The assignments of error requiring our at-ly. In some states, such stipulations have tention raise the question as to the necessity been held invalid as an attempt upon the of pleading and proving the notice required part of the carrier to limit its common-law by the eighth clause of the contract. The liability. There are cases in which particutrial court, it appears, held the stipulation lar stipulations, involving uncertainty as to contained in this clause to be unreasonable. the agent of the company to whom notice The action is brought upon the contract. was to be given, have been held unreasonaThe performance of the condition is not alleged, nor is any excuse shown for nonperformance. If it may be said as a matter of law that the stipulation is invalid, it is not necessary that the complaint should contain the allegations indicated, but if it may not be so said, then it would seem logically to follow that where, as here, the action is based upon the special contract, the complaint should either show performance or excuse for nonperformance. World's Fair Mining Co. v. Powers (Ariz.) 100 Pac. 957. Authority is not lacking upon the precise point here involved. "If the stipulation is valid, then the giving of notice in accordance with its requirements is a condition precedent to recovery by the owner, and compliance or excuse for noncompliance should be alleged." 6 Cyc. 506. In Case v. Railroad Co., 11 Ind. App. 517, 39 N. E. 426, where a stipulation to give notice was involved, it is said: "That such a provision as we are considering, where reasonable, must be regarded as a condition precedent, performance of which must be alleged to make the complaint good, was decided in Express Co. v. Harris, 51 Ind. 127, followed by this court in Railroad Co. v. Widman, 9 Ind. App. 190, 36 N. E. 370. To the same effect is Railroad Co. v. Simms, 18 Ill. App. 68." In Metropolitan Trust Co. v. Railroad Co. (C. C.) 107 Fed. 628, the court had under consideration a stipulation in a shipping contract, providing for notice of damage. The court says: "In the complaint there is no allegation that the petitioner made a claim in writing, verified by affidavit, and delivered the same to some proper officer or agent of the receiver, Hunt. Nor does the complaint show any waiver or excuse for a failure so to do. An averment showing the making of the claim under oath, and the delivery of it, as required by the contract, is a condition precedent, and is necessary to constitute a good cause of action." See, also, Osterhoudt v. Southern Pacific Co., 47 App. Div. 146, 62 N. Y. Supp. 134, Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, A., T. & S. F. Ry. Co. v. Means, 71 Kan. 845, 80 Pac. 604, and St. Louis & S. F. Ry. Co. v. Pearce, 82 Ark. 353, 101 S. W. 760, 118 Am. St. Rep. 75. ble; and, generally, where to give effect to the stipulation would serve to work a hardship upon the shipper, it is held inapplicable. Many of the cases cited by appellee are of the character first indicated. But it has been held by the Supreme Court of the United States, by whose views upon the subject we are bound, that stipulations requiring notice of damage do not limit the common-law liability of the carrier, and, when reasonable, are valid. Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419. By the great weight of authority such a stipulation as the one involved in this case is held to be reasonable, in the absence of a showing that in the particular case it serves to work a hardship. In the Queen of the Pacific, supra, the court say: "The question is whether, under the circumstances of the particular case, the requirement be a reasonable one or not." Again, in discussing an opinion of the Supreme Court of Texas, in which that court held a stipulation unreasonable, it is said: "The court seemed to assume that the stipulation imposed a restriction which in many cases would deny a right of action, and thereby permit the carrier to contract against his negligence, which is never allowed. The opinion seems to have gone off upon the point that, while the notice as applied to the facts might have been reasonable, it would be unreasonable when applied to a different state of facts. It is unnecessary to say that if, under the circumstances of a particular case, the stipulation were unreasonable, or worked a manifest injustice to the libelants, we should not give it effect." The purpose of the stipulation is to prevent fraud upon the carrier, to enable the carrier to investigate the claim of the shipper, and, if proper, to adjust it at once. As is said in