maintains direct relations with a common principal, the people. If such agency were to overstep the bounds of the authority which it is commissioned to exercise, and attempt to act prejudicially to the rights of persons, it would be the duty of the courts to declare such acts void; but so long as it remains within the prescribed orbit of its power, no matter how indiscreet or impolitic its acts may be, parties aggrieved thereby must seek redress elsewhere than in the courts of justice. In such cases they will be compelled to submit their cause. to that tribunal which must determine all such matters,—the bar of public opinion.

The exaction of $500 a year from the licensee is also made a ground of objection against the ordinances; but the courts certainly cannot interfere with them on that account. The right to provide a license tax in such cases has been exercised from time out of mind. The amount required to be paid is necessarily left to the determination of the common council, and the courts have no jurisdiction in the matter unless the amount would be fixed at so large a sum as to make it evident that it was intended as a prohibition of the sale of liquor, or suppression of bar-rooms and drinking-shops. Courts ordinarily have no jurisdiction regarding the exercise of political powers. It is only when the organization charged with the administration of such powers has exceeded its authority that courts of justice are entitled to interfere.

Another ground of objection is the clause in each of said ordinances which provides that any person who shall violate them shall be deemed guilty of a misdemeanor. I have not discovered any authority in the city charter authorizing the common council to declare violations of ordinances a misdemeanor. Subdivision 36 of section 37 empowers the council to provide for the punishment of a violation of any ordinance of the city by fine or imprisonment not exceeding $300 or 90 days, or both, or by a forfeiture or penalty not exceeding $300; and that is as far as I can see that the charter gives the council power in the premises. But it amounts to nothing whatever. No one can be prejudiced by it except the council itself. It, perhaps, reflects somewhat upon the intelligence of the members of that body. The appellant's counsel also animadverted upon other sections of said ordinances, but I fail to discover how they affect the appellant's case. Sections 2 and 4 thereof provide for the punishment of certain acts that may be committed by any keeper of any bar-room or drinkingshop, and the consequences that shall attend the same, among which will be the forfeiture of his license. The appellant was not accused of the commission of the acts there referred to, nor do we know that any one else will ever be. Those sections have no bearing whatever upon the other sections of the ordinances. They may be an absolute nullity, and sections 1 and 5 valid. If they were stricken out the ordinances would still be complete. Sections 1 and 5 contain all the provisions that can have any possible bearing upon the appellant's

case. The other sections (2, 3, and 4) are intended to regulate the keeper of a bar-room, or drinking-shop, who has obtained a license. The appellant did not have any; and there was no necessity for him to be exercised about the forfeiture of licenses, nor for this court to speculate upon the legal consequences that would follow in case of the violation of the terms of a license.

I am of the opinion that section 1 of the original ordinance, under the construction before indicated, was valid; section 5 of that ordinance was confessedly valid; that neither of said sections has been changed, repealed, or affected by amendment, except so far as the common council could lawfully establish the amendatory provisions contained in the latter ordinance. I am also of the opinion that the appellant is not in a situation in this case to question the validity of said provisions. The only way he could question them would be to pay the license money to the treasurer of the city, take his receipt therefor, tender it to the auditor and demand the license, and, upon the latter's refusal to issue it, in consequence of the bond not being filed, to apply for a mandamus to compel its issuance; and that without such payment and tender of receipt the appellant has no right to be heard as to the validity thereof. This court is not even informed in this proceeding whether the auditor or common council exacted a compliance with the amendatory portion of said section 5. But, in any event, the decision of this case would necessarily be the same, whether said provisions are valid or a nullity.

Some other questions were presented upon the argument, as against the validity of the said ordinances, and a point was attempted to be made as to the charter of the city not having been constitutionally enacted by the legislative assembly; but, as these questions have been decided by this court adversely to the appellant's position in other cases before the court involving the legality of said charter and ordinances, I shall not stop to consider them.

The judgment appealed from should be affirmed.

