"

the issuance of bonds by the county commissioners to erect public buildings or contract a loan. The first legislative assembly of the territory, by an act approved February 9, 1865, gave the boards of county commissioners the power to borrow money upon the credit of the county "for the erection of county buildings, or to meet the principal expenses of the county in case of a deficit in the county revenue. St. 1st Sess. p. 501, § 14. But a board could not borrow money for these purposes" without having first submitted the question of such loan to a vote of the electors of the county." St. 1st Sess. p. 502, § 15. This language remained without any change until the admission of the territory into the Union. Comp. St. div. 5, §§ 756, 795.

Let us compare this legislation, which was familiar to the members of the constitutional convention, with the provisions of our constitution: "Private property shall not be taken or sold for the corporate debts of public corporations, but the legislative assembly may provide by law for the funding thereof, and shall provide by law for the payment thereof, including all funded debts and obligations, by assessment and taxation of all private property, not exempt from taxation, within the limits of the territory over which such corporations, respectively, have authority.' Article 12, § 8. "No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars ($10,000) without the approval of the majority of the electors thereof voting at an election to be provided by law." Article 13, § 5. The constitution, in these plain terms, has empowered the legislative assembly to provide by law for the funding of "all funded debts and obligations" of a county. The legislative assembly of the state, by an act approved March 4, 1891, amended section 808, supra, so that it reads as follows: "The county commissioners of each county of this state shall have, and are hereby given, in addition to the powers already conferred on them by law, the authority to issue, on the credit of their respective county, coupon bonds to an amount sufficient to enable them to redeem any or all legal outstanding bonds, warrants, or orders, and also, whenever thereunto authorized by a vote of the electors of the county, they shall have authority to issue, on the credit of their respective county, coupon bonds, for the purpose and to the amount thereby authorized." The same act also amended section 795, supra, so that it reads as follows: "The board of county commissioners of any county may, when in its judgment it is advisable for the county to incur an indebtedness or liability for any single purpose in an amount exceeding ten thousand dollars, ($10,000.) submit the question to the qualified electors of the county." Section 795, supra, is as follows: "The board of county commissioners shall not borrow money for the purpose specified in the fourth subdivision of section 756, c. 39, without having first submitted the question of such loan to a vote of the electors of the county." The subdivision referred to is identical with the fourteenth

section, supra, of the act of the first legis. lative assembly of the territory. If we comprehend the words of these statutes, the fiscal policy respecting counties, which has been in force since the organization of the territory, has been continued by the constitution. This appears to have been the intention of the framers of that instrument, who acted with a full knowledge of this history.

It is plain that the issuance of these bonds, which changed the form of the outstanding bonds, warrants, and orders of the county of Missoula, is not the creation of a new indebtedness or liability within the constitutional prohibition. In Blanton v. Commissioners, 101 N. C. 535, 8 S. E. Rep. 162, Chief Justice SMITH said: "The mere renewed recognition of a subsisting liability in the issue of a new bond, declared in the very act which authorizes the issue to be a continuation of the lia bility' resting upon the county, cannot, upon any sound reasoning, be deemed the creation of a new debt, in the sense of its falling under the restrictions applicable to new contracts of indebtedness, with the deprivation of the pre-existent means of enforcing performance by the levy of the necessary taxes. "Judge SHIRAS in Cummins v. Doon, 42 Fed. Rep. 650, said: "The refunding of an existing enforceable debt cannot be said to be increasing the indebtedness, and a mere change in the evidence of the debt from one bond to an. other, or from a judgment into a bond, is not within the constitutional inhibition. Austin v. District Tp. of Colony, 51 Iowa, 102; Railroad Co. v. County of Osceola, 45 Iowa, 168." See, also, Sherman Co. v. Simons, 109 U. S. 739, 3 Sup. Ct. Rep. 502; Powell v. City of Madison, 107 Ind. 110, 8 N. E. Rep. 31. The constitution has recognized and preserved the distinction between laws which relate to the funding of an indebtedness which is already in existence and the incurring of new liabilities to an amount exceeding $10,000. The approval of a majority of the electors is not essential to the validity of this action of the board of county commissioners of Missoula county.

