ing determined on the location of a school site and authorized its purchase, and adjourned after being in session about 30 minutes. Thereafter respondent instituted this proceeding to enjoin appellants from proceeding to purchase said site, and from issuing bonds or warrants in payment thereof, and from the payment of any bonds or warrants already issued for that purpose. temporary injunction was issued. From an order denying motion to dissolve said injunction, this appeal is taken. alleged to exist in said notice is the omission to state the hours during which the polls would be kept open. We cannot see why a notice should be held defective solely by reason of the omission of such information, when as a matter of law no polls were required, no voting by ballot made essential, and no period of duration of the meeting prescribed. 1 Dillon, Municipal Corporations (3d. Ed.) §§ 9-28: State ex rel. v. Racine County, 70 Wis. 5-13. 36 N. W. 399; Commonwealth v. Smith, 132 Mass. 295; C. & I. R. R. Co. v. Mallory, 101 III. 589; State ex rel. Bruce v. Davidson, 32 Wis. 121; Seaman v. Baughman, 82 Iowa, 216, 47 N. W. 1091, 11 L. R. A. 354. The notice here involved is in form that prescribed by the superintendent of public instruction and published with the school laws for many years. While the construction placed upon a statute by a department of the government having to do with the subjectmatter thereof is not conclusive upon the courts, yet such interpretation (and especially when long observed) will not be ignored or lightly regarded. State ex rel. Smith v. Ross (Wash.) 85 Pac. 29; Caha v. United States. 152 U. S. 221, 14 Sup. Ct. 513, 38 L. Ed. 415; Westbrook v. Miller, 56 Mich. 148, 22 N. W. 256: Brown v. U. S., 113 U. S. 568, 5 Sup. Ct. 648, 28 L. Ed. 1079; Sutherland, Statutory Const. 309 et seq.; 26 Am. & Eng. Eney, of Law (2d. Ed.) 633-635. The notice stated that the meeting would begin at the hour of 1 o'clock p. m. IIaving then commenced and continued in session until 1:30, and there not having been anything in the notice to mislead any of the voters of the district, we think no legal or sufficient reason is shown for holding the proceedings illegal. The only question presented upon the ap peal is as to the sufficiency of the notice hereinbefore set forth. It is contended by respondent that this notice is fatally defective under the statute and the decision of this court in the case of Peth v. Martin, 31 Wash. 1. 71 Pac. 549. In that case section 2280 of Ballinger's Ann. Codes & St. was construed, and it was held that the clause, "by posting written or printed notice in like manner as is provided for calling an annual school district election," required that the notice should state the "hours between which the polls will be kept open," as provided for notice of annual elections. Said section 2280 makes provision for a meeting of the residents of two or more school districts for the purpose of establishing a union or graded school, and provides that, if a majority of the electors of each district shall vote to unite, a union district is created. This court in effect held, in the Peth v. Martin Case, that the meeting provided for by said section of the statute is virtually an election, and that consequently the notice should set forth the hours during which the polls are to be kept open. But the meeting provided for by section 2442 is not an election, and we do not think that there is anything in the statute requiring a vote by ballot, a ballot box, or the keeping open or closing of polls. It was a meeting of the voters of the district for conference and consultation fashioned after the town meetings of the New England and other older states of the Union. That it was not intended to be an election is evidenced by the fact that no provision is made by the statute for an inspector, judges, or other election officers; but provision is thereby made for a chairman (Supreme Court of Washington. Nov. 30, 1906.) and a clerk of such meeting, and for a record of the proceedings to be kept, certified and filed by said clerk. It is possible that ballots and. ballot boxes might be used, but there is nothing in the statute requiring them and nothing prescribing any particular form of voting at such a meeting. This being true, it would seem that those participating might themselves adopt and carry out any method of procedure and manner of voting which they might desire. If the business, legally coming before such a meeting, could be considered and voted upon in any manner satisfactory to the electors present and disposed of within a half hour, there appears to be nothing in the statute requiring the meeting to remain longer in session. The only defect The judgment of the honorable superior court is reversed, and the cause remanded, with instructions to dismiss the action. MOUNT, C. J., and DUNBAR, CROW. RUDKIN, FULLERTON, and HADLEY, JJ., concur. (44 Wash. 532) DAVIS v. PIONEER MUT. INS. ASS'N. - 1. INSURANCE PROOF OF LOSS VALUE OF PROPERTY. A policy limited insurer's liability to an amount not exceeding $1,700, and not exceeding three-fourths of the actual cash value of the property at the time of loss. The policy required insured within 60 days after a fire unless the time should be extended in writing by insurer, to render a sworn statement stating the cash value of the property affected and the amount of the less. After loss insured submitted a statement that the building was erected in 1903, and that three-fourths of the estimated cost value of the material and labor as made and fixed by insurer and insured at the time the insurance was placed, was $1.700 as shown by the policy, and that there was a total loss. This statement was rejected, and after the 60 days had expired, without extension, insured. who was well acquainted with insurance methods, filed an additional statement that the cost of the material and labor in the building was the full sum of $1,925.92. Held, that neither statement was sufficient to show the value of the property "at the time of the loss," and they were therefore ineffective. [Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1340, 1341.] 