not satisfied. A distinction also was made by the supreme court of Michigan in the case of Lindstrom v. Board (Mich.) 54 N. W. 280, between those errors or mistakes of officials which would have the effect to disfranchise a class of voters and a disregard of the provisions of the law by the electors themselves. Without proceeding to review at greater length the authorities cited by counsel on both sides of the question, we conclude that the mere fact that the paper on which all of the ballots used in one election district was of a color other than white, where the ballots were not only printed by the authorities des ignated by law, and by them furnished to the judges of election, but were furnished by the judges to the voters, and were the only ballots furnished to or used by any voter at that voting place, is not sufficient to prevent the counting of the votes. The secrecy of the ballot has been in no wise impaired; the voters themselves have manifested no disposition to disregard the law, and it may be fairly inferred that the use of the colored ballots was an honest mistake on the part of the judges of the election. Had a part of the ballots been white, and a part colored, so as to afford some grounds for identification of the votes cast by the individual electors, a different question would be presented. We reach the conclusion that the law has not been substantially infringed because we are unable to see how the purposes of the act can have been impaired in any degree by the mistake made in using the colored ballots. By this decision we do not intend to say that any of the provisions of the law may be disregarded, or that any officer may escape liability to punishment for violating any of its provisions. The first part of the motion will be overruled, and the last part will be sustained. All the justices concurring.

(53 Kan. 470)

RATHBURN v. HAMILTON. (Supreme Court of Kansas. June 9, 1894.) ELECTIONS-FILING NOTICE OF NOMINATIONS-INSUFFICIENCY OF CERTIFICATE.

1. Where a political party assembled in convention places in nomination a candidate for a county office, and the president and secretary of such convention execute and verify a proper nomination certificate, which is presented to the county clerk in due time to be filed, and is left with him for that purpose, it will be deemed to be filed within the meaning of the Australian ballot law, although no indorsement of filing is written thereon, and although it is afterwards mislaid or lost through the inadvertence or negligence of such officer.

2. Where a nomination certificate is found to be insufficient or inoperative, the defect may be corrected by the political party or persons making the original nomination, or by the executive or central committee of such party or persons, in the manner pointed out by section 9 of that law, at any time before election day. (Syllabus by the Court.)

Quo warranto by A. D. Rathburn against II. H. Hamilton. Demurrer to answer overruled.

W. J. Sturgis, I. D. Young, and F. J. Knight, for plaintiff. A. W. Hicks, Co. Atty., and A. H. Ellis, for defendant.

JOHNSTON, J. This action was brought to determine 'who was entitled to the office of county commissioner for the first district of Mitchell county. A. D. Rathburn and H. H. Hamilton were rival candidates for that office at the general election held on November 7, 1893. The total number of votes cast for the office was 799, and according to the canvassed returns Hamilton received 445 votes, while Rathburn received 354 votes. Hamilton was declared elected to the office, of which he has taken possession, and is now discharging the duties and receiving the emoluments thereof. In his petition, the plaintiff alleges that he was eligible to be elected to the office of county commissioner, and that he received a majority of the legal votes cast in the district for that office; and it is further alleged that Hamilton was not legally nominated, but that the county clerk, without authority, and to the injury of the plaintiff's rights, caused Hamilton's name to be printed upon the official ballots for the district as the candidate of the People's party; that the official ballots, with defendant's name printed thereon, were voted by the electors of the district, and, although unauthorized and illegal, they were counted and canvassed as lawful and regular ballots; upon a return of the votes so cast, Hamilton was declared elected, and a certificate of election was unlawfully issued to him by the county clerk; that thereafter Hamilton filed an oath of office and a bond, and entered upon and is now exercising the duties of the office.

In his answer, Hamilton alleged that on September 16, 1893, at a convention of the People's party, he was duly nominated as the candidate of that party for the office of county commissioner, which nomination was ratified and confirmed by the unanimous vote of all the delegates present in the convention. C. W. Culp, one of the delegates, was made chairman of the convention, and H. S. Chapel, another of the delegates, was made secretary, and these parties were afterwards respectively chosen by the delegates as the chairman and secretary of the committee of the People's party for that commissioner district, and they were also named as the executive committee of that party for that district. On September 16, 1893, it is alleged that the president and secretary of the convention made and executed a certificate of nomination, setting forth that Hamilton was duly nominated for the office of commissioner, which certificate was duly sworn to by both said Culp and Chapel before an officer qualified to administer oaths. And it is further alleged: "That, on the same day that said certificate was prepared as aforesaid, the same was taken by said Culp and said Chapel to the office of the county clerk of

