was nothing to show negligence on the part of the company, aside from the simple fact that one of its trains killed the animals. The train was shown to have been running in the usual way, and, so far as we can see, in a manner entirely justified by the situation, the locality, and the possible danger to either passengers or wandering stock. The verdict, then, could only be justified on the basis of an absolute liability arising from the enforcement of an act which has been adjudged unconstitutional. This is impossible, and the plaintiff, consequently, was without the right to recover.

Error has been assigned on the instructions of the court, and some matters suggested which would require consideration, if what has already been said did not absolutely dispose of the case as it now stands. Subsequent to the decision in the Outcalt Case, the legislature passed an act making the fact that stock was killed prima facie evidence of negligence, and requiring the company to take the burden of showing due care in the management and operation of its trains. The court charged the jury on this hypothesis, and the railroad company complains that this is error. Their contention is on the hypothesis that, since the accident occurred prior to the passage of the act, the shifting of the burden is an infringement of their constitutional rights, and gives the statute a retrospective effect, which is not permissible. This question is simply suggested, but will be left undecided. We shall only suggest, as was mentioned in the Outcalt Case, that matters of evidence and of procedure are usually entirely within the legislative control, and the rules affecting either can be changed at pleasure, and will be applicable to existing as well as future controversies. This is the general rule; but whether this is a proper case in which to apply it we do not determine, for the question was not so presented in the court below as to compel us to decide it. The case must go back for another trial, and, should the company raise the question, and preserve it in the record, the matter would then, of necessity, go to the supreme court, which must ultimately decide questions of this description. We are inclined to concede to the appellee the right to present his case on such evidence as he may be able to offer of the negligence of the company, if any is at his command, and shall therefore give him the right to apply to the court below for leave to amend his complaint and state an action based on negligence. Of course, it will remain true, unless the proof is in some manner changed from its present status, that the plaintiff can never be entitled to judgment against the company for the value of his stock. This, however, must be a matter for the determination of the trial court, who will be guided by our intimations respecting the form and effect of the case as it has already been made.

The plaintiff was not entitled to a judgment, and the one which he obtained must be reversed, and the cause remanded. Reversed.

(7 Colo. App. 211)

SILVER STATE COUNCIL NO. 1 OF AMERICAN ORDER OF STEAM ENGINEERS v. RHODES et al. 1 (Court of Appeals of Colorado. Nov. 11, 1895.) INJUNCTION-RIGHT OF CORPORATION.

A corporation cannot have persons or organizations enjoined because they have conspired to exterminate it by compelling its members to leave it.

Error to district court, Arapahoe county.

Action by the Silver State Council No. 1 of the American Order of Steam Engineers against C. W. Rhodes and others for injunction. Judgment for defendants. Plaintiff brings error. Affirmed.

Allen & McAndrew, for plaintiff in error. I. N. Stevens and Thos. D. Adams, for defendants in error.

THOMSON, J. The purpose for which this proceeding was instituted is set forth in the prayer of the complaint, which we quote: "That an injunction issue out of this honorable court, enjoining, restraining, and prohibiting the above-named defendants, each and all of them, and their said organizations, their servants, agents, and employés, both as individuals and organizations, in any manner interfering with or trying by threats, boycotts, strikes, or intimidations to break up and destroy, or cause the resignation of any member by threats, boycotts, strikes, or intimidations, of Silver State Council No. 1, American Order of Steam Engineers, plaintiff herein, or by strikes, boycotts, or any other threats to compel it or its members to throw up its certificate, articles, or charter of incorporation or organization, or to in any manner interfere with the rights and privileges of Silver State Council No. 1 of the American Order of Steam Engineers, plaintiff herein, or its right to exist and enjoy its rights, privileges, and freedom under the laws under which it was created; for costs herein expended, and will ever pray." The complaint avers the capacity in which the plaintiff sues, and the objects of its corporate existence, as follows: "That plaintiff is a corporation organized and existing by and under the laws of the state of Colorado, for the purpose of promoting a thorough knowledge in its members of theoretical and practical steam engineering, to help each other to obtain employment, bury the dead, extend the license law throughout the United States as well as the state of Colorado, and for the further purpose of helping its members according to the terms set forth in its certificate of incorporation, reference to which is

