poll-book, and that, if any of these 86 persons were not actually present, then some one representing those persons voted in their names, and that this was done without knowledge on the part of the election board.

and Shirley is weighed, we are no longer left in doubt as to what the result should be. It is admitted that at least a part of the election board were at Crow's store on the evening of the 9th. It is admitted that they were all at the office of McAliney & The evidence to establish these facts runs Shirley later in the evening; and these, coupthrough more than 4,000 pages of record. led with the fact of the suppression of the The record contains a large amount of evi- number of votes pretended to have been dence not pertinent to the issues as now cast; the fraudulently preventing any innarrowed down. From this testimony spection of the poll-books and registration and admissions it is clear-First, that the books; the refusal to post upon the door of county clerk refused to permit an inspec- the polling-room, at the close of the election, tion of the registration books, or to give a the number of votes cast; the refusal to copy of the same to the friends of the town admit into the polling-room the friends of of Eminence; second, that the county clerk the opposing candidates and place; the rerefused to permit an inspection of the poll- fusal to permit Dr. Crow to see the number books after the canvass by the board of of votes on the poll-books when he charged county commissioners, or to furnish a copy the board with having stuffed the ballotof the same; third, that the board was box, when it was found that the box conorganized without any representation on tained more than 260 ballots; the fact that the part of the friends of Eminence, and Dr. Crow kept a tally at the door, which that after its organization the board was admitted by the board to have been wrongfully refused admission to the poll-kept during the day correctly, and that they ing-room during the reception of the votes corrected their tallies from it; the fact that of a representative of Eminence, or on be- the poll-books contained 86 more names half of any candidate for office on the Emi- that Crow's list,-all these tend to establish nence ticket; fourth, that at the close of the fact that on the part of the Ravanna parthe polls they wrongfully failed and refused tisans no pretensions to fairness or honesto post the number of votes cast on the ty were indulged in by the election board or outside of the door of the polling-room; the friends of Ravanna; and all this tends fifth, that the board wrongfully and fraud- to corroborate the testimony of Francis ulently contined to count, until after the re- and Shirley as to the manner in which the turns from the remaining five precincts fraud was perpetrated, and it all fairly eswere brought in, and the majority in favor tablishes the fact that fraud was perpetratof Eminence in such townships was ascer-ed, the ballot-box stuffed, and that the poll-. tained; sixth, that the board fraudulently concealed the fact that the poll-books contained the names of 346 voters until after the entire count was made; seventh, that the board fraudulently counted all the votes cast in favor of either Ravanna or Eminence, when they well knew that at least two ballots contained no name for permanent county-seat. On these points there can be no controversy. It is not even fairly denied in the evidence by the defendants or the election board.

books were a forgery. Whether Shirley's and Francis' testimony is true or not as to the time when this forgery was made is not material. The fact that it is done is established outside of and beyond their testimony; and, while they may have been mistaken as to the time when it was done, the evidence fairly establishes it as a fact. When the evidence is admitted that at least two tickets did not contain the name of either Ravanna or Eminence, yet with that knowledge the board counted those The remaining question is: Is there a pre- tickets for either one or the other of those ponderance of the evidence with the plain- places, their returns are impeached. When tin to establish the fact that the poll-books it is shown that at the close of the polls were forged, and the ballot-box stuffed? Dr. Crow's statement in answer to an inThe direct evidence of this fact is somewhat quiry was that 259 or 260 votes were polled, meager, and, did we have to determine up- and upon inquiry of the board they conon that testimony alone, we would hesi- firmed the statement, it is a strong pretate before finding a preponderance for the sumption against the return that was aitplaintiff. In the first place, the evidence of erwards made, showing 346 votes, instead Francis is not of itself satisfactory, and in of 260. Again, it is shown by the plaintiff many respects inconsistent, and his testi- that 96 voters testified that they voted at mony is strongly denied by the board and that election, their names appearing upon by the circumstances. Again, as to the di- the registration list and upon the pollrect evidence of Shirley, it must be remem-books and upon Crow's list, and they tesbered that his evidence at best is only the testimony of an accomplice in the crime; for whatever fraud was perpetrated he was as guilty as any of the others. His testimony was taken without cross-examination, and, while it corroborated that of Francis, it is denied by the board and many other persons; and, as we said before, had we to determine this question upon the testimony of Francis and Shirley alone, we would hesitate before finding for the plaintifi; but when all the evidence that tends to impeach the returns from this township is considered, and the evidence tending to support and bolster up the evidence of Francis

tified that they voted for Eminence, while the poll-books returned by the election board show but 83 so voting. These facts are strong circumstances tending to establish a corrupt purpose on the part of the election board and managers of the election to defeat the honest will of the majority of the voters of Garfield county. The defendants, however, insist that they have by a preponderance of the testimony estallished the fact that Dr. Crow's list is not correct, and that the return by the board is correct; and in their argument they say they have shown that before the election, on the day of the election, and afterwards,