Owen v. Railroad Co., 87 Ky. 626, 9 S. W. 698: "If executed in good faith, this stipulation must result in a benefit to both the owner of the stock and the carrier." It follows that a stipulation which is not inherently unreasonable, but which is unreasonable when applied to a certain state of facts, should be met in the complaint by a recital of those facts which would make its application to the case unreasonable, as an excuse for nonperformance; and, in the absence of such a statement of facts, the com Stipulations in shipping contracts, requiring notice to be given of loss or damage to live stock before permitting the stock to be intermingled with other stock, have been up-plaint should be held bad. We are of the held as reasonable in cases too numerous to opinion that the court erred in overruling cite here. They have been collected in ex- the demurrer to the complaint in this case. haustive notes in the ninth and fourteenth The judgment of the trial court is therefore volumes of the American and English Anno- reversed, and the case is remanded to the tated Cases, at pages 17 and 416, respective- | district court, with instructions to sustain 108 P.-31 the demurrer; costs in both courts to be paid title of the United States, properly de by appellees. KENT, C. J., and LEWIS, J., concur. DOAN, J., did not participate in the decision of this case. (13 Ariz. 265) VERONDA & RICOLETTO v. DOWDY. (Supreme Court of Arizona. April 2, 1910.) 1. MINES AND MINERALS (§ 38*) - ADVERSE CLAIMS-DESCRIPTION OF PROPERTY. In ejectment to recover a mining claim, the complaint, alleging ownership of the claim, subject to the paramount title of the United States, properly describing it by name, giving the mining district, the county and territory where located, and the book and page where the location notice thereof is recorded in the office of the county recorder, sufficiently describes the claim, under the express provisions of Civ. Code 1901, par. 3249. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 38.*] 3. MINES AND MINERALS (§ 38*) CLAIMS-DESCRIPTION OF PROPERTY. Where premises are known by a particular name or designation, they may be sufficiently described by such name or designation in a complaint in ejectment. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 38.*] 4. MINES AND MINERALS (§ 38*) ADVERSE CLAIMS. Where one has made a valid location on public land after discovery of mineral thereon, mere trespassers, making no claim to the ground under the public land laws, cannot oust him from possession by showing that the land is more valuable for some purpose other than mining. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 38.*] Appeal from District Court, Yavapai County; before Justice Richard E. Sloan. Action by J. T. Dowdy against Veronda & Ricoletto. Judgment for plaintiff, and defendants appeal. Affirmed. Ross & O'Sullivan, for appellants. Robert E. Morrison, for appellee. CAMPBELL, J. Appellee located a placer mining claim upon the unoccupied public. lands of the United States. Thereafter appellants moved into and occupied some buildings situated within the limits of the claim. This action of ejectment was brought to recover possession of the premises and for rent. Appellants complain of the overruling of their demurrer to the complaint, insisting that the description of the property is insufficient. The complaint alleges ownership of the mining claim, subject to the paramount scribing it by name, giving the mining dis trict, the county and territory where situated, and the book and page where the location notice thereof is recorded in the office of the county recorder. This is a sufficient description of a mining claim. Paragraph 3249, Rev. St. 1901. The particular portions of the claim, the possession of which is alleged to be unlawfully withheld, are described as being "lots 1 and 3 in block B and lot 3 in block A" of said claim. It is contended that, there being no such legal subdivisions of a mining claim, the description of the premises sought to be recovered is insufficient. It is sufficient to give a general description of the premises. Barclay v. Howell, 6 Pet. 498, 8 L. Ed. 477. Where further particular description, by designations by which the premises are known and may be identified by proof, are given, it benefits, rather than prejudices, the defendant. If such particular description should be held essential, the description here given is sufficient, since, where premises are known by a particular name or designation, they may be sufficiently described by such name or designation. Castro