under subdivision 5 of section 4354 of the Code of Civil Procedure." It appears from the record that plaintiff elected to stand on his challenge, and refused to go to trial before the jury. Thereupon a jury was sworn to try the case. The defendants offered no testimony, but asked the court to instruct the jury to find for defendants, which the court did, and a verdict was found for the de fendants, reciting that they were the owners of and entitled to the possession of the mining claim described in the complaint; whereupon judgment was entered in favor of defendants in accordance with said verdict, to all of which plaintiff duly excepted. The defendants offered no evidence whatever to prove their cross demand against the plaintiff, and the court erred in instructing the jury to find for them. Under the provisions of section 4354, subd. 4, the court should have ordered a dismissal of the case or juagment of nonsuit when the plaintiff refused to produce his proof and the defendants failed to produce any testimony in support of their cross demand against plaintiff. The defendants were not entitled to the relief asked without proof of their demand. The judgment is reversed, and cause remanded for trial. If the parties refuse to proceed with the trial, the court below is Idirected to dismiss the action. Each party shall pay their own costs on this appeal. MORGAN, C. J., and HUSTON, J., con cur. (4 Idaho, 391) RANKIN 7. JAUMAN. (Supreme Court of Idaho. March 7, 1895.) COMPENSATION OF COUNTY COMMISSIONERS. 1. Under section 5 of an act entitled "Concerning Fees and Compensation of County Officers," approved March 13, 1891, county commissioners are only entitled to a per diem and mileage therein allowed when acting as a board actually in session and transacting county busi ness. 2. Boards of county commissioners are entireties, and can only act collectively and as empowered by law. 3. If a member of the board performs services for the county, whether by order of the board or on his own motion, he does so as an individual, and his claim for compensation must be presented in the same manner and take the same course as the claim of any other person. (Syllabus by the Court.) Appeal from district court, Ada county; Edward Nugent, Judge. Information by W. A. Rankin against William Jauman, a member of the board of county commissioners of Ada county, for corruption in office. From a judgment of nonsuit, plaintiff appeals. Reversed. Hawley & Puckett, for appellant. Geo. Ainslie and W. E. Borah, for respondent. HUSTON, J. This action was brought under section 7459, Rev. St. Idaho, which is as follows: "Sec. 7459. When an information in writing verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer and such costs as are allowed in civil cases." Upon a demurrer to the information, the district court held that the statute was unconstitutional. On appeal to this court from said decision of the district court, the judgment of the district court was reversed, and the cause remanded for a trial. 36 Pac. 502. Upon a trial before the court without a jury, judgment of nonsuit was entered upon motion of defendant, and from that judgment this appeal is taken. The case is before us on a bill of exceptions, from which, and the evidence therein contained, the following facts appear: At the regular biennial election of 1892 the defendant was elected a member of the board of county commissioners for Ada county from district No. 1. He qualified as such officer on the 2d day of January, 1893. At that time the following laws were in force, relative to the duties and compensation of county commissioners: The compensation of the members of the board of county commissioners, as fixed by section 5 of an act of the first session of the legislature of the state of Idaho, was as follows: "County commissioners of each county shall receive the sum of six dollars for each day actually engaged in transacting county business, and twenty cents per mile for each mile necessarily traveled in transacting county business." Laws 1891, p. 179. Now, this section of the statute would seem to be, and perhaps is, somewhat loosely drawn, and, unless construed in the light of recognized legal principles, would give a degree of latitude in application which would, in the intellectual analysis of a mind bent solely upon personal ends, be little conducive to the interests generally supposed to be a controlling consideration in all legislation of a general character, to wit, the public welfare. But we are compelled to conclude that in the enactment of this statute the legislature did not intend to enact a law wholly in the interest of those who might, for the time being, become the incumbents of the office, wholly and entirely ignoring the higher interests of the people. It is the duty of courts, in construing legis lative enactments, to so construe them as to carry out the real intention of the legislature. All laws in relation to the same subject-matter must be construed in pari materia. As above stated, the respondent, having been duly elected and having qualified as a member of the board of county commissioners for Ada county for district No. 1 of said county, made his first appearance on the 20 day of January, 1893, as a member of