The pro

officer in serving the garnishees. vision of the statute is undoubtedly for the protection of the officer to prevent his being sued for not levying the writ. This being so, it would seem to follow that the benefits of the statute only accrue to him who complies with it. The officer is not required to do anything except pursuant to the statute, and the plaintiff who does not give him the statutory direction cannot complain if he fails to make the levy upon the writ in his favor. 2 Freem. Ex'ns, 262. We do not intend to hold-because it is not necessary to a decision in this case-that the sheriff would not, under any circumstances, be liable for a failure to serve the garnishment when he received no instructions in writing; but where, upon the same day, he receives two writs of attachment, one accompanied by the proper instructions and the other not accompanied by such instructions, what we do hold is that it is his duty to obey the instructions of the more vigilant attaching creditor. The court below held that the plaintiffs were entitled to recover nothing upon this cause of action. We think this conclusion is correct.

Many other questions are raised upon the appeal, which we do not deem it necessary to discuss in this action, as the question we have decided seems to dispose of it. A motion was made to dismiss the appeal for the reason that the plaintiffs had accepted satisfaction of judgment against the defendant, rendered in the court below upon a so-called "second cause of action." It is not necessary to decide, in this case, whether the second claim or item set out in the complaint, and for which the plaintiffs recovered judgment, is properly stated as a second cause of action. It may well be doubted whether this action is anything more than an action against the sheriff for false return, and the cause of action single. However, as we think the judgment should be affirmed upon the merits, it is not necessary to dispose of the motion to dismiss the appeal. The judgment is affirmed.

A motion made on information and belief, without any affidavit, to dissolve an attachment, the affidavit for which is a positive declaration under oath of the facts therein alleged, is insufficient; and it is not error to exclude parol testimony offered by the defendant in support of the motion.

Appeal from district court, Third district; before Justice C. S. Zane.

Action by Warren Barnhart against Cassle Foley, accompanied by attachment. From an order denying a motion to dissolve the attachment, defendant appeals. Affirmed.

Sawyer & Putnam, for appellant. Sutherland & Howatt, for respondent.

BARTCH, J. In this cause an appeal was taken from an order denying a motion to dissolve an attachment, which had been issued on September 6, 1893, at the suit of the plaintiff, to recover $3,000 on a promissory note which was secured by mortgage on real estate. The affidavit on which the writ of attachment was issued was in proper form, and stated, among other things, that the "mortgage has, without any act of the plaintiff, to whom it was given, become valueless," and that it was not otherwise secured. This is one of the statutory grounds on which an attachment may issue. Comp. Laws Utah 1888, § 3309, subd. 1. On October 10, 1894, the defendant filed a verified motion to dissolve the attachment, but otherwise filed no affidavit in support of said motion. His counsel claim that the motion, having been verified, answers the double purpose of a motion and affidavit; that the motion presented an issue, because it traversed the essential averments in the affidavit of attachment; and that it was error to exclude parol testimony offered by the defendant in support of his motion. The motion, which the defendant relied on as an affidavit, was verified on information and belief, in the same manner as pleadings are usually verified. While the affidavit of the plaintiff was positive and certain in its terms, was made in the usual form of affidavits, and stated that the security had become valueless without any fault on his part, the alleged affidavit or motion of the defendant stated that the security was worth not less than $1,000. Both of these allegations are material, and present the issues in the case. The former is a positive declaration under oath; the latter, it must be assumed, was made on information and belief; so that, if it were conceded that the motion had the force and effect of an affidavit, still an allegation made on information and belief, in a proceeding to discharge an attachment, cannot prevail as against one stated as a positive fact. We think the verified motion was insufficient to discharge the attachment, and that the court did not err in excluding parol testimony offered for that purpose, because, the defendant failing to support his motion by affidavit, the plaintiff was precluded from opposing the same by affidavit or other evidence. Comp. Laws Utah 1888, § 3327. The defendant, having proceeded under the statute in a manner which prevented the plaintiff from supporting his affidavit in attachment by parol evidence, thereby precluded himself from introducing such evidence in support of his motion, for it would be manifestly unjust, in such a proceeding, to grant the right to one party to introduce such evidence when such right was denied to the other. Under the proceedings, there was presented by the issue sim

ply a question of law, whether the verified motion of the defendant was sufficient to dissolve the attachment, which we think the court decided correctly. The judgment is affirmed.

