shall consist of three justices, who shall be elected by the qualified electors of the state at a general state election at the times and places at which state officers are elected,” etc. Also Sec. 5, id.: "A majority of the Justices of the Supreme court shall be necessary to constitute a quorum for the transaction of business." Also Sec. 879, Comp. Stat. 1910: "A majority of the Justices of the Supreme Court shall constitute a quorum for the transaction of business. In the absence of a quorum on the first day of an adjourned or regular term, the court shall stand adjourned from day to day until a quorum shall be present; and the court may, there being a quorum present, adjourn from time to time to any subsequent date." He also quotes from 15 C. J. 964, "in the absence of a quorum or number required by law to hold court, a judgment rendered by the remaining Judges will be regarded as a nullity, as in such a case there is no authority conferred to render a judgment." And cites the text of that work and cases in note 58; and Long v. State, Ann. Cas. 1912, A. 1244 and notes at 1251 et seq.

Counsel makes no claim, nor can any valid claim be made, that there was not a constitutional quorum of the court present both at the hearing and decision of the cases, or that the decision was not by the necessary number of judges, if the District Judges called in were members of the court for the purposes of the cases and are to be counted in constituting a quorum of the court. But his contention is, that they were not members of the court, and cannot be so regarded. He seems to have entirely overlooked Sec. 6, Art. V. of the Constitution. As originally adopted, it read, "In case a Judge of the Supreme Court shall be in any way interested in a cause brought before such court, the remaining Judges of said court shall call one of the District Judges to sit with them on the hearing of said cause." Under that provision, Judges of the District Court were frequently called and were always regarded as members of the court for the purpose of the case. That section of the constitution was amended in 1917, and now reads, "In case a Justice

of the Supreme Court shall for any reason be unable to sit in any cause in said court, the presiding Justice of said court shall call one of the District Judges to sit as a member of said court on the hearing of said cause." Thus increasing the causes for which a District Judge should be called, and expressly providing that he should be, when so called, a member of the court. The language of said section of the constitution is too plain to admit of but one construction, which is, that the judge so called is as much a member of the court for all purposes of the cause in which he is so called, as a regularly elected Justice of the Supreme Court. The members of the constitutional convention evidently foresaw that in the absence of such a provision a condition might arise in which the business of the court would be long delayed. Indeed, but for that provision, the condition might be such that quorum of the court could not be secured for the hearing and decision of a certain case for nearly six years. If a District Judge who is thus called to sit in any cause is not a member of the court for all purposes of the cause, we are unable to explain for what purpose he is so called.

With the exceptions that it requires a quorum of the court to transact business, and that the decision must be by a majority of such quorum, the authorities cited by counsel in his brief do not sustain his contention, but are against it.

For the Territory of Utah the Act of Congress provided: "The Supreme Court consists of a Chief Justice and three Associate Justices, any three of whom shall constitute a quorum; but no Justice shall act as a member of the Supreme Court in any action or proceeding brought to such court by writ of error, bill of exceptions, or appeal from a decision, judgment, or decree rendered by him as a Judge of the District Court." In Nephi Irrigation Co. v. Jenkins, 8 Utah 452, it was held that under that act any three of the Justices constitute a quorum for the transaction of business, and a Justice who tried the case below might sit for the purpose of making a quorum, but could not act or participate in such proceeding. In Pennsylvania, but not under a constitutional

provision like ours, the Supreme Court of that state in Commonwealth v. Mathews, 210 Pa. St. 372, held that where one or more of the Judges of a court decline to sit in a case by reason of personal interest in the result, the powers of the court necessarily devolve on the remaining Judges, even if only a minority of the court. In the present case, a quorum of the court was present at the hearing and decision of the cases and the decision was by a majority of the Judges who sat and heard the cause, and is valid. A rehearing is denied. Rehearing denied.

POTTER and BLYDENBURGH, JJ., concur.

ROHRBAUGH v. MOKLER.

(No. 956; Decided March 29, 1920; 188 Pac. 448.)

DEDICATION EVIDENCE INSUFFICIENT TO ESTABLISH-CONTRACTS— PRACTICAL CONSTRUCTION BY PARTIES ESTOPPEL-CITY HELD ESTOPPED TO DENY VACATION-EQUITABLE ESTOPPEL-STATUTE OF FRAUDS-CITY CANNOT ATTACK ORAL CONTRACT BETWEEN PRIVATE PARTIES RIGHTS ACQUIRED BY EXECUTED Oral ContraCT ARE NOT AFFECTED BY STATUTE OF FRAUDS-EVIDENCE-PROCEEDINGS OF A CITY COUNCIL NOT RECORDED MAY BE PROVED BY PAROL.

1. Where a town plat showed a triangular piece of land at the intersection of three streets, not numbered or in any way designated as a street, alley, or public ground, and the town had never attempted to exercise ownership over it, and had recognized a claim of private ownership, the evidence does not establish a dedication to the public.

