but, not having done so, it cannot deny the compensation during such time on account of the prevalence of smallpox. Libby v. Inhabitants of Douglass (Mass.) 55 N. E. 808; Gear v. Gray (Ind. App.) 37 N. E. 1059; Dewey v. School Dist. (Mich.) 5 N. W. 646. There were some other points of minor importance raised in the argument, which we do not deem it necessary to comment upon. It is ordered that the writ of mandate be issued, commanding Josiah Barnett, treasurer of the board of education, to pay to the plaintiff, out of the funds in his hands as such treasurer, upon the presentation of the warrant for $56 issued by said board to the plaintiff, and which is referred to in the affidavit of plaintiff, and in the answer of the defendant, and that the defendant pay the costs of this proceeding, taxed at lars. BARTCH, C. J., concurs in the result. dol MINOR, J. I concur in the opinion of Mr. Justice BASKIN except as to that part having reference to the power of the board to close the schools during the smallpox epidemic. As to that part of the opinion I withhold my assent. (22 Utah, 1) STATE ex rel. NICHOLS v. CHERRY, Judge. 1. The legislature may legislate upon any subject as to which there is no constitutional restraint, or as to which the paramount law does not speak.1 2. Section 3129, Rev. St. 1898, providing how, when, and where a jury may be demanded, is not in violation of section 10, art. 1, of the constitution, but is a proper exercise of legislative power, and valid. 3. Under section 3129, Rev. St. 1898, providing that in a proper case a jury may be demanded "orally in open court at the time of setting," and where such a case is called for setting three days before the commencement of a term, and a jury is demanded, and the fees paid, the statute has been complied with; and, notwithstanding a rule of court requiring such demand at least five days before the commencement of a term, the party making such demand is entitled to a jury, for a rule of court imposing limitations and requirements not imposed by statute is null and void. the plaintiff in the case of George Nichols against the Oregon Short-Line Railway Company, which is pending in the district court; that the action is one at law; that on February 3, 1900, the defendant herein called the same to have it set for trial; that at the time of such setting the plaintiff appeared, and in open court orally demanded a jury, and paid to the clerk the "sum of $5, the amount of the jury fee required by law"; that the judge of the court then and there refused the demand of the plaintiff, and announced that the case would be tried by the court without a jury; and that the judge still insists that he will so try the cause, and refuses to permit the same to be set for trial before a jury. An alternative writ of mandate was issued, and thereupon the defendant filed a demurrer to the petition, on the ground that it does not state a cause of action. The matter was then argued, and submitted for decision on the merits. The principal question is whether the plaintiff, in the action before the district court, waived a jury. The defendant insists, and the court so held, that under the provisions of the constitution and statute of this state relating to such a case, and the rule of the district court, the plaintiff waived his right to a jury. The plaintiff maintains that the statute and rule of the court upon this subject are in conflict with the constitution, but that, even if the statute is in harmony with that instrument, he has complied with both the statutory and constitutional provisions in his demand for trial by jury. Section 10, art. 1, of the constitution, as to this subject, provides, "A jury in civil cases shall be waived unless demanded." The case which gave rise to this proceeding is a civil action, and therefore falls within this provision of the fundamental law, which, however, as may be seen, contains no direction as to how, when, or where the demand for a jury may or shall be made. The command is simply that in such a case a jury shall be waived unless demanded." Therefore the questions as to how, when, and where such demand shall be made are within the province of the legislature to determine, because upon any subject as to which there is no constitutional restraint, or as to which the paramount law does not speak, the legislature may legislate. Kimball v. City of Grantsville City, 19 Utah, 368, 57 Pac. 1, 45 L. R. A. 628. As to these questions the legislature, in section 3129, Rev. St., provided, as follows: "Either party to an action of the kind enumerated in the preceding section who desires a jury trial of the same, or of any issue thereof, must demand it, either by written notice to the clerk prior to the time of setting such action for trial, or within such reasonable time thereafter as the court may order, or orally in open court at the time of such setting, and must at the same time deposit with the clerk the sum of five dollars; whereupon it shall be the duty of the court to order jurors to be in attendance at the time set for the trial of the cause. Money paid in accordance with this section shall be taxable as costs in the action. But the failure of a party who has demanded a jury to appear at the trial, shall be deemed a waiver of such demand." The "preceding section" referred to in this section relates to civil actions, and contains a clause similar