estopped from setting up the defense inter-lators, and defendants brought error, while posed. The following authorities tend to in the latter judgment went for relators, and support this conclusion: Supreme Lodge v. defendants brought error. Actions between Davis, 26 Colo. 252, 58 Pac. 595; Supreme Henry J. Arnold, as Mayor, etc., and FredTent v. Volkert, 25 Ind. App. 627-643, 57 N. rick J. Chamberlin, and also Daniel B. E. 203; Coverdale v. Royal Arcanum, 193 Carey. There being judgments for the latIll. 91, 61 N. E. 915; Order of Foresters v. ter, the former bring error. In actions beSchweitzer, 171 Ill. 325, 49 N. E. 506; Kidder tween Frank P. Read and others and Ellis v. Supreme Assembly, 154 Ill. App. 489-491; Meredith and others, the former bring error, Trotter v. Grand Lodge, 132 Iowa, 513, 109 | judgment going against the latter. Cases disN. W. 1099, 7 L. R. A. (N. S.) 569, 11 Ann. missed. Cas. 533; Alexander v. Grand Lodge, 119 Iowa, 519-522, 93 N. W. 508; Whigham v. Independent Foresters, 44 Or. 543-553, 75 Pac. 1067; Pringle v. Modern Woodmen, 76 Neb. 384, 107 N. W. 756, 113 N. W. 231; Morrison v. Wisconsin Odd Fellows, 59 Wis. 162, 18 N. W. 13; Wiberg v. Minnesota Ass'n, 73 Minn. 297-304, 76 N. W. 37; Ball v. Aid Association, 64 N. H. 291-293, 9 Atl. 103.

The judgment is reversed, and the cause remanded, with directions to the lower court to enter judgment for the plaintiff.

Reversed and remanded, with directions.
GABBERT, C. J., and SCOTT, J., concur.

STATE ex rel. STATE BOARD OF AGRI-
CULTURE v. LEDDY, State Auditor, et al.
(and six other cases). (Nos. 7886, 7917, 7918,
7780, 7781, 8058, and 7885.)

(Supreme Court of Colorado. Jan. 3, 1916.)
APPEAL AND ERROR
MOOT CASE.

In No. 7886:

Thos. R. Hoffmire, of Pueblo, for plaintiff in error.

In Nos. 7917 and 7918:

W. H. Bryant, J. A. Marsh, and W. R. Kennedy, all of Denver, for plaintiff in error. Henry A. Lindsley and Walter E. Schwed, both of Denver, for defendant in error. In Nos. 7780 and 7781:

I. B. Melville, of Denver, and C. C. Goodale and Alfred Todd, both of Lamar, for plaintiffs in error. Granby Hillyer, of Lamar, for defendants in error.

In No. 8058:

McKnight & Henry, Carlisle A. Ferguson, and M. H. Farrington, all of Denver, for plaintiffs in error. W. H. Bryant, J. A. Marsh, and W. H. Malone, all of Denver, for defendants in error.

In No. 7885:

Thos. R. Hoffmire, of Pueblo, for plaintiff 19-DETERMINATION-in error. Benjamin Griffith, Atty. Gen., and Philip Mothersill, Asst. Atty. Gen., for defendants in error.

Where the subject-matter of the controversy has long since ceased to exist, the case is moot and the appellate court will not entertain writs of error.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 63-80; Dec. Dig. 19.]

In Nos. 7780 and 7781:

PER CURIAM. The judgment of this court determining the respective questions presented in each of the above causes could not affect the rights of either of the parties

En Banc. Error to District Court, Prow- thereto at this time, for the reason that the ers County; Henry Hunter, Judge.

