artificial rules of construction in order to arrive at the meaning of the legislature; but where the legislature itself puts a construction upon an act, by a provision embodied therein, such construction is binding upon the courts, although the latter, without such a direction, would have understood the language to mean something different. End. Interp. St. § 365; Suth. St. Const. §§ 229, 231; Byrd v. State, 57 Miss. 243; Herold v. State, 21 Neb. 50, 31 N. W. 258. Now, if the legislature, when they enacted section 78, did not contemplate that women might be elected to the office of county superintendent, it seems clear that the language used is entirely without force or meaning. It was idle and senseless for them to say, "She shall take an oath of office, and give an official bond," if they did not understand, and mean to be understood, that female citizens might hold the office of which they were speaking. It is the duty of the courts ordinarily to give full force and effect to every word of a statute, rather than to attribute to the legislature either folly or ignorance of the words they employ. There being in this state, therefore, no constitutional or statutory disqualification of females to hold the office of county superintendent of schools, and the legislature having, by clear implication, recognized the right, our conclusion is that the office may legally be held by a woman who is competent to discharge the duties pertaining thereto. For a more full and complete discussion of this question, see Wright v. Noell, 16 Kan. 601; Opinion of the Justices, 115 Mass. 602; Huff v. Cook, 44 Iowa, 639. The judgment is reversed, and the cause remanded to the superior court, with directions to dismiss the proceeding.

HOYT, C. J., and DUNBAR, J., concur.

(13 Wash, 352)

SCHOOL DIST. NO. 5 OF SNOHOMISH COUNTY v. SAGE et al.

(Supreme Court of Washington. Jan. 3, 1896.) ARBITRATION-REVIEW OF EVIDENCE-ERROR IN LAW.

1. Under Code Proc. § 429, providing that, if it shall appear that the arbitrators have committed error in fact or law, the cause may be referred back to the arbitrators, the errors must be apparent upon the face of the award alone, or in some paper delivered with it, and the evidence submitted to the arbitrators cannot be examined.

2. Where arbitrators are required to decide according to the strict rules of law, if the error complained of is not plain or if the point of law is doubtful, their decision will not be interfered with on account of error in law.

3. Though arbitrators found that a building, as completed by plaintiff, varied in some particulars from the original plan, but made their award in plaintiff's favor, after having credited defendant with a certain amount for such variation, their award will not be disturbed by the court.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

In the matter of Frank Sage and others against school district No. 5 of Snohomish county. Exceptions to the arbitrator's award were overruled, and the school district appeals. Affirmed.

Geo. J. Sherry and A. D. Austin, for appellant. A. K. Delaney, for respondents.

ANDERS, J. The respondents entered into a written contract with appellant to erect for it a schoolhouse for the sum of $18,179, according to plans and specifications prepared by its architect, F. A. Sexton, and signed by the parties, and according to the terms of said contract. Prior to the making of this contract, appellant had purchased the Smead heating and ventilating apparatus, for $3,000, to be used in the schoolhouse proposed to be erected, under a written agreement by which the Smead Company were to furnish plans and specifications, and to superintend the putting of the apparatus into the building. Soon after the signing of the contract, the respondents commenced the construction of the schoolhouse, which they completed on or about October 23, 1893, to the satisfaction of appellant's said architect, who delivered to them a certificate of completion, and also a certificate showing the balance due respondents, including the value of extra labor performed and materials furnished by them. Payments were made by appellant to respondents, from time to time, as the work progressed, the last one having been made on October 15, 1893. Further payment was refused, for the alleged reason, among others, that respondents had not complied with the terms of their contract. Appellant also claimed that, under the contract, respondents were obliged to furnish everything requisite for the building, including the Smead system of heating, and that its cost should be deducted from the contract price of the building. On the contrary, the respondents claimed that they had complied with their contract, and that their agreement did not require them to furnish or pay for the heating and ventilating apparatus purchased by appellant. On its completion, appellant took possession of the building, and occupied it as a schoolhouse. Appellant insisted on deducting the cost of the Smead system from the contract price, and that the final certificates of the architect were not binding upon it, on account of his bad faith with the appellant and collusion with respondents, and of his unfaithfulness to his trust in the preparation of details, and in accepting inferior work and materials, and deviating from plans and specifications, and assuming authority not given by the contract, and that respondents were entitled to no further pay. ment until they had fully and completely performed their contract. In order to settle their differences and disputes, the respond

