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one filling a vacancy "to the expiration of the term during which such vacancy occurred." And section 10, art. 12, Const., also quoted above, establishes a legal vacancy in the office "if the person elected or appointed to any office shall refuse or neglect to qualify therein within the time prescribed by law."

stitution and the law imperatively require it. Itainly mean something; and sections 10 and Murray v. Hobson, 10 Colo. 66, 73, 13 Pac. 11, art. 12, of the Constitution, must be given 921; Edwards v. D. & R. G. Co., 13 Colo. and ascribed their full force and effect. Sec59, 63, 21 Pac. 1011. In considering this mat-tion 11, art. 12, Const., quoted above, togethter it will be helpful, and show the absurdity er with the law, limits the term of office of of a particular construction hereinafter suggested, to suppose that Taylor, the then sheriff and sheriff-elect, had lived until January 12th, the commencement of the new term, and had then refused or neglected to qualify as required by statute. Would he have been permitted under his previous election and qualification to continue to exercise the duties of the office for two years thereafter, notwithstanding such default? Certainly not if the county commissioners desired to act, and exercised the constitutional power (section 10, art. 12, supra) vested in them of appointing a successor to fill the vacancy. Let us put the matter in another way: Suppose, instead of Taylor being re-elected, his opponent, D., had been elected, but the latter thereafter did not, for whatsoever reason, qualify as required by law. Certainly, under such circumstances, upon the arrival of the term, a vacancy would have existed therein, and the board of county commissioners would have had the right to fill it under the Constitution (section 10, art. 12, and section 9, art. 14, supra), notwithstanding Taylor was then exercising, and continued to exercise, the duties of the office until such appointee qualified. When we consider together the several constitutional and statutory provisions, it is very clear that such is the intent of the Constitution and the law.

Considering together the several constitutional provisions involved, and giving to each the meaning which the language necessarily implies, it is clear that when a person is elected to a term, under the Constitution, a contingent or inchoate right to the office is vested in him, which becomes absolute upon his qualification. He is elected to the term, and no one else can enter therein until he is ousted therefrom, which can never be until the commencement of the term. When he does not qualify, the contingent right is gone. There is no one legally entitled to the term, and when the date of the term arrives there is a vacancy under the Constitution, though there be some one actually and legally performing the duties of the office. The law that created the office established the right to hold the office by terms of two years each. Section 848 Mills' Ann. St. It, in effect, divided the future into periods of two years, and designated each period a term. When the law created the term and fixed the commencement and ending of each term, it proIt is clear to our minds that a person elect- vided for the filling of each term by a biened or appointed to fill a vacancy in an unex- nial election, but does not permit the person pired term of a public office, such as sheriff, chosen to assume the duties of the office unholds precisely as his predecessor would have til he files a bond and oath of office, which held, had he continued in office, and in no must be done before the commencement of other way, and has the same rights, and none the term, or "the office shall be deemed vaother, that such predecessor would have had. cant." Section 10, art. 12, Const. Colo. "VaCounsel on both sides practically agree that cancy' applies not to the incumbent, but to such is the law. The relator asserts, and the the term, or to the office, or both; whethrespondent concedes, that "an appointee to er to the term, or to the office, or both, dean unexpired term holds precisely as his pred-pending generally upon the context"-is the ecessor in office could have done," and "may doctrine declared in People ex rel. v. Le Fenot claim a larger or greater tenure of office vre, 21 Colo. 218, 230, 40 Pac. 882. And in than the person elected, whose place he takes, Monash v. Rhodes, 11 Colo. App. 404, 409, 53 had." They both concede that the person Pac. 236, 237, the court says: "As we take elected or the person appointed "would hold it, and according to our view of the word only until the qualification of his succes- 'vacancy' as used in modern times, it relates not only to the office which is to be filled, but to the term for which the appointment is to be made. It is constantly used in statutes and Constitutions with reference to both office and tenure, and we believe that the proper interpretation of the word, when power is

If section 9, art. 14, of the Constitution ended with the words, "and a person appointed shall hold the office until the next general election," and the section was unaffected by other provisions of the Constitution, it might logically be argued (though a holding to that effect would, as above ap-given to an executive or a board to fill a vapears, be absurd) that, whatever its effect in any given case, the appointee would hold "until the next general election." Fortunately the section does not end with those words, and is affected by other provisions of the Constitution. The words in said section, "or until the vacancy be filled by election accord

cancy, is a power to fill the office designated for the unexpired term, which may remain after the death, removal, or resignation of the antecedent incumbent. In other words, when the incumbent dies, is removed, or resigns, there is a vacancy not only in the office, but in the term, for which he was ap

