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Full text of "Cases argued and determined in the Supreme Court of the State of Colorado"

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HAP\/A 



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CASES ARGUED AND DETERMINED 



IN THE 



Supreme Court of Colorado 



AT THE 



SEPTEMBER TERM 1912 AND 
THE JANUARY AND APRIL TERMS 1913. 



E. T. WELLS 

EBPORTER 



VOL. 54. 



DENVER: 
THE W. H. COURTRIOHT FXJBLISHINO OOHPANT 
LAW PUBLISHERS AND BOOKSBIX.ES18 
1918 



c 



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Copyright, 191S 
By 
THB STATE OF COLORADO 

SEP 26 1913 



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JUSTICES OF THE SUPREME COURT 

DURING THE TIME OF THESE REPORTS. 

JOHN CAMPBELL*, Chief Justice. 

GEORGE W. MUSSERt, Chief Justice. 

WILLIAM H. GABBERT> 

MORTON S. BAILEY, 

WILLIAM A. HILL, . j^^^^^^^ 

S. HARRISON WHITE, 

JAMES E. GARRIGUES, 

TULLY SCOTT«. 

BENJAMIN GRIFHTH*, Attorney General. 
FRED FARRARt, Attorney General. 
JAMES R. KILLIAN, Ci^rk. 
E. T. WELLS, Reporter. 



•UnUl January 14tli, A. D. 1913. 
{After January IStli, A. D. 1913. 
ItBlected Not. 4th, A. D. 1912, vice Campbell, whose Term Expired. 



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TABLE OF CASES REPORTED. 



Abbott at8. Wolfe 631 

Albi Co. V. Denver 474 

Annis ate. Larimer County 331 
Antlers Hotel Co. ats. Burch- 

more 314 

Ayres v. WUker 571 

B 

Bailey v. People 337 

Barrows v. McMurtry Co. 432 
Beck y. School District No. 

2 646 

Bond V. Bourk 51 

i^oulder ats. Powers 558 

Bourk ats. Bond 51 
Burchmore v. Antlers Hotel 

Co. 314 

Burns v. Republican Co. 100 



Castner v. Gray 551 

Clark Co. ats. Horn 522 
Clayton ats. Colorado Life 

Co. 256 

Colorado Life Co. v. Clayton 256 
Colorado and Southern Oo. y. 

State Railroad Commission 64 
Colorado Tax Commission y. 



Pitcher 




203 


Cooke ats. Willison 




320 


Cooper ats. Farmers' 


Reser- 


voir &c. Co. 




402 


Coryell v. Fawcett 




353 


Cunningham ats. Norcross 


517 


Currier ats Tuckerman 




24, 25 


Curtis V. Nunns 




554 


D 






Daviaon ats. Nutt 




586 


Denver ats. Albi Co. 




474 


Denver Co. v. Gast 




16 


Denver Co. ats. Harrison 


593 



Denver Co. ats. Liutz 
Denver &c. Co. v. McDonough 
Denver ats. McGovern 
Denver v. Meyer 
Denver v. Pitcher 
Denver and Rio Grande Co. 
ats. Smith 



District Court 
ats. People 

District Court 
ats. People 



First District 



Sixth District 



E 



Elder v. Wood 

Elmpire State Co. v. Linden- 

meier 
Empire Co. v. Zehr 
Everhart v. People 

F 
Farmers' Reservoir &c. Co. v. 

Cooper 
Fawcett ats. Coryell 
Frantz ats. Green Valley Co. 
B\illen V. Wunderlich 

G 
Galligan v. Luther 
Gast ats. Denver Co. 
Grand Valley Co. v. Frantz 
Gray ats. Castner 
Green Valley Co. v. Frantz 

H 
Hahnewald ats. Springhetti 
Harrison v. Denver Co. 
Hayes ats. Silford 
Henson ats. Steinhauer 
Henwood v. People 
Hoag ats. People 
Horn V. Clark Co. 

I 
In re Senate Resolution No. 4 
In re Senate Resolution No. 9 



371 
515 
411 
96 
203 

283 

237 

576 

236 

497 
185 
272 



402 
353 
226 
349 

118 
16 
226 
551 
226 

383 
593 
255 
426 
188 
542 
522 

262 
429 



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Table of Cases Reported. 



In re Smith 


486 


Interrogatories of Senate, In 




re 


166 


J 




Johnson ats. Montezuma Dis- 




trict 


400 


K 




King V. People 


122 


L. ■ 




Larimer Ck>unty v. Annis 


331 


LeMaster v. People 


416 


Lindenmeier ats. E^mpire State 




Co. 


497 


Lindenmeier ats. Salzer Co. 


491 


Liutz V. Denver Co. 


371 


Longenbau^h ats. Montezuma 




District 


391 


Longmont ats. Lyons 


112 


Loth V. Loth's Estate 


200 


Luther ats. Galligan 


118 


Lyons v. Longmont 


112 


Mc 




McDonough ats. Denver &c. Co. 


515 


McGovem v. Denver 


411 


McMurtry Co. ats. Barrows 


432 


M 




Marks v. Morris 


186 


Meyer ats. Denver 


96 


Mitsunaga v. People 


102 


Montezuma District v. Johnson 


400 


Montezuma District v. Longen- 




baugh 


391 


Morris ats. Marks 


186 


N 




National Co. v. People 


365 


Norcross v. Cunningham 


517 


Nunns ats. Curtis 


554 


Nutt V. Davison 

P 
Parker ats. reople 


586 


604 


People ats. Baiiey 


337 


People V. District Court First 




District 


237 


People V. Sixth District Court 


576 


People ats. Everhart 


272 



People ats. Henwood 188 

People V. Hoag 542 

feople ats. King 122 

People ats. LeMaster 416 

People ats. Mitsunaga 102 

People ats. National Co. 365 

People V. Parker" 604 

r'eople ats. Sheely 136 

People ats. Young 298 

People V. ZiObel 284 

Pinnacle Co. v. Popst 451 

Pitcher ats. Colorado Tax Com- 
mission 203 
Pitcher ats. Denver 203 
Plummer ats. State Bank 144 
Popst ats. Pinnacle Co. 451 
Powers V. Boulder 558 

R 
Republican Co. ats. Burns 100 

S 
Salzer Co. v. Lindenmeier 491 

Satisfaction Co. v. York 566 

School District No. 2 ats. Beck 546 
Senate, Interrogatories of. In 

re 166 

Senate Resolution No. 4, In re 262 
Senate Resolution No. 9, In re 429 
Sheely v. People 136 

Silford V. Hayes 255 

Silford V. Stratton 248 

Smilanich ats. Victor 479 

Smith In re 486 

Smith V. Denver and Rio 

Grande Co. 288 

Springhetti v. Hahnewald 383 

State Bank v. Plummer 144 

State Railroad Commission ats. 

Colorado and Southern Co. 64 
Steinhauer v. Henson 426 

btratton ats. Silford 248 

T 
Tuckerman v. Currier 24, 25 

U 
University of Colorado v. Wil- 
son 510 



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Table of Cases Reported. 



V 




Wood ats. Elder 


236 


Van Gordor y. Van Gtordor 


57 


Wunderlich ats. PuUen 


349 


Victor V. Smilanich 


479 


Y 




W 




Young y. People 


293 


Walker ats. Ayres 


671 


York ats. Satisfaction Co. 


566 


Williflon V. CJooke 


320 






Wilson ats. Uniyersity of Colo- 




Z 




rado 


510 


Zehr ats. Empire Co. 


185 


Wolfe y. Abbott 


531 


Zobel ats. People 


284 



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TABLE OF CASES CITED 



Abbott V. WlUiams 371 

Aichele v. Denver 98 

Alamosa Co. y. Nelson 232 

Alger V. Thatcher 444 
Atlantic CJoast Line Co. v. N. C. 

Corp. Com. 94 

Allison V. State 194 
American Co. v. Gerrer's 

Bakery 57 

Anchor Co. v. Hawkes 441 

Anthony v. Slayden 522 

Appropriations In re 170 

Arnold v. Woodward 253 

Auckland y. Lawrence 351 

Aultman Co. y. Graham 551 

Austin V. Springer 370 



Babcock V. People 111 

Bacon v. Nichols 35, 512 
Badger Lumber Co. v. Malone 526 

Baird v. Baird 462 

Baker y. Jacobs 381 

Baldridge y. i«lorgan 154 

Bales y. Williamson 521 

Ballentine y. Robinson 56 

Bancroft y. Union Co. 441 
Bank of Santa Fe y. Board of 

Commissioners 521 

Bank v. Stowell 575 

BaDk of Brighton y. Smith 503 

Barnes y. C. F. & C. C. D. Ry. 

Co. 153 

Barr y. People 351 

Barth y. Richter 47 

Ratohelder y. Rand 150 

'^cteman v. Reitler 459 

P'^al V. Chase 441 



Beaver Borough v. Davidson 399 

Bement v. Smith 57 

i>enton v. Hopkins 47 

Bessemer I. D. Co. v. Wooley 20 

Bidwell V. Pittsburg 399 

Bird v. Muhlinbrink 54 

Bishop V. Bishop 38 

Black v. Kirgan 47 

Black River Co. v. Warner 56 

Blackman v. Mulhall 460 

Blake Admr. v. Dexter 43 

Board of Commrs. v. Barnes 414 

Board of Commrs. v. Leonard 416 

Board of Commrs. v. Piatt 459 

Boggs v. Boggs 59 

Bohanan v. State 306 

Bookwalter v. Clark 56 

Boston Co. V. Atlantic City 326 

Boughner v. Meyer 274 

Boynton v. Curie 274 

Bradley v. Drone 460 

Bracken v. Atlantic Co. 521 

Bradley Ex Parte 305 

Briard v. Goodale 47 

Briggs v. Commw. 305 
British American Co. v. C. & 

S. Ry Co. 290 

Broad Street Church's Appeal 399 

Broad v. Joliffe 442 
Brooks V. Burlington Co., 152, 

153, 158 

Brown v. First National Bank 423 

Bryan v. Chester 326 

Burlington Co. v. Chapman 121 

Burlington v. Gilbert 399 

Burns-Moore Co. v. Watson 120 

Burris v. Kennedy 460 

Butsch V. Smith 462 

Byram v. h'eople • 108 



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lO 



Table of Cases Cited. 



C. ft p. Lumber Co. v. D. ft R. 

G. Co. 290 
C. ft F. Lumber Co. v. D. ft R. 

G. R. Co. 486 

Cabanne v. Skinker 607 

Campbell y. American Co. 607 

Campbell v. Commw. 347 

Campbell v. Hall 161 

Campbell v. Kauffman Co. 522 

Canon City v. Manning 387 

Carey Co. v. McCarty 526 

Carlisle v. Shoup 414 

Carpenter v. Kent 551 

Carpenter v. People 110 
Carpenter v. Yeaton Borough 536 

Carper v. Risdon 19 

Carroll v. Fethers 522 

Carson v. Carson 37 

Carson v. Central R. Co. 601 

Casserleigh y. Wood 449 

Cenrow v. Little 622 

Chaffee v. Widman 571 

Chappell V. State 280 

Charles v. Hallack Co. 156 
C. B. ft Q. Co. V. Drainage 

Commrs. . 328 
C. ft N. W. Ry. Co. V. Dey 84 
C. B. ft Q. Co. V. Jones 84 
Chicago V. Tebbetts 604 
City V. Whitlock 326 
Clark V. Moore 161 
Clayton v. Clayton's Heirs 351 
Clayton v. Farrar Co. 156 
Closson v. BUlman 607 
Coburn v. Webb 576 
Cohen v. Virginia 180 
Cole V. Wlhite 415 
Colorado Central Co. v. Turck 20 
Colorado Springs Co. v. God- 
ding 66 
Colorado Co. v. Murphy 545 
Colorado Co. v. Snider 485 
Colt V. Colt 37 
Commw. V. Arnold 305 
Commw. v. Boston Co. 326 



-Jommw. V. McAfee 
Cone v. Eldredge 
Constitutionality of Senate Bill 

No. 65 
Consumers' L<eagae v. Colorado 

and Southern Co. 77, 

Consumers Co. v. Nunnemaker 
Connville v. Shook 
Cooper, Matter, of. 
Corporation Com. v. R. R. 
Corson v. Neatheny 
Crawford v. People 
Creer v. Cache Valley Co. 
Crown Hill Co. v. Wehrs 
Cur ran Co. v. Denver 
Currier v. Clark 
Currier v. Johnson 
uurtis V. Innerarity 
Curtis V. Lathrop 
Curtis V. McCarthy 
D 



DahmB v. 

Davis V. Burke 

Davies v. Miller 

Davis V. Mouat Co. 

Debolt V. Trustees Cincinnati 

Twp. 
De Foresta v. Gast 
Denver Co. v. Barslouz 
Denver v. Bayer 
Denver v. Bonesteele 
Denver Ac. Co. v. DeGraf 
Denver Co. v. Domke 478, 

Denver ftc. Co. v. Hannegan 
Denver v. Moewes 
Denver ftc. Co. v. Mlddaugh 
Denver Co. v. Nestor 697, 

Denver v. Rogers 
Denver v. Saulcey 
Denver v. Vernia 
Denver ftc. Co. v. Wright 
Desgain v. Wessner 
Devincenzi, Ebtate of, 
Dewhurst v. Allegheny 
Diamond Co. v. Harryman 
Diamond Co. v Roeber 



346 
360 

170 

81 
444 
551 
399 
137 
274 
110 
163 

66 
326 

33 

33 
504 
686 
661 

19 
117 
164 
156 

414 
264 
478 
697 
598 
290 
698 
601 
351 
407 
698 
327 
664 
698 
601 
274 
460 
399 
387 
441 



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TabIvE of Cases Cited. 



II 



Dixon V. People ex rel. 


98 


Dobscliurtz V. Holllday 


528 


Donald v. Bradt 


351 


Donnell v. Hearn 


54 


Dorr v. Hammond 


234 


Downing v. State 


12S 


Dry Goods Co. v. Livingston 


371 


Duffield V. D. & R. G. R. R. Co. 

E 
Early v. Albertson 


20 


162 


Edwards v. State 


282 


Elder v. Denver 


98 


Elevator Co. v. U. P. Ry. Co. 


522 


Ellis V. D. L. ft G. Co. 


54 


Emerson v. Burnett 


313 


Emmons v. Gordon 


607 


Empire Co. v. Howell 


187 


End. R. of 0. of K. P. v 




Steele 


381 


Ensign v. Harney 


381 


Ermeling v. Gibson Co. 


522 


Estate of Delaney 


37 


Estes v. State 


280 


Estey V. Lumber Co. 

P 
Ferguson's Appeal 


156 


399 


Ferrari v. Fuel Co. 


121 


Field V. Oberheuffer 


162 


Fink V. Smith 


551 


First National Bank v. Gill 


586 


Fisheries Co. v. Lennen 


441 


Flemester v. United States 


306 


Flynn v. Dougherty 


54 


Forsyth v. Mann 


54 


France v. Geryot 


319 


French v. People 


260 


French v. Woodrutf 


39 


Friend v. Rolston 


508 


Fulgham v. State 


345 


Funkhouser v. Wagner 

G 
Gaar v. Fleshman 


588 


57 


Gaff V. United States 


504 


Gale V. N. Y. C. ft H. R. Co. 


382 


Garfield County v. Beardsley 


413 


Garfield County v. Leonard 


413 



Garnet Co. v. Sampson 290 

Garver v. Garver 128 

Garvin v. State 280 

Gates V. Qoston Co. 93 
Gereke v. Gereke 60, 63 

Giano v. People 107 

uibbs v. Baltimore Co. 441 

Gilbert v. Greeley Co. 597 

Givens Case 607 

'ioddard v. Binney 54 
Jordon-Tiger Co. v. Loomer 163 

Jrorden v. McDougall 35 

Goudy V. Hall 460 

Gould V. Elmerson 551 

Grand Forks, City of, 561 
Gray v. District Court 241, 

242, 286 

Greer v. Heiser 46 

Griffith v. Tramway Co. 376 

Griswold V. Griswold 292 

Gross V. Heckert 54 

Groton v. Ruggles 37 

Gussman v. Gussman 59 

H 
Hake v. Stotts' Exrs. 39, 42, 45 

Hardin v. Gouveneur 254 

Harman v. Barhydt 586 
Harrison v. Glucose Ac. Co. 441 

Haskell v. Denver Co. 478 

Uasse V. Herring 318 

Hassell v. Iron Works Co. 121 
Hathaway v. Davis 526, 528 

Hayes v. Lane 507 

iegman v. Camody 588 

Heintz v. Burkhard 54 

Henry v. Hand 506 

Henry v. Travellers' Co. 585 

Henwood v. People 347 

Herman t. Ooontp 636 

Herreshoff v. Boutineau 442 

Hewett V. Story 234 

Higgins V. Murray 54 

Hobkirk v. Portland Club 164 

Holmes v. Trumper 575 

Holmes v. Willard 424 

Home Co. v. New York 260 



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12 



Table of Cases Cited. 



Homer v. Ashford 442 

Hooper v. Collingwood 575 

Horner v. Graves 443 

Houston V. Walton 535, 537, 539 
Hummel v. Moore 21 

Hunter v. fruckee Lodge 154 

I 
imboden v. People 107 

Imperial Co. v. Denver 259 

Ingle V. Jones 38 

Inglish V. Breneman 575 

In re Appropriations 170 

In re Fire and Excise Commis- 
sion 170, 172, 173, 177, 182 
In re House Bill No. 99 170, 172 
In re Morgan 327 
In re Senate Bill No. 65 170, 269 
In re Senate Resolutions on Ir- 
rigation 170 
In re Senate Resolutions No. 

10, 170, 172, 174, 177. 181 

In re Speakership, 170, 173, 177, 181 
iverson v. Loberg 460 

J 
Jackson v. Wilson 607 

Jakway v. Rivers 350 

James v. Boston 563 

James v. Parsons 522 

James v. State 282 

Jarvls V. State Bank 153 

Jaynes v. People 108 

Jensen v. Nail 121 

Johnson v. Hall 607 

Johnson v. Hobart 381 

Johnson v. Lawrence 37, 38 

Jones v. Oklahoma 280 

Jones V. Langhorne 522 

Joseph V. Miller 282 

K 
Kavanagh v. Hamilton 459, 

460, 462 
Kellogg V. Howes 557 

Kelly V. People 110 

Kendall v. People 81 

Kennedy v. Kennedy 35, 43, 45 



Kent V. People 196 

Keys V. Morrison 389 

cCidwell V. Brummogim 38 

Kiewit V. Carter 506 

Kilgore V. Cranmer 38, 39 

King V. Ship Building Co. 164 

Kinkead v. Lynch 57 

.vinney v. Keplinger ^ 43 

Kitchin v. Wood * 117 

Kneib v. People 536 

Koll v. Bush 20 

Kretsinger v. Brown 460 



Lebanon Co. v. Rogers 252 

Lanzit v. Sefton Co. 444 

Lawzel v. Bushnel 539 

Layton v. Davidson 38 

L^eander v. Graves 121 

Leary v. Jones 350 

Leonard v. Bartels 583 

Leonard v. Roberts 571 

Levert v. Read 154 

i^ichty V. Houston Co. 556 

Lieper v. Denver 598 

Litchfield v. Cowley 508 

Livermore v. Wright 164 
Lookout Co. V. Mansion Co. 154 

Locke V. Central 414 

i^ndon V. Taxing District 504 

Lowensteln v. Glass 522 

Lowler v. Jenkins 551 

Lybrandt v. Etoerly 149 

Lyons v. Red W«ng 562 

Mc 

McAlpine, In re 38 

McAlpine v. Potter 37 

McArthur v. Scott 37 

McCormick Co. v. Marker 57 

McGrath v. Clark 575 

1*1 cinery v. Denver 583 

McKnight V. Pittsburgh 399 

McKnight v. United States 424 

McLaughlin v. Hands 381 

McMurray v. Wright 98 



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Tabub of Cases Cited. 



13 



M 

Magee t. Big Bend Co. 


46q 


N 
Nangle v. Mullanny 35, 36, 37 


Magnes v. Sioux City Co. 


56 


National luel Co. v. Green 


319 


Mallan v. May 


Hi 




441 


Marean v. Stanley 


isd 


National Co. v. Seidel 


586 


Marey, Estate of. 


4^ 


National Bank v. Town 


536 


^.lather v. Mather 


3^ 


i^ational Co. v. Union HospiUl 




May V. People 


3li 


Co. 


441 


Mead y. Case 


54 


Neilson v. Iowa Co. 


153 


Meagher Co. v. Cowing 


57 


Nelson v. Chittenden 


350 


Meincke v. Falke 


54 


New England Trust Co. v. 




Menzel v. Tubbs 


148 


Elaton 


47 


Meyer Bros. Co. v. McKinney 


54 


Newgass v. Railway Co. 


410 


Miller V. Fries 


508 


New Mercer Co. v. Armstrong 


232 


Miller v. Hallock 


46 


Nichols V. Boston 


564 


Miller V. Meservey 


607 


Nichols V. Lee 


459 


Miller V. Ouray Co. 


546 


North American Co. v. Adams 


232 


Minich V. People 


111 


N. W. Mut. Co. V. Lewis & 




Missoula Co. v. O'Donnell 


156 


Clark Co. 


262 


Mo. Pac. Ry. Co. v. Kansas 


94 


Northerni Trust v. Sears 


260 


Mitchell V. LeClalre 


56 


W. W. Mut. Ins. Co. V. Lewis 


262 


Mitchell v. Reynolds 


442 


Nutter V. O'Donnell 


108 


Mitchell y. Wheeler 


413 


Nye V. Berger 


164 


Mockey v. People 


107 







Mollie Gibson Co. v. McNich- 




Oakdale Co. v. Gaast 


441 


ols 


528 


Ugden V. Moore 


522 


Montgomery v. Rich 


16d 


O'Hara v. Park River 


536 


Montpelier Ac. Co. v. Stephen- 


t 


Omberry v. Jones 


526 


son 


14g 


Opinions of Justices 180, 


181 


Moore v. Bonnett 


444 


Orahood v. Denver 


98 


Moore v. Camden Works 


54 


Oregon Co. v. Winsor 


441 


Moore V. Neil 


460 


Outcalt V. Appleby 


47 


Moore v. Potter 


57 


P 




Morgan In re 


327 


Pepper v. Philadelphia 


399 


Morrell Co. v. Princess Co. 


351 


Parker v. Cochran 


570 


Mortgage Trust Co. v. Redd 


459 


Parker v. Johnson 


47 


Mott V. Ackerman 


37 


Parker v. Schenck 


64 


Mott V. Scott 


46 


Parker v. Seeley 


47 


Mow V. People 


110 


Parsons v. Winslow 


47 


Mullanny v. Nangle 


37 


Passaic v. Patterson Co. 


329 


Mullen y. McKim 


108 


People V. Butts 


424 


Mullin V. People 


298 


People V. Cassiday 


98 


Munson v. Marks 


186 


People V. Cobb 


607 


Murphy v. Carlin 


36 


People V. C. ft A. Ry. Co. 


