597. In the case of Cunningham v. People, 11 N. Y. (Supreme Court Rep.) 455, it was held that, "If a statute authorizes an instrument not known to the common law, and so prescribes its form as to render any other form null, forgery cannot be committed by making an instrument in a form not provided by the statute, even though it is so like the genuine one as to be liable to deceive most persons." In Roode v. State, 5 Neb. 174, it was announced that, "if an instrument does not purport on the face of it to be good and valid for the purpose for which it was created, it cannot legally be the subject of forgery, if not genuine." In Rembert v. State, 53 Ala. 467, it was held that "an instrument which, on its face and in its frame, is illegal or necessarily innocuous from its character, is not the subject of forgery." In Clarke v. State, 8 Ohio St. 630, the court said: "An indictment for forgery must not only allege the false making or alteration of a writing specified in the statute, with intent to defraud some named person or body corporate, but it must also appear on the face of the indictment that the fabricated writing, either of itself or in connection with the extrinsic facts averred, is such that, if genuine, it would be valid in the law to prejudice the rights of the person or body corporate thus named." Barnum v. State, 15 Ohio St. 717. In the case of People v. Tomlinson, 35 Cal. 503, it was held that "the purpose of the statute against forgeries is to protect society against the fabrication, falsification, and the uttering, publishing, and passing of forged instruments, which, if genuine, would establish or defeat some claim, impose some duty, create some liability, or work some prejudice to another in his rights of person or property."

I am unable to conceive how the warrant in question could possibly operate to the prejudice of the city, or of individuals, when we know that it was the duty of the city officers to recognize the omission of a statutory requisite necessary to make of the warrant in question a genuine warrant, and when we know, in addition to that, that persons dealing with corporations must be assumed to know the extent of its corporate powers, and take notice of any restriction in its charter. So, too, are the duties and powers of an officer of a corporation prescribed by statute, and all persons dealing with such officers must take notice of such limitations imposed upon their authority by such statute. Dill. Mun. Corp. § 381. No duty or liability was created against the city of Denver by this warrant, not even to the extent of $3.50. No action at law would lie upon it. No court of equity would enforce payment of it. No city treasurer would be obligated to recognize it, but, on the contrary, are positively inhibited from paying it. In the case of Waterman v. State, 67 Ill. 91, it was held that the writing forged must subject the party affected to legal liability, if genuine. It was urged in the argument that the defendants have not insisted or asserted that they were not guilty of obtaining illegitimately money from the city treasury. This may be admitted, yet this admission does not warrant us in sustaining a conviction for a crime which has not been committed; and as is said in State v. Corfield, 26 Pac. Rep. 498, where it was intimated by the state that the defendant could not be punished at all unless for forgery under this statute, the court said: "That is wholly immaterial, so far as the question presented to this court is concerned. * * * We hardly think, however, that our statutes are so barren of remedies as to furnish none in this case." In a more recent case in California, the supreme court of that state has reiterated the rule that the false making of an instrument "merely frivolous, or one which upon its face is clearly void, is not forgery, because from its character it would not have operated to defraud or been intended for that purpose." People v. Bibby, 27 Pac. Rep. 781. The only case that I have been able to find which asserts the contrary doctrine is the case of People v. Eades, 68 Mo. 150, in which case the court took occasion to say that the case of People v. Wright, in 9 Wend. 193, is criticised, if not overruled, in the case of People v. Stearns, 21 Wend. 409. A careful reading of this last cited case will show the contrary to be true, for in the opinion in that case the doctrine of 9 Wend. is reiterated, and the following language is used: "A writing void on its face is a familiar instance of a paper in respect to which forgery cannot be predicated without the averment of some extrinsic circumstances showing that it may become pernicious." Fadner v. People, 33 Hun, 240. A large number of cases are cited in support of the doctrine, and the court proceeds further to say: "This is on the presumption that every man knows the law, and is able to appreciate the legal effect of the instrument. Therefore it cannot, in legal contemplation, defraud any one." The opinion quotes from Hammond on the Law of Forgery, as follows: "The settled common-law rule is that, how clear soever the fraudulent purpose, unless the writing is sufficient to accomplish that purpose, it is not forgery, since, with a single exception, actions only, and not evil intentions, are punishable by the English law, and actions only which actually do, or possibly may, produce injustice." Rollins v. State, 22 Tex. App. 548; People v. Galloway, 17 Wend. 540; Howell v. State, 37 Tex. 591.