In

Clearly then the question of vacancy is We believe that the conclusion which we measured by the term. Taylor was elected have reached gives meaning and effect to in 1906 for a definite term of two years and every word and sentence of the Constitution, died November 23, 1908, so the unexpired and, if there is a seeming conflict in some term in which he was then an incumbent, and of the statutory provisions, they must yield which remained after his death, was until to the Constitution. A number of authorithe 12th day of January, 1909. In the lan- ties have been cited by counsel for either side guage of the opinion just quoted, the power supporting their respective contentions. given to fill the vacancy is "a power to fill none of the cases, however, was there conthe office designated for the unexpired term." sidered or involved constitutional provisions By the election of 1908 the term commen- similar in form or substance to sections 10 cing on the 12th of January, 1909, was filled and 11 of article 12 of the Colorado Constiby election; but until the term arrives, and tution; nor do we find that our own courts the person filling it qualifies, he cannot exer- have ever before considered said sections. In cise the duties thereof, and the incumbent People ex rel. Robinson v. Boughton, 5 Colo. of the preceding term continues to perform 487, the respondent was the incumbent of the the duties until his successor qualifies, who preceding term. His successor was elected, may be the person elected, or the person ap-qualified, and died before his term commencpointed, under section 9, art. 14, of the Con- ed. The county commissioners appointed stitution, to the vacancy arising under sec- Robinson to the new term, and respondent tion 10, art. 12, of the Constitution. contended for the right to hold over until the But it is said that, while defendant was next election. We there held that, as the appointed to fill the vacancy in the term to deceased officer had qualified, a vacancy exwhich Taylor was elected in 1906, the vacancy isted at the expiration of Boughton's term, which occurred in that term of the office was and pointed out that "the cases which hold, by virtue of section 924, Mills' Ann. St., to under similar constitutional provisions, that wit, "the death of the incumbent," and that the death of the officer-elect before entering from the language of that section it is the into possession of his office creates no vacandeath of the incumbent, his resignation, his cy" are "based upon the fact that such derefusal or neglect to take his oath of office, ceased officer had not qualified in his office." or to give or renew his official bond, which It is to be observed that the constitutional creates the vacancy, and that Taylor's death provisions determinative of this case were could not have created two vacancies; one not there under consideration, or even referin that and the other in the succeeding term. red to, and the conclusions arrived at in that It is clearly evident, however, that section case in no wise conflict with the results here 10, art. 12, of the Constitution, recognizes a reached. In People ex rel. Williams v. Reid, legal vacancy that will authorize the appoint- 11 Colo. 138, 17 Pac. 302, and Id., 11 Colo. ment of a successor, even though nothing 141, 18 Pac. 341, Reid was serving in the office has happened to the real incumbent and he is of county treasurer under a previous election, continuing to perform the duties of the office. and his term would expire on the 9th of JanTaylor had been elected. He had the incho-uary following. He was, however, at the preate right to become the actual incumbent of ceding election, re-elected to the same posithe office for the term commencing on January 12, 1909, and none other possessed such right. He could have qualified at any time after his election and before the commencement of his term. He neglected to do so. He failed to take his oath of office and file his official bond from the date of his election on the 8th day of November until the 23d day of that month, when his power to qualify for that term was ended by death. His refusal and neglect therefore brought him clearly within the letter and spirit of said constitutional provision, and there was a legal vacancy in the office as soon as the term arrived. Besides, were it necessary, we should hold that under sections 10 and 11, art. 12, of the Constitution, the office for the term commencing January 12, 1909, became vacant upon that date, through the death of Taylor, and was in effect the neglect of Taylor to give bond and take the oath of office. True, as said in State v. Hopkins, 10 Ohio St. 509, 511: "This failure was caused by the act of God, and not by the laches of the party; but its effect upon the office is the same

tion. The commencement of the term of office of county treasurer, however, had been changed from January to July. Reid was in the office, yet, inasmuch as his first term expired on the 9th of January, and the law had changed the commencement of the term of office to the second Tuesday in July, this court held that a vacancy existed in the office of county treasurer between said dates in January and July, and that Williams, who had been appointed by the board of county commissioners to fill the vacancy, was entitled to the office in the interim. constitutional and statutory provisions involved in this case were then a part of the law of the state.

That

We have no hesitancy in declaring: an appointee to fill a vacancy under our law holds until the next general election, if no new term intervenes between the time of his appointment and the time of such elction; but, if a new term commences during the interval, the term of the appointee ends, and the one entitled to the new term has a right thereto; but if such one on the arrival of

the reason thereof be death, there is a vacancy in the office for the term. That until an appointment is made the incumbent of the previous term holds over; but when an appointment is made, and the appointee qualifies, the previous term and the rights of the incumbent to the office are ended.

