by suit or otherwise" (County Government Act, § 25, subd. 27; Const. art. 11, §§ 11, 12; People v. Martin, 60 Cal. 153; Ex parte Mirande 73 Cal. 365, 14 Pac. SS8); and, although it had no power to create the office of license tax collector (El Dorado Co. v. Meiss, 100 Cal. 273, 34 Pac. 716; County of Los Angeles v. Lopez, 104 Cal. 257, 38 Pac. 42), it had power to order the liquor license taxes to which the ordinance (No. 48) related to be paid to a county officer having authority to receive them, since in this case the ordinance required nothing more of the tax collector than that he should receive those taxes when voluntarily tendered by applicants for liquor licenses. By no possibility could those taxes become delinquent; and therefore the supervisors properly omitted to provide any mode, "by suit or otherwise," to enforce payment of them. If the tax collector was authorized to receive those taxes when tendered, though only by language merely permissive, or even by implication, it was his official duty to receive them. "Where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory. Mechem, Pub. Off. § 593. The remaining question, therefore, is, do the statutes of this state authorize the tax collector to receive the license taxes to which the ordinance (No. 48) relates? It may be premised that the act of receiving or collecting license taxes of any kind for county revenue is an official function, to be performed only by county officers invested for that purpose with a part of the sovereign power of the state, derived directly from the legislature (see dissenting opinion of Mr. Justice McKee, in People v. Ferguson, 65 Cal. 288, 4 Pac. 4, so far as adopted by this court in El Dorado Co. v. Meiss, 100 Cal. 273, 34 Pac. 716; also, Rowe v. Kern Co., 72 Cal. 353, 14 Pac. 11; and Mechem, Pub. Off. § 1); the legislature being prohibited by the constitution from delegating its power to create a county office, or to prescribe or regulate the salary or cómpensation of any county officer. From these premises, it would seem to follow that the board of supervisors of a county has no power to create the office of tax receiver or tax collector, nor to fix or regulate the compensation of the incumbent of such office, under any circumstances, even though the legislature should fail to create such an office; and this conclusion is not controverted by counsel for respondent. Yet they contend that the board of supervisors may by contract employ a person to perform the functions of tax receiver or tax collector, for a specified consideration or compensation, to be paid by the county in case the legislature fail to provide a county officer for that purpose. In what substantial respect does such employment differ from the creating of the office of tax collector, and the fixing of the compensation of the incumbent thereof? I perceive only a difference in words expressing the same meaning. In each case the functionary represents and exercises the same sovereign power of the state. The same thing that is called an "office" in one case is called "employment" in the other. The funetionary who in one case is called "officer" is called "employé" in the other. That which, in one case, is called "salary" or "fèes of office," is called "compensation of a serv ant" in the other. It is unnecessary, however, further to extend this line of argument, or to decide whether or not the supervisors of a county have power to supply delinquencies of the legislature in the matter of providing the necessary county officers, and prescribing their duties; since I think the legislature had created the office of tax collector for each county in the state by section 4103 of the Political Code, and, by section 4301 of the same Code had declared that "the tax collector must perform such duties as are prescribed in title IX, part III of this Code;" and the county government act of March 14, 1883, by section 57, had continued that office, and section 154 of the same act provides: "The tax-collector must perform such duties as are prescribed in title nine, part three of the Political Code," this section being a copy of section 4301 of the Political Code, above quoted. Under these sections of the Political Code and county government act. the tax collectors (or ex officio tax collectors, where the office was consolidated with that of sheriff) had collected all kinds of license taxes during a period of more than 20 years immediately prior to the refusal of the tax collector of Ventura county to receive the license taxes required to be paid to him by the ordinances of the supervisors of that county, without questioning their authority to do so; and even the present tax collector of Ventura county did not discover his want of authority to receive such taxes until after he had received them during a period of nearly three years, when he and the board of supervisors were advised that neither he nor any other county officer was authorized to receive license taxes; and thereupon, being careful not to transgress the bounds of his authority, he requested the board of supervisors to employ his then deputy tax collector, Bradley, to collect those taxes. It is well settled that the legislature may define the duties of an officer by referring to another existing statute; and also that a subsequent repeal of the act so referred to does not affect or change the act referring to it. People v. Whipple, 47 Cal. 592. But it is claimed by counsel for respondent that title 9, pt. 3, of the Political Code, referred to by section 154, of the county government act, as defining the duties of tax