2. Where the meaning of a contract or other written instrument is doubtful on its face, the practical construction put on it by the parties has great weight, especially where they have for a long time acquiesced in and acted in good faith on such practical construction.

3. Where a town, in consideration of a lot owner's waiver of his rights under a contract to another tract of land, vacated, under the authority of Rev. Stat. 1899, 1545, Par. 4, a part of the street in front of his lots, and had built a public library on the property surrendered by him, so that

it could not restore his former situation, it is estopped to deny the validity of the vacation of the street.

4. The doctrine of equitable estoppel applies to municipal corporations in their acts with regard to the streets, though title to a street cannot be acquired by prescription.

5. Where evidence of facts necessary to establish an estoppel was admitted without proper objection, appellee may rely on estoppel, though he did not plead it, if his pleading might have been amended at the trial to allege the estoppel. 6. Where a city vacated a part of a street, in consideration of the surrender by the adjoining owner of his rights under an oral contract, which the lot owner and the other party treated as valid, the city cannot thereafter attack the validity of that contract.

7. Where an oral contract creating interests in land has been carried into effect, and each party has gone into possession thereunder, the rights so acquired are not affected by the statute of frauds.

8. Where no record was made of city council proceedings at which the rights of the parties were settled, those proceedings can be proved as against the city by parol, though a record thereof could not be contradicted by parol, since the city is estopped from claiming any advantage by its failure to perform its duty to record council proceedings. ERROR to the District Court, Natrona County; HON. CHARLES E. WINTER, Judge.

Action by A. J. Mokler, against E. P. Rohrbaugh, Mayor of Town of Casper, now City of Casper, and others. There was a decree for plaintiff and defendants bring error.

W. H. Patten, for plaintiff in error.

The court erred in admitting opinion evidence as to the necessity, condition or width of a street (5 Ency. Ev. 681). The map and dedications in evidence indicate an intention that the lands should be dedicated as a street intersection (Strong v. Pritchett, 61 Northeastern 973: Atlas Lumber Co. v. Quirk, 135 Northwestern 172; London, San Francisco Bank v. Oakland, 90 Fed. 691; Arnold v. Weiker, 40 Pac. 901). Defendant had burden of proof of vacation (McQuillin, Sec. 1417); there was no record proven of council proceedings authorizing exchange of property; council could not sell a street (St. Paul, Chicago, M. & L..

R. R. Co., 68 N. W. 459; San Francisco v. Itsell, 22 Pac. 74; McQuillin, 1141; C. B. & Q. R. R. Co. v. Quincy, 27 N. E. 192; Hoadley v. San Francisco, 12 Pac. 125; Elliott, Sec. 942). Council cannot do indirectly what it cannot do directly (Elliott, Sec. 1188; Field v. City, 124 N. W. 496; City v. Co., 34 N. W. 197; Town v. Imp. Co., 80 Pac. 549; McQuillan, Sec. 1335; City v. Tichnor, 53 N. W. 561). In any event the attempted action of the city was ultra vires (McQuillan, 1172; State v. Murphy, 31 S. W. 784; Co. v. City, 91 N. W. 1081; City v. Martin, 68 S. W. 605; State v. Martin, 34 S. W. 51); defendant did not plead estoppel and the defense is not available (Nance v. Ins. Co., R. C. L. 149: Lumber Co. v. Barth, 93 Pac. 38). The essentials of equitable estoppel are lacking (16 Cyc. 738; City v. Luney, 61 N. E. 1036; City v. Niloon, 53 N. W. 561; Shirk v. Chicago, 63 N. E. 192; Russell v. City, 65 N. W. 1088; Rolston v. Weston, 33 S. W. 326; Wolfe v. Town, 32 N. E. 1017; Elliott, Sec. 1189; City v. Nesler, 37 N. E. 956; Wetherspoon v. City, 13 S. E. 844; Trust Co. v. Wagner, 40 Pac. 764). The plat offered in evidence shows intention. to dedicate the ground to public use.

M. W. Purcell, for defendant in error.

Defendant in error claims under a contract with the city, made in good faith and acquired possession thereunder; the city is estopped (C. R. I. & P. R. Co. v. Joliet, 79 Ill. 26; Lee v. Town, 8 N. E. 763; Joliet v. Werner, 46 N. E. 780). The land surrendered to Mr. Mokler had been vacated by action of the council; failure of the council to make a record thereof cannot operate to the prejudice of Mr. Mokler; the town had authority to vacate the street (Laws 1901, ch. 34, sec. I and 2; Ponischil v. Co., 83 Pac. 317; Glasgow v. St. Louis, 107 Mo. 198; 17 S. W. 743); the contention that all vacant ground left unplatted by owners who filed original plat, was dedicated to the town, is unsound. Mokler acted in good faith and having performed all requirements of his agreement with the city, is entitled to equitable relief.