complained of. These proceedings not having been begun in time, they are hereby dismissed. All the judges concurring. (8 Kan. App. 441) ORR et al. v. GERROLD. (Court of Appeals of Kansas, Northern Department, W. D. May 7, 1898.) ACTION ON NOTE-DEFENSES-COUNTERCLAIM DEMURRER. 1. A. advanced to B. $100, to be loaned C. upon a note payable to B., signed by A. and C.; and it was agreed between A. and B. that B. should hold said money in trust for the sole use of B.'s two minor children, and that, before B. should ask to handle the same, she should become the legally appointed and qualified guardian of said minors, which she has neglected and refused to do, but seeks now to recover said sum for her sole use and benefit. Held, that this does not constitute a defense to an action brought by B. against A. and C. upon said note. 2. The counterclaim in this case examined, and held, that the demurrer thereto was erroneously sustained. (Syllabus by the Court.) Error from district court, Rawlins county; A. C. T. Geiger, Judge. Defend Action by L. B. Gerrold against S. N. and E. L. Orr. Judgment for plaintiff. ants bring error. Reversed. ⚫ M. A. Wilson, for plaintiffs in error. Noble, for defendant in error. J. P. WELLS, J. This action was brought in the district court by the defendant in error to recover upon a promissory note given her by the plaintiff's in error. The defendants below filed an answer admitting the execution and delivery of the note sued on, and pleading as a defense thereto that at the time of the execution thereof said plaintiff was a stepdaughterin-law of defendant S. N. Orr, and the mother of two little girls, aged, respectively, about 6 and 4 years; that in October, 1889, the husband of said plaintiff, the father of said girls, died indebted to said S. N. Orr in the sum of $100; that about the 1st of November, 1891, said plaintiff, with her two children, came and made her home with said defendant S. N. Orr, remaining there for about 3 years and 10 months; that said note sued on was executed by the defendant E. L. Orr, and that said defendant S. N. Orr advanced the money for which it was given, with the express understanding between said S. N. Orr and plaintiff that said loan was made by S. N. Orr to E. L. Orr for the sole benefit of plaintiff's two girls, and also that the sum of $100 owing the said S. N. Orr by the husband of plaintiff at the time of his death should also inure to the benefit of said children, and that said sums should be held in trust for said children, and said plaintiff then agreed that, before she would handle the proceeds of said note sued on, she would become the legally appointed and qualified guardian of said girls, which she has neglected and refused to do. At the same time the defendant S. N. Orr filed a counterclaim alleging that at the time of the commencement of this action plaintiff was indebted to said defendant, on an account, in the sum of $337 and interest, and praying judgment therefor. To this answer and counterclaim a demurrer was filed on the ground that they constituted no defense, and a misjoinder of causes of defense. The demurrer was sustained by the court. The defendants made no further appearance, judgment was rendered for the plaintiff upon her pleadings and evidence, and the case was brought here for review. The first question requiring consideration is, does the answer of the defendants state a defense to plaintiff's action? The complaint set up may be summarized as follows: S. N. Orr gave the plaintiff $100 to loan to E. L. Orr upon a promissory note signed by E. L. Orr and S. N. Orr, payable to plaintiff, under an agreement between plaintiff and S. N. Orr that, before plaintiff would ask to handle any of the proceeds of the note given therefor, she should become the legally appointed and qualified guardian of her two minor children, and that said sum, together with $100 owed said S. N. Orr by the husband of plaintiff at the time of his death, should be by the plaintiff held in trust for said two minor children, and that said plaintiff has neglected and refused to become said legally appointed and qualified guardian, but, instead, seeks now to recover said sum for her sole use and benefit. The question as to how the plaintiff procured the money to loan E. L. Orr is immaterial, except as furnishing a consideration for the contract set up. Does the failure to comply with said contract constitute a defense to the action upon the note? Certainly not as to the defendant E. L. Orr. He owes the money. The contract for the payment thereof was made with the plaintiff, and in her name, and under section 22, c. 95, Gen. St. 1897, she was authorized to collect the same in her own name; and as between themselves, upon the note, S. N. Orr was security only for E. L. Orr. We are of the opinion that while S. N. Orr would probably have the right, in some proper proceeding on behalf of the children, to prevent the money from being