of defendant passing along its track. From termining whether the engineer exercised due the testimony it appears that openings exist- care in preventing it being injured when so ed in the fence along the right of way as caught. But merely because an animal may alleged in the complaint; that the fence on have been killed by a locomotive of the deeither side converged and connected with the fendant on or near such a bridge does not ends of the bridges as charged; that plain- establish negligence in the absence of proof tiffs' cattle strayed on the right of way regarding the manner the locomotive which through the openings in the fence and were killed it was operated. The animals were killed on or near the several bridges men- not killed by the bridges, but by locomotives, tioned. It is conceded that defendant was and there is no proof that the several ennot under any obligation to fence its right gineers operating them did not exercise due of way; but, having done so, it is claimed care to prevent collisions with the cattle. on behalf of plaintiffs that it was required So that, even if the maintenance of the fence to so construct its fence or keep it in such and its connection with the bridges in the repair as would prevent cattle from gaining manner charged and proven might in a paraccess to the right of way, and, as the fence ticular case give rise to a cause of action, converged at each bridge and connected with yet, unless the injury complained of is traceits ends so that cattle of plaintiffs inside able thereto as a cause, it is immaterial what of the fence passing along the right of way degree of negligence the conditions thus would necessarily reach the track and brought about might constitute, when it does bridges and were there killed, negligence not appear that such negligence was the is alleged and proven. There was no eyewit-proximate cause of the killing of the cattle. ness to the killing. There is no allegation No liability attaches on account of neglior proof that any of the cattle were in real gence unless damage results from it. D. & or apparent danger at any time until struck R. G. Co. v. Dunn, 46 Colo. 150, 103 Pac. by a locomotive. There is no evidence that 387; C. & S. Ry. Co. v. Beeson, supra. the fence or bridges had anything to do with their movements in going upon the track or bridges. There is nothing, either in the complaint or proof, to indicate where they were when the trains which killed them came in sight, or when they came upon the track. They may have been on the right of way near the several bridges and attempted to cross the track immediately in front of an engine. The cattle could have been near or upon the track or in close proximity to the bridges, just as they probably were if the fence had not been constructed. So that, in order to sustain the verdict, we would have to assume that, when the respective trains which killed them approached, they were entangled in the bridges, or it appeared they might attempt to cross the track in front of the engine, and that the engineers were guilty of negligence in failing to check the speed of their train, and thus avoid killing them. A verdict based upon conjecture and inference, or upon the bare fact of killing, cannot be upheld. Chicago, B. & Q. R. R. Co. v. Church, 49 Colo. 582, 114 Pac. 299; Burlington & M. R. Co. v. Campbell, 20 Colo. App. 360, 78 Pac. 1072. [3, 4] Counsel for plaintiffs rely upon D. & R. G. Co. v. Robinson, 6 Colo. App. 432, 40 Pac. 840, where conditions similar to the fence and bridges in the case at bar were mentioned as a trap. That case held this was a proper subject of inquiry if the want of outlet was the cause of an animal's destruction. Such is the construction given that case in C. & S. Ry. Co. v. Beeson, 19 Colo. App. 241, 74 Pac. 345. If an animal was fleeing from an approaching train, the fact that it might become entangled in an open bridge upon which the track was main [5, 6] In addition to the causes of action we have considered, plaintiffs declared upon two others, designated the eighth and ninth, which at the conclusion of the testimony they voluntarily dismissed. To establish its defense to these causes the defendant introduced the testimony of three witnesses, one of whom resided at Kansas City and the others in Kansas. These witnesses attended at the request of defendant. Each filed an affidavit claiming attendance and mileage fees. The court allowed them for attendance and mileage