v. Gill, 5 Cal. 40; Doll v. Feller, 16 Cal. 432; Hildreth v. White, 66 Cal. 549, 6 Pac. 454; Beard v. Federy, 3 Wall. 478, 18 L. Ed. 88; 15 Cyc. 93. The demurrer was properly overruled. Error is assigned that the trial court found against appellants' contention that the ground covered by the claim does not contain valuable mineral deposits, and counsel cite various decisions of the Land Department and of the courts bearing upon the rights of a mineral claimant as against perThe authorities cited have no application to sons claiming the land for other purposes. the facts of this case, but are confined to the rights of claimants of different classes claiming under the public land laws. Appellee made a valid location, after a discovery of mineral. The appellants, being mere trespassers, making no claim to the ground under the public land laws, cannot, by showing that the land is more valuable for some purpose other than mining, oust him from possession. The judgment of the district court is affirmed. as will effectuate the legislative intent, and, if possible, avoid an absurd conclusion, and avoid making the statute invalid. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 56, 254, 259; Dec. Dig. 88 61, 174, 175, 181.*] 2. SCHOOLS AND SCHOOL DISTRICTS (§ 97*)— BONDS ELECTIONS QUALIFIED VOTERS "TAXPAYER OF THE DISTRICT." Civ, Code 1901, par. 2182, authorizing in any school district the submission to the "taxpayers of the district" the question of the issuance of bonds, when read, as it must be, in connection with paragraph 2185, providing that the election shall be held, except as otherwise provided in the title, in conformity with the general election laws, and in connection with paragraph 2186, providing that the money for the redemption of the bonds shall be raised by taxation on the taxable property in the district, and. in connection with paragraph 2176, making every adult person, who is a citizen of the United States, and who has been a resident of a school district for 30 days, and who is a parent or guardian of a child of school age residing in the district, or who has paid a tax during the preceding year, entitled to vote at any school district election, etc., is not ambiguous and uncertain for failing to provide whether taxpayers include only residents of the district, or nonresidents who are taxpayers, and the persons qualified to vote at such an election are those possessing the qualifications prescribed in paragraph 2176, and the phrase "taxpayer of the district" is limited to those who pay taxes on property within the district, and the paragraph so construed is not in conflict with the organic act (Rev. St. U. S. 1878, § 1860), relating to the qualifications of voters. [Ed. Note.-For other cases, see School Districts, Cent. Dig. § 226; 97.* Schools and Dec. Dig. § For other definitions, see Words and Phrases, vol. 8, pp. 6890, 6891.] 3. SCHOOLS AND SCHOOL DISTRICTS (§ 97*) NOTICE OF ELECTION-STATUTORY REQUIRE MENTS. A substantial compliance with the statute prescribing the notice of an election is all that is required. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 226; Dec. Dig. § 97.*] 4. SCHOOLS AND SCHOOL DISTRICTS (§ 97*)ELECTIONS-NOTICE-SUFFICIENCY. Where notices of an election in a school district were posted in three public places in the district, and by publication once a week for three weeks in a newspaper, there was a substantial compliance with Civ. Code 1901, par. 2183, providing that an election shall be called by posting notices in three public places, and by publication in a newspaper not less than once a week for three successive weeks; and the fact that there was a defective publication in another newspaper did not affect the validity of the election. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. § 226; Dec. Dig. 8 97.*] 5. SCHOOLS AND SCHOOL DISTRICTS (§ 97*)ELECTIONS-STATUTES. Civ. Code 1901, par. 2184, authorizing the board of supervisors to give notice of a school district bond election, which notice shall contain the hours during the day, not less than six, in which the polls will be open, authorizes the board to designate the hours during the day on which the election shall be held, without regard to the general election laws, or to the law relating to the elections of school trustees. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 226; Dec. Dig. § 97.