(3 Colo. App. 522) CITY OF PUEBLO v. JACKSON. (Court of Appeals of Colorado. Oct. 24, 1893.) APPEAL-BOND-MUNICIPAL CORPORATIONS -CONSTRUCTION OF STATUTES. Mills' Ann. St. § 4444, provides that in all actions, suits, and proceedings in any court in the state in which a municipal corporation is a party it may take an appeal, and have a writ of error made a supersedeas, without giving bond. Section 1086, shortly afterwards enacted at the same session of the legislature, providing for appeals from the county to the district court, requires a bond to be filed as a prerequisite, making no exceptions. Civil Code, § 395, afterwards enacted at the same session, relates to appeals to the supreme court only, and provides that when a municipal corporation is appellant, the court shall direct a stay of execution without filing a supersedeas undertaking. Held, that section 4444 applies only to appeals to and writs of error from the supreme court, and, where a municipal corporation appeals from a county to the district court, it must file a bond within the time prescribed by section 1086. Appeal from district court, Pueblo county. Action by P. Jackson against the city of Pueblo, commenced in the county court. There was a judgment for plaintiff, and defendant appealed to the district court. The appeal was dismissed, and defendant appeals. Affirmed. M. G. Saunders, City Atty., for appellant. McFeely & McAliney and A. W. Arrington, for appellee. The THOMSON, J. Appellee had judgment against appellant in the county court. cause was heard, and final judgment rendered, on the 28th day of January, 1892. Appellant gave notice of appeal to the district court. Its appeal bond was filed and approved February 13, 1892, sixteen days after judgment rendered. The transcript was filed in the district court, and the appeal dismissed, because the bond was not filed within 10 days after the rendition of the judgment, no order having been made by the court extending such time. Section 2 of an act relating to appeals from county courts to district courts, approved April 14, 1885, provides as follows: "Sec. 2. No appeal shall be allowed, in any case, unless the following requisites be complied with: First. The appeal must be made within ten days after the judgment [is] rendered, or when judgment is by default or nonsuit, within ten days after the refusal of the county court to set aside the default, or nonsuit, and grant a new trial: provided, however, that the county court may, at any time, within the period above limited, upon good cause shown, extend the time for an appeal. Second. The appellant, or some person for him, together with one or more sufficient sureties, to be approved by the judge, or clerk, of said court, must, within the time above limited, or within such further reasonable time as shall be fixed by the court, enter into an undertaking, payable to the ad verse party, as follows: In case the judgment be for the payment of money, and against the party appealing, the undertaking shall be in double the amount of the judgment, or decree, appealed from, conditioned for the prosecution of the appeal, with effect and without delay, and for the payment of all costs, and whatever judgment may be awarded against the party so appealing, on the trial or dismissal of said appeal in the appellate court, and for the payment of the judgment appealed from, in case said appeal shall be dismissed; and in case the judgment, or decree, appealed from be in favor of the party appealing, or shall not be for the payment of money, the penalty of the undertaking shall be in such sum as the county court shall deem sufficient to cover costs, expenses, and damages, and be conditioned that the party appealing shall abide, fulfill and perform whatever judgment may be rendered against him in that cause by the district court, and for the payment of all damages which the opposite party may sustain by reason of such appeal, and the delay incident thereto, and for the payment of costs." Sess. Laws 1885, p. 158; Mills' Ann. St. § 1086. No order appears, extending the time. By the terms of this section, the bond in question was filed too late. This is not disputed by appellant, but it is insisted in its behalf that it, being a municipal corporation, was not required to give bond in order to make its appeal; and that, therefore, the time within which the bond was filed, or whether a bond was given at all, is immaterial; and in support of this contention reliance is had upon section 1 of an act of the general assembly, approved March 25, 1885, which reads as follows: "Section 1. That in all actions, suits and proceedings in any court in this state, in which a municipal corporation of this state shall be a party, such municipal corporation may take an appeal and have a writ of error made a supersedeas, as now provided by law, without giving bond." Sess. Laws 1885, p. 369; Mills' Ann. St. § 4444. It will be observed that the passage of this act was prior in point of time to the passage of the act containing section 1086 Mills' Ann. St., which we have quoted. If there is a conflict between the two sections, the one which is later in time will operate as a repeal of the other, in so far as the inconsistency exists. Section 1086 is peremptory in its language, and does not allow an appeal from the county to the district court in any case whatever, unless the prescribed requisites be