from the point on the Colorado line, where the railroad over which they traveled to reach the place of trial crossed that line. Defendant claims that the witnesses should have been allowed mileage from their respective places of residence. The plaintiffs have assigned cross-error on the allowance of mileage. Fees of witnesses either for attendance or mileage are purely statutory. Section 2543, Revised Statutes 1908, provides the mileage to which a witness is entitled in going from his place of residence to the place named in the subpoena. This, of course, refers to witnesses subpoenaed within the state. There is no provision allowing a witness mileage from his residence outside of the state. Mileage is allowed a witness when subpoenaed because in obedience to the command of the court he has incurred expense in traveling to the place named in the subpena. But when he is not under any obligation to attend a trial, the expense he incurs in traveling is voluntary, and he is not entitled to mileage. In other words, it is clearly not the purpose of the law to compensate a witness for the expense of travel, unless incurred in obedience to the command of the court, and hence it follows that a wit subpoenaed. Cases in point are State v. Willis, 79 Iowa, 326, 44 N. W. 699; Stern v. Herren, 101 N. C. 516, 8 S. E. 221; Fish v. Farwell, 33 Ill. App. 242; Fisher v. Burlington C. R. & N. Ry. Co., 104 Iowa, 588, 73 N. W. 1070; State v. Wilder, 196 Mo. 418, 95 S. W. 396; Buckman v. Mo., K. & T. Ry. Co., 121 Mo. App. 299, 98 S. W. 820. The court erred in allowing mileage, and the crosserror of the plaintiffs is sustained. Several other questions are urged by counsel for the railroad company which it is not necessary to consider. The judgment of the district court on the six causes of action is reversed, and the cause remanded for a new trial, and the taxation of costs for mileage is vacated. Judgment reversed. GARRIGUES and SCOTT, JJ., concur. PEOPLE, to Use of BOARD OF COM'RS OF times mentioned therein a corporation authorized to become surety on official bonds in Colorado; that on December 27th, 1910, defendant Brown, as principal, and the National Surety Company, as surety, executed and delivered their signed, sealed and obligated bond, conditioned to pay the People of the State of Colorado $5,000, provided, "If the said Robert S. Brown, as such County Clerk and Recorder, shall faithfully perform all the duties of his office and shall pay over the moneys that may come into his hands as such clerk, as required by law, and shall deliver to his successor in office all the books, records, papers and other things belonging to his said office," then this obligation shall be void; that the bond was duly approved and accepted as required by law; that defendant Brown entered upon the duties of his office in January, 1911, and occupied same until January 13th, 1913; S. Brown in such office under and by virtue "that during the continuance of said Robert of such election and qualification he received divers sums of money as such Clerk and Recorder, from divers persons and the County of Arapahoe, as fees and emoluments of his said office, amounting to the sum of $17,342;" that his full and lawful salary and the lawful expenses of his office were paid to him, and that over and above his salary and expenses there remained in his possession $1,395.25; that demand was duly made that he pay over this balance to Arapahoe County, but that he failed to do so, contrary to [Ed. Note.-For other cases, see Counties, the terms of his bond; and that defendant Cent. Dig. §§ 106, 122-134; Dec. Dig. 94.1 did not faithfully perform and execute the duties of his office of Clerk and Recorder, but failed to pay into the treasury of Arapahoe County the balance of the fees and emoluments of his office, and fraudulently converted and appropriated to his own use $1,395.25. Judgment was prayed for the penalty of the bond, as a debt, $5,000, and $1,395.25, as damages, with interest. ARAPAHOE COUNTY, v. BROWN et al. (No. 8516.) (Supreme Court of Colorado. Feb. 7, 1916.) CORDER-ACCOUNTING FOR FEES-SUFFICIEN- A complaint filed by the state for the use of the board of commissioners of a county, alleging that during defendant's term as county clerk he received various sums of money as fees and emoluments of his office, and stating the amount thereof and that he failed and refused to turn over such amount to the county on de mand, stated a cause of action for an accounting to the proper authorities. 