the general assembly did not so consider it. The provisions for the levy of the tax and for the election of a treasurer are affirmative matters, and are not properly embraced within a general appropriation bill. We hold, then, that this bill, which merged into this act, was not a general appropriation bill. Therefore the bill, before its passage, having been a special appropriation bill, its validity is to be determined by the proper construction of section 32. Sections 21 and 32 of article 5 of our constitution, however, are both so intimately connected with the question before us that they should be considered together. Section 21 applies to all bills except the general appropriation bill. It provides that no bill, with the exception of the general appropriation bill, shall be passed containing more than one subject, which shall be clearly expressed in its title. It will be observed that not only are all bills of a general character within its purview, but also all appropriation bills other than the general appropriation bill. So that, so far as the limitations of this section are concerned, the general appropriation bill may contain as many subjects as are properly within the power of the general assembly to make provision for. It will also be observed that as to all other appropriations, by the special injunction of the same section, each bill therefor must contain only one subject. To make clear beyond question the conclu- | sion which we have reached, a brief statement of the reasons for the incorporation of this section will assist us. In language more or less variant, it is said that one of the objects was to prevent the combining of disconnected or incongruous subjects into one bill, and thereby gaining a support for all as grouped together, which, as separate bills, each, alone, could not command. Not content with this safeguard, which applies to every kind of a bill except the general appropriation bill, the framers of our organic act adopted section 32. It applies only to bills which carry appropriations, and divides them into two general classes: First, the general appropriation bill; second, all other bills carrying appropriations, or special appropriation bills. It is true that the people are affected more or less by any bill which is merged into law, but in a peculiar sense are they interested in measures which disburse the public revenue. The public revenue, whether derived from taxation which falls upon all classes alike, or whether derived from other sources, belongs equally to the people. Thus, properly considering the situation, the wisdom and foresight of the members of the constitutional convention have been amply justified by section 32. All bills other than appropriation bills had been sufficiently guarded by section 21 in the requirement that each general subject of legislation must have its separate bill, so that it should stand or fall upon its own merits. But the evils and dangers of combinations and "logrolling" in the matter of the appropriation of public revenue were so great that a separate provision was inserted in our constitution to protect it from improvident disbursements. So section 32 regulates the two general classes of appropriation bills, by providing that even the general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the three great departments of state, interest on the public debt, and the public schools, and that all other appropriations shall be made by separate bills, each embracing but one subject. Both sections, therefore, apply to appropriation bills, and these are doubly guarded. Whether we construe "each" as qualifying and referring to "bill," or hold that "each" refers to "appropriation,"-as to which we express no opinion, the same conclusion follows. Section 32 was adopted not merely to make emphatic the exception found in section 21. Its special office is to guard against improper appropriations of the public revenue, and to impose restrictions upon the manner of making the same not contained in, and in addition to those found in, section 21. Whatever may be the meaning that should be given to the word "subject," in section 21, we are satisfied that it is consonant with, and effectuates, the further restrictions sought to be imposed by section 32, to give "subject" as found in this latter section a meaning substantially equivalent to "purpose." Instead of the word “subject" in section 21 of our constitution, the constitutions of some of the other states have in like provisions the word "object." Some states, as Texas and New York, give to "subject" a less restrictive meaning than “object." Others, like Michigan, regard these words as substantially synonymous. The rule that words found in the same constitution are presumed to have been employed in the same sense is neither invariable nor inflexible. It is purely an arbitrary rule,—one that rests upon presumption merely, and in its