*] 6. PLEADING (§ 34*)-CONSTRUCTION OF ALLEGATIONS "MORE THAN ONE." An allegation, in a pleading contesting the validity of an election in a school district, authorizing the issuance of bonds, that "more than one" person voted in favor of the bonds who was not a taxpayer of the district is tantamount to an allegation that two votes were cast by persons who were not taxpayers of the district. [Ed. Note. For other cases, see Pleading, Dec. Dig. § 34.*] 7. ELECTIONS (§ 239*)—"VOTES CAST." Blank ballots are not "votes cast." [Ed. Note. For other cases, see Elections, Cent. Dig. § 218; Dec. Dig. § 239.* vol. 8, pp. 7360, 7361.] For other definitions, see Words and Phrases, 8. SCHOOLS AND SCHOOL DISTRICTS (§ 97*)— CONTESTS SPOILED VOTES. A complaint, in a suit to contest the validity of a school district election, authorizing the issuance of bonds, which alleges the number of votes cast, of which four were "spoiled," requires the deduction of the spoiled ballots in determining the number of votes cast for and against the issuance of bonds, for the word "spoiled" in the complaint must be construed in the light of Civ. Code 1901, par. 2340, providing that spoiled ballots returned by a voter shall be canceled. [Ed. Note. For other cases, see Schools and School Districts, Dec. Dig. § 97.*] Appeal from District Court, Cochise County; before Justice Fletcher M. Doan. Action by J. C. Krigbaum against C. W. Hicks, as County Treasurer of Cochise county, and others, constituting the board of supervisors of the county, in which J. M. O'Connell intervened and prayed for the relief prayed for by plaintiff. From a judgment granting the relief prayed for, defendants appeal. Reversed and remanded. Neale & Sutter and J. M. O'Connell, for apThe Attorney General, for appellants. pellees. LEWIS, J. This is an appeal from a judgment entered in favor of the plaintiff and the intervener, joined as appellees, against the defendants and appellants, enjoining and restraining the defendant C. W. Hicks, as treasurer of Cochise county from delivering certain bonds of school district No. 2 within said county, in the aggregate sum of $92,000, to the purchaser thereof, and enjoining and restraining the defendants C. J. McCabe, J. J. Bowen, and J. Scheerer, members of the board of supervisors of said county, from authorizing such delivery or proceeding further with the issuance, sale, or delivery of said bonds, and from the further levy of any taxes for the payment of the interest or redemption of said bonds, or any part thereof, and further decreeing said bonds void. J. G. Krigbaum, one of the appellees and a taxpayer of school district No. 2, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes commenced this action in the court below by | end was never intended or suspected by the his complaint, praying for the relief subse framers of the act." Peckham, J. (dissentquently granted. Thereafter J. M. O'Con- ing), in People v. Board, etc., of Onondaga nell, also a taxpayer of the district, upon County, 129 N. Y. 395, 445, 29 N. E. 327, 14 leave granted filed his complaint in interven- L. R. A. 624. "Nothing is better settled than tion, praying for similar relief. To these that statutes should receive sensible concomplaints the defendants interposed gener-struction, such as will effectuate the legisla. al demurrers, which demurrers were by tive intention, and, if possible, so as to avoid the trial court overruled, and, the defend- an unjust or an absurd conclusion." Lau ants electing to stand thereon, judgment was Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. duly entered in favor of the plaintiff and in- 517. 36 L. Ed. 340, and cases there cited. tervener and against the defendants. The "Where any particular construction would appellants assign error in the overruling of lead to an absurd consequence, it will be the general demurrers to the complaint, and presumed that some exception or qualificato the petition in intervention, and error in tion was intended by the Legislature to rendering judgment in favor of the com- avoid such conclusion." Com. v. Kimball, 24 plainant and intervener. Pick. (Mass.) 366, 370, 35 Am. Dec. 326; 1 Bl. Comm. 91. "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always therefore be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law, in such cases, should prevail over the letter." U. S. v. Kirby, 74 U. S. 482, 19 L. Ed. 278. "Such construction ought to be put upon a statute as may best answer the intention which the makers had in view. The intention ✦✦ is sometimes to be collected from the cause or ne cessity of making a statute; at other times, from other circumstances. Whenever this can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construc tion seem contrary to the letter of the statute. A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter. A thing which is within the letter of a statute is not within the statute, unless it be within the intention of the makers." Bac. Abr., Statute, 1, 5, and authorities there cited; People v. Insurance Co., 15 Johns. (N. Y.) 358, 380, 381, 8 Am. Dec. 243; Riggs v. Palmer, 115 N. Y. 506, 509–511, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819; State v. Boyd, 2 Gill & J. 365, 374; Chesapeake & Ohio Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. 