the treasurer and the banks intending that he should retain the same as his own, and believing that he was entitled thereto. Such intention and belief cannot affect the ownership of the interest, or its essential character as a portion of the public funds in the hands of the treasurer. Notwithstanding such intention and belief, the interest was in fact paid to the state treasurer and belonged to his said office, within the meaning and intention of the bond in suit. A lawful act cannot be rendered unlawful merely because the actors intended to follow it by an unlawful act. So, when the treasurer lawfully receives money which of right belongs to his office, he receives it by virtue of his office, and cannot, by forming and executing an intention to retain the money as his own, divest the act of receiving the money of its official character. The fact remains that he received it virtute officii. This is a most salutary rule, which should never be departed from unless clearly abrogated by some statute. We find no such statute in this state. his hands a considerable time. In 1886 the statute was repealed, and another enacted in its place, requiring that the portion of the fund not required for immediate use should be paid to another officer. For some insufficient reason (as the court held) the fund was all paid to, and the surplus allowed to remain in the hands of, such trustee until 1890, notwithstanding the legislation of 1886. During the whole ten years such trustee deposited the surplus funds in his hands with banks, and received and retained to his own use interest thereon. The action was to recover the amount of such interest, and was brought against the trustee and his sureties. In its opinion the court states the rule to be that where, as in that case, the officer is absolutely liable to account for the fund, he is not liable for any interest he may realize thereon. The reason given for the rule is that in such case, as between the state or county and the officer, the fund must be treated as his money, and not that of the state or county. Having hereinbefore determined that the public funds coming to the hands of Treasurer McFetridge by virtue of his office belong to the state, the Kentucky case ceases to be valuable as an authority that the treasurer is not accountable to the state for interest lawfully received by him on deposits of the public funds. In that case it was held that for interest realized on the fund up to 1886, during which time the whole fund was lawfully in the hands of the trustee, he was not liable on his bond, but that he was so liable for interest received by him after that date, when the fund was unlawfully in his hands. In respect to the interest accruing after 1886, the fund out of which it grew was in the hands of the officers colore officii only, and the great weight of authority is, as was held in the Wisconsin cases above cited, that in such case there is no liability on the official bond of the officer. The foregoing seem to be the cases most relied upon to sustain the proposition that Treasurer McFetridge and his sureties are relieved from liability on his official bond for the interest claimed, because of his absolute liability to the state for the public funds received by him by virtue of his office. With all due deference to the able courts which have asserted or intimated the existence of the alleged rule under consideration, we are constrained to say that in our opinion they have failed to demonstrate, either by authority or upon principle, that the same has any place in our jurisprudence. It has already A large majority of the adjudications been held herein that the public funds were cited in the arguments of the case, aside from lawfully deposited by Treasurer McFetridge those specifically commented upon herein, with the banks, and that he lawfully received may be classified as follows: (1) Those from such banks compensation by way of in- which hold that the officer owns the public terest for the use of such deposits. Under funds which came to his hands, and for that those circumstances, and in the absence of reason cannot be required to account for any statute separating the interest from the gains derived therefrom. (2) Those which fund and diverting it to other uses, such in- hold that, although the officer is not the terest was an accretion or increment to the owner of the funds, if he unlawfully use the fund, thus becoming a part of it, and logi- same for his own profit, his gains cannot be cally and necessarily belongs to the owner recovered in an action on his official bond. of the fund, to wit, the state. It is imma- (3) Those which hold that he is not such terial that the treasurer stipulated for inter-owner, and that his liability to account for est on the deposits, or that the banks paid the public funds coming to his hands is abhim such interest without stipulation, both solute, or at least equal to the common-law Many cases have been cited which sustain, more or less directly, the views above expressed on this branch of the case. The following, in which public officers have been held to account for accretions to the public funds in their hands, are a few of them: New York v. National Broadway Bank, 31 N. Y. S. R. 803, affirmed, 126 N. Y. 665; Earl of Lonsdale v. Church, 3 Bro. Ch. 41; Hunt v. State, 124 Ind. 306; Willis v. Commissioners of Appeals, 5 East, 22; United States v. Mosby, 133 U. S. 273, 33 L. ed. 625, 24 Ct. Cl. 14; Richmond County Suprs. v. Wandel, 6 Lans. 33, affirmed, 59 N. Y. 645; Hughes v. People, 82 111. 