said Mitchell county for the purpose of being filed with said clerk, and, as defendant is informed and believes, said certificate was then and there left with said clerk to be filed; but that, without any intention of wrong or neglect on the part of said county clerk, the said certificate was, after being left with him for filing, inadvertently mislaid and lost, and has not since been found, and, although diligent search has been made therefor, the said certificate cannot be found." It is then alleged that neither Culp, Chapel, nor the defendant had any knowledge that the certificate had not been in fact filed by the clerk until October 31, 1893, when they prepared and verified a certificate of nomination in due form, and filed the same with the county clerk, but that officer declared the paper to be insufficient and inoperative because it had not been filed in his office within 20 days previous to the election had November 7, 1893. Afterwards, and upon October 31, 1893, Culp and Chapel, as chairman and secretary of the executive committee of the People's party for the first district, properly executed a nomination paper which recited the nomination of Hamilton on September 16, 1893, the fact that the county clerk had declared the nomination ineffectual and inoperative because the certificate of nomination had not been filed in due time, and then it proceeded as follows: "We hereby nominate as candidate for the People's party for commissioner of the first commissioner district H. H. Hamilton, of Plum Creek township, Mitchell county, Kansas, as provided in section 9, chapter 78, Session Laws of the State of Kansas, 1893." This nomination paper was verified by the officers making it, and was filed with the county clerk on October 31, 1893. Objection being made to the sufficiency of this nomination paper by W. J. Sturgis, a citizen and elector of Mitchell county, the interested parties appeared before the county attorney, clerk of the district court, and county clerk on November 2, 1893, when the objection was heard and the facts connected with the nomination were considered, whereupon it was found that Hamilton was the legal nominee of the People's party, and it was decided that the objection filed was without merit. There is a further averment in the answer that plaintiff, being a minority candidate, has no interest in the office now held by the defendant, and no legal capacity to sue or maintain an action against the defendant. The plaintiff filed a demurrer to the answer of the defendant, alleging that it did not state facts sufficient to constitute a defense to the action, and upon the pleadings the cause is submitted to the court.

On these facts the contention is that the nomination certificates and papers are insufficient; that they did not authorize the placing of Hamilton's name on the official ballot, and therefore that the votes cast for him were illegal and should have been discarded by the

officers who canvassed and declared the result. It appears that Hamilton was duly nominated by the convention of his party, his name was placed upon the official ballot, and a considerable majority of the votes cast were in his favor. Was there such a departure from the legislative requirements in reference to nomination as to defeat the expressed will of the electors? It is averred that the presiding officer and secretary of the convention executed a certificate of nomination, which appears to have been substantially in the form required by the statute. It stated the name of the candidate, the office to which he was nominated, and the party which he represented, and added thereto was the name of the township in which he resided. It is alleged that this certificate was signed by the officers of the convention, and that to each signature was added the place of residence of such officer. The certificate thus prepared is alleged to have been duly sworn to by the officers, and the oath duly annexed to the certificate, when it was taken by them to the office of the county clerk for the purpose of being filed by the clerk, and was left with him for that purpose. It thus appears that Hamilton was duly nominated, and, if the facts are as alleged, a proper certificate of nomination was executed, presented to the county clerk for filing, and left in his custody, to be kept on file among the papers of his office. In our view, this constituted a filing within the meaning of the statute. The convention officers had done all that the law required of them. A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. Wilkinson v. Elliott, 43 Kan. 595, 23 Pac. 614. The mere indorsement upon the paper of the time of filing it by the county clerk is not an essential act of filing. It is a mere memorandum of the time of filing, and not the filing itself. As the answer points out in detail what was done with the certificate, and since those acts are deemed to constitute a filing, the averment that it was not in fact filed by the clerk is interpreted to mean that the filing was not indorsed thereon. The nomination certificate is not rendered nugatory by the inadvertence or neglect of the filing officer. It is generally held that the duties imposed upon a filing officer of indorsing and recording a paper do not constitute any part of the filing, so far as the party delivering the paper is concerned, and that the rights of interested parties should not be prejudiced by the inadvertence or neglect of the officer to indorse the evidence of filing upon the paper. Wilkinson v. Elliott, supra; Implement Co. v. Parlin & Orendorff Co., 51 Kan. 576, 33 Pac. 360; 7 Am. & Eng. Enc. Law, 962. It is alleged that the certificate was inadvertently mislaid and lost, but if the nomination was made, and if a sufficient certificate of that fact was made and filed, the loss might be supplied or proof of its contents made, as in case of other lost papers. If,

