did work and labor in constructing refineries, furnaces, etc., at the request of the appellant, on its mining and milling property. That the materials were furnished, and the work and labor done, on the property of the appellant, and the amount and value thereof is not denied, but it is denied that this was done at the request of the appellant. The evidence tends to prove that the materials and work were furnished at the request of one Bowers, who was a director and secretary of the appellant company, and one Johnstone, represented to be the general manager of the company; that the mining operations and the work, when this labor was done and their materials were furnished, were carried in the name of the appellant company, the pay-rolls of the men, and the regulations for the conduct of the work, were in its name, and the proceeds of the mine were transferred to its credit, and the material furnished and labor done by the respondent were charged to it, and the whole proceedings in working the mine and making the improvements were carried on, to all appearances, in the name and by the authority of the appellant company. Its president was sometimes there. Its secretary and office were there, and one or two of its directors resided there. We think there was, if not a preponderance of evidence, enough to justify the court below in finding that these materials were furnished and this labor performed at the request of the appellant. But the contention of the appellant is that it is not liable for the labor done and material furnished by the respondent, because it had a contract with another party to have this work done and these materials furnished, and pay for the same, and this contract was with Bowers, a director, stockholder, and secretary of the appellant company, and that the contract was between him and certain stockholders of the appellant company, and consented to by it. If this was a private agreement between certain stockholders of appellant as to who should pay for improve ments made in its property, made in its name and for its benefit, it will not avail to defeat the claim of the respondent, unless notice of this agreement was given to the respondent, before the materials were furnished and labor done, that it would not be liable for these materials and labor, although done in its name. On this point the evidence is conflicting, and the court below found for the respondent, or it could not have given judgment in its favor. We think the evidence fully justifies his finding. (6 Utah, 353) PEOPLE ex rel. BYNON v. PAGE, Registration Officer. (Supreme Court of Utah. Jan. 21, 1890.) MUNICIPAL CORPORATIONS - CHARTER - JUDICIAL NOTICE. 1. Laws Utah 1888, c. 48, divides cities into classes, and provides the way, but not an exclusive one, by which cities should determine to which class they belong. Held, that the court will take judicial notice of the class to which a city belongs, and the city becomes a member of its proper class without anything done on its part. 2. Laws Utah 1888, c. 48, art. 20, § 5, providing that the sections thereof, specifying the number of wards, and the officers to be elected, in cities of certain classes, shall apply to cities already organized, effects an amendment of the charters of such cities, though the act contains no repealing clause. Application for writ of mandate. W. H. Dickson and P. L. Williams, for relator. O. W. Powers and C. W. Benedict, for respondent. BLACKBURN, J. This is a petition by the plaintiff for a peremptory writ of mandate to require the defendant, who is the proper officer, to give election notices for the coming municipal election in Salt Lake City; to put up notices of said election, stating, among other things, that there will be chosen by the qualified voters at said election fifteen councilmen, one mayor, one recorder, one treasurer, one marshal, and one assessor and collector, and one justice of the peace for each of the five precincts of said city. This involves a construction of a portion of the act of the last territorial legislature (Laws 1888, c. 48) entitled "An act for the incorporation of cities." The purpose of that act seems threefold: (1) To incorporate new cities; (2) to provide a mode by which cities already organized can reincorporate under this act; (3) to apply to cities already incorporated, certain portions of the act as amendments to their charters, without reincorporation. The question raised by this petition is, does this act require that the officers provided for in it shall be elected at the coming municipal election in Salt Lake City, or shall the officers provided for in the charter of said city be chosen? I think the officers provided for in this act are hereafter the proper ones to govern the city. Section 14, art. 1, by express words applies to cities now organized, and provides that they shall be divided into three classes. All cities having a population of 20,000 and over shall belong to the first class, etc. Other portions of the act point out the way any city may determine the class it belongs to, but the mode mentioned in the act is not exclusive. If Salt Lake City has in fact a population of 20,000 or over, and the court can judicially know that fact, it is a city of the first class, whether it takes any steps to ascertain that fact or not. Courts take judicial notice of all the political acts of the government. The census of 1880 shows this city to have a population of over 20,000, and that is a political act of which the courts take judicial notice. Therefore I think Salt Lake City, under this act, defendant company. We think the evidence abundantly supports this finding. It was the duty of the company to furnish