2. PLEADING 214-DEMURRER-ADMISSION. A demurrer admits the allegations of complaint which are well pleaded. [Ed. Note. For other cases, see Pleading, Cent. Dig. 88 525-534; Dec. Dig. 214.] Error to District Court, Arapahoe County; H. S. Class, Judge. Action by the People of the State of Colorado, for the use of the Board of County Commissioners of the County of Arapahoe, against Robert S. Brown and the National Surety Company. Judgment for defendants on demurrer dismissing the complaint, and plaintiff brings error. Reversed and remanded, with direction to permit defendants to answer the complaint. Samuel W. Johnson and Charles E. Friend, both of Denver, for plaintiff in error. W. E. Clark, of Denver, for defendants in error. The bill of particulars, filed upon motion made therefor by defendants, sets out the dates and amounts of payments made to defendant Brown, as such Clerk and Recorder, by the Record Abstract Company and the Arapahoe Abstract Company, totaling $1,395.25. Defendants demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action against defendants or either of them. The demurrer was sustained and judgment entered thereon, dismissing the complaint, to which ruling exception was reserved. Upon election to stand by the complaint, judgment was entered in favor of defendants, which plaintiff brings here for review on error. BAILEY, J. The complaint was filed in the District Court of Arapahoe County on the 13th of February, 1914, and alleges, in substance, that defendant Brown was elected to the office of County Clerk and Recorder of Arapahoe County on November 8th, 1910, [1, 2] The theory upon which the demurrer for a term of two years from and after Jan- was sustained does not appear from the recnary 10th, 1911; that defendant, The Na- ord, and we are at a loss to know what it tional Surety Company, is and was at all was. The complaint alleged, among other things, "that during the continuance of said Robert S. Brown in such office under and by virtue of such election and qualification he received divers sums of money as such Clerk and Recorder, from divers persons and the County of Arapahoe, as fees and emoluments of his said office," stating the amount thereof. All the allegations of this complaint which are well pleaded are admitted by the demurrer as true, and they are unquestionably sufficient to constitute a cause of action. The gist of it is that the defendant Brown received divers sums of money by virtue of his office as Clerk and Recorder of Arapahoe County, which he failed and refused to turn over to the county upon demand. These facts are plainly contained in the allegations of the complaint, and a cause of action is stated, which is not obnoxious to general demurrer, for it is settled law in this jurisdiction that a county clerk must account to the proper authorities for all moneys which come into his hands by virtue of his office. Board of County Commissioners v. Shelden, 149 Pac. 616. The judgment is reversed and the cause remanded, with directions to permit the defendants to answer the complaint if so advised. Judgment reversed. 5. JUDGMENT 715 RES ADJUDICATA res Cent. Dig. §§ 1244-1246; Dec. Dig. 715.] 6. EVIDENCE 44-JUDICIAL NOTICE-FIL- The Supreme Court takes judicial notice of the fact that a bond ordered to be filed as a condition to the right of a party to an office was never filed. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 66; Dec. Dig. 44.] 7. EVIDENCE 43-JUDICIAL NOTICE-DISMISSAL OF APPEAL. The Supreme Court takes judicial notice that a cause brought up on writ of error was dismissed by it for failure to prosecute, leaving the judgment below in full force and effect. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig. 43.] Error to District Court, City and County of Denver; James H. Teller, Judge. Action by Henry J. Arnold against Hiram E. Hilts. Judgment for defendant, and plain GABBERT, C. J., and WHITE, J., con- tiff brings error. Affirmed. cur. (No. 8535.) ARNOLD v. HILTS. (Supreme Court of Colorado. Feb. 7, 1916.) 1. COUNTIES 61-COUNTY OFFICERS-ABOLITION-CONSTITUTIONAL PROVISIONS. The adoption of Const. art. 20, creating the municipal corporation of the city and county of Denver, and the formation of such municipal corporation, instantly terminated and abolished within that territory all county offices and officers. [Ed. Note.-For other cases, see Counties, Cent. Dig. § 86; Dec. Dig. ~61.] 