diverted from the purpose to which it was appropriated by him, yet the facts stated do not constitute a defense to the action. The legal effect of the facts stated is not to defeat a recovery, but to show that, if the money is recovered, she will misappropriate it. This, upon a proper showing, can be guarded against. The demurrer was properly sustained as to said an swer. The next question is, should the demurrer have been sustained as to the counterclaim of S. N. Orr? It is contended by the defendant in error that there is a misjoinder of causes of defense; that said counterclaim does not state facts sufficient to constitute a defense to the plaintiff's cause of action, and that certain items in said counterclaim appear upon their face to be barred by the statute of lim itations. It is not necessary to consider the last ground, as that applies only to a few small items, and would not authorize the sustaining of the demurrer to the whole pleading. It is contended that the same rules of misjoinder apply to the defense as to the plaintiff. This is a mistake. Any defendant in an action on contract may plead as a set-off or counterclaim any cause of action arising on contract which he may have against the plaintiff. Said counterclaim, upon its face, shows a valid cause of action, and it was error to sustain the demurrer thereto. The judgment is reversed, and a new trial directed. All the judges concurring. (26 Colo. 234) In re HOUSE BILL NO. 250. (Supreme Court of Colorado. April 22, 1899.) CONSTITUTIONAL LAW-PRINTING AMENDMENTS TO BILLS MANDATORY PROVISIONS JUDICIAL QUESTIONS. -- 1. Const. art. 5, § 22, providing that all substantial amendments to any bill shall be printed for the use of the members before the final vote is taken, is mandatory on the general assembly. 2. A bill passed by the house created a board of assessors to consist of all the county assessors of all the counties. The senate, as an amendment, divided the counties of the state into five classes, and from each one assessor was to be selected by the entire body of assessors of the state. Held, that the amendment was a substantial one, within Const. art. 5, § 22, providing that all substantial amendments made to any bill shall be printed for the use of the members before the final vote is taken. 3. Whether or not an amendment to a bill is a substantial one, within Const. art. 5, § 22, providing that all substantial amendments made to any bill shall be printed for the use of the members before the final vote is taken, is a judicial, and not a legislative, question. Question by the governor for an opinion as to the constitutionality of an act creating a state board of assessors. Opinion rendered. Charles G. Clement and L. F. Twitchell, for the bill. Tyson S. Dines and Rogers, Cuthbert & Ellis, against the constitutionality of the bill. PER CURIAM. The 12th general assembly passed, and sent to the governor for his approval, house bill No. 250, entitled "An act to provide for the better assessment of property for revenue, to create a state board of assessors," etc. Entertaining grave doubt of its constitutionality, the governor has transmitted a communication requesting our opinion, stating, inter alia, that, to his mind, the question is "publici juris, and one which imperatively demands judicial determination prior to the approval of the act." Coinciding with the conclusion of the chief executive that the question is important and the occasion solemn, it becomes our duty to make an swer. Embodied in the communication is a statement from which it appears that the bill, as originally introduced, and as it passed the 57 P.-4 house of representatives, provided for the creation of a state board of assessors, to consist of all the assessors of all the counties of the state, on which should devolve the powers and duties therein specified. When it reached the senate, it was amended by providing that the several counties in the state shall be divided into five classes, according to the classification existing, for the purpose of fixing the fees to be collected by county officers. The amendment further provided that all the county assessors of the state shall meet at Denver at 10 o'clock a. m. on the first Monday of April of each and every year for the purpose of selecting from their number five assessors, to be chosen by them, one from each of said classes. And these five assessors so chosen, together with the governor, secretary of state, auditor, treasurer, and attorney general, shall constitute the state board of assessors. The specific provisions of the constitution supposed to be violated in the passage of this act are section 22 of article 5 and section 15 of article 10. The former reads as follows: "Every bill shall be read by title when introduced, and at length on two different days in each house; all substantial amendments made thereto, shall be printed for the use of the members before the final vote is taken