said board, and was duly elected chairman of said board. Section 1755, Rev. St., provides that the regular meetings of the boards of commissioners must be held on the second Mondays of January, April, July, and October of each year. As appears by the record of the board, they met in special session on the 2d day of January, 1893, were in session two days. The regular session opened on the 9th of January, and were in session nine days. A special session was held on the 7th February, and held for two days. A special session was held on April 1st for one day, making in the aggregate 14 days from the time respondent took office until the first day of the regular April session. On the 16th day of January, 1893, respondent filed the following bill, which was duly allowed by said board, the respondent acting as chairman of said board, to wit: "Ada County, State of Idaho, to William Jauman, Dr. To 14 days as Co. Com., at $6.00.. $ 84 00 To 50 miles travel, at 40c..... 20 00 $104 00" * Said bill is attested as follows: "State of Idaho, County of Ada-ss.: Wil liam Jauman, being duly sworn, says that the above account is correct; that as stated. [Signed] W. Jauman. Subscribed and sworn to," etc. And on the 10th day of April, 1893, the respondent presented the following bill, which was duly allowed by said board, respondent acting as chairman, to wit: "Ada County, State of Idaho, to William Jauman, Dr. To 82 days' services as Co. Com., at $6.00 To 380 miles travel, at 40c. -Duly subscribed and sworn to. $492 00 152 00 $644 00" From the 2d day of January, 1893, to the 10th day of April, 1893, is, inclusive of Sundays and holidays, 98 days. Deducting therefrom the occurring holidays, to wit, 14 Sundays, and the 22d February, a holiday by our statutes, we have 82 working days; and the record of the board shows that during that period the board was in session only 14 days. The respondent was elected a commissioner from the first district of Ada coun ty, and, by the provisions of law, must have been a resident of the district for which he was elected. Now, giving him the very limits of his district from which to charge mileage, he could not be more than one mile from the place of holding the session of the board of county commissioners for Ada county; and yet we find in the bills presented by the respondent, above referred to, a charge of 430 miles travel for the session of the board held for 14 days. Certainly, this shows an exhibition of virile activity, which, while doubtless a subject of admiring wonder when displayed by a "sprinter," is devoid of much of its attractiveness when viewed or considered from the standpoint of a poor and overburdened taxpayer. But this marvelous exhibition of patriotic pedestrianism is given a deeper hue by the argument of counsel for the respondent. It is contended in explanation of this charge that the bills were made out by the clerk of the board at the request of respondent, and the said clerk states in a somewhat perfunctory manner that, "for the convenience of the commissioner," he divided the number of miles traveled, and doubled the rate allowed by the statute. If this contention is accepted, the number of miles actually traveled by respondent, in attending that one session of the board, was 860 miles, and he resided less than one mile from the courthouse. There were good sprinters in the Olympic races, but their powers of locomotion fade into insignificance by the side of this wonderful exhibition. It will hardly be seriously contended, we apprehend, that mileage is chargeable for every day the board is in session; but, even if this were so, the respondent must have traveled a little over 61 miles each day the board was in session. "O wonderful, wonderful, and most wonderful, wonderful; and yet again wonderful; and, after that, out of all whooping." But it is claimed by counsel for the respondent that, if the services were actually rendered, a mere irregularity in the account will not be construed into a corrupt extortion. The board of county commissioners are an entirety, they can only act collectively, and as empowered by law. They are only engaged in "transacting county business," as that term is used in section 5 of the act of 1891, when acting as a board; and it is only while so acting that they can legally charge either per diem or mileage. It needs no authority to support this proposition. Should the board see fit to employ one of its members to perform certain services for the county, permissible by law to be performed by such officer, such member would act, not as a member of the board of county commissioners, but as an individual, and must present his claim for such services, and is subject to the same rules as any other individual presenting a claim against the county. Section 1773, Rev. St., is as follows: "Sec. 1773. The board of commissioners must not hear or consider any claim in favor of an individual against the county unless an account properly made out, giving all items of the claim, duly verified as to its correctness, and that the amount claimed is justly due, is presented to the board within a year after the last item of the account accrued." Section 1786 is as follows: "Sec. 1786. All claims against the county presented by members