78; Cooper v. People, 85 Ill. 417; Chicago v. Gage, 95 Ill. 593, 35 Am. Rep. 182. Probably some of the above decisions were influenced by special statutes; at least, such seems to be true of the Illinois cases. Yet it is believed that in all those cases the general rule of law is laid down and enforced, which, as applied to this case, is that the interest on the deposits in question received by Treasurer McFetridge was an increment to the funds of the state deposited by him in banks in his official capacity, and that the right to such interest was thereby vested in the state, and on receipt thereof by Treasurer McFetridge it became and was money in his hands belonging to his said office. He not having accounted therefor, this action by the state on his official bond to recover the same may be maintained. liability of a common carrier for the safe transportation and delivery of goods committed to it for carriage, and yet that for any profit or gain made by the officer out of the use of such funds he must account to the owner of the funds, whether the same was made lawfully or unlawfully. (4) Those which hold that if the officer, not being such owner, makes gains out of the public funds by the lawful use thereof, such gains attach to the fund by way of accretion or increment, and become a part of it, and belong to the owner of the fund, and, if not accounted for, an action at law may be maintained on the official bond of the officer, against him and his sureties, to recover such gains. Having determined that the fund thus deposited in banks by Treasurer McFetridge belonged to the state, we assume the accuracy of the rule held by the cases in the second class above mentioned, and under the rule of the cases in the fourth class, which we approve, we hold Treasurer McFetridge and his sureties liable in this action for the interest in question. there may be in the above argument, as ap plied to the interest retained by state treas urers before 1878, we think the omission of the term "perquisites" from the revision of that year has no significance when applied to such retention of interest after that date. When the statute provides that the salary of the treasurer shall be "in full for all services rendered by him in his official capacity," it cuts off all fees and perquisites as effectually as though the same were specially prohibited. After such statute took effect, but for other provision therein, the treasurer could not lawfully have exacted fees. But because the legislature desired to continue the collection of fees for the benefit of the state, it provided therefor, and for the payment of such fees into the general fund. This provision is retained in the revision. True, the same act provided, in form, that "perquisites" received by him should also be paid into that fund. The provision was nugatory because, unless the treasurer might retain to his own use what had theretofore been deemed perquisites, the same ceased to be such, and there was nothing for the provision to apply to. It was in this view, presumably, that the revisors and legislature omitted from the revision the term "perquisites," thus elimi nating a useless and inoperative provision. The contention that Treasurer McFetridge was authorized to retain to his own use the interest received by him on deposits of state funds, based on the use and omission of that term in such statutes, must be negatived. Brief reference will now be made to the argument that certain legislation in 1876 went upon the theory that theretofore interest on deposits was a lawful perquisite of the treasurer, which was cut off by such legislation, and restored by the Revision of 1878. In February, 1876, Mr. Keuhn, who had just entered upon a second term as state treasurer, in reply to a resolution of inquiry, stated to the senate that during his first term as such treasurer he received between $24,000 and It has also been suggested that weight $25,000 as interest on deposits of state funds, should be given to the alleged fact that it which he claimed the right to retain as his was well known-was really a matter of own money in accordance with the alleged common knowledge-that all the state treas practice of his predecessors in office. In urers for more than thirty years before 1891, March of that year the legislature enacted constantly received and retained to their own chapter 341 of the Laws of 1876, fixing the use interest on deposit of public funds, withsalary of the state treasurer at $5,000 per out objection by the legislature or other auyear, and providing that such salary should thorities of the state. However the fact may be "in full for all services rendered by him have been before 1878, there is no sufficient in his official capacity." It was also pro- proof that the people or legislature, or the vided therein that "all fees and perquisites executive or administrative officers of the received by him from every source shall be state, generally, had such knowledge, alpaid into the state treasury and become a part though, as a witness puts it, "it was in the of the general fund." Section 3. Also that air," that the practice prevailed after the such act should take effect on the first Mon- legislation of 1876 took effect. There is day in January, 1878. Section 7. These pro- much testimony tending to show that the visions are retained in the Revision of 1878 practice was kept from the knowledge of the in sections 157, 170, subd. 6, except the public as far as practicable. Moreover, if words "and perquisites" are omitted. The every citizen and officer of the state knew argument is that the interest in controversy that the practice prevailed, it would be diffi is a "perquisite," and that because the leg-cult to show that a usage which takes from islature did not cut off such perquisites until the end of Mr. Keuhn's second term as state treasurer, and made no provision requiring him or any of his predecessors to account for the interest received by them, respectively, Upon due consideration our conclusions on deposits, the inference is plain that the upon the whole case are (and the court so legislature of 1876 were of the opinion that holds) that the funds which Treasurer Mcsuch interest was a lawful perquisite of the Fetridge deposited with banks were the proptreasurer, and by plain implication author-erty of the state; that in making such deized Mr. Keubn to continue to appropriate posits as treasurer, and stipulating for and the same to his own use through his second receiving interest thereon, or receiving interm; and, further, that, by the omission from the Revision of 1878 of the provision which required the