ents and appellant, by its board of directors, entered into a written agreement, submitting to arbitration the following questions:. (1) As to the mutual differences between said parties, and to determine the amount, if any, due the parties of the first part (respondents) under and by virtue of the aforementioned contract, without any consideration of the heating and ventilating apparatus known as the "Smead System"; (2) as to whether or not the expense of putting said system into the building should be borne by the parties of the first part, and thereupon determine the gross amount, if any, due the parties of the first part under said contract, and to make the proper award under this agreement, as provided by the laws of this state. Under this agreement, the respondents chose L. K. Church, and the appellant chose J. S. White, as their respective arbitrators, and the two chose R. McFarland as the third. After being duly sworn, said arbitrators proceeded to hear, try, and determine the differences submitted to them by said agreement; and, after hearing and considering the evidence produced by the respective parties, a majority of them, on May 16, 1894, made their award, finding that the furnishing of said heating and ventilating system and apparatus was not within the terms of respondents' contract with the school district, and that there was due from said school district to respondents Chapman and Sage the sum of $5,582.89, together with the costs of arbitration, including the fees of respondents' witnesses. This award, together with the written agreement of submission, was filed with the clerk of the superior court of Snohomish county, and a copy thereof served on the school district, as provided by law. Exceptions to the award were served and filed by the appellant, all of which were overruled by the court, and judgment was rendered in favor of the respondents for the amount stated in the award. The school district brings the cause here for review.

The argument of the learned counsel for appellant, as indicated by their brief, seems to proceed upon the theory that this court will try and determine the matters in controversy between these parties upon the evidence which was submitted to the arbitrators, and which has been transmitted to this court as part of the record herein. But such is not the theory of the law. The only power conferred by law upon the court below respecting the questions presented by the exceptions was that which authorized it to refer the cause back to the arbitrators for amendment of their award, in case it appeared that they had committed error in fact or in law, or, if no such error appeared, to confirm the award as made. With the merits of the controversy the court had nothing whatever to do. It was not possessed of the case for the purpose of proceeding to its determination. Code Proc. § 429. Neither is this court so possessed of it. The sole ques

tion for our determination is whether the superior court erred in sustaining the award. The court filed no findings of fact or conclusions of law, but simply overruled the objections to the award, the ground of which objections was the statutory one that the arbitrators committed error in fact and in law. Id. § 428.

Having shown the extent and limit of the power of the court in the premises under the statute, the question arises as to how it was to determine whether the errors complained of had been committed. Was it by an examination of all the evidence taken before the arbitrators, and upon which they based their award, or was the question to be determined from the award itself? The legislature has provided that arbitrators shall have power to decide both the law and the fact that may be involved in the cause submitted to them (Code Proc. § 430); and that is the common-law rule, upon a general submission, unless the arbitrators are restricted by the agreement to submit (Morse, Arb. p. 296). The legislature has also provided, as we have seen, that awards may be set aside for error in fact or law; but, inasmuch as there is no provision in the statute requiring arbitrators to file or preserve the evidence received upon the hearing, it would seem to follow that the errors which will sustain an exception to an award on the ground indicated must be discovered by an examination of the award alone. If it was the intention of the legislature to require the court, upon hearing exceptions taken to awards, to examine the evidence submitted to the arbitrators, or, in other words, to try the cause de novo, it is but reasonable to presume that they would have so declared. And, in the absence of such provision, we think we are justified in adopting the rule announced in many wellconsidered cases, and which we believe is subject to but few exceptions, viz. that the errors and mistakes contemplated by the statute must appear on the face of the award, or, at least, in some paper delivered with it. 1 Am. & Eng. Enc. Law, p. 710; Pleasants v. Ross, 1 Wash. (Va.) 156; Hartshorne v. Cuttrell, 2 N. J. Eq. 297; Goldsmith's Adm'r v. Tilly, 1 Har. & J. 361; Fudickar v. Insurance Co., 62 N. Y. 392; Halstead v. Seaman, 52 How. Prac. 415; De Castro v. Brett, 56 How. Prac. 484; Morse, Arb. 325. In 1 Am. & Eng. Enc. Law, supra, it is said that "the mistake for which an award will be set aside must be palpably apparent upon its face, in some material point, and extremely prejudicial to the losing party"; and numerous decisions are referred to in support of the proposition. Arbitration is favored by the law as an easy, expeditious, and inexpensive mode of adjusting disputes and differences, and awards are generally very liberally construed by the courts. All reasonable intendments and presumptions will be indulged to uphold them, and no intendments will be made to overthrow them. The principal ob

(Supreme Court of Washington. Jan. 9, 1896.)

