pass on the question, prevented its review on ap- 5. APPEAL AND ERROR 706-REVIEW-AF- Where the affidavits in support of a motion for a new trial were not preserved in the bill of exceptions, the Supreme Court could not consider them. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2944-2947; Dec. Dig. 662-RECORD-MO understand the majority opinion to hold that in their governmental capacity cities are controlled by section 3164 in regard to payment of interest, but in their ministerial capacity 262.] they are governed in this regard by section 3162. The statute makes no such distinction, and the Montezuma Case expressly holds that obligations of the county other than those mentioned in section 3164 do not draw interest under section 3162. I cannot consistently say that counties are governed wholly by section 3164 in the payment of interest, but | 706.] that cities in their ministerial capacity are 6. APPEAL AND ERROR TION FOR NEW TRIAL. governed by section 3162 when the statute places each upon exactly the same footing with regard to the payment of interest, without making such distinction or any distinction whatever. I think, if we were right when we said that the obligations of counties other than those mentioned in section 3164 do not draw interest under section 3162, that we are wrong now when we draw a distinction in the section as to cities and say they are controlled by section 3164 in their gov-nesses for examination as to the alleged misconAn application for process to bring in witernmental capacity, but by section 3162 in duct of the opposing party during the trial is a their ministerial capacity as to the payment matter within the discretion of the trial judge, of interest, without overruling the doctrine and, without any statement in the application as to what the proposed witnesses would testify announced in the Montezuma Case. to, the Supreme Court cannot say that its refusal of the application was an abuse of discretion. (60 Colo. 452) EAST DENVER MUNICIPAL IRR. DIST. (Supreme Court of Colorado. Jan. 3, 1916.) 1. JURY 70-OPEN VENIRE-STATUTE. Rev. St. 1908, § 3685, authorizing the court to order the issue of an open venire when the county commissioners fail to return a list, etc., is not exclusive of the right to secure a jury through the issue of an open venire, instead of drawing from the regular list. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 310-330, 340, 350; Dec. Dig. 70.] 2. APPEAL AND ERROR 922-PRESUMPTION -BURDEN OF PROVING ERROR-JURY. Even if an order for the issue of an open venire could issue only when the commissioners fail to return a list, etc., as prescribed in Rev. St. 1908, § 3685, a party objecting to the issue of an open venire would be bound to show affirmatively that the necessary conditions did not exist, in order to overcome the presumption in favor of the regularity of the proceedings below. JECTION. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3723; Dec. Dig. 922.] 3. APPEAL AND ERROR 200-REVIEW-OBThe objection to the court's order for the summoning of a jury of freeholders, not made below, will not be considered when first made on appeal. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. 200.] 4. EMINENT DOMAIN 262-REVIEW-FAILURE TO STATE OBJECTION. An order in a condemnation proceeding for the jury's view of the premises, without requiring respondent to advance the expense, to which the petitioner saved an exception, but did not state any ground of objection, so as to advise the trial court thereof and give it an opportunity to While the motion for a new trial is, by statute, a part of the record, the allegations of fact therein are no more to be accepted as true, without proof, than are the averments of a pleading. Error, Cent. Dig. §§ 2850-2852; Dec. Dig. 7. APPEAL AND ERROR 671-DISCRETION OF [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.] 8. APPEAL AND ERROR 581-RECORD-ADMISSION OF EVIDENCE. Where the abstract of record does not show either objection or exception to rulings on the admission and exclusion of evidence, the Supreme Court will not look beyond the abstract, and hence cannot consider the alleged errors. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2575-2581, 2599, 2601; Dec. Dig. 581.] 9. APPEAL AND ERROR 1004 REVIEW in the record indicating that the jury acted from Where the Supreme Court can find nothing turbing the verdict on the ground that it is expassion or prejudice, it is not justified in dis cessive. across the land of the defendants in error, and the question as to the compensation to be allowed for the right of way was tried to a jury. [1, 2] It is first alleged that there was error in the summoning of a jury, in that the Jury was secured through the issue of an open venire, instead of being drawn from the regular list, as jurors were drawn for service at the beginning of a term. Counsel urge that there was no showing made of facts which would authorize the court to order the issue of an open venire, the conditions under which it may issue being prescribed by section 3685, R. S. 1908. If counsel were correct in their assumption that the order could issue only in the cases mentioned in the statute, they would still be obliged to show affirmatively that the necessary conditions did not exist in order to overcome the presumption in favor of the regularity of the proceedings below. Giano v. People, 30 Colo. 20, 69 Pac. 504. But the method prescribed by the statute is not in fact exclusive, as this court has distinctly held. Id., 30 Colo. 26, 69 Pac. 504. [3] It is next objected that