of costs in the latter thereto. In the one the evidence, where the action of the court is founded on that of others, is filed and preserved as a part of the record at the time of the judgment (section 4468, Code); in the other, by bill of exceptions. In each the record is reviewed. Why this is not permitted in a direct proceeding by appeal, instead of by certiorari proceedings, need not be considered. It is enough that the result is practically the same, and we think the same rules in the matter of taxation of costs applicable. Section 4142 of the Code directs the Supreme Court to "provide by rule for taxing as costs all printing authorized upon the trial of appeals," and also "the costs of any translation of shorthand notes." Rule 97 of this court reads: "All taxable costs shall abide the result of the appeal and be taxed to the unsuccessful party, unless otherwise ordered." The court, upon an affirmance of the order assailed, will ordinarily tax the costs to plaintiff, and upon reversal to the party who procured it to be entered. But this should not always be done, for it may appear, as in the instant case, that this would be inequitable. The matter is discretionary under the rule quoted. True, the plaintiffs were improperly convicted of contempt in the violation of the writ of injunction, as was held in Coffey v. Gamble, supra. It is equally true that the writ of injunction had been improvidently dissolved, and that the plaintiffs were wrongdoers in committing the acts complained of in the contempt proceedings. Burget v. Incorporated Town of Greenfield (decided at the present term) 94 N. W. 933. Had not Burget interposed in some way to prevent the destruction of trees in front of his home by plaintiff, the loss would have been irreparable. That he chose the wrongthough, as appears, a very effective-remedy ought not, in the circumstances disclosed, to subject him to the payment of plaintiffs' costs. In any event, they were acting in violation of law, and we are not inclined to relieve them of any of the costs incident to the adjustment of their legal rights in the certiorari proceeding. As to the liability of the county, we express no opinion, as it was not notified of the pendency of defendant's motion.

It follows that the plaintiffs' motion to tax the costs to Burget must be and is overruled.

LEAGUE v. EHMKE.

(Supreme Court of Iowa. May 18, 1903.) INTOXICATING LIQUORS-UNLAWFUL SALECIVIL DAMAGES-MULCT LAW-COMPLIANCE -BURDEN OF PROOF EVIDENCE- MATERIALITY - OPINIONS NONEXPERTS - INSTRUCTIONS-DAMAGES.

1. Where, in an action to recover damages for the sale of liquor to plaintiff's husband, defendant pleaded compliance with the mulet law as an affirmative defense, which by Code, §§ 3576, 3622, 3648, was denied without reply,

the burden of proving compliance with such law was on the defendant.

2. In an action to recover damages for the sale of intoxicating liquors to plaintiff's bee band, defendant's general statement that be was operating under the mulet law, withert proof that the sales to plaintiff's husband were made at the place and in the manner authore ed by such law, and that plaintiff's husband w a person to whom liquor might be lawfully sold thereunder, did not require the court to submit the defense that defendant was operating under such law to the jury.

3. Under Code, § 2418, providing that a wife who shall be injured in her means of support in consequence of the intoxication of her b band, caused by defendant, shall be entitled to recover damages, it was not error to charge that if defendant caused or contributed to the habitual intoxication of plaintiff's husband, and by reason thereof plaintiff was injured, etc., she was entitled to recover, but that, if de fendant merely contributed to the habit of drinking on the part of plaintiff's husband. without intoxication, but leading to the habit of drinking which resulted in intoxication, she could not recover.

4. Where a petition alleged that defendant caused the habitual intoxication of plaintifs husband, an instruction authorizing a recovery of damages caused by the husband's habitual intoxication, to which defendant contributed was not erroneous as broader than the petition.

5. Where the prior failure of plaintiff's has band to support her was due to habitual intercation, and such condition was caused to evatinue by sales of liquor made by defendant, plaintiff was entitled to recover damages resulting from the continuance of such condition by reason of defendant's acts, so far as they caused or contributed to the injury.

6. In an action for damages from the sale of intoxicating liquors to plaintiff's husband, an instruction that if defendant contributed to the husband's habitual intoxication, of which the particular intoxication at the time he male threats of great bodily injury to plaintiff, and in her presence to their children, was a part, they might consider injury to plaintiff's health resulting from such threats, etc., in determining her damages, was not error.

7. An objection to evidence as to the extent of the husband's drinking at a time long prior to the period covered by the action, as irrele vant and immaterial, was properly sustained.

8. Evidence as to the husband's general codition with reference to intoxication during the period covered by the action, and threats of personal violence toward his children in plaintiff's presence, was admissible.

9. A nonexpert witness is entitled to give his opinion as to the intoxicated condition of plaistiff's husband in an action for damages resulting from defendant's alleged sale of liquors to him, the witness having first detailed the facts on which such opinion was based.