1 Rehearing denied January 27, 1896.

hereto made." The complaint further states that the plaintiff is a "nonstriking labor organization"; that certain of the defendants are trustees of an organization called the "Trades and Labor Assembly," which is composed of various labor unions of Denver and vicinity, and was organized for the purpose (among other things) "of enforcing the rights of their several component parts by ordering a strike against all other organizations, employers, or individuals against whom it or they may have a grievance, and cannot enforce their rights upon which they base their demands"; that certain other defendants are officers and members of an organization known as "Steam Engineers' Protective Union No. 5,703 of the American Federation of Labor," whose objects are to compel all stationary steam engineers to join their order, "and to resort to force by boycotting any one who employs stationary steam engineers not members of said organization," or not subject to its orders or those of the Federation of Labor; and that the members of this organization are also members of the Trades and Labor Assembly. It is also alleged that in March, 1892, the plaintiff was admitted into, and became a member of, the Trades and Labor Assembly, and in April, 1893, was expelled from that body, because its charter, constitution, and by-laws disclosed that it was a "nonstriking" organization; and that its expulsion was in pursuance of a conspiracy among certain of the defendants, members of the assembly, who, together with the other defendants, have since its expulsion been constantly endeavoring "in all manner and ways, both openly and in secret, to destroy and exterminate" it. This purpose was proposed to be accomplished "by declaring boycotts and strikes and using other means of warfare known to striking labor organizations against any and all who would employ any stationary steam engineer who was a member or belonged to Silver State Council No. 1 of the American Order of Steam Engineers." Some instances are given in which it was attempted to compel engineers belonging to the plaintiff's organization to join the union, or procure their discharge from employment, by threatening to "boycott," and "levy strikes against," their employers.

The complaint containing an averment that the case was too urgent to admit of the delay incident to giving notice, a temporary injunction was granted ex parte, which was afterwards, on motion of the defendants, dissolved, on the ground that the case made by the complaint was not one of equitable cognizance. The motion admits the truth of the allegations of the complaint, and the question is whether, taken together, they constitute a cause of action. The plaintiff is a corporation, and, to entitle it to relief, it must appear that its corporate rights are threatened with some injury of a kind which may be made the subject of an action, and for

which courts have the power to afford redress. The complaint is that the defendants have banded together and conspired to "exterminate" the plaintiff; and that they propose to accomplish their purpose by compel ling its members to leave it. Of course, when its members have all withdrawn, it will be extinct. We need not discuss the character of the means to be employed for its disintegration. Whether they are legal or illegal, they cannot be made the subject of an action in favor of the plaintiff. It has no property in its members, and, in losing them, it sustains no damage which the law recognizes as damage. It cannot compel its members to remain with it; and, if they are violently driven out of it,-if they are forced to relinquish their membership against their will,— the grievance is theirs, and not the plaintiff's. Or if, for the purpose of forcing their withdrawal, others, by means of "boycotts" or "strikes," are made to suffer, the latter must fight their own battles. The law does not make the plaintiff their champion. The disorganization and resulting extinction of the plaintiff would, doubtless, be a calamity; but it is one which the law is powerless to avert. We have cited no authorities because we can find none which are of any use. If a case bearing the remotest analogy to this was ever the subject of adjudication, our most diligent effort has failed to unearth any record of it. The judgment will be affirmed. Affirmed.

(7 Colo. App. 271)

JENET et al. v. ALBERS.1 (Court of Appeals of Colorado. Dec. 9, 1895.) CORPORATIONS-DIRECTORS' LIABILITY-ESTOPPEL.

1. Individuals assuming to act as directors of a corporation, and, as such, contracting debts, are estopped to deny their official position.

2. A corporation, by entering under a lease executed by one of its officers without authority, and paying the rent for a while, adopts and ratifies it.

Appeal from district court, Pitkin county. Action by Theodore Albers against Louis Jenet and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Downing, Stimson & McNair, for appellants. G. I. Chittenden and Edwin M. Johnson, for appellee.

REED, P. J. The appellants, with others, claimed to have become incorporated as the "Aspen Leader Publishing Company," and were engaged in publishing a newspaper called the "Aspen Leader," during the year 1893, and, for the purpose of such publication, rented from appellee a part of a building known as the "Albers Block," in the city of Aspen, entered into the possession on the