STATEMENT OF FACTS-FILING-INDEPENDENT CON

TRACTORS-PLEADING-JUDICIAL NOTICE.

1. A statement of facts appearing to have been filed after the copy was served, although on the same day, cannot be considered.

2. An allegation that a certain firm were constructing a portion of the roadbed of a railroad company, and that plaintiff was working for them as a common laborer, sufficiently shows that said firm were independent contractors.

3. Courts take judicial notice that railway companies are common carriers.

4. A complaint against a railroad company for personal injuries sustained by one who was employed by independent contractors who were then building a portion of the road, alleging that there was an "arrangement" between the railroad company and said contractors whereby said railroad company was to transport the employés of said contractors, sufficiently showed that there was an agreement to that effect.

5. Plaintiff's statement, in an action for personal injuries, that an action for the same cause, which had been commenced in the federal court, was dismissed after the filing of a plea in abatement alleging the pendency of said action, was a sufficient reply to said plea.

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Action by Philip Boyle against the Great Northern Railway Company and others for personal injuries. Plaintiff had judgment, and defendants appeal. Affirmed.

C. Wellington, Jay H. Adams, and M. D. Grover, for appellants. Plummer & Thayer, for respondent.

HOYT, C. J. The motion of respondent to strike the statement of facts from the record was granted at the hearing, and the argumént upon the merits confined to questions arising upon the pleadings. Two reasons were assigned why said motion should be granted: (1) That a copy of the proposed statement of facts had not been served upon the respondent after it was filed in the cause; and (2) that no notice of such filing had been served upon one of the parties who had appeared in the action. It appeared from the transcript that a copy of the proposed statement of facts was served on the 31st day of May, 1895, at 2:20 p. m., and that such proposed statement was filed in the cause on the same day at 3:30 p. m. It was held by this court in Erickson v. Erickson, 39 Pac. 241, that the service of the copy of the proposed statement could not properly be made until after the original had been filed in the cause, and that service of such copy before the filing of the original was ineffectual; and numerous decisions of the supreme court of California upon their statute, from which ours was taken, were cited in support of the decision. In adopting the construction of the statute in the state from which it was taken, this court followed a well-settled rule of decision. Besides, the plain language of

the statute indicates that the paper to be served should be a copy of a paper then on file, and a part of the record of the cause. Upon the argument of this motion it was sought to distinguish this case from the one above cited, for the reason that it appeared that the statement in the case at bar was filed on the same day that it was served, while in the other case such fact did not appear; and it was contended that the decisions of the California courts were to the effect that, where the service was upon the same day that the proposed statement was filed, it was sufficient. examined the California cases, and have We have carefully been unable to so interpret them. It is true that it is stated in some of them that a service made at the time of the filing is sufficient, but it is nowhere stated that such service would be at the time by reason of the fact that it was upon the same day. The general rule that the law will not take notice of fractions of days was not referred to in any of such decisions, and, in our opinion, it was not the intention of the supreme court of that state to apply it in determining what service was simultaneous with the filing. What was said in the case above cited was, we think, justified by the cases from California.

If the statute were to be construed independently of the construction placed upon it in California, one of two conclusions would necessarily follow,-either that it is mandatory, and must be construed as it reads, in which case it would necessarily follow that the filing must precede the service; or that it is directory, in which case the relation of the service to the filing would be immaterial, unless it was made to appear that by reason of such relation being other than that named in the statute the party upon whom the service was made had been deprived of some right. The last construction would open the door to such a loose practice, and so frequently call upon courts to enter upon an investigation of collateral questions, that it should not be adopted unless absolutely necessary. The statute, when given the other construction, is easily complied with, and there is no necessity for adopting a construction which would lead to such uncertainty. Besides, the legislature had an object in view when they provided that the statement should be filed before the copy was served. If the copy was served before the original was filed, there would be nothing to prevent the original being changed, and the burden of making such an examination as would show that it had not been would be cast upon the respondent. If filed before the copy was served, no such change could be made. The design of the statute was that, when the service of the copy of the proposed statement was made, the party upon whom it was served might rely upon it as a copy of a paper of record in the cause. In the case of Turner v. Bailey, 42 Pac. 115, the question