SMITH and KING, JJ., concur.

(11 Utah, 194)

BUTTERFIELD v. MOUNTAIN ICE & COLD-STORAGE CO. et al.

(Supreme Court of Utah. March 16, 1895.) ACTION ON APPEAL BOND-LIABILITY OF SURETY.

1. It is no defense to an action on a bond on an appeal from a justice that it was delivered in violation of an understanding between the sureties and the appellant's agent that it was not to be delivered until the signature of the appellant thereto had been obtained.

2. The surety, having signed the bond, and delivered it to the appellant's agent, without any knowledge on the part of the obligee of such agreement, thereby clothed the agent with apparent authority to make an unconditional delivery of the bond, and he could not set up such agreement as against the obligee.

3. The fact that an appeal bond in the usual form uses the words, "We, the undersigned, as principal," followed by the names of the sureties, is not notice to the obligee that the sureties had a secret agreement with the agent of the principal that he should sign it before they should be bound.

to the justice of the peace, it was signed by the principal, the Mountain Ice & Cold-Storage Company; that it was stated and represented by the said Messick that there was no intention of delivering the undertaking on appeal to the justice of the peace, or to any one else, until it was first signed by such principal; and that, with this distinct understanding and agreement, this defendant signed the said bond; and that he never knew or had any information that the same was not signed by the principal until after payment was demanded of him as surety upon said appeal bond. The answer then further reads that, notwithstanding the agreement, Messick, in violation of it, did deliver the bond on appeal to the justice of the peace. The defendant moved the court to strike out the answer from the files as sham and frivolous, and for judgment on the pleadings. The court grant

ed the motion, and rendered judgment against the defendants. The defendant Bloch appeals.

The question before this court is whether or not the court erred in striking out the answer of the defendants, and whether the court erred in rendering judgment in favor of the plaintiff, and against Bloch, for the amount of the judgment and costs due from the Mountain Ice & Cold-Storage Company. The only real question in the case is whether or

Action by E. L. Butterfield against the Mountain Ice & Cold-Storage Company, a corporation, and B. K. Bloch and John Heil, Jr. From an order striking out the answer as sham, and a judgment for plaintiff, defendant Bloch appeals. Affirmed.

John W. Judd, for appellant. B. X. Smith and Frank B. Stephens, for respondents.

SMITH, J. The plaintiff recovered judgment in the justice's court against the Mountain Ice & Cold-Storage Company. An appeal was taken to the district court, and the defendants B. K. Bloch and John Heil, Jr., signed the appeal bond. In the district court the plaintiff again recovered judgment, which being unsatisfied, he brings this suit against the sureties on the appeal bond. The bond is in the usual form. After stating the appeal, it reads: "Now, therefore, in consideration of the premises and of the said appeal, the undersigned, as principal, and John Heil, Jr., and B. K. Bloch, as sureties, do undertake," etc. The defendant B. K. Bloch filed an answer, and alleged, in substance, that on or about the date of the bond, which was on the 12th of August, 1892, one William Messick, who was then acting as agent of the Mountain Ice & Cold-Storage Company, requested this defendant that he would sign the undertaking on appeal, and that the said bond had not then been signed by the principal, the Mountain Ice & Cold-Storage Company; that defendant stated to said Messick that he was willing to sign the said undertaking on appeal provided, before its delivery