complied with; while section 4444 permits appeals by municipal corporations without compliance with such requisites. Whatever effect the legislature may have intended, section 1086 to have upon section 4444, it, being a later enactment, would govern in this case; and the giving of the bond within the time specified would be essential to the perfection of the appeal. But we do not think there is any necessary inconsistency between the two sections. The phraseology of section 4444 is not inconsistent with the assumption that the appeal there mentioned is an appeal from a county or district court to the supreme court. The section provides that a municipal corporation may take an appeal and have a writ of error made a supersedeas, without giving bond; and thus connects "appeal" and "writ of error" in such manner that they would both seem to have reference to the same class of cases, viz. cases which are reviewable for error. There is no writ of error fom a district to a county court. Cases go from the latter to the former by appeal only. They are not reviewed in the district court, but are tried de novo, in precisely the same manner as if they had been originally commenced there; so that the language of section 4444 would not appear to fit a case of appeal from the county to the district court. In construing a statute the object is to arrive at the intention of the legislature in enacting it; and if, upon its face, that intention is doubtful, then means outside of the statute may be employed to reach the desired result. Other legislation, affecting the same subject-matter, is one of the means by which this end may be attained; and it may so far aid us in ascertaining the legislative intent that the difficulty encountered in the statute itself is readily obviated. The following is section 24 of an act entitled "An act in relation to appeals to the supreme court, and concerning the jurisdiction thereof and practice therein:" "Sec. 24. The trial court or judge may, in its discretion, dispense with or limit the security required by this act when the appellant is an executor, administrator, trustee, or other person acting in another's right. When a municipal corporation is the appellant, the court or judge shall direct a stay of execution after appeal, upon the motion of the appellant, without filing a supersedeas undertaking." Sess. Laws 1885, p. 355; Civil Code, § 395. This section provides the manner in which a municipal corporation may make the right granted to it by section 4444 effective, and perfect its appeal to the supreme court without giving bond. There is nowhere any legislation making such provision in the case of an appeal from a county court to a district court, or in the case of any appeal, except to the supreme court. All of the three sections we have quoted were enacted at the same session of the legislature. Section 1086 had been enacted but a few days when section 4444 was enacted. If the legislature had regarded this section as in any way inconsistent with section 1086, and had intended by it to repeal, amend, or modify section 1086, we would expect to find some reference to the section, indicative of such intention, in the language of section 4444. The enactment of Code, § 395, is conclusive that it did not intend its repeal; and in providing the method by which the right granted could be made available in appeals to the supreme court, and failing to make such provision in any other class of appeals, it clearly indicated that it regarded section 4444 as applicable only in cases of appeal to the supreme court. Until the enactment of section 4444, municipal corporations were, in the matter of appeals, upon the same footing with private corporations and individuals. They could take no appeal to any court without giving bond. That section changed the existing law in respect of appeals to the supreme court, leaving all other appeals in the same situation, and subject to the same requirements as before; and section 1086 re-enacted the antecedent law relating to appeals from county to district courts. In this case an appeal bond, given within the time limited in the latter section, was essential to the appeal. The statutory requirement in this particular not having been complied with, the appeal was properly dismissed, and the judgment will therefore be affirmed. (3 Colo. App. 530) UNION PAC., D. & G. RY. Co. v. Mc- (Court of Appeals of Colorado. Oct. 24, 1893.) SPECIAL AGENCY-RECEIPT. 1. A contractor for work in the construction of a railroad has, under a direction of the road's division superintendent to order of plaintiff stone to be furnished to the railroad company, power to bind the company by a purchase of such stone from plaintiff. 