Appeal from District Court, Pottawattamie County; W. R. Green, Judge.

Action by a married woman to recover damages, both actual and exemplary, on account of injuries received by reason of the sale of intoxicating liquors by defendant to her husband. Verdict for plaintiff. From judgment thereon, defendant appeals. Affirmed.

A. L. Preston, for appellant. Willard & Willard and T. S. Lewis, for appellee.

MCCLAIN, J. In presenting the issues to the jury the trial court did not instruct with reference to a defense interposed in the an

itself. Ennis v. Shiley, 47 Iowa, 552; Cox v. Newkirk, 73 Iowa, 42, 34 N. W. 492; Arnold v. Barkalow, 73 Iowa, 183, 34 N. W. 807.

This distinction was clearly presented to the jury in the instructions given in this case. As to the claim that the instruction is broader than the allegations of the petition, in that it allows recovery by plaintiff for damages caused by habitual intoxication to which defendant contributed, while the petition alleges only that defendant caused habitual intoxication, it is sufficient to say that it is without merit. One who contributes to an injury in such a way as to render himself liable therefor to that extent causes the injury complained of. That the liquor seller, who by sales of liquor contributes to such an injury, is liable therefor to the extent to which his sales caused the injury, is well settled. Woolheather v. Risley, 38 Iowa, 486; Ennis v. Shiley, 47 Iowa, 552; Welch v. Jugenheimer, 56 Iowa, 11, 8 N. W. 673, 41 Am. Rep. 77.

Complaint is made of an instruction as to the measure of damages, and it is urged that plaintiff was not entitled to recover if, prior to the sale of liquor to her husband by defendant, he was already in a condition of habitual intoxication, and on that account was not furnishing her any support whatever. It may be true that if, from other causes than his habitual intoxication, he was not furnishing plaintiff any support, a subsequent condition of habitual intoxication, caused by defendant, would not entitle her to recover in general the support from her husband to which she was entitled. Bellison v. Apland (Iowa) 89 N. W. 22. But if the prior failure to furnish support was due to habitual intoxication, and this condition was caused to continue by sales of liquor by defendant, then plaintiff is entitled to recover. A condition of habitual intoxication does not continue without such continuance is caused or contributed to by further sales of liquor; and, if the only reason why plaintiff's husband did not furnish her support was a condition of habitual intoxication, then plaintiff may recover the damages resulting from the continuance of this condition by reason of defendant's acts. And this is what the jury were told by the instructions. pears that until plaintiff's husband formed the habit of becoming intoxicated he provided fully and satisfactorily for the support of his wife, and the jury were justified in finding that he would have done so during the time covered by this action, had not this habit of intoxication been continued by reason of the sales to him of intoxicating liquor. Therefore, if defendant caused or contributed to the continuance of the habit of becoming intoxicated, or being habitually intoxicated, he is liable so far as his acts caused or contributed to the injury. Woolheather v. Risley, 38 Iowa, 486; Huff v. Aultman, 69 Iowa, 71, 28 N. W. 440, 58 Am. Rep. 213. If the defendant claimed that other causes than

It ap

that of habitual intoxication had interfered with the ability of plaintiff's husband to port her, he could have had the jury's atte tion specially directed to such matters by a additional instruction, had he asked it, b no such instruction was asked.

Another assignment of error is based on an instruction allowing the jury to take int consideration, in measuring plaintiff's dan ages, injury to plaintiff's health resulting from threats of great bodily injury made to her, or in her presence to their children, by her husband while in an intoxicated cond tion. It is urged that, in the absence of evidence that the particular fit of intoxication during which these threats were made was caused or contributed to by defendant, thea defendant would not be liable for this injury. But under the instruction given, the jury was not to take into account this element of damage unless it should find that defendant contributed to a state of habitual intoxication of which the particular intoxication at the time was a part. We think there was no error in this portion of the charge. If a state of habitual intoxication existed, caused or contributed to by defendant, then certainly acts of violence on the part of plaintiffs husband, due to such habitual intoxication, and resulting from a particular fit of intoxication, which was a part of it, would be chargeable to defendant, to the extent to which he had contributed to such habitual condition. It would not do to say that defendant could cause or contribute to a condition of habitual intoxication, and at the same time escape any liability for specific acts at a particular time caused thereby, merely be cause the fit of intoxication during which the acts were done was the immediate result of liquor procured from some other person.