reasonably safe cars for the running trains, and to have them inspected with reasonable care at proper intervals; and, if an employe was injured by a neglect to perform this duty, the company is liable to him for the damage he sustained. On this branch of the subject we see no error. is a city of the first class, without anything | they found that this was negligence in the done on its part. Again, section 5, art. 20, expressly provides that section 1, art. 6, among other provisions of this act, shall apply to all cities already incorporated. Although there is no repealing clause in this act, yet section 5, art. 20, has the effect to make these several provisions amendments to the charters of all the cities to which they are applicable. Section 1, art. 6, provides that officers of the cities of the first class to be elected by the people shall be three councilmen from each municipal ward, a mayor, a recorder, a treasurer, an assessor and collector, and a marshal. Another provision of the act provides that cities of the first class shall be divided into five wards, and that one justice of the peace shall be elected from each ward. Both parties having appeared, and this application having been argued at the hearing, there is no need of an alternative writ. Therefore the peremptory writ will issue as prayed for. ZANE, C. J., and ANDERSON, J., concur. HENDERSON, J., was absent at the hearing of this case, and took no part in the decision. (6 Utah, 357) DANIELS v. UNION PAC. RY. Co. 1. A verdict for plaintiff, a brakeman, who was injured in a wreck caused by a broken carwheel, will not be disturbed where the evidence shows that there was an old crack in the wheel, which could have been seen by proper inspection. 2. A brakeman is not a fellow-servant of a carinspector, as they are not associated together in their labor, and are under different managers. 3. Where plaintiff is permanently disabled in one leg and shoulder, and wholly unable to perform manual labor, and was rendered helpless by the wreck, and left for more than two days with his wounds undressed, and thus made to suffer unnecessarily, a verdict for $10,000 will not be set aside as excessive. Appeal from district court, third district; ZANE, Judge. Action by William Daniels against the Union Pacific Railway Company. Judgment was entered on a verdict for plaintiff for $10,000, and defendant appeals. P. L. Williams, for appellant. Arthur Brown, for respondent. BLACKBURN, J. This is a suit by a brakeman, an employe of the defendant company, for an injury to him while in the line of his duty on a train that was wrecked. He was severely injured, and permanently in one leg and one of his shoulders, so as to be unable to perform manual labor. The evidence tends to show that the train on which the plaintiff was at work as brakeman was wrecked by a broken wheel; that there was an old crack in the wheel, which could have been seen by proper inspection; and the question was fairly submitted to the jury, and The instructions, as we think, state well and fairly the law of the case, and no point is made on them in the brief of appellant's counsel; but the contention of the defendant company is that, if there was negligence, it was the negligence of the car-inspector, and he was the fellow-şervant of the respondent. If this contention is true, the respondent cannot recover, and this case should be reversed. As to who are fellow-servants there have been a great many and great variety of decisions, and it would serve no useful purpose to review them. However various, the decisions agree that the weight of authority is that, in order to constitute servants of one master fellow-servants, within the rule respondeat superior, they must be engaged in the same line of work, be under the control of the same foreman, be employed and discharged by the same head of the department in which they work; that they labor together in such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety; that they shall be at the time of the injury directly co-operating with each other in the particular business in hand, or that their mutual duties shall bring them into habitual conassociation, as that they may exercise an influence upon each other promotive of proper caution, and to be so situated in their labor, to some extent, to supervise and watch the conduct of each other as to skill, diligence, and carefulness. Railroad Co. v. Kelly, 127 Ill. 637, 21 N. E. Rep. 203. The evidence in this case clearly shows that the inspector of cars is not in the same line of work with the brakeman. He has nothing to do with the running of trains; is not under the control of the conductor, but reports to, is appointed by, and may be discharged by, and is under the direction of, the foreman of the repair shops; has no conassociation with, and is rarely seen by, the brakeman on the train, unless casually noticed by him when the train is stopped. They have no work in common; are not so associated in their labor as to be able to act together in a way promotive of their mutual safety. We cannot say, therefore, as a matter of law, that the car-inspector, in this case, was a fellow-servant of the respondent when the accident occurred. It is contended, also, by appellant that the damages are excessive. On that point the jury were properly instructed. It is peculiarly the province of the jury to estimate the damages in this class of cases; and they doubtless took into consideration, what they were legally authorized to do, that the respondent was lamed and deformed in one leg for life, and permanently disabled in one shoulder, so that he was wholly rendered unable to perform manual labor; that he was rendered entirely helpless by the accident; that he was neglected for more than two days before his wounds were dressed; and that he suffered unnecessarily in mind and body from his injury. The damages are seemingly heavy, but, in view of the facts of the case, we do not think are so excessive as to justify a renewal. Therefore, we cannot say that the jury were influenced by passion or prejudice in assessing the damages at the amount they did. We think, therefore, the judgment should affirmed. Judgment affirmed. HENDERSON and ANDERSON, JJ., concur. (6 Utah, 360) PRESHAW v. DEE et al. (Supreme Court of Utah. March 4, 1890.) QUO WARRANTO-MISJOINDER OF PARTIES. 