to the above constitutional provision. It will be noticed that in the section quoted the legislature provided how, when, and where the demand may be made. According to the provisions contained therein, either party to a civil action may demand a jury by written notice or orally. If the demand be made by written notice, such notice must be given to the clerk prior to the time of setting the action for trial, or within such reasonable time after such setting as the court may order; and, if it be made orally, it must be done in open court at the time of such setting. In either case the demand, to be effectual, must be accompanied with a deposit of five dollars, and this deposit is doubtless to defray the expenses which will be occasioned because of the demand. If no demand be so made in writing or orally, or if a party, who has made demand properly, fail to appear at the trial, in either event there will be a waiver of the jury. These provisions of the statute are not in violation of the constitution, but are the proper exercise of legislative power, and are, therefore, valid. Under constitutional and statutory provisions like ours the trial of a civil case at law by a jury is a personal privilege, which either of the parties litigant may exercise or not, as he chooses. In the instance at bar the petition shows that the plaintiff orally, in open court, at the time of setting the case for trial, demanded a jury, and paid the sum of five dollars, receiving the clerk's receipt therefor. This was clearly a compliance with the statute, and entitled the plaintiff to have the case tried before a jury. The fact that rule 9 of the court required the five dollars to be paid, and the demand to be made five days before the term, cannot avail the defendant in this case. Such rule cannot control where the setting of causes is made within less than five days before the commencement of the term, because, under the statute, as we have seen, the deposit of the jury fee may be made at the time of the setting, when the demand is made. In so far as rule 9 imposes limitations and requirements as to the right of trial by jury not imposed by the statute, it is null and void. If, however, the demand and the deposit had not been made in accordance with the statute, the jury would have been waived. Principles and questions similar to those herein considered have been applied and decided likewise by other courts. Hellman v. McWilliams, 70 Cal. 449, 11 Pac. 659; Farwell v. Murray, 104 Cal. 464, 38 Pac. 199; Knight v. Farrell, 113 Ala. 258, 20 South. 974; Plank-Road Co. v. Hopkinson, 69 Mich. 10, 36 N. W. 797; Chasteen v. Martin, 81 N. C. 51; Sale v. Meggett, 25 S. C. SAME v. FORBES et al. (Supreme Court of Utah. March 31, 1900.) CONTRACT-PURCHASE OF MINING PROPERTY -OPTION COUPLED WITH LICENSE - PERFORMANCE BY ONE PARTY-SPECIFIC PERFORMANCE-EQUITABLE TITLE-OWNERSHIP -SURFACE RIGHTS-RIGHT TO MINE-PARTITION. 1. A contract by plaintiff to sell, and by defendants' predecessors in interest to buy, certain mining property, which contract is personal, and does not, in terms, run to heirs and assigns, and under which the prospective grantees, although given possession, could neither sell nor assign, without grantor's consent, until they had be come entitled to a deed by performance of certain conditions, one of which was to pay grantor a certain sum out of the property, is a mere option to purchase, with a license to extract ore, and not a covenant running with the land. 2. It is only when a party holding a contract of purchase has, by performance on his part, placed himself in a position to compel specific performance, that he holds the equitable title. 3. The surface of mineral lands may be owned by one person, and the mineral underneath by another, each with an indefeasible title. When so owned, they constitute separate corporeal hereditaments, with all the incidents of separate ownership, and the surface land may be partitioned the same as where there is no mineral under it. (Syllabus by the Court.) Appeal from district court, Salt Lake county; Ogden Hiles, Judge. Actions by Robert K. Smith against R. T. Jones and others and by the same plaintiff against J. L. Forbes and others. The cases were consolidated, and judgment rendered for plaintiff, and defendants appeal. Affirmed. In each of these cases the action was brought by the plaintiff to quiet title in him to an undivided one-fifth interest in the surface of a certain parcel of land situate in Bingham Canyon, Utah, and for partition thereof. By agreement the two causes were consolidated, their issues being identical, and the same decree was entered in each. The plaintiff introduced in evidence a patent from the United States. dated July 30, 1881, and issued to the plaintiff, Thomas Gibbons, John McGuire, and the heirs of William Gibbons, for the McGuire & Co.'s placer mining claim. The premises described in the complaint were included in the patent, and the patent conveyed to the plaintiff an undivided one-fifth thereof. The defendants introduced in evidence an agreement, dated October 17, 1877, in which the plaintiff agreed to convey, by quitclaim deed, to John McGuire, Alexander Maberry, Frank Webb, Thomas Gibbons, and William Gibbons, his one-fifth interest in a certain drain ditch for $200 cash in hand paid, and for the further sum of $5,000 to be paid to him, as will appear from an extract of