We need not discuss at length other assignments, such as that the verdict was without support in the evidence, that the damages allowed were excessive, and that the verdict was the result of passion and prejudice. An examination of the record does not sustain these assignments. As to an assignment of alleged error in admitting testimony as to the extent of the husband's drinking at a time long prior to the period covered by this action, it is sufficient to say that the objec tion, sustained on the ground that such evidence was irrelevant and immaterial, was well taken. It does not follow, because the husband was a hard drinker at a previous time, that he would have continued to be a hard drinker at the time covered by this action if defendant had not sold him liquor. And as already pointed out, the fact that by reason of habitual intoxication he had failed in former years to furnish proper support to the plaintiff would not defeat recovery by plaintiff for his failure to furnish support by reason of habitual intoxication induced by defendant's sales.

Objections to questions propounded to witnesses for plaintiff as to the general condi

on of plaintiff's husband with reference to atoxication during the period covered by his action, and as to threats of personal vioence towards his children in the presence of laintiff, were properly overruled. An opin

on as to an intoxicated condition may be given by one not an expert who details the acts, and, as already indicated, violent conluct resulting from habitual intoxication, so ar as it was likely to affect the plaintiff, night properly be shown.

We have considered all the material assignments of error, and, finding them to be without merit, the judgment of the trial court is affirmed.

SHINN v. CUNNINGHAM et al. (Supreme Court of Iowa. May 15, 1903.) TAXATION-CONTRACT TO DISCOVER OMITTED PROPERTY - VALIDITY COMPENSATION POWER OF SUPERVISORS-DUTIES OF COUNTY TREASURER-CHAMPERTY.

1. A county board of supervisors has power to enter into a contract with a party who undertakes thereby to investigate and discover taxable property in the county which, through fraud or otherwise, has been omitted from taxation, and to report the same to the proper officers of the county, and such agreement is not contrary to public policy.

2. A party agreed to investigate and discover taxable property in the county which, through fraud or otherwise, had escaped taxation, and to pay all costs and attorney's fees incurred by the county in collecting taxes on such property, receiving for his services one-half of all moneys so collected. Held, that the court could not say, as matter of law, that the contract was unreasonable or unjust, or that the compensation was excessive.

3. The statute does not make it the duty of a county treasurer to investigate property omitted from assessment, and he is charged with no duty in respect thereto until, under Code 1897, § 1374, he is "apprised" of such omission. 4. A contract between a county board of su pervisors and a party who thereby agreed to look up property which had escaped taxation, provided that the latter should pay all expenses and attorney's fees incurred in collecting taxes on such property, and should receive half of the amount collected as compensation for his services, held not champertous.

5. Acts 28th Gen. Assem. p. 33, c. 50, limiting the payment for the discovery of property omitted from taxation to 15 per cent. of the taxes thus obtained, could not affect the rights of the parties to a contract for discovering omitted property which was entered into before the statute took effect.

6. The valid contract of a municipal corporation is just as sacred from legislative interference or destruction as one between individual citizens.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge. The opinion states the case.

Affirmed.

ty entered into a contract with the defendant Cunningham, by the terms of which the latter undertook to investigate and discover taxable property in said county which, through fraud or otherwise, has been omitted from taxation, and report same to the proper officers of the county. It was further provided by said contract that Cunningham should pay all costs and attorney's fees incurred by the county in making collections of taxes thus assessed, and as compensation for his services was to be paid one-half of all the moneys collected from such taxes. Thereafter the plaintiff, a resident taxpayer of the county, brought this action in equity to enjoin the performance of said contract, and the payment of any money thereunder to Cunningham, and as grounds for such relief alleges that the board of supervisors had no authority or power to enter into such an agreement; that the work contracted for required no special skill, and the agreed compensation is excessive, unreasonable, and void upon considerations of public policy; that since the making of said contract a statute has been enacted limiting compensation for such services to 15 per cent. of the amount recovered; and that section 1374 of the Code of 1897, providing for the collection of omitted taxes, is unconstitutional. The answer of Cunningham admits the making of the contract, and alleges that after the making thereof, and before the commencement of this suit, he had in fact performed the service therein agreed to; that in so doing he expended 12 months' valuable time, and has been to large expense for assistance, all of which was well known to plaintiff, and to the taxpayers generally; and that plaintiff is thereby estopped to deny his right to recover payment. At the close of the trial the court found for defendants, and dismissed the petition. Plaintiff appeals.

1. We had recent occasion to consider the power of the board of supervisors to enter into a contract of this kind under the statute as it existed at the date of the transaction in controversy. Disbrow v. Board (Iowa) 93 N. W. 585. The conclusion there reached affirmed the existence of such power, and held the agreement not contrary to public policy. It would be unprofitable to review again the authorities upon this feature of the case. No good reason is suggested for overruling the decision there announced, and we are content to recognize its authority.