2. OFFICERS 40-COUNTY ASSESSOR - DE FACTO OFFICER. In such case, where the office of county assessor, though abolished by the formation of the municipal corporation, apparently continued until a decision overruling a former erroneous decision and declaring the office abolished, the incumbent meanwhile was at best nothing more than a de facto officer of a municipal office. [Ed. Note. For other cases, see Officers, Cent. Dig. § 62; Dec. Dig. 40.] 3. COUNTIES 61-ABOLITION OF OFFICE RIGHTS OF DE JURE OFFICER. In such case, where the office to which a county assessor had been elected and of which he was the de jure officer was abolished, his rights as de jure officer terminated. [Ed. Note. For other cases, see Counties, Cent. Dig. § 86; Dec. Dig. 61.] 4. OFFICERS 95 "DE FACTO OFFICER' RIGHT TO SALARY. A county assessor, who after the constitutional abolition of his office was at most only a de facto officer, could not recover the salary of Joshua Grozier, of Denver, for plaintiff in error. Fred W. Parks, of Denver, for defendant in error. BAILEY, J. The plaintiff in error was elected to the office of County Assessor in November, 1910. Defendant in error was appointed to the municipal office of Assessor on December 14th, 1911, by the mayor, and immediately qualified as such. Plaintiff in error seeks to recover from the defendant in error salary which was paid the latter as Assessor of the City and County of Denver from December 14th, 1911, until his retirement from office, February 23rd, 1912, alleging and contending that he, and not defendant in error, was during such time the Assessor and entitled to such salary. There is no dispute as to the facts, and but two questions are presented for consideration and determination: First. Was Arnold the de jure Assessor, and therefore entitled to collect the salary in question? and Second. Are the questions involved res judicata? [1] In People v. Cassiday, 50 Colo. 503, 117 Pac. 357, it was declared that by the adop tion of article 20 of the Constitution and the formation of the municipal corporation of the City and County of Denver, all county offices and all county officers as such within that territory were abolished, except as affected by the decision of this court in People ex rel. v. Johnson, 34 Colo. 143, 86 Pac. 233, was dismissed by this court for failure to prosecute, leaving the judgment which declared Hilts to be the de jure officer, and ousting Arnold from office, in full force and effect. Both propositions involved must therefore be determined in favor of Hilts, and the judgment affirmed. the holding in the latter case being held er-, notice of the fact that no such bond was roneous in the Cassiday Case. It necessarily ever filed, and that thereafter that cause follows that upon the adoption of that constitutional amendment and the formation of the City and County of Denver, the office to which Arnold claims to have been elected instantly terminated, but by reason of the erroneous decision in the Johnson Case, supra, such office apparently legally existed until the subsequent declaration of this court in the Cassiday Case, supra, which gave full vigor and effect to the Constitution. Therefore, when the Cassiday decision became effective, which was November 23rd, 1911, it was a judicial pronouncement that the office of County Assessor, which had apparently been in existence up to that time, had been abolish-| ed. The general rule is that whenever the office ceases to exist the rights of the incumbent terminate. 29 Cyc., pages 1390, 1391, and cases cited. [2-4] It is therefore plain that Arnold, under the state of facts existing at the time Hilts was appointed and qualified, at best was nothing more than a de facto officer of a municipal office. This was in effect held in Arnold v. Hilts, 52 Colo. 391, 121 Pac. 753, Ann. Cas. 1913E, 724. The office to which Arnold had been elected and of which he was the de jure officer was abolished by constitutional amendment, and with the officer went the de jure officer and his rights terminated. 29 Cyc. 1393. It is settled law that only a de jure officer can recover salary. It being clear that Arnold was not such officer, he can therefore in no event recover herein. Throop on Public Officers, §§ 510, 661, 662; Matthews v. Supervisors, 53 Miss. 715, 24 Am. Rep. 715; 29 Cyc. 1393; Stott v. City of Chicago, 205 Ill. 281, 68 N. E. 736; Garfield v. Crocker, 63 Kan. 272, 65 Pac. 273, citing cases; People v. Tieman, 30 Barb. (N. Y.) 193. Judgment affirmed. GABBERT, C. J., and WHITE, J., concur. DEWEY et al. v. SAFFER. (No. 8520.) (Supreme Court of Colorado. Feb. 7, 1916.) 