the agreement, which reads as follows: "And the said parties of the second part, in consideration of the above-described placer mining property and drain, are to take, have. and receive into their possession on the date of this lien first above written quiet and peaceable possession of said interest, and further agree to pay to said party of the first part the sum of five thousand ($5,000) dollars, to be paid only from the proceeds of ore, gold dust, or minerals taken therefrom, upon the following conditions, to wit: The first payments to be made from said source are the payments of all labor therein performed at the rate of four dollars to the man for each day's labor thus performed; second, to pay all the just debts now owing by said company to different parties; third, and last, to pay said sum of five thousand dollars from the proceeds of said mine after making the above payments as mentioned. And it is further understood that the said party of the first part shall have the right at all times, himself, or his legal representatives, to visit and inspect the said mine, and be present and examine at any or all washings or cleaning up of the gold dust; it being further understood that the gold dust thus taken out for said payments is from the entire mine; it being also understood that said parties of the second part cannot sell or quiet this interest until this agreement is fully satisfied, or by consent of said party or his legal representative." The evidence shows that John McGuire, Frank Webb, Thomas and William Gibbons were dead before this suit was brought; that A. Maberry had conveyed his interest in the property; that none of the parties to the contract, except the plaintiff, have now any interest in the land; and there is nothing to show that any assignment of the contract was made. The court found that the plaintiff is the owner of one-fifth interest in the land, as tenant in common with the owners of the balance, and entered a decree to that effect. It also decreed that the land be partitioned. Thereupon the defendants appealed. W. C. Hall and Powers, Straup & Lippman, for appellants. C. W. Morse and J. R. Bowdle, for respondent. spondent insists that the contract was merely an option to purchase, with a license to extract mineral from the land. An examination of the instrument shows that it was personal to McGuire and associates. It did not, in terms, run to heirs or assigns. The prospective grantees mentioned therein under its terms could neither sell nor assign the interest to be conveyed to them without the grantor's consent, until they had performed all the conditions, and become entitled to the deed. One of these conditions was that, before conveyance of the land to them, they were to pay the owner or grantor $5,000 out of the ore to be mined, in addition to the $200 cash paid at the time of making the contract. It is true, McGuire and associates were entitled to and received possession of the premises under the agreement for the purpose of mining ore, but the legal title to the land or interest was not conveyed to them by that instrument. The owner simply bound himself to convey in the event of the performance of the conditions; but, as the conditions were never performed by the parties to the contract, he was never devested of the legal title. None of the defendants except Maberry were parties to the agreement, and Maberry, although served with summons, defaulted, and, it appears, claims no interest in the contract. None of the parties with whom the agreement was made have been in possession of the land, or have extracted ore from it, for several years. Under these circumstances we are of the opinion that the contention of the respondent is correct. The contract was simply an option to purchase, by its terms not assignable, and was not in the nature of a covenant running with the land. It therefore cannot avail the defendants in this case. There was conveyed no absolute title to or interest in the land, and there was no privity of estate in the land between Smith and McGuire and associates, nor was any created by the contract. "When one who makes a covenant with another in respect to land neither parts with nor receives any title or interest in the land at the same time with and as a part of making the covenant, it is at best a mere personal one, which neither binds his assignee nor inures to the benefit of the assignee of the covenantee, so as to enable the latter to maintain an action in his own name for a breach thereof." 2 Washb. Real Prop. (4th Ed.) 284; Spencer's Case, 1 Smith, Lead. Cas. 174; Hurd v. Curtis, 19 Pick. 459; Petroleum Co. v. Weare, 44 Ohio St. 604, 9 N. E. 845; Van Rensselaer v. Bonesteel, 24 Barb. 365. Nor was the nature of the contract such as to create an equitable title in the purchasers. Smith could not enforce performance on the part of those with whom he contracted. The consideration of $5,000 was to be paid only out of the mineral to be produced, and the mineral was a thing not in esse, but formed a part of the earth, and the agreement contained no provision by which its production could be compelled, and there was no obligation to convey the land until the consideration was paid. The agreement was but an option to purchase, and gave to the prospective purchasers a right to extract ore. "A mere contract or covenant to convey at a future time on the purchaser performing