thereof and made no attempt to comply with interest on the McDonald order. Every lawits terms. It is evident to me, and I think yer knows that, in the absence of an express very clear from reading the opinion of the agreement, interest is purely a creature of Court of Appeals, that it only intended to statute, and one claiming interest must place place a construction upon the statute for the his finger on some specific law authorizing guidance of the lower court in another trial it. There is no provision for interest in the de novo, and reversed and remanded the case statute creating the liability of the city in generally. If it had intended the lower this case, and its liability to pay interest, in court should, upon receipt of the remittitur, the absence of an express agreement, on enter a final judgment for a definite amount any balance due from the contractor to the based simply upon the opinion, judgment, materialman is based upon chapter 71, R. S. and remittitur of the Court of Appeals, it 1908. Section 3162 thereof, upon the allowseems inexcusable that it did not give such ance of interest generally to creditors, prospecific directions to the lower court. It vides that creditors, where there is no agreegave no such directions. I think the majori- ment as to the rate, in certain specific inty opinion arbitrarily reads such intent into stances shall be allowed 8 per cent. per anthe opinion of the Court of Appeals. The num. Section 3164 provides that county orcity has a right, on a trial de novo, to con- ders and warrants, town and city orders and test the matters at issue in the pleadings, warrants, and school orders and warrants governed by the law of the case announced shall bear interest at 6 per cent. per annum by the decision of the Court of Appeals. The from the date of presentation until there is contractor could not forestall this right and money in the treasury to pay them. In the obligate the city to pay a liquidated amount Montezuma Case, 39 Colo. 207, 89 Pac. 50, we with interest thereon by giving an order on held that section 3162, regarding the general the city. I think it erroneous to measure the liability of creditors to pay interest, did not city's liability by an order given by McDon- apply at all to counties; that the liability of ald to the lumber company against the city counties to pay interest is governed excludrawing 8 per cent. interest, in the face of sively by section 3164. The provisions of a denial by the city of the allegations of the this section 3164 concerning towns and cities, complaint. According to the decision of the counties and school districts, are identical. Court of Appeals, the lumber company's right It makes no distinction. It says that city orof action against the city, if any, is based ders and warrants, like county orders and purely upon a statutory liability, and not up- warrants, shall draw 6 per cent. interest from on an order given by the contractor. When date of presentation until there is money in the case was reversed and remanded without the treasury for their payment. Therefore further directions except to proceed in harmo- the reason given in the Montezuma Case for ny with the opinion, I think it stood for trial holding that it was not intended by the statde novo upon the issues presented by the pleadings, as originally. Where it is intendedute that obligations of the county other than the trial court should enter a final judgment disposing of the case upon the record as it stands, the practice in all well-regulated courts of review is for the appellate court to direct specifically the kind of judgment to be entered. Johnson v. Bailey, 17 Colo. 59, 28 Pac. 81; Dickson v. Bank, 11 Colo. App. 154, 52 Pac. 745; Talcott v. Delta Co., 19 Colo. App. 11, 73 Pac. 256; Cahn v. Tootle, 58 Kan. 260, 48 Pac. 919. those mentioned in section 3164 should draw interest under section 3162 applies with equal force to towns and cities and school districts. The statutory liability of the city for the balance due the materialman from the contractor is an obligation of the city other than that mentioned in section 3164, and if section 3162, regarding interest generally, is not applicable to counties, then from the reasoning in the Montezuma case, it does not 3. According to the law of the case as an- apply to cities. The McDonald order, calling nounced by the Court of Appeals, the suit is for 8 per cent. interest, was not a contract based upon a specific statute, and the measor agreement made by the city. The city had ure of the city's liability is the unpaid bal- nothing to do with it. It in no way bound ance, if any, which the contractor owes the the city to pay either the principal or inter lumber company for material, not the order est mentioned therein. Its liability is not given by McDonald. The complaint alleges upon the order, but for the unpaid balance, that the balance is $3,451.92, which, plus $25,- if any, for material, and