application is of but slight force, and readily yields where a contrary intent is apparent. Cooley, Const. Lim. (5th Ed.) p. 75. A definition has already practically been given to this provision in Re Continuing Appropriations, 18 Colo. 192, 32 Pac. 272, where this court says: "One object of this [section] is evidently to prevent the placing in one bill of appropriations for several purposes, and thereby combining in favor of all the advocates of each." The object of this act, of course, was to provide money for the support of these four institutions. The appropriation for each certainly constitutes one purpose.one subject,-each separate and distinct from each of the other three, and each should be made to depend for passage or defeat solely upon its own merits. As there are four institutions to which the proceeds of the tax levied are to be applied and exclusively devoted, it follows that there are four distinct subjects or purposes of appropriation contained in one act, which is inhibited by section 32 of article 5 of the constitution. To give to the word "subject" a meaning broader than this would destroy one of the objects of this constitutional provision. To give it the broad meaning for which the contention is made would logically permit the legislature in one bill, entitled "An act to provide for an appropriation to defray the expenses of the government," to make appropriations for every conceivable and possible object within the power and contemplation of the legislature to provide for, and would tolerate the combining into one special bill appropriations for every state institution and arm of the government, and thus make of a special bill a broader and more comprehensive measure than the general appropriation bill itself. Such an interpretation would really make, under our constitution, only two appropriation bills,-one, the general appropriation bill, containing the subjects which said section 32 of the constitution specifies as properly included therein; the other, a special bill to defray the expenses of the state government, and embracing every subject not comprehended in the general appropriation bill. It is conceded that, logically, such would be the result of giving to the word any broader meaning than we have given it. But such interpretation is clearly negatived by that clause of section 32 which divides into two classes all appropriation bills, viz. the general appropriation bill, and all other appropriation bills, which clearly contemplates that there shall be, and necessarily must be, as many appropriation bills as there are subjects or purposes of appropriation. For the reasons given, we hold that the act is unconstitutional. (21 Colo. 88) RHOADES et al. v. HIGBEE. (Supreme Court of Colorado. April 1, 1895.) EJECTMENT-PLEADING-JUDGMENT-APPEAL. 1. A complaint alleging that plaintiff is the owner and entitled to the possession of the lands sued for, and that defendants wrongfully took and withhold the possession, states a good cause of action, under Code, c. 23, although it contains the additional averments that the sheriff, in attempting to execute a writ of restitution upon a judgment previously recovered by defendants, put them into possession of the strip in controversy, which was not embraced by such judg ment. 2. An answer to such complaint which merely denies that the sheriff put defendants into possession of any part of the lands described in the complaint, and that they entered into possession of any land awarded to plaintiff, without denying plaintiff's ownership, or that they are in possession, is insufficient. 3. A judgment which correctly decides that a certain prior judgment in favor of defendants, for the possession of certain lands, did not entitle them to the strip in question in the present suit, and awarding the possession thereof to plaintiff, will not be reversed because it also improperly assumes to correct such prior judgment by clearly excluding the strip in controversy. Error to district court, Bent county. Action by William Higbee against Abram Rhoades and others to recover possession of real estate. From a judgment for plaintiff for the possession of the land sued for, defendants bring error. Affirmed. The complaint in this case alleges that plaintiff, Higbee, is the owner, in fee simple, and entitled to the possession, of a certain quarter section of land, situate in Bent county, Colo.; that before the bringing of this action the defendants wrongfully and unlawfully and forcibly entered upon and took possession of the same, and ousted the plaintiff therefrom, and still continue, unlawfully and wrongfully, to withhold and retain from plaintiff the possession of the same. In the complaint there is stated a good cause of action to recover possession of real property, under chapter 23 of our Code. In addition to the matters that are properly contained in a complaint in such an action, there are a