It is

of the relation of the service to the filing was before this court, and it was stated therein that, both appearing to have been on the same day, the service was good; but it was not there made to appear by anything in the record that the service preceded the filing, and the decision could well have been placed upon the ground that the service and filing having been shown to be upon the same day, and, there being nothing to show which was first, it would be presumed, in aid of the proceedings of the lower court, that the filing preceded the service. true that it was attempted to be shown by statements outside of the record that the service preceded the filing, but such showing should have been made in the lower court, and brought up here as a part of the record, to have been entitled to consideration. The reasonable construction of the statute and the decisions in California require us to hold that a service shown by the record to have preceded the filing is without force. It is not necessary to consider the other reason stated in the motion.

A demurrer was interposed to the complaint, the overruling of which by the trial court is the first alleged error of which we can take notice, and the only one which was presented upon the oral argument. The reasons why the complaint was claimed to be insufficient were: (1) Failure to state facts showing that Shepard, Seims & Co. were independent contractors; (2) failure to allege that the railway company was a common carrier; (3) failure to allege that respondent was a passenger; and (4) that it appeared from statements therein that plaintiff was injured by the negligence of a fellow servant. Upon the first point the complaint states that Shepard, Seims & Co. were constructing a portion of the roadbed of the railroad company, and that plaintiff was working for them as a common laborer; and this statement, when taken in connection with other allegations in the complaint, sufficiently showed that said company were independent contractors of the railway company. If they were not independent contractors, plaintiff would have been working for the railroad company, and not for them. But the complaint stated that he was working for them, and in so doing fairly negatived any conclusion which might otherwise have been drawn from the language of the complaint that said company were not independent contractors. It was not necessary to allege that appellant was a common carrier. The courts will take judicial notice that railway companies are common carriers, for the reason that the law makes them such. Besides, it was not necessary that the railway company should have been a common carrier to make it liable to the plaintiff for the personal injuries received by him under the circumstances disclosed by the complaint.

The third point was founded upon the elaim that there was no sufficient allegation

of any agreement, between the railroad company and the copartnership for which the plaintiff was working, requiring the railroad company to transport the employés of the copartnership. The allegation of the complaint was to the effect that there was an arrangement of that kind, and it is contended that this was not equivalent to an allegation of the existence of a contract. But this contention is untenable, for while it is true that the word "arrangement," when taken by itself, has a different signification from the word "contract" or "agreement," yet, when taken in connection with the other allegations in this complaint, it could mean nothing less than that by some mutual agreement between the parties the railroad company was to transport the employés of the copartnership.

There is nothing in the complaint which warranted the contention that it appeared therefrom that the plaintiff and the persons. operating the train were fellow servants. It will be seen from what we have said that the contrary clearly appeared. The complaint might have been vulnerable to a motion to make more definite and certain, but was good when tested by general demurrer.

The only other error mentioned in the brief which is not dependent upon the statement of facts is that founded upon the overruling of appellant's demurrer to plaintiff's amended reply. The appellant had pleaded in abatement that another action for the same cause was pending in the federal court, and the reply alleged that subsequent to the filing of said plea the suit in the federal court had been dismissed. This statement was a sufficient reply to the plea of the appellant. The court committed no error in construing the pleadings, and, the statement of facts having been stricken, no other error can avail appellant. The judgment will be affirmed.

DUNBAR, ANDERS, and SCOTT, JJ., concur. GORDON, J., took no part.

(13 Wash. 390)

GILMORE v. WESTERMAN et al. (Supreme Court of Washington. Jan. 9,

1896.)

PUBLIC BRIDGE-MATERIAL MEN'S LIENS-ASSIGN

MENT-PAYMENT.

1. As bridges are specially designated by Gen. St. § 1663, as subject to mechanics' liens, those who furnish material for public bridges are entitled to the benefit of Gen. St. § 2415, requiring a bond to be given by contractors who do work for a county which, if done for an individual, would create a right of lien.

2. All material men, whether privity of contract exists with the original contractor or not, are entitled to the protection of Gen. St. § 2415, requiring persons contracting with a county to give a bond conditioned for the payment of all laborers and material men.

3. A material man's right of action on the bond required by Gen. St. § 2415, to be executed to a county, conditioned that the person contracting with the county will pay all laborers and material men, is assignable.