whether it was lia19 interest that was added, amounted on No- ble or not for interest on such balance devember 5, 1903, to $3,477.11, for which amount pends upon the provisions of section 3164, McDonald on that date gave an order, draw- under the authority of the Montezuma Case, ing 8 per cent. interest. The lower court and not upon section 3162. It surely cannot allowed the face of this order and interest be successfully contended that section 3164 from date at 8 per cent., making an aggregate judgment of $6,277; and the question is presented: In the event there is a balance due the lumber company from McDonald for which the city is liable, must it pay interest does not place counties, cities, towns, and school districts upon exactly the same basis and apply to them alike with regard to the payment of interest; and, if counties are not liable for interest under section 3162, then pass on the question, prevented its review on ap- 706-REVIEW-AF FIDAVITS ON MOTION FOR NEW TRIAL. Where the affidavits in support of a motion for a new trial were not preserved in the bill sider them. of exceptions, the Supreme Court could not con[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2944-2947; Dec. Dig. 706.] 6. APPEAL AND ERROR TION FOR NEW TRIAL. 662-RECORD-MO understand the majority opinion to hold that in their governmental capacity cities are controlled by section 3164 in regard to payment of interest, but in their ministerial capacity they are governed in this regard by section 3162. The statute makes no such distinction, and the Montezuma Case expressly holds that obligations of the county other than those mentioned in section 3164 do not draw interest under section 3162. I cannot consistently say that counties are governed wholly by section 3164 in the payment of interest, but that cities in their ministerial capacity are governed by section 3162 when the statute places each upon exactly the same footing with regard to the payment of interest, without making such distinction or any distinction whatever. I think, if we were right when we said that the obligations of counties other than those mentioned in section 3164 do not draw interest under section 3162, that 7. APPEAL AND ERROR 671-DISCRETION OF we are wrong now when we draw a distinc- TRIAL COURT APPLICATION TO BRING IN WITNESSES. tion in the section as to cities and say they are controlled by section 3164 in their gov-nesses for examination as to the alleged misconAn application for process to bring in witernmental capacity, but by section 3162 in duct of the opposing party during the trial is a their ministerial capacity as to the payment matter within the discretion of the trial judge, of interest, without overruling the doctrine and, without any statement in the application as to what the proposed witnesses would testify announced in the Montezuma Case. to, the Supreme Court cannot say that its refusal of the application was an abuse of discretion. EAST DENVER MUNICIPAL IRR. DIST. (Supreme Court of Colorado. Jan. 3, 1916.) 1. JURY 70-OPEN VENIRE-STATUTE. Rev. St. 1908, § 3685, authorizing the court to order the issue of an open venire when the county commissioners fail to return a list, etc., is not exclusive of the right to secure a jury through the issue of an open venire, instead of drawing from the regular list. [Ed. Note. For other cases, see Jury, Cent. Dig. §§ 310-330, 340, 350; Dec. Dig. 70.] 2. APPEAL AND ERROR 922-PRESUMPTION -BURDEN OF PROVING ERROR-JURY. Even if an order for the issue of an open venire could issue only when the commissioners fail to return a list, etc., as prescribed in Rev. St. 1908, § 3685, a party objecting to the issue of an open venire would be bound to show affirmatively that the necessary conditions did not exist, in order to overcome the presumption in favor of the regularity of the proceedings below. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3723; Dec. Dig. 922.] 3. APPEAL AND Error 200-REVIEW-OB JECTION. The objection to the court's order for the summoning of a jury of freeholders, not made below, will not be considered when first made on appeal. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. 200.] 4. EMINENT DOMAIN 262-REVIEW-FAILURE TO STATE OBJECTION. An order in a condemnation proceeding for the jury's view of the premises, without requiring respondent to advance the expense, to which the petitioner saved an exception, but did not state any ground of objection, so as to advise the trial court thereof and give it an opportunity to While the motion for a new trial is, by statute, a part of the record, the allegations of fact therein are no more to be accepted as true, without proof, than are the averments of a pleading. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. 662.] [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.] 