91 


Murray v. Johnson 


129 


People V. Cornforth 


176 



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14 



TabIvE of Cases Cited. 



People V. DiBtrict Court 

People V. Hall 

People V. Jerome 

People ex rel. v. Lake District 
Court 

People V. Lotttrop 

People V. Palmer 

People V. Raymond 

People V. Salisbury 

People V. Sarst 

People V. Walker 

People V. Walter 

People V. Ward 

People V. Wetthoff 

Pettifs Admr. v. Pettits' Dis- 
tributees • 

Phillips V. DenTer 

Pike V. Suiion 20, 

Piacke V. Union Depot Co. 

Piatt V. Brai^non 

Porter v. People 

Potter V. Couch 

Powell V. Plant 

Pratt V. Miller 

Prebble v. People 

Pueblo V. Griffin 

Pueblo V. Strait 

Pyke V. Jamestown 
Q 

Queen v. Jackson 

Quinn v. Baldwin Star Co. 
R 

R. E. Lee Co. v. Engelbach 

Rafferty v. Con. Trac. Co. 

Kainbolt V. Eddy 

Kange Co. v. Mercantile Co. 

Ransom y. Citizens Co. 

Read v. Read 

ixeagan v. People 108, 

Reeves v. State 

Register Co. v. Hill 

Remington Co. v. Hudson 

Republican Co. v. Mossman 

Ressor v. Ressor 60, 61, 

Rhode Islano v. Massachusetts 



242 


Richards v. Richards 


380 


357 


Rice V. Cassells 


350 


ui 


Rice V. Rhone 


164 




Rico Co. V. Musgrave 


318 


583 


R. G. S. Ry. Co. v. Campbell 


317 


21 


R. G. W. R. R. 06. V. Boyd 


517 


305 


Ritchey v. People 


348 


286 


ttobbins v. County Commrs. 




143 


511, 


512 


483 


Robeson v. Miller 


121 


483 


Rogers v. Goodkin 


181 


142 


Romer v. St. Paul Co. 


603 


424 


'Rose V. Otis 


108 


274 


Koyce v. Adams 


37 




Ruby Co. V. P. A. G. M. Co. 


46 


607 


Russell V. Stevenson 


551 


327 


Rutherford v. State 


198 


, 21 


Ryan v. People 


108 


600 


R. A. G. A S. M. Co. V. 




35 


Bouscher 


149 


111 


S 




37 


St. L. L. B. B. Co. V. Colorado 




551 


Bank 


551 


54 


St. Louis V. Hill 


330 


127 


oalter v. Hilgen 


460 


46 


Salyers v. Smith 


522 


598 


hams Co. v. League 387, 


390 


561 


San Antonio Co. v. Limburger 


600 




baranac Ac. Co. v. Arnold 


424 


344 


Sargent v. Salmond 


159 1 


351 


oayre v. Sage 


187 




Schlicker v. Hemenway 


607 


351 


Schwarzer v. Karsch Co. 


57 


600 


Scott V. Tubbs 


382 


575 


Scott V. West 


37 


56 


Secor V. State 


424 


600 


Senate Bill No. 65, In re Con- 




59 


stitutionality of, 169, 


170 


110 


Senate Resolution on Irriga- 




424 


tion, In re 


170 


57 


Senate Resolution No. 10, In 




522 


re 


170 


102 


Shapter's Estate, ^n re 


35 


, 63 


Shattuck V. Wrought iron Co. 


381 


180 


Shawhan v. Van Nest 


56 



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Tabub of Cases Cited. 



15 



Shell's Estate, In re 


36 


Bhermaa v. Loman 


46 


Shropshire v. Glascock 


274 


Sickman v. Abernathy 


621 


Sieber ▼. Frink 


233 


Sllford V. Stratton 


266 


Small y. Foley 


494 


Smith V. People 


iia 


Smith ▼. Wheeler 


67 


Snodsrass v. Snodgrass 


607 


Soden v. Murphy 


40 


Solander v. People 


297 


Speakership, In re 


170 


State y. Beheimer 


306 


State V. Billings 


303 


State v. Blythe 


483 


State V. Bradley 


306 


State V. Browning 


424 


State V. Connolly 


346 


«tate V. Poust 


424 


State ▼. Gilles 


306 


State V. Klssler 


306 


State V. Kortgaard 


424 


SUte V. L,egg 


377 


State V. Loechner 140, 


143 


State v. McGord 


306 


btate V. Nicholls 


424 


State V. Oliver 


343 


State ▼. Osborn 


607 


State V. R. R. Co. 


84 


State V. Ross 


304 


SUte y. Sanlee 


262 


State ex reL v. Street Ry. Co. 


93 


State y. Sentee 


262 


State y. Simms 


303 


State y. The Governor 


141 


State y. Juneau 


483 


State y. Whitlock 


329 


Steger v. Arctic &c. Co. 


153 


Stephenson v. Ballard 


148 


Stevenson v. United States 




193 


196 


Stoddard v. Kibbler 


506 


fotow y. Kimball 


460 


Strong y. Campbell 


645 


Sturgis, In re 


37 


Sturzebecker v. Inland Co. 


19 



Somers, In re 305 

Sweet V. James 164 

Sweet V. Ward 460 

Swigart V. People 274 

Swigert V. 'iilden 441 

T 
lalbot Co. y. Detroit 546 
fallman v. McCarty 460 
Talman v. Stroder 274 
laussig V. Hart 522 
Taylor v. Commonwealth 424 
Thomas v. People 490 
'ihrower v. State 274 
Toney v. State 280 
Travelers' Co. v. Redfleld 21 
Treno v. United States 306 
Trenton Co. v. Oliphant 441 
Tucker v. Parks 46 
Turner v. Territory 306 
Turpin v. Board of Commis- 
sioners 414 
Tuscaloosa Co. v. Williams 444 
Twin City Bank v. Nebeker 260 

U 
U. S. V. Sanger 286 
underbill v. Washington 564 
U. P. Ry. Co. V. Arthur 290 
Union Co. v. Bonfleld 444 
U. P. Ry. Co. V. DeBusk 290 
Union Pacific Co. v. Montgom- 
ery 536 
Union Pacific Co. v. McNally 536 
Union Pacific Co. v. Stupeck 588 
United States v. Pacific Ex- 
press Co. 486 
United States v. Harper 424 
United States v. lYans-Mis- 

souri Freight Association 91 

Uzzell v. Anderson 98 

V 

Van Barcom v. Dager 47 

Vane v. Evanston 382 

van Wyk v. People 110 

Varney v. Williams 329 

Veatch v. State 304 

vreeland v. Ellsworth 166 

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i6 



Table of Cases Cited. 



w 
Wagner v. Bristol Co. 
^Alt V. People 
Waller y. State 
Warren v. .AXiams 
Weitzman v. Nassau Co. 
Western Union Co. v. Ejyser 
W^heeler V. I>unn 
Wheeler v. United SUtes 
Wickham v. People 
v^illiams v. Bishop 
Williams v. vanderbilt 





Willis V. Maben 


117 


600 


Wood y. Whitehead 


441 


107 


Wood worth y. btate 


140 


301 




562 


254 


wray y. Carpenter 


380 


376 


Wright V. Ryder 


444 


20 


Wright y. Whiting 


508 


521 


Wyman y. Felker 


39 


483 


Y 




127 


y^oung y. Godbe 


504 


571 


Young y. The Orphans 


154 


526 


Young y. People 


295, 607 



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CASES 
ARGUED AND DETERMINED 

IN THE 

SUPREME COURT 

OF THE 

STATE OF COLORADO 



SEPTEMBER TERM, 1912 



[No. 6735.] 

Denver Omnibus & Cab Co. v. Gast. 

1. Joint Tort — Charged Against Several — Reccfvery Against One 
— On complaint charging a Joint tort against several, and eyidence 
conylcting one or part of the defendants, plalntifF may have Judgment 
against those shown to be guilty, the others being acquitted. Plaintiff 
Is not required to elect and discontinue as to those against whom no 
case is made. 

2. Pleading — Answer — General Denial — ^The general denial casts 
upon the plaintiff the burden of establishing all the material allegar 
tions of the complaint, regardless of the other defenses in the answer. 



Digitized by VjOOQIC 



1 8 Denver Co. v. Gast. [54 Colo. 

3. Inconsiatent Defenses, may be presented in the same an- 
swer. 

4. Construction — ^The reply may be referred to to determine 

plaintiff's then understanding of the averments of the answer. 

6. Plaintiff sought to charge a carrier with the loss of a 

trunk. The answer admitted that at the day and place mentioned in 
the complaint some person unknown to defendant delivered to it a 
trunk, but "whether plaintiff was the owner of the trunk ^ ^ * 
defendant has not and cannot obtain sumcient information, etc." Held, 
the burden was upon the plaintiff to show that he was the owner of 
the trunk, and that an instruction to the effect that defendant ad- 
mitted by its answer that he had received plaintiffs trunk, was error. 

6. E}vioENCE — Competency — In the same case the evidence tended 
to show the delivery of the trunk by plaintiff to the porter of a cer- 
tain hotel. Held, that defendant was at liberty to show that, this 
porter had no authority to accept baggage for it. ^ 

Plaintiff by his deposition testified that the driver of defendant 
gave him its check, of a certain number, for his trunk. The check 
was not attached to the deposition. A letter of the defendant which 
was read in evidence stated that he received a hotel check from the 
porter of a certain hotel. 

At the trial plaintiff's attorney offered what purported to be a 
check of defendant of the same number as that mentioned in plain- 
tifTs deposition; but it was not identified, or its authenticity in any 
manner shown. Held, that an objection to its admission should have 
been sustained. 

Error to Denver District Court. — Hon. George W. 
A1.1.EN, Judge. 

Messrs. Thomas^ Bryant, Nye & Malburn, for plain- 
tiff in error. 

Mr. W. W. Cover, for defendant in error. 

Upon Petition for Rehearing. 

Mr. Justice Hiix delivered the opinion of the court : 

This action was brought by Wilson M. Gast against The 
Denver Omnibus and Cab Company, The Union Depot and 
Railway Company, and The Chicago Burlington and Quincy 
Railway Company, to recover damages for the loss of his 



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Sept., ''12.] Denver Co. v. Gast. 19 

trunk and contents. The verdict of the jury and judgment 
were against The Denver Omnibus and Cab Company, but in 
favor of the other defendants. The cab company brings the 
case here for review on error. By stipulation Martha E. Gast, 
administratrix of the estate of Wilson M. Gast, deceased, has 
been substituted as defendant in error. 

The complaint alleges that plaintiff delivered his trunk 
to the defendants as common carriers, to transpoi*t from 1673 
Broadway, Denver Colorado, to Williamsport Pennsylvania. 
The testimony on behalf of plaintiff was to the effect that he 
delivered the trunk to the cab company, and that its engage- 
ment was to transport it from 1673 Broadway to the baggage 
room of The Union Depot and Railway Company in Denver, 
which it failed to do. There was no evidence connecting the 
other defendants with the transaction. The action was a 
joint one for tort against all three defendants, for which rea- 
son it is urged that proof of a separate tort by the cab com- 
pany, and failure to prove any concert between the defendants 
resulting in the loss of the trunk, is fatal to the action; that 
in order to hold persons jointly liable for tort it must appear 
in some way that it was the result of their joint action, or joint 
n^Iect of duty. As we understand it, in an action charging 
this kind of a joint tort, the rule is that the plaintiff will be 
permitted to recover against such of the defendants as his 
testimony establishes by community of fault were guilty of 
the tort charged, and that a judgment can be entered accord-^ 
ingly. — Carper v. Risdon, 19 Colo. App. 530; Dahms v. Sears, 
13 Oregon 47; sec. 241, Rev. Code 1908. 

Some states hold, that in order to secure such a judg- 
ment, the plaintiff must, at the trial, amend his complaint and 
proceed against the parties whom the evidence shows are joint- 
ly liable for the tort ; that in such case he is entitled to amend 
as a matter of course. — Sturzebecker v. The Inland Co., 211 
Pa. St. 156. But in a case where it is debatable whether the 
evidence sustains the action against some particular defendant, 
we think that the rule announced in Carper v. Risdon, supra. 



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20 Denver Co. v. Gast. [54 Colo. 

is the better one, and that instead of requiring the plaintiff to 
elect, and dismiss the action against certain of the defendants, 
it is just as competent for either the court or jury to find cer- 
tain defendants liable, and others not, as the evidence to them 
discloses. 

The complaint alleges an agreement on the part of de- 
fendants to convey the plaintiff's trunk to Williamsport, Penn- 
sylvania. The evidence fails to establish this. If the cab com- 
pany received the trunk (which is in dispute), the evidence 
tends to establish that its agreement was to convey it to the 
baggage room of the depot company; for which reason it is 
urged that the case should fail because the contract set up in 
the complaint was not established. As the case must be re- 
versed for other reasons we deem it unnecessary to pass upon 
this question for the reason that the material allegations of 
the complaint are the receipt of the trunk, the agreement to 
transport it somewhere, or do something with it, the failure 
of the company to do so, and its loss. As the place where it 
was to be transported, if changed, would not state a new 
cause of action or jeopardize the rights of the defendant, the 
question can be eliminated by amending the pleadings prior 
to a new trial. 

By instruction 2 the jury were told, in substance, that the 
cab company admitted in its answer that it received the plain- 
tiff's trunk and that the burden was upon it to account for it, 
^ and on failure to do so it was liable for its value. In this 
the trial court erred. The first defense set up in the amended 
answer is a general denial. This is sufficient to place the bur- 
den on the plaintiff of proving all the material allegations of 
his complaint, regardless of the other defenses in the answer, 
even if they are incomplete. — Pike v, Sutton, 21 Colo. 84; 
Bessemer I. D, Co. v, Woolley, 32 Colo. 437, 444. 

Under our rule of practice separate defenses may be in- 
consistent with each other. — Pike v. Sutton, supra; Hill v. 
Groesbeck, 29 Colo. 161; KoU v. Bush, 6 Colo. App. 294; 
Western Union Tel. Co. v. Byser, 2 Colo. 141 ; Duffield v. 

Digitized by VjOOQIC 



Sq>t., 'i2.] Denver Co. v. Gast. 21 

/?. & R. G. R. R. Co., 5 Colo. App. 25 ; Travelers Ins. Co. v. 
Redfield, 6 Colo. App. 190; People ex rel. v. Lothrop, 3 Colo. 
429; Hummel v. Moore, 25 Fed. 380; Colo. Central C. M. Co. 
V. Turck, so Fed. 888, 892. 

This instruction eliminated the debatable question of the 
receipt of the plaintiffs trunk by the defendant. This was 
made an issue by the first defense in the amended answer. 
This is sought to be justified under the claim that the defend- 
ant, in its amended answer, admitted the receipt of his trunk 
at 1673 Broadway. We do not so understand the effect of 
this pleading, the substance of which is that the company ad- 
mits that some one, to it unknown, did, on the 19th of July, 
1906, deliver to it a certain trunk at 1673 Broadway, but as 
to whether plaintiff was the owner of the trunk, or whether 
the contents was of the value of $1,000, the defendant has not 
and cannot obtain sufficient information upon which to base a 
belief. The record discloses that the plaintiff at that time did 
not assume that the company admitted the receipt of his 
trunk, for the reason that in his replication to the amended 
answer he says, "Plaintiff admits that 'some one' did on the 
19th day of July, 1006, deliver to defendant in the city and 
county of Denver a certain trunk, which trunk plaintiff avers 
was delivered by plaintiff to the defendant herein, and is 
and at the time was the said trunk of plaintiff in question." 
It will thus be observed that the issues as made up cast the 
burden upon the plaintiff to establish that the trunk admitted 
to have been received by the defendant at 1673 Broadway was 
the trunk of the plaintiff. The deposition of the plaintiff upon 
this question was, in substance, that he was the owner of a 
trunk and its contents which he delivered upon July i9tK, 
1906, at about 11 P. M. at 1673 Broadway to one of the 
drivers of The Denver Omnibus and Cab Company, for de- 
livery to the union depot at Denver, for which he paid the 
driver fifty cents; that he received from the driver a check 
of The Denver Omnibus and Cab Company, No. 3295. 

The deposition of Charles E. Lamm was that he was 



Digitized by V^OOQlC 



22 Denver Co. v. Gast. [54 Colo. 

with Gast at the time. The remainder of his testimony was 
the same as Cast's. 

Wilham H. Wheadon testified that he was secretary of the 
Denver lodge of Elks; that as such he received a letter from 
the plaintiff dated Williamsport, Pennsylvania, September 6th^ 
1906. This letter was introduced in evidence, in which Mr. 
Gast, in substance said that in leaving Denver, ^fter attend- 
ing the Elks' convention, he had his trunk checked by porter 
of Savoy hotel, night of July 20th, having stopped across the 
street from Savoy at 1673 Broadway; that the porter of Savoy 
took the trunk over to hotel, giving him Savoy hotel check 
3295 for same; that following morning baggage department 
claimed trunk had not reached depot, but gave him their check 
No. 65926 for the Savoy check; that he had not received the 
trunk yet, and in a letter from baggage agent Campbell Au- 
gust nth, he was informed The Denver Omnibus and Cab 
Company had no record of receiving trunk from hotel ; that 
hotel people were unable to locate it up to that time. He re- 
quested investigation by the secretary, also said, "It is possible 
that the porter stole this trunk, and probably the police de- 
partment could learn who was porter at the Savoy hotel nig^t 
of July 20th, and by seeing that individual could learn some- 
thing of the present location of same." 

A Mr. Mcllduff testified that he lived at 1673 Broadway, 
knew Wilson M. Gast, met him at witness' home here; that 
Mr. Gast wrote him to go to night porter of Savoy hotel and 
try to trace the trunk from there. 

Mrs. McIlduflF testified that she resided at 1673 Broad- , 
way; that Mr. Gast came to their house to room during the 
Elks' convention ; that when he got ready to leave he went to 
Savoy hotel and had the night porter come over and get his 
trunk; that he brought over a light hand cart and took the 
trunk to Savoy hotel between 9:30 and 11 o'clock; that Mr. 
Gast left the following morning; that there was no wagon of 
The Denver Omnibus and Cab Company at her house after 
the trunk; that Mr. Gast, Mr. Lamm, herself and another 



Digitized by VjOOQIC 



Sq)t.\ 'i^.] Denver Co. v. Gast. 23 

lady,, who t lives in Oregon, were present when the porter of 
the Savoy hotel came over and got the trunk ; that the night 
porter never todc any other trunks from her house that she 
knew of. 

It will be observed that there was a sharp conflict in the 
evidence concerning the delivery of the plaintiff's trunk to 
the cab company. There was no evidence offered to establish 
that the porter of the Savoy hotel was a representative of the 
company, or had authority to check trunks for it ; while there 
is an irreconcilable conflict between the plaintiff's deposition 
and his* letters, concerning the disposition of his trunk. The 
defendant sought to show that the porter had no authority 
to accept trunks for it. The evidence was rejected, presum- 
ably upon the same theory under which the instruction was 
given, competent evidence upon this subject was proper. It 
will thus be observed that the issue concerning the receipt of 
the plaintiff's trunk by the defendant was never considered by 
the jury. This necessitates a reversal of the judgment. 

In view of a new trial we call attention to the admission 
in evidence upon behalf of the plaintiff of defendant's pur- 
ported check No. 3295. This was objected to as not being 
identified, and no foundation laid for its admission. When 
this objection was made counsel for plaintiff said, "It is the 
check Mr. Gast refers to in his deposition." It was not made 
a part of the deposition, nor produced or identified by any 
witness. It was presented by counsel for plaintiff. The iden- 
tity of the checks became material for the reason that the 
plaintiff testifies that a driver of the defendant gave to him its 
check No. 3295 when he received his trunk, while his letter 
states that the porter of the Savoy hotel gave him a hotel 
chock of the same number. In the manner offered the objec- 
tion to its admission should have been sustained. 

Other assignments urged pertaining to instructions re- 
fused and given and the sufficiency of the evidence need not 
be considered. In view of the briefs and the knowledge dis- 



Digitizedby VjOOQIC ^•^ 



24 TUCKERMAN V. CURRIER. [54 Coloi 

closed by the authorities cited; most, if not all, of these qties- 
tions can be eliminated upon a second trial. 

The former opinion is withdrawn; the judgment is re- 
versed and the cause remanded for a new trial in harmony 
with the views herein expressed. Both parties will be per- 
mitted to amend their pleadings as they may be advised. 

Reversed and Remanded. 

Decision en banc, 

Mr. Justice Gabbert and Mr. Justice Garrigues dis- 
sent. 

Chief Justice Campbell not participating. 

Decided November 6, A. D. 191 1. On rehearing judg- 
ment reversed January 6, A. D. 1913. 



[No. 5932.] 

Tuckerman et al. v. Currier ET al. 

Writ of Error — Where the Writ Lies — Final Judgment — ^An order 
removing executors, acting as testamentary trustees, and appointing a 
receiver for the estate is a final judgment, and the executors may have 
a writ of error to review such order. 

Error to Weld District Court, — Hon. Louis W. Cun- 
ningham, Judge. 

Mr. James W. McCreery, for plaintiffs in error. 

Mr. Charles D. Todd, Mr. R. T. McNeal and Mr. 
Charles R. Brock, for defendants in error. 

Mr. Justice Hill delivered the opinion of the court : 

This writ of error is between the same parties and in- 
volves one phase of the contention covered by case No. 6085, 
James Tuckerman et al. v. Mary B. Currier et al., decided at 

Digitized by LjOOQIC 



Sept, 'l2.] TUCKERMAN V. CuRRlER. 25 

this term. Its object was to secure a reversal of the order re- 
moving the plaintiffs in error from (as the order states)- act- 
ing as trustee of the Currier estate and in the appointment 
of a receiver therefor. This order was made some time prior 
to the rendition of the final judgment in the case upon the 
many other questions involved. A supersedeas was granted. 
The only separate contention here made is that the order re- 
moving the plaintiffs in error and appointing a receiver is in- 
terlocutory and not final, and that a writ of error will not lie 
to review such order, for which alleged reasons a motion was 
made to quash the supersedeas and writ and dismiss the ac- 
tion. Upon hearing this motion was denied. 

All other questions are covered in the other opinion. For 
the reasons there stated, the judgment of the trial court in the 
removal of the plaintiffs in error and in the appointment of the 
receiver, is reversed and the cause remanded. 

Reversed and Remanded. 
Decision en banc. 

Mr. Justice Musser and Mr. Justice Garrigues not 
participating. 

Mr. Justice White dissents. 



[No. 6085.] 

TuCKERMAN ET AU V. CURRIER ET AL. 

1. W11X8 — Construction — The intention of the testator is to be 
derived primarily from the language of the wiU itself; and it is to 
receive efTect as written, if not opposed to some positive rule of law, 
or against public policy. 

And it is to be presumed that the testator knew the law govern- 
ing the subject matter of his directions. 