on the bill, and no bill shall become a law except by a vote of a majority of all the members elected to each house, nor unless on its final passage, the vote be taken by ayes and noes, and the name of those voting be entered on the journal." The latter, inter alia, creates a state board of equalization, consisting of the state officers above mentioned, whose duty shall be to adjust and equalize the valuation of real and personal property among the several counties of the state, and to perform such other duties as may be prescribed by law. Although the governor does not declare it to be a fact established beyond doubt that the amendment offered in the senate was not printed before the bill was put on its final passage, yet he does state that he is sufficiently convinced of its correctness to assume that fact for the present. It is well here to refer to our previous decisions declaring that in these ex parte proceedings the court will not inquire into, or determine for itself, disputed questions of fact. For the purposes of the opinion, and for those only, the facts, as recited or as assumed by the governor, or either house of the general assembly, may be taken as true, but are not binding upon the parties to any subsequent litigation, or upon the court itself in other proceedings, or necessarily in these ex parte proceedings. In re Casual Deficiency, 21 Colo. 403, 42 Pac. 669; In re Appropriations, 13 Colo. 316, 322, 22 Pac. 464; People v. Martin, 19 Colo. 565, 570, 36 Pac. 543; In re Fire & Excise Com'rs, 19 Colo. 482, 36 Pac. 234. Assuming, therefore, with the governor, as the established practice permits us to do, and for the present purpose only, that the amendment to this bill was not printed, we proceed to consider the questions submitted: First. Is the act, as now enrolled, in that the senate amendment was not printed for the use of the members before the final vote was taken on the bill, in conflict with section 22 of article 5 of the constitution? Second. Is the act, in so far as it devolves upon the state board of assessors therein created the duty of assessing the class of property therein described, in conflict with section 15 of article 10 of the constitution, which establishes a state board of equalization and prescribes its duties? Our conclusion upon the first proposition renders unnecessary a determination of the second. The question upon which our opinion is given may thus be subdivided: (1) Is the section of the constitution mandatory? (2) Is the amendment a substantial one, in the sense of the term as employed therein? (3) Is it for the general assembly or the courts to determine whether or not a given amendment to a bill is a substantial one? 1. No case has been called to our attention in which this particular clause has been construed. In constitutions of other states, provisions like our section 22 of article 5 are found. The other clauses thereof, also like ours, have frequently been before the courts, and almost invariably have been declared mandatory upon the legislature. The language is that every bill shall be read by title and at length on two different days, and that all substantial amendments made thereto shall be printed, etc. These other clauses having, in our opinion, been rightly held to be mandatory, we think, without question, and for similar reasons, the one now under consideration is equally so. Indeed, none of the able counsel who have appeared amici curiæ, and given us the benefit of their argument, have claimed that the section, or any part of it, is directory, but all concede that each of the requirements was designed to be, and is, mandatory upon the general assembly. A few authorities in support of this conclusion may be referred to: Suth. St. Const. §§ 29, 30, 41, 50, 66, 79; Cooley, Const. Lim. (6th Ed.) pp. 93, 94, 170; State v. Cobb, 44 Neb. 434, 62 N. W. 867; City of South Omaha v. Taxpayers' League, 42 Neb. 671, 60 N. W. 957; Ryan v. Lynch, 68 Ill. 160; Burritt v. Commissioners, 120 Ill. 322, 326, 11 N. E. 180; Massachusetts Mut. Life Ins. Co. v. Colorado Land & Trust Co., 20 Colo. 1, 36 Pac. 793. 2. It scarcely requires argument to demonstrate that to the bill as it passed the house the amendment introduced and passed in the senate is most substantial and material in its effect. As the bill passed the house and came before the senate, the state board of assessors therein created consisted of the county assessors of all the counties of the state; as amended in the upper branch, the several counties of the state were divided into five classes, and from each one of these classes one county assessor was to be selected by the entire body of assessors of the state, and the five assessors so chosen, and five of the state officers, who, under the constitution, constitute the state board of equalization, are to be the state board of assessors. We are quite clear that the amendment was substantial. 