It therefore necessarily follows that the judgment of the trial court was wrong. The respondent should be ousted from the office of sheriff of Montrose county, and the relator admitted therein. The judgment is therefore reversed, with instructions to the trial court to enter an order in conformity with the views here expressed.

Reversed and remanded.

CAMPBELL, J. From the judgment of dismissal of the action entered after the court sustained defendants' demurrer to the complaint on the ground that it did not state a cause of action, the plaintiff appeals. No question was raised by special demurrer as to the capacity of the plaintiff to sue or as to a defect of parties. The sole question for consideration here is whether the complaint states a cause of action.

From facts of which we have judicial knowledge and from the allegations of the complaint, it appears that the State Board of Agriculture is a body corporate, one of the state's governmental agencies, and is intrusted with the management of the agricultural college. It let a contract to W. T.

CAMPBELL and GABBERT, JJ., dissent. Dimick to erect for it a college building, and,

to secure and guarantee its performance, Dimick, the contractor, with sureties, executed and delivered to the board as obligee a bond STATE BOARD OF AGRICULTURE v. in the penal sum of $1,000, the condition of DIMICK et al. which is: "If the said Walter T. Dimick (Supreme Court of Colorado. Dec. 6, 1909.) shall well and truly fulfill the requirements 1. STATES (§ 101*) - BUILDING CONTRACT of one certain contract entered into the 9th TERMS-AGREEMENT TO PAY LIENS-BOND. day of June, 1905, for the erection and comThe State Board of Agriculture in contract-pletion of an implement building for the said ing for the construction of a state building, though authorized to insert a covenant in the contract that the contractor pay the bills of materialmen and laborers, the mere giving of a contractor's bond conditioned for such payment was not a promise by the contractor to pay the same, where the contract contained no such obligation. [Ed. Note.-For other cases, see States, Cent. Dig. § 98; Dec. Dig. § 101.*]

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Where a builder's contract contained no stipulation binding the builder to pay laborers and materialmen, a provision of the bond securing performance of the contract requiring payment of such claims would be regarded as without consideration.

[Ed. Note.-For other cases, see States, Cent. Dig. 98; Dec. Dig. § 101.*]

Appeal from District Court, Larimer County; Christian A. Bennett, Judge.

Action by the State Board of Agriculture, a corporation, for the use of certain laborers and materialmen, against W. T. Dimick and others on the bond of Dimick as contractor for the construction of a state building. From a judgment sustaining a demurrer to the complaint for want of facts, plaintiff appeals. Affirmed.

T. J. Leftwich and Newton W. Crose, for appellant. Garbutt & Clammer, for appellees.

the State Agricultural Board and shall pay all bills in connection with the erection of said building, then this bond shall be null and void; otherwise it shall remain in full force and effect." Dimick completed the building in accordance with the plans and specifications, but did not pay all bills which he incurred in its erection, those unpaid for material and labor amounting to more than the penalty of the bond. Upon such ascertainment and after unsuccessfully demanding payment thereof from the sureties, the board authorized the holders of this indebtedness to bring this action in its name, for their use and benefit, to recover the penalty of the bond. From these facts must be determined the sufficiency of the complaint.

That pleading does not set out the contract further than that a building was to be erected in accordance with certain plans and specifications. There is no averment therein that the bond was given for the benefit of those who should furnish materials for, or do labor upon, the building; but the allegation in that behalf is that the bond was given to secure and guarantee the performance of the contract. The condition of the bond itself, as will appear from the above-quoted language, was for the payment of all bills in connection with the erection of the building; but, so far as appears from the complaint, there was no provision of the contract by which the contractor agreed to pay such bills. The theory of the plaintiff is: Since, under the law of this state, public buildings are immune from liens for labor, or material, and the mechanic's lien act is not in any way applicable to them, that the evident intention of the state board in requiring this