It is intimated in the brief that some of the warrants which are to be redeemed do not bear interest, and that it is illegal for the board of county commissioners to issue coupon bonds therefor. No allegation to this effect is contained in the complaint, but the appellant calls our attention to the statute: "All county warrants that may be drawn after the first day of March, A. D. 1881, by the proper authorities of any county, after having been presented to the county treasurer of the respective counties of this territory, and by them indorsed, 'Not paid for want of funds in the treasury,' from and after said date of presentation and indorsement shall draw interest at the rate of seven per centum per annum: provided, that the provisions of this section shall not apply to the county of Missoula, in this territory." Comp.St. div. 5, § 794. Conceding that the warrants of Missoula county are not interest bearing, the position of appellant cannot be sus

tained. The same point was raised in Chapman v. Morris, 28 Cal. 393, and it was held that an act of the legislature which produced this result was constitutional. We deem it proper to say that this proviso to section 794, supra, is in conflict with the constitution of the state, and an act of congress approved July 30, 1886, which declares that the legislature of the territory "shall not pass local or special laws" regulating county affairs, or the rate of interest on money. 24 U. S. St. p. 170. Section 794, supra, was first enacted February 7, 1881, as an amendment to the Revised Statutes. St. 12th Sess. p. 84. We think that the proviso was repealed by an act concerning Missoula county, which was approved March 3, 1883. St. 13th Sess. p. 127. The fourth section declared that "from and after the first day of January, 1885, the laws of the Revised Statutes of Montana pertaining to the general management and government of other counties of Montana shall be in full force and effect in Missoula county." The act also repealed some special laws regarding Missoula county, and it is evident that the real purpose is to abrogate all statutes, immunities, and privileges in its behalf. Through an oversight, the proviso was re-enacted March 1, 1887. The constitution has solemnly ordained, in similar words, the foregoing prohibition with respect to this special legislation. Article 5, § 26. We are satisfied that the County warrants of all the counties of the territory and state which have been regularly drawn by the proper officers since January 1, 1885, have been governed by the same law, and bear interest under the same conditions. The commissioners have conformed to the statutes in making the ordersupra, and the validity of the bonds described in the complaint cannot be questioned.

The title of the act supra of the legislative assembly of the state is "An act to amend sections 790, 795, 796, and 808 of the fifth division of the Compiled Statutes of Montana." It is suggested by appellant that more than one subject is therein contained, which is not expressed in the title, and that the constitution has been violated. "No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject. which shall be clearly expressed in its title; but, if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.' Article 5, § 23. This act relates to one general subject. The first section prescribes the time when the county bonds shall be redeemable. The second section defines the duty of the county commissioners in submitting to the people the question of incurring county indebtedness. The third section refers to the notice of election which may be called under the second section. The fourth section points out the authority of the county commissioners to issue bonds to redeem outstanding bonds, warrants, or orders. These sections of the Compiled Statutes, which are amend

ed by this act, are comprised in the chapter which treats of county finances, bonds, and warrants, and are germane to the object of the bill. This restriction upon legislative power, which has been incorporated in the constitution of many states, has been interpreted by the courts. Judge Cooley has thoroughly considered this clause, and says: "It may therefore be assumed as settled that the purpose of these provisions was-First, to prevent hodgepodge or 'logrolling' legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might, therefore, be overlooked, and carelessly and unintentionally adopted. The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act, relating to that alone, would not only be unreasonable, but would actually render legislation impossible.