number of other allegations, which, in substance, disclose the following state of facts: At the September, 1890, term of the district court of Bent county, Rhoades et al. (who are plaintiffs in error here, and were defendants below in the case at bar), as plaintiffs, instituted an action in the nature of an action of ejectment against William Higbee, who is defendant in error here, and who was plaintiff in this action below. In that original ejectment action, Rhoades et al. recovered a judgment for the possession of a certain strip of land, about 72 feet in width by 1⁄2 mile in length, and a writ of restitution was awarded them to enforce the judgment. In January, 1891, the sheriff, in attempting to execute the foregoing writ, put Rhoades et al. into possession, not only of the strip of land theretofore awarded to them by the said judgment, but also into the possession of an additional strip of land, about 99 feet in width and 1⁄2 mile long, lying immediately north of, and adjacent to, the foregoing strip. In March, 1891, this action which we are now considering was instituted by Higbee, in the same district court, to recover the possession of the aforesaid strip of land, 99 feet in width. This complaint further charges that the sheriff, in attempting to execute the writ of restitution, construed said judgment and the writ of restitution as embracing a strip of land aggregating in width the two strips herein before described, and put Rhoades et al. into possession of both, which they still retain. are other allegations in the complaint, upon which was based an application for a temporary writ of injunction, but they are unnecessary to be considered here. For the purposes of this decision, the foregoing summary of the complaint is all that is necessary. There Hedley V. Cooke, for plaintiffs in error. Charles M. Rigley, for defendant in error. CAMPBELL, J. (after stating the facts). A demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action was filed by the defendants to this complaint, and overruled by the court. This ruling was proper, because, as has been stated, the allegations of the complaint were sufficient to constitute the action one for the recovery of the possession of real property. Upon the overruling of the demurrer the defendants, Rhoades et al., filed an answer in which they denied that the sheriff wrongfully placed them in the possession of any land to which they were entitled under the judgment set out in the complaint. They further denied that the sheriff placed them in possession of any part of the quarter section of land described in the complaint, and denied that they had ever entered upon any lands awarded to the plaintiff. Upon the supposed issues thus joined, a trial was had to the court without a jury, apparently by agreement of the parties. The only evidence offered on the trial was that introduced by the plaintiff, Higbee, and consisted of the instructions of the court, the verdict of the jury, and the judgment of the court in the original ejectment action. The defendants, Rhoades et al., offered no testimony whatever. From this evidence the court made a finding to the effect that the intention of the verdict, as returned by the jury, and the judgment, as entered of record by the clerk, was to award to Rhoades et al., plaintiffs in the original case, only the land described as the strip 72 feet in width by 2 mile in length. Upon such finding the court made an order directing the clerk of the court to correct the records by entering therein a reformed judgment, which the court prepared, and which is set out in the bill of exceptions in this case, which correctly, according to this finding, expressed the judgment which, as a matter of fact, was rendered and pronounced by the court at the September, 1890, term in the ejectment action, and which, as thus corrected, more clearly described the strip of land, 72 feet wide, which the court and jury evidently intended to award to Rhoades et al. in that action. In addition to such decree and order making the foregoing correction, the court below adjudged that the plaintiff, Higbee, recover from the defendants, Rhoades et al., possession of that strip of land, 99 feet wide by 2 mile long, lying immediately north of and adjoining the strip of land, 72 feet wide, described above. Exactly upon what theory, under the complaint in this case, and in this character of an action, the district court corrected the original judgment pronounced in the first action, we are at a loss to know; but the decision of this case does not call for any determination by us of the correctness or incorrectness of such ruling. Under our construction of the pleadings in this case, the court was fully justified in finding, as a matter of law, upon the complaint and answer, that the plaintiff, Higbee, was entitled to recover the possession of the strip of land in controversy in this action, viz. the