1, 152; City of Baltimore v. Root, 8 Md. 95, 105, 63 Am. Dec. 696; New England Car Spring Co. v. Baltimore & O. R. Co., 11 Md. 81, 90, 69 Am. Dec. 181; Oates v. Bank, 100 U. S. 239, 244, 25 L. Ed. 580. “A rigid and literal reading would in many cases defeat the very object of the statute. * The most important question presented is the validity of paragraph 2182 of the Revised Statutes of 1901, under which the school bond election at which these bonds were authorized was held. It reads: "Sec. 2182 (sec. 53). The board of trustees of any school district, may, when in their judgment it is advisable, and must upon petition of a majority of the heads of families residing in the district, call an election and submit to the taxpayers of the district whether the bonds of such district shall be issued and sold for the purpose of raising money for purchasing or leasing school lots, and for building one or more school houses, and supplying the same with furniture, necessary apparatus, and improving the grounds, and for liquidating any indebtedness already incurred for such purposes." Appellees contend that this statute is void for the reason that, by the use of the phrase "taxpayers of the district," it permits the submission of the question to persons not qualified to vote under the organic act (Rev. St. U. S. 1878, § 1860), irrespective of age, residence, or citizenship, and for the further reason that it is ambiguous and uncertain, in that it does not appear whether taxpayers include only residents of the district, or whether it includes nonresidents who are taxpayers of the district, or whether it includes residents of the district who pay taxes on property outside the district. If a meaning involving the conflict, as well as the absurdities and ambiguities thus suggested, must be adopted, then the law is void. We should, however, hesitate before accepting such an interpretation, and endeavor to discover an alternative consistent with the organic act and in itself reasonable. "It must not be lost sight of that the attitude of courts is not one of hostility to acts whose constitutionality is attacked. On the contrary, all the presumptions are in their favor, and courts are not to be astute in finding or sustaining objections." In re Sugar Notch Borough, 192 Pa. 353, 43 Atl. 985. "Where any particular construction which is given to an act leads to gross injustice or absurdity, it may generally be said that there * * Every stat ute ought to be expounded, not according to the letter, but according to the meaning. And the intention is to govern, although such construction may not in all respects agree with the letter of the statute. The reason and object of a statute are a clue to its meaning, and the spirit of the law and the intentions of its makers are dili bend to these." Tracy v. Railroad Co., 38 | trict who pays taxes upon property within N. Y. 433, 437, 98 Am. Dec. 54; Rutledge v. Crawford, 91 Cal. 526, 533, 27 Pac. 779, 13 L. R. A. 761, 25 Am. St. Rep. 212; In re Opinion of the Justices (1891) 66 N. H. 629, 33 Atl. 1076. . "In the construction of a statute, it is the intent and purpose of the law, not the letter, that must control, and the whole statute must be considered." Leibes v. Steffy, 4 Ariz. 11, 32 Pac. 261. Paragraph 2182, the one in question, occurs in title 19 of the Revised Statutes, treat ing the subject "Education." Paragraph 2183 provides the method of the calling of the bond election. Paragraph 2184 provides the form of notice of such election. Paragraph 2185 provides: "Such election shall be held, except as otherwise provided in this title, in conformity with the general election laws of the territory of Arizona." Conceding for the moment, that paragraph 2182 is in terms in conflict with the organic act, and so ambiguous and uncertain as to render the law void, we here have other matter which must be looked to in placing upon it a true construction. We have a right, in fact it is our duty, to read into the paragraph such other portions of the act as properly explain and qualify