1. CHATTEL MORTGAGES 34-SUIT TO ENFORCE EQUITABLE MORTGAGE-PLEADING. A complaint, alleging that defendant executed his note for $500 to plaintiff with interest, that defendant purchased livery stock for $1,500 evidenced by a bill of sale to himself, that to secure payment of the note the bill of sale was assigned and delivered to plaintiff with the unmortgage lien on the property therein described derstanding that it should operate as a chattel to secure payment of the note, and that if defendant should pay the note when due the bill of sale should be void, with a prayer to adjudge the bill of sale a chattel mortgage and a first lien on the property, but not alleging that the property was in fact pledged as security for the debt, did not state facts sufficient to entitle plaintiff to the relief sought. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 24, 38; Dec. Dig. 34.] 2. CHATTEL MORTGAGES 39 — EQUITABLE MORTGAGE-SUFFICIENCY OF EVIDENCE. In suit to have a bill of sale to defendant adjudged a chattel mortgage and a first lien upon the property described therein to secure the amount of defendant's debt to plaintiff on a note, with interest, held not of that clear, certain, and satisfactory character necessary to establish an equitable mortgage. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 45; Dec. Dig. 39.] Error to District Court, Garfield County; John T. Shumate, Judge. Suit by Andrew Saffer against Jesse C. Dewey, with intervention petition by Frank ants bring error. Reversed and remanded, with directions to dismiss the complaint. C. W. Darrow and John L. Noonan, both of Glenwood Springs, for plaintiffs in error. John E. Ethell, of Glenwood Springs, for defendant in error. [5-7] After surrender of the office to Arnold, which Hilts did under the opinion of this court in Arnold v. Hilts, supra, he began a suit in quo warranto in the District Court of the City and County of Denver, to have the question of title to the office de-J. Hess. Judgment for plaintiff, and defendtermined. In that suit the District Court found that Hilts was the lawful Assessor of the City and County of Denver, and that Arnold had no right or title to the office. That judgment has never been reversed or superseded, but is to this day in full force and effect, and whether right or wrong is controlling in this case on the question of res judicata. A writ of error was sued out to that judgment from this court and the case brought here. Supersedeas was denied to that part of the judgment that declared Arnold not the Assessor, and was granted to the judgment so far as it adjudged Hilts to be the Assessor of the City and County of Denver and entitled to the possession of the office, upon the filing of a bond in the sum of $250. But this court takes judicial BAILEY, J. [1] On May 13th, 1914, Andrew Saffer, plaintiff below and defendant in error here, began suit against J. C. Dewey, one of the plaintiffs in error, alleging in substance that on November 25th, 1912, Dewey executed to Saffer his promissory note for $500.00, due in three months, with interest at eight per cent. per annum, such interest having been paid to May 25th, 1914; that on said 25th day of November, Dewey purchased of one Eugene Blowers certain livery stock for $1,500.00, evidenced by bill of sale, for the payment of the note in question. from Blowers to Dewey; that to secure payment to the plaintiff of the $500.00 note the bill of sale from Blowers to Dewey for the livery stock described therein was forthwith assigned and delivered by the latter to Saffer; that it was understood that the bill of sale in the hands of Saffer was to operate only as a chattel mortgage lien on the property therein described to secure the payment of the indebtedness; that if Dewey should pay the indebtedness at the time and in the manner agreed upon in the note, then the bill of sale should be null and void. The prayer was that the bill of sale be adjudged a chattel mortgage and a first lien upon the property for the amount of the debt and interest, and for costs. The defendant Dewey interposed a general demurrer to the complaint, which was on August 27th, 1914, overruled, to which order objection was made and exception reserved. We think the complaint fails to state facts sufficient to entitle plaintiff to the relief sought, and