PER CURIAM. It is so ordered; all the justices concurring.

KILLION V. VAN PATTEN. GREGORY V. DUNN.
GODDARD V. JOHNSON. HOVEY V. KEPHART. GUY
V. KNAPP.

(Supreme Court of Kansas. July 5, 1889.) 1 Commissioners' decision. Original proceeding in quo warranto.

Milton Brown, Rossington, Smith & Dallas, and J. M. Johnson, for plaintiffs. Johnson, Martin & Keeler and E. A. Austin, for defendants.

these 86 persons lived in Ravanna; that low that the returns from Center township they were there, and had registered, and must be disregarded so far as the defendwere legal voters; and they say when they ants are concerned, and the actual votes have done that, that it is not necessa- proven for Eminence be counted. So, placry for them to go further, and show that ing it upon the basis of the actual votes they voted at the election; that the inter- cast at the election, it can fairly be said est in the county-seat election at Ravanna that of all the votes actually cast Emiwas of such a character that it would have nence received a majority of such votes. It brought to the polls every person who was is therefore recommended that the perempentitled to a vote; and if they have shown tory writ of mandamus be allowed. that these men were all residents of Ravanna on the day of the election, then the presumption must be that they voted, and the returns correct. There is force to this argument, but their conclusions are not supported by the evidence. In the first place, they account for but a few of these people being present on the day of the election, and the evidence as to their having been present on that day is in many instances not positive. Persons testified that the man was there before election, and the witness thinks he saw him on election day; others, that there were such men there about election time, and before and after. CLOGSTON, C. On the 25th day of November, It is true, as to a few of these names, that 1857, plaintiffs commenced five separate actions, there was strong evidence showing them to original in this court, to oust from office Clarence have been present on the day of the elec- Van Patten, county clerk; F. W. Dunn, register of tion; but it must be remembered that of deeds; J. E. T. Kephart, probate judge; J. M. the 86 persons so sought to be accounted Knapp, county surveyor; and N. A. Johnson, for not one was produced to testify that he county commissioner, of Garfield county, Kan., was present and voted at that election. In entered into between the parties by which the eviand for damages; and afterwards a stipulation was fact, very few of them were accounted for. dence taken in the case of the state of Kansas on No one was able to tell where they came the relation of S. B. Bradford, Atty. Gen., v. Lewis from, nor where they went. They were W. Fulton and others, to compel Fulton to remove here a few days after election, or they were his office to the town of Eminence, and to deternot seen after the election, or they moved mine the permanent location of the county-seat in away directly after the election. These are Garfield county, should be used and taken as the evidence in this case. And as the decision in that the answers to the inquiry as to what be-action determined the validity of the election for came of those persons; and we think it a county officers in Center township, and the singular proposition for the defendants to opinion in that case states the facts, they will make that out of the population of a vil- be omitted here. The contention is as to who lage of a few hundred people, eighty-six was elected at that election to the several county men who, if they had lived in Kansas for offices named above. The returns, as canvassed six months, and in the county of Garfield and declared, show that Clarence Van Patten refor thirty days, prior to the 8th day of No-ceived 385 votes, and J. V. Killion 363 votes, for county clerk. The number received by Van Patten vember, could all go away and leave behind from Center township was 220; by Killion, 69; them no trace by which they might have showing a majority for Van Patten of 22. That been found, and at least some of them pro- Frank W. Dunn received 411, and D. F. Gregory duced at the trial of this case, when it is re- 404, votes for register of deeds; majority for Dunn, membered that the taking of the testimony Of the votes received by Dunn, 235 were from extended over a period from the 19th of Center township; and for Gregory, 76 from Center January, 1888, to the September following. and George W. Hovey 359 votes, for probate judge. township. J. E. T. Kephart received 424, votes, No expense or pains seem to have been Of this number ephart received 238 from Center spared by either the plaintiff or the defend-township, and Hovey 77 votes. J. M. Knapp reants to produce all the testimony possible ceived 426, and P. H. Guy 390, votes for county surtending to destroy or sustain the election veyor. Of these votes Knapp received 238 from at Center township. In fact, the perma- Center township, and Guy 75 votes. N. A. Johnson nent location of the county-seat depended for county commissioner of the second district. received 273 votes, and Daniel Goddard 190 votes, upon this testimony. The title of the sey-Of this vote Johnson received 243 votes from Ceneral county officers to the places to which ter township, and David Goddard 100. From this they were returned elected also depended it will be seen that if the vote cast at Center townupon this testimony; and yet, with all ship is not counted, each of the plaintiffs received this expenditure of time and money, and a majority of the votes cast in the county, and were the interest at stake, no person is produced entitled to the several offices. As before stated, to testify that he was one of the 86 persons, and voted at that election, and no positively taken in the county-seat case. Upon the same state of facts the vote of Center township testimony was given that any of the 86 act- was rejected and not counted, and for the reasons. ually voted on the day of the election. In there given the same action will be had in this the face of this showing it is hardly co- case. This leaves for each of the plaintiffs a masistent for the defendants to claim that jority, and entitled them to the several offices. there was a fair election, or fair returns made from Center township. Again, no attempt is made by the defendants to prove the number of votes actually cast in favor of Ravanna in Center township for the permanent county-seat. It therefore must fol