the court should not have ordered a jury of freeholders to be summoned; but, as this objection does not appear to have been made below, we are not called upon to consider it. they are not preserved in the bill of exceptions, we cannot consider them. There is therefore nothing in the record which establishes that the things were done which are alleged to have constituted misconduct on the part of respondents. While the motion for a new trial is, by statute, a part of the record, the allegations of facts therein are no more to be accepted as true without proof thereof than are the averments of a pleading. For these reasons we cannot consider the alleged error in refusing to grant a new trial. [7] It is also urged that the court erred in not granting the petitioners' application for process to bring in witnesses for examination as to the alleged misconduct of respondents. That was a matter within the discretion of the trial judge, whose knowledge of the entire case would qualify him to determine as to the necessity for such process. People v. Phelan, 123 Cal. 551, 56 Pac. 424. In the absence of any statement in the application as to what the proposed witnesses would testify, we cannot say that the court abused its discretion in denying the application. [8] A large number of errors are assigned upon the admission and the rejection of testimony, but in only three instances does the abstract of record show either objection or We are unable to appreciate counsels' con- exception to the rulings sought to be reviewtention that there was error in the sustaining ed. We have many times held that in such of challenges to jurors on the ground that cases we will not look beyond the abstract, they were not freeholders. The statute gives and hence cannot consider the alleged errors. to parties the right to demand a jury of free- As to the three cases covered by the abholders and the court, in sustaining the chal-stract, we are of the opinion that the rulings lenges, merely enforced the right given by law. were correct. [9] It is lastly urged that the verdict is excessive, but we find nothing in the record which indicates that the jury acted from passion or prejudice; hence we are not justified in disturbing the verdict. Finding no error in the record, the judgment is affirmed. Judgment affirmed. GABBERT, C. J., and HILL, J., concurring. [4] It is also urged that the court erred in making an order permitting the jury to view the premises sought to be condemned without requiring the respondent to advance the expenses of the examination. From the record it appears that when the order was made, the attorney for the petitioner saved an exception to it. No ground of objection was stated. It is clear that if the ground now urged had been stated at that time, the order for an advance of the jury's expenses might, and probably would, have been made. Failure, in such a case to advise the trial court of the ground of the objection, and so afford it an opportunity to pass upon the question, FECT OF APPEARANCE. prevents its review here. Cone v. Montgom-curiæ, file briefs, and make oral argument in beWhere counsel appear in an action as amici ery, 25 Colo. 280, 53 Pac. 1052; Colo. City V. half of the state highway commission, whose acSmith, 17 Colo. App. 172, 67 Pac. 909; Em-tion in regulating the duties of the state engineer pire Co. v. Lanning, 49 Colo. 458, 113 Pac. 491. (78 Or. 641) PETERSON et al. v. LEWIS, State Engineer. (Supreme Court of Oregon. Dec. 28, 1915. On Petition for Rehearing, Jan. 18, 1916.) 1. AMICUS CURIA 3-PROCEEDINGS-EF is involved in the action, but who are not parties to it, the interest of the commission must be considered to the same extent as if it were a party. Amicus [Ed. Note.-For other cases, see Curiæ, Cent. Dig. §§ 3-5; Dec. Dig. 3.] 2. MANDAMUS 10, 84—SUBJECTS OF RELIEF OFFICIAL DUTIES CONSTRUCTION OF [5, 6] It is most earnestly contended that the court erred in overruling the motion for a new trial on the ground alleged therein, viz., that in the matter of inspecting the premises defendants in error were guilty of misconduct. Several affidavits were filed in supAlthough duties of the state highway engiport of the motion for a new trial, but, as neer are not specifically stated in the law, but HIGHWAYS-CONTRACTS. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes are merely imposed by fair implication, their performance may be compelled by mandamus, and the remedy extends to enforcement of contracts involving official duties, though not to wholly private contracts. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. 88 37, 180-183; Dec. Dig. 10, 84.] 3. HIGHWAYS 96-CONSTRUCTION-DUTIES OF STATE ENGINEER-"PERSONS INTERESTED." Under Laws 1913, p. 664, § 6, requiring the state highway engineer to collect data and furnish the same to all persons interested in road building, the contractor building a county road is an "interested person," and entitled to the information. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 313, 314, 316, 317, 319-322, 356; Dec. Dig. 96. For other definitions, see Words and Phrases, First and Second Series, Interest.] officer, but acted only in his behalf (citing Words and Phrases, "Deputy"). [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 291, 292; Dec. Dig. 151.] 8. STATUTES 64, 181-CONSTRUCTION-REPUGNANCY-PARTIAL INVALIDITY. Statutes must be so construed as to effectuate the intention of the Legislature, and where part of a statute is valid and conforms to the obvious intent, but a later section is repugnant and void, the statute is void only as to that section. Cent. Dig. §§ 58-66, 195, 259, 263; Dec. Dig. [Ed. Note. For other cases, see Statutes, 64, 181.] 