of the state shall forever remain inviolate and intact; that the interest thereon only shall be expended in the maintenance of the schools; that no part of this fund, principal or interest, shall ever be transferred to any other fund, or used or appropriated except as in this section provided; that the treasurer shall be the custodian of this fund; that the same shall be securely and profitably invested as may be by law directed; and, that the state shall supply all losses thereof that may in any manner occur. From this language it follows as stated by this court in In Re Loan of School Fund, 18 Colo. 195, 199. "The security of the investment is of the first and highest importance.

It may in some cases be difficult to determine in advance whether a proposed investment of the school fund will be secure as well as profitable. In general, legislation respecting such matters must be left to the wisdom and discretion of the general assembly and of the chief executive of the state."

It appears that in the past large amounts of this fund have been invested in these warrants, which, up to the time of the adoption of this amendment, have proven of no present value to the school fund in the securing of interest thereon, although they call for the payment of six per cent. per annum. Such being the case, it was thought proper, both by the legislature and the people, to, in this way, pay off this investment and provide for the re-investment of the principal in better securities, viz., bonds of the state. It will be noted that the act provides for the absolute payment of all the accrued interest up to date and a substitution or exchange for the warrants of interest bearing bonds drawing interest at the rate of three per cent. per annum; hereafter, the school fund is to have bonds. with a provision in the constitution for the payment of the interest and the ultimate payment of the principal. Suppose, instead of requiring the deposit of these bonds in the school fund in payment of the principal of the warrants held therein at the time of the exchange, the act had provided for the sale of all the bonds and the payment to the school fund in money of the

entire amount of the indebtedness, and also authorized the investment of that money in the bonds of the state, or of the United States, or other securities drawing interest at the rate of three per cent. per annum, the like result could probably have been reached.

It must be conceded that by legislative enactment these funds could be invested in interest bearing securities at three per cent. per annum, or even a less amount. As a general rule it is a correct enunciation of the law that a thing can not be done indirectly which can not be done directly; is not the converse likewise true, that a thing can be done indirectly which can be done directly?

The payment of all interest upon these warrants held in the school fund having been provided for, and authority having been given in this manner for the taking up of the warrants and the investment of the principal in the bonds of the state, bearing interest at the rate of three per cent. per annum, we are of opinion that section 3 of article IX of the constitution has been fully complied with in this respect, and, that the whole people of the state have declared their determination to keep, and by this act have kept, faith with the provisions of the enabling act relative to the school fund under which it was created.

If it had any bearing upon the questions, we might concede the justness of the criticism as against the whole people of the state in repeatedly heretofore rejecting proposed constitutional amendments, providing for the adjustment and refunding of these outstanding warrants, and, thereafter in the adoption of this one which is much more liberal in its provisions than the ones heretofore rejected. But as this is a matter which the entire people had the right to decide for themselves, in the manner desired by themselves, and having so decided it, the policy or wisdom of the method is something with which this court has no concern, regardless of the previous history pertaining to it; otherwise, to give such matters any weight would be to have the judicial department of the state substi

tute or take into consideration its judgment as contra-distinguished not only to that of the legislature, but to that of the whole people declared by and in a constitutional amendment. This ought not to be, and is something which all the authorities hold can not be done.

The judgment is affirmed.,

Decision en banc.

CHIEF JUSTICE CAMPBELL not participating.

Affirmed.

[No. 6420.]

MULQUEEN V. LANNING.

1. QUIETING TITLE-Plaintiff's Possession-The constructive possession, which by presumption of law attends the title where there is no adverse possession, suffices. But where the plaintiff's title is denied and the record shows no evidence of title, an affirmative decree in his favor will be reversed.

2. EVIDENCE-Record of Tax Sales-The record of a tax sale is admissible to contradict, as to the date of the sale, the recitals of a deed founded thereon.

3. TAX SALE-Void Deed-A tax deed of lands upon a sale to the county made on the first day of the sale is void. It neither sets in motion the statute of limitations, nor affords any foundation to a plea of laches when the paramount owner sues to quiet his title.