strip 99 feet wide by 1⁄2 of a mile in length. It will be observed that the complaint alleges that the plaintiff, Higbee, was seised in fee of the premises in controversy, and entitled to its possession; that the defendants wrongfully ousted plain tiff therefrom, and still wrongfully and unlawfully withhold possession thereof from the plaintiff. In their answer, defendants do not deny the ownership of the plaintiff. They do not deny that they are in possession of the property. By failing to deny the allegations of the complaint so charging, they admit that they are in possession, and that plaintiff is the owner. They deny that the sheriff wrongfully put them into possession of any land to which they were entitled under the original judgment, and deny that the sheriff put them into possession of any portion of the 160-acre tract described in the complaint. They further deny that they entered into possession of any land awarded to the plaintiff Higbee. As has been said, however, there is no denial in the answer of plaintiff's ownership, or that the defendants were in actual possession of the property in controversy at the time this action was instituted. The denial that the sheriff put them into possession of any part of the quarter section in dispute is not at all inconsistent with the fact that they themselves entered into and took possession thereof, and still retain the same, and the complaint so charges. We see no pertinency in the denial that defendants entered upon any lands awarded to the plaintiff, Higbee, as there is nothing either in the complaint or the answer to show that any award of land had ever been made to Higbee. The denials of this answer do not in any way put in issue the material allegations of the complaint. The most that can be contended is that the defendants merely deny that their possession of the property was wrongful. This is only a conclusion of law, and does not negative any material allegation of the complaint. It appearing from the pleadings that the undisputed facts are that the defendants wrongfully took possession of, and wrongfully withheld from the plaintiff, this strip of land 99 feet wide and 1⁄2 mile long, of which the plaintiff was at the time seised, and of which he was entitled to the possession, the action of the court in giving judgment for the plaintiff for the recovery of the possession of the property was right. It is immaterial that the decree of the court also provided for the correction of the judgment in the ejectment ac tion, and this is so even though such ruling was wrong. Payne v. Treadwell, 16 Cal. 220; F. A. Hihn Co. v. Fleckner (Cal.) 39 Pac. 214. It follows that the judgment should be affirmed. Affirmed. (27 Or. 175) LATTIE-MORRISON v. HOLLADAY et al. (Supreme Court of Oregon. April 1, 1895.) ADVERSE POSSESSION-EVIDENCE-JUDGMENT IN ANOTHER SUIT. 1. On an issue as to adverse possession, a decision, in an action against the same defendant by another plaintiff, that defendant held as mortgagee of the latter, to which action plaintiff was not a party, and which was brought long after plaintiff acquired title, is not admissible to show the character of defendant's possession. 2. Acts of 1878 and 1880, removing all legal disabilities of married women, did not affect the provision giving a married woman 15 instead of 10 years in which to sue for land. 3. A mere servant or employé of an adverse claimant, whose possession is merely temporary, and who has no interest therein, is not a party in the actual possession at the time, within the meaning of 1 Hill's Ann. Laws, § 316, requir ing an action to recover land to be commenced against such a party; and an action against and service upon such servant does not interrupt the running of limitations. 4. On an issue as to defendant's adverse possession, where there was testimony that defendant knew of plaintiff's claim of title, the court having erroneously stated that an adverse claim under color of title must be made in good faith to ripen into a perfect title, it was error to refuse to correct the error by charging that the fact that one claiming under color of title knew that he was wrong does not affect the adverse character of his holding. 