this action was to be determined from the testi

The evidence shows that Van Patten received for which he held the oflice, and for which the $1,970.85 as salary of county clerk during the time plaintiff J. V. Killion was entitled to have held

Publication delayed pending rehearing in State v. Malo, ante, 349.

the office; that Frank W. Dunn received as regis-ple v. Bissell, 19 Ill. 229; State v. Chase, 5 ter of deeds fees amounting to $585.80 while he so Ohio St. 535; Chamberlain v. Sibley, 4 Minn. held the office, and for which time D. F. Gregory 312, (Gil. 228;) Harpending v. Haight, 39 was entitled to have held the office and received the fees; that J. E. T. Kephart received as salary Cal. 189; People v. Hatch, 33 Ill. 9; Maras probate judge $320.10 for the term of office held bury v. Madison, 1 Cranch, 170. In the latby him, during which time plaintiff George W. ter case the chief justice declared: "It is Hovey was entitled to have held the office and re- not by the office of the person to whom the ceived the fees and saiary; that N. A. Johnson re-writ is directed, but the nature of the ceived $100 as county commissioner for the term of thing to be done, that the propriety or imoffice for which plaintiff David Goddard was enti-propriety of issuing a mandamus is to tled to have held the office and received the salary. be determined. Where the head of a deIt is therefore recommended that the judgment of the court be in favor of the plaintiffs, J. V. Killion, D. F. Gregory, David Goddard, George W. Hovey, and Prior H. Guy, and against the defendants, Clarence Van Patten, Frank W. Dunn, N. A. Johnson, J. E. T. Kephart, and J. M. Knapp, for the possession of the offices, and also against Clarence Van Patten for $1,970.85, Frank W. Dunn for $585.80, J. E. T. Kephart for $320.10, N. A. Johnson for $100, and against all the defendants for costs. PER CURIAM. It is so ordered; all the justices concurring.

BOARD OF DIRECTORS OF TERRITORIAL IN-
SANE ASYLUM v. WOLFLEY, Governor.
(Supreme Court of Arizona. July 8, 1889.)1

MANDAMUS-STATE OFFICERS.

Mandamus will not lie to the governor of a territory to sign a warrant on the treasurer for funds for a territorial asylum, at the instance of the directors of the asylum. PORTER, J., dissenting.

partment acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated that any application to a court to control in any respect his conduct would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, the writ may issue."