4. APPEALS-Objections Not Taken Below The record of a tax sale being offered to impeach the recitals of a deed based thereon, objection to its admission was made, because not the best evidence, and incompetent for the purpose of the offer. On appeal it was held that the party would not be heard to insist that the record did not conform to the requirements of the statute.

Appeal from Washington District Court.-Hon, H. P. BURKE, Judge.

Mr. R. H. GILMORE and Mr. JULIUS C. GUnter, for appellant.

Mr. JOHN F. MAIL, for appellee.

Mr. JUSTICE BAILEY delivered the opinion of the court:

The suit is by W. H. Lanning against James P. Mulqueen, to quiet title to the southwest quarter of section 2, township 2 north, range 51 west, located in Washington county. Complaint is in the usual form, alleging ownership in fee and possession, that the defendants asserts an adverse interest in the land, which is inferior and subject to plaintiff's title, and prays that the defendant be required to set forth his adverse claim, that the cloud so created be removed and title quieted. The answer, after general denial, alleges, in substance, that the defendant is the owner of the land in fee, his title being based on a tax deed dated and recorded February 1, 1901, founded on the tax sale of October, 1896, and mesne conveyances; that the land is vacant and unoccupied; that he has paid taxes since the sale in 1896; and that neither the plaintiff, nor any of his predecessors in interest, had, prior to the commencement of this action, paid or offered to pay the taxes, penalties or interest accrued thereon to the defendant. Also it is alleged that the plaintiff's right of action, if any, arose more than five years before this action was commenced. There is also a plea of laches for failure of plaintiff to sooner assert his claim. By a supplemental answer a new tax deed, dated April 4, 1906, and recorded on the 10th of that month, conveying the same land, based on the same tax sale, is set up, by virtue of which, with other conveyances, defendant claims title. For replication there is a general denial of the allegations of the answer, the amendment thereto, and the supplemental answer. Specially replying to averments of the supplemental answer, which sets forth the later tax deed, it is alleged that the recital thereof, to the effect that the land was sold on the 26th day of October, 1896, after having been theretofore offered from day to day and from the beginning of the sale on the 19th day of October, is wholly false, and was at the time of the making of such deed known to the defendant to be false; that the land was in truth

and in fact struck off to the county of Washington on October 19th, 1896, the first day of the general tax sale in that year for that county.

At the trial, to support his claim, plaintiff offered in evidence a patent from the United States, for the land in controversy, to one Hamilton; next a purported trust deed from Hamilton to W. H. Lanning, trustee, for the use of Thomas Frahm, dated February 1, 1888, conveying the land in controversy, recorded in book 10, at page 53, of the records of Washington county, to secure the payment of a note for $300; a trustee's deed by W. H. Lanning, trustee, to W. H. Carnahan, conveying the land in question, under a foreclosure of the above purported trust deed; and then a quit-claim deed therefor from Carnahan to the plaintiff.

To establish title, and as the foundation thereof, the defendant relies wholly upon the tax deed of April 4th, 1906. To impeach the recitals of that deed, as to the date of the sale in question, plaintiff offered in evidence the record book of tax sales for 1896 of Washington county. The judgment and decree was for plaintiff, quieting his title as against the defendant, cancelling the tax deeds described in the complaint and requiring plaintiff to refund all moneys paid out by the defendant on account of taxes and penalties, with interest. Defendant brings the case here on appeal, seeking a reversal of the judgment and decree.

If evidence had in fact been adduced, and put into the record, in conformity with plaintiff's offer, a prima facie case of ownership in fee would have been made out. When this suit was begun the land, by the admission of both parties, was vacant and unoccupied. The ownership of plaintiff in fee, if established, would carry with it constructive possession, which for the purposes of an action of this sort is sufficient, in the absence of actual entry and adverse possession by another.Phillipi v. Leet, 19 Colo. 246, 253; Morris and Thombs v. St. Louis National Bank, 17 Colo. 231, 239; Mitchell v. Titus, 33 Colo. 385, 387; and Keener v. Wilkinson, 33 Colo. 445.