder of officers in action against

state.

10. The commissioner of public lands need not be joined as defendant with the state in an action brought against it to quiet plaintiff's title to land acquired from the state.-Romine v. State, (Wash.) 34 P. 924.

Appointment of officers by governor-
Duty of secretary of state.

11. Under Laws 1890-91, c. 95, § 8, providing that the secretary of state shall aflix the state seal to "and countersign all commissions and other official acts required by law to be issued or done by the governor, his approval or disapproval of acts of the legislature excepted, and all other instruments when required or authorized by the governor," such duty extends to all cases in which the law requires the official act of the governor to be evidenced by some written instrument subscribed by him.-State v. Barber, (Wyo.) 34 P. 1028.

12. The appointment by the governor of a person to the office of fish commissioner is such an official act as the law requires to be evidenced by a written instrument executed by him.-State v. Barber, (Wyo.) 34 P. 1028.

13. Such statute is mandatory, and the seeretary of state has no right to refuse to aflix

See, also, "Constitutional Law.”
Applicable at option of county, see "Coca
ties," 6.
When construed as directory merely, see "Mr
nicipal Corporations," 4.
Enactment and approval.

the secretary of state, in all respects regar
on its face, bearing the signatures of the p
siding officers of the houses of the legislat
regularly approved by the governor, and dres
ited in such office, as required by the cust
tion, is conclusively presumed to have be
regularly passed by the legislature.-State
Jones, (Wash.) 34 P. 201.
Amendment.

1. An enrolled bill on file in the offre d

death is caused by the wrongful act or 32
2. Civil Code, § 422, provides that, where
sion of another, the personal representatives a
deceased may maintain an action therefor,
deceased might have maintained an action b
he lived, for an injury for the same act
omission; and the damages recovered mis à
ure to the exclusive benefit of the widow we
children, if any, or next of kin. Heid, ta
Civil Code, § 422a, (Sess. Laws 1884, e 11
§ 1.) which provides that if no personal reme
sentative has been appointed, the action met
be brought by the widow, or, where there is
widow, by the next of kin of deceased, con
not violate Const. art. 2, § 16, which provides
that "no law shall be revised or amended t
less the new act contains the entire act re
vised or the section or sections amended, an
the section or sections amended shail be re
pealed;" since section 422a is not an amel
ment, but a supplement, to section 422--Be
v. Kansas City, Ft. S. & M. R. Co., (Kan.) 34
P. 805.

"no act shall ever be revised or section amend
3. Const. art. 4, § 22. which provides that
ed by mere reference to its title, but the at
revised or section amended, shall be set forth
and published at full length," does not inhe
the enactment of a general law which is com
plete and perfect in itself, and not amendatory
or revisory in its character, though such i
by implication amends other statutes on the
same subject. State v. Wright, 12 P. 78, 14
P. 661.
Or. 370, overruled.-Warren v. Crosby, (Or.) 3

4. Laws 1893, p. 116, "An act to secure a more convenient mode of making assess a and of collecting and paying taxes," which by section 9 eliminates from the speca act incorporating the city of Astoria the pre visions conferring on such city power to as because it amends such special act without wi sess, levy, and collect all taxes, is not inva ting forth in full the section as amended.--War ren v. Crosby, (Or.) 34 P. 661. Titles of acts.

5. The act entitled "An act to provide fre the branding, herding and care of stock," the purpose of the act, as indicated by the w "eare" in the title, being to protect the owes ship of live stock, indicates by its title the sub ject-matter of Gen. St. § 3190, providing a

unishment for stealing cattle.-In re Pratt, | instrument, held by a person living in Kansas
Colo. Sup.) 34 P. 680.

6. The subject of the act of March 30,
878, providing for the examination, and in cer-
ain cases the winding up, of banks by commis-
ioners appointed for the purpose, is sufficiently
xpressed in its title, "The Bank Commission-
rs' Act."-People v. Superior Court, (Cal.) 34
P. 492.

Construction.

City, void as against creditors levying attach-
ments, two and three days after the law went
into force, on property kept in Thomas county,
as the holder of the instrument was entitled to
a reasonable time in which to comply with the
law. Moline Plow Co. v. Witham, (Kan.) 34
P. 751.