3. The object of this requirement that every substantial amendment to a bill shall be printed for the use of the members before final vote is taken is to prevent, so far as possible, fraud and trickery and deceit and subterfuge in the enactment of bills, and to prevent hasty and ill-considered legislation. The printing of such amendments directly brings to the attention of members their character and effect. Thereby, in the judgment of the framers of such constitutional safeguard, the dangers anticipated are greatly lessened, if not altogether avoided. One of the learned counsel who entertains some doubt of the authority or propriety of the judiciary to decide the question as to the character of an amendment. upon oral argument, conceded that where, by failure to print an amendment to a bill, some fraud or trickery or deceit has been practiced upon the members, who thereby have been cajoled or deceived into supporting some measure which, had they known its real character, they would have opposed, or if it was made to appear in a litigated case that the failure to print manifestly occasioned the passing of the bill through the general assembly contrary to the real intent of that body, the courts might investigate and determine whether the amendment was so substantial as that it should be printed, and, if it was, set aside the enactment. When this concession is made, it seems to us that it would follow that there exists the same right of the courts to determine the question when hasty and ill-considered legislation results or may result from the failure to print a given amendment. But the real question is not whether, as a matter of fact, fraud or deceit has been practiced, or hasty or inconsiderate legislation been passed, but it is whether the amendment which was not printed as the constitution requires is, in law, deemed by the court to be substantial. If so, a bill that goes through the general assembly, carrying such an amendment, is not constitutionally passed, and the mandate of the constitution makes it nugatory, even though in a particular case the court might see that the evil consequences sought to be prevented had not ensued. Hence it may not be enforced, even though the members of the legislature dispensed with the printing upon a mistaken supposition that the amendment was not substantial. If either house of the general assembly may for itself conclusively determine whether or not any amendment is a substantial one, then all the benefits of this clause would be lost, and its effect altogether frittered away; for the mere neglect or refusal of that body to have any amendment printed would be equivalent to its determination that the amendment was not substantial; and, if that decision was final, then, by a majority vote, the most substantial amendment that can be conceived of might be ingrafted upon a bill, and the members not have the benefit of a printed copy before them before finally voting on the bill itself. The case nearest in point that we have been able to find is that already cited upon another proposition in 20 Colo. 1, 36 Pac. 793. The precise question here was not then before the court, but the act there considered was claimed to be in violation of section 22 of article 5 of the constitution. One of the points sought to be made was that the amendment not having been printed, the act was void; but the court disposed of the contention by saying that it did not make a substantial, or any, change in the effect of the act, and "consequently is not such an amendment as the constitution requires to be printed." That decision, in its logical effect, is authority for the proposition that the question as to whether or not an amendment is a substantial one is judicial, and not legislative; for, if it was a legislative question, the court would probably have put its decision upon that ground, and not upon the ground that the amendment was not, in the opinion of the court, a substantial one. Impliedly, also, the effect of this decision is that, if the amendment had been a substantial one, the constitution requiring that it should be printed before the vote upon the bill was taken, the act as so amended would have been void, had not such amendment been printed before such vote was had. If therefore it be a fact, as assumed by the governor, that the senate amendment in question was not printed for the use of its members before the final vote was taken on the bill, the enrolled act as submitted to us contravenes that clause of section 22 of article 5 of the constitution relating thereto. (25 Colo. 540) COLORADO FUEL & IRON CO. v. PRYOR. 1. The consideration of a mining lease was a royalty on the coal mined and an agreement of the lessee to withhold pay of its employés to cover goods sold them by the lessor should he open a store on the land. Held that, conceding the last agreement to be void as against public policy, the royalty clause was separate and enforceable, and hence the entire lease was not tainted. 