9. CONSTITUTIONAL LAW 62-LEGISLATIVE POWER-DELEGATION. An order of the state highway commission attempting to vary the duties imposed by statute on the state engineer is void, since under Const. art. 4, § 1, legislative power cannot be delegated to such a commission, being reposed 4. HIGHWAYS 96-CONSTRUCTION-DUTIES in the Legislature. OF STATE ENGINEER. Laws 1913, p. 664, § 6, requiring the state highway engineer to collect data on road building and advise county officers in charge of roads relative to road construction, requires active co-operation, and not casual advice and aid to be given by the engineer. [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 313, 314, 316, 317, 319-322, 356; Dec. Dig. 96.] 5. MANDAMUS 93-SUBJECTS OF RELIEFOFFICIAL DUTIES. The duties imposed by Laws 1913, p. 663, requiring the state highway engineer to provide information for the contractor and render assistance to the county authorities by furnishing a final estimate of the amount of the work done under road contracts, may be enforced by manda mus. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 195; Dec. Dig. 93.] 6. STATUTES 125-VALIDITY - TITLE AND SUBJECT-MATTER. Laws 1913, p. 663, created and prescribed the duties of the office of state highway engineer. Petitioners contracted with a county to build certain roads, and did build them, the contract providing that the state highway engineer should inake a final estimate of all work done thereunder, and the value of the work, and that the county should then, after approving his estimate, pay the contractor. After making the contract, but before completion of the work, Laws 1915, p. 537, was enacted, being entitled "An act abolishing the office of state highway engineer," etc., and transferring his duties to the state engineer, and providing for the appointment of a deputy state engineer, and providing that the office of state highway engineer should be abolished and the dutics thereof be placed under the state engineer, and that a chief deputy state engineer should be appointed, who should perform all the duties of the former state highway engineer. Held, that the last provision, operating only to change the title of the state highway engineer, was void under Const. art. 4, § 20, as being repugnant to the title of the act. [Ed. Note.-For other cases, see Constitution al Law, Cent. Dig. §§ 94-102; Dec. Dig. ~€2.] 10. HIGHWAYS 112-Construction-StatUTES-EXECUTION. Under statutes providing for highway construction, the determination of completion and the amount due for the work, is a part of the construction. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 346, 347, 351-355; Dec. Dig. 112.] In Banc. Mandamus by Andrew Peterson and another against John H. Lewis, State Engineer of the State of Oregon. Heard on demurrer to the alternative writ. Demurrer overruled. This is an original proceeding in mandamus brought by the plaintiffs Peterson and Johnson against John H. Lewis, state engineer, to require defendant as such officer to make and deliver to the petitioners and to the county court of Clatsop county, Or., a final estimate of the work done by them, and the value thereof, under their contract with the county of December 18, 1914, for the construction of a certain county road therein extending from the city of Astoria to the west line of Columbia county. The alternative writ asserts the following facts: The contract provided that the work should be done according to the plans, specifications, and schedule of rates, prices, and maps of the road which were prepared by the state highway engineer, and that all the work thereunder should be done under the supervision of the field engineer selected by the state highway engineer; the work, however, to be approved and accepted by the latter. The contract further provided that payment for the work done by the contractors should be by warrants of Clatsop county issued upon vouchers of the state highway engineer approved by the county court, out of any Under Laws 1913, p. 663, creating and prescribing the duties of the office of the state high- money on hand from the sale of its permaway engineer, as amended by Laws 1915, p. 537, nent road bonds, or after January 1, 1915, transferring those duties to the state engineer by warrants drawn on the general fund of and requiring the duties to be performed by his that county. Further provision was made deputy, a performance of the duties could be enforced by mandamus against the state engi- for the making of partial payments during neer, since his deputy was not an independent the progress of the work upon estimates of [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 187-191; Dec. Dig. 125.] 