1 Rehearing denied January 27, 1896.

27th day of March, 1893, and continued to occupy it during the balance of the year, at a rental of $110 a month. There was a written contract of lease executed on the part of the corporation by J. M. McMichael, as manager, who was also at the time assuming to be and acting as a director. Appellants were also acting as directors for the year. The corporation defaulted in the payment of rent, which was to be paid monthly, in advance. At the time of bringing the suit, the corporation was in default from June, 1893, to January, 1894, owing on

at date $880. The suit was instituted against the individuals acting as directors of the corporation, under the statute making them individually and jointly liable for a failure to file the certificates required by the statutes. The answer was a general denial of the allegations in the complaint. The second defense was as follows: "And, for a second and separate defense to the said action, these defendants allege: That the said lease in complaint herein mentioned is not the contract of the said Aspen Leader Publishing Company, and that the same was never authorized by the board of directors of the said company, or by any officer or agent of the said company having power to authorize the said lease, nor was the same ever executed or accepted by the said company, or by the authority of the said company, or by any officer or agent of the said company having power to execute or accept the same." Third, the nonjoinder of Henry Webber, one of the directors. A trial was had, resulting in a judgment for the plaintiff for $880, from which this appeal was prosecuted.

This case is against the same parties as the case of Jenet v. Nims (recently decided in this court) 43 Pac. 147, the foundation of the action the same, the evidence to establish the liability the same, and the law applicable the same. That case must rule and control this.

The corporation, in the contracting of the debt, assuming to act as a corporation, and the individuals against whom the suit was brought, assuming to act as directors, and contracting the debt as officers, they are estopped to deny the official positions in which they pretended to act. See authorities cited in Jenet v. Nims. The defense that the making of the contract and execution of the lease by the manager and director McMichael was not the act of the corporation is untenable. Failing to disavow entering, using the building, and receiving the benefits of the contract, and recognizing its validity by the payment of rent for the first three months, even if the execution of the lease was unwarranted, it was such an adoption and ratification as to estop the company from denying its validity.

Counsel for appellant, in argument, urges that the nonjoinder of Henry Webber as a

defendant was fatal error; but no error is assigned upon it, unless it may be considered to have been embraced in the general one that the court refused to grant a nonsuit. The allegation in the answer, leaving out that portion which is argumentative, and stating the pleader's conclusion, is as follows: "These defendants allege that there is a nonjoinder of parties defendant in said action, in this, to wit: *that Henry Webber, who was a director of said company at all the times mentioned in the said complaint, is not joined as a defendant in the said action." I fully agree with the learned counsel in his statements made in the former part of his brief, where he says: "These statutes give a right of action purely penal in its character;" then cites the following from Gregory v. Bank, 3 Colo. 334: "It prescribes a determinate penalty for neglect of duty imposed by law upon the trustees of companies organized under our general incorporation act. The amount of the forfeiture is measured by the aggregate debt contracted by the company." Counsel seems later to have lost sight of this welldefined distinction, and the well-settled rule in regard to parties in actions ex contractu and those ex delicto; for, when he comes to apply the statute and his authorities, he relies upon those only applicable to those actions based upon contract. It certainly is not based upon nor controlled by the law relating to contracts, and whether or not it partakes of the character of an action ex delicto we are not called upon to decide, although the authorities seem to hold that all liability imposed by statute for a failure to comply with the provisions of the statute is in its nature ex delicto, where the well-settled rule is that a plaintiff can sue one individual, each individually, or all collectively. But, as stated above, we are relieved of the necessity of deciding the nature of the action by the fact that the defendants offered no evidence in support of their answer whatever, while Henry Webber testified for the plaintiff that all of his connection with the corporation ceased in May or June, 1892; that he sold all of his stock, and resigned at that time, and had no connection with it after that date; consequently he had ceased to act as director a year before the debt in question commenced to be contracted.

Several minor questions are raised by the assignment of errors, upon the admission and exclusion of evidence. The defendants attempted to introduce evidence that the rental value of the property during the time the debt was being contracted was much less than the price named in the lease. This was properly excluded. The contract of lease fixed the price, and the term had not expired.

The other assignments are purely technical, and could not affect the result. The judgment will be affirmed. Affirmed.

(7 Colo. App. 304)

CHARLTON v. TOOMEY. (Court of Appeals of Colorado. Jan. 13, 1896.) TAX TITLE-SALE-IRREGULARITY.

Under Mills' Ann. St. § 3888 (Gen. St. 1883, § 2918), providing that, on the day designated for the sale of land for delinquent taxes, the treasurer shall commence the sale, and continue the same until each parcel shall be sold, and if there shall be no bid for any tract offered, the treasurer shall pass it over for the time, and reoffer it at the beginning of the sale next day, until all the tracts are sold, or until the treasurer shall become satisfied that no more sales can be effected, when it shall be his duty to bid off for the county the lands remaining unsold, the lands, after being first offered without being sold, must be offered from day to day until the sale is concluded, and the county cannot become the purchaser except in default of bidders.