2. Power of Testator to Appoint Successors to Executor — It 

seems that where the will directs that if the executor named dies, 
another shall be his successor, the one so designated is executor by 



Digitized by 



*^oogle 



26 TUCKERMAN V. CURRIER. [54 CoiO- 

subBtitution, and not a mere administrator de Ifonis non. No rule of 
law prevents a testator from providing a system for the selection of 
a successor to the executor named in his will. He may provide con- 
ditional, limited, or substituted executors, in case of vacancy, confer- 
ring upon them the same powers as conferred upon those first desig- 
nated. 

And the county court, upon a provision in the will to that effect, 
may appoint a successor to the executor, with all the powers which 
the will confers upon the original executor. 

3. Construed — ^The testator, a man learned in the law, after 

certain specific bequeste, devised all the rest of his estate "to my 
said executors ♦ ♦ ♦ and to the survivor of them, and their suc- 
cessors, to hold, manage and dispose of. in trust for the uses and 
purposes following:" And after providing for the payment of an an- 
nuity to his widow, directed that the residue of the net income of his 
estate should by "said executors," be annually paid over in equal 
parts, to his two sons; directed that "said executors" should carefully 
collect and take care of said estate; authorized sales by them of any 
part of the estate; the re-investment by them of the proceeds of sales; 
directed that upon the death of both of his sons, "said executors, and 
the survivor of them, and their successors" should convey all the 
estate remaining, to the heirs at law of said sons; and finally declared 
tiis desire that "said board of executors shall be continued until tha ^ 
purposes of this will are fully accomplished, and the trusts herein 
created are fully executed; and that any vacancy in said board shall, 
on application of any beneficiary herein named, be filled by the ap- 
pointment of the county court" of the county of his residence. Held^ 
that the manifest purpose of the testator was to confer the estate 
devised, and the trusts and powers prescribed in the will, not upon 
any person as a personal trust, but upon the person holding the office 
of executor, and their successors, in perpetual succession, and to an- 
nex such estate and powers to the office of executors. That upon the 
acceptance of the resignation of the executors named in the will, and 
a valid appointment of successors, not only the powers, but the trust 
estate before that vested in the original executors, devolved by opera- 
tion of law, up'on the successors, without the formality of a convey- 
ance. 

The will enjoined upon the executors to "distribute fully the total 
net annual income and increment of my estate to the persons and In 
the time and manner herein provided, and so as to avoid the accumu- 
lation in their hande of property in excess of the total value of the 
assets that shall originally come to them under this will." 

Held, that under this provision the estate must be dealt with in 
solido; that the increase in the value of one piece of property 



Digitized byLjOOQlC 



Sept., 'l2.] TuCKERMAN. V. CuRRIER. 2/ 

not to be segregated, as income; that each parcel of property per- 
taining to the estate retains its character as part of the body of the 
estate, until every part of the estate has been subjected to examina- 
tion and appraisement, and the whole aggregated. 

4. KsEcvTOR—Removal^Effect Upon His Character as Testament- 
ary Trustee — ^Where one is named as executor, and by the same will 
a.r trustee, the revocation of his appointment as executor will not nec- 
essarily revoke his appointment as trustee; but where powers and 
duties not pertaining to the office of executor are conferred by the 
will upon the executor, he becomes, by virtue of his appointment, a 
trustee by operation of law; and if he resigns or is removed as execu- 
tor, the duties and powers conferred upon him, in that character, 
terminate. 

5. Allowances — Executors lawfully appointed and whose 

title, authority, and official conduct, is assailed by the beneficiaries 
under the will are justified in incurring any necessary legitimate ex- 
pense in sustaining the validity of the will, and their appointments, 
and in defending, in good faith, their conduct while in office; and they 
are entitled to an allowance out of the estate for the amounts so 
necessarily and reasonably expended. 

6. Statutes — Construed — ^A statute (Mills Stat. §4720) provided 
that when the letters of one of several administrators are revoked, 
«tc., the county court may in its discretion "join others in their stead 
and place • • • and in case the letters of all of them shall be re- 
voked, or all ♦ ♦ ♦ shall depart this life before final settlement, 
etc., administration with the will annexed, or as the case may require, 
shall be grante4 to the person next entitled thereto." Held, that 
where the will so provided, executors might be appointed by the coun- 
ty court, as successors to those named in the will, and with all the 
estate and powers granted to, or conferred by the will upon, the orig- 
inal executors. 

7. Pleadings — Relief, is to be confined to what, upon the facts 
stated, the party is entitled to. 

Appeal from Weld District Court, — Hon. Louis W.Cun- 
istingham:^ Judge. 

Mr. James W. McCreery, for appellants. 

Mr. Charles D. Todd, Mr. R. T. McISPeal and Mr. 
Charles R. Brock, for appellees. 

Mr. Justice Hill delivered the opinion of the court : 

Tfie pleadings as well as the evidence in this case are 

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28 TUCKERMAN V. CURRIER. [54 Colo. 

voluminous. In disposing of it, in addition to hearing oral 
arguments, we have read and considered over six thousand 
five hundred folios of record, in excess of five hundred pages 
of printed briefs, and have considered the questions involved 
in over five hundred and fifty cases cited, claimed to support 
the different contentions of counsel. Owing to the uncertainty 
of the title to such a large amount of property, and the im- 
portance of the other questions raised, we are not prepared to 
say that the greater part of counsels' efforts were not justified, 
but when the extent of such an amount of labor placed upon 
this court is realized, it is regrettable that many thoughtless 
people (including some members of the profession), who 
criticise appellate courts for their apparent delay in the num- 
ber of such cases disposed of, are not familiar with these 
conditions. 

We shall not attempt to set forth even the substance of 
all the issues but only such as are controlling of the principal 
contentions. The record discloses, without contradiction, that 
upon July 25, 1892, Judge Warren Currier died, leaving sur- 
viving his widow, (Lydia M.), two sons (George W. and 
Henry F.), their wives, and certain grandchildren (the sons 
and daughters of George W. and Henry F.). The deceased 
was possessed of a large estate, real and personal. He left a 
will which provides: 

First, for the payment of debts. 

Second, devises certain personal property to his wife. 

Third, gives to his son George the use for life of the 
Greeley homestead, on certain conditions. 

Fourth, gives to his son Henry the use for life (rent free) 
of certain real estate. 

Fifth, provides for the adjustment of certain advance- 
ments made by the deceased to the above sons. 

The sixth, seventh, eighth and a part of the tenth para- 
graphs, which are the cause of these contentions, read as 
follows : 

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Sq)t., 'I2.] TUCKERMAN V. CURRIER. 29 

"6. I give, devise and bequeath all the rest and residue 
of my estate, real, personal or mixed, and wherever situated, 
to my said executors, to-wit, Bruce F. Johnson and Charles 
H. Wheeler, both of Greeley, and to the survivors of them 
and their successors, to hold, manage and dispose of in trust 
for the uses and purposes following, to-wit : 

(a) Two thousand dollars on the net annual income 
therefrom to be collected by my said executors and paid over 
annually as an annuity to my said wife, in quarter yearly in- 
stallments of $500 each during her natural life, the same to be 
accepted by her in lieu of dower and in full of all claims upon 
my estate not hereinbefore specified and provided for: — ^all 
such payments to be made upon her separate personal receipt 
and not otherwise. 

(b) All the rest and residue of the total net annual profit 
and income that shall be derived from my said estate shall be 
collected by my said executors and by them annually paid 
over in equal parts to my two sons (they being my only sur- 
viving children) to-wit: — said George W. Currier and Henry 
F. Currier, during their natural lives, one-half thereof to each 
and upon the separate personal receipt of each. In case of the 
death of either the share of the other, (he still surviving) shall 
continue and be paid over to him during his natural life. But 
the share of the one deceased sEall from the time of his death 
be distributed and paid over to his widow if then surviving, 
and to his then surviving children in eqtial parts to each, 
share and share alike; and such payments shall continue dur- 
ing the natural life of my son then surviving. The annual 
payments aforesaid shall be made in quarter yearly install- 
ments and upon the separate personal receipt of the party en- 
titled to receive the same, and not otherwise. 

(c) If either of my said sons shall die without leaving 
issue surviving him, the share of the annual income from my 
said estate of such dec^sed son shall go to and vest in and 
be paid over to his surviving brother in quarter yearly install- 
ments as aforesaid. If either of my said sons shall die leav- 

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30 TUCKKRMAN V. CURRIER. [54 Colo. 

ing issue surviving him, such issue shall take the part and 
share of his or her father, and \Vhere- there are several surviv- 
ing children they shall share and share, alike in said net an- 
nual income. 

7. It is my will that my said executors shall carefully 
collect and take dare of said estate and that they shall by 
proper sale or sales thereof convert such parts of it into cash 
as they shall judge to be for the best interest of my said wife 
and sons and other beneficiaries herein named or described, 
and to that end I give to said executors and to the survivors 
of them and to their successors, full power and authority to 
sell and convey said estate or any part thereof in fee simple, 
and to make all proper deeds and other conveyances thereof, 
reinvesting the proceeds of such sale or sales in such produc- 
tive securities or improved productive real estate, as they may 
judge to be safe and remunerative, having primary reference' 
to the safety thereof. I enjoin up6n my said executors to dis- 
tribute fully and carefully the total net annual income and in- 
crement of my estate to the persons and in the time and man- 
ner herein provided and so as to avoid the accumulation in 
their hands of property and assets in excess of the total value 
of the property and assets that shall originally come to them 
under this will. 

8. Upon the death of both of my said sons, said George 
and Henry, said executors and the survivor of them and their 
successors are hereby empowered and directed to convey by - 
proper deeds and other conveyances and in fee simple any and 
all estate, real, personal or mixed which shall then remain in 
their hands or subject to their control under the provisions 
thereof to. the heirs-at-law of my said sons George and Henry 
respectively, the children of each taking one-half of said estate 
per stirpes in absolute ownership and in exclusion of all other 
persons ; and I hereby give and bequeath to said children all 
the said estate so then remaining in the hands of my said ex- 
ecutors, each family of children taking an inheritable estate 
therein in fee as the heirs-at-law of my said sons respectively. 

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Sept/i2.] TucKERMAN V. Currier. 31 

and taking the same per stirpes and not per capita, each family 
of children taking one-half thereof." 

"10. It is my desire that said board of executors shall 
be continued until the purposes of this will are fully accom- 
plished, and the trusts herein created are fully executed; and. 
it is my will that any vacancy arising in said board shall on 
the application of any beneficiary herein named be filled by 
the appointment of the county court of said Weld county, Col- 
orado, meaning the court in said county which shall have at 
the time jurisdiction of probate matters in Weld county." 

The closing, unnumbered paragraph in the will reads, 

"I hereby appoint Bruce F. Johnson and Charles H. 
Wheeler of said Greeley in said county of Weld to be the ex- 
ecutors of this my last will and testament." r 

The will was probated September the 6th, 1892, in the\X 
county court of Weld county, and the executors named in the / N 
will, Bruce F. Johnson and Charles H. Wheeler, were given 
letters testamentary thereon. They qualified September I4tli, 
same year, and acted as the executors from that date until 
May 23, 1893, when Charles H. Wheeler tendered his res- , 

ignation, which was accepted by the county court and an order 
made appointing Horace G. Clark as his successor. Johnson 
and Clark continued to act until January, 1897, when they 
tendered their resignations to the county court, which, on 
January 30th, 1897, made an order accepting the resignations 
and appointing the plaintiffs in error, James Tuckerman and 
William Mayher as their successors. These last named ap- 
pointees have continued to act as such executors and by virtue 
of such official capacity, have also performed the duties of 
trustees as provided for by the will, from the date of their 
appointment until the present time. 

This action was instituted by the grandchildren of War- 
ren Currier, the residuary legatees of the principal estate, 
against all former executors, Johnson, Wheeler, Clark, Tuck- 
erman, Mayher, the two sons of the deceased (George W. and 
Henry F.), their wives and the widow (Lydia M. Currier). 

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32 TucKERMAN V. Currier. [54 Colo. 

The complaint charges numerous acts of maladminis- 
tration and breach of trust against all of the five persons who 
had acted as executors and performed the duties of trustees. 
It charges fraud, mismanagement and misconduct, whereby 
it is alleged that the principal estate sustained great losses, 
and was then being depleted by the fraudulent and illegal acts 
of its alleged trustees, in some of which the life beneficiaries 
George and Henry Currier are alleged to be parties. It denied 
the right and jurisdiction of the county court to appoint sub- 
sequent executors to fill vacancies caused by the resignation of 
Johnson or Wheeler, or its jurisdiction to recognize the rights 
of such person to perform the duties of trustees, or to in any 
particular supervise the administration of the trust created 
by the will. It alleges that the title to the property was still 
in Johnson and Wheeler as trustees. It prays for a construc- 
tion of the will to include a declaration, that the county court 
was without jurisdiction to appoint successor executors and 
that the tenth paragraph attempting to confer such power 
be declared void. It also prays for the removal of Tuckerman 
and May her; the appointment of proper trustees; for a con- 
veyance by Johnson and Wheeler of the trust property to 
such newly appointed trustees and for the appointment of a 
receiver, etc. 

George W. and Henry F. Currier (fathers of the plain- 
tiffs) filed answers to the bill admitting all allegations against 
the executors^ and part of those against themselves. These 
answers embrace cross-complaints in whichf they attempt to 
set up independent causes of action against the executors; 
they make further charges of unfaithfulness on the part of 
the then executors and their predecessors. They allege the 
conversion and misapplication of large sums of money, both 
principal and income, and ask for the discharge of the ex- 
ecutors, for an accounting, the appointment of a receiver, for 
new trustees, and for money judgments in their favor for 
large amounts. 

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Sept, *I2.] TUCKERMAN V. CuRRlER. 33 

Demurrers filed by Johnson, Wheeler, Clark, Tuckerman 
and May her, which challenged the jurisdiction of the district 
court, were sustained. This ruling was reversed by our for- 
mer court of appeals and the cause remanded with leave to all 
parties to amend. (Currier v. Johnson, 19 Colo. App. 94.) 
For other cases involving some phase of these contentions be- 
tween some of the parties see Currier v. Johnson, 19 Colo. 
App. 245; Currier et al, v. Clark, 19 Colo. App. 250; Currier 
V, Clark, 19 Colo. App. 257; Currier v. Johnson, 19 Colo. 
App. 453; Currier v. Johnson, 31 Colo. 126. 

Thereafter, the present and all past executors filed an- 
swers, denying all acts of maladministration, breach of trust, 
fraud, mismanagement and misconduct, and denied that the 
principal estate had sustained great or any loss, or that it was 
then, or had been depleted by the fraudulent acts of its trus- 
tees, etc., or at all. Trial was to court. The findings in sub- 
stance, exonerate all the executors from any intentional wrong 
or fraud, or for any act of maladministration, breach of trust, 
mismanagement or misconduct for which they were to be held 
accountable in this action, except as hereinafter designated. 
The action was dismissed against Johnson, Wheeler and Clark, 
except that it was decreed that they execute quit claim deeds 
to the new trustees to be appointed for the original property, 
or any thereafter acquired by them as such officials. The 
material findings against Tuckerman and Mayher, in sub- 
stance, are, that the county court assumed to appoint them as 
the successors to Johnson and Clark, who relinquished control 
of the estate to them; that they have ever since held posses- 
sion and have assumed to administer the trust created by the 
will; that the county court did not appoint or assume to ap- 
point them as administrators with the will annexed; that 
neither Wheeler nor Johnson, on relinquishing possession, 
conveyed or released the title of the property to those to whom 
they surrendered it; that Mayher and Tuckerman while still 
in charge have assumed to purchase with trust funds certain 
real estate (naming it) ; that by order of the county court they 

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34 TucKSRMAN V. Currier. [54 Colo. 

paid from the income of- said trust funds certain fees and 
costs to Wheeler, Johnson and Clark on account of fees and 
costs paid by them to counsel for defending this suit after the 
reversal of said casevby the court of appeals, a portion of 
which was never paid back; that they paid counsel fees and 
costs in defending a suit in the county court against them, 
brought to compel them to keep separate accounts of principal 
and income funds ;. that since the decision of the court of ap- 
peals they have continued to file reports in the county court, 
and paid court costs in connection therewith from the income 
of the life beneficiaries, including large amounts for filing and 
recording their reports, and for having them examined and 
passed upon; that they have retained from the income certain 
amounts for their salaries as executors, also have paid large 
amounts for counsel fees and costs in defending this litiga- 
tion ; that the property belonging to said trust estate is now, by 
reason of improved financial conditions, and the prosi>erity 
prevailing in the city of Greeley and vicinity, materially in- 
creased in value, and is now of a value in excess of its actual 
and inventoried value at the death of Warren Currier, in the 
sum of at least $r 0,000. 

The conclusions of" law necessary to consider are, that 
by said will the legal title to said estate was vested in defend- 
ants Wheeler and Johnsoii- 'in trust for the beneficiaries named 
therein; that such legal title did not thereafter wholly or par- 
tially or at all devolve upon or become vested in Clark, May- 
her or Tuckerman; that in accepting the resignations of 
Wheeler and Johnson, and in assuming to appoint Clark, 
Mayher and Tuckerman as successors, the county court of 
Weld county was without jurisdiction, right or authority to 
do so; that in so far as the tenth paragraph of the will at- 
tempts to confer upon said court power or jurisdiction to ap- 
point trustees to administer said trust the same is void and 
inoperative; that neither of defendants, Mayher nor Tucker- 
man, has any lawfiPtftKf!6,' 6r right or interest in,' the prop- 
erty belonging to isaid^^tkte. 'rtie decree removes them l)e- 

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Sept., 'i2.] TucKKRMAN V. CuRmE^. 35 

cause not I^ally appointed, and for other reasons as it is 
alleged. In addition to their removal personal judgments 
were entered against the defendants Tuckerman and Mayher 
in favor of George W, and Henry F. Currier (the life benefi- 
ciaries) in the sum of $10,626 for certain moneys paid out 
by them as aforesaid. The decree fwtjfeer provides that the 
trustees of said estate distribute to the life. beneficiaries, George 
W. and Henry F., the increment or increase as found to exist 
in the sum of $10,000, under certain arrangements not neces- 
sary to consider. The defendants Tuckerman and Mayher 
bring the case here on appeal. 

In the execution of wills the cardinal rule is to have due 
r^ard to the directions of the will and the true intent and 
meaning of the testator to be derived, primarily from the lan- 
guage of the will itself, and if the same is not contrary to 
some positive rule of law or against public policy, to give it 
effect just as written.— /n R^. Shells' Bstaie, 28 Colo. 167; 
Plait V, Brannan, 34 Colo. 125; In Re Shapte/s Estate, 35 
Colo. 578, 587; Bacon v. Nichols, 47 Colo. ^1; Murphy v, 
Carlin, 113 Mo. 112; Gordon v, McDougM, 84 Miss. 715; 
Redfield on Wills, p. 385; Wangle v. MuUanny et al., 113 111. 
App. 457; Kemiey v, Kennedy et al., 105 111. 350. 

With this object in view we will proceed' to consider the 
questions presented in their historical order. The first relates 
to the capacity in which Johnson and Wheeler were ap- 
pointed. The appellants contend, that the testator intended to 
and did appoint them as executors, only, of his will, but by 
attaching to the office of executor certain trust duties, it made 
them, by operation of law, ex-^icio, his trustees during the 
period they held the office of executor; that the title was 
vested in the persons from time to time who held the office, 
and not in the persons first named as executors. The appel- 
lees contend that a proper construction of the entire will dis- 
closes that he not only appointed them as executors, but, by 
the language used, he, also designated them personally as the 



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36 TucKERMAN V. Currier. [54 Colo. 

trustees of the trust thus created and that the title went to 
them personally as such trustees and is still in them. 

In construing a will it must be presumed that the testa- 
tor knew the law. — Mangle v. Mullcmny et al,, 113 111. App. 

457- 

This presumption is unnecessary in the case at bar. The 

testator was conceded to have been learned in the law, ad- 
mitted to have once been a justice of the supreme court of 
Missouri, and, unless the language in the will indicates to the 
contrary, we must presume, that he used the word "executor" 
advisedly; that had he intended to appoint Johnson and 
Wheeler personally as trustees, and to devise his property to 
them in personam in trust, he would have used language suf- 
ficient to convey that intention. We fail to find such an ex- 
pression in the will, but to the contrary running throughout 
the entire instrument we find the expressions "my said ex- 
ecutors * * * and to the survivor of them and their suc- 
cessors" with a method provided in the will for the appoint- 
ment of successors. The word "executor" is used in nearly 
every paragraph ; the word "trustee" not at all. In paragraph 
6 the device is made to executors, the survivors of them and 
their successors. In paragraph 7 the power is given alike to 
the executors and successors. In paragraph 8 the duty of 
final distribution is laid alike upon the executors and their suc- 
cessors. Paragraph 10 provides for the continuance of the 
board of executors, and the filling of vacancies by appoint- 
ment made by the county court. In paragraphs 6, 7, 8 and 10 
the final duty of distribution, as well as the continuance of the 
office until all purposes of the will are accomplished, are given 
and bestowed, not upon any definite person as a personal trust, 
but upon the persons in office in perpetual succession. The 
testator knew and assumed (as we all must) that executors 
die, resign, or become disqualified, and he could not have, by 
any use of words or language, more firmly annexed a declara- 
tion of his intentions to provide that the office (the functions 
and powers given) was not to, in this manner, be endangered 

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Sept., 'i2.] TucKERMAN V. Currier. 37 

until the objects provided for by the will had been accom- 
plished. Taking these facts into consideration, the language 
is convincing that he intended to annex the estate and power . 
devised and donated to the office of executor virtute officii. 
The will named Johnson and Wheeler as executors ; it did not 
name them as trustees. They therefore became trustees by 
virtue of the fact that certain powers and duties were con- 
ferred upon them as executors which do not pertain to the 
powers and duties of executors, but belong to those of trus- 
tees. If a person be expressly named as executor, and also as 
trustee, the revocation of his appointment as executor will not 
necessarily revoke his appointment as trustee ; but where pow- 
ers and duties are conferred on a persen appointed as execu- 
tor, which do not pertain to the powers and duties of an ex- 
ecutor but pertain to those of a trustee, the executor by virtue 
of his appointment becomes a trustee by operation of law, in 
which event the revocation of his appointment as executor, or 
his resignation as such, revokes his power to act as trustee and 
the duties and powers thus conferred upon him as an incident 
to his appointment as executor, terminate. — Nangle v, Mul- 
lanny et cd., 113 111. App. 457; Mullcmny v, Nmigle et al., 212 
111. 247; Johnson v. Lcaurrence et al., 95 N. Y. 154; Mc Al- 
pine et al. V. Potter et al., 126 N. Y. 285 ; McArthur v. Scott, 
113 U. S. 340; Potter V. Couch, 141 U. S. 296; Scott v. West, 
63 Wis. 529; Vol. 7, Am. & Eng. Ency. of Law (ist Ed.), p. 
238; Colt V. Colt, III U. S. 566; Mather v. Mather et al., 103 
111. 607; Estate of Matthet^ Delmiey, 49 Calif. 76; Carson v. 
Carson, 88 Mass. 397; Groton v. Ruggles et d., 17 Me, 137; 
Vol. I, Perry on Trusts (5th Ed.), p. 36; Mott v. Ackemum, 
92 N. Y. App. 539; In Re Sturgis, 58 N. E. (N. Y. App.) 
646; Royce et al. v. Adams, 123 N. Y. App. 402. 