2. A receipt for money, recited to be "in full settlement of account as follows: 40 cubic yards stone @ $4.50 per yard," is not a receipt in full for anything further than the stone specified. Appeal from Pueblo county court. Action by C. F. McCarty against the Union Pacific, Denver & Gulf Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed. Teller, Orahood & Morgan and Betts & Vates, for appellant. S. G. Spencer and Coan & Griggs, for appellee. REED, J. Appellee brought this action originally before a justice of the peace, claiming the sum of $186.40, balance due for stone alleged to have been delivered to appellant. An appeal was taken to the county court; case tried by the court without a jury, resulting in a judgment for $171.81. It appears that one J. H. Naughton had a contract for bridge and stone work on the line of appellant's road. He ordered the stone from plaintiff at the agreed price of $4.59 per cubic yard, the railway company to furnish transportation. It was estimated that 14 car loads would be required. After seven car loads had been shipped to Naughton at Denver, he notified appellee, by wire, to ship no more stone until further orders. It ap pears that four car loads, of ten cubic yards each, were used by Naughton; the remain ing three cars were not used; and it is alleged by appellant that the stone was not received by the company. By the evidence, no reason is given for not receiving and paying for the other three cars. About a year later,--October 10, 1889,-the company paid appeilce $180, being the price of the four cars used, and appellee executed the following receipt: "$180.00. Pueblo, Colo., Oct. 10th, 1889. Re ceived of the Denver, Texas & Fort Worth Railroad Co. one hundred and eighty no-100 dollars, in full settlement of account as follows: Dated Oct. 2, 1888. 40 cubic yards stone @ $4.50 per yard. Audited bills No. 1,553. No. No. Local Treas. check No. 5,605. No. (Sign here) C. F. McCarty. I. P. 295." The judg ment being for the remaining three cars of stone, and interest on the same, numerous errors are assigned of record, the contention of appellant being -First, that it was not re sponsible from the fact that Naughton was to furnish the stone himself, and all material, and do the work; second, that he was not the agent of the company in the transaction with the appellee; third, that the court erred in finding that the receipt of October 10th was not a receipt in full of all demands by McCarty, as against the company. The other errors assigned are not deemed of sufficient importance to warrant examination at any length; are far more technical than substantial. Testimony in the case is very conflicting. There is no question in regard to the seven cars having been shipped over the Atchison, Topeka & Santa Fe road from the quarry to the appellant corporation, or of the receipt of the cars by it, and its payment to the Atchison company of the freight. B. W. Grover, who was division superintendent of that division of the appellant's line on which the stone was used, testifies that Naughton, the contractor, was to furnish all material, and the railroad company to transport it free of charge, and that the contractor was to receive a certain price-which he has forgotten -for the complete work in wall. It is evident that Mr. Grover was laboring under a misapprehension in regard to the bill, as his testimony is contradicted by his own acts, and the records of the office. The following was in evidence: "Pueblo, Oct. 2, 1888. Denver, Texas & Ft. Worth Railway Co., Dr. to C. F. McCarty for 40 cubic yards stone at $4.50 per yard. Aint. $180. C. F. McCarty, Con tion for same. Have voucher made favor of party named above, and send to Pueblo. Respt. etc., J. H. Naughton. "This is O. K. G. A. Armstrong, Supt. B. and B. "Authorized, examined, and found correct. Examined and approved. B. W. Grover, Supt." There was no contract made, in writing. Naughton testifies to the contract made with Grover, whereby the appellant corporation was to furnish the stone; he to furnish lime, cement, and other material, and do the work. He also testifies that, under the instructions of Grover to order the stone from appellee, he agreed upon the price, and ordered it. It is claimed in argument that Naughton, be ing only a contractor, was not the agent of the company to make the purchase, and could not bind the company by any such contract. If the testimony of Naughton is to be believed, which it evidently was by the court, it certainly was a special agency for that specific purpose. By the orders and instructions of Grover to purchase the stone for and on behalf of the appellant corporation, the agency need not have been general; and Grover, who is authority on the question, had full power to delegate the purchase of the stone to Naughton, and designate the party from whom it should be purchased; and, in so far as this specific agency was created for the single act, the company would be held for the performance. The conflict of testimony was so marked that it was impossible to harmonize it, and all the court could do was to give credit to one party, and disbelieve the other. Under such circumstances, the finding of questions of fact by the court will not be disturbed, on review in this court, but will be taken as found. This rule has been announced so frequently that it is hardly worth while for counsel to insist upon a reversal by reason of superior weight of testimony. The position taken that the receipt was a receipt in full of all demands, and operated as a full release to the corporation for all claims of the appellee, is untenable. If it had been, as supposed by counsel, a receipt in full, the well-established rule of law isand has been so often asserted that authorities in its support are unnecessary-that a receipt even purporting to be a receipt in full is at all times liable to explanation and to impeachment. An examination of the receipt given shows that it was not a receipt and release of all demands, but, as stated in the body of the receipt, "in full settlement of account as