certain acts does not create an equitable title. It is but an agreement that may ripen into an equitable title. When the purchaser performs all acts necessary to entitle him to a deed, then, and not till then, he has an equitable title, and may compel a conveyance. Bisp. Eq. § 365. When the purchaser is in a position to compel a conveyance by a bill in chancery, he then holds the equitable title. Before that he only has a contract for a title when he performs his part of the agreement." Chappell v. McKnight, 108 Ill. 570; Warv. Vend. p. 187, § 2; Sutherland v. Parkins, 75 Ill. 338. Nor is the contention of appellants that suit for a partition of the surface ground merely cannot be maintained well founded. The law is well settled that, as to mineral lands, the surface may be owned by one person and the mineral underneath by another, and that each owner may have an indefeasible title. When the surface and underlying mineral strata are separately owned, they constitute separate corporeal hereditaments, with all the incidents of separate ownership. This being so, the surface land, when owned separately from the mineral, may be partitioned the same as where there is no mineral underlying it. "Where there are mines, slate quarries, and the like, in land, there may be a double ownership of such land, one of the mines, the other of the soil, -and these may be held by different persons by separate and independent titles, each having a fee or lesser estate in his respective part." 1 Washb. Real Prop. (4th Ed.) 17; 1 Lindl. Mines, § 9; Caldwell v. Fulton, 31 Pa. St. 475; Railroad Co. v. Sanderson, 109 Pa. St. 583, 1 Atl. 394; Canfield v. Ford, 16 How. Prac. 473; Marvin v. Mining Co., 55 N. Y. 538; Harris v. Ryding, 5 Mees. & W. 59; Green v. Putnam, 8 Cush. 21. We do not deem it important to discuss any other question presented in this case. The judg ment is affirmed, with costs. MINER and BASKIN, JJ., concur. STRAIGHT v. McKAY.1 (Court of Appeals of Colorado. April 9, 1900.) ACTION AGAINST WIFE-FAMILY EXPENSES. Plaintiff leased a dwelling house and the furniture therein to defendant's husband for a term of one year; the lessee agreeing to pay a monthly rental, and surrender the property in good condition at the end of the term. The lessee and his family vacated the premises before the term expired, and during their occupancy the furniture was damaged. Held, in an action against the wife to recover damages for the 1 Rehearing denied May 14, 1900. breach of the lease, that the rents chargeable to the husband after the premises were vacated. and the damage to the furniture, were not within Sess. Laws 1891, pp. 238, 239 (3 Mills' Ann. St. § 3021a), giving a right of action against the wife for family expenses. Appeal from Arapahoe county court. Action by D. E. Straight against Mrs. Beulah McKay. From a judgment for defendant, plaintiff appeals. Affirmed. D. E. Straight and Joshua Grozier, for appellant. Charles T. Brown and Edmund J. Churchill, for appellee. THOMSON, J. This suit was begun before a justice of the peace, and went to the county court by appeal. That court gave its judgment to the defendant, and the plaintiff has brought the judgment here for review. There were no written pleadings, and the nature and limits of the plaintiff's claim must be sought in the evidence. On the 15th day of March, 1897, the plaintiff and J. H. McKay entered into a written contract whereby the former leased to the latter a dwelling house, and the household furniture which it contained, for the term of one year from the 1st day of April, 1897, at a monthly rental of $70; the lessee agreeing also to pay all assessments for water rent levied during the term of lease, as well as all charges for heating and lighting the premises, and at the end of the term to return the property in as good order and condition as it was in when he received it. The rent for April and May was paid. On the last day of May the lessee and his family vacated the premises, and there was no further payment of rent. The plaintiff was unable to procure another tenant until the 1st day of the following September, when he leased the property for $60 per month. MeKay did not pay the water rent, or the charges for lighting the premises; and the plaintiff paid a water bill of $18, and assumed a light bill of $8.65. During the occupancy of the premises under the lease, the furniture, carpets, and furnace were damaged to the amount of $90. The foregoing was all the evidence. This suit was brought against Re . Beulah McKay, the wife of the lessee. covery was sought for $90, the damage to the furniture, etc., and $210, the rent for June, July, and August,-the months during which the premises were idle. In court, the plaintiff's claim, as stated by his agent, was specifically confined to those items, so that the water and light bills, and the reduction in rent to which the plaintiff was compelled to submit when the premises were finally let, are not in the case. It will be seen that the purpose of the action is the recovery of damages for breach of the contract of lease. The plaintiff bases his right to pursue the wife for those damages upon the following satutory provision: "The expenses of the family and the education of the children, are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately." Sess. Laws 1891, pp. 238, 239 (3 Mills' Ann. St. § 3021a). If we correctly understand