bond of the contractor, and his intention in, be in force, must, in the absence of an agreegiving it, was not for the benefit of the board ment by the contractor to pay them, be conitself, but directly for the benefit of material- sidered a promise without consideration. A men and laborers, and that, if the condition number of authorities are cited pro and con. of the bond with reference to the payment Among others the plaintiff has cited Baker of such bills was not observed, they might & Co. et al. v. Bryan et al., 64 Iowa, 561, 21 bring this action in the name of the board N. W. 83; Lyman v. City of Lincoln et al., 38 to enforce it. On the contrary, the defend- Neb. 794, 57 N. W. 531; Buffalo Forge Co. v. ants' claim, inter alia, is that in the absence Cullen, etc., Co., 105 Mo. App. 484, 79 S. W. from the complaint of an allegation that the 1024. Defendant cites Jefferson v. Asch, 53 contract contained a provision imposing on Minn. 446, 55 N. W. 604, 39 Am. St. Rep. the contractor the duty to pay such bills, or 618; reported with annotations in 25 L. R. a covenant by him to pay them, the mere re A. 257; Vrooman v. Turner, 69 N. Y. 280, 25 cital in the bond as to their payment as one Am. Rep. 195; Green Bay Lumber Co. v. of its conditions will not bind the sureties School Dist., 121 Iowa, 663, 97 N. W. 72; to pay them. In other words, although it be Montgomery v. Spencer, 15 Utah, 495, 50 Pac. within the power of the state board to insert 623. Many other authorities will be found in in the contract a covenant by the contractor the opinions in these cases. An examinato pay these bills and to exact this bond, tion of the cases on this subject discloses, as still, unless in the building contract itself said by the Supreme Court of Utah in Montthe contractor agrees to pay them, the giv- gomery v. Spencer, that generally there must ing of a bond, one of whose conditions rebe an express covenant that a contractor quires their payment, will not be construed should pay the claims of those not immediate into a promise to pay. In City and County parties to a contract to entitle them to sue of Denver v. Hindry, 40 Colo. 42, 90 Pac. to enforce the penalty of a bond which is giv1028, 11 L. R. A. (N. S.) 1028, and Interna- en to secure its performance. Since the comtional Trust Company v. Keefe Manufactur-plaint fails to allege that some provision of ing and Investment Company, 40 Colo. 440, 91 Pac. 915, it was held to be within the power and a duty of the public authorities in a case like the present to require of a contractor that he agree in his building contract to pay material and labor bills. With the reasons for such holding we are not now concerned. The decisions referred to have established the law in this jurisdiction. If a fair construction of the complaint shows that the state board and the contractor intended the bond to be for the benefit of labor and materialmen, we must hold the complaint good. There is no allegation, as we have said, that such was the intention. On the contrary, the express allegation is that it was given to secure the performance of the contract. There being no allegation in the complaint that the contract required the contractor to pay for labor done upon or material that entered into the construction of the building, a bond to secure the performance of that contract could not be construed

to extend to labor and materialmen, but is limited to the performance of the contract. The condition of the bond that such bills are to be paid, otherwise the bond should

his contract with the state board required the builder to pay materialmen and laborers, we must hold that the latter are not entitled to sue upon the guaranty bond as one given for their benefit. The distinction we have pointed out is well illustrated in the later Iowa cases. We have found no wellconsidered case where a guaranty bond is held to be for the benefit of those who are not parties to a contract performance of which the bond secures, in the absence from the contract, either of an express agreement of the contractor to pay to such third persons for material or labor, or of such words as require of him, before final payment, the production of a receipt showing that no liens or claims therefor are in existence, or the production of receipts showing the payment of such bills, or some similar provision which the courts hold equivalent to an express conthe courts hold equivalent to an express contract to pay them.

The judgment of the court below, being in accord with our views, is affirmed.

Affirmed.

STEELE, C. J., and MUSSER, J., concur.

MEMORANDUM DECISIONS.

PARMELEE et al. v. DIXON et al. (Civ. 647.) (Court of Appeal, Third District, California. Oct. 22, 1909.) Appeal from Superior Court, Placer County; John F. Ellison, Judge. Action by Elmer E. Parmelee and others against Fred Dixon and others. From a judgment for plaintiffs, and an order denying a motion for new trial, defendants appeal. Affirmed. Tuttle Tuttle & Tuttle and Tabor & Tabor, for appellants. John M. Fulwiler, for respondents.