it. If by so doing the general term "taxpayers of the district" be limited so as to free it from the Intrinsic absurdity and ambiguity suggested, and to harmonize it with the requirements of the organic act, it is then a valid statute. Reading paragraph 2185 in connection with paragraph 2182, we are of the opinion that it furnishes a reference to other provisions of the statutes limiting and defining the expression "taxpayers of the district." The words "except as otherwise provided in this title," in paragraph 2185, exclude the application of the general election laws as the test of the qualification of voters at a school bond election. Paragraph 2176, tit. 19, restricts the general expression "taxpayers of the district." Paragraph 2176, in conjunction with paragraph 2182, prescribes the qualifications of voters at a school bond election. Thus interpreted, paragraph 2182 is not in conflict with the organic act. Nor have we in so determining lost sight of the argument of the appellees, to the effect that paragraph 2176 occurs in those sections of the title which particularly relate to the election of school trustees. A reading of the section discloses that the qualifications therein laid down are not merely for elections at which school trustees are to be chosen, but for any school district election. For the reasons already stated, the expression "taxpayers of the district" in paragraph 2182 is not ambiguous and uncertain in that it does not appear whether it includes only residents of the district or whether it includes nonresidents who are taxpayers of the district. There remains the suggestion that, even so interpreted, it is ambiguous in that it may mean a taxpayer residing in the dis the district, or one who pays upon property without the district. We are of the opinion, in view of the provisions of paragraph 2186, providing that the money for the redemption of said bonds and the payment of interest thereon shall be raised by taxation upon the taxable property in said district, that both the legislative intent and a reasonable construction require us to read the phrase to mean those who pay taxes upon property within the school district. The case of Cronley v. City of Tucson, 6 Ariz. 235, 56 Pac. 876, is relied upon by appellees. In that case this court had under consideration section 2, Act No. 76, Laws Ariz. 1897, which reads: "At any city election, every taxpayer shall be entitled to vote, without distinction of sex, but nothing herein shall be considered as abridging the right of elective franchises possessed by any person." A reading of the entire act discloses that section 2 is nowhere aided, construed, or limited by reference either to other portions thereof, or to other laws of the territory. Nor can there be an implied limitation upon the term used without making the section meaningless and inoperative. The declsion holding this section invalid as in conflict with the organic act is correct, and is distinguished from the case at bar. For the foregoing reasons, and upon the following authority, we hold that paragraph 2182 of the Revised Statutes of 1901 is valid: Walnut v. Wade, 103 U. S. 683, 26 L. Ed. 526; Hannibal v. Fauntleroy, 105 U. S. 408, 26 L. Ed. 1103; Elkin v. Deshler, 25 N. J. Law, 177. Our attention is next called to the insufficiency of the publication of the notice of election. Paragraph 2183 of the Revised Statutes of 1901 provides: "Such election must be called by posting notices signed by the board, in three of the most public places in the district not less than 20 days before the election; and if there is a newspaper published in the county, by publishing such notice therein, not less than once a week for three successive weeks." The order of the board of trustees required "that notices of holding said election be given by posting in three of the most public places in said district No. 2 and by publishing at least once a week for three successive weeks, beginning April 4, 1908, in the Review and Miner, daily newspapers published in the city of Bisbee." It is conceded that the posting was sufficient. It is also conceded that there was a sufficient publication in the Miner. The publication in the Review was insufficient. "It is not an unusual provision that notice of a coming election shall be published in one or more newspapers for a certain time before election day. The sole purpose of this being to warn the electors that an election is to be held, it is generally held that a substantial compliance with the statute is all that is re quired." 15 Cyc. 324. We hold that the elec |