however, the certificate was insufficient, or for any cause became inoperative by reason of being mislaid or lost, the statute provides a method for making a nomination and certificate that will be deemed sufficient. In section 9 of the Australian ballot law it is provided that in case a candidate who has been nominated dies before election day, or declines the nomination, or should any certificate of nomination be held insufficient or inoperative, the vacancy or defect may be filled or corrected by the political party or persons making the original nomination; or, if the time is insufficient therefor, it may be done in the way provided for by the convention, primary meeting, or caucus which had previously made the nomination; or, where no such provision is made, then by the executive or central committee of the party or persons which held such convention, primary meeting, or caucus. As will be seen, the limitations of time have no application to the filling of such vacancies or the supplying of nomination papers that have been held insufficient or inoperative. It may be done at any time before election day; and other provisions of the statute show that after the vacancy is filled or the defect corrected new ballots should be printed, if it is practicable to do so, but if this cannot be done the new names may be placed on the ballots by affixing a paster or by writing or printing the names upon the ballots already printed. Laws 1893, c. 78, §§ 9-12. This provision prevents the frustration of the purposes of a party or of a section of electors who desire to have the name of a candidate upon the official ballot. Neither the death nor the declination of a nominee deprives them from having a candidate to vote for. It prevents the accomplishment of a wrong through an inadvertent mistake or the willful action of an officer or committee, or by the withdrawal of a nominee at a late day, made in the interest of an opposing party, or for any other reason. In this case, it appears that the county clerk held the nomination certificates which were filed to be insufficient and inoperative, and on October 31, seven days before the election, nominating papers were filed which seem to comply with the provisions of section 9. Upon a hearing of objections to these papers, the officers whose duty it was to consider them decided that the papers were sufficient, and section 10 of the act provides that their decision as to the objections is final. If, for any reason, the certificate first filed should be found insufficient, or that it had become inoperative, the subsequent steps taken appear to warrant the placing of Hamilton's name on the official ballot. This action and decision was taken prior to the printing of the ballots, his name was placed thereon, and under the circumstances it cannot be held that the votes cast for him were void. An elaborate and well-reasoned argument is made to sustain the proposition that the provisions of the Australian ballot law should be

regarded as mandatory, and strong reasons are given to sustain the view that at least every essential provision should be so treated. The view which we have taken, however, in regard to the sufficiency of the certificate, makes it unnecessary to enter upon a discussion of that question or some other questions that are raised in the briefs of counsel.

We are of opinion that the facts stated in the answer constitute a complete defense to the action begun, and that the plaintiff's demurrer thereto should be overruled. All the justices concurring.

(4 Ariz. 180)

GILA COUNTY v. THOMPSON, Sheriff. (Supreme Court of Arizona. Jan. 17, 1894.) SHERIFF'S FEES-ESTOPPEL-CLAIM AGAINST COUNTY.

Where a sheriff files his account for fees for a certain service, and accepts the amount allowed by the board of supervisors, he cannot afterwards recover additional fees for the same service which he omitted to claim in his first account; as when, in making an arrest, he was allowed fees only for the distance in going to the place of arrest, instead of for both going and returning with the prisoner. Hawkins, J., dissenting.

Appeal from district court, Gila county; before Owen T. Rouse, Justice.

Action by J. H. Thompson against Gila county. There was a judgment for plaintiff, and defendant appeals. Reversed.

Cox & Street, for appellant. E. J. Edwards and Pierce Evans, for appellee.

SLOAN, J. This suit was brought in the district court of Gila county, by J. H. Thompson, sheriff of said county, against said county, to recover upon an account for services as sheriff rendered in certain criminal cases, which account had been previously presented to the board of supervisors of said county, and by said board disallowed. Judgment was rendered in the court below for the plaintiff in the suit, from which judgment the county appeals.