8. APPEAL AND ERROR 581-RECORD-ADMISSION OF EVIDENCE. Where the abstract of record does not show either objection or exception to rulings on the admission and exclusion of evidence, the Supreme Court will not look beyond the abstract, and hence cannot consider the alleged errors. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2575-2581, 2599, 2601; Dec. Dig. 581.] 9. APPEAL AND ERROR TELLER, J. The plaintiff in error instituted a proceeding to condemn a right of way For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes across the land of the defendants in error, and the question as to the compensation to be allowed for the right of way was tried to a jury. [1, 2] It is first alleged that there was error in the summoning of a jury, in that the jury was secured through the issue of an open venire, instead of being drawn from the regular list, as jurors were drawn for service at the beginning of a term. they are not preserved in the bill of exceptions, we cannot consider them. There is therefore nothing in the record which establishes that the things were done which are alleged to have constituted misconduct on the part of respondents. While the motion for a new trial is, by statute, a part of the record, the allegations of facts therein are no more to be accepted as true without proof thereof than are the averments of a pleadCounsel urge that there was no showing ing. For these reasons we cannot consider made of facts which would authorize the the alleged error in refusing to grant a new court to order the issue of an open venire, | trial. the conditions under which it may issue being prescribed by section 3685, R. S. 1908. If counsel were correct in their assumption that the order could issue only in the cases mentioned in the statute, they would still be obliged to show affirmatively that the necessary conditions did not exist in order to overcome the presumption in favor of the regularity of the proceedings below. Giano v. People, 30 Colo. 20, 69 Pac. 504. But the method prescribed by the statute is not in fact exclusive, as this court has distinctly held. Id., 30 Colo. 26, 69 Pac. 504. [3] It is next objected that the court should not have ordered a jury of freeholders to be summoned; but, as this objection does not appear to have been made below, we are not called upon to consider it. [7] It is also urged that the court erred in not granting the petitioners' application for process to bring in witnesses for examination as to the alleged misconduct of respondents. That was a matter within the discretion of the trial judge, whose knowledge of the entire case would qualify him to determine as to the necessity for such process. People v. Phelan, 123 Cal. 551, 56 Pac. 424. In the absence of any statement in the application as to what the proposed witnesses would testify, we cannot say that the court abused its discretion in denying the application. [8] A large number of errors are assigned upon the admission and the rejection of tes timony, but in only three instances does the abstract of record show either objection or We are unable to appreciate counsels' con- exception to the rulings sought to be reviewtention that there was error in the sustaining ed. We have many times held that in such of challenges to jurors on the ground that cases we will not look beyond the abstract, they were not freeholders. The statute gives and hence cannot consider the alleged errors. to parties the right to demand a jury of freeAs to the three cases covered by the abholders and the court, in sustaining the chal-stract, we are of the opinion that the rulings lenges, merely enforced the right given by law. [4] It is also urged that the court erred in making an order permitting the jury to view the premises sought to be condemned without requiring the respondent to advance the expenses of the examination. From the record it appears that when the order was made, the attorney for the petitioner saved an exception to it. No ground of objection was stated. It is clear that if the ground now urged had been stated at that time, the order for an advance of the jury's expenses might, and probably would, have been made. Fail ure, in such a case to advise the trial court of the ground of the objection, and so afford it an opportunity to pass upon the question, prevents its review here. Cone v. Montgomery, 25 Colo. 280, 53 Pac. 1052; Colo. City V. Smith, 17 Colo. App. 172, 67 Pac. 909; Empire Co. v. Lanning, 49 Colo. 458, 113 Pac. 491. [5, 6] It is most earnestly contended that the court erred in overruling the motion for a new trial on the ground alleged therein, viz., that in the matter of inspecting the premises defendants in error were guilty of misconduct. Several affidavits were filed in support of the motion for a new trial, but, as were correct. [9] It is lastly urged that the verdict is excessive, but we find nothing in the record which indicates that the jury acted from passion or prejudice; hence we are not justified in disturbing the verdict. Finding no error in the record, the judgment is affirmed. Judgment affirmed. GABBERT, C. J., and HILL, J., concurring. PETERSON et al. v. LEWIS, State Engineer. curiæ, file briefs, and make oral argument in be- Where counsel appear in an action as amici [Ed. Note.