(8 Colo. 254)

EDWARDS v. POMEROY and others.

Filed April 7, 1885.

1. ATTACHMENT-UNDERTAKING FOR RELEASE OF PROPERTY.

Under the section of a statute providing that the sheriff should require, before releasing property attached, an undertaking conditioned that if the attachment should not be dissolved, and if the plaintiff should recover judgment in the action, the property so released should be redelivered to the proper officer to be applied to the payment of the judgment, or in default thereof that defendant and his sureties should pay to plaintiff the full value of the property so released, an action will not lie upon an undertaking for "the discharge and dissolution of said attachment." The statutory obligation becomes effective only if the attachment be sustained.

2. SAME.

Nor can a recovery be had upon such an undertaking, considered as a common-law obligation, for the reason that the condition upon which it was executed--the discharge of the attachment-was not complied with.

Error to the district court of Arapahoe county.

Lipscomb & Lipscomb, for plaintiff in error, ex parte.

BECK, C. J. This is an action upon an undertaking executed in an attachment proceeding. Plaintiff in error brought suit against M. M. Pomeroy, one of the defendants in error, causing an attachment to be issued and levied upon personal property, when the undertaking in question was executed by said Pomeroy as principal, and the defendants in error Whitaker and Russell as sureties, and delivered to the sheriff, whereupon he released the property attached. The cause then proceeded to trial, and the plaintiffs recovered judgment for the sum of $1,573.90 and costs of suit, execution issued, and the sum of $174.36 was collected thereon, and the writ was returned unsatisfied as to the balance. It is now sought by the present suit upon the bond to recover from the principal and sureties therein the amount remaining unpaid upon said judgment.

This instrument is declared upon in the complaint as a statutory undertaking in attachment, but it is neither set out in hæc verba, nor made an exhibit in the pleading. The complaint purports to state its legal effect, alleging that said Pomeroy expressed to the sheriff his desire to have the property discharged and released from the attachment writ, and that for this purpose he and the said sureties executed and delivered to the sheriff the said undertaking, "whereby they and each of them undertook, promised, and agreed that they would, on demand, pay to the plaintiff the amount of any judgment that might be recovered against the said Pomeroy in said attachment suit, not exceeding the sum of twenty-five hundred dollars." The defense interposed was that the defendants never executed an undertaking of the purport and effect declared on.

Upon the production of the bond at the trial below, and the offer to introduce it in evidence on the part of the plaintiff, it was excluded by the court, on the ground that it had not been described in the complaint according to its legal effect. The plaintiff was thereupon nonsuited. These rulings are assigned for error, and raise the prin

cipal questions involved in the case. Section 114 of the chapter on "Attachments," in the Code of Civil Procedure, (Comp'n, 188,) being section 112 of the original act, provided that the sheriff should require, before releasing property attached, an undertaking conditioned, that if the attachment should not be dissolved, and if the plaintiff should recover judgment in the action, the property so released should be redelivered to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and his sureties should pay to the plaintiff the full value of the property so released. Upon inspection of a copy of the instrument sought to be introduced in evidence as the undertaking sued on, we find that it contains no such covenants or conditions as are required of the statutory undertaking, or as by the complaint this bond is alleged to contain. Its purpose, as there stated, was not to effect the release of the property attached, but "the discharge of said attachment." It was not conditioned that if the attachment should not be dissolved, and if the plaintiff should recover judgment in the action, the property released should be redelivered to the officer, to be applied to the payment of the judgment, and in default thereof that defendant and his sureties would pay to the plaintiff the full value of the property, but the condition is, "if the said attachment be dissolved and discharged, that we will, on demand, pay to the plaintiff the amount of any judgment that may be recovered against the defendant not exceeding the sum of twenty-five hundred dollars."

Counsel for plaintiff in error are correct in their interpretation of the statute, and in the views expressed respecting the purpose and effect of the statutory undertaking required to be taken by the sheriff in cases of this character. The design and effect of such instrument is to release the property attached, but not to discharge the attachment. The obligation becomes absolute if the attachment be sustained, and the plaintiff recover judgment. In such case, the property must either be returned to the officer, or the value thereof must be paid to the plaintiff. It is plain that this undertaking does not conform to the statute, and it is not enforceable in this proceeding as a statutory obligation. Upon its face the obligation is based upon the discharge of the attachment, whereas, the statutory obligation only becomes effective if the attachment be sustained.

The complaint in this case is framed on the theory of a right to recover because the attachment was not discharged, and the record recites the admission that it was not discharged. The suggestion of counsel to the effect that the word "not" was inadvertently omitted, and should be supplied by the court, between the words "be" and "dissolved," in the phrase "do undertake that if the said attachment be dissolved and discharged, that we will, on demand, pay to the plaintiff," etc., is not tenable. We find nothing in the instrument supporting such an inference.

In support of the theory that it was the intention of the defendants

to execute a statutory obligation, plaintiff's counsel point out the following sentence contained in the instrument offered in evidence: "And whereas, defendant desires the discharge of said attachment on giving security according to section 110, p. 47, amended." The latter part of the above sentence is unintelligible, and there is nothing in the record to explain its meaning. No authorized edition of code or statute contains any provision for the giving of security at the page and section mentioned. It is also clear that no recovery can be had upon this bond, considered as a common-law obligation, for the reason that the condition upon which it was executed-the discharge cf the attachment-was not complied with.

Judgment affirmed.

(8 Colo. 307)

PEOPLE ex rel. CLEMENT and another v. SPRUANCE, Auditor, etc. (Two Cases.)

Filed May 9, 1885.