plaintiff's action. It is not denied that the bond was sufficient, under the statutes of this territory, as a bond upon appeal. In other words, the statute does not require that the principal upon an appeal shall sign the appeal bond. Section 3660 of the Compiled Laws provides that "an appeal from a justice's court shall not be effectual, unless an undertaking be filed with two sureties," etc. In the case of Murdock v. Brooks, 38 Cal. 604, the supreme court of that state, construing the same statute, said: "An undertaking on appeal is an independent contract on the part of the sureties, in which it is not necessary that the appellant should unite. He is bound by the judgment, and no purpose could be served by his joining with the sureties." We are of the opinion that the answer stated no defense whatever, for several reasons. First of all, the failure of the principal to sign can in no possible manner injure the defendant. Section 3715, Comp. Laws Utah, provides that "when any surety upon an undertaking on appeal pays the judgment, either with or without action, after its affirmation by the appellate court, he is substituted to the rights of the judgment creditor, and is entitled to control, enforce and satisfy such judgment in all respects as if he had recovered the same." It will be observed that there is no further litigation necessary. The appellant here, if he pays the judgment which was rendered against the Mountain Ice & Cold-Storage Company in the district court, is at once substituted to the rights of the plaintiff in this action, and is entitled to control, enforce, and satisfy the judgment in all respects as if

he had recovered it. It would appear that his objection made by his answer is an extremely frivolous one. But there are other reasons why the answer states no defense. The answer sets out that Messick was the agent of the Mountain Ice & Cold-Storage Company. It is not pretended that he was the agent of the plaintiff. If it is true that the appellant has suffered any injury by the failure of the corporation to sign the bond, still. the case is one of those where one or two innocent persons suffer by the acts of a third. In such cases it is a familiar rule that he who has enabled such third person to occasion the loss must sustain it. See Herm. Estop. $ 1000. Then, again, we think the defendant (appellant here) has, by his own act, made Messick his agent, and clothed him with the apparent authority to make an unconditional delivery of the bond, and nothing short of notice to the plaintiff would avoid or vitiate it. See Id. § 1013.

It is clear that the bond is a perfect bond under the statute. The plaintiff could not have dismissed the appeal in the district court for the want of a sufficient bond, because the bond was, in all respects, regular, and the fact that it used the words, "We, the undersigned, as principal, and John Heil, Jr., and B. K. Bloch, sureties," was no notice to the plaintiff that the sureties had a secret agreement with the agent of the principal that the principal should sign before they should be named.

We think the order and judgment appealed from are right, and they are affirmed, with costs.

BARTCH and KING, JJ., concur.

(11 Utah, 200)

BRIM, Road Supervisor, v. JONES. (Supreme Court of Utah. March 16, 1895.)

DUE PROCESS OF LAW.

Comp. Laws Utah 1888, § 2087, providing that any person who drives a herd of certain animals over a highway constructed on a hillside shall be liable for certain damage done by such animals to the highway, does not deny the equal protection of the law, or deprive persons of property without due process of law, within the inhibition of Const. U. S. Amend. 14. • Appeal from district court, Third district; before Justice S. A. Merritt.

Action by Alfred G. Brim, as road supervisor, against Thomas W. Jones. From a judgment for defendant, plaintiff appeals. Reversed.

Williams, Van Cott & Sutherland, for appellant. Richards & Richards, for respond

ent.

SMITH, J. The sole question raised upon the appeal in this case is whether or not section 2087, Comp. Laws Utah 1888, is valid and constitutional. The section reads as follows: "Any person who drives a herd of horses, mules, asses, cattle, sheep, goats

or swine over a public highway where such highway is constructed on a hillside, shall be liable for all damage done by such animals in destroying the banks or rolling rocks into or upon such highway." The court below decided that this section was invalid and void, and the respondent claims that it is in violation of that portion of the fourteenth amendment to the constitution of the United States which provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws." It is contended that this statute deprives the class of persons described in it of the equal protection of the laws, and deprives them of property without due process of law. An exhaustive argu ment is made in behalf of both the appellan and respondent in this case, and we have examined all the cases cited on either side. "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which should seldom, if ever, be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes; but i is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." This was the language of Marshall, C. J., in Fletcher v. Peck, 6 Cranch, 87. It is by this rule then that we must determine whether the statute in this case violates the constitution. The claim on behalf of the respondent is that the act is class legislation, and denies to drovers named in it that protection of the law which it extends to other citizens. We cannot agree with the respondent that this law is objectionable upon the ground stated. In the case of Allen v. Press Co. (Minn.) 41 N. W. 936, Justice Mitchell, of Minnesota, delivering the opinion of the court, says: "Laws public in their object may be confined to a particular class of persons, if they be general in their application to the class to which they apply; provided the distinction is not arbitrary, and rests upon some reason of public policy growing out of the conditions or business of such class." In Cooley, Const. Lim. (5th Ed.) p. 483, the author says: "If otherwise unobjectionable, all that can be required in these cases is that the laws be general in their application to the class or locality to which they apply, and they are then public in their character, and of their propriety and policy the legislature