There has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted. Const. Lim. (4th Ed.) 175-178; Davis v. State, 7 Md. 151, 61 Amer. Dec. 331, and notes. The supreme court of the United States has decided that statutes similar to that under investigation are not obnoxious to this constitutional provision. Montclair v. Ramsdell, 107 U. S. 153, 2 Sup. Ct. Rep. 391; Otoe Co. v. Baldwin, 111 U. S. 16, 4 Sup. Ct. Rep. 265; School Dist. v. Hall, 113 U. S. 141, 5 Sup. Ct. Rep. 371; Mahomet v. Quackenbush, 117 U. S. 508, 6 Sup. Ct. Rep. 858; Carter Co. v. Sinton, 120 U. S. 522, 7 Sup. Ct. Rep. 650. It is ordered that the judgment be affirmed.

HARWOOD and DE WITT, JJ., concur.

(12 Mont. 235)

STATE V. FOURNIER. (Supreme Court of Montana. May 2, 1892.) EMBEZZLEMENT-WHAT CONSTITUTES-MONEY RECEIVED FOR PRINCIPAL.

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Under St. 2d Sess. p. 253, § 92, providing that if any agent, servant, or other person, "who shall have received or been intrusted with any money from or by his master," shall embezzle such money, he shall be punished as if he had feloniously stolen the same, it is suffi cient to allege that an agent of B., as such, did "receive and take into his possession a large sum of money of the said B. for and in the name and on the account of the said B., " and embezzle the same; it not being necessary that the money should have been intrusted to him directly by B.

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Appeal from district court, Deer Lodge county; DAVID M. DURFEE, Judge.

Information against Henry Fournier, charging him with embezzlement. A demurrer to the information was sustained, and the state appeals. Reversed.

Henri J. Haskell, Atty. Gen., and W. S. Shaw, Co. Atty., for the State. Theodore Brantley, for respondent.

the intention of the legislature will be defeated. We approve the views which are expressed in Ex parte Ricord, supra. The information alleges clearly that Fournier, while in the service and employment of Boucher, received for and in the name and on account of said Boucher a certain sum of money. We are satisfied that the state had the authority to make this allegation in the information under the statute supra, and carry on this action against the appellant. It is ordered that the judgment be reversed, and that the cause be remanded, with directions to proceed in conformity with this opinion.

HARWOOD and DE WITT, JJ., concur.

(8 Utah, 41)

IDAHO FORWARDING Co. v. FIREMAN'S FUND Ins. Co.

(Supreme Court of Utah. April 1, 1992.) INSURANCE CONTRACT TO INSURE-WITNESS-ADMISSIONS OF AGENT.

1. In an action against an insurance compa ny on an alleged contract of insurance, it appeared that, when plaintiff's policy with defendant was about to expire, plaintiff's manager directed its cashier, who, as such, was authorized to pay premiums on insurance, to renew the policy. Plaintiff's cashier was also defendant's agent, with authority to issue policies, and he promised to renew the policy, but neglected to do so; and the property was destroyed after the policy had expired. He testified that he intended to renew the policy, and thought that he had renewed it. Held, that there was no contract of insurance.

2. In such case, plaintiff's manager, after narrating the conversation between himself and the agent, cannot be asked, "How long was the insurance to be?" as such question calls for a conclusion of the witness.

3. The admissions of the agent subsequent to the conversation, to the effect that the property was insured, are not competent.

Appeal from district court, Weber county; JAMES A. MINER, Justice.

Action by the Idaho Forwarding Company against the Fireman's Fund Insurance Company on an alleged contract of fire insurance. Judgment for plaintiff. Defendant appeals. Reversed.

Bennett, Marshall & Bradley, for appellant. A. R. Hey wood, for respondent.