1. CONSTITUTIONAL LAW-EMPLOYES OF LEGISLATURE.

The requirement of the constitution that the legislature should provide, by law, the number, duties, and compensation of its officers and employes, is mandatory, and is a peremptory direction to the general assembly; and when a law has been enacted providing compensation for such officers and employes, it cannot be legally ignored for resolutions separately adopted by the two houses of the assembly, giving a higher compensation than that therein prescribed, nor can such higher compensation be provided for in the general appropriation bill. 2. SAME-MANDAMUS TO AUDITOR.

The writ of mandamus should never issue unless the party applying for it shows a clear right to have the thing sought by it done in the manner and by the person sought to be coerced. It must not only be in the power of such person, but it must be his duty, to perform the act.

3. SAME.

Where the compensation provided by law for services of officers, employes, etc., of the legislative assembly has been paid, the auditor cannot be compelled by mandamus to audit and pay any increased or extra compensation attempted to be given by resolution of the two houses of assembly, or by the general appropriation bill providing therefor in pursuance of such resolutions.

R. H. Gilmore, A. E. Pattison, Chas. G. Clement, and L. Twitchell, for relators.

Theo. H. Thomas, Atty. Gen., and Thornton H. Thomas, for respondents.

BECK, C. J. These cases are applications of the respective relators for writs of mandamus to the state auditor to compel him to audit claims alleged to be due them from the state, and to issue warrants upon the treasurer for the payment thereof. The applications are submitted upon an agreed statement of facts, and the facts being substantially the same in both cases, as well as the legal questions arising thereon, the cases may properly be considered together.

The relator Clement was appointed clerk of the judiciary committee of the senate of the Fifth general assembly on the tenth day of January, 1885, being the fourth day of the session of said body, and

served in that capacity for the period of 87 days. The appointment was made by the chairman of said judiciary committee, by virtue of a resolution of the senate, adopted on the third day of the session, authorizing said chairman to employ such clerical assistance as, in his judgment, was necessary. He informed the relator that his compensation would be fixed by resolution at the sum of six dollars per day. The relator served 87 days, and at the close of the session the senate, by resolution prescribing the compensation of its officers and employes for the session, fixed his compensation at the rate of $6 per day, amounting in the aggregate to the sum of $522. The auditor, acting under the advice of the attorney general, audited a demand on account of said services for the sum of $348, being at the rate of $4 per day, and issued a warrant upon the treasurer for the payment of that sum, rejecting as illegal the balance of the claim, which amounted to the sum of $174. He now prays that the auditor be compelled, by a peremptory writ of mandamus, to issue a warrant for the last-mentioned sum of money.

The relator Tucker was, by a resolution of the house of representatives, elected or appointed docket clerk of that body on the first day of its recent session, January 7, 1885, and served 90 days. On the thirty-first day of March (one week before the close of the session) the house adopted a resolution fixing the compensation of its employes, giving to the said Tucker $6.50 per day for the entire session, amounting in the aggregate to the sum of $585. Upon this claim the auditor allowed and issued his warrant for the sum of $420, leaving a balance claimed to be still due and unpaid of $160, for the allowance of which balance a like peremptory writ is prayed.

The position of the attorney general and his associate counsel, in respect to the action of the two houses of the general assembly on the subject of these claims, is that it was repugnant to sections 27 and 28, art. 5, of the state consitution, and likewise in conflict with an existing statute on the subject, viz., "An act to prescribe the number, duties, and compensation of the officers and employes of the general assembly, approved November 23, 1876," (Gen. St. 523;) that said employes became entitled to the compensation provided by said statute, and to no other or greater compensation; that the adoption of said resolutions were unconstitutional and illegal acts, and being so, the fees therein prescribed are incapable of enforcement against the state.

The facts being conceded, we will proceed at once to the delicate duty of determining the law applicable thereto. To decide whether an act of the law-making assembly can be sustained, or must be declared void for repugnancy to the constitution, is always a delicate duty. It is one imposed, however, by the state upon the courts, and must be performed with fidelity. "The constitution," says Mr. CooLEY, "is the fundamental law of the state, in opposition to which any other law, or any direction or order, must be held inoperative and void." Cooley,

Const. Lim. 56, 57. Whether the two houses of the general assembly can, by a separate resolution of such house adopted at or near the closing hours of their respective sessions, fix the compensation of their officers and employes at a higher rate than allowed by an existing statute, involves a question of constitutional law. A further inquiry is whether a clause in the general appropriation bill, appropriating money to pay the excess of compensation above the amount prescribed by statute, obviates the constitutional difficulty. Section 27, art. 5, of the constitution provides as follows:

"The general assembly shall prescribe by law the number, duties, and compensation of the officers and employes of each house; and no payment shall be made from the state treasury, or be in any way authorized, to any person except to an acting officer or employe elected or appointed in pursuance of law."

The regularity of the employment is conceded; so no question arises upon the latter clause of this section. Respecting the first clause, the position is taken that it is directory merely, and that a failure to comply strictly with the provision is not fatal. This point was argued for the relators largely upon the principles of statutory con.struction, and most of the authorities cited are of this character; for example, that a statute is directory when its provisions contain mere matter of direction and nothing more; that when a statute directs certain proceedings to be done in a certain way, or at a certain time, and the form or period does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being the essence of the thing required to be done. Potter's Dwar. St. 222, and note on page 226.

These are sound rules of statutory construction, and if applicable to the construction of constitutional provisions, which, in our judgment, they are not, still the requirement that the legislature should provide by law the number, duties, and compensation of its officers and employes being a constitutional provision affecting public rights, and essential to their due protection, should be held mandatory. Greater importance is to be attached to a provision of this nature, when incorporated into the fundamental law, than when enacted as a rule of statutory obligation only. We think it was designed to be a peremptory direction to the general assembly. Upon the construction of constitutional provisions of this character, Judge COOLEY says:

"The courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes of the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government at all times shape their conduct. * If directions are

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