Here is an application by trustees of one of the territorial charities,-the insane asylum,-a branch of the executive department, and whose commission they hold as authority for the public duties they perform, seeking to mandamus the executive to perform a public duty. They have no personal vested rights. They ask as officers,not as individuals. No authority can be found where Application by the board of directors of mandamus has been issued against a govthe Territorial Insane Asylum for a man-ernor of a state or territory in such a case. damus, directed to the governor of the ter- It is a civil remedy for the protection of ritory, to sign a warrant on the treasurer purely civil rights. High, Extr. Rem. § 430 People v. Univerfor funds for the asylum. From the order et seq., and cases cited. sity, 4 Mich. 98; High, Extr. Rem. § 118 et granting the writ defendant appeals. Herndon & Hawkins, for plaintiffs. Clark seq., and cases cited. The act which is sought to be enforced upon the governor in Churchill, for defendant. this case is one that is included in the inherBARNES, J. It will be conceded that the ent functions of his office. He is the official governor, the head of the executive depart-head of the executive department of the terment of the government, is not amenable ritory, and, as such, the territorial, penal, to the judicial department by mandamus, and charitable institutions are subordinate to direct him in the exercise of any of the to him. These trustees hold his commispowers intrusted to him as such, whatever the degree or character of the discretion imposed upon him. The executive and judicial departments have separate and distinct functions, clearly marked out, and each is independent of the other. The authority to direct the governor by mandamus is denied by very high authority, and the difficulty of the enforcement of the writ has been suggested with great force. The court ought not to issue the writ unless it Without the is prepared to enforce it. means of enforcement the writ would be idle; yet to enforce it might deprive the territory of the executive, and public safety be jeopardized. Low v. Towns, 8 Ga. 360; Hawkins v. Governor, 1 Ark. 570. right to direct the governor has been limited to the performance of a mere ministerial duty, where such an act has been required of him by law, and where the act is such a one as might have been imposed upon any other person, and to enforce a vested private right. This was the limit in the case Even in of Kendall v. U. S., 12 Pet. 524. questions affecting private right, if the final decision is with the executive, and the act is a public act, he is independent. Peo

The

1 Publication delayed by failure to receive copy.

sion, and he must see that the laws are faithfully executed by them. One of the means of doing so is to be found in the act sought to be enforced in this case. With it the courts have nothing to do, as the gov ernor must take the reponsibility, and it cannot by him or against him be shifted upon the judicial department. The writ is denied.

WRIGHT, C. J., concurs, and will add his views. PORTER, J., dissents, and will add his views.

POWDER RIVER CATTLE Co. v. CUSTER
COUNTY.

(Supreme Court of Montana. Oct. 5, 1889.) NEW TRIAL-ACTIONS BY FOREIGN CORPORATIONS

-ACTIONS AGAINST COUNTIES.

1. The denial of a motion made before trial for judgment on the pleadings cannot be assigned as ground for a new trial, as it is not an "error of law occurring during the progress of the trial.

2. Failure of a foreign corporation to comply with Comp. St. Mont. div. 5, § 442, providing that all foreign corporations, before doing any business within the territory, shall file with the secretary thereof, and the recorder of the county wherein they intend to transact business, a copy of their charter, and a statement, does not preclude it from

suing to recover taxes paid under protest, and alleged to have been illegal, as such action is not based upon any act or contract of plaintiff in the

conduct cf its business.

3. Comp. St. Mont. div. 5, §§ 762-764, provide that no "account" shall be allowed by the board of county commissioners unless itemized and verified, showing that it is just and unpaid, but that the board may disallow any "account," in whole or in part; that county orders shall specify the nature of the "claim" for which they were issued; that whenever a "claim" shall be disallowed, or any tax-payer shall feel aggrieved by an allowance, he may appeal to the district court. In other sections the words "any account or claim against the county" are used, and the board is empowered to authorize the payment of the debt by an order on the treasurer, who can pay money only upon such order, except as otherwise provided by law. Held, that such statute applies to a claim for the repayment of taxes paid under protest, and that its presentation to the board was a condition precedent to the commencement of its action against the county.

Appeal from district court, Yellowstone county.

BACH, J., (after stating the facts as above.) Before the trial of this cause the defendant moved for judgment upon the pleadings. The court denied the motion, and the action of the court is enumerated as "one of the errors of law occuring during the trial," in the specification of errors attached to the statement on motion for a new trial. An order of the court made before trial cannot be an "error of law occurring during the progress of the trial,” and therefore is not an error of law which can be made a ground for a new trial. See Scherrer v. Hale, 9 Mont., ante, 151, (decided at this term of court.) But the defendant, upon the trial, objected to the admission of testimony, and the grounds upon which the objections were made are similar to those upon which the motion was based, and they are thus, by virtue of his exceptions and specifications of error, properly before this court.