-For other cases, see Amicus Curiæ, Cent. Dig. §§ 3-5; Dec. Dig. 3.] 2. MANDAMUS 10, 84-SUBJECTS OF RELIEF OFFICIAL DUTIES CONSTRUCTION HIGHWAYS-CONTRACTS. OF Although duties of the state highway engineer are not specifically stated in the law, but are merely imposed by fair implication, their performance may be compeHed by mandamus, and the remedy, extends to enforcement of contracts, involving official duties, though not to wholly private contracts. [Ed. Note.-For other cases, see Mandamus, Get. Dig. §§ 37, 180-183; Dec. Dig. 10, 84.] officer, but acted only in his behalf (citing Words and Phrases, "Deputy"). [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 291, 292; Dec. Dig. 151.] 8. STATUTES 64, 181-CONSTRUCTION-REPUGNANCY-PARTIAL INVALIDITY. Statutes must be so construed as to effectuate the intention of the Legislature, and where 3. HIGHWAYS 96-CONSTRUCTION-DUTIES part of a statute is valid and conforms to the obOF STATE ENGINEER-"PERSONS INTERESTED.' Under Laws 1913, p. 664, § 6, requiring the state highway engineer to collect data and furnish the same to all persons interested in road building, the contractor building a county road is an "interested person," and entitled to the information. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 313, 314, 316, 317, 319-322, 356; Dec. Dig. 96. For other definitions, see Words and Phrases, First and Second Series, Interest.] vious intent, but a later section is repugnant and void, the statute is void only as to that section. Cent. Dig. §§ 58-66, 195, 259, 263; Dec. Dig. [Ed. Note. For other cases, see Statutes, 64, 181.] 9. CONSTITUTIONAL LAW62-LEGISLATIVE POWER-DELEGATION. An order of the state highway commission attempting to vary the duties imposed by statute on the state engineer is void, since under Const. art. 4, § 1, legislative power cannot be delegated to such a commission, being reposed 4. HIGHWAYS 96-CONSTRUCTION-DUTIES in the Legislature. OF STATE ENGINEER. Laws 1913, p. 664, § 6, requiring the state highway engineer to collect data on road building and advise county officers in charge of roads relative to road construction, requires active co-operation, and not casual advice and aid to be given by the engineer. [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 313, 314, 316, 317, 319-322, 356; Dec. Dig. 96.] 5. MANDAMUS 93-SUBJECTS OF RELIEFOFFICIAL DUTIES. The duties imposed by Laws 1913, p. 663, requiring the state highway engineer to provide information for the contractor and render assistance to the county authorities by furnishing a final estimate of the amount of the work done under road contracts, may be enforced by manda mus. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 195; Dec. Dig. 93.] 6. STATUTES 125-VALIDITY-TITLE AND SUBJECT-MATTER. Laws 1913, p. 663, created and prescribed the duties of the office of state highway engineer. Petitioners contracted with a county to build certain roads, and did build them, the contract providing that the state highway engineer should make a final estimate of all work done thereunder, and the value of the work, and that the county should then, after approving his estimate, pay the contractor. After making the contract, but before completion of the work, Laws 1915, p. 537, was enacted, being entitled "An act abolishing the office of state highway engineer," etc., and transferring his duties to the state engineer, and providing for the appointment of a deputy state engineer, and providing that the office of state highway engineer should be abolished and the duties thereof be placed under the state engineer, and that a chief deputy state engineer should be appointed, who should perform all the duties of the former state highway engineer. Held, that the last provision, operating only to change the title of the state highway engineer, was void under Const. art. 4, § 20, as being repugnant to the title of [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. 62.] 10. HIGHWAYS 112-CONSTRUCTION-STATUTES-EXECUTION. Under statutes providing for highway construction, the determination of completion and the amount due for the work, is a part of the construction. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 346, 347, 351-355; Dec. Dig. 112.] In Banc. Mandamus by Andrew Peterson and another against John H. Lewis, State Engineer of the State of Oregon. Heard on demurrer to the alternative writ. Demurrer overruled. This is an original proceeding in mandamus brought by the plaintiffs Peterson and Johnson against John H. Lewis, state engineer, to require defendant as such officer to make and deliver to the petitioners and to the county court of Clatsop county, Or., a final estimate of the work done by them, and the value thereof, under their contract with the county of December 18, 1914, for the construction of a certain county road therein extending from the city of Astoria to the west line of Columbia county. The alternative writ asserts the following facts: The contract provided that the work should be done according to the plans, specifications, and schedule of rates, prices, and maps of the road which were prepared by the state highway engineer, and that all the work thereunder should be done under the supervision of the field engineer selected by the state highway engineer; the work, however, to be approved and accepted by the latter. The contract further provided that payment for the work done by the contractors should be by warrants of Clatsop county issued upon vouchers of the state highway engineer approved by the county court, out of any Under Laws 1913, p. 663, creating and prescribing the duties of the office of the state high- money on hand from the sale of its permaway engineer, as amended by Laws 1915, p. 537, nent road bonds, or after January 1, 1915, transferring those duties to the state engineer by warrants drawn on the general fund of and requiring the duties to be performed by his that county. deputy, a performance of the duties could be Further provision was made enforced by mandamus against the state engi- for the making of partial payments during neer, since his deputy was not an independent the progress of the work upon estimates of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the act. [Ed. Note.-For other cases, see Statutes, Cent. Dig. 88 187-191; Dec. Dig. 125.] 7. MANDAMUS 151-PARTIES-PROPER OFFICER "DEPUTY." the engineer in immediate charge thereof, The road referred to is one which was con- The work, the state engineer has failed and refused to make or deliver to the contractors, or to the county court of Clatsop county, the final estimate made necessary by the contract before the contractors can enforce any claim for final settlement against the county. The defendant demurred to the writ upon the ground that it does not state facts sufficient to constitute a cause of action. Harrison Allen and Griffith, Leiter & Allen, all of Portland, for plaintiffs. G. W. Allen, of Portland, for defendant. C. L. McNary and John H. McNary, both of Salem, amici curiæ. BEAN, J. (after stating the facts as above). [1] It is claimed by defendant that the highway commission by an order relieved the state engineer of all duties and responsibilities in connection with the highway work, and provided that it should be done by I. E. Cantine, chief deputy state engineer. On account of the action taken by the commission, the state engineer endeavors to assume a neutral attitude in the premises. Counsel have appeared as amici curiæ, made oral argument in the interest of the highway commission, and also filed a brief. The interest of the commission should be considered to the same extent as though it were a party to this cause. It is contended by the petitioners that under chapter 339, Laws of 1913, the duties to be performed by the state engineer are separate and distinct from those which that act requires him to perform in connection with the state highway commission; that he is authorized and required by law to act for the various counties of the state in the capacity of an engineer in the matter of road construction; that he, having been substituted for the state highway engineer, is the only officer recognized by the law or the contract to perform these functions. It is suggested on behalf of the defense that the plaintiffs are not entitled to the benefit of the writ for the reason that the duty, if it exists, is a contractual one and not imposed by law. [2] The writ lies to compel the performance of an act which the law imposes as a duty resulting from an office, trust, or station. Whenever the law gives power to or imposes an obligation on a particular person to do some particular act or duty, and provides no other specific remedy for the performance thereof, the writ will issue. Duties of this kind need not be specifically statThe petition for the writ alleges that chap- ed in the law. If they are imposed by imter 337 of the General Laws of 1915 imposed plication from a fair, reasonable construcupon the state engineer, an elective officer, tion of the law, it is sufficient. It is not necthe duties previously performed under the essary that they be imposed by law on the contract and law by the state highway en- individual in question, provided he has put gineer by virtue of chapter 339, General Laws himself in the position from which by law of 1913, and that the former is the only offi- the duties accrue. Merrill, Mandamus, § 13. cer or person authorized by law or the con- By the same authority (section 16), since the tract to make such final estimate; further, object of the writ is to enforce duties creatthat although more than 80 days have elapsed by law, it will not lie to enforce private |