collector, requires him to collect or receive only the taxes on property, and does not enjoin upon him the duty of collecting or receiving license taxes. It is true that license taxes are not mentioned in title 9, part 3, of the Political Code; yet the only duties of the tax collector therein prescribed are those of receiving and collecting taxes, and paying them into the treasury; and section 154 of the county government act provides that "the tax collector must perform such duties” (not those duties), meaning duties "of that kind," and "of like kind," though not necessarily identical. For definitions of the word "such," see Webster's, Century, and Anderson's (Law) Dictionaries. The word "such" relates to and limits the word "duties" to that kind of duties enjoined in title 9, pt. 3, of the Political Code, but does not qualify the word "taxes," or restrict its application to any particular kind of taxes, the word "taxes" not being used in section 154 of the county government act. The kind of duties enjoined upon the tax collector by title 9, pt. 3, of the Political Code, is that of collecting taxes on property; and surely the duty to collect taxes on business (license taxes) is of a like kind, though the taxes collected in the latter case are not the identical taxes collected in the former. In 1887 the legislature added a new section to the county government act, numbered 1101⁄2 (St. 1887, p. 208), as follows: "It shall be the duty of the tax-collector, except where it is by law otherwise expressly directed, to collect all taxes and licenses levied by law, or imposed by ordinance by the board of suIpervisors, in the manner and subject to the terms of the law or ordinance providing for the same." This new section was expressly repealed by the legislature of 1889 (St. 1889, p. 302); but section 154 of the county government act has never been repealed nor amended, and was re-enacted in the revised edition of that act of 1891 (St. 1891, p. 330). Counsel for respondent contend that the enactment of this new section indicates that the legislature understood that section 154 of the act did not authorize the tax collector to collect license taxes; that the new section was intended merely to supply the deficiency, and had that effect; and that the repeal of the new section, in 1889, left the tax collector without authority to collect license taxes. As to the reason why the new section was enacted, counsel's theory, at first impression, seems plausible; but, if it was understood by the legislature of 1889 that section 154 of county government act did not authorize the tax collector to collect license taxes, why was the new section repealed without enacting a substitute authorizing some officer to collect the license taxes? Is it to be presumed that the legislature intentionally omitted to provide for the collection of those taxes? The only rational answer to these questions would seem to be that the new section was considered superfluous, because the tax collector was authorized to collect these taxes by section 154, and that for this reason alone the new section was repealed. Nor did the enactment of the new section repeal section 154 by implication; since it only purports to authorize the tax collector to collect such taxes as he was not otherwise by law expressly directed to collect, and therefore could not have been intended as a substitute for or revision of any theretofore existing law authorizing the collection of taxes. From the foregoing considerations it follows: (1) That section 154 of the county government act has never been repealed; (2) that said section authorizes the county tax collector to receive and collect all license taxes required to be paid to him by a valid ordinance of the county board of supervisors; (3) that the employment of the defendant Bradley by the board of supervisors of Ventura county to collect the license taxes for that county was unauthorized by law, and is void; (4) that the claim of Bradley for his services in collecting license taxes under said employment was not a lawful charge against said county, and should not have been allowed by the board of supervisors; (5) that the judgment appealed from should be reversed and the court below directed to enjoin the defendant treasurer of said county, perpetually, from paying the auditor's warrant in favor of defendant Bradley, described in plaintiff's complaint, as prayed for by the plaintiff. We concur: BRITT, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is reversed, and the court below, is directed, perpetually, to enjoin the treasurer of Ventura county, defendant herein, from paying the auditor's warrant in favor of the defendant Bradley, described in plaintiff's complaint, as prayed for by plaintiff. (29 Or. 225) MINARD v. McBEE et al. (Supreme Court of Oregon. April 6, 1896.) PLEADING-PAYMENT-ADMISSION-WAIVER OFAPPEAL. 1. A plea of payment in an answer is new matter, and stands admitted, unless denied by a reply. 