1. The joinder as defendants, in a single quo warranto proceeding of several persons who claim title by distinct appointments to the office of justice of the peace, each in a separate precinct created out of a larger precinct, of which plaintiff had previously been elected justice, is error, and is not authorized by Comp. Laws Utah, § 3534, which provides that "when several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons in order to try their respective rights to such office or fran chise." 2. Where the complaint merely avers that defendants have usurped plaintiff's office, the misjoinder may be taken advantage of by answer under Comp. Laws Utah, § 3224, which is not apparent on the face of the complaint. Appeal from first district court; T. J. ANDERSON, Justice. A. R. Heywood and Boreman & Rogers, for appellant. Sutherland & Judd and H. H. Rolapp, for respondents. in created four separate and distinct precincts, defining particularly their boundaries, and designating them, respectively, as "Ogden Precinct, No. 1, 2, 3, and 4." The county court thereupon, by an order entered at the same time for the purpose of filling the vacancies in the office of justice of the peace in each of the said four precincts thus created, appointed the plaintiff herein justice of the peace in and for Ogden precinct No. 1; the defendant N. Tanner, Jr., for Ogden precinct No. 2; the defendant Joseph Stanford for precinct No. 3; and defendant Thomas D. Dee for precinct No. 4. Defendant Tanner never qualified under his appointment, and has filed his answer disclaiming any right to the office. Defendants Stanford and Dee at once qualified. Commissions were duly issued to them by the governor, and they entered upon the duties of said offices within and for their respective precincts. The plaintiff claims, under his election, to be justice of the peace for the entire Ogden precinct, as it formerly existed, and denies the validity of the proceedings of the county court above set forth. Defendants Stanford and Dee filed their answers, setting up the foregoing facts, and denying the right of the plaintiff to justly implead them. Judgment was entered for defendants in the district court, and the plaintiff appeals. The first question for our determination is as to whether there is a misjoinder of parties defendant. It will be seen from the foregoing statement that each of the defendants is claiming under separate and distinct appointments and commissions, and are acting as officers and exercising jurisdiction over separate and distinct portions of the territory over which the plaintiff claims his right. They are not claiming a joint jurisdiction or the same jurisdiction. It is a well-established principle of law, as well as in equity, that courts will not take cognizance of distinct and separate claims or liabilities of different persons in one suit, though standing in the same relative situation. 1 Chit. Pl. (14th Amer. Ed.) 44; Bliss, Code Pl. § 83; Pom. Rem. § 308. There must be some community in the wrong-doing among the parties who are united as co-defendants. The injury com work. La France v. Krayer, 42 Iowa, 145; Lull v. Improvement Co., 19 Wis. 100. Applying these principles, we think there is a misjoinder of defendants, and do not think the statute cited by plaintiff (2 Comp. Laws 1888, p. 338, § 3534) is authority for the joinder of these defendants in one action. HENDERSON, J. This action was brought in the first district court for usurpation of office (quo warranto.) The complaint avers that the plaintiff was on the 5th day of August, 1889, duly elected to the office of jus-plained of must be, in some sense, their joint tice of the peace of Ogden precinct, setting out the boundaries and extent of the precinct; that he afterwards qualified, and is entitled to said office and its emoluments; "that on September 3, 1889, the defendants, and each of them, usurped said office, and have ever since continued so to do." The facts are that the county court of Weber county, on the 7th day of August, 1883, created Ogden precinct, the same as set out in the complaint. On the 5th day of August, 1889, the plaintiff was duly elected justice of the peace of said precinct, and on September 2, following, he qualified as such. On the 20th day of August, 1889, the county court of Weber county, by an order, abolished said Ogden precinct, and out of the territory embraced there The misjoinder not being apparent upon the face of the complaint, it was proper to take advantage of it in the answer. Comp. Laws 1888, p. 245, § 3224. We deem it unnecessary to discuss the This section provides that, "when several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise. " other questions involved. The judgment of the district court should be affirmed. ZANE, C. J., and BLACKBURN, J., concur. (6 Utah, 363) TEAHEN . Nelson. Comp. Laws Utah, § 3806, gives every person performing labor or furnishing materials for a building, whether at the instance of the owner or his agent, a lien, but provides that "the aggregate amount of