treasurer to account for "perquisites," the legislature intended to restore his right thereto. Whatever force the state, and gives to one of its officers, without authority of law, large sums of money belonging to the state, could be upheld as a valid custom. terest thereon without such stipulation, he did not violate any law of the state; that such interest so paid to him, being an accre tion or increment to the fund, increasing it by the amount of interest thus paid thereon, belongs to the state; that Treasurer McFet- | sums of interest on the public funds received ridge received such interest by virtue of his office of state treasurer, and the same belonged to his said office; that his failure to account therefor to the state or to deliver the same to his successor in office, as required by law, is a breach of the conditions of his official bond; and that this action can be maintained on such bond, against him and his sureties therein, to recover the interest thus received by him and unaccounted for. In determining this case the court has adopted many of the views of the learned circuit judge, but with holds its approval of others. Inasmuch as we arrive at the same conclusion reached by him, although by different processes of reasoning, it is unnecessary further to discuss the propositions in his very able opinion which we are not prepared to adopt. Motions for rehearing are made in these cases upon the ground that interest should not have been allowed upon the interest moneys received by the treasurers from the date of the expiration of their respective terms of office, but only from the time of the commencement of these actions, or, at most, from the time when demand was made. The ground is taken that these demands of the state were in doubt and unliquidated, and consequently did not bear interest, and reliance is placed upon Marsh v. Fraser, 37 Wis. 149, and Shipman v. State, 44 Wis. 458. Both of the cases cited were for the recovery of claims strictly unliquidated and incapable of ascertainment by mere computation. Such is not the case here. It has already been held by the court, in these very cases, that the by the treasurers from the banks became, Motions denied. fendant's land to furnish water for an electric-[tween those using the water for the samelight plant. Reversed. Statement by Goddard, J.: purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using A hearing was had before a jury in pur-the water for domestic purposes shall have suance of the provisions of the eminent the preference over those claiming for any domain act, and they found (1) that it was other purpose, and those using the water for and is necessary for petitioner herein to take agricultural purposes shall have preference and appropriate the lands of defendant, de- over those using the same for manufacturing scribed in the petition herein, for the purpose purposes." Id. § 6. "All persons and corof furnishing petitioner with power to run porations shall have the right of way across an electric plant to generate electricity for public, private, and corporate lands for the the purpose of lighting the town and build- construction of ditches, canals, and flumes for ings of Manitou with electric light; (2) that the purpose of conveying water for domestic it was and is necessary for petitioner herein purposes, for the irrigation of agricultural to take and appropriate the lands of defend-lands and for mining and manufacturing purant, described in the petition, for purposes poses, and for drainage, upon payment of of irrigating the lands of petitioner lying just compensation." Id. § 7. under said ditch described in the petition; and assessed the actual value of the land taken at $12.50. Mr. A. B. McKinley for appellant. Goddard, J., delivered the opinion of the court: The questions presented by the record are: First. Has the petitioner a right to condemn a right of way over the lands of the defendant for the purpose of carrying water to furnish power to operate an electric-light plant? Second. Has he a right to have a ditch across said land for irrigation purposes for his own use under the facts shown? It is apparent from the foregoing provisions that our constitution is, in certain particulars touching the right to take private property for private use, exceptional, and, for certain enumerated uses, changes the accepted rule that the use to which private property may be condemned must be public. The right of eminent domain is an exercise of Sovereign power, and is generally conferred by legislative enactment; yet à constitutional provision that, in express terms, affirmatively confers the right for particular uses is likewise an expression of the sovereign will, and grants the right as effectually as if expressed in an act of the legislature, and can be enforced when such grant is supplemented by an act of the legislature providing The first proposition depends upon the ef- the means for its exercise. "A constitution fect to be given to the following constitution is but a higher form of statutory law, and it al provisions: "That private property shall is entirely competent for the people, if they not be taken for private use unless by consent so desire, to incorporate into it self-executof the owner, except for private ways of ing enactments. These are much more comnecessity, and except for reservoirs, drains, mon than formerly, the object being to put flumes, or ditches, on or across the lands it beyond the power of the legislature to ren of others, for agriculture, mining, mill-der them nugatory by refusing to enact legising, domestic, or sanitary purposes. Bill lation to carry them into effect. Prohibitory of Rights, art. 2, § 14. "That private prop- provisions in a constitution are usually selferty shall not be taken or damaged, for pub- executing to the extent that anything done lic or private use, without just compensa- in violation of them is void. But instances tion. Such compensation shall be ascertained of affirmative self-executing provisions are by a board of commissioners of not less than numerous in almost every modern