2. SAME VALUED POLICY LAW MUTUAL COMPANIES-EXEMPTION. Laws 1903, p. 150, c. 97, regulating mutual fire insurance companies, provides, section 12, that any company or association organized or operating under such act, shall be exempt from all other insurance laws of the state. Held, that a company so operating was exempt from the application of the "valued policy" statute. 3. SAME POLICY PROVISIONS-REASONABLENESS. A provision of a fire policy that within 60 days after the fire, unless such time should be extended in writing by insurer, the insured should render a sworn statement showing the cash value of the property affected, and the amount of the loss thereon, was reasonable, and should have been complied with by insured within the time specified, in the absence of circumstances showing a reasonable cause for delay. [Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1328-1333.] 4. SAME-COMPLIANCE WITH PROVISION-CON DITION PRECEDENT-ACTION. Where a fire policy provided that no suit should be maintained thereon until insured had complied with its requirements, a compliance with a provision requiring statement of loss within 60 days after the fire, was a condition precedent to insured's right to maintain a suit on the policy. [Ed. Note.-For cases in point, see Cent. Dig.. vol. 28, Insurance, § 1521.] Appeal from Superior Court, King County; Geo. E. Morris, Judge. Action by J. A. Davis against the Pioneer Mutual Insurance Association. From a judgment for defendant, plaintiff appeals. Affirmed. J. H. Naylor and Cooley & Horan, for appellant. H. T. Granger, for respondent. HADLEY, J. By this action plaintiff seeks to recover upon a fire insurance policy. At the close of the testimony submitted by the plaintiff, the defendant moved for a nonsuit. The motion was granted, and judg ment was entered dismissing the action. The plaintiff has appealed. The evidence discloses that appellant is an experienced fire insurance agent and solic itor. He has been engaged in that business much of the time since 1899, and for about one year was engaged in soliciting for the respondent association. He was familiar with respondent's methods of doing business, with its forms of written applications for insurance, and with the powers of its soliciting agents. He knew that the soliciting agents had no authority to issue insurance for any given amount, or to make contracts with respect thereto, but that their authority was limited to procuring the written applications which consisted of blank forms fur nished by respondent to be filled out and signed by the applicant. These were sent by the solicitors to the home office in Seattle, and, upon the information contained in the applications, the respondent issued or refused to issue insurance. Appellant had ceased to be a solicitor for respondent prior to the time his application was made for this insurance. The insured property was the dwelling house of appellant, but it was not completed at the time the application was made and when the policy was issued. The application stated that the value of the property insured was $2,300. The policy issued in pursuance of the application limited respondent's liability to an amount not exceeding $1,700, and furthermore provided that liability should not exceed three-fourths of the actual cash value of the property at the time any loss or damage should occur. The building was totally destroyed. The policy also provided that within 60 days after the fire, unless such time should be extended in writing by the association, the insured should render a statement to the association signed and sworn to by him, stating, among other things, the cash value of the property affected, and the amount of loss thereon. The fire occurred January 27, 1904, and on February 19th following, appellant prepared, signed and swore to a statement which was forwarded to respondent. The statement contained, among other things, the following: "That said dwelling was built in the year 1903 and three-fourths (4) of the estimated cost value of the material and labor in the construction of said building, as made and fixed by the Pioneer Mutual Insurance Company, and affiant at the time insurance was placed thereon, was one thousand seven hundred ($1700) dollars, as shown in said policy No. 9422, and the same was a total loss by reason of said fire." No other statement as to the value of the property or the loss was contained in the writing. Respondent objected to the above as not complying with the terms of the policy, since it did not purport to fix any actual value of the property at the time of the fire. Considerable correspondence, and a number of conversations followed between appellant and the representatives of respondent, by which appellant was fully apprised of the nature of respondent's objection to his purported proof of loss. He insisted that no proof of value was necessary, and that he