follows: 40 cubic yards of stone @ $4.50 per yard." That seven car loads were shipped, amounting to 70 cubic yards, is not disputed; and the receipt, upon its face, by the bill attached, shows conclusively that it was not in payment or settlement of seven car loads of stone, but of four loads. Under any circumstances, the receipt could not, even if unexplained by all the testimony, be regarded as a receipt in full for seven car loads of stone, of ten cubic yards each. We conclude that the court was warranted in finding that the stone was to be furnished by the appellant corporation; that Naughton was authorized by the division superintendent to purchase the stone from the appellee, and that he did so, at an agreed price of $4.50 a cubic yard; that seven car loads of stone were shipped under the contract, four of which were paid for, and the price of the remaining three unpaid; that the receipt offered in evidence was not a release of all claims, and that the balance, as found by the court, was due; and that the judgment should be affirmed. 1. Where a corporation sold some of its stock for nonpayment of assessments, and bid the same in, in which the stockholder acquiesced, it cannot on its own motion treat the sale as invalid, and reinstate the stockholder, so as to render him liable for the assessment. 2. Where an irrigation company uses a ditch already in operation, and extends a new ditch beyond the terminus of the old one, the owners of the old ditch are not liable for the cost of maintaining the new portion. Error to Mesa county court. Action by the Brown & Campion Ditch Company against James L. Patterson and others. From a judgment for plaintiff, defendants bring error. Reversed. The other facts fully appear in the following statement by REED, J.: Defendant in error, as plaintiff, brought suit before a justice of the peace to recover money alleged to be due upon the assessment of ditch stock for money expended in keeping in repair the ditch of plaintiff. The defendants below were sued as the owners of 90 10-11 shares of the capital stock of the company, and it claimed $75 due as the amount properly chargeable to the stock. The judgment was for the defendants, an appeal taken by the plaintiff to the county court, a trial had by the court, resulting in a judgment for the plaintiff. In the year 1883, Joseph Simineo, Dennis Sullivan, John J. McKay, and Daniel W. Collard took out from Kannah creek, for irrigating purposes, a ditch to cover their lands, and called it the "Brown & Campion Ditch," being three feet in width on the bottom, five feet at water surface, depth of water one foot. The length is not definitely given, but it appears to have been quite short. From the date of its construction until about the year 1887, it so remained, and the water was used by the parties named. On the 16th day of December, 1886, another company was orv.34P.no.9-49 ganized and incorporated, taking the name of the Brown & Campion Ditch Company, (now defendant in error.) It constructed a new head gate for the benefit of all parties a short distance above the head gate of the old Brown & Campion ditch, connected it with such ditch, entered upon it, materially enlarged it throughout its length, and extended it by a new ditch for some distance beyond the terminus of the former ditch. The rights of the owners of the original ditch and water-rights were not merged in those of the new company, but remained separate and distinct, entitled to all rights of priority and use of water acquired by their earlier appropriation and application. Plaintiffs in error, as grantees of Joseph Simineo, became the owners of his right in the old ditch, and also became shareholders in the new corporation, through purchase from Simineo, holding one-eleventh of the stock, amounting to 90 10-11 shares. In the year 1890, plaintiffs in error were assessed upon their stock for necessary repairs upon the ditch. A controversy arose. Plaintiffs refused to pay a balance of about $14.50 alleged to have been due. The company, claiming to act under its by-laws, advertised the stock for sale, and at the time designated caused the stock to be sold for just the amount at that time claimed to be due. It was bid in for the company, and a certificate of transfer made to the company. Plaintiffs acquiesced, and never afterwards asserted any rights as stockholders, or questioned the legality of the proceedings; but the company, according to the testimony of its officers, doubting the validity of its proceedings, disregarded and ignored them, and, without reinstating the plaintiffs as stockholders, elected to so regard them, and hold its own proceedings void. In pursuance of this policy, plaintiffs were charged pro rata for the cost of keeping the ditch in repair for three or four ensuing years. Plaintiffs failing to pay, this suit was brought to recover such assessments, including the $14.50 for which the stock was sold. The court found for the plaintiff, (defendant in error,) and such judgment is brought here for review. Chas. F. Caswell, for plaintiffs in error. Bucklin, Staley & Safley, for defendant in error. REED, J., (after stating the facts.) Upon the trial it was properly held by the court, inter alia, that the plaintiff by its own acts was estopped to claim the defendants as stockholders. They not having questioned the validity of the ex parte proceedings of the company, but