Appeal from Pitkin county court.

Suit in equity by James Toomey against Edward Charlton to establish plaintiff's right to redeem lands sold for delinquent taxes. Plaintiff had judgment, and defendant appeals. Affirmed.

Wm. Young, for appellant.

REED, P. J. From and after December, 1888, appellee was the owner of the west 25 feet of lot E, in block 96, in the city of Aspen. Appellant claimed to own the property in fee, by virtue of a deed executed by the county treasurer of Pitkin county, dated June 7, 1892. The taxes upon the property for the year 1888 were $119.46, which were unpaid and delinquent, and, remaining so, the property was advertised to be sold at public sale. The sale was begun upon the 3d day of June, 1889. On the 6th day of June the property was offered for sale, and, there being no bid by others, it was bid off by the county treasurer for the county for the amount of the taxes, interest, and costs. On the 16th day of May, 1892, the county of Pitkin, by its clerk, assigned the certificate of purchase to the appellant. On June 7, 1892, a deed was made by the county treasurer to appellant. It was alleged and claimed that the sale made by the county treasurer on June 6, 1889, was irregular and void, for failure to comply with the statutes. This suit was brought in equity to establish appellee's right to redeem, and to cancel the sale and conveyances under which appellant claimed title. After the hearing, a decree was entered holding the sale and conveyance void, and allowing appellee the right to redeem. This appeal was prosecuted from such degree.

No rule of law is better settled than that, in proceedings of the character out of which this controversy grew, the statute must be strictly followed. Any deviation from it, and attempted exercise of discretion on the part of the officer, vitiates the proceeding, and renders the conveyance void. Another rule, as well established, and equally as potent, is that, by recitals of the instrument by which

It is

the attempt to convey is made, it must af firmatively appear that every preliminary step required to divest the title of the owner was regularly taken, as prescribed by law. The determination of the question requires a construction of a part of section 3888, Mills' Ann. St. (Gen. St. 1883, § 2918): "On the day designated in the notice of sale, the county treasurer shall commence the sale of those lands and town lots on which the taxes and charges have not been paid, and shall continue the same from day to day, Sundays excepted, until each parcel shall be sold, or so much of each parcel as shall be sufficient to pay the taxes and charges thereon, including all costs and penalties. If there shall be no bid for any tract offered, the treasurer shall pass it over for the time and shall re-offer it at the beginning of the sale next day, until all the tracts are sold, or until the treasurer shall become satisfied that no more sales can be effected, when it shall become his duty to bid off for the county the lands and town lots remaining unsold, for the amount of such taxes, interest and costs thereon." The statute is plain and unambiguous. clear that the intention of the legislature was-First, that the entire property should not be sold, if, by diligence and attention, a purchaser could be found who would bid the amount for a portion of it; second, that the county should in no case become the purchaser of the property except in default of bidders. We do not deem it essential that the property should be offered on the first day of sale, unless reached in its regular order; but, when so reached, our construction of the law is that it must be offered, and, if no outside bid is made, it must be so offered on the next and each succeeding day, until the close of the sale. It is true that the section contains the following, "Or until the treasurer shall become satisfied that no more sales can be effected." But this must be so | construed as to harmonize with the balance of the section; otherwise, it would invest the treasurer with an arbitrary discretion, that he might exercise at any time, in contravention of the balance of the section. Our conclusion is that, after being first offered, it must be continually offered from day to day until the sale is concluded, that all efforts to effect a sale must be exhausted, that the treasurer can exercise no previous discretion, and that the county can only become a purchaser of the entire tract, in default of an outside bidder, after an opportunity has been offered each day. In Dyke v. Whyte, 17 Colo. 300, 29 Pac. 128, it is said: "The cash purchaser may buy the first time the land is offered for sale. But the treasurer cannot lawfully bid off the property for the county on the first day it is offered. The land must be offered without any bidder on the first day, and reoffered on the succeeding day or days without any bidder therefor, and until the treasurer becomes satisfied that the same cannot be sold at such sale, before it