must judge." In the case of Barbier v. Connolly, 113 U. S. 32, 5 Sup. Ct. 357, the supreme court of the United States used the following language: "Class legislation, discriminating some and favoring others, is prohibited; but legislation which in carrying out a public purpose is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, it is not within the amendment." In Gartside v. City of East St. Louis, 43 Ill. 47, the supreme court of Illinois, speaking of an ordinance requiring certain specified teamsters who were engaged in hauling stones and coal through the city to pay a certain license, say: "From the extent and character of his business, these teams must have passed and repassed almost constantly. This, then, renders the repair of the streets more expensive and more necessary, from the fact that his vehicles seemed to be large and heavy. For the comfort and convenience of the citizens of the place, as well as persons not residing therein and traveling on its streets, it is necessary that they should be repaired and kept in good condition"; and the court upheld the ordinance for the reason stated. In the case of Railway Co. v. Beckwith, 129 U. S. 29, 9 Sup. Ct. 207, Mr. Justice Field, speaking for the supreme court, says: "The concluding clause of the first section of the fourteenth amendment simply requires that such legislation shall treat alike all persons brought under subjection to it. The equal protection of the law is afforded when this is accomplished." And again, on pages 30 and 31, 129 U. S., and page 207, 9 Sup. Ct., of the same opinion, the learned judge says: "The discriminations which are open to objection are those where persons engaged in the same business are subject to different privileges, under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the law."

It is not pretended but that the statute under consideration affects all drovers alike; that there is no discrimination made between persons engaged in the same line of business. The contention of respondent is that there is a discrimination made between those persons engaged in business as drovers and those engaged in other business which requires the use of the highway, as, for instance, teamsters and other travelers, in that the latter are not required to pay for any damage that they may do to highways situated on a hillside. It is easy to conceive that the business of drovers would be exceedingly injurious to highways situated upon a hillside if their herds pass over the ground upon and near the highway in our mountain country, inasmuch as they would cause rocks and other obstructions to be thrown into the highway, and would break down banks and otherwise specially injure the highways. It was no doubt for this reason that the legis

lature required that those persons so engaged should be specially liable for all damage that they did to the highways. Whether teamsters do like injury is not for us to decide. It is in the discretion of the legislature to regulate the use of the highways, and, if they make no distinction between different persons who use them in the same way, we see no reason for complaint.

Counsel for respondent cites numerous authorities, and among others a decision of this court, to the point that statutes requiring railroad companies unconditionally to pay for stock killed by their trains are void, and have been so held under the fourteenth amendment, above quoted. These cases are not in point. Railway companies are charged with a public duty to operate their trains, and are granted a public franchise for this purpose. They cannot escape the duty imposed upon them towards the public, to wit, the operation of their trains. If, then, while in the performance of this duty. and without fault, they casually destroy stock straying upon their road, it is manifestly a deprivation of such companies of their property without due process of law to require them absolutely to pay for it, because in such case the duty of operating the train and the duty of paying for the stock killed are directly in conflict. There are loose expressions in some of the cases cited which would indicate that the courts made some other distinction. We think, upon the ground stated, these cases are consistent with the view we take of the statute under consideration. But there is no public requirement that drovers shall drive their herds over highways situated on hillsides. It is purely a matter of individual choice whether they do or not. They have a right to do so, and, if they do no injury, they are liable to no one for anything. It is manifest, however, that the legislature considered that driving herds of stock of the character described over highways situated upon a hillside was calculated to damage such highways. The maxim of the law is, "Sic utere tuo ut alienum non laedas," the legal meaning of which is, "So use your own property as not to injure the right of another." It is but an enforcement of this rule that is attempted by the statute in this case. The rule as was stated by Lord Truro in Egerton v. Earl Brownlow, 4 H. L. Cas. 195, is applicable to the public in at least as full force as to individuals. The public own the highways, and must bear the expense of keeping them in repair.