ZANE, C. J. The respondent alleged in its complaint that on the 1st day of February, 1889, in consideration of $46.20 paid as premium, its stock of goods at Hailey, Idaho, was insured in the sum of $2,000 by appellant, for one year from the 13th day of the same month, and that on the 2d day of the following July the goods were destroyed by fire. The plaintiff relies upon a contract in præsenti, not a contract to thereafter insure. Albert Kiesel, who had an interest in plaintiff's business, and manager thereof, testified that B. M. Mallory, the agent of both parties, said to him about the last of January or the first of February, 1889, that $5,000 of the insurance would expire; that witness told him to renew the insurance, and that he said he would that the policies of the North British & Mercantile and Fireman's Fund and Commercial Union were about to expire; that Mallory said he would reinsure him in the Fireman's Fund for $2,000, in

the North British & Mercantile for $1,000, and in the Commercial Union for $2,000. Witness also said that the insurance was to be for one year, and that the premium was to be $2.20 per $100. B. M. Mallory, the agent of both plaintiff and defendant, testified that, soon after his employment as bookkeeper, Albert Kiesel, manager of the plaintiff, instructed him to renew all policies upon expiration, and to keep the amount of insurance to $14,500, and to pay premiums 60 days after issuance of policies; that he was under the impression that the lapsed policies had been renewed; that his intention was to renew them, but he negligently had allowed them to lapse; that, as cashier of the plaintiff, he was authorized to use its funds to pay premiums, and was directed by plaintiff's manager to do so, and to keep the insurance to $14,500. The premium was not paid, but was tendered six days after the stock of goods had been consumed by fire.

The proof is that Mallory, who was cashier of the plaintiff, and who was authorized and instructed by its manager to have its stock of goods insured, and who was also the agent of the defendant, and authorized by it to make contracts of insurance and to issue policies, neglected to do as he was instructed, and what he promised plaintiff's manager he would do. He had an impression, as he said, that the property was insured, and neglected to issue the policy. He was authorized to appropriate plaintiff's money, in his hands as its cashier, to the payment of the premium, but neglected to do that. If he had done so, he would have acted as plaintiff's agent in so doing. At the time of the conversation, about the 1st of February, relied upon to establish the contract declared on, insurance then on the property to be renewed had not expired. It did not expire until the 13th day of that month. It was the duty of Mallory, under the instructions of plaintiff's manager, to continue the risk after the old policy expired by reinsuring, but the evidence shows that he neglected to do this. For the failure to follow plaintiff's orders the defendant cannot be held responsible. It is apparent that Mallory failed to make the contract that he was authorized and instructed by plaintiff to make. An agreement to make a contract at a future day is not the equivalent of the one to be made, or of a present contract, though all the terms to be put in the latter are agreed upon. If one of the parties to the first agreement refuses to bind himself when the time comes, the court may compel a specific performance of it, if from the facts it would be equitable to do so; and if performance is decreed a judgment may be entered in the same case for the amount found to be due the plaintiff on the contract, if any amount is then due the plaintiff by its terms, or an action may be instituted on it if either party refuses to comply with it. By the language used on the 1st of February the defendant did not assume the risk the plaintiff contends that he did. That language had reference to insurance thereafter to be made.

The plaintiff has set up in his complaint a contract in præsenti. This action is not

for specific performance. Taylor v. Insurance Co., 47 Wis. 366, 2 N. W. Rep. 559, and 3 N. W. Rep. 584; Sargent v. Insurance Co., 86 N. Y.626; Dinning v. Insurance Co., 68 Ill. 414; Markey v. Insurance Co., 118 Mass. 178; Myers v. Insurance Co., 121 Mass. 338; O'Reilly v. Corporation, 101 N. Y. 575, 5 N. E. Rep. 568. Commercial National Marine Ins. Co. v. Union Mut. Ins. Co., 19 How. 318, cited by counsel for respondent, was an equity cause to complete the specific performance of a contract to make reinsurance. The court in that case held that the bill for the specific performance of the contract should be maintained, and it having been admitted that defendants would be liable as for a total loss on the policy if issued in conformity with the contract, and that the amount was then payable, and that no further question remained to be tried, and it was proper to decree the payment of the money which would have been payable on the policy if it had been issued. In Sanborn v. Insurance Co., 16 Gray, 448, and Putnam v. Insurance Co., 123 Mass. 324, relied upon by respondent's counsel, it was held that the evidence tended to show that the risk was to commence at the time the contracts sued on were made. The facts of these cases are not analogous to the case in band. In them the insurers assumed the risk by the contracts sued on.