of the board of commissioners for per diem and mileage, or other services rendered by them, must be verified as other claims, and must state that the service has been actually rendered." It is contended by respondent that the presumptions are that an official has done his duty, and that it is incumbent upon the party prosecuting the information in this case to show, not only that the respondent has taken illegal fees, but that he has done so knowingly and with a corrupt intent. As the statement of a legal proposition, this is undoubtedly correct, and its recognition involves the inquiry, does the evidence in this case establish such a conclusion? Let us examine the evidence. The respondent presents a bill to the board for per diem allowance for 96 days, while the board were only in session for 14 days, and the period covered only contained 98 days, including 15 holidays. Said bills also contain charges for mileage which would involve the traveling by the respondent of something over 61 miles per day during each day the board was in session, and the residence of respondent was about half a mile or less from the place of meeting of the board; and in these bills respondent makes a charge of 40 cents per mile for travel, while the statute fixes the mileage at 20 cents per mile. The attempted explanation of this charge by the clerk of the board is too ridiculous to be entitled to consideration. These bills were sworn to by respondent, were presented by him to the board, were passed upon and allowed by the board, of which he acted as chairman; and yet, in the faces of these facts,-all matters of record, -we are asked to conclude that there was neither knowledge nor corrupt intent on the part of the respondent. Credulity is not esteemed a paramount virtue of the judicial mind, but surely the recognition of such a flimsy excuse for it does not rise to the dignity of a defense-as is offered in this case must involve something more than mere credulity. Officers are supposed to know the law under which they act. The maxim "ignorantia legis neminem excusat" is forcefully applicable in their case. In this whole business there seems to have been a complete ignoring, not only of the provisions of the statute, but of all rules of law and principles of common honesty; and the attempt to explain or excuse it only results in accentuating its venality, and in this cause all of the members of the board seem to have participated. As instance, J. A. Beale was sworn as a member of the board on February 27, 1893. On the 10th day of April, 1893, the board having been in session but two days since he qualified as a member, Mr. Beale presents a bill duly sworn to for 40 days' services as county commissioner, at $6 per day, and 145 miles travel, at 40 cents per mile. Such an exhibition of zeal on the part of public officers is seldom seen in this degenerate age. They preyed (upon the county treasury) without ceasing. Mr. Beale resided about one-fourth of a mile from the place where the board met; and the accounts of the other commissioner, Wilterding, seem to have been constructed, presented, and allowed upon the same lines. Between the date when Commissioner Beale took office and the date of his first bill there were 41 days, including Sundays, and he only charges for 40 days; doubtless consoling his conscience by the reflection of Lord Clive: "When I think of my opportunities, I am astonished at my moderation." In the face of this record, we are earnestly and eloquently urged to affirm the finding of the district court that there was no proof sustaining the information. The per diem allowed by the statute to members of the board of county commissioners is only chargeable for the time the board is actually in session. County commissioners can only act, or claim compensation as such while acting, as a board. The law does not contemplate that members of the board may perform services for the county as individuals, and then charge for it as commissioners. The viciousness of such a course is too apparent to require comment. The judgment of the district court is reversed, and the cause remanded, with directions for further proceedings in accordance with this opinion. MORGAN, C. J., and SULLIVAN, J., con cur. (4 Idaho, 402) KELLY et al. v. LEACHMAN. (Supreme Court of Idaho. April 1, 1895.) APPEAL STIPULATION-COSTS. 1. A judgment will be modified and affirmed pursuant to a stipulation by the parties for a correction of errors assigned to certain portions thereof. 