For the reasons stated (which are fully supported by the 
authorities last cited) we conclude from the language used, 
that Johnson and Wheeler, by virtue of their appointments as 
executors and the powers given them by the will, became trus- 
tees by operation of law ; that their resignation, its acceptance, 

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38 TUCKERMAN V. CURRIER. [54 Colo. 

and the appointment of their successors (if valid) revoked 
and terminated their powers to act as trustees, and that the 
title to the trust property devolves, by operation of law, upon 
their successors without the formality of a conveyance or as- 
signment. 

It is conceded that executors nominated by the will and 
their successors legally appointed may, as such executors, hold 
and administer testamentary trusts, if the will so provides ex- 
officio or virfute officii. — -Killgorc v. Cranmcr, 48 Colo. 226; 
Johnson v. Lawrence, 95 N. Y. 154; Lay tin z\ Darjidson, 95 
N. Y. 263; In Re McAlpine, 126 N. Y. 285; Kidwell v. 
Brufmnagim, 32 Calif. 436 ; 39 Cyc. 249. 

The fallacy of the Appellees' arguments lie in the assump- 
tion that by the will Johnson and Wheeler were personally 
designated as the trustees of the trust created, wdien, as we 
have shown, it named them as executors only, and did not ex- 
pressly or by necessary implication designate them as the trus- 
tees; they became ex-offido trustees only by virtue of the fact 
that certain powers and duties were conferred upon their office 
of executors which did not pertain to the regular duties of ex- 
ecutors, but belonged to those of trustees. This is self-evi- 
dent when we consider the language in the will w^hich places 
these duties upon his executors, the survivor of them, and 
their successors, and devises his property to his executors, the 
survivor of them and to their successors, and provides for the 
method for the appointment of such successors. We know 
of no rule of law which prevents a testator from providing a 
system for the selection of a successor executor. As we un- 
derstand the rule, he may provide conditional, limited or sub- 
stituted executors in case of vacancy, giving to them the same 
powers as those designated in his will. — 1 1 Am. & Eng. Ency. 
of Law (2nd Ed.), 747-748; Bishop v. Bishop, 56 Conn. 208; 
Ingle V, Jones, 9 Wall. 486, 497. 

We are not unmindful of the argument and have con- 
sidered the cases, which hold, where the same parties are ap- 
pointed executors and trustees, and after many years have 

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Sq)t., 'I2.] TUCKERMAN V. CURRIER. 39 

elapsed since the performance of the last duties as executors, 
and that the duties thereafter performed have been only those 
of trustees in such capacity, the law will assume that they 
have ceased to act as executors, and are acting as trustees 
only ; but in the case at bar from the language used, the testa- 
tor intended that the executors named, their survivors or suc- 
cessors should be continued and act as executors until the pur- 
poses of the will were fully executed. This intention is not 
declared in a single clause or sentence of the will, but runs 
through all its frame work and is interwoven into almost 
every provision thereof. We know of no rule of law which 
compels executors to close up an estate and turn it over to 
themselves as trustees within a certain time, where the will dis- 
closes a different intention. The opinions of this court 
throughout are that it is expected that the executors will con- 
tinue to hold and act as such until the duties imposed upon 
them by the will have been fully executed. — Hake v, Stott's 
Executors, 5 Colo. 140; Kill gore v, Cramner, 48 Colo. 226; 
Wyman v, Felker, 18 Colo. 382; French v. Woodruff, 25 
Colo. 339, 346. 

Suppose the will provided that the executors should, 
within a year from the date of its probate, sell the real estate 
and divide the proceeds among the heirs ; in such case no one 
woud contend that such a duty was not properly imposed upon 
the executors, and that they should do this before they were 
discharged as such. In many of the cases cited the principal 
reason for holding the persons named as executors and trus- 
tees, in the capacity of trustees only, is that the wills clearly 
contemplate a period of time when there shall be a separation 
of functions and duties, when the duties of the executors as 
such shall end, and when, by reason of the trust invested in / 
them by force of the will, they shall assume exclusively the 
character of trustees; but this will discloses a contrary inten- 
tion; it provides that the board of executors shall continue 
until the purposes of the will are fully accomplished, and that 
any vacancy arising, on the application of any beneficiary is 

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40 TuGKERMAN V. CURRIER. [54 Colo. 

to be filled by the county court of Weld county*. The testator 
emphaisizes this intention by saying "meaning the court in 
said county which shall have at. the time jurisdiction of pro- 
bate matters in said Weld county." The contention of the 
appellees that the estate is unnecessarily burdened with the 
cost of executors' reports, etc., is answered in the declaration 
of the testator himself, a man learned in the law. When mak- 
ing these provisions he must have known that his estate would 
be burdened with the necessary court costs incidental thereto 
throughout the period prescribed by him for keeping it in- 
tact. Having thus provided the system which he thought 
necessary for the protection of his heirs — if it does not vio- 
late any positive rule of law — neither the beneficiaries nor the 
courts have any power to change the conditions prescribed. 

The next contention urged is, assuming that the con- 
struction we have given the will is correct and that the testa- 
tor intended as we have indicated, it cannot be carried into 
effect for the reason that the tenth paragraph which empowers 
the county court of Weld county to appoint a successor ex- 
ecutor in case of a vacancy is void, for the reason that the 
county court sitting as a court of probate is without jurisdic- 
tion to make such appointment of either an executor or trus- 
tee; that only district courts which have unlimited chancery 
jurisdiction can appoint such trustees; that the county court 
sitting as a court of probate is limited to the appointment of 
an administrator with the will annexed. 

Section 23 of article VI of the constitution says that the 
county courts shall be courts of record and shall have original 
jurisdiction in all matters of probate, settlement of estates of 
deceased persons, etc., and such other civil and criminal juris- 
diction as may be conferred by law, etc. Eliminating appel- 
lants' contention that the order of the county court is broad 
enough to cover their appointments as administrators with the 
will annexed authorized by section 4682, Mills', and that sec- 
tion 4749, Mills', gave to them as such the authority to do 
everything which they have done; if the legislature has 

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Sept, 'ri.] TucKERMAN v: Ci^rribr. 41 

clothed the county court with the powfer to appoint successor 
executors, it cannot be consistently argued that this section o£ 
the constituticm has not vested them with this power. Gen^ 
eral section 4720, Vol. 2, Mills* Ann. Stats:, in force at the 
time of the execution of this will; and at the time of these ap- 
pointments, provides that where letters of one of several ex- 
ecutors or administrators are revoked, or one or more' of the 
executors or administrators shall die or become disqualified, 
the county court may, in its discretion, join others in their 
stead or place, and require additional bonds from such new 
administrator or administrators, or the survivor or survivors 
of such as shall not have their powers revoked, shall proceed- 
to manage the estate, and in case the letters of all of tfiem 
shall be revoked or all of said executors or administrators 
shall depart this life before final settlement and distribution 
of the estate shall have been made, administration with the 
will annexed, or as the case niay require shall be granted to- 
the person next entitled thereto; that in all cases where such 
executor or administrator shall have his letters revoked as 
aforesaid he shall nevertheless be liable on his bond to such 
subsequent administrator or administrators, or to any other 
person or persons aggrieved for any mismanagement, etc. 

Unless all rules of construction are disregarded, by the 
language of this section, it was intended to vest county courts 
with power in certain cases to app>oint subsequent executors. 
It says, "where one or more of the executors shall die or be- 
come disqualified, or in case the letters of all shall be revoked, 
the county court may, in its discretion, join others or * * * 
administration with the will annexed, or as the case may re^. 
quire shall be granted to the person next entitled thereto." 
If, as contended by counsel the only appointment that could 
be made under this section was that of administration with 
the will annexed, what rtieatiing is to be given the word "ex- 
ecutors" and what use is to be made of the words "join others 
in their stead or place?" The words "to join others in their 
stedd or place" when applied to executors certainly mean an^ 



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42 T ucKERM AN V. Currier. [54 Colo. 

other executor in the place of the other. On down in the sec- 
tion we find the words "or as the case may require shall be 
granted to the person next entitled thereto" when applied to 
executors as in this case, that person would be the person se- 
lected in the manner provided by the testator in the will; 
otherwise, all these words and phrases in the section must be 
treated as surplusage. This is contrary to all rules of construc- 
tion when full force and effect can be given them and thereby 
harmonize the entire section. This can be done by holding 
that the county court may appoint successor executors in a 
proper case, thereby giving force and effect to all the language 
used in its ordinary sense. 

In Hake v. Stott's Executors, 5 Colo. 140, this construc- 
tion was assumed as a matter of course. The will appointed 
a certain person executor. The action was brought for his 
rempval. The court held he should have been removed and 
that the county court was possessed with that power. After 
so deciding, among other things, the court said, 

"It will be the duty of the county court, upon the re- 
moval of the executor, to appoint a successor under the pro- 
visions of the law; to take good and sufficient bond for the 
faithful discharge of his duty; to see that he discharges his 
duty, and generally to protect this fund from the rapacity of 
all comers." 

We also have a legislative construction of this section. 
In 1903 it was thought proper to make a complete revision 
of our probate laws by their repeal and re-enactment; many 
changes were made in order to clear up questions then in 
doubt. The words "guardian," "conservator," "executor" 
and "administrator" were repeatedly inserted in the new act 
in order to make the meaning of certain sections more clear 
and certain. It is common knowledge that the burden of this 
revision was assumed by an organization of county judges ef- 
fected in 1902. Upon account of their experience and knowl- 
edge of the defects existing, these gentlemen were eminently 
fitted to supervise such work. When we come to the revision 

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Sept./i2.] TucKERMAN V. Currier. 43 

of this section, which is general section 712 1, R. S., 1908, we 
find the words "subsequent executor" are added in the last 
part of the section. This was unquestionably for the ]purpose 
of making clear the right of subsequent executors to bring 
suits against their predecessors for any defalcation, etc., the 
same as the former act said that administrators might do. 
The legislature must have assumed that the first portions of 
the old section authorized the county court to appoint subse- 
quent executors, for the reason that they made no change in 
that portion, but realizing that there was a doubt as to the 
authority of a subsequent executor to bring a suit against his 
predecessors, they sought to make that more clear by insert- 
ing the words "subsequent executor," thus making the act 
read tfie same throughout as to administrators and executors. 
We conclude that the county court was possessed with the 
power, under the circumstances disclosed to appoint subse- 
quent executors, and the appointments of the plaintiffs in 
error being substantially in compliance with the provisions of 
the will that they are not subject to attack. Illinois has vested 
her county courts with the same power. — Kennedy v. Ken- 
nedy, 105 111. 350; Kinney v. Keplinger, 172 111. 449. 

It appears to be conceded where a direction in a will is 
that if the named executor dies another person shall be the 
successor; that the successor thus appointed is an executor by 
substitution and not a mere administrator de bonis non. — 
Blake, Adm., v. Dexter et al., 66 Mass. 559; Kinney v. Kep- 
linger, 172 111. 449. 

In removing the present executors the decree says, in 
substance, because of their unauthorized appointment by the 
county court, and their misconduct as acting trustees of said 
estate, and the friction and feeling existing between them and 
ihe life beneficiaries. The acts pertaining to their alleged mis- 
conduct are not stated, nor any acts of hostility to the life 
beneficiaries. The record as a whole discloses that the real 
contest centers around the county court's jurisdiction to make 
the appointments, which included the validity of paragraph 



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44 TucKERMAN V. Currier. [54 Colo. 

ten of the will, and not the other matters. The court in sub- 
stance exonerates the executors from any fraud pertaining to 
any alleged breach of trust and in the oral opinion rendered 
says, in substance, that he was satisfied that no appointment 
he could make would long be satisfactory to the life bene- 
ficiaries, also that none of the executors had diverted any of 
the trust funds, but that they were not trustees de jure, and 
that he would do the same as though it was a matter of first 
instance, as if no trustees were in existence. From this rec- 
ord., had it not been for the erroneous conclusions of law per- 
taining to the jurisdiction of the county court, we cannot say 
that the decree would have been as it is pertaining to the re- 
moval of the executors, regardless of the allied hostiHty ex- 
isting between them and the life beneficiaries, whom it appears 
desire their removal. 

It is quite probable that had the life beneficiaries re- 
quested the resignation of the executors, and not coupled with 
it a demand for the return of a large sum of money, most of 
which at least was properly paid out by them, that they — ^as 
their predecessors had done — would have resigned and turned 
the management over to others ; but when the validity of cer- 
tain portions of the will, including that upon which their ap- 
pointments were based, is attacked, and when it is sought to 
hold them personally liable for the moneys expended in the 
defense of these matters, in the prosecution and defense of 
other suits, and in payment of their salaries, it is hardly prob- 
able that the mind of any individual is so constructed that he 
would be willing, under such circumstances, to voluntarily re- 
linquish his claim to such appointment, confess the error of 
his actions (conceded by the court to have been in good 
faith), and also pay to the life beneficiaries a large amount of 
money equal to that expended by him in these matters, includ- 
ing that received as his salary for the time spent during a 
series of years in the performance of such duties. In any 
event from the conclusions reached, it follows that the county 
court has exclusive jurisdiction in the appointment of succes- 

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Sept., 'I2.] TUCKERMAN V. CURRIER. 45 

sor executors when so provided for by the will. — General sec- 
tion 7121, R. S., 1908; Hake, Guardian, v. Stotts" Mxecutors, 
5 Colo. 140; Kennedy v. Kennedy, 105 111. 350. 

It is allied in the pleadings that some of the counsel 
fees were excessive. It is also allied that other moneys paid 
to former executors were not justifiable, and that other fees 
paid in the defense of certain litigation against them were not 
justified or expended in good faith, for which reasons, the 
judgment of the trial court should be sustained concerning 
these matters. There is practically no evidence pertaining to 
the amount or value of these services, or any attempt to sepa- 
rate their acts as executors or as trustees. The only evidence 
we call to mind concerning extortion of fees is that of the ap- 
pellant Mayher upon cross-examination, wherein he states, in 
substance, that it appears to him that some of the counsel fees 
were too high. The record as a whole discloses that the por- 
tion of the decree calling for the removal of the appellants 
and the personal judgment against them is based principally 
upon the erroneous assumption that the county court was 
without jurisdiction to appoint successor executors, for which 
reasons we do not feel justified at this time in attempting to 
separate and pass upon the matters proper to be determined in 
an action of this kind, as the issues and evidence now stand, 
but prefer to leave them to a trial court when they are prop- 
erly separated and presented in harmony with the views herein 
expressed, that the appellants are the duly and lawfully ap- 
pointed subsequent executors of the will. This justifies them 
in incurring any necessary and legitimate expenses in attempt- 
ing to have sustained the validity of the entire will, their ap- 
pointments thereunder, as well as to in good faith defend their 
course of procedure when attacked while in office. They have 
a right to an allowance out of the estate funds in a reasonable 
amount necessarily expended in such matters. — 2 Perry on 
Trusts (3rd Ed.), sec. 910; Kennedy v. Kennedy, 105 111. 
350; Sherman et al. v. Lonum, 137 111. 94; 28 Am. & Eng. 
Ency. of Law (2nd Ed.), 1091. 

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46 Tucifc^M AN V. Currier. [ 54 Colo. 

The decree provides that the trustees distribute to the 
h"fe beneficiaries, Geoi^e W. and Henry F. Currier, under 
certain conditions $10,000 out of the estate funds, as the in- 
crement or increase, pursuaiit to the provisions of paragraph 
7 of the will. Considerable argument is presented and many 
authorities cited as to the correct meaning of these words as 
here used. It is claimed by the appellants that no such issue 
was raised by the ple&dings or tried ; that under our rules of 
practice the relief must be confined to that called for by the 
facts stated in the pleadings. The following cases sustain this 
general rule. — Sodeft v. Murphy, 42 Colo. 352; M(?^^ v, Scott,, 
35 Colo. 68; The Ruble C, G. M. Co, v. F. A. G. M. Co., 31 
Colo. 158; Greer v, Heiser, 16 Colo. 306; City of Pueblo v. 
Griffin, 10 Colo. 3665 Miller v. Hallock, 9 Colo. 551 ; Tucker 
V, Parks, 7 Colo. 62. 

The alterations of the complaint as well as those in the 
cross-bill of the life bertieficiaries were that the principal estate 
had been fraudulently reduced under the management of the 
several executors in about $25,000; for this reason the ac- 
counting was sought to be followed by a judgment against 
the executors requiring them to return to the principal estate 
this amount. The iexecutors denied these allegations. To 
justify this judgment the court had to find not only that the 
all^rations of the complaint and cross-complaint in this re- 
spect were not true, but that the all^ations of the answer 
were more than true. If the findings upon which this portion 
of the judgment is based are to be considered at issue, we have 
the anomalous position of having the defendants attempting 
to prove a case in favor of the plaintiffs and cross-complain- 
ants, which they themselves are attempting to disprove. The 
appellants contend if it were a proper issue that the estate 
must be dealt with in solido, that the increase or supposed in- 
crease in one piece of property cannot be segregated as in- 
come, but still remains as a part of the principal estate until 
at least every part of the estate has been subject to an exami- 
nation and appraisement and the whole aggregated. This 

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Sept., 'I2.] TUCKERMAN V. Qu^RiER. 47 

I 

appears to be the general rule.— Oufco// v, Appleby, ^SU. J. 
Eq. 73; Parker v. Jt>knsoft, 3? M J. Eq. 366; Parker v. See- 
ley, Z^ Atl. (Nu J.) 280; Parsons, v. Winslow, 16 Mass, 361 ; 
New England Trust Co, v. Eaton, 4 N. E. (Mass.) 69; Van 
Barcotn v. Dager, 31 N. J. Eq. 783. 

In additicHi to there being no such an issue made by the 
pleadings, the record discloses that the rule above stated was 
not followed. There was no evidence offered covering, or 
full or complete appraisement taken of all the property for the 
purpose of determining this question, or to show where cer- 
tain items of property had increased in^ value (as found by the 
court in Greeley and vicinity) that thisrrise would offset the 
Joss in certain other items which may have decreased in value. 
Manifestly, this could not be done upon the evidence copcern- 
ing certain portions of the property only which had increased 
in value, when nothing is said about the remainder. 

The facts and rule of law last stated are not seriously 
controverted, but are sought to be avoided by the contention 
that the appellants have no right to be heard upon the judg- 
ment pertaining to the increase and increment, the manner in 
which it was secured, or the evidence upon which it is based, 
under the well known rule that they have no personal inter- 
est in the result of this portion of the judgment which con- 
cerns the life beneficiaries and the residuary legatees only, all 
of which were parties to the action. The following cases are 
cited to sustain this contention. — Benton v. Hopkins, 31 Colo. 
518; Barth V, Richter, 12 Colo. App. 2^5; Black v. Kirgan, 28 
Am. Dec. 394; Briard v. Goodale, 86 Me. 100; Estate of Mar- 
rey, 3 Pac. (Calif.) 896. 

Had such an issue been made by the pleadings we might 
find it necessary to pass upon the question, but the primary 
object of this case was to secure a construction of the will, 
the removal of the executors and personal judgments against 
them. Appellants charged with maffeasance in office; they 
had the right to be heard on these charges as well as upon the 
construction of the will, and the right to appeal from any rul- 



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48 TucKEEMAN V. Currier. [54 Colo. 

ing thereon. They brought with it the entire case wherein 
they would in any manner be effected personally, or in their 
official capacity ; the matter of the increment or increase is not 
here alone. It was not made an issue by the pleadings in the 
court below. No motion was made to dismiss the appeal 
concerning this portion of the judgment. The record shows 
that some of the plaintiffs who are residuary legatees were 
minors represented by a guardian ad litem probably selected 
at the solicitation of the life beneficiaries; we say this, from 
the fact that the trial court, in substance, found that the orig- 
inal suit was instituted and thereafter maintained by them; 
upon this subject the court in its preliminary findings says: 

"I have no difficulty in determining that this action has 
been waged by one, if not both, of the life-beneficiaries, and 
mostly instigated and inspired rather by them than by the 
children — ^the remaindermen. This is apparent all through 
the record. 

It is significant that the remaindermen ask nothing of 
the beneficiaries, attended with the additional circumstance of 
the cross-bill being filed on the very same day, and, if I am a 
literary critic at all, drawn by the very same hand. It now ap- 
pears of record that Henry is bearing most of the expenses of 
the litigation which abundantly supports the conclusion that 
it is being waged for his benefit." 

We are of opinion that the evidence justifies this state- 
ment and when all these facts are taken into consideration 
with the fact that the cause must be reversed for other reasons, 
we do not think that such a case is presented which requires 
us to at this late date s^regate this portion of the judgment 
from the other in order to establish a precedent either way as 
to the right of executors to take an appeal from such judg- 
ments, but prefer to remand the cause for a new trial when, if 
desirable, such an issue can be properly made up and evi- 
dence received and considered concerning it. 



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Sq)t, 'I2.] TUCKERMAN V. CURRIER. 49 

The judgment is reversed and the cause remanded with 
leave to the parties to amend their pleadings as they may be 
advised. Reversed and Remanded. 

Decision en banc. 

Mr. Justice Musser and Mr. Justice Garrigues not 
participating. 

Upon petition for extension of opinion by some of the 
appdlees and for rehearing by others. 

It is urged upon b^alf of some of the appellees as this 
suit was instituted in part to procure a constructicm of the will 
that in considering the portion of the judgment which pertains 
to the increase or increment awarded to the life beneficiaries, 
we should place a construction upon the language in the will 
which reads: 

"I enjoin upon my said executors to distribute fully and 
carefully the total net annual income and increment of my 
estate to the persons and in the time and manner herein pro- 
vided and so as to avoid the accumulation in their hands of 
property and assets in excess of the total value of the prop- 
erty and assets that shall originally come to them under this 
will." 

In view of a new trial or continued litigation upon this 
subject we have thought it proper to do so. A reading of the 
original opinion will disclose that in passing upon the ques- 
tion of increment, we accepted without discussion the mean- 
ing given to the word by the testator in the above paragraph. 
When this paragraph is considered in connection with the 
other portions of the will, which empowers the executors in 
their discretion to sell and dispose of all or any part of the 
prc^rty, both real and personal, and to re-invest the proceeds 
in productive securities or improved productive real estate as 
they may deem safe, there ought not to be any contention 
over it. Unless the force of this language is to be eliminated. 