5. Where the testimony is conflicting as to whether the possession of one claiming under a will was adverse to the heirs, or was in recognition of their title as cotenants, an instruction assuming that limitations would not run in favor of her grantee until he recorded his deed and entered into actual possession is erroneous. Appeal from circuit court, Clatsop county; T. A. McBride, Judge. Action by Mary E. Lattie-Morrison against Joseph Holladay and others to recover possession of the undivided one-third interest of certain lands. From a judgment for plaintiff and the refusal of a new trial, defendant Holladay appeals. Reversed. This is an action brought against Joseph Holladay, C. B. Bellinger, and W. A. Malin to recover possession of an undivided onethird of the donation land claim of Elizabeth Lattie in Clatsop county, Or. The defendants Bellinger and Malin, by their answers, denied being in possession of the property, and disclaimed any interest in or claim thereto, and the action was subsequently dismissed as to them. The defendant Holladay denied all the allegations of the complaint, except his possession, and set up as a defense the statute of limitations, and upon this issue alone the cause was tried. The facts are that on May 15, 1868, Elizabeth Lattie died seised and possessed of the land in question, leaving as her heirs the plaintiff and three other children, to wit, Ellen Cloutrie, John Lattie, and William Lattie, and a will in which she purported to devise the whole of her property to her daughter Ellen. Subsequently, John Lattie died, intestate, leaving, as his heirs, his surviving brother and two sisters; and, by reason thereof and the invalidity of the will as to plaintiff, she now claims to be, and is, unless barred by the statute of limitations, the owner and entitled to the possession of an undivided interest in the premises in controversy. After the death of Mrs. Lattie, her will was regularly admitted to probate, the estate duly administered upon, and on the 2d of September, 1872, the administrator was discharged, and the property turned over to the possession of Ellen, the devisee named in the will, who remained in possession thereof until she sold to the defendant and his grantors, as hereinafter stated. On December 13, 1872, Mrs. Cloutrie and her husband sold and conveyed 25 acres of the claim, and on July 26, 1873, an additional 19 acres (which, together with the 25-acre tract, has since been known as the "Seaside Hotel Property"), to the Oregon Real-Estate Company, a corporation of which Benjamin Holladay was president. Immediately after the purchase, the real-estate company, through Benjamin Holladay, took possession and proceeded to improve the property by constructing thereon an hotel building and other valuable improvements to be used as a seaside summer resort, and remained in possession until December 29, 1875, when it was conveyed to the defendant Joseph Holladay, to whom the possession was delivered. On January 27, 1874, Mrs. Cloutrie mortgaged the remainder of the claim to Benjamin Holladay, to secure the payment of the sum of $4,000 and interest. This mortgage was subsequently assigned to the defendant, who foreclosed it, and advertised the property for sale, under the decree; whereupon Mrs. Cloutrie, in satisfaction thereof, conveyed to him, by deed dated June 25, 1877, and recorded on July 6, 1877, the whole of the donation claim of her mother, and a short time thereafter vacated the premises. The defendant gave evidence tending to show that he immediately took possession thereof, and continued in the open, exclusive, and adverse possession of the property conveyed by the deed of June 25, 1877, and the Seaside Hotel property, until November, 1883, when he surrendered possession to the receivers appointed in a suit brought against him by Benjamin Holladay; that the receivers remained in the exclusive and adverse possession of the property until the 18th day of July, 1889, when, by order of the court, it was again turned over to him, and he went into possession, claiming the same as owner, under and by virtue of a deed from George W. Weidler, trustee and receiver, made and delivered to him at that time. The trial resulted in a verdict and judgment in favor of the plaintiff for an undivided one-fourth interest in the donation claim of her mother, excepting the Seaside Hotel property, a 65-acre tract, and a 2-acre tract sold by Mrs. Lattie, to which neither party laid claim in this action. From such judgment the defendant appeals, assigning error in the admission of evidence and the giving and refusal of instructions. C. H. Carey and F. J. Taylor, for appellant. C. W. Fulton, for respondent. against her, and did nothing amounting to an ouster. The defendant, however, contended, notwithstanding this fact, if it was a fact, that he had been in the adverse possession, claiming as owner, under the deeds from Mrs. Cloutrie and the real-estate company, for more than the statutory time, and was therefore entitled to prevail in this action, independently of the acts or conduct of either Benjamin Holladay or Mrs. Cloutrie. To meet this contention, and to show that he was in possession up to 1889, as a mortgagee only, the plaintiff offered, and the court admitted, in evidence, a decree of the circuit court of Multnomah county of date July 12, 1886, in a suit between Benjamin Holladay and the defendant, in which it was found, adjudged, and decreed that the defendant held such property as the mortgagee of Benjamin Holladay only, and directing that redemption be made within 90 days, or, in default thereof, that the property