In Nos. 7885, 7886, 7917, and 7918:
Error to District Court, City and County
of Denver; Greeley W. Whitford, Judge.
In No. 8058:

Error to District Court, City and County of Denver; John H. Denison, Judge.

subject-matter of controversy in each has long since ceased to exist. An actual controversy is an essential requisite to appellate jurisdiction. It is not within the province of an appellate court to decide abstract or hypothetical questions, disconnected from the granting of actual relief, or from the determination of which no practical result can follow. City and County of Denver v. Brown, 47 Colo. 513, 108 Pac. 971; Agricultural Ditch Co. v. Rollins, 42 Colo. 267, 93 Pac. 1125; Northern Colorado Co. v. Pouppirt, 47 Colo. 490, 108 Pac. 23; People v. Hall, 45 Colo. 303, 100 Pac. 1129. Each of the cases fall within this rule, and they are therefore dismissed.

Proceedings by the People of the State of Colorado on the relation of Charles Maxwell and others against A. E. Downer, Clerk and Recorder of the town of Lamar, also against C. M. Lee, as Mayor, and others, together with proceedings by the State, on the relation of the State Board of Horticulture, and by the State, on the relation of the State Board of Agriculture, against Michael A. In causes Nos. 7780 and 7781, the costs in Leddy, State Auditor, and others. In the this court and the district court are taxed first two cases there were judgments for re- to defendants in error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Ronald P. McDonald and the City of Golden, the latter being plaintiff in error here, to recover the sum of $3,477.11, with interest at Jan. 3, 1916.) eight per cent. a year from November 5th, 373-CLAIMS 1903, alleged to be due for fir pipe staves, sold and delivered to McDonald as principal

CITY OF GOLDEN v. WESTERN LUMBER
& POLE CO. (No. 8243.)
(Supreme Court of Colorado.
1. MUNICIPAL CORPORATIONS

-STATUTE.

Under Rev. St. 1908, § 5408, providing that contractor, for use in the construction of a any person to whom a contractor for work with water works system for the city. The cause a city may be indebted may file his claim with

the clerk of the city, and if the claim tally was tried to the court in April, 1908, upon the with the statement of the contractor, the amount issues formed by the amended complaint, the shall be paid directly to claimant and deducted answer of the city and replication thereto. out of the sum to be paid the contractor, where Upon these issues, after a full hearing on a contractor to build waterworks for defendant city made a written order for the payment of the merits, the court found that the city was money in favor of a materialman, which was not liable for the claim, and as to it enterserved on the city, there being no fraud, the ed a judgment of dismissal. city was bound by such order as to the amount

of the claim.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. 373.]

2. MUNICIPAL CORPORATIONS

373 CLAIMS

Subsequently

such proceedings were had that this judgment was reversed by the Court of Appeals and the cause remanded. See Western Lumber & Pole Co. v. City of Golden, 23 Colo. App. 461, 130 Pac. 1027.

-INTEREST-STATUTE—“CITY.” At a second hearing, on November 29th, Rev. St. 1908, § 3162, provides that creditors may receive interest, in the absence of agree- 1913, upon motion, on the authority of the ment as to rate, at 8 per cent. for all moneys decision of the Court of Appeals, judgment after they become due on any bond, bill, prom- was entered in favor of the company for issory note, or other instrument of writing, or the sum of $6,277.00, the aggregate of the on money due on mutual settlement of accounts

from the date of such settlement, on money original claim, $3,477.11, and interest, $2,due on account from the due date, etc. Sec- 799.89, to date of judgment. The case is now tion 3163 provides that county orders and war- here for review on writ of error sued out by rants and other like evidences or certificates the city to that judgment.

of municipal indebtedness shall bear interest at

6 per cent. from the date of presentation for

was remanded for that purpose? and, Second. Is the company entitled in any event to interest on its claim?

The amount of the original claim is evidenced by an order in writing duly served upon the clerk of the city on November 5th, 1903, which reads as follows:

There are but two questions for considerapayment, etc. A city, by statute, upon presen- tion. First. Should the case have been retation to it by a materialman on a waterworks tried on its merits upon the theory that it job of the contractor's order for the payment of money, became liable in the amount thereof directly to the materialman, but neglected to pay, and the materialman sued, claiming interest. Held, that the "city," a voluntary organization created for local convenience, advantage, and interest, and acting in a private as well as a public capacity, was liable for interest under section 3162, since its building of a waterworks was a purely private activity, while towns and cities in business transactions are liable for interest in the absence of statute or decisions putting them on a different footing, the only purpose of section 3164 being to make it impossible for a municipality to agree to pay a higher rate of interest on certain securities than 6 per cent.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig.