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50 TucKERMAN V. Currier. ,. [54G0I0. 

it follows. that the life beneficiaries are entitled to receive from 
the executors bqth the income and any increase in. th^ total 
value co£' the estate above its value at the time it caipe into 
their hands. They are the only ones (except in case of the 
death of one of them) to whom the executors could distribute 
the increment so as to avoid the accumulation in their hands 
of property in excess of the total value of the property and 
assets that originally came to them under the will. This was 
unquestionably the intention of the testator. It could not ap- 
ply to the residuary legatees; as to them (as there used) it 
would be meaningless, for the reason, that, at the time they 
are to receive anything (except in case of the death of one 
of the fathers) it provides for a distribution of the- total es- 
tate among them, but not for any increment or increase alone. 
When they are thus to receive the estate nothing is to-be left 
to accumulate in the hands of the executors. The reason for 
the reversal of the award of $10,000 allowed as increment 
was because no such an issue was raised by the pleading, and 
no such case tried and because the court did not deal with the 
estate in isolido, which is the general rule in such 'cases. This 
rule is specially applicable here, where it is possible for the 
executors not to be possessed of any of the original property 
which came into their hands, and where the executors are en- 
joined (which makes it their duty) to distribute to the life 
beneficiaries the net annual income and increment of the es- 
tate so as to avoid the accumulation in their hands of property 
and assets in excess of the total value of the property and as- 
sets that originally came to them under the will. 

We adhere to our former views in all matters covered'by 
the original opinion. The petition for rehearing is denied. 

Mr. Justice White dissents. 



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Sept, 't2:] Bond v^ BatJKK.. 51 

r ... [No. 6d46.a- ^ " 

Bond v. Bourk. , 

1. STAirtTTB or Fbuuins — Sale of goods— An agreement liy one per- 
son to construct an article' for, and according to the* plans of another/ 
at an agre^. price, is a contract for work and labor and not within 
the statute, of frauds. mUs v, D, L. d G. R, R, Co,, 7 Colo. App. 362, 
distinguished. 

2. MxASUBS OF Daicages — Purchaser Refusing to Accept an Art- 
icle Manufiictured for Him According to His Plans — The rule is pract- 
ically universal in this country that where a purchaser refuses, with- 
out legal justification, to accept an article manufactured to his order, 
after special design, the vendor may, at his election, hold the article 
for the purchaser and recover the contract price with interest. 

And the purchaser is not allowed advantage of the hon-perform- 
anoe by the vendor of conditions, the performance of which- he him- 
self has prevented, e. g., where, the article being a soda fountain^ the 
defendant has refused to permit the plaintiff to Install it, as the con- 
tract required. 

Nor will the purchaser be allowed the benefit of a stipulation that 
some part of the price shall be paid in installments, at future times 
specified. 

The tender of the article, and plaintiff's election to sue for the 
contract price, vests title in defendant for the purposes of the action. 

Error to Denver District Court. — Hon. Carlton M. 
Buss, Judge. 

Mr. Harry E. Keijuy and Mr. Charles H. Haines, 
for plaintiff in error. 

Mr. John H. Reddin and Mr. J. R. Allphin, for de- 
fendant in error. 

Mr. Justice Bailey delivered the opinion of the court : 

In substance the complaint alleges that on or about 
March loth, 1908, plaintiff Bourk entered into an oral agree- 
ment with defendant Bond, to manufacture and deliver to 
the latter a soda water fountain of certain dimensions and 
particular design, to be manufactured by A. H. and F. Hi 
Lippincott, of Philadelphia, except the marble counter and 



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52 Bond v. Bourk. [54 Colo. 

base and the superstructure and wooden base, which were to 
be made by the Eureka Marble Works and J. P. Paulsen, re- 
spectively, Denver firms, all in accordance -with certain specifi- 
cations furnished by the Philadelphia company; that defend- 
ant agreed, in payment therefor, to deliver to the plaintiff a 
certain second-hand soda water fountain and apparatus, of the 
agreed value of $126, and the sum of $930, $45 thereof in 
cash, $140 thereof on delivery of the new fountain, and the 
balance in equal monthly instalments, for which notes were to 
be given, payment to be secured on the fountain ; that defend- 
ant, upon tender of the new fountain, refused to accept it, or 
permit it to be installed, or to make the cash payments, or 
execute the notes, or to in any way perform his part of the 
agreement; and that the fountain is held by plaintiff as the 
property of the defendant. The complaint also sets out a 
memorandum agreement in evidence of the oral one, which 
on its face appears to be a contract between A. H. and F. H. 
Lippincott and the defendant. It was on a printed form used 
by the Lippincotts, filled in to conform to the alleged agree- 
ment. It is further averred that the names A. H. and F. H. 
Lippincott, wherever they appear therein, should be erased 
and the name of the plaintiff inserted in lieu thereof. Dam- 
ages were prayed at the agreed price of the fountain. Tlie 
defendant admitted that he signed the memorandum agree- 
ment set out in the complaint, but denied that it was a con- 
tract with plaintiff; also admitted that he refused to deliver 
the old fountain or accept the new, or to permit plaintiff to put 
it up, or to make the cash payments or execute the notes, and 
denied all other allegations. The second defense is a general 
denial. The third defense alleges non-compliance with, and 
non-performance by plaintiff of, the provisions of the agree- 
ment. The replication puts in issue all new matter in the an- 
swer. A jury found for the plaintiff upon the issues tendered, 
and assessed his damage at $1,105.28, being the contract 
price with interest. Judgment was entered accordingly, and 
the defendant brings the case here for review on error. 

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Sq}t., '12.] Bond v. Bourk. 53 

Defendant contends that there was no contract between 
himself and the plaintiff, as alleged, or at all; and further, 
that if the agreement set out in the complaint is held to be be- 
tween plaintiff and defendant, still there was a failure by 
plaintiff to perform the conditions thereof binding on him, 
and no recovery can be upheld. 

The jury, under full and correct instructions, found that 
the ccHitract was made by the parties as alleged in the com- 
plaint, and also that plaintiff had fully complied with its 
terms, completed the fountain according to specifications, of- 
fered to deliver the same within the time specified, and set it 
up as required by the agreement. These findings have ample 
support in the evidence, and are conclusive on review. So 
that it must be accepted as settled that the contract is as set 
forth by plaintiff, and that he had fully complied, or was 
ready, able and willing to comply, with all of its provisions 
binding on him. 

It is urged that there can be no recovery, because there 
was no sufficient written agreement between the parties, as 
required by the statute of frauds, that every contract for a 
sale of "goods, chattels t)r things in action" for the price of 
$50 or more shall be void unless a note or memorandum 
thereof be made in writing and subscribed by the parties to 
be charged therewith. Is the contract within the statute of 
frauds ? 

The fountain which the plaintiff agreed to manufacture 
and deliver was of particular dimensions and finished after a 
special design furnished by a third party. It does not ap- 
pear that it was such an article as the plaintiff manufactured 
or produced for general trade purposes, nor does it appear fifeit 
he manufactured such an article in the ordinary and usual 
course of business. The wood work was to be furnished by 
one party, the marble work by another, and the working parts 
by still another; all of which plaintiff contracted to assemble 
and deliver to the defendant, in the form of a complete new 
soda water foimtain after a special design, peculiarly adapted 



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Sept., 'i2.] Bond v. Bourk. 55 

delivery was to be made. The defendant objects to this in- 
stniction as improperly stating the rule. The plaintiiff pleaded 
and proved a tender of the property constructed according to 
the terms of the contract, and an offer to set it up, in exact 
compliance with the agreement, and the jury so found. He 
also, to the satisfaction of the jury, established his abiHty and 
willingness to do this, and showed that the only reason for 
failure of delivery was the refusal of the defendant to permit 
him to set the fountain up, or to pay for or receive it on any 
terras or at all. The plaintiff then and there elected to hold 
the fountain as the property of the defendant and sue for the 
contract price, and gave notice accordingly. The rule is prac- 
tically universal in this country, that where a purchaser re- 
fuses, without legal justification, to accept, when tendered, an 
article manufactured to his order, after a special and particu- 
lar design, the vendor may, at his election, hold the property 
for the purchaser and sue for recoverj'^ of the contract price, 
such article being presumptively without a market value. The 
rule here announced as the measure of Vlamage is intended to 
be limited to the particular facts of this case, and to cases in- 
volving a like or kindred state of facts. The English rule is 
different, and has been followed in two or three of our states, 
notably Maine and Vermont. 

On the contention that no title passed to the defendant, 
the weight of authority is that, although a contract for a sale 
of a chattel provided that title should not pass until settlement 
is concluded, and it is accepted by the seller, still after a ten- 
der of delivery the seller may maintain an action for the 
agreed price. The tender of delivery and election to sue for 
the contract price vests title in the defendant, at least for the 
purposes of an action like this. Defendant repudiated his con- 
tract when he notified plaintiff that he would not receive or 
pay for the fixture, and would not permit it to be put up in 
his store; and he waived the conditions that the payments 
were not to be made or the notes executed until the fixture 
was set up. Plaintiff thereupon was entitled to sue for the 



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56 Bond v. Bourk. [54 Colo. 

contract price, without reference to the fact that the appa- 
ratus had not been set up; that is, the defendant cannot take 
advantage of the non-performance of the conditions by plain- 
tiff which he himself has prevented him fulfilling. Plaintiff 
stands, and at all times has stood, ready to deliver the fixture,, 
finished and set up precisely as agreed upon, and there is no 
apparent sound or valid reason why he should not recover the 
amount which the defendant specifically undertook to pay 
therefor. Plaintiff has obtained from the Lippincotts the 
working parts of the fountain, and Paulsen and the Eureka 
Marble Works have carried out their contracts with him, alid 
he has either paid, or is obligated to pay, for the work so done 
and materials so supplied. Defendant is not liable to these 
parties; that liability is solely upon plaintiff, and they must 
look to him for their respective claims, and he in turn 
ought, as a matter of common fairness, to be saved harmless 
on his contract. The defendant alone is in default; he has 
deliberately repudiated his contract to the damage of plaintiff, 
and we are unable to see how a more just, natural or proper 
measure of that damage can be found than the amount named 
in the original contract and fixed as the actual value to the 
defendant of the article furnished. Under such circumstances 
substantial justice can only be done by pennitting the plaintiff 
to recover the agreed price, which is, in effect, simply requir- 
ing the defendant to live up to his contract. If the defendant 
does not want the property, he is at liberty to protect himself » 
should he desire to do so, by disposing of it, and that burden 
is properly upon him, rather than upon the plaintiff. These 
conclusions are abundantly supported by the following well 
considered cases. — Magnts v, Sioux City N, & S. Co., 14 
Colo. App. 219; Colo. Springs L. S. Co. v. Godding, 20 Colo. 
249; Mitchell z\ LeClair, 165 Mass. 308; Bookwolter v. 
Clark, II Bissell (Fed.) 126; Bdlentine v. Robinson, 46 Pa. 
177; Black River Lumber Co. v. Warner; 93 Mo. 374; Range 
Co. V. Mercoftiile Co., 120 Mo. App. 438: Shawfum v. Vcat 
Nest, 25 Ohio St. 490; Crozvn Hill Vinegar and Spice Co. v^ 

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Sept., 'i2.] Van Gordor v. Van Gordor. 57 

Wehrs, 59 Mo. App. 493; Beift^vf v. Sntith, 11 Wend. (N. 
Y.) 492; Schzcarzer v, Karsch Brewing Co,, yj N. Y. Sup. 
719; Moore v. Potter, 155 N. Y. 481; Smith v. Wheeler, 7 
Ore. 49; Register Co. v. Hill, 136 N. C. 272, American Soda 
Fountain Co, v, Gerrers' Bakery, 14 Ok. 258; Meagher Co. v. 
Cowing, 149 Mich. 416; McCormick Harvesting Machine Co, 
^\ Markert, 107 Iowa 340; Kinkdad v. Lynch, 132 Fed. 692; 
Caar, Scott & Co. v. Fleshmon, 38 Ind. App. 490; 3 Suther- 
land on Damages, 3rd Ed., sec. 649. 

The judgment is affirmed. 

Mr. Justice Musser and Mr. Justice White concur. 



[No, 7297.] 

Van Gordor v. Van Gordor. 

Alimony — Amount — Discretion of the Court — ^Wbere a divorce is 
granted to the wife the amount of alimony to be awarded is in the 
sound discretion of the trial court. Its award will not be disturbed 
unless a clear abuse of the discretion is shown. An allowance to the 
wife, no longer able to perform hard labor, of a sum not exceeding 
one-half the net value of the husband's estate, acquired by their Joint 
labors and economy, was held not only a proper, but a wise exercise 
of the discretion. 

Appeal from Weld District Court, — Hon. James E. 
Carrigues, Judge. 

Mr. H. E. Churchill, for appellant. 

Mr. Joseph C. Ewing, for appellee. 

Mr. Justice Bailey delivered the opinion of the court : 

Plaintiff, appellee here, commenced this suit against de- 
fendant, appellant here, in the district court of Weld county, 
for divorce and alimony, basing her right of action on three 
pounds: First. That the defendant had been guilty of 



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58 Van Gordor v. Van Gordor. [54 Colo. 

habitual drunkenness for the space of one year or more ; Sec- 
ond. That he had been guilty of extreme and repeated acts 
of cruelty toward the plaintiff; and Third. That he had been 
guilty of adultery. The case was tried to the court without 
a jury, and defendant was found guilty of extreme and re- 
peated acts of cruelty toward the plaintiflf, and of adultery. 
A decree of divorce was awarded and plaintiff given a judg- 
ment for $8,000, as permanent alimony, also $100 for attor- 
ney fees in addition to $100 already allowed for that purpose. 
The judgment was made a lien against the real estate of the 
defendant, until within a time limit he should give a legal and 
sufficient bond on appeal to the supreme court, in the sum of 
.$12,000, which bond was duly filed and approved. 

From the judgment of the court awarding alimony fhe 
defendant brings the case here upon the ground that such 
award is excessive, contrary to law and not supported by the 
evidence. The evidence taken a5 a whole shows that the 
value of the defendant's property, at the time of the judg- 
ment, varied, in round numbers, from $20,000 to $24,000, ac- 
cording to the testimony of the defendant and his witnesses^ 
and from $37,000 to $43,000, upon the testimony of the 
plaintiff and her witnesses: that the property consisted of an 
one hundred and sixty acre ranch with water rights, grow- 
ing crops, ordinary farm machinery, livestock, work horses 
and the like. The evidence showed that the defendant was 
indebted in the sum of $9,000. If the testimony of the plain- 
tiff be taken, the net value of the defendant's assets would be 
$35,300, one-half of which would be $17,650. According to 
the testimony of the witness Holland, sworn in behalf of 
plaintiff, the net value of the defendant's assets was $30,000,. 
one-half of which would be $15,000. According to the esti- 
mate of the witness Farr, called by the defendant, the net 
value of the latter's estate was $14,700, one-half of \yhich 
would be $7,350. 

It is well established that the amount of alimony to be 
awarded in divorce proceedings is in the sound discretion of 

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Sept., 'i2.] Van Gordor v. Van Gordor. 59 

the trial court, and an appellate tribunal will not review that 
decision unless a clear abuse of such discretion has been 
shown. — Boggs v. Boggs, 45 Ind. App. 397; Gussnum v. 
GusstiMH, 140 Ind. 433 ; and Re'ad v. Read, 28 Utah 297. The 
rule is stated by Justice McCarty, in the case of Read v. Read, 
supra, as follows : 

'*The awarding of alimony and fixing the amount thereof 
are questions, the determination of which rests within the 
sound discretion of the trial court; and, unless it is made to 
appear that there has been an abuse of discretion on the part 
of the court in dealing with one or both of these questions, its 
judgments and orders granting or fixing the alimony will not 
be disturbed." 

We have carefully examined all of the evidence, and 
reach the confident conclusion that it amply supports the 
award. From the testimony of the defendant, which in the . 
very nature of things is quite as favorable to himself as it 
could be made, it appears that the net value of his estate was 
$14,700, one-half of which would be $7,350, only $650 less 
than the alimony actually decreed. Under the well established 
rule that appellate tribunals will not disturb judgments based 
on conflicting testimony, where there is sufficient in the rec- 
ord to support it, the award of alimony here should stand, as 
the discretion of the trial court seems to have been not only 
properly, but wisely exercised. 

Upon the law of the case, natural justice requires that at 
least one-half of the property, representing the joint accumu- 
lations of husband and wife for a lifetime, should go to the 
wife, where she obtains a decree of divorce through the fault 
of the husband. Where, as in this case, the husband and wife 
have lived together until she is unable to perform hard labor, 
and have, by their joint labor, management and economy, ac- 
quired property sufficient to support them both comfortably 
when living together, certainly when the wife is forced by the 
misconduct of the husband to sedc separation, she ought to 
receive sufficient property to support her comfortably, living 

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6o Van GoRDOR V. VIan GoRDOR. [54 Colo. 

alone, without reference to her ability to work and contribute 
to her own support. — Gercke v. Gerckc, 100 Mo. 237; Ressor 
V. Ressor, 82 111. 442. 

In many respects the case of Gercke v. Gercke, supra, is 
like the one at bar. There plaintiff and defendant had been 
married thirty-three years, and by industry and economy had 
accumulated an estate worth about $12,000. Plaintiff, who 
was fifty-seven years old and in poor health, had always been 
a faithful wife ; defendant had treated her with great brutality 
and had been guilty of adultery. He was fifty-four years old, 
in robust health, and making money in his business. The wife 
had no means of support, and from her age and health ,was 
unable to earn anything. The trial court made an allowance 
of $6,000 alimony, which was sustained by the supreme court 
of Missouri. In the opinion of the court Justice Brace makes 
the following comment: 

"That decree gives the plaintiff a moiety of the defendant's 
fortune. Is it under the circumstances too much? As before 
intimated, this fortune represents the joint labor, thrift and 
economy of thirty-three years of the married life of the plain- 
tiff and defendant. The one equally with the other is the 
meritorious cause of its existence; by hard work faithfully 
performed by each, within their respective spheres, it was 
saved and laid by, from the rewards of their daily labor.. They 
should have gone down to their graves in its mutual enjoy- 
ment ; that they have not done so, is not the fault of the plain- 
tiff ; without fault upon her part, she has by the brutal and 
unfaithful conduct of her husband been deprived of the fruits 
of her toil and thrown upon the world with nothing but a lit- 
tle household furniture, the value of which is not worth esti- 
mating. Her age and the condition of her health is such that 
she can by her labor do but little towards making a support, 
and reduces to an inappreciable amount the suggested value 
of her inchoate right of dower when considered in connection 
with the age and health of the defendant. The husband is in 
possession of all the fruits of their joint labor; he has it in- 
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Sept., 'i2.] Van Gordor v. Van Gordor. 6i 

vested in real estate and in a profitable and thriving business ; 
he is in the enjoyment of vigorous and robust health, and 
"making bushels of money," as he expresses it. Under these 
circumstances it did not seem to the chancellor that it was 
anything but fair and just that the innocent, injured, and 
comparatively helpless wife should have a moiety of this es- 
tate, and now after the lapse of more than two years, during 
which time the defendant has refused to pay the moderate ali- 
mony pendente lite his appeal to this court, allowed her by the 
trial judge, or to contribute anything to her support, but has 
put her to the exi>ense and delay of prosecuting two actions 
through the appellate court in order to g^t anything, we do 
not feel disposed to disturb his judgment." 

It appears in the case of Rcssor v. Rcssor, supra, that the 
appellant was a capable, industrious woman, attending to her 
family, her house, cooking and working on the farm, doing a 
man's work besides, and had been a good manager; that the 
parties were married and had lived together for thirty-seven 
years, and she was fifty-nine years old at the time of the hear- 
ing; that when they were married neither had any property; 
and that through their joint efforts they had accumulated a 
comfortable fortune. It was vigorously contended by the 
husband, on appeal, in that case, that the wife should be lim- 
ited to one-third of the income from his property. The facts 
there, and the contention of the attorney for the husband as 
to the amount of alimony, are substantially as here. There 
the court, among other things, at page 445, said : 

"She in every way contributed equally to its (farm) im- 
provement, and is fully entitled in equity, and the broadest 
principles of justice, in her declining years, to a comfortable 
support from it. She should not be put off with what will 
bardy prolong her existence. 

"It appears that she was fifty-nine years old at the time 
of the hearing, and was not in her former vigorous and ro- 
bust health. She has probably passed the period when she will 
be able to perform much more physical labor. The infirmities 

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62 VanGordor v. Van Gordor. [$4CqU>. 

of age mijist soon, according to the course oi n^%me, render 
her at least connparatively helpless, and she must loc4c to other 
sources than her own efforts for support. As we. have 5e«i, 
she has earned and is entitled to a comfortable support out 
of the joint accumulations of herself and her hugband. 

"In consideration of all the evidence, we regard the 
amount fixed by the court as being too small. Her board, we 
presume, would cost her two-thirds of the amount, and the 
remainder would seem to be a scant allowance to purchase and 
make her clothing, pay doctor's bills, and other contingent ex- 
penses. At her age, her ability to work should not be taken 
into account, as the infirmities of age may and soon will pre- 
vent that, and even if it were not so, she, after her life of hard 
and incessant toil to accumulate this property, has the right to 
spend her declining years in ease and comfort, freed from toil 
and effort. This she has earned, and is entitled to it. 

If so, one-third of the sum would be $500 per annum. 
But the court is not limited to a third of its income. This 
amount would not be unfair, unjust or unreasonable, even if 
it should require a sale of a portion of this property. Natu- 
ral justice would say, that if she contributed equally to its 
acquisition, she has an equal right to its enjoyment. Inde- 
pendent of conventional law or usage, such would be the de- 
cision." 

The foregoing cases deal with facts quite similar to those 
in the case at bar. Plaintiff and defendant started life as man 
and wife, practically without a cent. Their married life cov- 
ered a period of thirty-one years; they reared a family of 
three children. Even after marriage, the wife worked in a 
hotel for $1.50 a week. They then settled on a homestead, 
and she taught school four miles from home for $50.00 a 
month, and boarded herself in order to pay the homestead 
fees. She walked the eight miles, to and from school. Later 
she went to cook and work out on a ranch, and stayed there 
for two years, until within one month before her first child 

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Sept., 'i2.] Van Gordor v. Van Gordor. 63 

was born. As soon as the baby was ten or eleven months old, 
she went back to the ranch to work, and cooked there for four 
years, all of her earnings going into the common fund. She 
assisted her husband on the farm, planting and harvesting 
crops, raising chickens, making butter and milking cows. One 
winter she fed the stock, while her husband worked away 
from home, and sold butter and eggs enough at the same time 
to support herself and the baby in his absence. After living 
in Kansas nine or ten years, they rented farms in Colorado 
for some time, and the first two or three years the wife worked 
in the field, the same as her husband. Everything that she 
acquired from the sale of butter, eggs, chickens and the like 
was turned into the family fund. She continued thus to per- 
form labor, working and contributing to this fund for the 
period of twenty-seven years, until all of the property ac- 
quired and now held by the defendant was practically paid 
for. It is distinctively a common property, the joint product 
of the two. They then moved to the city of Greeley, in order 
to have educational advantages for their children. It was 
about this time that their troubles began, which finally led tt% 
this action. The defendant himself, in his testimony, bears 
witness to the devotion and fidelity of this faithful and pa- 
tiently industrious wife in the accumulation of the family for- 
tune, in this picturesque and convincing language: "My wife 
helped to accumulate thi^ property, the water rights and the 
farm, and helped all along ever since we were married, about 
thirty-one years." I think she did her full share. Worked 
out and taught school when we were first married, milked 
cows and slopped hogs, and worked in the field. She cooked 
for hired men." It would be difficult to imagine a state, of 
facts more emphatically calling for an application of the rule 
stated in and illustrated by the cases of Gercke v, Gercke and 
Resior v. Ressor, supra. Under the circumstances disclosed 
by this record, it seems clear, as matter of law and upon the 
broadest principles of justice, that this woman is entitled to 
the full -Slim; awarded, which, under all of the evidence, may 

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64 Colorado Etc. Co. v. Raiij^oad Commission. [54 Colo. 

be sv..«^ to represent less than one-half of the net worth of the 
property, in the accumulation of which plaintiff has borne so 
conspicuous and helpful a part. Even had a larger sum been 
allowed her, it could have been, upon the entire record, fairly 
and justly upheld. 