CHIPMAN, P. J. Action to quiet title to a certain ditch and the water flowing therein. Plaintiffs had judgment, from which, and from the order denying their motion for a new trial, defendants appeal. The ditch in question, known as the "Bradford Ditch," taking its water from what is known as "Grouse Cañon," has been in use for over 40 years in operating the mines now owned by plaintiffs. Defendants allege the ownership of mines adjacent to the Bradford Ditch intermediate its head and plaintiff's mines. In September, 1904, defendants posted a notice of location of the waters of Grouse Cañon and appropriated and took possession of a portion of the Bradford Ditch, claiming that plaintiffs for more than 12 years immediately preceding said location "have failed and neglected to cause any water to run through the said Bradford Ditch as described in their complaint, and have failed and neglected, for said period, to keep said ditch in repair so that water could flow through the same, and have abandoned said water right and the said ditch." The court made findings in favor of plaintiffs and negativing the averments of the answer. There was evidence of the use of the water of Grouse Cañon by means of the Bradford Ditch as early as 1860 by plaintiffs and their predecessors in estate, down to 1904, when defendants initiated their claim, took possession of the ditch, and deprived plaintiffs of the use of the water. There were years when all the water flowing in the cañon was used by plaintiffs, and other years when they did not use all of it. Some years the full flow at low water was all required for hydraulicking, and others only a part, when the mine was operated by drifting; but it was all claimed and used, and there was no evidence of abandonment or disuse for such period as would justify the inference that plaintiffs or their predecessors had surrendered their rights to the water or the ditch, or intended so to do. The case presents no question of law requiring notice. Upon some points there is conflict in the evidence; but a careful reading of the record discloses ample support for the findings. No useful purpose would be subserved by stating the evidence. The judgment and order are affirmed.

We concur: BURNETT, J.; HART, J.

BAKER et al. v. STARCKE. SAME v. J. J. & W. W. MUENZENMAYER. (Supreme Court of Kansas. Nov. 6, 1909.) Error from District Court, Geary County; O. L. Moore, Judge. Actions between Josiah Baker and H. Culham and Walter Starcke, and between Josiah Baker and H. Culham against J. J. & W. W. Muenzenmayer.. Judgment for plaintiffs, and defendants bring error. Affirmed. W. S. Roark, for plaintiffs in error. James B. Humphrey, for defendants in error.

PER CURIAM. These actions were brought by the indorsees against the makers of promissory notes. The defense was that the notes were

the words "Given for a patent right," and that the provisions for the registration of the letters patent had not been complied with by the payee. Gen. St. 1901, § 4356. The notes were indorsed to the plaintiffs for value before maturity, and the only question was whether they took them without notice of the infirmity. Upon this question the evidence was conflicting, and the court found for the plaintiffs. found for the plaintiffs. As there was competent and substantial testimony supporting the findings, and no error appears in the proceedings, the judgments are affirmed.

Kansas. Dec. 11, 1909.) Appeal from Court of CAZZELLE v. BROWN. (Supreme Court of Kansas. Dec. 11, 1909.) Appeal from Court of Common Pleas, Wyandotte County; William G. Holt, Judge. Action by May Cazzelle against William Brown. Judgment for plaintiff, and defendant appeals. Affirmed. John A. Hale and Henry E. Dean, for appellant. L. W. Keplinger, for appellee.

PER CURIAM. Aided by the inferences legitimately to be drawn from the proved facts, the evidence is abundant to sustain the referee's findings. No question of prior or subsequent creditor is involved. The finding is that the money in controversy belongs to Brown. Judgment affirmed.

COOK v. WILLIAMS. (Supreme Court of Kansas. Dec. 11, 1909.) Appeal from District Court, Cowley County; O. L. Swarts, Judge. Action by Cliff R. Cook, doing business as the Colonial Perfume & Toilet Company, against M. L. Williams. Judgment for plaintiff. Defendant appeals. Affirmed. C. T. Atkinson and C. R. Pollard, for appellant. Faulconer & Cunningham, for appellee.

PER CURIAM. The court properly held defendant bound by his bill of particulars as to what the fraudulent acts of the plaintiff were, and since there was no complaint that a catalogue was not sent to him, or that the plaintiff had failed to furnish a bond as required, these were not facts of which he could take advantage on the trial. Fraud is never presumed, and, the court having rightly decided that there was no proof that any of the representations made by the plaintiff were false, there was nothing to submit to the jury. The contract was in writing, its execution was admitted, and it was not proper to submit to the jury the question what the contract was. If a judgment had been returned in favor of the defendant, it would have been the duty of the court to set it aside. The judgment is affirmed.

DR. JOSEPH HAAS REMEDY CO. v. DONOVAN. (Supreme Court of Kansas. Dec. 11, 1909.) Appeal from District Court, Leavenworth County; J. H. Gilpatrick, Judge. Action by the Dr. Joseph Haas Remedy Company against J. H. Donovan, doing business as the Donovan Transfer Company. Judgment for defendant, and plaintiff appeals. Affirmed. A. E. Dempsey, for appellant. F. B. Dawes and C. P. Rutherford, for appellee.

PER CURIAM. This case turns entirely upon a question of fact, whether or not the appellee was incapacitated by reason of protracted drunkenness from entering into the contract at the time he executed the order sued on. It is contended by the appellant that there is not sufficient evidence to sustain the finding of the

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