7. MANDAMUS 151-PARTIES-PROPER OFFICER "DEPUTY." the engineer in immediate charge thereof, and the contract contained the following: "The state highway engineer shall, as soon as practicable after the completion of this contract, make a final estimate of the amount of work done thereunder, and the value of such work, and Clatsop county shall, at the expiration of 35 days from and after such estimate is so made, and is approved by the county court of Clatsop county, pay the entire sum so found to be due hereunder after deducting therefrom all previous payments and all amounts to be retained under the provisions of this contract. All prior partial estimates and payments shall be subject to correction in the final estimate and payment." The road referred to is one which was constructed by the county mentioned with funds derived from the issue and sale of its bonds under chapter 103, General Laws of Oregon for 1913, pursuant to the vote of the taxpayers of the county. The county court requested the assistance of the state highway engineer in the matter of the construction of the road under the terms of chapter 339, General Laws of 1913, p. 663, providing for the appointment and prescribing the duties of the state highway engineer. The contract was executed pursuant to such arrangement. The contractors began the work thereunder soon after its execution, and, except for temporary suspensions, prosecuted the same until September 4, 1914, when it was finished. According to the terms of the contract, the field engineer in charge of the work furnished the contractors with preliminary estimates from time to time during the progress of the work. Based upon these estimates, the contractors were paid installments from time to time; the theory of the contract being that, after the completion of the work, the state highway engineer himself should give to the contractors a final estimate showing the amount of work done and the value thereof, correcting all errors in the preliminary computations in order to determine the balance due the contractors. The state highway engineer performed the duties of the engineer under the terms of the contract, which were requested by the county court, until May 22, 1915. Thereafter they were performed by a chief deputy state engineer until August 27, 1915, when the highway commission passed an order purporting to relieve the defendant of all duties and responsibilities in connection with the highway work of the state of Oregon. Thereupon the appointment of the chief deputy state engineer was revoked by the state engineer. work, the state engineer has failed and refused to make or deliver to the contractors, or to the county court of Clatsop county, the final estimate made necessary by the contract before the contractors can enforce any claim for final settlement against the county. The defendant demurred to the writ upon the ground that it does not state facts sufficient to constitute a cause of action. Harrison Allen and Griffith, Leiter & Allen, all of Portland, for plaintiffs. G. W. Allen, of Portland, for defendant. C. L. McNary and John H. McNary, both of Salem, amici curiæ. BEAN, J. (after stating the facts as above). [1] It is claimed by defendant that the highway commission by an order relieved the state engineer of all duties and responsibilities in connection with the highway work, and provided that it should be done by I. E. Cantine, chief deputy state engineer. On account of the action taken by the commission, the state engineer endeavors to assume a neutral attitude in the premises. Counsel have appeared as amici curiæ, made oral argument in the interest of the highway commission, and also filed a brief. The interest. of the commission should be considered to the same extent as though it were a party to this cause. It is contended by the petitioners that under chapter 339, Laws of 1913, the duties to be performed by the state engineer are separate and distinct from those which that act requires him to perform in connection with the state highway commission; that he is authorized and required by law to act for the various counties of the state in the capacity of an engineer in the matter of road construction; that he, having been substituted for the state highway engineer, is the only officer recognized by the law or the contract to perform these functions. It is suggested on behalf of the defense that the plaintiffs are not entitled to the benefit of the writ for the reason that the duty, if it exists, is a contractual one and not imposed by law. [2] The writ lies to compel the performance of an act which the law imposes as a duty resulting from an office, trust, or station. Whenever the law gives power to or imposes an obligation on a particular person to do some particular act or duty, and provides no other specific remedy for the performance thereof, the writ will issue. Duties of this kind need not be specifically statThe petition for the writ alleges that chap- ed in the law. If they are imposed by imter 337 of the General Laws of 1915 imposed plication from a fair, reasonable construcupon the state engineer, an elective officer, tion of the law, it is sufficient. It is not necthe duties previously performed under the essary that they be imposed by law on the contract and law by the state highway en- individual in question, provided he has put gineer by virtue of chapter 339, General Laws himself in the position from which by law of 1913, and that the former is the only offi- the duties accrue. Merrill, Mandamus, § 13. cer or person authorized by law or the con- By the same authority (section 16), since the tract to make such final estimate; further, object of the writ is to enforce duties creatthat although more than 80 days have elaps- ed by law, it will not lie to enforce private ed since the date of the completion of the contracts, unless it is extended to such cases by statutory enactment. Where, however, a contract involves an official duty, the rule is otherwise, since that is one of the grounds for the issuance of the writ. [3-5] It is maintained by counsel in behalf of the highway commission that the chief deputy state engineer is an independent officer, upon whom, if any one, the alleged duty rests. These questions require a construction of the statutes of 1913 and 1915. First. What