After the witness Albert Kiesel had narrated the conversation between himself and Mallory on the 1st day of February, plaintiff's counsel propounded this question: "Now, if you know, how long was the insurance to be?" To which counsel for defendant objected on the ground that the conclusion of the witness was called for, and not the language used, or the substance of it. The objection was overruled by the court, and defendant excepted. This ruling is assigned as error. The intentions of the parties to contracts must be ascertained from the language used in them, or in making them, in the light of the surrounding circumstances, and this rule applies to the interpretation of verbal contracts as well as to written ones. It was improper to call for the conclusion of the witness as to the term of the insurance, or as to the premium to be paid. Those facts should have been found from the language used by the contractors. They could not be ascertained from the inferences and conclusions of the witness.

Witnesses were permitted, over the objections of defendant's counsel, to testify to admissions of the agent Mallory, made long after the alleged contract was made, to the effect that the property was insured. To the ruling of the court in overruling such objections the counsel for the defendant excepted, and assigns the same as error. A witness may testify to the language of an agent in making an oral contract, because such language is within the agent's authority. Being authorized to make the contract, his language in making it is authorized by the principal. But authority to make a contract does not empower the agent at a subsequent time to admit away his principal's rights The admissions of an agent are admissible so far as the

principal has authorized them to be made, and no further. Greenleaf says: "But it must be remembered that the admission of the agent cannot always be assimilated to the admission of the principal. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act, and part of the res gestæ, that it is admissible at all; and therefore it is not necessary to call the agent himself to prove it." 1 Greenl. Ev. § 113. The court said in the case of Railroad Co. v. O'Brien, 119 U. S. 99, 7 Sup. Ct. Rep. 118: "Referring to the rule as stated by Mr. Justice Story in his treatise on Agency, (section 184,) that, where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gestæ.' The court, speaking by Mr. Justice STRONG, said: A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified, or explained either by his dec.. larations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period. The reason is that the agent to do the act is not authorized to narrate what he had done, or how he had done it, and his declaration is no part of the res gesta:"" For the reasons above indicated the court is of the opinion that the judgment of the court below should be reversed, and that a new trial should be granted.

ANDERSON and BLACKBURN, JJ., concur. (3 Wash, St. 750)

WARREN et al. v. QUADE et al. (Supreme Court of Washington. Feb. 24, 1892.) MECHANICS' LIENS-SUFFICIENCY OF NOTICE.

1. A mechanic's lien notice, stating that the lien is claimed on certain described lots "for labor performed upon and assistance rendered in doing tinning and ironwork;" that the labor, etc., was performed "upon said building aforesaid, " (no mention having been previously made of any buildings:) and that there is due a certain amount, for which a lien is claimed "upon said lots aforesaid, " -since it describes no buildings, and does not show that the work was done on any buildings situated on the lots described, is not sufficient to support a lien, since Hill's Code, § 1667, requires the statement to contain "a description of the property to be charged with the lien, sufficient for identification."

2. A mechanic's lien notice for "labor performed upon and assistance rendered in doing tinning and ironwork," which merely gives the owner's name, and alleges that one M. employed claimant to perform the labor and render the assistance, agreeing to pay claimant therefor a certain sum, without showing the relation between M. and the owner, is insufficient to support a lien, under Hill's Code, § 1667, requiring the statement to give the name of the owner, and also the name of the person by whom claimant was employed, or to whom he furnished the materials, with a statement of the terms and conditions of the contract, since it cannot be told whether M. was one who, under the