such iiens must not exceed the amount which the owner would be otherwise liable to pay. "Section 3807 provides that any subcontractor performing labor or furnishing materials for the contractor may, within 30 days after commencing to perform the labor or furnish the materials, serve on the owner or his agent written notice of the amount due him, or contracted to become due him, and have a lien for such amount. Held, that the subcontractor's lien attaches from the time he begins to labor or furnish materials, provided he gives notice within 30 days, but the amount of all liens cannot exceed the amount of the contract with the owner, and a complaint to foreclose a subcontractor's lien should allege the amount due the contractor, less any payment made for labor or materials furnished before plaintiff's lien attached. BLACKBURN, J., dissenting. Appeal from district court, third district; H. P. HENDERSON, Judge. Miller & Maginnis, for appellant. A. H. Nelson, for respondent. ZANE, C. J. The appellant filed his complaint in the district court, in which he alleged, in substance, that the respondent was the owner of the lot described; that he made a contract with one V. H. Harding to erect a building thereon; that, in pursuance of a contract with the latter, appellant performed labor on the building to the amount of $207, no part of which had been paid; that he served on respondent notice of the amount due him as such subcontractor, and also filed for record his claim, as required by the statute. The usual prayer was added, and the action was commenced within 90 days after the claim was filed for record. The court sustained a demurrer to the complaint, because it did not contain an averment of any amount due on the contract with the owner at the time the alleged lien of the plaintiff attached. This ruling the appellant assigns as error. To decide the question raised, it is necessary to construe certain provisions of chapter 1 of the Compiled Laws of Utah cf 1888 defining mechanics' liens, and providing for their enforcement. Section 3806 of that chapter is as follows: "Every person performing labor upon or furnishing materials to be used in the construction * **of any * ** * building *** has a lien upon the same for the work or labor done or materials furnished, * * * whether done or furnished at the instance of the owner of the building * * * or his agent, but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay." The provisions of this section, giving the person performing the labor or furnishing the materials a lien, whether the same is done or performed at the instance of the owner or his agent, manifests an intention to confine the lien to such persons as have express or implied contracts with the owner; or, in other words, an intention not to include in its provisions a lien in favor of subcontractor or in favor of persons performing labor or furnishing materials at the instance of such subcontractor. The language of the last clause of the section, viz., "but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay," indicates an intention to include the liens of subcontractors, and the liens of persons furnishing materials or performing labor at his instance, provided for in section 3807 of the chapter, as well as the lien of the contractor with the owner given in the section above quoted. The aggregate amount of all liens for work done or materials furnished under contracts with the own- . er or his agent would be limited by those contracts, and the clause would be of no effect if intended to refer to those; but the amount of the liens for labor performed or materials furnished under subcontracts, or under contracts between other persons and the subcontractor, would not be limited by the contracts with the owner by what he would otherwise be liable to pay. Hence the necessity for the clause. When a provision of an act is susceptible of two meanings, one of which gives effect to it, and the other does not, the rule of construction is that the one giving to it effect shall be adopted. The application of this rule to the limiting provision authorizes the inference that the legislature intended it to embrace the three classes of liens. Section 3807 is as follows: "Any subcontractor, material-man, laborer, or other person performing labor or furnishing materials for the contractor, who is entitled to a lien under the provisions of the last section, may, * * * within thirty days commencing to perform the labor or furnish the materials, serve upon the owner or his agent * * * written notice of the amount due him, or contracted to become due him, for such labor or materials; and such subcontractor, material-man, laborer, or other person may have a lien for such amount; and any person furnishing materials, or performing labor for the contractor, may, by like notice to the contractor, be subrogated to the rights of such subcontractor; and, by filing notice with the county recorder, shall likewise have a lien for the amount due him, although the building may not be finished: provided, that he file notice of such lien within the time mentioned in section 1062 of this act." This section gives the subcontractor a lien, and it also gives a lien to the person who performs labor on the building, or furnishes material under a contract with such subcontractor. The subcontractor is required to serve upon the owner, within 30 days after the performance of labor or the delivery of materials by him commenced, written notice of the amount due him, or contracted to become due him; and that amount is the entire compensation for such labor and materials,--not the whole amount, less such payment as the owner may have made to the contractor