2. One taking a lease of a tenant in common cannot avoid the lease because the lessor could not lease without his co-tenant's consent, the latter not having interfered with the lessee. 3. Prospecting near or on lands leased for coal mining failed to disclose coal at the depth it should exist as determined from an adjoining mine. A hole was drilled with a diamond drill near the south line of the land, and another near the east line. A 6-foot vein was struck at 285 feet in the latter, but in the former no coal of value was struck at twice the depth. A slope was commenced on the northeast of the land 2,925 feet from the latter hole, and a 6-foot vein opened and exposed several hundred feet towards this land. Several witnesses were of the opinion that this vein extended under the land. Held, that a finding that there was coal on the leased land was justified. 4. To prove coal under leased land was of merchantable qaulity, witnesses testified that coal from an adjoining slope was not marketable; that the expense of removing the impurities made its mining impracticable. Other witnesses testified that it was good for steam and domestic purposes, and improved as the slope extended into the leased land. It had been mingled and sold with coal from an adjoining mine of the same vein, from which thousands of tons had been mined and sold. The lessees kept the water out of the slope for two years after mining stopped, never offered to cancel the lease, or claimed the coal was inferior, but gave, as an excuse for not working, that there was no market. Held, that the conflict was such as to prevent disturbing the finding of the trial judge. 5. To entitle a lessor to recover substantial damages for failure to operate under a mining lease providing for a royalty on the coal mined as a consideration, the lessor must, in addition to the fact that merchantable coal existed on the land, show that it could be mined with profit, after deducting the royalty. Appeal from district court, Pueblo county. Action by A. M. Pryor against the Colorado Fuel & Iron Company. There was a judgment for plaintiff, and defendant appeals. Reversed. Appellee bases his right to a recovery on a lease of an undivided one-half interest in designated lands, which provided that the lessee, for a definite period, should enter upon the demised premises, and work them in manner necessary to good and economical mining of coal; that, for the purpose of putting them in condition for such mining, work should commence on a specified date, and be prosecuted with reasonable diligence. Lessee was required to pay a fixed royalty on each ton mined. The lease also provided that the lessee, as a further consideration for its execution. in case the lessor opened a store on the leased premises, should, upon terms and conditions similar to those existing in another contract, to which reference was made, make stoppages on its pay rolls in his favor for all goods sold by him to the employés of the lessee, and that no privileges of a similar character should be extended to any other person so long as the lessor continued to keep a store upon these lands. Appellee was the lessor, and from facts pleaded, which are not controverted, appellant has become liable as lessee, and will be treated as such. It is averred in the complaint that the lands demised contain large and valuable deposits of merchantable coal, which can be worked and extracted at a profit by the reasonable expenditure of money; that under this lease the lessee entered upon the premises. opened up a vein of coal, and has since held and retained possession, and by the exercise of reasonable diligence, and the expenditure of a reasonable amount of money, could have extracted and mined from these premises 1,000 tons of coal per day; that it has failed to use reasonable diligence to put the premises in working order for the mining of coal, and to work them in manner necessary to good and economical mining, but, on the contrary, has ceased operations, and discontinued all efforts to prosecute mining on these lands, or to comply in any respect with the terms of the lease. For answer appellant denied that the lands in question contained coal of a merchantable quality, or that, by the exercise of reasonable diligence, or the expenditure of a reasonable amount of money, it could have extracted and mined coal from these lands at a profit; and for a first separate defense averred that the terms and conditions of the lease relating to the privileges granted the lessor, as evidenced by the agreement mentioned in the lease, and set out in hæc verba, rendered the lease illegal and void, for the reason that it conferred upon appellee a monopoly in trading with the employés of the lessee; and for a second separate and distinct defense averred that the lessor ought not to be allowed to maintain the action, because he was not the sole owner in fee of the premises described in the lease