2. Where payments pleaded in an answer are not denied by a reply, but defendant introduces evidence to support the plea, and the question is litigated and decided on the evidence, without objection, the admission for want of reply cannot be insisted on for the first time on appeal. Appeal from circuit court, Douglas county; J. C. Fullerton, Judge. Action by Stephen Minard against William McBee and others. Decree for plaintiff, and defendants appeal. Modified. A. M. Crawford, for appellants. Cardwell, for respondent. W. W. WOLVERTON, J. This is a suit to foreclose a mortgage made to secure the payment of a promissory note executed by defendant William McBee to plaintiff, calling for the sum of $3,000, with interest at 8 per cent. per annum, and bearing date October 4, 1887. The complaint shows that certain payments, aggregating $646.70, were made and duly credited upon the note. The defendants, answering, allege that payments have been made on the note which are not credited thereon, "the same being in addition to the several sums admitted in the complaint to have been paid," and after giving the items in detail of such additional credits claimed, with dates, etc., further answering, say "that the sum total which the defendants will offset as aforesaid is $720.15, and no part thereof has been paid, and the same is now due and owing from plaintiff to defendants." No reply was filed; hence the allegations of the answer setting up the additional payments are not denied; and it is now contended by defendants that, inasmuch as they stand admitted upon the record, plaintiff cannot be heard to dispute them by testimony. It has been held by this court "that a plea of payment in the answer is new matter, and must be denied, or it stands admitted." Agricultural Works v. Creighton, 21 Ór. 501, 28 Pac. 775, and 30 Pac. 676. To this doctrine we adhere; but a reply may be waived, and the question is, has it been waived here? It has if the parties have proceeded to and with the trial as though a reply had been filed, and an issue had been thereby raised by way of traverse of new matter in the answer. Bliss, Code Pl. § 397; Hopkins v. Cothran, 17 Kan. 173, 178; McAlister v. Howell, 42 Ind. 15, 26. The record shows that when the case came on to be heard the plaintiff had no evidence to offer, because his allegations stood admitted by the answer, and, although there was no issue requiring evidence in behalf of defendant, he voluntarily proceeded to establish the alleged payments as though they had been denied and an issue raised thereon. Indeed, the only controversy touching which evidence was adduced was with regard to the alleged additional payments. It does not appear that the attention of the court below was ever called to the fact that the plaintiff had filed no reply, but, on the contrary, its findings were evidently made upon the assumption that these alleged credits were in direct controversy. So far as the record discloses, the question is raised here for the first time. We do not think this can be done, and it is certainly not fair to permit it where the trial has proceeded below, upon the assumption of an issue regularly formed. If the point had been made below, the plaintiff, by leave, could have corrected the error by filing the necessary reply, but he is taken at a disadvantage when reminded of his oversight here for the first time. The desired end is best attained by getting to the merits, and a party ought not to be cut off without a fair opportunity of presenting his case. Although the trial here is anew, upon the transcript and the evidence accompanying it, this means simply, under the code system of pleading, that the issues shall be the same here as in the court below, save the objections that facts are not stated sufficient to constitute a cause of action or defense, or that the court is without jurisdiction. The findings of fact by the court below are clearly in accord with the testimony, except in the total sum allowed the plaintiff, which is $50 in excess of the actual amount due upon the basis adopted for adjusting the account, an error which, no doubt, occurred in figuring. The total is made up of the following items: Note, with interest to date of decree $4,730 00 Aggregating From which is deducted credits allowed 240 00 300 00 $5,270 00 686 85 Leaving a balance of.......... $4,583 15 -Instead of $4,633.15, as stated. In this respect the decree will be modified, otherwise affirmed, with costs to respondent. (29 Or. 132) BARLOW v. TAYLOR PLACER MINING & MILLING CO. (Supreme Court of Oregon. April 6, 1896.) INDEFINITE EMPLOYMENT-COMPENSATION WHILE NOT WORKING-BURDEN OF PROOF-EVIDENCE-PROVINCE OF JURY. 1. Where an employé engaged under a contract of indefinite hiring seeks to recover for a period while he was not working, the burden is on him to show that his right to compensation did not stop when he ceased work. 2. An agreement of an agent, without any authority in regard to contracts of hiring, that the compensation of an employé should continue under a contract of indefinite hiring while not actually at work, is not binding on his principal. 3. In an action by an employé to recover compensation under a contract of indefinite hiring for a period while not actually working, the question how long, under an agreement of the parties, the employé was to receive compensation while not actually at work, is for the jury. Appeal from circuit court, Josephine county; H. K. Hanna, Judge. Action by Charles O. Barlow against the Taylor Placer Mining & Milling Company for services. From a judgment for plaintiff, defendant appeals. Reversed. Francis Fitch, for appellant. Davis Brower, for respondent. BEAN, C. J. This is an action for work and labor alleged to have been performed under a contract of hiring. The facts are that in September, 1892, at Portland, Or., the plaintiff was employed by the defendant to superintend and engage in the work of setting up and operating certain mining machinery in Josephine county, to be used by the defendant in the operation of its mine, at a stipulated compensation of $150 per month; but there was "no express agreement, nor did the contract contem plate, that he was to be employed for any designated period of time." Under