can be lawfully bid off by the treasurer for the county. The statute will not uphold a county in taking the whole of any parcel of land for the nonpayment of the delinquent taxes thereon, except in a case where, after allowing full opportunity to cash purchasers, the amount of the taxes and other charges cannot be realized. A cash purchaser may be satisfied to take a part of the land for the amount of the taxes and charges. The law does not wantonly allow the whole of a debtor's estate to be sacrificed when a part may suffice." And, although it is not clearly said that the property must be offered from day to day until the close of the sale, it is fairly inferable from it. It is quite necessary that some clear construction should be given to guide the treasurer, and our construction seems to be clearly in harmony with the intention of the legislature and the decisions in our state courts. It is clear, from the conveyance of the treasurer and the record, that the sale was not conducted in accordance with our view of the law, as expressed above, and that the court properly decreed a right of redemption. The deed of the treasurer contained recitals showing that the requirements of the statute had not been complied with, as we construe it, and was not a valid deed. See Mining Co. v. Rogers, 8 Colo. 37, 5 Pac. 661; Magill v. Martin, 14 Kan. 80; Cooley, Tax'n, 355; Morris v. Bank, 17 Colo. 231, 29 Pa. 802; Mitchell v. Arkell, 3 Colo. App. 253, 32 Pac. 720: Counsel for appellant contends that the court erred in its decree in regard to costs and interest. The proceeding being in equity, and the allowance of those matters so much in the discretion of the court, we do not feel required to examine them. The decree should be affirmed. Affirmed.

(7 Colo. App. 301)

CHARLTON v. KELLY. (Court of Appeals of Colorado. Jan. 13, 1896.) TAX SALES-PURCHASE BY COUNTY-COSTS.

1. That no bid was made for land at a tax sale on the first day it was put up, and that on the following day it was bid off by the county, does not sufficiently show that the property was reoffered on the second day, and only bid in by the county at the end of the sale; and therefore the sale is invalid.

2. In a suit to cancel a tax deed, the matter of costs rests largely within the discretion of the trial court.

Appeal from Pitkin county court.

Action by Mary Kelly against Edward Charlton. There was a judgment for plaintiff, and defendant appeals. Affirmed.

William Young, for appellant. William O'Brien, for appellee.

BISSELL, J. Mary Kelly, the appellee, had been for some years the owner of a lot in the city of Aspen. Taxes were assessed on it from time to time, until the assessment for the year 1888, which amounted to fifty-odd

dollars, was levied and left unpaid. The following year the property was advertised for sale under the statute, and bought in by the county, which ultimately got a deed to it. The title, as acquired by the county, was conveyed to the appellant, who afterwards paid some $30 of subsequent taxes; and the present suit was brought to set aside that sale, and cancel the deed, because of the invalidity of the tax sale.

Some question was made on the trial respecting the advertisement, and the proof of it, based on the appellant's failure to show one which conformed to the statute. The decision is put on another ground, and no further reference will be made to this matter. Assuming it was regular, and was begun in May, and continued for four weeks, and was sufficient to warrant the sale of property for nonpayment of taxes on the 3d of June, 1889, it may be said the treasurer then started to sell real property for delinquent taxes. Sales were made on the 3d, 4th, 5th, 6th, and 7th days of June, if not after. According to the evidence, this property was not offered until the 5th, when it was put up, and no bid was made for it. On the following day, according to the recital of the deed, the treasurer being satisfied that a sale could not be effected, bid it off for the county. This was on the 6th. Neither the recital in the deed, nor the evidence, really shows the property to have been reoffered on the 6th, although, perhaps, an inference of that sort might be drawn from the fact that the property was put up on the 6th and bid off by the county. Aside from this inference, there is no proof about it. The sales were further continued on that day, and other properties sold, which was true, also, of the succeeding day. Whether the 7th was the last day on which sales were made in that month is not made clear. The only thing absolutely certain is, the sale of this particular piece of property, and the purchase by the county, were not at the conclusion of the entire sale; nor was it shown to have been offered more than once, and thereby opened to the bids of other purchasers. The record discloses that an offer was made to pay the holder of the title the money which he had paid the county prior to the suit, though the extent and character of the offer is not shown. The purchaser paid $61 and some cents to the county, and the subsequent taxes of $30. And, on the conclusion of the trial, the court held Mrs. Kelly entitled to recover, set aside the tax deed as invalid, computed the interest which she was bound to pay, and divided the costs; the division being apparently on the basis of the refusal to accept the offer, and in the exercise of the equitable powers which the court possesses in this class of cases.

The errors assigned do not justify a reversal of the judgment. That the sale was void seems to have been clearly settled by the supreme court. Dyke v. Whyte, 17 Colo. 296, 29 Pac. 128; Morris v. Bank, 17 Colo. 231, 29