The judgment is affirmed. 

Mr. Justice Musser and Mr. Justice Gabbert concur. 



[No. 7908.] 



The Colorado and Southern Railway Co. v. The State 
Railroad Commission 'et al. 

1. Constitutional Law — Particular Statutes — The act for the 
appointment of a railroad commission (Laws 1907, 681, Rev. Stat c. 
121 art. yii.) is a constitutional enactment. Canaumera League 17. 
Colorado dc. Co., 63 Colo. 64 followed. 

2. Delegation of Legislative Power — ^The constitution prohib- 
its the delegation of the powers of the legislature. A statute (Laws 
1910 c. 6) required every railway company to furnish cars to shippers; 
to prescribe reasonable time schedules for the operation of trains; 
prohibited undue advantages to particular localities; and required the 
utmost diligence in the carriage of goods committed to them for 
transportation'. Neither the number of trains to be operated, the time 
within which any train should run, or the equipment of the trains 
was specified. Other provisions of the act provided for the appoint- 
ment of a commission charged with the administration of the statute, 
and authorized to direct what equipment should be supplied, what 
trains should be operated, and what other duties expressly or implied- 
ly imposed upon common carriers should be exacted of them. Held, 
not a delegation of legislative power. 

3. Statutes — Construction — A statute which is essentially re- 
medial, e. g,, the act creating the railroad commission (Laws 1910 c. 
5) is to be liberally construed to accomplish its object. 

The title of an act may be resorted to to aid in ascertaining the 
legislative intent. 

4. Construed — ^The defendant railway company had aban- 
doned the operation of that part of its railway between Breckenridge 
and Ckimo, twenty-one miles hi length, and operated only a combina- 
tion train between Denver said Como. The effect was that all the 
freight between Denver, the commercial and political center of the 
state, and Breckenridge, a mining tillage of 800 souls^ was required 



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Sept., 'i2.] Cow^RADO Etc. Co. v. Raiuioad Commission. 65 

to i»a88 by another railroad, a distance of 317 miles, breaking bulk on 
two occasions, and consuming several days; whereas If trains were 
regularly operated upon defendant's railway, the distance was only 
110 miles, and the freight was received upon the day of Its shipment. 
Passengers, too, were required to go by the same circuitous route, and 
one desiring to travel from Breckenrldge to Como, only 21 miles by 
defendant's railroad, was required to travel nearly 400 miles. More- 
over the freight charge, and the passenger rate, were greatly In- 
creased. Held, that under the act creating the railroad commission 
(Laws 1910 c. 5) the commission was authoHzed to require the defend, 
ant to resume the operation of Its line between Como and Brecken- 
rldge, and to operate a passenger train, dally except Sundays, be- 
tween Denver and Leadvllle by the way of Como and Breckenrldge, 
and a through freight train at least three days In each week. 

Section 11 of the amendatory act organizing the railroad commis- 
sion (Laws 1910 c. 5), provided that three commissioners should be 
appointed by the governor, but with the proviso that those elected 
under the original act should continue In office for certain terms 
specified. Held, that the effect of the statute was not to create an of- 
fice, and at the same time designate the persons who should fill It, 
but to retain the commissioners then In office by election of the peo- 
ple, ezceptl'Bg them from the operation of the power of appointment 
conferred upon the executive. 

The constitution (art. XV, sec. 3) provides that the general as- 
sembly may alter the charter of any corporation theretofore granted, 
when In their opinion injurious to the citizena of the state, "but only 
In such manner that no Injustice shall be done to the Incorporators." 

A statute (clause 6 sec. 602 Mills Stat.) provides that railroad 
companies organized under the act shall have power "to regulate the 
time and manner In which passengers and property shall be ti:ans- 
ported, and the compensation to be paid therefor." Held, that the 
rights thus granted were not uinllmited, and to be exercised without 
regard to the interest of the public; that the anticipated benefit to the 
public was the consideration of the franchise granted; that the ac- 
ceptance of the grant by the corporation Imposes upon It the obliga- 
tion to operate Its railroad, when constructed. In the manner and for 
the purposes contemplated by the statute; that the grant must be read 
In connection with the other provisions of the statute, and with the 
obligations which the law, independent of any statute, Impliedly Im- 
poses, to furnish such service as may reasonably accommodate the 
public; that the surrender, either by constitutional or statutory pro- 
vision, of the power of the state to reasonably control railroad onn- 
panies is oot to be Inferred In the absence of positive words to that 
effect, and no such words are found either in the constitution or 
statute. 



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66 Cozx)radO'£tc. Co. v. Raiuioad Commission. [54 Colo. 

Held, further,, that to require a railway company to resume the 
operation of a portion of this railway which it had abandoned, even 
though such operation might be unprofitable, was not an injuatlce to 
the corporation, nor the taking of its private property without due 
process of law, where it appeared that the suspension of operation 
had occasioned and would occasion great inconvenience and addi- 
tional burdens to the public. 

5. Railboad OOMPAiOES — Duty to Operate Constructed Lines — 
Whether a railway company can be compelled to construct the line 
which it has adopted In its charter, quaere. 

But a railway company may, where the public interest requires,, 
be compelled to resume the. operation of a part of its constructed line 
which it has abandoned, even though in fact such operation may be 
at a loss. 

The railway company claiming that the operation of a particular 
branch or part of 'its railway will be unprofitable has the burden of 
proof. 

The evidence examined, and held that the railway company had 
not sustained this burden. 

The question of loss must be considered in connection with the 
duties of the railway company to the public, and the result of its cor- 
porate business, as a whole; it is not to be excused from performing 
its whole duty, merely because by ceasing to operate a part of its sys- 
tem the net returns will be increased. 

6. Railroad Commission — Powers — ^An order of the railroad com- 
mission requiring a railroad company to resume the operation of a 
branch of its railroad which it had abandoned, to operate passenger 
trains daily except Sundays, and three freight trains weekly, ap- 
proved, and the decree of the district court enforcing the order af- 
firmed. 

Error to Summit District Court. — Hon. J. E. RizER^ 
Judge. 

Mr. E. E. Whitted, Mr. John A. Ewing and Mr. R. 
H. WiDDicoMBE^ for plaintiff in error. 

Hon. Benjamin Griffith, attorney general, Theo. M. 
Stuart, Jr., assistant attorney general, for The State. Rail- 
road Commission. 

Mr. Barney L. WhatlEy, for the Breckenridge Cham- 
ber of Commerce. 

Mr. Justice Gabbert delivered the opinion of the court : 

The Colorado and Southern Railway Company is a cor- 
poration organized under the laws of this state. It owns a 



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S^t., '12.] Colorado Etc. Co. v. Railroad Commission. 67 



standard gauge line from Orin Junction, one hundred and 
fifty miles north of Cheyenne, Wyoming, extending southerly 
through Colorado tt> Denver, and thence to a point near the 
New Mexico-Texas Hne. In addition to this system, it owns 
a narrow gauge line, extending southwesterly up and along 
Platte Canon to Como, from Como over Boreas Pass, down 
into Breckenridge, then up and over Climax Pass into Lead- 
ville; also, a line extending from Como southwesterly -through 
the town of Buena Vista to Gunnison, and thence to BaTHwiH*, 
about twenty miles from Gunnison. This narrow gauge line 
is about three hundred and thirty-five miles in length, is 
known as the South Park division of The Colorado and 
Southern Railway Company, and is connected with, and forms 
a part of the system operated by the company as a whole. It 
is shown more particularly on the following map : 




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68 CoumADo Etc. Co. v. Raiuioad Commission. [54 Cokx 

The South Park line has been operated continuously pre- 
vious to the winter of 1910-1911 by the railway company and 
its predecessors for about thirty years, during which period 
the service consisted of not less than one passenger train each 
way each day, from Denver to Leadville, and one freight train 
each way each day between the same points. In November, 
19 10, the railway company ceased to operate that portion of 
its line from Como to Breckenridge, and refused to receive 
or transport either passengers or freight over its road between 
these points. The service was then limited to a combination 
freight and passenger train between Como and Denver, and 
a similar service between Breckenridge and Leadville. In 
the summer of 1911 a passenger train daily, except Sunday, 
was operated between Leadville and Breckenridge, with a 
stub train from Breckenridge to Como, and a combination 
train from Como to Grant, connectfng with a passenger train 
at the latter point for Denver. This service was continued 
until January, 191 2, when the stub train between Brecken- 
ridge and Como was discontinued. In the meantime the pas- 
senger train from Grant* to Denver was taken off, and a com- 
bination train run between Como and Denver. The passen- 
ger service between Breckenridge and Leadville was contin- 
ued, and also a tri-weekly freight train between these points. 
By reference to the above map, it will be seen that passengers 
from Breckenridge for Denver were compelled to go to Lead- 
ville, and thence over the Denver & Rio Grande, via Pueblo, 
or over the Midland, via Colorado Springs. 

In the latter part of 1911, the Breckenridge chamber of 
commerce filed a petition with the state railroad commission, 
setting forth the facts above narrated concerning the opera- 
tion of trains down to that time, and charged that, unless 
restrained, the railway company, during the winter of 1911- 
1912, would cease to operate its road between Como and 
Breckenridge, and probably for all time to come; and that 
freight from Breckenridge to Denver, or tHcc v^sOy had to 
be shipped over the Denver & Rio Grande via Leadville and 

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Sq)t., 'i2.] Coi/)RAix> Etc. Co. v. Raiuroad Commission. 69 

Pueblo. The petitioner asked that the railway company be 
ordered to operate its line between Como and Breckenridge, 
and to receive and transport freight between Denver and 
Breckenridge and all intermediate points, and provide an ex- 
clusive passenger service between Denver and Leadville, 
daily, including Sunday. 

The railway company filed an answer, challenging the 
jurisdiction of the commission to make any order in the prem- 
ises, denied that closing the road between Como and Breck- 
enridge occasioned any damage to the citizens of BreckSh- 
ridge and Summit county; admitted that it had declined to 
receive freight for transportation from Denver, through Comb 
to Breckenridge, that such freight, when conveyed to Breck- 
enridge, was shipped via other lines of road, through Colo- 
rado Springs and Pueblo to Leadville, and then reshipped fo 
Breckenridge; admitted that it refused to receive for trans- 
portation any freight between Como and Breckenridge, con- 
signed to Breckenridge ; and had refused to receive and trans- 
port over its own line freight consigned to Breckenridge origf- 
inating at Denver or points between Denver and Como. It 
then set forth at some length the physical character of its 
line from Denver to Leadville, the fact that it was built 
through a canon and over high mountain passes; that the 
grades and curves between Como and Breckenridge were ex- 
cessive; that there was no business between these points; that 
the line was often closed by storms and snowslides, which im- 
posed upon the company a heavy expense; that during the 
year 19 10 the operation of the road bet wen Como and Lead- 
ville resulted in a heavy deficit ; that there was no prospect of 
an improvement of business over the line; that there was no 
necessity for operating a railroad between Como and Breck- 
enridge, and not enough business between these points to pay 
the operating expenses of running trains and maintaining^ 
a road, and that the railroad facilities to and from Brecken- 
ridge via Leadville were adequate and conducted at a heavy 
loss. 

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70 Colorado Etc. Co. v. Railroad Commission. [54 Colo. 

On the issues thus made the trial before the commission 
resulted in an order, * directing the railway company, on or 
before the first day df January, 191 2, and during a period of 
two years thereafter, to maintain, operate and conduct a 
through freight service between Denver and Leadville by way 
of Como and Breckenridge, at least three days each week ; 
and also, from the same date and during the same period, to 
operate and maintain a through and exclusive passenger train 
service "daily, excepting Sunday, between Denver and Lead- 
ville via Como and Breckenridge. The railway company de- 
clined to obey the order of the commission. Thereafter, pro- 
ceedings were instituted in the district court to enforce the 
order of the commission, the state railroad commission and 
the Breckenridge chamber of commerce joining as plaintiffs 
in the case. 

The* complaint set out the order of the commission and 
the refiisal of the railway company to obey it. It prayed for 
an order that the railway company be required to answer the 
petition, and show cause why the order of the commission 
should not be obeyed, and for an injunction or other process 
requiring the defendant to comply with the order of the rail- 
way commission. To this petition the railway company filed a 
demurrer, raising various questions, which was overruled. 
Thereafter the company filed its answer, wherein it pleaded 
three separate defenses which, in the main, raised the same 
questions presented by the answer filed with the commission, 
and in addition pleaded that the order of the commission, if 
enforced, would deprive the company of its property without 
due process of law. This answer will be noticed more in de- 
tail, so far as necessary, in the course of the opinion. 

The cause was tried to the court on the testimony taken 
before the commission, and some additional evidence intro- 
duced by the respective parties. The facts thus established 
will be noticed later, in connection with the questions pre- 
sented for determination. The court directed that an injunc- 
tion issue, commanding the railway company to comply with 

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Sept., 'i2.] Colorado Etc. Co. v. Railroad Commission. 71 

the order of the railroad commission. The railway company 
brings the case here for review on error. 

From the record and briefs of counsel, the questions pre- 
sented for consideration are substantially as follows : 

1. Whether the railroad commission act confers author- 
ity upon the railroad commission to make the order sought 
to be enforced. 

2. Whether any of the members of the commission 
were legally chosen as members of that body. 

3. Whether, if the commission was validly chosen, and 
is a legal and constitutional body, its order is, in effect, the 
exercise by the commission of legislative power. 

4. Whether the constitutional and statutory provisions 
of the state in effect at the time the plaintiff in error was or- 
ganized, required it to operate the abandoned portion of its 
line. 

5. Whether, if it be conceded that the commission had 
power to make the order complained of, the act of 191 o, giv- 
ing this power, is constitutional ; that i%, whether the act and 
the order by the commission do not amount to an impairment 
of the plaintiff in error's charter or contract rights ; and 

6. Whether the order of the commission in effect is 
so oppressive, unjust and unreasonable, if enforced, as to re- 
sult in taking the property of the plaintiff in error without 
due process of law, and without just compensation, contrary 
to the constitution of the United States. 

Counsel for plaintiff in error contends that the act of 
19 10. by virtue of which the railroad commission acted, does' 
not confer upon the commission the power or authority which 
it exercised, in that it does not confer authority upon the com- 
mission to order the resumption of traffic over an abandone.l 
line, and particularly, does not confer authority upon that 
body to say what number of freight trains shall be operated^ 
and that it has no authority whatever to direct the movement 
of passenger trains. In other words, counsel for plaintiff in 
error contends that with respect to freight trains, the au- 



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72 Coix)RADo Etc. Co. v. Railroad Commission. [54 Colo. 

thority of the commission is limited to orders directing a rail- 
road company to provide a sufficient number of cars to trans- 
port its freight traffic, a reasonable time schedule for such 
trains, to require such repairs to be made and to provide such 
equipment as will be necessary and within the reasonable 
power of the railroad to make or adopt for the promotion 
of the security of persons as to life and limb, or for' the con- 
venience and accommodation of the public in the handling and 
shipment of property; and as to passenger trains, that the 
authority of the commission is limited to orders requiring a 
Tailroad company to make such repairs and provide such rea- 
sonable equipment as may be necessary for the safety of per- 
:sons as to life and limb. The sections of the act, Laws 1910, 
pages 45 et seq., upon which this contention is based, are 
.as fallows: 

'*Sec. 2. The tenn "common carriers," as used in this 
iact, shall also include express companies, private freight car 
lines and p'pe lines. The term "railroad,'* as used in this act. 
shall include all bridges used or operated in connection with 
any railroad, and also all the roads in use by any corporation 
operating a railroad, whether owned or operated under a con- 
tract, agreement or lease; and shall also include all switches, 
^spurs, tracks and terminal facilities of every kind, used or 
necessary, in the transportation of the persons or property 
^designated herein, and also all freight depots, yards, and 
grounds used or necessary in the transportation or delivery 
•of any such property; and the term "transix^rtation" shall in- 
clude all cars and all other vehicles and instrumentalities and 
facilities of the shipment or carriage, irrespective of ownership 
or of any contract, express or implied, for the use thereof, 
and all service in connection with the receipt, delivery, eleva- 
tion and transfer in transit, ventilation, refrigeration or icing, 
demurrage, storing, or handling of property transported, and 
it shall be the duty of every common carrier, subject to the 
provisions of this act, to provide and furnish such transporta- 
tion upon reasonable request therefor, and to establish through 

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Sq)t, 'i2.] CoixMtADo Etc. Co. v. Raiuoad Commission, 73 

routes, and just and reasonable rates applicable thereto, and 
to provide a sufficient number of cars and a reasonable time 
schedule for trains." 

**Sec. 25. It shall be the duty of every common carrier 
to transport any and all shipments between points in 
this state with the utmost diligence, and to move livestock and 
perishable products towards destination continuously, with- 
out unnecessary delays, or longer stops than, or regular stops 
at stations, or stops for feeding, icing, or watering, and at a 
minimum speed of not less than ten miles per hour. * * * ." 

"Sec. 27. If, in the judgment of the commission, after 
a careful personal examination and investigation, and after 
a hearing before the commission, or the opportunity for such 
hearing, the commission shall find that repairs, improvements 
or increased facilities in respect to roadbed, trackage, rolling 
stock, stations and depots, yards, terminal facilities, switches, 
signals, or any other element of the service of any common 
carrier shall be necessary and within the reasonable power of 
any common carrier to make or adopt for the promotion of the 
security of persons as to life and limb, or for the convenience 
and accommodation of the public, in the shipping and han- 
dling of property, the commission shall make such reason- 
able order requiring any common carrier to do any such thing 
deemed by the commission to be proper in respect to such mat- 
ters within a reasonable time, to be fixed by the commission, 
as to them shall seem so necessary, and so within such rea- 
sonable power of such common carrier; and the orders of the 
commission in such respect shall be enforced by the proper 
writs and orders of courts of common jurisdiction." 

One of the defenses interposed and upon which the rail- 
way company justifies its action in abandoning the portion of 
its road between Breckenridge and Como, which is twenty-one 
miles in length, is, that on account of the altitude, heavy 
grades and sharp curves, trains can not be operated over it 
except at a heavy loss. Eliminating, for the present, this fea- 
ture of the case, we will consider, first, the contention with 

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74 Colorado Etc. Co. v. Railroad Commission. [54 Colo. 

respect to ordering the resumption of trains over the aban- 
doned portion of the road, and the authority of the commis- 
sion to direct what freight trains shall be operated between 
Leadville and Denver ; and, second, the authority of the com- 
mission to order the operation of exclusive passenger trains 
between these points. 

The questions involved in the first propositions are closely 
related and can be considered together. It appears from the 
testimony that perishable, as well as other, articles of property 
are shipped from Denver to Breckenridge, and likewise from 
Breckenridge to Denver. The route by which they are now 
shipped is over the Denver & Rio Grande Railroad, a standard 
gauge line, via Pueblo and Leadville to Breckenridge, and 
from Breckenridge to Denver over the same route, a. distance 
of 317 miles. At Leadville a shipment from Denver to Breck- 
enridge must be transferred to narrow gauge cars and hauled 
to Breckenridge, while shipments to Denver from Brecken- 
ridge, or other points between, must be reloaded from narrow 
to standard gauge cars. From Breckenridge to Denver, over 
the narrow gauge line is no miles. In order to make a ship- 
•ment from Breckenridge to Como, the cars in which freight 
is transported are hauled to Leadville, where the articles being 
transported are loaded into standard gauge cars, and from 
thence taken via Pueblo to Denver, where the shipment must 
again be transferred to narrow gauge cars and hauled over the 
South Park division to Como, a distance of something like 
four hundred miles, in order to reach a point distant only 
twenty-one miles from the place of shipment. 

In addition to this it is also proper to note that Denver 
is the capital and commercial center of the state; that the 
mail, express and passenger service between Denver and 
Breckenridge and vice versa is now between fourteen and 
twenty hours, where, prior to the abandonment of the service 
from Como to Breckenridge, it was between six and seven 
hours ; that passengers traveling between these places must pay 
additional fares above that paid when the South Park line was 

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Sept., 'i2.] Coi^RADO Etc. Co. v. Raiuioad Commission. 75 



i : 



Operated from Denver to Leadville; that it now takes from 
four to five days to transport freight from Denver to ^recken- 
ridge via Leadville, when, before, freight from Denver would 
reach Breckenriidge on the same day it was loaded on the car^. 
This was important to the citizens of Breckenridge in view of 
the fact that perishable article^, in many instances, could be 
shipped by freight instead of by express, as they generally 
must be when transported via Leadville. It is apparent that 
the change necessitates residents of Breckenridge paying the 
difference between freight and express rates on perishable arti- 
cles of merchandise. It also appears from the testimony that 
after the company ceased to operate its line between Brecken- 
ridge and Como, it refused to furnish cars at stations be- 
tween these points in which to ship ores, or transport supplies 
to such points, and that on this account, at least one mine 
could not be operated unless a wagon road was constructed 
to Breckenridge at a cost of about ten thousand dollars; and 
that it cost the operators of another mining property between 
Breckenridge and Como a dollar and a half per ton more to 
haul by wagon to Breckenridge than it did to haul it. to a 
switch or spur where ore was received for shipment before ^ 
the line between Breckenridge and Como was closed. 

On the subject of freight and express, the commission, 
in its finding and order, said: "The defendant urges that it 
is offering, as a compensation to the patrons of their road, a 
through route around by way of Colorado Springs or Pueblo, 
but is this adequate compensation? It was testified to by 
the witnesses that when this line was operated as a through 
route from Denver to Leadville, that a merchant could order 
his merchandise in the evening in Denver and receive the 
same the next morning in Breckenridge or Leadville by 
freight. Now all perishable merchandise must be sent by 
express, if it goes over defendant's line; and if sent by freight 
it takes from three to six days to go around by the way of 
Pueblo or Colorado Springs, and may thus be destroyed." That 
the change in the operation of the road causes delay, and works 



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76 Coix>RADo Etc. Co. v. Railroad Commission. [54Cak>. 

a great inconvenience to the inhabitants of Breckenridge, im- 
poses upon them additional expense in obtaining perishable 
articles from Denver, and at least embarrassed the operation 
of mines located between Como and Breckenridge, is manifest. 
These results are caused entirely by the refusal of the railway 
company to operate trains over its twenty-one miles of track 
between Como and Breckenridge. Eliminating, as we have 
said, for the present any valid reason which might excuse 
the railway company from operating its twenty-one miles of 
railway between Como and Breckenridge, ample authority is 
found in the sections of the act quoted, as well as others, for 
the commission to direct traffic to be resumed over this aban- 
doned portion of the road, and what freight trains shall be 
operated over it. 