was entitled to recover the full amount of $1,700 mentioned in the policy, since there was a total loss, notwithstanding the terms of the policy limiting liability to three-fourths of the actual value at the time of the fire. He insisted upon his right to recover the full amount named in the policy under what is known as the "valued policy statute," but this respondent appears to be exempted therefrom by section 12, chapter 97, p. 150, of the laws of 1903. Appellant persisted in refusing to furnish any additional proof of value until the 24th day of May, 1904, when he prepared and sent to respondent another statement which contained the following: "That said dwelling was built in the year 1903, and that the cost of the material and labor in said dwelling was the full sum of one thousand nine hundred twenty-five & 92/100 ($1925.92) dollars." It will be seen from the above that it did not state the value at the time of the fire as required by the policy, but refers to the cost at the time the house was built. It also disclosed that in his application he had overvalued the property by nearly $400, and upon the basis of such overvaluation respondent had issued its policy. Appellant admitted in his testimony that when he inserted $2,300 in the application as the value, he had in mind that he could not recover more than threefourths of the value at the time of the loss, and that was his reason for inserting said amount. The evidence shows that if the actual value had been written in the application, the policy would have been written for a substantially less sum. It seems conclusive from the evidence that the persistent refusal to make proof of the actual value at the time of the loss was due to the fear that it would result in reducing the amount of recovery substantially below the amount stated in the policy. This seems to explain the delay, and shows that appellant, with his experience as an insurance man, had no reasonable excuse for not making the proof called for by his policy. He, at no time, made the proof required, and even if his last statement should be treated as proof, it was made long after the expiration of 60 days from the date of the fire. The provision as to time fixed by the policy was a reasonable one, and should have been met by appellant, unless he showed circumcircumstances which in reason should have excused the delay. All the circumstances show that the delay was due to his willful refusal to comply with the policy requirements, and with respondent's demand. The policy provides that no suit shall be maintained thereon until the insured has complied with its requirements. It therefore became a condition precedent to maintaining the suit that the kind of proof called for should be made, and should be made within 60 days unless the time should be extended in writing by respondent, which was not done, and was not requested. Appellant failed in both particulars, and he should not now be permitted to maintain his suit in plain violation of the terms of his policy. A different question might arise if an ordinary layman, unacquainted with insurance methods and who had in some manner been misled by the insurer, were seeking relief. We have seen that appellant is not such, and there was no effort made to mislead him. He assumed to take his own course with full knowledge of what was demanded of him, and should not now be heard to complain. A subcontractor who is a guarantor of the surety in the contractor's bond conditioned to protect the own from liens cannot in a suit in which the surety intervened to defend, enforce a lien. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 657.] Appeal from Superior Court, Pierce County; Thad Huston, Judge. Action by J. L. Todd, doing business under the name and style of J. L. Todd Lumber Company, against John Franzvog and others to enforce a mechanic's lien. From a judgment enforcing the lien excepting the lien of defendant Jens N. Jenson, he appeals. Affirmed. Harry H. Johnston and Govnor Teats, for appellant. Chas. L. Westcott, for respondent Olson. Frank Allyn, for respondent company. MOUNT, C. J. This action was brought to foreclose certain liens for labor and material furnished in the construction of a dwelling house belonging to respondents Olson and wife. The lien claim of Jens N. Jensen was denied, and he appeals. The facts are as follows: On April 4, 1904, O. G. Olson and wife were the owners of lots 7 and 8 in block 1512 in the city of Tacoma. On that day they entered into a contract with John Franzvog, whereby the latter agreed to furnish the materials and construct a dwelling house upon the said lots. Franzvog was required to, and did, give a bond for the faithful performance of his contract and to protect the said Olson and wife from lien claims against the said house. The United States Fidelity & Guaranty Company furnished the bond, but before doing so required Franzvog to guaranty the company against loss. The appellant Jens N. Jensen became such guarantor for Franzvog, and joined with Franzvog in the application to the company for the bond, designating himself as a partner with Franzvog. Thereupon the bond was executed and delivered by the company. At that time appellant Jensen had no interest in the contract for the construction of the house. Subsequently, however, he took a subcontract from Franzvog for the cement, plastering, etc., upon the house, for the sum of $1,125.84. He did the work, and Franzvog paid thereon the sum of $615, leaving a balance due of $510.84. Thereafter