373.

For other definitions, see Words and Phrases, First and Second Series, City.]

Gabbert, C. J., and Garrigues, J., dissenting.

"Golden, Colo., Nov. 5th, 1903. "To the City of Golden, W. H. Carter, Esq., City Clerk, Golden, Colo.

"Dear Sir-You will please retain out of any estimate due me, on contract between the City of Golden and myself, the sum of thirty-four hundred seventy-seven dollars and eleven cents ($3,477.11), and pay the same to the Western Lumber & Pole Company of Denver, Colorado. Interest to be added at rate of 8 per cent. per annum from date until paid.

"[Signed] R. P. McDonald."

The pleadings of the city admit that it En Banc. Error to District Court, Jeffer-visions of the law, upon which the company failed to comply with and observe the proson County; H. S. Class, Judge.

Action by the Western Lumber & Pole Com-relied for recovery, and under which the city's liability was declared. pany against the City of Golden. Judgment for plaintiff, and defendant brings error. Affirmed.

John W. Barnes and William A. Dier, both of Golden, for plaintiff in error. Van Cise, Grant & Van Cise, of Denver, for defendant in error.

[1] Section 5408, Revised Statutes 1908, provides:

"Any person, to whom a contractor

may be indebted, may file with the clerk of such
申 ** 申 his claim.
* If such
city

claims tally with statement of contractor
the amount claimed shall be paid di-
rectly to claimant, and shall be deducted out of
sum to be paid contractor.

BAILEY, J. This action was commenced The facts essential to recovery under the May 27th, 1904, in the District Court of Jef- law on the merits were conclusively shown ferson County, by the Western Lumber and by testimony at the original trial, and no tesPole Company, defendant in error, against timony was introduced to overcome, disprove

or challenge the same. But the trial court | plainly determines that the plaintiff was enmisapplied the law and determined, regard-titled to recover under the statute, upon the less of the proofs, that under the statute merits of the case. Nothing therefore was and as matter of law there was no liability left to be done but to remand the cause to against the city under the circumstances the trial court for entry of the judgment shown. On the contrary, however, the Court which it should have entered originally, and of Appeals in its opinion determined that as we construe the remanding order, conthe right of the company to recover from sidered in connection with the context of its the city had been fully established, and re-opinion, the Court of Appeals intended that manded the case, in this language: the trial court should do precisely what it did do.

"Entertaining no doubt as to the validity of the statute and the right of the Lumber Company to invoke its provisions, the judgment of the trial court must be reversed and the case remanded for further proceedings in harmony with the views herein expressed."

[2] Having determined that the city is liable, shall it pay interest on the claim from the time of the presentation of the order and demand for payment, November 5th, 1903, or at all? The sections of the statute involved in this consideration are 3162, 3163 and 3164, Revised Statutes 1908, which read as follows:

Just what the Court of Appeals did determine as to plaintiff's right of recovery is shown in the following extracts from the opinion rendered. At page 463 of 23 Colo. App., at page 1027 of 130 Pac., this was said: 3162. "Creditors shall be allowed to receive "The contractor became indebted to the Lum- interest when there is no agreement as to the ber Company for material which it had furnish-rate thereof, at the rate of eight per centum per ed him, and which he and another firm of con- annum, for all moneys after they become due, tractors, who completed the waterworks after on any bond, bill, promissory note or other inthe termination of the McDonald contract, used strument of writing, or on any judgment recovin the construction of the plant. For this in- ered before any court or magistrate authorized debtedness, amounting to over $3,000, after all to enter up the same within this state, from the proper credits were allowed, the contractor day of entering up said judgment until the satgave an order to the plaintiff in error on the isfaction thereof be made; also, on money due on mutual settlement of accounts from the city. In fact he gave two such orders, one signed by himself, and one signed by himself and date of such settlement, on money due on achis manager. These orders appear to have been count from the date when the same became due, delivered to the city clerk. * * * There was and on money received to the use of another and other evidence, such as correspondence, clearly retained without the owner's knowledge." indicating knowledge on the part of the city officials that the contractor was not making satisfactory settlements with the Lumber Company for material which the latter was furnishing the former."