The first claim made by the defendant atThe plaintiff is a corporation, organized tacks the right of the plaintiff to sue. Since under and by virtue of the laws of the king- the decision of the case of Paul v. Virgindom of Great Britain and Ireland, and at ia, 8 Wall. 168, the doctrine has been well the times mentioned in the complaint was settled that, subject to certain exceptions, doing business in the territory of Montana, a state may prescribe the terms upon which rearing, buying, and selling cattle, horses, foreign corporations, including corporaand live-stock generally. The plaintiff, tions organized under the laws of a sister during the year 1885, had a ranch in Custer state, shall carry on business within its county, Mont., and had cattle and horses borders. This rule, with the exceptions, is in said county and territory during that thus briefly and clearly announced by that time. The plaintiff has never filed a copy eminent jurist, Mr. Justice FIELD: "The of its charter or certificate of incorporation only limitation upon this power of the state either in the office of the secretaryof the ter- to exclude a foreign corporation from doritory or in the office of the recorder of Cus-ing business within its limits, or hiring ofter county, as required by section 442, div. 5, Comp. St., or any statement in connection with such copy, as required by law.1 The county assessor, in September, 1885, listed the property of the plaintiff at 10,000 head of cattle, valued by him at the sum of $200,000, and returned said list, together with the assessment roll for the year 1885, to the office of the county clerk of Custer county. The list aforesaid was made without a previous demand made by the assessor upon the plaintiff. In November, 1885, the board of county commissioners, sitting for the equalization of taxes, increased the assessment by adding "two thousand dollars on account of horses." Thereafter the assessment, valuation, and the tax, amounting to the sum of $4,954, was placed upon the tax-list, and was sent to the treasurer for collection. In May, 1886, the treasurer threatened to seize and sell the cattle of the plaintiff because the taxes had not been paid, and the plantiff, in order to avoid the threatened seizure, paid the amount claimed, said payment being made under protest. The plaintiff thereupon brought suit to recover the amount so paid by it, deducting the sum of $1,964, which, it admits, is properly due the defendant. The other facts appear in the opinion. The defendant appeals from the judgment, and from an order denying a new trial.

J. W. Strevell and Jas. H. Garlock, for appellant. Turner & Burleigh, for respondent.

fices for that purpose, or to exact conditions for allowing the corporation to do business or hire offices there, arises where the corporation is in the employ of the federal government, or where its business is strictly commerce, interstate or foreign." See Mining Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. Rep. 737, and cases cited. This rule is not questioned, and the validity of the territorial law is not attacked by the respondent, the plaintiff corporation. It maintains, however, that the law does not prohibit the maintenance of a suit by a corporation in this territory, because such corporation has failed to comply with the law. This position we think is correct. It is well settled that, by the comity of nations, a corporation erected by one sovereignty may carry on business in another, and may sue in its courts, (see TANEY, C. J., in Bank v. Earle, 13 Pet. 519;) and the statute of our territory takes away the former, and not the latter, power. Even upon a contract made in violation of the law, the question for the court to decide would be, not the right of plaintiff to sue, but the validity of the cause of action.

We think that counsel for defendant does not reason correctly upon this point. He looks to the penalty in order to discover what is prohibited by the law, instead of looking at the prohibition, and then applying the penalty. That which is prohibited is the conducting of business; and, when the law is violated, then all "acts and contracts" in the conduct of business are void.

Comp. St. Mont. div. 5, § 442, provides that all But these acts which are void are the acts foreign corporations shall comply with such requirements "before doing any business of any kind, and contracts of the corporation. The statnature, or description whatever within the terri-ute does not mean that a corporation cantory.' not protect its property; does not allow

Law, § 38. Our prohibitory statute must be interpreted with reference to this general doctrine and language affecting the capacity of a company to contract or acquire real or personal property, must not be enand independent power, that might be exercised by virtue of this general rule of comity which existed prior to the adoption of the statute. The question is, how far is this general rule modified or abridged by the statute? The prohibition extends to doing business before compliance with the terms of the statute. We do not think this an abridgement of the right of a foreign corporation to sue. It extends only to the exercise of the powers by which it may be said to ordinarily transact or carry on its business."