WALDO, C. J., did not sit in the case.

(11 Or. 526)

OSBORNE V. GRAVES.

Filed March 9, 1885.

1. PRACTICE-SUPREME COURT-JUDGMENT ROLL-REFEREE'S REPORT. The fact that a referee's report is found in the judgment roll, and a copy has been certified to the supreme court as a part of the transcript, does not authorize that court to consider it any more than it would any other paper not properly a part of the transcript.

2. SAME-STATUTE LAW OF OREGON-QUESTIONS AND METHODS ON APPEAL.

The statute (section 533, Civil Code) declares what papers shall constitute the transcript, and provides that upon appeal from a judgment the same shall only be reviewed as to questions of law appearing upon the transcript.

3. SAME-WHAT COURT MAY TRY.

The court has no right to examine any papers in the transcript except those which legally constitute it.

4. SAME-DEMURRER-FAILURE TO DEMUR-EFFECT.

Complainant having neglected to demur to respondent's answer, every reasonable intendment should be given in its favor by the court.

5. SAME-INSUFFICIENCY OF PLEADING QUESTION MUST BE RAISED IN LOWER

COURT.

To render a judgment erroneous in consequence of the insufficiency of a pleading that supports the judgment, there must be a total defect of some material averment. It may be faulty because of its uncertainty, but that must be taken advantage of by motion in the lower court. It cannot be raised for the first time on appeal.

Appeal from Marion county.

Bonham & Ramsey, for appellant.

W. G. Piper and N. B. Knight, for respondent.

THAYER, J. This appeal is from a judgment of the circuit court for the county of Marion, rendered in an action at law. The appellant sued the respondent in said circuit court, to recover an alleged balance of $196.85 of money belonging to her, received by respondent from Mr. W. J. Herren; also an alleged balance of $20.65 for money loaned; and for the use of a harvester. The respondent filed an answer, denying the indebtedness; and set up as a further answer that one Lakin S. Osborne, husband of appellant, died at said county of Marion on the seventeenth day of December, 1881, leaving a will, in and by which he bequeathed to her all his personal estate, devised to her all his real estate for life, and appointed her executrix of the said will. That subsequently thereto, and in December, 1881, she employed the respondent as her agent for the transaction of all her business, including such business as she would have to perform as executrix of the said will; and at the time of the employment agreed to pay respondent a sum of money equal to the per centum which she would be entitled to receive under the law for the services as such executrix of said estate. That the estate, as accounted for in appellant's final account, amounted to the sum of $9,518.57. That the per centum allowed by law, as compensation to appellant as such executrix, amounted to the sum of $380.39. That in pursuance of said employment respondent, as the agent of appellant, transacted all of her business, including her business as executrix, and continued to perform said service for her from December, 1881, until about the eighth day of August, 1882, when she was removed, at her own request. That during that time nearly all the business of said estate was settled up. That for said services the appellant was indebted to him in the sum of $380.37.

It was further alleged in said answer that between December, 1881, and August 8, 1882, the respondent received from appellant, as her said agent, the sum of $890, and disbursed the sum of $771.20, leaving a balance of $118.80 over and above expenditures. The respondent also set up as a further counter-claim several items for work

and labor performed by him for appellant, amounting to $21.25, and claimed a balance due him of $282.82.

The appellant filed a reply to the new matter of defense and counter-claim set out in respondent's answer, in which she denied in substance that she was removed from her trust as executrix at her own request; denied the employment of respondent to transact the business referred to in said counter-claim, and any promise to pay him anything therefor; denied that the per centum allowed by law as compensation to said executrix amounted to any sum whatever, or that she was allowed any sum therefor, or that he transacted any business, except gratuitously, relating thereto; denied any indebtedness on account thereof; and denied directly or qualifiedly all the allegations set forth in said new matter, except that the allegation "that said estate, as accounted for in appellant's final account, amounted to the sum of $9,518.51," is not denied specifically or at all, unless it can be claimed to be denied in the general denial of the alleged per centum allowed by law. And the allegation "that during that time nearly all the business of said estate was settled up," is only denied in the language of the allegation, and without any affirmative averment as to what part of said business was unsettled.