If the warrant in question had any validity, or was calculated to legally prejudice the corporation, then we should have no hesitancy in saying that forgery might be predicated upon it. But, having reached the conclusion that it is void upon its face and worthless for any purpose, we are reluctantly compelled to hold that it is not a subject of forgery. There can be no legal tendency to harm by the alteration of a paper that has no legal efficacy or validity. It may be said an almost universal test is that, unless the warrant is valid, and suit could be brought on it, then forgery cannot be predicated upon it. The rule is that, "to constitute forgery, the forged instrument must be one which, if genuine, may injure another, and it must appear from the indictment charging the offense that such is its legal character, either from its recital or description of the instrument itself; or, if that does not show it to be so, then by the averment of matter aliunde which will show it to be of that character." The indictment fails to comply with this rule. In the case of People v. Harrison, 8 Barb. 562, the identical question here involved was discussed. The court in the opinion said: "This certificate, if genuine, is clearly defective in form and substance, under the statute. It does not set forth that the grantor acknowledged the execution of the conveyance. The defect is fatal to the validity of the certificate. The statute is imperative that the officer shall indorse a certificate setting forth, among other things, that the execution of the conveyance was duly acknowledged by the grantor. Without this requisite, no record could be made, and at law no title would pass. The question arising is whether the crime of forgery can be predicated upon such a certificate. I think it cannot. The invalidity of the instrument is apparent upon its face, and, to be the subject of indictment, the certificate should be so far perfect in form and substance as to be valid, if genuine. It is not the falsity of the writing alone, but also its supposed fraudulent effect, which makes a forgery criminal. If the forged instrument is so obviously defective in its form as this is, the law will not presume that it can accomplish the fraud which is perhaps intended. The law presumes a competent knowledge to guard against any such effect, and that no person can be injured thereby in his rights or property. This certificate has doubtless been used to perpetrate a gross wrong upon the grantee named in the conveyance. He has been induced to accept the deed as valid, and to part with the purchase money for the land. It has been used as a false token, by which money has been fraudulently obtained, but the defendant has not been convicted under the statute in relation to cheats. If he had been, the conviction would have been good as well as merited. If the forgery, however, is not such as the law condemns as criminal, it cannot be made so by the want of prudence or circumspection on the part of the person actually defrauded."

Having determined that the provisions of the charter referred to are mandatory, and that the alleged warrant upon which the crime of forging and uttering is based is void, we still have to determine whether the provisions of the statute are broad enough to cover the offense as alleged in the indictment. Section 775, Gen. St. 1883, provides that " every person who shall falsely make, alter, forge, or counterfeit * * * any auditor's warrant for the payment of money at the treasury, county order * * * or any order or warrant or request for the payment of money, *** with intent to damage or defraud any person or persons, body politic or corporate, * * * or shall utter, publish, pass, or attempt to pass, as true and genuine, or cause to be uttered, published, passed, or attempted to be passed, as true and genuine, any of the above named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, forged or counterfeited, with intent to damage or defraud any person or persons, body politic or corporate, * * * every person so offending shall be deemed guilty of forgery. * * *" The alleged warrant in question, being void upon its face, has, in my judgment, no greater legal efficacy than a piece of blank paper. It is not a warrant, and cannot be classified as such. It could not be passed, or attempted to be passed, as true and genuine, and is nothing more or less than a false token, if it can be declared that. In the briefs, nor in the oral argument, was our attention called to the statute.

Relative to the power of the court to appoint assistant counsel, I am thoroughly satisfied that the contention of counsel for plaintiffs in error is neither supported by the statute of the state, by authority, nor by sound reason. Every attorney admitted to practice in the state of Colorado is a sworn officer of the court. His obligation, subscribed and sworn to at the time of receiving his certificate as an attorney, is quite as full and complete as that taken by the district attorney. It is true, when acting as special attorneys by direction or permission of the court, they give no bond for the faithful performance of the duties of district attorney; but yet their conduct is susceptible to review by the court appointing them, as well as by the supreme court, and, should it prove to be unbecoming an officer of the court, a penalty