acquiescing in them, it could not assert the illegality of its own proceedings, and reinstate the parties as stockholders. This conclusion is eminently correct, and needs no support from authorities. But in the findings of the court upon which its judgment was based there was serious error. After finding that on the 29th of November, 1890, the stock of the defendants was sold and passed to the company, and defendants ceased to be stockholders, it found that there was but one ditch, and that defendants, by reason of their ownership in the original ditch, were liable to assessment to keep the whole system in repair. As a physical fact, there was but one ditch; legally, there were two,-two distinct legal entities, that had never merged or become identical. See Nichols v. McIntosh, (Colo. Sup.) 34 Pac. Rep. 278. By the decree of the district court establishing priorities from Kannah creek, it was declared that the Brown & Campion ditch was entitled to priorities Nos. 5 and 8; that priority No. 5 belonged to Joseph Simineo, Dennis Sullivan, John J. McKay, and Daniel W. Col. lard, and was in quantity 8.6 cubic feet of water per second; and that priority No. 8 belonged to defendant in error and other parties, naming them, having a subsequent right to 22 feet per second. No action was taken consolidating the interests; both remained separate and distinct, and, as far as priority was concerned, the new ditch was subservient, being able to take water only in excess of the prior appropriation. If there was but one ditch, I am at a loss to know why it should be the second, instead of the first, and by what process the original became absorbed in the second, and lost its identity. The statute provides that to prevent multiplicity of ditches, when practicable, water shall be carried in a former ditch. This was done here. Repairs upon the new ditch from the terminus of the old were no more legally chargeable to the other proprietors than the putting in and harvesting a crop. The keeping the head gate and ditch to its original terminus in repair was the duty of both sets of owners, the expense to be adjusted upon an equitable basis. Beyond this the first proprietors had no interest and owed no duty. The error of the court was in not regarding the enterprises as two separate and distinct legal entities, with only an interest in common to the extent of the original ditch for purposes of repair. The right to levy assessments by the defendant in error could only, if at all, be legally predicated upon ownership of stock. When plaintiffs, by act of the company, ceased to be stockholders, neither they nor their associates in the original ditch, by reason of such ownership, could in any way be made liable for repairs beyond the limits of the ditch as originally constructed. If plaintiffs and associates failed to contribute their proper proportion to maintain the ditch from the head to the original terminus, no doubt an action for contribution would lie. Beyond that they owe no duty, legal or equitable. Several errors are assigned and are discussed in briefs and arguments of counsel which we do not find it necessary to determine. The error of the court in regard to the legal status of the parties and property is sufficient to warrant a reversal. The judgment of the court will be reversed, and cause remanded for a new trial upon the basis above indicated. (13 Mont. 465) STATE ex rel. BYWATER v. COOK, State YEAR-EFFECT. 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 treasurer to the general fund, as required by law, the state auditor cannot be compelled to issue a warrant, in favor of the person entitled to such reward, on the fund appropriated for rewards for such previous year. Application on the relation of Stephen By water for a writ of mandate to compel A. B. Cook, state auditor, to issue to relator a warrant for the amount of a reward offered by the governor for the arrest and conviction of certain criminals. Writ de nied. Ella L. Knowles, for relator. Alex. C. Botkin, for respondent. PEMBERTON, C. J. The affidavit in this case states that on the 29th day of November, 1892, the passenger train of the Great Northern Railway Company was stopped, and held up, and the express and baggage car attached to said train was robbed of valuable goods, etc., by three masked men, near Malta, in this state; that on the 30th day of November, 1893, Hon. J. K. Toole, the then governor of the state, by proclamation of that date, published and offered a reward of $500 for the apprehension and delivery to the sheriff of Dawson county of the person or persons guilty of said offense; that on the 1st day of December, 1892, affiant procured the arrest of one of the parties guilty of said offense, and after that day one other of said parties; that said guilty parties were thereafter duly convicted of said offense, and sentenced to the penitentiary of the state; that the legislature had theretofore appropriated the sum of $2,000 for each of the fiscal years ending, respec tively, on the 1st day of December, 1891, and the 1st day of December, 1892, for rewards; that there were in the hands of the state treasurer on the 1st day of December, 1892, $2,000, subject to the payment of said re ward offered by the governor; that in the months of December, 1892, and January, 1893, the state board of examiners notified the state auditor and state treasurer of the |