The appellant also set forth in her reply some new matter, but which it is not necessary to particularly refer to for the purposes of this decision.

The case was referred to J. T. Gregg, Esq., an attorney at law, to take the testimony and report his findings of fact and law to the court. The said referee thereafter made his report thereon in favor of the respondent for the sum of $148.57, which having been confirmed by the circuit court, the judgment appealed from herein was entered in his favor and against the appellant. The case comes here upon the record without any bill of exceptions, and we have no means of ascertaining whether the errors assigned in the notice of appeal are well founded or not, except from an inspection of the transcript of the pleadings and judgment. A copy of the referee's report has found its way into the transcript, but it is quite doubtful, in my mind, whether we have any right to consider it for any purpose. It is certainly no part of the judgment roll, as that only includes, at most, "the summons and proof of service, the pleadings, bill of exceptions, all orders relating to change of parties, together with a copy of the entry of judgment, and all other journal entries or orders in any way involving the merits and necessarily affecting the judgment." Section 269, Civil Code. "The transcript is a copy certified by the clerk of the roll, or final record of the pleadings, orders, papers, and journal entries that constitute such roll or record, together with a copy of the notice of appeal, and any order enlarging the time to file the transcript, and a certificate of the filing of the undertaking, whether by the appellant or respondent, the names of the sureties therein, the amount thereof, if the same is specified, and if given by the appellant,

whether the undertaking is given for an appeal only, or a stay of proceedings also." Section 531, sub. 1, Civil Code. It is not a journal entry, as it is only required to be filed. Section 225, Civil Code. It

is not in that respect like the decision of the court where a jury trial has been waived, as that is required to be entered in the journal. Section 216, Civil Code. So, also, is the verdict of a jury under the direction of the court. Section 210, Civil Code.

The fact that the report is found in the judgment roll, and a copy has been certified to this court as a part of the transcript, does not authorize us to consider it, any more than it would any other paper not properly a part of the transcript. A habit has grown up with the clerks of the circuit courts to include papers in the judgment roll, and to transmit copies thereof to this court, that do not belong to judgment rolls, or are any legitimate part of the transcript. Copies of subpoenas to witnesses have frequently been sent here as a part of the transcript on appeal. The transcript in this case includes the copy of an affidavit for an attachment undertaking, and of the attachment, together with the sheriff's certificate of the service of the attachment; also a bill of costs and disbursements in the circuit court. These papers can certainly serve no purpose, except to incumber the records and burden litigation with unnecessary fees. The statute declares what papers shall constitute the transcript, and provides that upon appeal from a judgment the same shall only be reviewed as to questions of law appearing upon the transcript. Section 533, Civil Code. The court has no right to examine any paper in the transcript, except those which legally constitute it. Freem. Judg. §§ 78, 79.

The appellant's counsel claims two points of error on the appeal. One of them is that the first counter-claim set up in respondent's answer is insufficient; that the matter there set out shows that the respondent was to perform an entire service before he would be entitled to the compensation which he alleges was agreed upon between him and the appellant on account of it, and that it shows further that he did not complete the same; that he would not be entitled to compensation for a partial performance, without averring a readiness and willingness to perform the entire work, and that he was prevented from completing it by the act of the appellant; that in any such case of partial performance the party can only recover pro tanto for the services performed, and damages for the breach of the contract on the part of the other party in preventing him from completing it.

We have no particular fault to find with the counsel's propositions of law in the abstract, but we are unable to agree with him in their applicability to the facts of this case. The respondent undertook, it is true, to transact all the appellant's business; but whether it included other than that pertaining to her business as executrix is not clear, nor, as I view it, is it important. There must certainly have been a limit intended as to the time the respondent was to continue to transact her business. It might be inferred, I think, that in any event, he