erty not taken was depreciated by reason of the construction and operation of the railroad. As a guide to the jury the court, in effect, told them that if they found that the location and operation of the railroad affected the property so that it could no longer be used for school purposes, then the measure of damages would be the difference of the value for school purposes and what it would be worth for other purposes; and, if they found that it was not entirely destroyed for use for school purposes, then the damages to be allowed would be the amount of depreciation of the property for school purposes which was caused by the location and operation of the railroad. The jury found the value of the strip taken, by consent of both parties, to be $250, and against such consent found the depreciation of the value of the property not taken to be $2,500. The court instructed the jury not to calculate interest upon the damages found by them, but reserved the right to compute interest thereon after the return of the verdict. After the verdict was returned, the court computed interest at the legal rate upon the whole amount, to wit, $2,750 from the date that respondent took possession of the condemned strip and entered judgment accordingly. After the appeal was taken by appellant, and within the time allowed by rule 26 of this court, the respondent served and filed his assignment of cross-error, alleging that the court erred in awarding. judgment for interest upon the $2,500 damages, and it is now urged that the judgment is erroneous to that extent. It is contended that this case falls within the class of cases where interest cannot be allowed until after verdict and judgment.

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We had occasion to pass upon the question with regard to the allowance of interest in the case of Fell v. U. P. Ry. Co., 32 Utah 101, 88 Pac. 1003. In that case the authorities are, to a considerable extent, collated and reviewed, and we there attempted to state a rule with regard to when and under what circumstances interest, under our statute, would or would not be allowed before verdict and judgment.

Counsel for respondent does not criticise the rule there announced, but insists that this case falls within the class of cases in which we held interest may not be allowed before judgment. The principle involved here, in our judgment, is not distinguishable from the one in the case of Kimball v. Salt Lake City, 32 Utah, 253, 90 Pac. 395, 10 L. R. A. (N. S.), 483, which was decided only a short time after the Fell Case was decided. The Fell Case is referred to in the Kimball Case. In view of the rule laid down in that case we think the trial court was right in allowing interest as it did. In this case the damages had to be ascertained by a legal standard or measure, and in accordance with fixed rules of evidence. The amount of damages the appellant was entitled to recover, and what the jury permitted it to recover, was the diminution of the value of the property when used for school purposes which was caused by the construction and operation of the railroad. It is no doubt true, as counsel suggests, that the operation of the railroad was an elementperhaps the principal element-which caused the damages to the property not taken. It is therefore urged by him that the damages were in one sense incomplete and continuing. Counsel, however, overlooks the fact that this was merely an element in the case which, while augmenting the damages, nevertheless it did not control the principle involved. The principle with regard to ascertaining the damages was precisely the same as if the property had all been taken and appropriated for railroad purposes. In case this had been done the only question would have been the market value of the property, but this market value could have been proved by the same witnesses, and under the same rules of evidence, as the diminution of the value. Again, if we assume that the property would have been made wholly unfit for school purposes, the damages would have been the difference, if any, between the value of the property when devoted to school purposes and what its value would have been for any other purpose for which it was adapted. This value would again.

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have been ascertainable in the same way. If we now apply the rule to a case like the one at bar the diminution of the value is still ascertained in the same way and under the same rules. While the operation of the railroad is not an element in the instance first mentioned, and because it is in the second and third instances, does not affect either the rule of evidence or the certainty of the standard or measure of damages, but goes only to the amount that should be allowed as damages. That amount is fixed, not at what the property is worth at some future time, but at what it was worth at the time the respondent took possession thereof; and the diminution of value, from whatever cause, is also determined as of that time. We, therefore, have a case in which, for the purpose of fixing damages, the injury is complete; the damages are ascertained by the ordinary rules of evidence and according to a known standard or measure of value. And all this must be determined from competent evidence, which is binding upon both the court and jury. The jury, therefore, only had a right to exercise their judg ment within the limits of the evidence upon the question of value. It is not a case where it was left to the jury to determine the amount of damages from a mere description of the wrongs done or injuries inflicted whether to person, property or reputation. Respondent's cross-error, therefore, cannot be sustained, and the judgment must be affirmed.

In view that appellant dismissed and thus abandoned the appeal, all costs of appeal which had accrued up to the time the appeal was dismissed will be taxed to appellant, and all costs that have accrued since the dismissal of the appeal, including the printing of the briefs, will be taxed to respond. ent. It is so ordered.