with him, after the work commenced or the delivery of materials begun, and before the service of notice. The lien is given to secure the entire compensation for the labor and the materials from the beginning. vance. If the owner may pay the contractor in advance the full amount of the contract, he may in that way defeat the subcontractor's lien, because, as we have seen, the owner cannot be compelled to pay more than that amount. While the owner may pay the contractor for labor when performed and materials when delivered, as payment therefor becomes due before the subcontractor or other person at his instance commenced work or the delivery of materials, he cannot by payment in advance, or by payment of any kind to the contractor after the subcontractor commences work or the delivery of materials, defeat or diminish the amount of the subcontractor's lien, or the amount of the lien of any person performing labor or furnishing materials at his instance. When the contractor has performed the labor or delivered the materials, and is entitled to his pay therefor, the owner ought to pay him, if the right of the subcontractor has not intervened. The owner of premises, contracting with a builder for the erection of a house thereon, is required to anticipate the rights of subcontractors, and persons performing labor and furnishing materials at their instance, before paying the contractor in adThe owner is presumed to observe the presence of subcontractors and other persons performing labor upon his building, or delivering materials therefor; and the law requires him to know that he cannot defeat or diminish any lien in their favor by any payment to the contractor in advance, or by any payment he may make to him after the subcontractor or other person doing work or furnishing materials at his instance has commenced work or the delivery of materials. As labor is performed and materials are furnished upon the owner's contract with the builder, he may pay for it as the pay becomes due, but after the subcontractor commences the execution of his contract his lien commences to run, and it is beyond the power of the owner to defeat or affect it, except by payment of the amount to the subcontractor. The latter may lose it by failing to serve the requisite notice within 30 days after the execution of his contract begins, or by not filing the required claim with the recorder within 30 days after the building is completed, or by not commencing suit to foreclose within 90 days after filing that claim. When the performance of the labor or the delivery of materials begins, the lien attaches and increases in proportion as the labor performed and materials delivered increases. If the legislature had understood that the lien would not attach until notice given, it should have required its service when the performance of labor or the delivery of materials commenced. The law, in effect, says that, in order to secure the amount due for the labor and materials, it is sufficient to serve the notice at any time within 30 days after the work or delivery of materials begins; but if the owner may defeat the security by pay. ment to the contractor at any time before notice, then there is no security against the action of the owner and the contractor. The lien is maintained by the service of notice within 30 days after the work or the delivery of materials commences, but the work may be done and the materials delivered before that time; and if the owner may make payment to the contractor during that time, and in that way the subcontractor may be deprived of his lien, the service would be an idle performance The legislature could not have intended a construction that would probably be attended with such consequen ces. And Section 3810 of the same chapter prefers the lien given in the chapter to any other that may have attached or been created subsequent to the time when the building, improvement, or structure was commenced; also to any such lien of which the lienholder, had no notice, and which was unrecorded at the time the building was commenced. This section requires other lienholders, by mortgage or otherwise, to take notice of the commencement of work on the building. section 3815 declares that all persons entitled to liens on the structure or improvement, except those who contract with the owner, are subcontractors, and requires the court, in its judgment, to direct the amount due subcontractors to be paid out of the proceeds of sales before any part thereof is paid to the contractor. And section 3816 of the chapter limits the recovery of the contractor upon a lien filed by him to such amount as may be due him according to his contract, after deducting all claims of subcontractors, and other parties under them, for work done and materials furnished. And section 3817 of the chapter declares the order in which the liens shall take precedence when there is more than one class, viz.: First, all persons other than the original contractor and subcontractor; second, the subcontractor; third, the original contractors. We are of the opinion that the aggregate amount of liens of the contractor, subcontractor, and of the persons performing labor and furnishing materials at the latter's request, cannot exceed the amount of the contract with the owner; that the owner may continue to pay the contractor for labor done and materials furnished, as payment therefor becomes due, until the subcontractor commences work, or the delivery of materials; and that the owner can make no other payments that will affect the amount of the subcontractor's lien, or the lien of other persons performing labor on the building, or delivering materials therefor, at his request; |