The items of the account which were allowed by the court, and for which judgment was given, are, with one exception, similar in form and pertain to the same kind of service. Just what kind of service, under the "Fee Act," these items were intended to include, is somewhat difficult of ascertainment. The first item appearing in the account is as follows: "May 3. Territory vs. Zack Booth et als. To mileage, 150, for prisoner, from Phoenix, place of arrest, to Globe, @30 cts., $45." This item of the account appears upon its face to be an attempt to charge mileage against the county for the prisoner, the distance the latter traveled, presumptively, while in charge of the plaintiff, under a warrant of arrest, in going from Phoenix, the place of arrest, to Globe, the latter place presumably the place from whence the warrant was issued. There

is nothing in the fee and salary act authorizing any charge to be made for mileage for a prisoner while in charge of an officer under a warrant of arrest. The officer is allowed mileage "for removing a prisoner;" but as was held by this court in Yavapai Co. v. O'Neil, 29 Pac. 430, "removing a prisoner" cannot be construed as meaning the taking of a prisoner after arrest to the place named in the warrant. It cannot, therefore, be, nor has it been, contended that the charge is made under the latter provision of the statute. It was evidently assumed in the court below that the charge was one for mileage for the sheriff in executing a warrant of arrest. It is impossible, without doing violence to the language used, to give such a construction to the account. We will assume, however, this to be the meaning and effect of the account, so far as it relates to the item above set forth. An officer is allowed "for each mile he may be compelled to travel in executing criminal process, *** to be charged one way only, 30c." As was said by this court in the O'Neil Case, "to execute criminal process * is to do what is in the writ commanded. A warrant of arrest in the form prescribed by our Penal Code not only commands the arrest, but also the bringing of the prisoner to the place of holding the court whence the warrant issued. To execute, therefore, a warrant, the officer must not only arrest, but remove the prisoner from the place of arrest to the court whence the writ issued." Logically, therefore, the officer is entitled to mileage not merely to the place of effecting the arrest, but, in addition, actual mileage, until he has completely executed the writ; that is, brought his prisoner to the court or place named in the writ. The plaintiff, however, may not in this action recover under the latter provision of the statute. It was admitted upon the trial of the case that plaintiff had, before suit, been by the board of supervisors allowed and paid mileage in executing the warrant of arrest for the defendant Zack Booth for the distance of 150 miles, counting from the county seat of Gila county to Phoenix, the place of arrest. It does not appear whether the plaintiff presented a claim to the board for more than the 150 miles or not. It is immaterial so far as his right to recover in this action. A claim for mileage for executing any writ constitutes but a single demand against the county. The officer, in presenting it to the board for allowance, has no right to separate it into bits. If, therefore, the plaintiff made out his claim and presented it in the first instance for a less amount than he was entitled to receive, which was allowed him by the board and accepted by him, he ought not, nor can he, under the statute, make a subsequent demand for an additional allowance upen the same demand. Rev. St. par. 414. If, however, he had in the first instance made out a claim for the full amount

of mileage which he was entitled to receive, but was allowed by the board only a part of his demand, his acceptance of such part precluded him, under said statute, from bringing any action for the balance. Yavapai Co. v. O'Neil, supra.

What we have said of the one item above set forth applies equally to the other items of the account allowed by the court below, with but one exception. There is a charge made in the account reading as follows: "Feb. 2d. To transportation for Benbrook, special guard, San Carlos to Globe, $5." Inasmuch as this item is of the same date and appears in the account in connection with the charge made for mileage of a prisoner from San Carlos, place of arrest, to Globe, we infer that the expense of this special guard was incurred by the plaintiff in taking the prisoner from the place of his arrest to Globe. The facts, as admitted upon the trial, show that the sheriff was allowed by the board and paid for the expenses of transporting this prisoner, including a per diem and transportation of the guard. It is clear, therefore, that this is another attempt to sue for a part of a claim disallowed by the board after accepting payment for the amount of the claim which was allowed. As we have before said, this cannot be permitted under the statute.

Upon no possible construction of plaintiff's account against the county, as the same is made out and sued upon, nor of the statute pertaining to fees to be paid the sheriff in executing criminal process, is the plaintiff entitled to recover, under the facts of this case, upon any of the items of the account allowed by the court below in the judgment. The judgment of the court below is therefore reversed, and judgment will be entered in this court for the appellant for costs.

BAKER, C. J. I agree that the judgment of the lower court be reversed. I put it upon the ground that the sheriff ought not to recover upon any theory of the case. He cannot recover mileage for the prisoner, because no possible reading of the fee bill will authorize any allowance to the sheriff on account of that. This is conceded. If the item sued upon is to be understood as a charge for mileage for the sheriff, he should not recover, because the statute allows him mileage one way only in serving criminal process, and this, the record shows, has already been paid him. He has been paid for going to the place of arrest.