3163. "The parties to any bond, bill, promissory note, or other instrument of writing, may stipulate therein for the payment of a greater or higher rate of interest than eight per centum per annum, and any such stipulation may be enforced in any court of competent jurisdiction in the state."

On pages 469, 470 of 23 Colo. App., on page 1029 of 130 Pac., it is further said: 3164. "County orders and warrants, town and "It is conceded that the city made no at- city and school orders and warrants, and other tempt whatever to comply with the provisions edness, shall bear interest at the rate of six per like evidences or certificates of municipal indebtof this statute or any thereof. Section centum per annum from the date of the presen5408 of the act, in unequivocal terms, commands the city to pay the money due the claim-tation thereof for payment at the treasury where ant directly to him, when by agreement or judg in the treasury for the payment thereof, except the same may be payable, until there is money ment that amount shall have been ascertained." when otherwise specially provided by law, and After saying that equity considers that as every county treasurer, town treasurer and city done which ought to have been done, the opin- treasurer to whom any such county, town, city or school order or warrant is presented for ion proceeds as follows, at page 475 of 23 payment, and who shall not have on hand the Colo. App., at page 1031 of 130 Pac.: funds to pay the same, shall indorse thereon the rate of interest said order or warrant will draw, and the date of such presentation, and subscribe such endorsement with his official signature; provided, that, all such orders and warrants may be made to bear a lower rate of interest than above specified, by special agreement between such counties, towns and cities issuing the same, and the person to whom such

"This wholesome rule of equity requires us to hold that neither the city's duty nor the Lumber Company's right have been in any manner altered by the unauthorized payment by the city of McDonald's claim, and that the Lumber Company may yet look to the city for its pay for the material furnished the contractor, precisely as it might have done had no such payment been made by the city to him."

It is clearly evident that when the contractor, McDonald, gave the order to the company, that was an admission by him of the amount due the latter. In other words, the written order by the contractor, when served on the city on November 5th, 1903, was in every way equivalent to a compliance by the creditor with the requirements of Section 5408. The city had notice of the claim and the amount thereof, and in the absence of fraud, and there is no suggestion of that, was bound thereby, as to the amount of the claim. The opinion of the Court of Appeals

orders or warrants are issued."

It has long been recognized that a distinctively municipal corporation acts in a twofold manner, namely, in a governmental or political capacity, and in a ministerial or private or business capacity. In this case the city was acting in a purely ministerial or business capacity. This court has repeatedly recognized this doctrine. In Denver v. Maurer, 47 Colo. 209, at page 212, 106 Pac. 875, at page 876, it is said:

general duties are imposed upon a municipal "The authorities agree that two classes of corporation. One is governmental, and the municipality is not liable for negligence of em

ployés occurring in the performance thereof. in the case of Montezuma County v. Wheeler, The other is private and corporate, and the 39 Colo. 207, 89 Pac. 50, has laid down a municipality is liable for negligence of employés occurring in the performance thereof. City of rule based upon the construction of our statDenver v. Davis, 37 Colo. 370 [86 Pac. 1027, 6 utes, which puts towns and cities in a differL. R. A. (N. S.) 1013, 119 Am. St. Rep. 293, ent position respecting interest than obtains 10 Ann. Cas. 187]." generally.

ligations other than those mentioned. Expres- that in no event could it be liable under this sio unius est exclusio alterius."