In section 2 of the act, it is made the duty of every com- 
mon carrier, subject to the provisions of the act, to furnish 
transportation, to establish through rates, to provide a suffi- 
cient number of cars, and a reasonable time schedule for 
trains. By section 25 it is made the duty of a railroad com- 
pany to transport all shipments between points in this state 
with the utmost diligence, and to move perishable products 
without unnecessary delays; while, by section 2^^ the railroad 
commission is empowered to require a railroad company to 
furnish such facilities for the convenience of the public for 
shipping and handling property as, in the judgment of the 
commission, is necessary and within the reasonable power of 
the railroad company to furnish. 

The prime purpose of these provisions is to impose upon 
a railroad company, in its capacity as a common carrier, the 
duty to afford shippers reasonable facilities for the transporta- 
tion of property without unnecessary delay. Merely furnish- 
ing cars would not effect this object. They must be moved, 
and hence, we find the act requires the common carrier to 
transport shipments with the utmost diligence; and if it fails 
in this particular, the commission, by virtue qf the provisions 
of section 12 of the act which empowers that body to enforce 



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Sept., 'i2.] Colorado Etc. Co. v. Railroad Commission, jj 

its provisions, may require it to furnish such facilities within 
its reasonable power as may be necessary, in order to ccMnpel 
it to discharge its duty to the public. Clearly, then, if a rail- 
road company does not operate a sufficient number of trains to 
reasonably serve the needs of shippers, the commission has the 
power to direct it to increase its service in this respect ; or, if it 
operates its trains over such routes, by reason of a link in its 
line being abandoned, that unnecessary delays are occasioned, 
it is not transporting shipments with that degree of diligence 
which the act requires, and the commission, by virtue of the 
provisions of sections 12 and 27, is empowered to direct that 
it transport freight over the abandoned part of its line, when 
by so doing shipments will be greatly facilitated, and burdens 
imposed upon shippers removed, unless the railroad can 
justify its action in abandoning such part of its line — a prop- 
osition we shall consider later. 

Counsel for plaintiff in error contends the act does not 
authorize the commission to direct the running of passenger 
trains. In express terms it does not, but the act is essentially 
remedial, and will, therefore, be liberally construed to accom- 
plish its object. — Cofisumers' League v, Colorado & Southern 
Ry. Co,, 53 Colo. 54; 125 Pac. 577. The settled canons of 
judicial construction require that possible interpretation to be 
given a statute which will render it effective, and effect the 
purpose of the legislative intent, if such intent can be reason- 
ably ascertained. The title of an act, although not declara- 
tory of the law, which must appear in the act itself, may, 
nevertheless, be resorted to for the purpose of ascertaining 
the legislative intent. By reference to the title of the act under 
consideration, it will be found that its object, among other 
things, is to create a state railroad commission, to prescribe 
and define its duties, to insure an adequate railway service, 
and to exercise general supervision over the conduct and op- 
eraticms of common carriers. From this title, declaring as it 
does, that the purpose of the act is to regulate common car- 
riers, and to this end, to "insure an adequate railway serv- 



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78 ec«to»AD50 Etc. Go. v. Raiu(oai5 Commission. [s4Coloi 

• ?. 

ice/^ it must be presumed that the purpose of the general as- 
sembly, in passing ahe act, was to require common carriers* to 
provide each locality along its line with adequate passenger 
service, unless the contrary clearly appears in the body- of 
the act. 

Turning to section 5 of the act, we find it provides "That 
it shall be unlawful for any common carrier, subject to the 
provisions of this act, to make or give any undue or unreason- 
able preference or advantage to any particular person, com- 
pany, firm, corporation or locality, or concerning any particu- 
lar description of freight traffic, in any respect whatsoever; 
or to subject any particular person, company, firm, corpora- 
tion or locality, or any particular freight traffic, to any undue 
or unreasonable prejudice or disadvantage in any such respect 
whatsoever * * * /' 

According to the title of the act, one of its objects was 
to insure an adequate railway service. Such service is not lim- 
ited to freight traffic, but embraces the transportation of both 
passengers and freight. That it was clearly the intention of 
the legislature to make the provisions of the act applicable to 
both freight and passenger traffic, is made clear by section i, 
which states : "That the provisions of this act shall apply to 
any corporation or to any person or persons who shall be held 
to be common carriers within the meaning and purpose of this 
act, and to any common carrier or carriers engaged in the 
transportation of passengers or property by railroad from one 
point or place within the state to any other point or place 
within the state." By section 2 of the act, although somewhat 
ambiguous on the subject, we think it is made the duty of a 
railroad company to furnish, upon reasonable request, suffi- 
cient cars for the transportation of passengers and establish 
through routes for that purpose. This view is strengthened 
by the next section, which states that "All charges made for 
any service rendered or to be rendered in the transportation 
of passengers or property, as aforesaid, or in connection there- 
with, shall be just and reasonable," thus manifesting an in- 
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Sept., 'i2.] Goix>RADO Etg. Co. v. Railroad Commission. 79 

tention on the part of the legislature, in connection with the 
declaration in section i, to the effect that the act applies to 
carriers engaged in the transportation of either property or 
passengers, to exercise a reasonable control over a railroad 
with respect to the transportation of passengers. By sec- 
tion 5 as above noted, a railroad company is t in- 
hibited from subjecting any locality to any undue or 
unreasonable disadvantage. By section 12, authority is con- 
ferred upon the commission to execute and enforce its pro- 
visions. If the company, by operating its passenger trains, 
or refusing to operate them, over a portion of its road, brings 
about a result which the law inhibits, then it is not only vio- 
lating the law, but imposing upon a community a disadvan- 
tage which the act intended to prevent. The fact that pas- 
sengers from Breckenridge to Denver must travel to Lead- 
ville, and thence to Denver over the Denver & Rio Grande- 
via Pueblo, or over the Colorado Midland via Colorado 
Springs, and in returning, travel the same circuitous route, a 
distance in the one case of 317 miles, and in the other of 253 
miles, when the distance over the direct line of the South 
Park is but no miles, and that by traveling ovier these routes 
to and from Denver, they must pay additional passenger 
fares, and suffer loss of time, much in excess of that required 
when the line between Como and Breckenridge was operated, 
or that persons at Breckenridge, desiring to reach Como by 
rail, would have to travel to Denver over one or the other of 
the lines indicated, and then from Denver to Como, a dis- 
tance, in all, of several hundred miles, in order to reach a 
point but twenty-one miles distant, manifestly subjects Breck- 
enridge to an unreasonable disadvantage, which is the direct 
result of the railroad company abandoning that portion of its 
road between Como and Breckenridge. With * the act efk- 
pressly inhibiting a railroad company from subjecting a lo- 
cality to an undue disadvantage, and with express authority 
conferred upon the commission to enforce the provisions of 
the act, we think it has power to direct the railroad company 



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8o Colorado Etc. Co. v. Railroad Commission. [54 Colo. 

to operate passenger trains over its line to Denver, so that the 
disadvantage imposed upon the inhabitants of Breckenridge 
by the railroad company abandoning its line between that 
point and Como will be removed, provided, of course, the 
company can not justify, its action in abandoning that por- 
tion of its road. 

The first railroad commission act was passed in 1907 — 
Laws 1907, p. 531. By section 11 of that act, the governor 
was empowered to appoint three commissioners to serve until 
January, 1909. This section further provided that at the 
general election in 1908, three commissioners should be 
elected, one for the term of two years, one for four years, and 
one for six years, for terms beginning in January, 1909. At 
the general election in 1908 Commissioners Anderson and 
Staley were elected for the respective terms of six and four 
years. At the general election in 1910, Commissioner Ken- 
dall was elected for the term of six years, from January, 191 1. 
These gentlemen, by virtue of these elections, constituted the 
railroad commission when the proceedings were commenced 
which afterwards resulted in the case now under review, Idc- 
ing instituted in the district court, and also at the time that 
case was commenced and judgment entered. 

In 1910 the general assembly, at a special session, passed 
the railroad commission act now in force. By its terms it 
purported to amend, and as amended, to re-enact the act of 
1907. Section 28 of the new act recites : "All acts and parts 
of acts inconsistent herewith, are hereby repealed. All parts of 
the act hereby amended and not re-enacted in this act, are here- 
by repealed." By section 11 of the new act, it was provided: 
"That a commission is hereby created and established, to be 
known as "The State Railroad Commission of Colorado." 
which shall be composed of three commissioners who shall 
hereafter be appointed by the governor, by and with the con- 
sent of the senate, provided that the three commissioners 
who were elected in November, 1908, shall be the commis- 
sioners hereunder for the terms for which they were elected : 

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SepLy '12.3 Colorado Etc. Co. v. Raiuioad Commission. 81 

that is to say, Worth L. Seeley shall be a commissioner to 
serve until the second Tuesday in January, 191 1, Daniel H. 
Staley shall be a commissioner to serve until the second Tues- 
day in January, 1913, and Aaron P. Anderson shall be a com- 
missioner to serve until the second Tuesday in January, 191 5/' 
Section i of the act of 1907 exempted from its operation 
mountain railroads operating less than twenty miles of roid, 
the principal traflfic of which was the hauling of mineral from, 
and supplies to, mines. 

Under these provisions it is contended ( i ) that the act, 
on account of exempting mountain railroads of the character 
mentioned, is in violation of the constitution of the United 
States, which forbids any state to deny any person the equal 
protection of the laws; and (2) that as commissioners were 
elected under the act of 1907, they are without authority to 
enforce its provision if the act is unconstitutional: (3) that 
inasmuch as the act of 1910 repealed all parts of the original 
act not re-enacted, Kendall's election was invalid; (4) tKat 
by the act of 1910, it was provided that the commissioners 
should thereafter be appointed by the governor, by and with 
the consent of the senate, and that the proviso to which we 
have referred under which Commissioners Anderson, and 
Staley, were continued in office, is invalid, for the reason that 
the I^slature is without power to create an office not con- 
nected with the legislature itself, and in the same act desig- 
nate the person who shall fill that office. 

The constitutionality of the act of 1907 is settled by the 
decision of this court in the Consumers' League case, supra, 
and it is unnecessary to discuss that question here. This con- 
clusion renders it unnecessary to consider the second propo- 
sition. 

The validity of Commissioner Kendall's election is set- 
tled in Kendall v. People, 53 Colo. 106; 125 Pac. 586, and is 
no longer open to question. 

The fourth proposition is clearly without merit. It is 
true, that the act of 1910 provides that the members constitut- 

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82 C6ixfkAi)6 Etc. Co. v. Railroad Commission. [54 Cold. 

ing the railroad commission shouM be appointed by the gov- 
ernor, but ii expressly exempted from its operation Com- 
missioners Anderson and Staley, by declaring that they should 
continue in office under their election- until- the terms for 
which they v. ore respectively elected expired. By so doing, 
the legislature did not, as contended, create an office, and in 
the same act designate the persons who should fill it, for the 
ver}^ obvious reason the act simply provided, so far as Com- 
missioners Anderson and Staley were concerned, that the 
governor, although empowered to appoint the railroad com- 
missioners, instead of being elected, as the act of 1907 pro- 
vided, should not exercise that power as to these two commis- 
sioners until their respective terms for which they had been 
elected had expired. 

The next point urged by counsel for plaintiff in error for 
us to consider is to the eflfect that if the act of 1910 confei's 
upon the commission authority to make the order involved, 
then the order is an exercise of legislative power on the part 
of the commission, and is unconstitutional and void. Our 
state constitution inhibits the delegation of legislative power 
to a body like the railroad commission — art. 3; art. 5, sec. I, 
and the amendment to sec. i. Laws 1910, p. 11. 

Section 27 of the railroad commission act empowers 
the commission to make such orders with respect to increased 
facilities as in their judgment may be necessary and within the 
reasonable power of any common carrier to adopt for thfe 
convenience of the public, in handling property, and to "make 
such reasonable order requiring any common carrier to do 
any such thing deemed by the commission to be proper, in re- 
spect to such matters within a reasonable time, to be fixed by 
the commission as to them shall seem so necessary, and so 
within such reasonable power of such common carrier." In 
support of the proposition under consideration, it is urged that 
the law does not specify what increased facilities shall be fur- 
nished by a common carrier, that it does not direct trains to 
be run daily, or that all parts of a line shall be operated. 

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Sept, 'i2.] Cou>RADo Etc. Co. v. Railroad Commission. 83 

or that trains shall move at any particular time, and that 
whatever is necessary with respect to these matters, is not 
determined by the law, but rests in the judgment of the com- 
mission. In other words, the contention is, that the duties 
imposed upon a common carrier do not exist until the com- 
mission makes an order, and that the extent of the duty of a 
carrier and whether it exists or not, arises wholly out of the 
order of the commission. In determining this proposition, 
there are other portions of the act which should be consid 
ered. 

By section 2, a common carrier is required to furnish 
cars to shippers, and to fix reasonable time schedules for 
trains. By section 5 a common carrier is inhibited from giv- 
ing any particular locality an undue advantage, or to subject 
any locality to an undue disadvantage. By sectio^n 25 a rail- 
road company is required to transport shipments with the ut- 
most diligence; and by section 12, a commission is created, 
with authority to execute and enforce its provisions. It is 
true, the time within which, or the number of trains that shall 
be run, or the equipment of trains, has not been specified in 
the act in detail; but the purposes of the act in imppsing the 
duties upon common carriers to which we have referred, was 
to compel them to furnish an adequate railway service. To 
this end power is conferred upon the commission to execute 
the law. The general assembly has passed the law, but it has 
not conferred upon the commission the power to make or un- 
make the law, in any respect. That body is merely charged 
with the administration of the law by directing in a proper 
case what equipment shall be supplied, what trains shall be 
run, and what other requirements expressly or impliedly im- 
posed on common carriers they shall perform and observe in 
scribed; so that the authority of the commission is limited to 
administering the law prescribed by the l^islature, by ascer- 
taining, as a fact, whether its provisions are violated, and if 
violated, to enforce them. This is in no sense the exercise of 



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84 Colorado Etc. Co. v. Railroad Commission. [54 Colo. 

a legislative power, but its purpose is to afford a means to aid 
in carrying the law into effect. — C. & N, W. Ry. Co. v, Dey, 
35 Fed. 866; 2 Wyman on Public Service Corporations, sec. 
1403; C, B, & Q, R, R, Co. V. Jones, 149 HI. 361 (378); 
State V. R. R. Co., 38 Minn. 281. 

In other words, while it is true the general assembly can 
not delegate the power to make a law, it may, however, make 
a law del^ating the power to determine some fact or a state 
of things upon which the law, as prescribed, makes its action 
depend. 

On behalf of plaintiff in error it is urged : 

( 1 ) That its charter is permissive, and does not require 
it to operate and maintain an unproductive line. 

(2) That the order of the state railroad commission, di- 
recting the operation of through freight and passenger trains 
between Denver and Leadville, impairs the obligation of con- 
tract, in violation of the constitution of the United States, art. 
I, sec. 10, and the constitution of Colorado, art. II, sec. 11. 

(3) That the order of the commission takes the property 
of the plaintiff in error without due process of law, and denies 
it the equal protection of the law, in violation of the fourteenth 
art«endment to the constitution. These propositions can be 
considered together, as they involve, to a considerable extent, 
a consideration of the same propositions of law and fact. 

In support of the proposition that the charter of the rail- 
road company is purely permissive, and that the company can 
not be compelled to operate an unproductive line, the follow- 
ing constitutional provisions and statutes are relied upon : 

Art. XV, section 3, of our constitution, provides, in sub- 
stance, that the general assembly may alter any charter of a 
corporation thereafter created, when, in their opinion, it may 
be injurious to the citizens of the state, but only in such man- 
ner that no injustice shal be done to the incorporators. Sec- 
tion 4 of the same article provides that railroads shall be pub- 
lic highways, and that any corporation organized for the pur- 
pose shall have the right to construct and (^)erate a railroad 

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Sept., 'i2.] Cow>RAiK> Etc. Co. v. Railroad Cobimission. 85 

between any designated points within this state. Section 6 of 
the same article provides that all individuals and corporations 
shall have equal right^ to have persons and property trans- 
ported over any railroad in the state, and that no undue or un- 
reasonable discrimination shall be made in charges or in facili- 
ties for transportation of freight in this state. 

Section 599 Mills' Stats, provides that five or more per- 
sons may form a company for the purpose of constructing a 
railroad, and that their certificate of incorporation, among 
other things, shall state : 

"First: The place from and to which it is intended to 
construct the proposed railway." 

"Second: The time of the commencement and the 
period of the continuance of such propiosed corporation." 

Section 602 ibid provides that such corporation shall have 
the power: 

"First : To lay out its road, not exceeding two hundred 
feet in width and to construct the same * * * ." 

"Fourth: To receive and convey persons and property 
on its railway. 

Fifth: to erect and maintain all necessary and conven- 
ient buildings and stations, fixtures, and machinery for the 
convenience, accommodation and use of passengers, freights, 
and business interests, or which may be necessary for the con- 
struction or operation of said railway. 

Sixth : To regulate the time and manner in which pas- 
sengers and property shall be transported, and the compensa- 
tion to be paid therefor." 

By the next section it is provided that if any railway 
corporation shall not, within two years after its articles are 
filed and recorded, begin the construction of its road, and ex- 
pend twenty per cent of the amount of its capital within five 
years after the date of its organization, its corporate existence 
and powers shall cease. 

By section 614 ibid it is provided that where the property 
and franchises of any railroad company organized and exist- 

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86 Colorado Etc. Co. y. Railroad Commission. [54 Colo. 

ing under the laws of this state shall be sold and conveyed 
under any power contained in any trust deed or mortgage, or 
pursuant to the judgment or decree of any court of competent 
jurisdiction, it shall be lawful to organize a railroad company 
under the laws of this state for the purpose of purchasing, 
maintaining and operating the property so sold and conveyed. 

By the section following it is provided that the railroad 
company so organized shall have power to acquire the prop- 
erty and franchises sold and conveyed, as contemplated in the 
preceding section, and to enjoy all the estate, franchises, rights, 
powers and privileges in law or equity of the corporation 
whose property and franchises have been So sold. 

By section 632 ibid provision is made for a railroad com- 
pany, upon a vote of two-thirds in value of its stockholders, at 
any ijieeting thereof, to amend its articles of association, so 
as to change its termini, and when so determined, to amend 
or alter its . articles of association, such amendments, when 
filed in the offices where they are to be recorded, shall have the 
same force and effect as though such amendments had been 
included in and made a part of, and embraced in the original 
articles of incorporation. 

By section 3703 ibid, authority is conferred upon a rail- 
road company to make a new location of its line, and that 
where such location is made, the previous right of way shall 
revert to the owner of the land through which such right was 
granted, on payment to the railroad company of the amount 
assessed by the board of appraisers and paid by the railroad 
company for its previous right of way. 

The plaintiff in error was organized in 1898, and in 1899 
purchased the narrow gauge lines exhibited on the map at 
a sale ordered under foreclosure proceedings against The 
Denver, Gunnison & Leadville Railway Company, the former 
owner of this property. 

The alleged impairment of the obligations of a contract 
by the order of the commission, in directing tl?e operation of 
through freight and passenger trains is based substantially 

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Sept., 'i2.] Colorado Etc. Co. v. Railroad Commission. 87 

upon the statutory provision above noted, to the effect that a 
railroad company, organized under the laws. of this state, has 
the power to regulate the transpqrtation of both passengers 
and freight, and compensation therefor, and the constitutional 
provision that in changing the charter of a corporation injus- 
tice shall not be done to the incorporators. 

The . third proposition is based substantially upon the 
ground that the order. of the railroad commission cannot be 
complied with except at a heavy loss to the company. 

The testimony shows that the grades between Brecken- 
ridge and Como are steep, the curves sharp, and that by reason 
of the high altitude between these points which, in places, is 
above timber-line, the operation of the road between Brecken- 
ridge «nd Como is expensive, for the reason that a locomotive 
can only handle a light tonnage; and that in the winter snow 
must be shoveled from the track which at times accumulates 
to such an extent as to stop traffic for a considerable time. 

On the subject of losses incurred in operating the tntire 
South Park system for several years prior to 1902, elaborate 
tables are submitted, from which it appears the loss has been 
great. The same result appears from the operation of the road 
between Como and Leadville, and Breckenridge and Lead- 
ville. In computing losses, taxes and interest on bonds and 
investments are charged, although eliminating these itema, 
the tables mentioned show a loss. Our attention is not di- 
rected to any testimony from which it is made to appear what 
losses (if any) the company would suffer in operating trains 
Retween Breckenridge and Como, in compliance with the or- 
der, above that which it now claims to suffer in operating its 
line from Breckenridge to Leadville. The company does not 
claim a loss will be" incurred in operating trains as directed by 
the commission, because they are not necessary to accommo- 
date the freight and passenger traffic from Breckenridge to 
Denver. 

The evidence establishes that for the years 1906 to 191 1, 
both inclusive, the net earnings of the company on its entire 

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88 Colorado Etc. Co. v. Raiuioad Commission. [54 Colo. 

system ranged from $1,897,000 to $2,876,000, and that dur- 
ing this period the following dividends were paid: 1906, 
$340,000; 1907, $680,000; and that for each of the years 1908 
to 191 1, inclusive, $i,300,ooa 

Breckenridge has a population of over eight hundred. 
We have already called attention to the inconveniences and 
'expenses imposed upon the people of Breckenridge and vicin- 
ity resulting from closing the road between that point and 
Como. As we understand the record, the rates charged for 
freight shipped to Denver under the arrangement by which 
the railroad company handles that traffic via Leadville over 
the Denver & Rio Grande are the same as previously charged 
when transported over the South Park from Breckenridge 
to Denver. Passengers from Breckenridge to Denver, how- 
ever, must pay an additional charge proix)rtionate to the In- 
creased distance they travel in going via Leadville, as com- 
pared with the distance between Breckenridge and Denver 
over the South Park line. The time consumed is much greater, 
by many hours, than it would be by going direct over the 
South Park. In addition; the people of Breckenridge, in some 
instances, at least, must pay express rates on perishable mer- 
chandise, instead of freight rates, as before. 