appellant Jensen filed a lien claim against the premises for the balance due. Other lien claims were filed by several materialmen, and this action was begun by J. L. Todd to foreclose a lien filed by him. other claimants were made parties defendant. The United States Fidelity & Guaranty Company, having been notified of the action brought to foreclose the liens, intervened to defend the action. The lien claims were all enforced except the claim of Jensen. All claim was denied and dismissed, for the reason that he was a guarantor to the surety company and therefore not entitled to maintain a lien. At the trial he sought to avoid his liability as a guarantor to the surety company, by claiming that, prior to the filing of any liens and while the owner O. G. Olson had money on hand owing to the contractor Franzvog. sufficient to pay all claims for labor and material furnished, he notified Mr. Olson and the agent of the United States Fidelity & Guaranty Company not to pay any more money to said Franzvog, and that after such notification Olson, with the consent of the guaranty company, paid Franzvog $1,000, which sum of money Franzvog devoted to his own use, thereby leaving an insufficient amount due upon the contract to pay the claims outstanding against the building. We need not decide or discuss the question whether these facts, if proven, would have relieved the appellant of his contract of guaranty with the surety company, because, after carefully reading the evidence, we are convinced that appellant failed to prove the facts as claimed by him. The great weight of the evidence shows that, if he ever notified Mr. Olson or the architect or the agent of the surety company not to pay Mr. Franzvog any money on the contract, such notification was not given until after the $1.000 payment had been made, and that thereafter no further payments were made to Mr. Franzvog. The appellant Jensen is, therefore, in the position of guarantying the surety company against loss, and at the same time seeking to enforce a claim against the surety company, which claim he is ultimately bound to pay. This we have held cannot be done. Kent Lumber Co. v. Ward, 37 Wash. 60, 79 Pac. 485; Spears v. Lawrence, 10 Wash. 368. 38 Pac. 1049, 45 Am. St. Rep. 789. The trial court was therefore right in dismissing appellant's claim. The judgment is affirmed. DUNBAR. RUDKIN, FULLERTON, and HADLEY, JJ., concur. (14 Wash. 505) HANSTAD v. CANADIAN PAC. RY. CO. (Supreme Court of Washington. Nov. 26, 1906.) 1. APPEAL-VERDICT-CONCLUSIVENESS. The appellate court cannot enter into an investigation of the trial of a case on the as sumption that the jury was prejudiced against the defeated party, the jury being a co-ordinate branch of the judiciary. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3912.] 2. EVIDENCE-EXPERT EVIDENCE-HYPOTHETICAL QUESTIONS. An objection to a hypothetical question based on the testimony of the witnesses of the party asking the question is properly overruled. [Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 2370.] 3. TRIAL-INSTRUCTIONS. It is not error to refuse instructions covered by those given. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.] 4. SAME-MISLEADING INSTRUCTIONS. It is not error to refuse instructions so involved that they would, if given, serve to confuse the jury. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 569-576.j 5. SAME ARGUMENT OF COUNSEL-GROUNDS FOR REVERSAL. A counsel in his argument to the jury commented, over the objection of the adverse party, on evidence which the court had excluded because immaterial. The adverse party requested the court to charge that the jury should disregard any statement concerning evidence which had been offered, but rejected. The court failed to charge on the question. Held, that the argument of counsel was reversible error. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 287.] Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Separate actions by Anna Haustad, a minor, by her guardian ad litem W. A. Larsen, against the Canadian Pacific Railway Company for the recovery of personal injuries, and for the death of plaintiff's mother. From judgments for plaintiff in each action, defendant appeals. Reversed, and new trial granted. Thomas B. Hardin and Bogle, Hardin & Spooner, for appellant. Walter S. Fulton and Martin J. Lund, for respondent. DUNBAR, J. This was an action brought by Annie Hanstad, a minor, by her guardian ad litem, W. A. Larsen, who sued to recover for the death of her mother, Maret Hanstad, in one case and in the other for alleged injuries to herself. Under a stipulation between the parties these cases were tried together, as they arose out of the same state of facts. By a subsequent stipulation they are presented to this court in the same briefs. We will not attempt to set out the complaint verbatim, but the substance of the allegations is that by virtue of a ticket purchased from the agent of the defendant, the mother of respondent was entitled to be carried as a passenger for hire over its said railway and on its cars and train; that on or about the 22d day of April, 1904, said minor's mother boarded defendant's train at the city of Halifax, to be transported as fever, it was not contracted by any negligence of appellant, and that where and how it was contracted was unknown and not susceptible of proof. Upon these issues the case went to trial, and judgment was rendered in favor of the plaintiff for the loss of the mother in the sum of $9,000, and for in tion for