Causes of action already accrued.
11. Civil Code, § 422, provides that, where
7 Act March 31, 1891, (St. 1891, p. 223,) a person is killed by the wrongful act of an-
uthorizing the organization and creation of other, an action may be brought within two
sanitary districts throughout the state, and years by his personal representative, for the
empowering such districts to issue bonds for benefit of decedent's family. Civil Code, 8
he construction of sewers and drains, is with- 422a, which was subsequently enacted, provides
n the police power of the legislature; and the that, if no personal representative is appointed,
courts will not assume that the act must in- an action may be brought by the widow, if
lude cities and towns, and is therefore in vio- there be one. Held, that a widow could bring
ation of Const. art. 11, §§ 6, 11-13, which pro- an action where her husband was killed before
ibit the legislature from interfering with the the enactment of section 422a, and no repre-
municipal functions of the different cities and sentative was appointed, provided she brought
towns within the state.-Woodward v. Fruit-it within two years; since section 422a did not
vale Sanitary Dist., (Cal.) 34 P. 239.

Inconsistent acts.

8. Two inconsistent acts were passed at
the same session of the legislature, and were
approved on the same day. One act contained
an emergency clause, and went into effect im-
mediately on its approval, while the other was
without such clause. and did not take effect
until a later day. Held, that the act containing
the emergency clause would prevail over the
other. Heilig v. City Council of Puyallup,
(Wash.) 34 P. 164.

Operation and effect.

9. An act changing the method of assessing
property for taxation in cities of the third class,
which took effect after an assessment for that
year under the old law might have been made,
but before it was in fact made, applies to the
assessment for such year, though it does not
operate retrospectively.-Heilig v. City Council
of Puyallup, (Wash.) 34 P. 164.

10. Sess. Laws 1889, c. 255, making void as
to innocent purchasers or creditors of the ven-
dee all instruments "now in existence or here-
after executed, evidencing the conditional sale
of personal property, and that retain the title
to the same in the vendor until the purchase
price is paid in full," unless deposited in the of-
fice of the register of deeds of the county in
which the property is kept, does not render such

UNITED STATES.

CONSTITUTION.

Amend. 6..

Amend. 7.

Art. 3, § 2.

Art. 16, § 2.

create a new cause of action.-Berry v. Kansas
City, Ft. S. & M. R. Co., (Kan.) 34 P. 805.
Effect of partial invalidity.

12. The object of Act April 17, 1893. being
to expedite the completion of a canal authorized
and sanctioned by previons acts, the provision
for issuance of certificates to be accepted in
payment of the carriage of water may stand,
though that as to land is invalid.-In re Canal
Certificates, (Colo. Sup.) 34 P. 274.

13. A statute providing, as its sole object,
for the dissolution of incorporated towns and
cities, for the purpose of annexing their terri-
in for determining such action by the vote of
tory to another city, is void if a provision there-
the taxpayers is unconstitutional.. Town of
Valverde v. Shattuck, (Colo. Sup.) 34 P. 947.
Repeal.

---

14. The rule that a special act, into which
any part of an existing general law has been in-
corporated, is not affected by the repeal of the
general law unless the repealing act refers in
express terms to the special act, applies only
where some particular general law, or a section
thereof, is referred to in the special act, and not
to cases where the special act makes no such
particular reference, but merely to the "exist-
ing general law," or to the "general law now
in force."-Newman v. City of North Yakima,
(Wash.) 34 P. 921.

.43, 66

163 Art. 4, § 26.

§ 2263.

§ 2324.

173 Art. 11, § 5.

716

Stat. 172).

924

July 1, 1862, § 3 (12 Stat.
501)

$2326.

25 Art. 11, §§ 6. 11-13.

239

S$ 2339, 2340.

55, 59 $8 4045, 4046.
§ 5198.
592 § 5515.

April 20, 1871 (17 Stat. 19) 592

368 Art. 11, § 12.

716

533 Art. 13, § 5.

342

.1049 Art. 14. § 1..

630

March 3, 1875 (18 Stat.

482)

838

1891, p. 52.

523

March 3, 1875, § 1 (18

1828, May 6, art. 2 (7
Stat. 311)..

Stat. 182).

.150, 838

Feb. 25, 1885 (23 Stat.

With Cherokee Nation,
1833, Feb. 14 (7 Stat.
415)
With Cherokee Nation,
1835, Dec. 29 (7 Stat.
479, 480).
With Cherokee Nation,
1846 (9 Stat. 871)......