By this statute they simply say to the drover, who is possessed of property which, if driven in a certain way, is calculated to destroy the highway, that he must so use his own property as not to destroy that of the public. There is no absolute liability for using the public highway, but it is deemed probable that a use in a particular way. with particular property, will produce a pe

culiar injury, and, if such injury is produced, then the person producing it is held liable. We cannot see that this unjustly discriminates against such persons. On the contrary, it seems to be reasonable, fair, and just legislation as between all of the citizens. It must be held, if a case can be conceived that would justify the legislation, that that case existed when it passed, and it is certainly not difficult to conceive of the injury and wrong that it was intended to prevent by this statute. We are of the opinion that the statute is valid, and that the court below, in holding it invalid, was wrong. The judgment should be and is therefore reversed, and the case remanded for a new trial.

BARTCH, J. The plaintiff procured a judgment for $402.80 against the defendant, Pratt, who was a police officer in Salt Lake City.

There was due Pratt, as salary from said city, the sum of $100, for which sum the plaintiff served the respondent with process of garnishment. When the return thereof was made the plaintiff moved for judgment thereon in his favor, which motion, for judgment against the garnishee, was denied. Thereupon the plaintiff appealed to this court.

Salt Lake City, the respondent herein, is a municipal corporation, and, as appears from the record, has enacted an ordinance whereby it has attempted to waive "its right and legal exemption from garnishment process," and consented that the wages and salaries of its employés "may be attached under garnishee process in the same manner and to the same extent as is provided by the general laws of the territory," the notices of such process to be served on the city treasurer. By virtue of this ordinance it is maintained that the legal rights of the respondent to exemption from such process were waived in the case at bar, and the only question presented in the record material to this decision is whether a municipal cor poration in this territory can waive such rights. Counsel for appellant insist that ex

emption from process of garnishment is a privilege which the respondent may waive at its option, and cite several cases which appear to sustain their view; but we think the weight of authority is to the effect that a municipality cannot waive such exemption, and especially is this true in cases where the exemption is based on the grounds of public policy, and is not effected by statute. This court, in the case of Chamberlin v. Watters (Utah) 37 Pac. 566, held that section 3455, Comp. Laws Utah 1888, authorizing garnishment of corporations, did not apply to a municipal corporation, and that such a corporation could not be subjected to such proceedings upon any principle of public policy. If, then, as this court has held, the process of garnishment is without statutory authority, and in violation of public policy, when it is sought to be enforced against a municipality, how can such municipality waive the exemption? Such exemption is not a mere privilege, as claimed by counsel for the appellant. It is a legal right, which inures to the benefit of the public. It is not upheld for the benefit of the public officer, but because the public must not be inconvenienced or harassed by such proceedings in suits in which it has no interest, and have the management of its affairs and the efficiency of its officers interfered with for the benefit of the private individual. The question of the liability of municipal corporations to process of garnishment at the suit of a private party has often been before the American courts, and, while their decisions are not uniform, still it seems that a large majority of the cases hold that no such liability exists, and the reason of the rule declared by those cases appears to rest upon that public principle which exempts members of the legislature, foreign ministers, embassadors, and other public functionaries, while in the public service, from civil arrest or other legal embarrassment at the suit of a private person. The exemption is granted from public necessity, in order that the business of the municipality may be transacted by its officers without interference arising from suits in which the public is not interested; and a municipal corporation cannot waive such a right by ordinance or by previous agreement. Courts will disregard all agreements or arrangements made in contravention of public policy. Wade, in his treatise on Attachment & Garnishment (volume 2, § 345), says: "The foundation of the doctrine that municipal corporations cannot be called upon to answer as garnishees is purely a question of public policy. They are regarded as integral branches of the government, exercising only public functions, and intended to guard public interests. To permit them to be subjected to actions, and possible judg ments and expense, in relation to matters in which they have no interest, it is claimed would be an intolerable burden, in view of