this arrangement, he commenced the work in October, 1892, and continued thereat until April 1, 1893, when the defendant suspended operations and discharged all its laborers. The plaintiff, after remaining in and about the mine for a few days without doing any work, returned to Portland, and remained there until about the 17th of the following month, when he was requested to return to the mine, for the purpose of resuming work, which he did, and remained there until the 10th of June, waiting, under the direction of the company, for some machinery which the railroad company refused to deliver until the freight was paid. On the latter date, the defendant being unable to pay the freight, and there being no work for the plaintiff, he returned to Portland, and remained there until some time in the following November, when he voluntarily returned to Josephine county, and, after working a few days for the company, was discharged. It is admitted by plaintiff that he has been paid for all the work actually done by him; and the defendant admits that it is liable to him for the time lost awaiting machinery, to wit, from May 17 to June 10, 1893, and offers in its answer to allow judgment to go against it for the amount of the agreed compensation for that time; but the plaintiff claims that he is entitled to wages from the time of his first employment, in September, 1892, to his final discharge, in December, 1893, and gave evidence tending to show that it was the understanding and agreement between himself and the defendant upon the two occasions when he left the mine to return to Portland in April and June, 1892, that he should hold himself subject to the orders of the company, and that his wages should continue the same as if he was actually at the mine. On the other hand, the defendant claims and gave evidence tending to show that the plaintiff was discharged April 1, 1893, and re-employed in May, and again discharged on June 10th, and that there was no agreement that he should be paid for any time except when he was actually working for the company. The court charged the jury, in effect, that, under the contract as testified to by the parties, the plaintiff remained in the employ of the company until he was actually discharged; and if they were not satisfied by a preponderance of the testimony that he had actually been discharged prior to December, 1893, he was entitled to recover in this action compensation for the time he was not at work for the company if he held himself in readiness for the service required of him by such contract. In our opinion, this instruction was erroneous. The original contract of hiring was not for a definite period of time, with the right reserved to defendant to discharge the plaintiff at any time, as the instructions of the court would seem to contemplate, but it was a general, indefinite hiring, subject to be terminated by either party at pleasure. Wood, Mast. & S. p. 283. And by the tacit agreement of the parties, evidenced by their acts, it continued so long as plaintiff worked for the defendant; but, when he ceased to work, we think the contract of hiring terminated, unless there was some agreement of the parties to the contrary. The plaintiff was employed to perform certain services for defendant, at a stipulated compensation; and, so long as he continued to render the services, he was entitled to the stipulated wages; but, when he ceased to work, his right to compensation ceased also, unless there was an agreement that his employment should continue. The burden of proof was therefore not upon the defendant to show that plaintiff had been actually discharged when he ceased to work for it, but it was on him to show that, under the contract, his employment and wages were to continue during the time he was rendering no services to his employer. 2. To support his contention that he was in the employ of the company, and entitled to wages during the time he was in Portland, from April 10 to May 17, 1893, plaintiff was permitted, over the objection of defendant, to testify that, before going to Portland, he asked one Dodd, the bookkeeper of defendant, if it would be necessary for him to seek another job while in Portland, and that Dodd said it was not, as the company might need his services at any moment, and, if so, would telegraph him. The evidence shows that the general manager of the defendant, who hired and discharged the men, and who employed the plaintiff, was one Taylor; and there was no evidence whatever to show, or tending to show, that Dodd had any authority to bind the company by any contract of hiring, or by any declarations of the character given in evidence, and hence the admission of this testimony was error. 3. The plaintiff testified that in June, 1893, he received a telegram announcing the illness of his family, and showed it to the general manager of the defendant, who gave him permission to go to Portland; that he inquired about his wages; and that the general manager said: "Go ahead. Your wages will go on just the same. I may telegraph for you at any day, as I may get the money and orders to unload the machinery. If you cannot come, send a competent man in your place." Defendant requested the court to instruct the jury that, if these facts were established by the evidence, they would only tend to show a continuance of the contract for the current month; and if plaintiff did not return to work at the end of the month, and was not requested by defendant to return, the contract between him and the defendant ter minated, and plaintiff could not recover wages for the time he was unemployed after the close of the month. We think this Instruction was properly refused. Under the agreement, as testified to by the plaintiff, the length of time he was to remain in Portland under wages depended entirely on the understanding and intent of the parties, which could be ascertained only from a consideration of all the circumstances of the case. It was an inference of fact for the jury, and not of law for the court. Judgment reversed, and new trial ordered. (29 Or. 140) TATUM et al. v. MASSIE. (Supreme Court of Oregon. April 6, 1896.) APPEAL-REVIEW-TRANSCRIPT-FINDINGS OF COURT. 