I dissent from so much of the opinion as approves of the case quoted,-Yavapai Co. v. O'Neil (Ariz.) 29 Pac. 430. That case should be expressly overruled. It holds that a sheriff is entitled to mileage for going to the place of arrest as well as for mileage in returning with the prisoner to court; and the reason given is that to execute a warrant of arrest is to do what it commands,-return the prisoner to court. Thus, the sheriff is

paid mileage two ways,-going and coming. The fee bill for sheriffs is as follows: "For removing a prisoner, for each mile necessarily traveled, to be charged one way only, 30c, and for each guard the same. Insane persons are prisoners within the meaning of this act. For each mile he may be compelled to travel in executing criminal process, summoning or attaching witnesses, to be charged one way only, 30c." Rev. St. par. 1972, subd. 7. The legislature had in view but a single object in passing this law, and that was to fix a rate of compensation to the sheriff for executing criminal process, and not to define what should or should not constitute a complete execution of that process. In its interpretation, the legislative purpose should be kept steadily in view. It is true that, in one sense, a warrant of arrest is not fully executed until the prisoner is arrested and brought into court, but it is not a necessary consequence that the measure for the sheriff's pay be fixed at both ways; that is, for going to the place of arrest, and returning with the prisoner. For instance, suppose it be determined to allow him pay at the rate of 15 cents per mile for the whole distance traveled; is not the same result accomplished when he is allowed 30 cents per mile for one way only? This is just what the lawmaker intended in this particular subdivision. There is, indeed, in this law, an idea that the sheriff, in executing the process, will travel two ways,-that is, he will go to the place of arrest, and return with the prisoner, but, that idea is found in the very expression which limits the pay of the sheriff to one way only. In the sense of compensation, the warrant is fully executed when the prisoner is arrested. It seems to me as if this conclusion is firmly established when we come to look at the law as it stood prior to the passage of the subdivision. The law governing sheriffs' fees for executing criminal process then stood as follows: "For making an arrest, $2.00.' For each mile necessarily traveled, counted both ways from the court house of the county, for each mile, 20 cents." Laws 1883, p. 225. The legislature was in full view of this act when the present law was passed; and it is apparent that the intent was to reduce the price or charge per mile for the travel, and to change the method of counting the mileage; that is, instead of counting both ways traveled, and allowing 20 cents per mile therefor, as the old law plainly provided, the new law allows 30 cents per mile, counting one way traveled only. I think the above interpretation (it is a question of interpretation, and not of construction) is the true one. In Yavapai Co. v. O'Neil, supra, the court, in construing the subdivision, erroneously forced extraneous matter into the text; that is, what is required to constitute a complete execution of criminal process. This violates the well-known rule of construction that we are confined to the elements stated in the

text. Lieb. Herm. (Hammond's Ed.) 44, 137. For these reasons, I dissent in the particular above stated, and think Yavapai Co. v. O'Neil, supra, ought to be reversed.

HAWKINS, J. I dissent. I am of the opinion that the sheriff, if the bill had been properly made out, would be entitled to mileage for himself until the service of the writ was complete. The case seemed to me to have been tried on that theory, and that, while the account read "for prisoner," it really meant "for the sheriff for taking the prisoner" from the place arrested to the place of trial. And, that appearing to me to do no violence to construction of the manner the account was worded, the judgment ought to stand against the appellant.

Defendant made a contract with M., by which M. was to operate defendant's mine for a certain time, and make certain improvements thereon, with the privilege of buying it. A certain per cent. of the proceeds of the ore was to be paid to defendant, which would be credited to M. on the price, in case he bought the mine, but if M. did not buy the mine all the payments and improvements were to be forfeited. M. made improvements on the mine, for which he did not pay, failed to buy the mine, and turned. it over to defendant, with the improvements. Rev. St. pars. 2276, 2278, gives laborers and material men a lien on mines for labor or material furnished to the owner or agent. Paragraph 2280 provides that the word "agent" shall be construed to include all contractors, subcontractors, builders, or persons having charge or control of a mine. Held, that M. was the agent of defendant under the contract to operate the mine, and that it was subject to a lien for supplies and materials furnished at his request.

Appeal from district court, Yavapai coun ty; before Justice Owen T. Rouse.

Action by Bashford & Burmister against Thomas J. Eaman to enforce a mechanic's lien. Action by the same plaintiffs against Abram S. Hewitt. Judgment for plaintiffs in each action, and defendants appeal. Affirmed.

J. F. Wilson, for appellants. Herndon & Norris, for appellees.

BAKER, C. J. These two cases were tried and decided below upon the same state of facts, the facts being stipulated by the parties, and they came here upon the same grounds. We therefore write the opinion in the first case, only, viz. "Eaman v. Bashford & Burmister.

This suit was brought to enforce a lien for supplies and material furnished and used in repairing and operating the Tuscumbia quartz mill. One S. C. Mott went into pos