2. The costs of an appeal will be awarded to the appellant, where stipulations for the corrections of errors upon which the judgment appealed from is modified were made after the appeal was taken. Appeal from district court, Nez Perces county; W. G. Piper, Judge. Action by M. A. Kelly and others against S. S. Leachman to foreclose a mortgage. From a decree of foreclosure and sale, defendant appeals. Modified and affirmed. E. O'Neill, for appellant. Rand & Reid, for respondents. MORGAN, C. J. This is an action for foreclosure of a mortgage brought by Kelly against Leachman. Decree of foreclosure was made and entered January 24, 1894. On the 24th day of March, 1894, the defendant appealed to the supreme court upon the judgment entered in this case, and assigns for error the following language in the decree, namely: "That the purchaser or purchasers of said mortgaged premises at such sale, or his or their assigns, be let into the immediate possession thereof, and that the said sheriff or his deputy, immediately after making such sale, dispossess, eject, and oust from said land and premises any and all persons in possession thereof, or any part thereof, and place the person or persons holding the certificate of sale made by said sheriff into the possession of the premises so sold." Also that there is no finding or disposition of $129.80 in the hands of the receiver made in the decree. We find on file a stipulation of the parties disposing of the $129.80, by which stipulation the plaintiff M. A. Kelly received $55 thereof, and the balance of said sum, $74.80, was paid to E. O'Neill, attorney for mortgagor and appellant. We further find on file the consent of the attorney for the respondent that the words above quoted, as appearing in the decree, should be stricken therefrom. It is therefore ordered by this court that the foregoing words, requiring the sheriff to give the purchaser of such sale immediate possession of the land, and oust the defendant therefrom, shall be stricken out. As the stipulation of the parties disposed of the money in the receiver's hands, and as the judgment is modified as above stated, both errors relied upon by the appellant are corrected, and the judgment, therefore, must be affirmed. It is further ordered that costs of appeal be awarded to appellant, for the reason that the stipulations for the disposition of the money and for the modification of the judgment were made after the appeal was taken. HUSTON and SULLIVAN, JJ., concur. (4 Idaho, 404) WORDEN v. WITT et al. (Supreme Court of Idaho. April 4, 1895.) LIABILITIES OF COUNTY COMMISSIONERS. County commissioners are not individually liable in damages for injuries sustained by reason of defective highways, under the laws of Idaho. (Syllabus by the Court.) Appeal from district court, Latah county; W. G. Piper, Judge. Action by William E. Worden against James Witt and others. Defendants had judgment, and plaintiff appeals. Affirmed. James W. Reid, for appellant. Forney & Poe, for respondents. HUSTON, J. Plaintiff sued defendants, as commissioners of Idaho county, for injuries alleged to have been sustained by him through defects in a certain bridge in said county, while passing across the same. A general demurrer was interposed to the complaint, which was sustained by the court, and leave given plaintiff to amend, which was done. By agreement of counsel, the title of the case was changed, in the summons and complaint, by striking out the words "Commissioners of Idaho County." The case was tried to a jury, and after the evidence on the part of the plaintiff was submitted, on motion of defendants, the action was dismissed, and judgment entered for defendants for costs, from which judgment, and the order denying motion for new trial, this appeal is taken. The only question presented by the transcript is the liability of the county commissioners, individually, for the damages claimed to have been sustained by plaintiff on account of the defective bridge. The first error assigned is the sustaining of the demurrer to the complaint. We think there, was no error in this action of the court. It is evident from the record that the ground upon which the court sustained the demurrer to the complaint was the want of a statement of notice to the defendants of the condition of the bridge, as the amended complaint, to which a general demurrer was interposed, and overruled by the court, only differs from the original in containing such statement of notice to and knowledge of the condition of the bridge by defendants. The appellant, in his brief, submits two questions for the decision of the court: First, is the county liable to the plaintiff? and, second, are the commissioners liable individually? The first question is not raised by the record. There was no action against the county. As to the second question, the law can hardly be said to be conclusively settled, or, at least, the decisions are not entirely harmonious. Judge Cooley, in his work on Torts (page 379), says: "The rule of official responsibility, then, appears to be this: That, if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual, injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages." In applying this rule to the case of officers charged with the duty of making and repairing highways and bridges, the courts seem to be influenced largely by the exigencies of the case presented, or the conditions under which it arises, as, for instance, in the older and more thickly-populated states there seems to be a growing disposition, both by legislative action and judicial decisions, to hold this class of officers, as well as the municipalities they represent, to a more enlarged liability. This will be made apparent by comparing the case of Bartlett v. Crosier, 17 Johns. 