constituthree freeholders, or by a jury, when required tion." Willis v. St. Paul Sanitation Co. 48 Minn. by the owner of the property, in such manner 140, 16 L. R. A. 281. See also State v. Weston, 4 as may be prescribed by law, and until the Neb. 216; Thomas v. Owens, 4 Md. 189. It same shall be paid to the owner, or into court becomes necessary, therefore, to determine for the owner, the property shall not be need- whether the purpose relied on in this prolessly disturbed, or the proprietary rights of ceeding, as expressed in the first proposition, the owner therein divested; and whenever is within the class of uses enumerated in secan attempt is made to take private property tion 14 of article 2, and section 7 of article for use alleged to be public, the question 16, of the Constitution, above cited. whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. Id. 15. "The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided. Mining and Irrigation, art. 16, § 5. "The right to divert unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as be It is insisted by counsel for appellant that these constitutional provisions should be read in the light of the conditions existing at the time they were adopted, and be construed in relation to the evident purposes they were intended to subserve; that the necessity for irrigation, and the paramount industry of mining, were in contemplation by the framers of the constitution, and the term "milling" was used in section 14 of article 2 with relation to those purposes, and its meaning should be restricted to milling ore and grain. We think the term "milling" as used in that provision, should be given its modern acceptation, and held as synonymous with the " word "manufacturing," if not of broader sig- | given its well-understood meaning, and come nification, and including that term. Web- clearly within the exceptions enumerated in ster, after defining the word "mill," says: section 14, art. 2, and be given its full sig"In modern usage, the term 'mill' includes nification in section 7, art. 16, and also in various other machines, or combinations of section 6, Id., wherein it is designated as machinery; as cotton mills, one of the beneficial uses for which an apfulling mills, propriation of water may be made. With this view the different sections may be harmonized and effect given to both, a result always to be reached in the construction of such instruments if practicable. “The rule applicable here is that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory. This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication." Cooley, Const. powder mills, etc., to some of which the term 'manufactory' or 'factory' is also applied.' It was held in Carlin v. Western Assur. Co., 57 Md. 515, 40 Am. Rep. 440, that a flouring mill came within the term "manufacturing establishment," as used in a policy of insurance. In discussing this branch of the case at page 526, Ritchie, J., says: "The right of the plaintiff to run his mill at night depends upon whether the mill was a manufacturing establishment.' But what is to be deemed a manufacturing establishment; or, in other words, what is the signi- | fication of the verb 'to manufacture,' is for the court to define. The counsel for appellant contended that making flour from wheat, reasoning from the etymology of the word, and the nature of the process, is not manufacturing. But whilst, from its derivation, the primary meaning of the word 'manufact- Lim. 72. That the words "manufacturing ure' is making with the hand, this defini-purposes," used in these several provisions, tion is too narrow for its present use. Its should be taken in their ordinary acceptation, meaning has expanded as workmanship and art have advanced; so that now nearly all artificial products of human industry, nearly all such material as have acquired changed conditions or new and specific combinations whether from the direct action of the human hand, from chemical processes devised and directed by human skill, or by the employment of machinery, which after all is but a higher form of the simple implements with which the human hand fashioned its creations in ruder ages, are now commonly designated as manufactured.' Burrill defines 'to manufacture' the process of making a thing by art, and cites Butler, J., in Boulton v. Bull, 2 H. Bl. 463, 471. Abbott gives its meaning as 'whatever is made by human labor. either directly or through the instrumentality of machinery.' The definition in Webster is, 'to make or fabricate from raw materials by the hand, by art or machinery, and work in forms convenient for use.' Worcester has in substance the same definition. A case di rectly applicable is that of Schriefer v. Wood, 5 Blatchf. 215, in which animal charcoal, produced by the process of burning bone, in the same manner that wood is exposed to the action of fire, to produce common charcoal, and bone dust produced by pulverizing or grinding bones, are decided to be 'manufactures of bone. The question here considered was involved in that case, and the decision accords with the view we have expressed. We think, therefore that plaintiff's flour mill, driven as it was by steam, and furnished with a middling purifier, bran-duster, belting and other machinery, was clearly a 'manufacturing establishment.'" We cite the foregoing at length, as it upholds our view of the meaning to be given to the words "manufacturing purposes," and also shows that the purpose of appellee is within the ordinary meaning of those terms. So regarded, the word "manufacturing" can be we have no doubt; and the purpose of peti- The further question of the right of petitioner, under the facts in evidence, to avail himself of this right for irrigating his land, is not sustained. The delay of two years in completing the ditch to such land, in view of the admitted fact on the part of petitioner that he does not at the present time need the same, or intend to utilize it, is a virtual abandonment of the right for that purpose. The court instructed the jury that the measure of defendant's damages was the true and |