STRAUP, C. J., and MCCARTY, J., concur.

STATE OF UTAH, ex rel., UTAH SAVINGS AND TRUST COMPANY, a Corporation, Plaintiff, v. SALT LAKE CITY, a Municipal Corporation, JOHN S. BRANSFORD, Mayor of Salt Lake City, J. B. MORETON, City Recorder of Salt Lake City, and GIDEON SNYDER, City Treasurer of Salt Lake City, Defendants.

No. 1992. Decided December 30, 1908 (99 Pac. 255).

1. ELECTIONS-ORDERING ELECTION-NOTICE. The statutory notice of a special election is a matter of substance, and, unless there is a substantial compliance with the statute, the election will ordinarily be held invalid. (Page 34.)

2. ELECTIONS-ORDERING ELECTION-NOTICE. The statutory notice of election performs the function of giving constructive notice to the voter, binding on him, whether he has actual notice or not, and of imparting actual notice to him so that he may participate in the election, and, to be binding constructive notice, the statute must be complied with, to the exent at least that it may fairly and reasonably be said that the purpose thereof has been carried into effect, and this may sometimes be done without a literal compliance with it. (Page 34.)

3. MUNICIPAL CORPORATIONS-ISSUE OF BONDS-SUBMISSION TO VOTE -ELECTION NOTICE. The notice of election authorized by Comp. Laws 1907, sections 308-310, authorizing elections in cities to determine the question of the issuance of bonds for water supply, light, or sewers, and providing that notice of election shall be given by publication in newspapers for a specified time, is jurisdictional, and, without the notice which is the official call for the election, no election can be legally held. (Page 35.)

4. MUNICIPAL CORPORATIONS-ISSUE OF BONDS-SUBMISSION TO VOTE -NOTICE OF ELECTION. A notice of a special election in a city on the question of issuing bonds for water supply and sewers, which gave the date of the election and which stated the place as the city, and which declared that the election should be conducted according to the laws of the state, was published in newspapers for the time prescribed by Comp. Laws 1907, section 309. The polling places were designated by the council, as required by section 890, and the notice required by section 792, providing that each registry agent shall post notices of election within

his district, stating the date and place of election and the hours during which the polls will remain open, was posted for the time required. Held, that the notice of the election complied with the statute. (Page 37.)

5. ELECTIONS-NOTICE-SUFFICIENCY.

An election is not illegal

merely because the proclamation required by Comp. Laws 1907, section 783, requiring the Governor to issue an election proclamation, does not designate the particular polling places at which the voters may express their will, though such proclamation is the official call for the election, (Page 35.)

6. MUNICIPAL CORPORATIONS-ISSUANCE OF BONDS-ELECTIONS-VALIDITY. Under Comp. Laws 1907, sections 308-310, authorizing elections in any city to determine the question of issuing bonds for water supply, sewers, etc., and requiring the council to annually levy a tax to pay the interest on the bonds as it falls due, and to create a sinking fund for their payment, the validity of the bonds of a city for water supply and sewers, authorized at a special election held for the purpose, is not affected by the fact that the ordinance providing for the election declared that the net revenue from the water system should be set apart for a sinking fund for the payment of the bonds, since such statement was not a misrepresentation, as the taxpayers were chargeable with notice of the powers conferred on the council. (Page 39.)

7. MUNICIPAL CORPORATIONS-ISSUANCE OF BONDS-ELECTIONS-VALIDITY. The fact that an ordinance providing for an election in a city to determine the question of the issuance of bonds for a water supply and sewers declared that the net revenue from the water system should be set apart for a sinking fund for the payment of the bonds, while Comp. Laws 1907, section 310, expressly provides that the city council shall annually levy a tax to pay the interest and to provide a sinking fund for the payment of the bonds, did not affect the validity of the bonds authorized, for the erroneous statement in the ordinance was, at most, an irregularity which did not affect the validity of the election in the absence of a showing that any of the voters were, in fact, induced by reason of such improper statement in the ordinance to vote for bonds. (Page 42.)

Original proceeding by the State, on the relation of the Utah Savings & Trust Company, against Salt Lake City and others, for a writ of prohibition to prohibit the defendants from issuing, negotiating, and disposing of water and sewer bonds.