were the duties of the highway engineer in the premises, under the provisions of the act of 1913? As we go along it will be well, in the same connection, to note to some extent the general purpose and scope of the act in order to keep in mind the legislative object and intent. The title indicates that its objects and purposes are: (1) To create a state highway commission, defining the duties thereof, and making provision for the payment of expenses while engaged in the performance of such duties; (2) to create the office of state highway engineer, provide for the appointment of such officer, prescribe his duties, fix his salary, provide for the conduct of subordinates in, and payment of expenses of, his office; (3) to prescribe the duties of the county courts and other county officials in relation to the purposes of the act; (4) to provide for the creation of a state highway fund, the levying of a tax to create the same, and the use and disbursements thereof; (5) to provide for the employment of convicts on roads; and (6) to make an appropriation for carrying out the purposes of the act. By this chapter the state highway commission is created, and provision is made for the appointment of a state highway engineer who shall be versed in scientific road construction. Viewing this statute from a general standpoint, it appears that a scheme was inaugurated for the construction of roads by the state and its counties working in unison, in order that state and county roads may eventually connect and form a continuous highway. In order to accomplish this, the act provides that the state highway engineer shall render assistance to the several county courts and highway officers in promoting highways and in the improvement and construction of roads. As a matter of reciprocity, it enjoins upon the latter and other county highway officers the duty of furnishing the former, upon his written request, with all available information in connection with the building and maintenance of public highways and bridges in their respective localities. See section 7. Section 4 of the act directs that the engineer shall act in an advisory capacity to the county courts of the different counties in the matter of road construction and maintenance whenever requested so to do. This section further specifically provides: "Upon request of the county court of any county said engineer shall furnish specifications for any piece of proposed road construction in such county upon being furnished the necessary such specifications; and such specifications shall be so furnished free of all costs to such county." The latter part of section 6 is as follows: "Said engineer may be consulted at all reasonable times by the county officers having care and authority over highways, culverts and bridges, and shall advise such officers relative to the construction, repair, alteration or maintenance of the same, and shall furnish such other information and advice as may be requested by persons interested in the construction or maintenance of public highways, and he shall at all times lend his aid in encouraging and promoting highway improvements throughout the state. Said engineer shall co-operate with all highway officers, and shall assist county authorities in all matters pertaining to the construction of roads when called upon to do so by the county court." Separate and apart from the duties of the engineer relating to the construction of state roads, and the like, as prescribed by the state highway commission, it is plain that the Legislature imposed upon that officer the duty of furnishing plans and specifications for proposed road construction, upon the request of the proper county court, and necessary information and data therefor. Such plans, etc., are to be kept on file in his office. By the terms of the statute this assistance is to be rendered "free of all costs to such county." The engineer is directed by law to advise such officers relative to the construction or maintenance of highways and bridges and to furnish such other information and advice as may be requested by "persons interested" in such work. It would seem that persons constructing a highway pursuant to a contract with a county would certainly be interested in such undertaking within the meaning of the statute. Evidently the lawmakers believed that the information and advice provided for would avail nothing unless in case of road contracts it were extended to the contractor and carried out in the construction of the thoroughfare. Not only is the engineer to advise, but section 6 immediately specifies that he shall co-operate with and assist, county authorities in such matters when called upon to do so, following the policy initiated by the federal government in superintending the construction of certain county roads as samples. The law does not contemplate mere casual advice by the engi neer, but rather that he shall on appropriate occasions act in an advisory capacity in building public county roads to an extent sufficient to carry into execution the plan which he has made. It provides for rendering valuable aid to counties in the improvement of public roads with the apparent object of attaining a symmetrical system of highways. An annual tax is ordained to be levied and an appropriation made to effect the purpose of the law. In consonance with the spirit and letter of the statute, the highway engineer made plans, specifications, and estimates for the work which were embraced in and made part of the contract with the plaintiffs, by the terms of which under the |