at the time of its execution, but only a tenant in common of an undivided one-half interest in the leased lands; and by way of cross complaint alleged that, after due and diligent exploration, it had ascertained that the premises did not contain coal, either in quality or quantity, to justify working and operating for coal-mining purposes; and that to carry on and prosecute such work on these premises would entail a net loss. To the first and second separate defenses a general demurrer was interposed by appellee, and sustained. On trial to the court of the issues made by the complaint, answer, and cross complaint, the findings were for appellee, and judgment rendered dismissing the cross complaint, and that appellee recover the sum of $3,850. The purport of the evidence, as bearing upon the issuable facts, will be found in the opinion. John M. Waldron and D. C. Beaman, for appellant. Yeaman & Gove and M. G. Saunders, for appellee. GABBERT, J. (after stating the facts). The two principal questions for review, as presented by counsel for appellant, are: First. Should the demurrer to the first and second separate defenses have been sustained? Second. Did the court err in finding the issues and rendering judgment in favor of appellee? 1. In support of the proposition that the demurrer to the first separate defense should not have been sustained, it is argued that the conditions of the lease which granted appellee special privileges in the way of trading with the employés of appellant were illegal, because they conferred upon him a monopoly of the sale of merchandise to such employés, and are, therefore, against public policy; and that this illegality taints the entire lease, and renders it void. The contract mentioned in the lease is fully set out in this plea, but it is not deemed necessary to refer to its provisions. It is the general rule that if the consideration of a contract, or any part of it, is illegal, no promise based upon such illegal consideration can be enforced; but if there is a good and valid consideration, for which another promises to do two things, one legal and the other illegal, the promisor is held to do that which is legal, unless the two are so intermingled they cannot be separated (Railroad Co. v. Taylor, 6 Colo. 1; 1 Pars. Cont. *457); or, when the transaction is separated by the parties into two agreements, one legal and the other not, the former can be enforced, and the transaction sustained pro tanto (W. U. Tel. Co. v. Burlington & S. W. R. Co., 3 McCrary, 130, 11 Fed. 1, and note). The lease, in express terms, provided for the payment of a specified royalty on each ton of coal mined. This was a good and valid consideration for the execution of the lease on behalf of the appellee. As a further consideration, it provides what special privileges should be granted him by the lessee in the event he engaged in keeping a store on the demised premises. This agreement is distinct and severable from that which relates to the payment of a fixed royalty. It amounted only to a promise by the lessee what it would do in the event the lessor engaged in the mercantile business on the leased premises. Whether the lessor kept a store or not in no manner affected the royalty which lessee was to pay for the coal mined. The two promises on the part of lessee were distinct, and related to separate agreements. The penalty for the violation of each would be entirely different. The one can be sustained without sustaining the other; and therefore the agreement relating to the store, if void by reason of illegal conditions which It contemplated (a point upon which no opinion is expressed), is severable from that providing for the payment of a royalty, and in no manner affects the right of the appellee to a recovery in this action. It is contended that no valid grant of the right to mine and extract coal was ever conferred upon appellant. This proposition, it is urged, is presented by the demurrer to the second special defense, for the reason that it appears from its averments that the lease in question only purports to convey a right to mine coal to an undivided one-half interest in the premises named, which is of no force or effect, because one tenant in common cannot grant such a right without the consent of his Co-owners. The question sought to be raised by this defense, and argued, is, what right has a tenant in common to mine and extract coal from lands, or what liability does he incur in so doing, without the consent of his co-tenants? This proposition is not presented. There is no question here between the lessee and the owners in the demised premises not joining in the lease. The contract entered into on behalf of the lessor and lessee certainly bound each. It is not stated in this defense that the latter has been prevented from mining coal on the demised premises by those in whom the remaining title in fee is vested. The terms and conditions of the lease were in |