others to confiscate the property of the corporation. If the appellant is correct, if a foreign corporation which has failed to comply with section 442 cannot sue in our courts, then it cannot defend; because the defense of a suit is the "act" of the corpo-larged to prohibit the exercise of another ration to the same extent as is the prosecution of a suit. If it cannot defend, any suit, however unjust, however outrageous, can successfully be maintained against it; for it cannot testify, it cannot interpose an answer,since that would be an act. If it cannot sue, there will be no remedy in its behalf for property stolen from it. The law does not prohibit such a corporation from coming within the limits of our jurisdiction. It merely declares that it shall do no business until it complies with certain requirements. The prohibition applies to its business, which means the carrying out We are of the opinion that the statute of those purposes for which such corpora-prohibits merely the carrying on of busition was organized. All the cases cited by ness; that the penalty for violating the the appellant depend upon this theory. In no case cited did the court decide that the corporation had no authority to sue. The reason given in each case was that the contract was void as against the public policy, as declared by statute, and therefore could not be enforced. See Manufacturing Co. v. Ferguson, 113 U. S. 727-733, 5 Sup. Ct. Rep. 739.

The point is clearly raised when applied to cases for tort where there is no contract, and where the act complained of was directed against a corporation. In the case of Utley v. Mining Co., 4 Colo. 369, which was an action to recover damages for trespass, the defendant on appeal was the plaintiff in the court below, and was a corporation organized under the laws of New York. It had failed to comply with the laws of Colorado, which required the filing of a certificate similar to that mentioned in section 442, and which prohibits a foreign corporation from carrying on "any business" until such certificate is filed. The law is so similar to ours that one is led to believe that it is the statute from which ours is derived. In considering the question of the capacity of the corporation to sue, and fully admitting the validity of the law, and that it was prohibitory to the full extent of the terms thereof, the court say: "Ordinarily they [corporations] have the power to sue; the power to contract, limited to the objects of the company; and the power to acquire, as well as to hold and enjoy, real and personal property, limited to the necessities of the company. Taking language in its ordinary acceptation, a corporation does business by the exercise of its power to contract, its power to acquire and hold property, real and personal, and like powers. By the exercise of their corporate powers it carries on its corporate business in the ordinary meaning of the term. By their exercise it establishes its business relations, assumes obligations, and acquires rights. By its power to sue it does not seek to do business, as that term is generally understood, but enforce rights springing from business transactions. By the comity of states composing the Union a corporation created by the laws of one state may exercise all the enumerated powers in any other state, in the absence of any prohibitory statute or conflicting policy. Story, Const. v.22p.no.13-25

law is that the acts and contracts in the course of such business are void; but that the law does not deprive a foreign corporation of any right to sue, although the law may prevent the enforcement of any contract by such foreign corporations as refuse to comply with the law. It will be observed that the cause of action is not based upon any act of the plaintiff corporation, but upon the alleged illegal act of the defendant. It must be further remembered that the action is really based upon a tort, although, by a fiction of law, it is an action "sounding in contract."

We are of the opinion, as we have already intimated, that this action is not based upon any act or contract of the plaintiff declared void by the statute, becase it is not an act or contract made by the plaintiff in the conduct of his business; and that, as far as this point is concerned, plaintiff could maintain this cause of action.

The next point made by the appellant is that the plaintiff has never presented its claim to the board of county commissioners, which appellant claims is a condition precedent to the commencement of an action against any county. Appellant relies upon sections 762-764, div. 5, Comp. St.2 Counsel for respondent has cited many cases under statutes differing from ours, which hold that under those statutes no demand is necessary. The general principle has been settled by this court in a recent case, (see Bank v. Custer Co., 7 Mont. 464, 17 Pac. Rep. 551;) and the doctrine there announced is supported by cases in California under statutes similar to ours, (see Rhoda v. Alameda Co., 52 Cal. 350.)

Counsel for respondent also claims that the law applies strictly to "accounts," as that word is used in section 762; accounts involving items. With this we do not agree. Section 764 provides for the appeal

Comp. St. Mont. div. 5, $$ 762-764, substantially provide that no account shall be allowed by the board of county commissioners unless itemized and verified, showing that it is just and unpaid; that county orders shall specify the nature of the claim for which they were issued; and that whenever any claim shall be disallowed, or any tax-payer shall feel aggrieved by any allowance made by the board, as excessive, unjust, or illegal, he may ap peal from the decision of the board to the district court.