a new trial, the judgment was allowed to stand upon the remission by the plaintiff of the sum of $3,000 of the judgment rendered in favor of the plaintiff for the loss of the mother. From this judgment this appeal is prosecuted. It is earnestly urged by counsel for appellant that no negligence on its part was proven, and that the judgment should be reversed, and the cause dismissed for that reason. From a careful investigation of the long record which is presented in this case, an investigation which has occupied several days, we are unable to say that there was no testimony offered tending to show negligence on the part of the appellant. On the contrary, it appears to us that there was competent testimony which, if believed by the jury, would warrant a finding of negligence. The testimony is so voluminous, the trial of the cause having consumed 10 days, that an intelligent review of it cannot be made within the limits of time and space appropriately accorded to an opinion, and as the whole of the testimony cannot be reviewed, we will not attempt a review of any of, it. But the condition of the cars, the treatment of the passengers by appellant's agents, the time when the disease was contracted, the character of the disease, etc., were all questions upon which conflicting testimony was offered, and questions upon which the jury had a right to pass judgment. its passenger for hire to Seattle, Wash.; | mother; that, even if the disease were scarlet that she was duly received by defendant as its passenger for hire; that the defendant failed, neglected, and refused to furnish the minor's mother with a clean and proper car and conveyance in which to make said journey, but compelled her to ride in a dirty and unclean car which contained the germs and bacteria of a certain contagious and infec-juries to herself in the sum of $6,000. On motious disease known as "scarlet fever" or "malignant measles"; that the defendant carelessly and negligently permitted the said car to be overcrowded with passengers, and neglected to have the car properly ventilated, and failed and neglected to keep said car clean and properly heated during said journey; that on the second day of said journey several of the passengers, traveling in the same car with the minor's mother, became sick with said scarlet fever or malignant measles, being a contagious and infectious disease, and the defendant negligently and carelessly allowed said sick passengers, suffering with said contagious and infectious disease, to remain in the same car with the minor's mother and in close proximity to her, and carelessly failed and neglected to furnish her with any other car, and negligently failed and neglected to take any means to prevent the spreading of said disease to the minor's mother; that thereby the disease was communicated to the minor's mother; that she became violently sick from said disease; that the defendant negligently and carelessly allowed and suffered her to remain for one whole day in said car without any attendance or assistance; that upon the arrival of the train at Winnipeg, she was removed to a pesthouse, where she died from said disease within a few days; that the defendant negligently and carelessly failed and neglected to render her any assistance after she became sick with said disease and while she was a passenger on its train, and failed and neglected to remove her from the train for care and medical attendance, until after she had become delirious and unconscious from pain and suffering; that it was well known to the defendant that the car in which she was directed to ride, and in which she did ride, was dirty, overcrowded, infected with said contagious and infectious disease, and improperly heated and ventilated, and other allegations of negligence which it is not necessary to reproduce here; that the said minor is three years of age, the illegitimate daughter of said Maret Hanstad, and was wholly dependent upon her mother for her support and maintenance, care, and education, and by reason of the death of her said mother was damaged in the sum of $25,000. The allegations of circumstances and negligence in the other case were, the same. The answer of the defendant was substantially a denial of the allegations of the complaint. Appellant's contention was that the disease was measles, and not contracted upon its train by either respondent or her 87 P.-53 We note the contention of appellant that juries are prejudiced in cases of this character, and not inclined to do justice between individuals and corporations. But, if there is any force in this contention at all, it is an argument against our Constitution and Statutes. The jury is a co-ordinate branch of the judiciary; its duties are defined and prescribed by law, and the appellate court cannot enter into an investigation of the trial of a cause upon the assumption that the jury has been remiss in its duty. If such is unfortunately the fact, the remedy is in a change of the fundamental law. The hypothetical questions so strenuously objected to by appellant were based upon the testimony of respondent's witnesses, and the objections to them were properly overruled. Without particularizing, we have been unable to find any prejudicial error in the admission or rejection of testimony, or in giving or refusing to give instructions, with one exception which we will hereafter notice. In our judg ment, the instructions given by the court clearly and fairly stated the law, and the instructions proposed by the appellant and |