the position of the plaintiff, it is that the defendant is bound by all the covenants and conditions of the contract of lease, and that her liability for a breach of those covenants and conditions is coextensive with that of her husband. She was not a party to that contract. The covenants and agreements it contained were not hers. So that her liability, whatever it may be, is not a contract liability. A right of action is given against her for debts which she may have no hand in creating, but those debts must be clearly within the purview of the statute. Either husband or wife may incur indebtedness for the family expenses, and for such indebtedness either or both will be liable. But, outside of the expenses of the family and the education of the children, neither can impose an obligation upon the other. Food and clothing are family expenses, and so are luxuries purchased for the use of the family. Such expenses are not confined to necessaries, but, to be family expenses, they must be for things received by the family, or some member of the family. The family requires a house in which to live, and the rent of the house occupied by it is part of the cost of living, and is a family expense. But the rent of a house which the family does not occupy is not a family expense. So long as the defendant and her husband lived in the plaintiff's house, the rent agreed to be paid was a portion of the family expense; but when they left it and went elsewhere the rent chargeable against the husband by virtue of his contract was not a family expense, because the family no longer had the benefit of the house. Damage done to furniture, which might be the subject of an action in tort, or which might be recovered against the husband by virtue of his contract, cannot be classed as a family expense. The husband is bound by the terms of the contract into which he entered, and he will be held to its performance; but the liability of the defendant is of statutory creation, and, as the statute is in derogation of the common law, she cannot be held beyond its letter. An indebtedness for something of which the family or some one or more of its members has had the actual benefit, she can be compelled to pay. It was incurred for family expenses. But an indebtedness for something of which neither the family nor any of its members has had the enjoyment, she cannot be compelled to pay, unless she contracted the debt herself. The statute does not cover such a debt. A number of other states have statutes identical, or nearly identical, in terms, with ours, and those statutes have been the subject of considerable adjudication in those states. We have been referred to a voluminous list of decisions disposing of a great variety of questions arising under those statutes. To review each of those decisions would swell this opinion to undue dimensions. It is enough to say that we have found nothing in disharmony with the views we have expressed, or that would authorize a recovery against the defendant upon the facts of which we are in possession. The judgment will be affirmed. Affirmed. BISSELL, P. J., not sitting. CITY OF DENVER v. DOMEDIAN. (Court of Appeals of Colorado. April 9, 1900.) DRAMSHOPS-WINE-ROOM ORDINANCE - FREQUENTING BY FEMALES. Denver Liquor Ordinance, §§ 11, 12, prohibit dramshop keepers from keeping in connection with or as a part of a dramshop a wine room or other place into which a female shall be permitted to enter, and there be supplied with liquor; and also prohibits such keeper from permitting any female to be or remain in a dramshop, tippling house, or other place where intoxicating liquors are sold, for the purpose of there being supplied with liquor. Defendant kept a saloon, and was also proprietor of a fully-equipped restaurant, used solely as such, in the same building with, and across a hall from, his saloon. Three women entered the restaurant from the street, and were served with meals, and also with wine from the saloon. Held, that defendant was not guilty of violating the ordinance, the restaurant not being kept in connection with, or as a part of, his dramshop. Appeal from Arapahoe county court. Action by the city of Denver against Dolph Domedian to recover a penalty for the violation of the Denver liquor ordinance. From a judgment in favor of defendant, plaintiff appeals. Affirmed. George C. Norris, City Atty., and N. B. Bachtell, for appellant. Felker & Dayton, for appellee. WILSON, J. This was an action commenced by the plaintiff city to recover from the defendant, Domedian, the penalty for an alleged violation of the city ordinance. The title of the ordinance, as given in the abstract, is, "A bill for an ordinance concerning the licensing and regulating of dramshops and tippling houses in the city of Denver." Only two sections of the ordinance have any bearing upon the case, and are necessary to be considered. They are: "Sec. 11. Each and every dramshop or tippling house keeper, licensed under the provisions of this ordinance, who shall, by himself or his agent, clerk or servant, permit any gambling or riotous or disorderly, indecent, or offensive conduct, in or about his place of business or premises, or who shall have or keep in connection with or as a part of such dramshop or tippling house any wine room or other place, either with or without door or doors, curtain or curtains, or screen of any kind, into which any fe |