1. In the absence of a bill of exceptions, the sufficiency of the evidence to support the findings of fact by the court cannot be considered. 2. Where a paper introduced at the trial was not made a part of the pleadings, the fact that it was attached to the transcript on appeal, and referred to in the findings of fact as an exhibit, though not copied in the findings nor attached thereto, did not make it a part of the transcript; and, not being brought into the record by bill of exceptions, it could not be considered. 3. Findings of the court on conflicting evidence, like the verdict of a jury, are conclusive on appeal. 4. The failure of the trial court to find a material fact cannot be assigned as error, unless the record shows that the party desiring such finding made due request therefor, which was refused. Appeal from circuit court, Columbia county; T. A. McBride, Judge. Action by Tatum & Bowen against G. A. Massie. Judgment for defendant, and plaintiffs appeal. Affirmed. This is an action of trespass for unlawfully taking and disposing of certain personal property alleged to be the property of plaintiffs. By their complaint, the plaintiffs allege their co-partnership relations, their ownership of the property since prior to June 3, 1893, and its value, and that the defendant was the sheriff of Columbia county; then, in effect, that prior to said date the defendant, pretending to act under an execution issued in the case of one Graham v. Josiah Western, wrongfully and unlawfully levied upon and took the said property into his possession, and on said day sold and delivered the same to one Muckle; and that prior to the levy, and again on said 3d day of June, before the sale, plaintiffs notified defendant of their ownership, and demanded possession. The answer admits that defendant was sheriff, and that he levied upon the property, and sold the same, by virtue of the said execution, but denies that such levy and sale were wrongful. All other allegations are denied specifically. For a further defense, defendant shows that, at the times mentioned in the complaint and an swer, he was sheriff of said county; that on and for a long time prior to October 13, 1892, Josiah Western was the owner and in possession of the property described in the complaint; that on October 12, 1892, one Jasper Graham duly commenced an action in the circuit court for Columbia county, Or., against said Western, to recover upon an indebtedness of $713.85, and that such proceedings were had that a writ of attachment was duly issued, directed and delivered to the defendant, and that, by virtue thereof, he did, on October 13, 1892, attach said personal property as the property of Western; that on May 11, 1894, judgment was duly given and rendered in said action in favor of Graham, and said attached property ordered sold; that execution was on May 19, 1894, issued upon said judgment; and that, by virtue thereof, defendant, on June 13th, sold and delivered said property to Muckle for $500. The reply simply puts in issue the alleged interest of Western in the property. After trial, a jury having been waived, the court made the following findings: "This cause having heretofore been argued and submitted, and the court, being now fully advised, finds that on the 3d day of June, 1893, one Josiah Western was the owner of the property described in plaintiffs' complaint; that prior thereto and on the 13th day of October, 1892, by virtue of a writ of attachment duly issued out of this court in a case wherein Jasper Graham was plaintiff and Josiah Western was defendant, the said G. A. Massie did attach, according to law, the property of Josiah Western, and did hold the same under said writ, until the 3d day of June, 1893; that at said date, by virtue of an execution and order of sale on a judgment duly and legally rendered in the said cause of Jasper Graham v. Josiah Western, the defendant duly sold said property to one James Muckle; that at said date, and at the date of the levy of said attachment, said Josiah Western had an attachable interest in said property, and was the owner thereof; that the contract marked 'Plaintiffs' Exhibit A' herein constitutes a chattel mortgage as between Western and plaintiff, and that the same is void and of no effect as to attaching creditors. And, as a conclusion of law, the court finds that defendant is entitled to a judgment dismissing this cause, and for his costs." From the judgment entered upon these findings, plaintiffs appeal. They filed no bill of exceptions, but, in their notice of appeal, assign as errors the findings of the court-First, that Western was the owner of the property on June 3, 1893; second, that at the dates of the attachment and sale, Western had an attachable interest therein; third, "that the contract marked 'Plaintiffs' Exhibit A' herein constitutes a chattel mortgage as between Western and plaintiffs, and that the same is void and of no effect as to attaching creditors"; and, fourth, in finding, as a conclusion of law, |