be sold to satisfy the defendant's claim thereon. This decree was not only admitted in evidence, but the court instructed the jury that it conclusively established the fact that Benjamin Holladay was the real owner of the property in controversy, and the defendant but a mortgagee in possession, and therefore his rights were to be ascertained and determined the same as if Benjamin Holladay had remained in possession of the property, and had been holding in recognition of plaintiff's title. The possession of the defendant or the receivers appointed in the suit of Holladay v. Holladay should not be regarded as adverse to plaintiff until after the judicial sale in 1889. The admission of the decree in evidence, and the effect given thereto by the court, constitute the first and an important assignment of error in this case. The objection to its admission is that, as to the parties to this action, it is res inter alios acta, and therefore not competent evidence. The fundamental rule on this subject undoubtedly is that the record of a judgment or decree in personam or quasi in rem can affect only parties and privies; that is, those who have the right to adduce testimony or cross-examine the witnesses introduced by the other side, or who have a right to defend the action or suit, or to appeal from the judgment or decree, or those who claim by mutual succession or relationship to the same rights of property or subject-matter. All other persons are strangers, and the judgment is not binding upon them. Starkie, Ev. (10th Ed.) 318; Black, Judgm. §§ 600, 794; 1 Herm. Estop. § 299; Freem. Judgm. § 154; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165. It is apparent that, under this rule, the decree in question was not admissible in evidence to establish Benjamin's Holladay's interest in the property, nor was it conclusive upon the parties to this action. The plaintiff was an entire stranger to the proceedings. She had no right to appear in the suit or con trol the proceedings or to appeal therefrom, nor is she claiming under or through either of the parties thereto. Whatever right she has in the property in controversy accrued and was fixed long prior to the commencement of the suit of Holladay v. Holladay, or the rendition of the decree therein, and is entirely independent of any interest of the Holladays. Nor is it sufficient that the defendant here is a party to both proceedings. Estoppels must be mutual, and, unless the decree is binding upon both parties, it is binding upon neither. "No. person," says Mr. Freeman, "can bind another by any adjudication, who was not himself exposed to the perils of being bound in a like manner had the judgment resulted the other way." Freem. Judgm. § 154. And Mr. Justice Ruffin says in Redmond v. Coffin, 2 Dev. Eq. (N. C.) 443: "A decree in favor of one party cannot protect another, who was not a party, unless he be a privy. And, indeed, a stranger thus introduced cannot use the decree at all as such, because it cannot be used against him." And Gibson, C. J., says: "That the record of a judgment can affect only parties and privies, and that no one shall have advantage from it who would not have been prejudiced by it, are principles with which every lawyer is supposed to be familiar." Shulze's Appeal, 1 Pa. St. 251. See, also, 1 Herm. Estop. §§ 135, 136; Freem. Judgm. § 159; Black, Judgm. § 548; Carr v. Acraman, 11 Exch. 568; Henry v. Woods, 77 Mo. 277; Chamberlain v. Carlisle, 26 N. H. 540; Winston v. Starke, 12 Grat. 317. Now, if, by the decree in Holladay v. Holladay, it had been adjudged that the defendant in this action was the owner in fee of the premises, and that Benjamin Holladay had no interest therein, it could not for a moment be successfully contended that such adjudication would be binding upon the plaintiff, and prevent her from showing by competent evidence, if she could, that Benjamin Holladay was in fact the real owner of the premises, and that Joseph Holladay was but a mortgagee in possession. If, then, such an adjudication would not have been binding upon her, certainly she cannot claim that the defendant is bound by the decree as actually rendered, in view of the rule that "nobody can take benefit by a verdict who had not been prejudiced by it had it gone contrary.” It is argued for the plaintiff that the decree is admissible as a link in the chain of defendant's title, and to show the character of his possession. But he is claiming by adverse possession alone, and not under a paper title; nor is his possession under or by virtue of the decree, and, besides, the record shows that it was not offered for any such purpose, but for the declared object "of showing that Benjamin Holladay was the real owner of the property in dispute so far as the title stood in the Holladays up to 1889." For this purpose alone it was offered and used on the trial. In other words, it was offered and admitted as |