2. It is said that the compensation agreed to be paid is excessive and unreasonable, and the contract should therefore be declared void, in the interest of the public. While such is the allegation of the petition, and the point is urged in argument, not a word of testimony appears in the record to show the fair and reasonable value of the services. It may be true that 50 per cent. is an excessive compensation for hunting up property escaping taxation by ordinary methods, and collecting the revenue therefrom, but the

court cannot presume such to be the fact. It must be proved, and in the absence of any evidence in support of the allegation the appeal presents nothing upon this issue for our consideration.

But counsel say that the work is properly the duty of the county treasurer, and that he could employ deputies to perform it. If this be a material consideration, it may be said the statute does not make it the duty of the treasurer to investigate and discover property omitted from the assessment. It charges him with no duty in respect thereto until he is "apprised" of such omission (Code 1897, § 1374); and the fact that he could, if permitted, employ deputies to do the work confided to Cunningham has no bearing upon the validity of the contract in dispute, nor can we assume without testimony that such method of collection would be less expensive for the county than the one which was adopted. The contract has no reference to taxes upon property duly listed or assessed, for the collection of which the proper officers are clothed with ample powers. It assumes the possibility of the existence of property concealed or withheld from assessment, and not in any manner appearing upon the tax books. Defendant undertook to make search for and develop the existence of such property, and bring it to the attention of the officer having the legal authority to enter up the tax and enforce collection thereof. If, then, in view of the uncertainty concerning the amount of revenue which may thus be realized, and of litigation likely to ensue from the enforcement of such measures, the board of supervisors believe it wise to protect the county by a contract providing that defendant's compensation for the work thus performed shall be wholly contingent upon the amount of taxes collected, and requiring him to assume the burden of all costs and attorney's fees thus incurred, it is easily possible that this method of discovery and collection may prove the most practicable and least expensive. At least, we cannot say, as a matter of law, that it is unreasonable or unjust.

The further objection that the contract is champertous is not well taken. The agreement, as we construe it, is not of champertous nature. Under the contract both the county and Cunningham were directly interested in collection of these taxes, whether by suit or otherwise, and it was competent for them to agree in advance as to how the expenses thereby incurred should be borne.

3. The statute subsequently enacted (Acts 28th Gen. Assem. p. 33, c. 50), limiting the payment for the discovery of property omitted from taxation to 15 per cent. of the taxes thus obtained, having become a law after the contract in suit was entered into and the services in part performed, cannot affect the rights of the parties to this litigation. It should further be noticed that the limitation of 15 per cent. applies to compensation for services rendered and expenses incurred in

assisting the proper officers "in the discovery of property not listed and assessed," while by the contract before us the defendant under took not only to assist in "discovering" the property, but also to assume the burden of the expenses, attorney's fees, and costs incurred in enforcing collection of the taxes upon the property so discovered-an obliga tion much more onerous than is to be implied from the language of the statute. The principle cited in argument that an "officer aequires no vested right in a public office" has no application here, by analogy or otherwise. If the board of supervisors had the power to enter into this contract, as we have held it had, it was not within constitutional power of the Legislature to impair that contract, and compel Cunningham to accept a less compensation than was promised him. The valid contract of a municipal corporation is just as sacred from legislative interference or destruction as is one made be tween individual citizens. No precedent has been noticed to the contrary, and the general principle is too familiar to justify reference to authorities. The question raised as to the effect of this contract upon the rights of school districts, towns, and cities whose taxes are collected by Cunningham we cannot undertake to decide. These municipalities are not in court, and so far as this record shows are not complaining. It is but fair to appellant to state that at the time this suit was begun some of the principal propositions presented by him had not been definitely settled by this court. The meaning and effect of some of the changes made in the tax statutes by the Code of 1897 were there involved in considerable doubt, and became the source of no little litigation.

Decisions since made have foreclosed discussion upon many of the points raised, and robbed this case of much of the importance it would otherwise possess.

The judgment of the district court is right, and is affirmed.

DUNTON v. McCOOK et al BLAKE & CO. v. McCOOK. (Supreme Court of Iowa. May 18. 1903.) APPEAL-EFFECT-DIVESTMENT OF JURISDICTION EFFECT OF AFFIRMANCE ISSUANCE OF PROCEDENDO-POWER OF COURT OVER DECREE-DISCHARGE OF DECREE-SUPPLEMENTAL PETITION-ANSWER-WAIVER OF OBJECTIONS-JURISDICTION BY CONSENT. 1. On appeal from a judgment of the district court, that court loses all jurisdiction over the parties and over the subject-matter.

2. After affirmance by the Supreme Court of a decree of the district court without remanding the cause, the clerk of the Supreme Court cannot revive or open the cause by issuing a procedendo.

3. Although the district court had lost jurisdiction of a suit by an appeal to the Supreme Court, after affirmance by the Supreme Court it still had jurisdiction over its decree, and inherent power to enforce the same by appropriate orders.