which by the decree of court was given. It will be observed that this suit was brought some eighteen months after the alleged assignment of the bill of sale in question. There is no averment in the complaint that at the time of the commencement of the suit Dewey owned the property described in the bill of sale. In order to impress this bill of sale as an equitable mortgage upon the property, if it could be done at all, it is clear that an averment of ownership in Dewey at that time was an absolute essential to make the complaint sufficient. And in order to warrant a decree such as was sought in this case the averments should have been direct, positive and certain that Dewey undertook and agreed that the bill of sale so assigned should constitute a lien on the property, and that the property was in fact pledged as security for the payment of the debt. No such definite and certain averments are made. Upon this point the most that is alleged is that it was understood that the bill of sale in the hands of Saffer was to operate only as a chattel mortgage lien on the property therein described. Understood by whom, between whom? How understood? It is clear that there is no such direct, definite and certain allegation that Dewey had so agreed as to warrant relief of the character sought. That Dewey consented to this is only to be inferred by his permitting Saffer to take the bill of sale away. There is nothing in this testimony to support or warrant the conclusion that Dewey ever at any time undertook or agreed that the bill of sale, if such a thing were possible under any state of facts, should constitute in the hands of Saffer an equitable mortgage upon the personal property described therein. To establish the fact of an equitable mortgage the proof must be clear, certain and satisfactory upon every point necessary to consummate such a result. It is by no means clear or certain from the testimony that Dewey intended to give Saffer a lien on the livery outfit as security; the proof falls far short of being satisfactory, convincing or conclusive on this point. It rather tends to show or indicate that there was no such agreement or undertaking. Saffer in this action is either entitled to a decree establishing a lien upon the property in question or to no relief whatever. He sues for this specifically, and that is what the court gave him. He seeks no money judgment; indeed, at the time this suit was brought the note was not due. In Baird v. Baird, 48 Colo. 506, at page 509, 111 Pac. 79, at page 80, the court, in speaking of the character of proof required to establish an equitable mortgage, had this to say: "But it should be observed that, to establish this fact, the proof must be clear, certain, satisfactory, unequivocal, trustworthy, convincing and, some cases say, conclusive; in short, as stated in some former decisions of this court, the case must be made out with that fulness and precision which is essential to a conviction in a criminal case-beyond a reasonable doubt." Accepting the testimony in support of plaintiff's case as true in its entirety, it is wholly insufficient to establish his right to have an equitable lien impressed upon the property in question. This disposition of the case renders it unnecessary to discuss the rights of Hess under his intervention petition. The judgment is reversed and the cause remanded, with directions to dismiss the complaint. Judgment reversed. GABBERT, C. J., and WHITE, J., concur. MARTIN v. PEOPLE. (No. 8331.) (Supreme Court of Colorado. Feb. 7, 1916.) 1. CONSTITUTIONAL LAW 46-CONSTITUTIONALITY OF STATUTE - DETERMINATION NECESSITY. [2] But if by any stretch of the imagination this complaint could be held sufficient, the proofs of the plaintiff utterly fail to show that the minds of the parties ever met upon the proposition. Saffer testified that he asked Dewey for a chattel mortgage and Dewey declined to give it; and he further testified that he asked Dewey for an assignment in writing of the bill of sale in question, and Dewey failed and declined to make any such assignment. His testimony further shows that he himself picked up the bill of sale and told Dewey that he would hold it as security | 46.] Where a conviction under Acts 1911, p. 527, for failure to support a minor child must be reversed for errors at the trial, the Supreme Court will not consider the attack upon the constitutionality of the act. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. |