In argument counsel for the city say, having reference to that part of the decision above quoted, "The reasoning of that opinion would seem to apply as well to cities and towns." Undoubtedly this would be true if the reasoning thus put forth had been essential to the conclusion there reached, or if that particular portion of the opinion could fairly be said to be other than argument or dicta.

statute for such material furnished to the contractor. Thereafter such proceedings were had on review that this judgment was reversed by our Court of Appeals, which held this interpretation placed upon the statute by the lower court was erroneous, and that the lumber company might yet, notwithstanding the city had paid the contractor in full, look to it for its pay for such material in an action based upon the city's failure to comply with the statute. The case was reversed by the Court of Appeals and remanded for further proceedings in the lower court in harmony with the views expressed in its opinion, but without specific directions as to the judgment, or any judgment that should be entered. In November, 1913, after remittitur from the Court of Appeals, the lower court, upon motion of the lumber company and against the protest and over the objec tion of the city, summarily entered judgment against it in the sum of $6,277, without a trial or the presentation of any evidence whatever, based solely upon the remittitur, judgment, and opinion of the Court of Appeals. Upon the question of interest the complaint alleges that after deducting all payments, there remained a balance November 5, 1903, of $3,451.92; that the interest on this up to November 5, 1903, was $25.19, which was added to the balance, and on this date McDonald gave the lumber company an order on the city for $3,477.11 bearing interest at 8 per cent. from November 5, 1903, until paid, and it is upon this order that the lower court entered judgment for $6,277, being the face of the order, plus $2,799.89 interest thereor, computed at 8 per cent. from November 5, 1903, and it is the judgment of the lower court pronounced upon this order which the majority opinion affirms. The allegations of the complaint regarding the purchase of the staves by McDonald from the lumber company, their use by the contractor There appearing to be no error in the judg- in the construction of the pipe line, and that ment, it is affirmed.

The evident intent of Section 3164 was, first, to place a uniform rate of interest upon a specific class of obligations; and second, to make it impossible for county, town, city or school district officials to agree, as otherwise under Section 3163, supra, they might do, to pay a higher rate of interest upon such securities than that fixed by statute. We are unwilling to accept the suggestion that it was the intention of the legislature by the enactment of section 3164 to preclude the recovery of interest, except by express agree ment, on all other county, city, town or school district indebtedness. Section 3164 in no manner limits, qualifies or changes the effect and purpose of section 3162, except as to a particular class of securities. By section 3162 creditors are entitled to interest on claims therein mentioned at the rate of eight per cent. per annum from all debtors. The conclusion reached in Montezuma County v. Wheeler, supra, therefore, has no bearing upon the question of the liability of towns and cities for interest. Any other holding would have the effect to exempt cities and towns from the payment of interest on judg ments against them. Section 3162 plainly applies to cities and towns, and gives a creditor the right to recover interest, upon claims growing out of business transactions with them, whenever, under like circumstances, he might lawfully do so from a private corporation or individual.

there was a balance due from McDonald to the lumber company were all denied and put

GABBERT, C. J., and GARRIGUES, J., in issue by the answer. dissent.

2. The Court of Appeals gave no direction to the lower court to enter any specific judgGARRIGUES, J. (dissenting). 1. It ap- ment. It simply ordered that it proceed in pears from the complaint that the defendant harmony with the views expressed in the in error, a lumber company, in 1903 furnish- opinion of the court. The question which it ed the contractor, McDonald, with a quanti- had under consideration and decided was the ty of fir pipe staves used by him in construct- liability of the city, as an abstract proposiing a pipe line for a system of waterworks tion under the statute, not the amount of the built by the city, for which, without interest, liability. The lower court held it could not it is alleged an unpaid balance remains of be made liable under the statute in any $3,451.92, not $3,477.11, as stated in the ma- event. The Court of Appeals held this was jority opinion. The city paid the contractor, erroneous; that a municipality letting a conwho, it is alleged, neglected to pay the lum- tract for public works may be made liable ber company such balance, and in 1904 it under the statute to one supplying material brought suit against the city based upon to the contractor; that merely because the chapter 124, Session Laws of 1899. At the statute contained no provision for its enfirst trial in 1908, the lower court dismissed forcement was no defense, where the city the action as to the city, upon the ground | had paid the contractor in full in violation