439, with Hover v. Barkhoof, 44 N. Y. 113, and other recent decisions. But this change of base has not been recognized in states where entirely different conditions exist. To hold 'counties or county commissioners liable for all injuries arising from defective highways, in this country, would result in two very undesirable conclusions,-the literal abrogation of the office of county commissioner (for no sane man would assume the position, with such a liability attached), and the bankruptcy of every county in the state. Had there been any intention on the part of the legis lature to impose such a liability upon the county commissioners, they would have said so, by unequivocal enactment. The supreme court of Idaho, in Gorman v. Commissioners, 1 Idaho, 655, settled the question of the liability of both the county and the county commissioners in this jurisdiction, and with that decision we concur. The judgment of the district court is affirmed, with costs. MORGAN, C. J., and SULLIVAN, J., con cur. (4 Idaho, 408) JULIAETTA TRAMWAY CO. v. VOLLMER et al. (two cases). (Supreme Court of Idaho. April 4, 1895.) BREACH OF CONTRACT-SUFFICIENCY OF EVIDENCE. V. agreed, in consideration of the conveyance to him by S. of certain lots in the town of J., to construct a railroad to J. by the 1st day of January, 1891, and to erect or cause to be erected and constructed a depot and certain side tracks upon the land of S. in said town of J. on or before May 29, 1891; and, to secure such performance, V. and one H. executed to S. their bond conditioned for the performance of said agreement under a penalty of $6,000. The road was not completed, nor the depot and side tracks, until June 1, 1891. No objection was ever made by S. to the failure to complete the work within the specified time. On August 25, 1893. S. assigned the said bond to plaintiffs, who on October 27th brought suit to recover the said sum of $6,000, as the price of the lots so as aforesaid conveyed by S. to V., claiming said bond to be an alternative contract for the sale of land. Held, said action could not be sustained. (Syllabus by the Court.) Appeal from district court, Nez Perce county; W. G. Piper, Judge. Action on a contract by the Juliaetta Tramway Company against John P. Vollmer and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed. P. Tillinghast, J. W. Poe, and T. L. Stiles, for appellants. James E. Babb, for respondent. HUSTON, J. This is an action brought upon an instrument in writing, which is as follows (Exhibit B): "Know all men by these presents, that we, John P. Vollmer, of Lewiston, Idaho territory and H. S. Huson, | of Tacoma, state of Washington, are held firmly bound unto Rupert Schupfer, of Juliaetta, Idaho territory, in the sum of six thousand dollars ($6,000), to be paid to the said Rupert Schupfer, his executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, our heirs, administrators, executors, and assigns, jointly and severally, by these presents. Sealed with our seals, and dated this 14th day of June, A. D. 1890. The condition of the above obligation is the executing and delivering to J. P. Vollmer by said Rupert Schupfer of a deed to certain town lots in the town of Juliaetta, Latah county, Idaho territory, bearing date of 14th of June, 1890, which said deed has been executed and delivered. The condition of above obligation is such that if the above-bounden obligors shall on or before the first day of January, 1891, construct or cause to be constructed a railroad to said town of Juliaetta, with side track, and on or before May 29, 1891, construct or cause to be constructed a depot adjacent to said side track in the N. W. 4 of the S. W. 4 of section three (3), township 37 north, range 3 west, Boise Meridian, Latah county, Idaho territory, then this obligation be null and void; otherwise to remain in full force and effect. Jno. P. Vollmer. H. S. Huson. Witnesses: C. E. Huson. C. C. Van Arsdel." Plaintiff had judgment in the district court for $6,000, and interest at 10 per cent. per annum from January 1, 1891. This appeal is from the judg ment and the order denying a new trial. The principal contention here is upon the construction of the instrument in writing above set forth. It is contended by the respondent that said writing is an alternative contract for the sale of land, while appellants claim that it is a bond for the construction of a railroad, etc. Counsel for respondent has presented us with an able, ingenious, and voluminous brief and argument in support of his contention. It will be conceded, we apprehend, that, in construing written instruments of this kind, the court should endeavor to give them that interpretation which will carry out the intention of the parties as understood by them at the time the writing was executed; and, should there be any ambiguity in the writing, the court will resort to the circumstances under which it was made, and which prompted its execution. Upon its face, this writing seems to us to be a bond to secure the performance of certain services, to wit, the building of a railroad to the town of Juliaetta, in the county of Latah, state of Idaho. The facts, as they appear from the record, are substantially as follows: On the 14th day of June, 1890, one Rupert Schupfer was the owner of a certain tract of land in the town of Juliaetta, aforesaid. Being desirous of increasing the value of said land, he made an arrangement with John P. Vollmer, one of the appellants, whereby it was agreed between |