In support of the contention on the part of plaintiff in 
error that the judgment of the district court is erroneous, 
when tested by the several propositions under consideration, 
it is urged that the right to build and operate a railroad in 
this state is purely permissive; that the statutes do not im- 
pose any obligation upon a company owning such road to op- 
erate it at a loss ; that when the plaintiff company was organ- 
ized, the statute empowering railroad companies to regulate 
the time and manner in which passengers and property should 
be transported over their lines and the compensation to be 
paid therefor, was in force ; that this section was, in effect, a 
part of its charter; that to now require the company, either by 
virtue of the railroad commission act or the order of the com- 
mission, to operate trains in accordance with such order de- 
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Sq)t., 'i2.] Colorado Etc. Co. v. Railroad Commission. 89 

prives it of a contract right; that this cannot be justified under 
the authority vested in the general assembly to change 
the charter of a corporation, because a change is inhibited 
which will do an injustice to the incorporators ; and that com- 
pelling the plaintiff in error to operate its road between Leid- 
ville and Denver at a loss violates federal and state constitu- 
tional provisions, because thereby its property is taken without 
due process of law, and it is compelled to devote its property 
and revenues to a public use without compensation. 

In considering these several questions, the first important 
question of fact to determine is, whether or not the record* dis- 
closes that a compliance with the order of the commission sub- 
jects the company to a substantial loss. In considering this 
question, it should be borne in mind the company does not 
claim that the trains directed by the commission are not neces- 
sary to accommodate the freight and passenger traffic between 
Breckenridge and Denver, but bases its right to be excused 
from complying with the order upon the ground that to op- 
erate the trains ordered causes a loss which it should not be 
required to suffer, when a freight and passenger service is 
provided via Leadville. The company claims that the opera- 
tion of its trains from Breckenridge to Leadville entails a 
loss. The record does not disclose what loss, if any, would 
be caused by operating trains between Breckenridge and Como 
in compliance with the order of the commission, above that 
which the company now claims to suffer by operating its line 
between Breckenridge and Leadville. With trains, both frdtght 
and passenger, only operated between Breckenridge and Lead- 
ville, it is fair to assume that the company only receives a por- 
tion of the freight and passenger charges which shippers from 
Breckenridge to Denver, and passengers to and from the same 
points, must pay for transporting freight and as passenger 
rates: and that if the order ot the commission were complied 
with, the company would receive the entire revenue derived 
from both passenger and freight traffic between Breckenridge 
and Denver, in place of the portion it now receives for han- 

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90 Colorado Etc. Co. v. Raiu^oad Commission. [54 Colo. 

dling this traffic from Breckenridge to Leadville. Manifestly^ 
the change in the operation of its rdad as ordered by the com- 
mission would increase the revenue of the company, ais it 
would thus receive on both the freight and passenger traffic 
between Breckenridge and Denver the charges tor such traffic 
over its own line for the entire distance between these' points,, 
instead of the amount which it receives therefor for the short 
haul between Breckenridge and Leadville. This additional 
.revenue might materially reduce the loss \Vhich the company 
now claims to sustain in operating its trains between Breck- 
enridge and Leadville. Clearly, if the company relies upon 
the ground that the order is unreasonable because a com- 
pliance therewith entails a loss, the burden is upon it to estab- 
lish such loss as a fact. This it has failed to do. 

If, however, we assume the record discloses that a com- 
pliance with the order of the commission will entail a sub- 
stantial loss, in excess of the revenues derived from the opera- 
tion of the train's ordered, then we think that neither this fact 
nor any of the propositions to be considered in connection 
with it justify a reversal of the judgment. In considering 

losses, we deem it pertinent to suggest that interest on bonds 

» 

and investment should not be taken into account, as the 
amounts representing these items could not be materially dif- 
ferent, whether the road- was operated or not. Taxes might 
be less on an abandoned road than one in operation. 

It may be (but we do not so decide because not involved) 
that a railway company can not be compelled to build a pro- 
jetced line. That, however, is a radically diflferent proposition 
from compelling it to maintain and operate a line w-hich has 
been constructed in accordance with its charter and thereafter 
operated, but which it ceases to operate in order to reduce ex- 
penses. It must be remembered that railways are corpora- 
tions organized for public purpgses, have been granted valu- 
able franchises and privileges, and that primarily they owe 
duties to the public of a higher nature even than that of 
earning large dividends for their shareholders.^ — United States' 



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Sept., 'i2.] Colorado Etc. Co. v. Raiuioad Commission. 91 

V, Trans-Missouri Freight Association, 166 U. S. 290 (332). 
The franchise which plaintiff in error obtained by incorporat- 
ing under the laws of this state was not granted for its profit 
alone, or that of its stockholders, but, in a large measure, for 
the benefit of the public, and while it is a private corporation, 
the public is interested in the business in which it is engaged 
in the capacity of a common carrier. In this capacity it is a 
public servant, and amenable as such. — People ex rel, v. C. & 
A, Ry. Co., 130 111. 175. 

It is undoubtedly true that a railway company, in the 
absence of a statute limiting its power, is vested with a wide 
discretion in operating its line of road; but this discretion is 
not absolute. It must be exercised with due regard to the 
welfare of the public- — People ex reL v. C & A, R. R., 
stipra. 

At the time the plaintiff in error was organized and when 
it purchased the South Park system, the statute did grant it 
the ^ right to regulate the time and manner in w-hich passen- 
gers and property should be transported over the lines of that 
system ; but this did not confer upon it the unlimited right to 
operate its trains as it saw fit, without r^ard to the interest 
of the public. Tliis grant of power must be read in connec- 
tion with the obligation which the law, independent of the 
statute, impliedly imposed upon it to so operate its trains afid 
furnish such service as would reasonably serve the needs of 
the public. The right of a state to reasonably control a rail- 
road company in the operation of trains, within its jurisdic- 4 
tion, will not be considered as having been surrendered either 
by statute or constitutional provision, in the absence of posi- 
tive words to that effect, or their equivalent in law. There is 
nothing in either the statutes or the constitution of the state 
to indicate the intention to surrender such control; so that 
simply granting to a railroad company the right to fix the 
manner of running its trains does not deprive the state of its 
power to act upon the reasonableness of its action in this re- 
spect. — Railroad Commission case, 116 U. S. 307. The con- 
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92 CouoRADO Etc. Co. v. Railroad Commission. [54 Colo. 

stitution of the state inhibits the general assembly from so 
changing the charter of a corporation as to work injustice to 
the incorporators; but in our opinion this provision is not 
applicable. Merely requiring the railroad company to ob- 
serve the obligations which the law imposes upon it to reason- 
ably serve the public, by either the terms of the Railroad Com- 
mission Act or the order of the commission, by virtue of the 
authority vested in them, is nothing more than requiring it to 
comply with its l^al obligation. This does not invade any 
constitutional right, neither does it work an injustice to the 
incorporators. 

As previously stated, the railroad company does not 
claim that the service ordered is unnecessary, except upon the 
ground that operating its trains between Breckenridge and 
Leadville affords a service which ought to excuse it from com- 
plying with the order of the commission. We have called at- 
tention to the fact that refusing to obey the order of the com- 
mission subjects the people of Breckenridge and vicinity to 
great inconvenience, pecuniary loss, and loss of time; and 
this brings us to a consideration of the question of whether 
or not compelling the railroad company, under these circum- 
stances, to operate its trains between Leadville and Denver, 
by resuming the operation of its line between Como and 
Breckenridge, at a substantial loss, deprives it of its property 
without due process of law, and requires it to devote its prop- 
erty to a public use without compensation. Unquestionably, 
railroad property is protected by constitutional guaranties^ 
but these rights are not abridged by being subjected to rea- 
sonable governmental power of regulation. — Mo. Pac. Ry. 
Co, V, Kansas, 216 U. S. 262. The consideration for the 
franchise, rights and privileges granted a railroad company 
by a state is the resulting benefits to the public, and the ac- 
ceptance by the company, generally speaking, imposes upon it 
the obligation to operate, when constructed, the railroad it 
was incorporated to construct, and of doing so in the manner 
and for the purpose contemplated by its charter. — State ex 

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Sq>t., 'i2.] Colorado Etc. Co. v. Raiuioad Commission. 93 

reL Grinsf elder v. Street Ry. Co., 19 Wash. 518; People ex 
rel. V. C. & A, R. R. Co,, 130 111. 175; Gates v. Boston R. R. 
Co,, 53 Conn. 333; 33 Cyc. 635. 

One of the obligations thus imposed, as we have said, is 
to so operate its trains as will reasonably serve the needs of 
the public. Applying these propositions to the case at bar, 
it follows, that plaintiff in error, by organizing for the pur- 
pose of purchasing the South Park system, and purchasing it, 
was granted and accepted a franchise for the benefit of the 
public, which obligated it to operate the road it purchased in 
such manner as to reasonably acccxnmodate the public. At 
the time it purchased the South Park system it purchased 
other lines, as stated in a former part of this opinion. It 
operated, or heretofore has operated, all these lines as one sys- 
tem, under one general management and control. They are 
in no sense separate or independent. . It appears, as previously 
stated, that the operation of its entire system has resulted in 
net returns aggregating large sums, for each of the six years 
previous to the date the action was instituted before the com- 
mission, and that during that period it has paid its stockhold- 
ers, annually, large sums in the way of dividends. It has not 
surrendered its franchise, and continues in the enjoyment of 
all its corporate rights. It does not claim that the service 
ordered is more than sufficient to accommodate the traffic be- 
tween Denver and Leadville. In such circumstances, the ques- 
tion of loss must be considered in connection with its duties 
and the productiveness of its corporate business as a whole. 
The law imposes upon it the duty of furnishing adequate 
facilities to the public on its entire system, not a part ; and it 
cannot be excused from performing its full duty merely be- 
cause, by ceasing to operate a part of its system, the net re- 
turns would be increased ; so that it cannot be said, under the 
facts, that requiring plaintiff in error to perform its duty to 
the public by furnishing an adequate service over its line be- 
tween Denver and Leadville, although a pecuniary loss is en- 
tailed, is unreasonable or deprives it of any constitutional 

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94 Colorado Etc. Co. v. Railroad Commission. [54 Colo.^ 

right, either federal or state. — Mo. Pac, Ry. Co, v. Kansas, 
216 U. S. 262 ; Atl. Coast Luie R, R, Co, v. N. C. Corp, Com., 
206 U. S. i; Corporation Com, v, R, R,, 137 N. C. i. 

In brief, under the facts of the case at bar, ^n order re- 
quiring a railroad company in the possession and enjoyment 
of its charter powers and privileges, to furnish a necessary 
service does not, even though a compliance with the ordfer 
entails a loss, deprive it of its property without due process of 
law, or compel it to devote its property and revenues to a 
public use without just compensation, for the obvious reason 
that such an order merely requires it to discharge its legjfl 
obligations. Of course, that a service ordered will entail a 
loss is a circumstance to consider in determining the reason- 
ableness of the order; but a common carrier cannot success- 
fully complain that a loss will thus be occasioned when it ap- 
pears that the ordered service requires nothing more than nec- 
essary transportation facilities. 

In the Missouri Pacific case, supra, a writ of error was 
prosecuted to the judgment of the supreme court of Kansas, 
directing the railroad to obey an order of the railroad com- 
mission of that state, requiring the company to furnish an ex- 
clusive passenger service on one of its branches in lieu of a 
mixed train service. There, as here, the company attacked 
the validity of the order upon the ground that a compliance 
with it would result in a pecuniary loss in that the expense of 
furnishing an exclusive passenger train service would exceed 
the revenues derived from such service. The company con- 
tended that compelling it to suflfer such loss invaded its con- 
stitutional rights. The supreme court held that so long as the 
company was in the possession and enjoyment of its charter 
powers, it was its duty to furnish adequate facilities for trans- 
porting passengers, and that requiring it to perform a serv- 
ice in this respect, which was not unreasonable, although such 
performance w-ould entail a loss, did not deprive the railroad 
company of its property without due process of law, or result 
in the taking of its property for a public use without compen- 

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Sept., !i2.] Coi/)RAr)o Etc. Co.. y. Raiuioad Commission. 95 

sation, for the reason that such order was nothing more than 
requiring it to do that which it was essentially ita duty to per- 
form. In speaking to this point, the court quoted with ap- 
proval from the Atlantic Coast Line case, supra, where it was 
said : "Of course, the fact that the furnishing of a necessary 
facility ordered may occasion an incidental pecuniary . loss, is 
an important criteria to be taken into view in determining the 
reasonableness of the order; but it is not the only one, as the 
duty to furnish necessary facilities is coterminous with the 
powers of the corporation. The obligation to discharge that 
duty must be considered in connection with the nature and 
productiveness of the corporate business as a whole, the char- 
acter of the services required, and the public need for its per- 
formance." In considering , further the duties imposed upon 
a railroad company to furnish adequate transportation facili- 
ties, the court, speaking through Mr. Justice White, said : 
"But where a duty which a corporation is obliged to render is 
a necessary consequence of the acceptance and continued en- 
joyment of its corporate rights, those rights not having been 
surrendered by the corporation, other considerations are, in 
the nature of things, paramount, since it cannot be said that 
the order compelling the performance of such duty at a pecun- 
iary loss is unreasonable. To conclude to the contrary 
would be but to declare that a corporate charter was purely 
unilateral, that it was binding in favor of the corporation as 
to all rights conferred upon it, and was devoid of obligation 
as to duties imix>sed, even although such duties were the abso- 
lute correlative of the rights conferred." 

Counsel for plaintiff in error cite many authorities in 
support of their contention that the charter of the company 
is permissive, that the order of the commission impairs the 
obligation of contract and deprives the company of property 
without due process of law, which we do not deem it neces- 
sary to review, as, in our judgment, the cases cited, in con- 
nection with those cited from 116, 206 and 216 U. S., sustain 
our conclusion, that neither of these propositions is tenable. 

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96 Denver v. Meyer. [54 Colo. 

In our opinion, the law and the facts fully justify the order of 
the commission and the judgment of the district court, direct- 
ing the company to obey it, and that judgment will, there- 
fore, be affirmed. Judgment affirmed. 

Decision en banc. 

Mr. Justice Hiul not participating. 

Decided December 9, A. D. 1912. Rehearing denied 
January 6, A. D. 191 3. 



[No. 6277.] 



Board of County Commissioners op the City and 
County of Denver v. Meyer. 

1. Constitutional Law — Article XX — Immediately upon the tak- 
ing effect of article XX of the constitution, the official term of the 
superintendent of schools next theretofore elected for the old countj 
of Arapahoe, terminated. No such office existed in the new entity, the 
city and county of Denver, and there could be no incumbent thereof. 
Having been chosen to the office of superintendent of schools for the 
city and county of Denver, at the first election under its charter, 
adopted pursuant to article XX, she was not entitled to receive, in 
such office, the salary prescribed by the general law, bat only that 
fixed by the charter. 

2. JuDQMKNT — When Res Judicata — ^A judgment of the district 
court determined that plaintiff was the county superintendent of 
schools for the city and county of Denver and entitled to the salary 
prescribed by the general law. Subsequent to this she was chosen 
superintendent of schools for that territory, under the city charter, 
qualified under such election, and served for some months, accepting 
the salary prescribed by the charter. She then brought an action to 
recover the salary prescribed by the general law for this period, less 
the sum she had already received under the charter provision. Held^ 
that the former Judgment was not res judicata of the questions pre- 
sented in her new action, as an entirely different state of facts was 
involved, presenting different parties, different subject matter and 
new issues. 



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Sqyt., 'i2.] Denver v. Meyer. 97 

Error to Denver District Court, — Hon. George W. Au- 
LEN, Judge. 

Mr. Fred W. Parks^ for plaintiflFs in error. 

Messrs. Yeaman & GovE, for defendant in error. 

Mr. Justice Bailey delivered the opinion of the court : 

This is an action in mandamus to compel defendants, as 
a board of county commissioners, to audit and allow, and 
cause to be issued and delivered to plaintiff, a warrant for a 
balance alleged to be due for salary, under the state law, as 
county superintendent of schools of the city and county of 
Denver. To a judgment making the writ final, defendants 
bring error. 

The facts are not in dispute. The record shows that at 
the general election in November, 1901, plaintiff was chosen 
to the office of superintendent of schools for Arapahoe county, 
and that she qualified and entered upon the duties of her office 
in January next thereafter. Under the provisic«is of the con- 
stitution as it then stood, her term of office was for two years, 
and would have expired in January, 1904. At the general 
election in November, 1902, article XX of the constitution 
was adopted, and became effective the following Deceml)er by 
proclamation of the governor. On March 29th, 1904, pur- 
suant to the provisions of article XX, the city and county of 
Denver adopted a charter, which, among other things, desig- 
nated the office of county superintendent of schools of the city 
and county of Denver, with a salary of $900.00 per annum. 
In May, 1904, at a general city and county election, plaintiff 
was elected under the charter to, and on June ist following 
qualified for, that office, and served and received tlie salary, 
as provided for by the charter, for seven and one-half months, 
the period involved in this action. The plaintiff now claims 
that for this period she was entitled to compensation at the 
rate of $2,800.00 a year, under the state law, or $1,711.68, 



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98 D^.viER. v^, M^YER. [54 Colo. 

less die sum. of $550.00, which she had re.ceived as salary un- 
der the charter, leaving a balance due of $1,161.08. 

This question has been, by this court, frequently deter- 
mined contrary to the contention of plaintiff. Her term of 
office as county superintendent of .schools for Arapahoe county 
was expressly terminated by article XX on December i, 1902, 
when it went into effect. She never was county superintend- 
ent of schools, under the general laws, for the new entity, 
**The City and County of Denver.'' No such county office 
ever has existed in that territory,, and naturally there could 
not have been an occupant of that office. Plaintiff was, at the 
May election in 1904, under the charter, chosen to the office 
of county superintendent of schools for the city and county of 
Denver. As such officer it became and was her duty, in ad- 
dition to discharging the duties of superintendent of schools, 
under the charter, to also discharge, for the same salary, the 
duties therein which devolve upon county superintendents of 
schools generally under the state laws. During this period 
the only salary plaintiflf was entitled to have was that pro- 
vided by the charter. This she has already received. On no 
theory is she entitled to get more. The following authorities 
are conclusive upon the foregoing propositions : McMurray 
v. Wright, 19 Colo. App. 17; Uzzell v. Anderson et al., 38 
Colo. 32; Orahood v. City mid County of Denver, 41 Colo. 
172; Aichele v. City and County of Denver, 120 Pac. (Colo.) 
149; People ex reL v, Cassiday et aL, 50 Colo. 503; Dixon v. 
People ex reL, decided October 25, 191 2; and Elder v. City 
mid County of Denver, decided November 11, 1912. 

It is urged that whether plaintiff was county superintend- 
ent of schools, as claimed in this suit, has been determined in 
her favor in an action in the district court of the city and 
county of Denver, brought by her against William A. Hoover 
et al., the executive officers of the city and county of Denver, 
to compel them, and in which they were adjudged, to draw 
and certify salary warrants in favor of the plaintiff, as such 
officer, for the six months' period immediately prior to that 

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Sq)t., 'i2.] Denver v. Meyer. 99 

involved in this suit. That judgment is in direct conflict with 
numerous decisions of this court, some of which are cited 
above, notably the Cassiday, the Elder and the Aftderson 
cases, wherein the precise questions upon which plaintiff here 
relies to support a recovery, although between different par- 
ties and affecting the status of different county officers, were 
determined contrary to the conclusion reached in the Hoover 
case. Under such circumstances, it may vvell be doubted 
whether this court would be bound by a decision of a nisi 
prius court, on a question of res judicaia, even if all the ele- 
ments were there present to make such decision applicable 
here on that theory. 

This record, however, shows that after the Hooter de- 
cision plaintiff was elected county superintendent of schools 
for the city and county of Denver under the charter, quali- 
fied and acted as such during the full period covered in this 
controversy. When she was so elected and qualified, then by 
charter designation she became the officer or agent to dis- 
charge in that territory, if it was intended by article XX that 
there should ever be such an officer therein, all duties apper- 
taining to that office, under the general law. Whatever, dif- 
ference of opinion there may be as to whether plaintiff was, 
prior to her election under the charter, county superintendent 
of schools in that territory under the state law, after the adop- 
tion of article XX, either de jure or dd facto, clearly after 
such election and qualification she was only an officer therein 
under the charter. So that, in this suit, in addition to having 
different parties, different subject-matter, and different issues 
from those in the Hoover case, a thing has intervened, to-wit, 
the election of plaintiff as county superintendent of schools 
imder the charter, which changes the entire situation, and 
therefore, in no event, can the decision in the Hoover case be 
held to be res judicata of the questions at issue in this case. 

It failing to appear from the case as made by plaintiff 
that there wasi any duty upon the- defendants to audit, allow 
or draw warrants for her claim, the judgment so directing 

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TOO Burns v. Repubucan Co. [54 Colo. 

was wrong and is reversed, and the cause remanded with di- 
rections to dismiss the complaint. 

Mr. Justice Musser and Mr. Justice White concur. 



[No. 6480.] 

Burns v. Republican Pubushing Co. 

Libel — Charge of Briberu — ^To falsely publish of another anythlmr 
tending to bring him into odium is libelous peit se, e. g., that the per- 
son mentioned had been guilty of corrupting a Jury, in a cause pend- 
ing in another state, and this, whether the act was or was not a crim- 
inal offense, by the law of such other state. 

Error to Denver District Court. — Hon. George W. 
Allen, Judge. 

Messrs. Thomas, Bryant & Malburn, for plaintiff in 
error. 

Messrs. Ward & Ward, for defendant in error. 

Mr. Justice Gabbert delivered the opinion of the court: 

Plaintiff in error brought an action against defendant in 
error to recover damages for an alleged libel. To his com- 
plaint defendant interposed a motion to strike certain para- 
graphs, which was 'sustained. To the complaint as it then 
stood, the defendant interposed a general demurrer, which 
was, also, sustained. Plaintiff elected to stand by his com- 
plaint, and his action was dismissed. 

The sole question to determine is the sufficiency of the 
complaint, when tested by the general demurrer, as it stood 
after the motion to strike was sustained. It alleged, in sub- 
stance, (after stating that defendant owns and publishes, in 
the city of Denver, a daily newspaper known as "The Denver 
"Republican," and that an action at law had been instituted by 
James Doyle against him in the district court, at Council 
Bluffs, Iowa,) that a trial before a jury resulted in a verdict 

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Sept., '.12.] Burns v. Repubucan Ca loi 

in. favor of this plaintiff, Burns, and that later Doyle filed » 
motion for a new trial, based upon various and divers grounds,, 
which motion was sustained. It then alleged: 

"That on, to-wit, the 17th day of October, A. D. 1907,. 
the said defendant did print and publish in its said paper, the 
Denver Republican aforesaid, and did circulate and cause to- 
be circulated therein and thereby, the following false and de- 
famatory statement with reference to the said case and said 
motion for a new trial of and concerning this plaintiff, to-wit:^ 
'Bums (meaning this plaintiff) fought the case (meaning the 
said case of Doyle against this plaintiff in said Pottawatamie 
county, Iowa), and a third trial was ordered, in which Burns 
(meaning this plaintiff) was entirely successful; but in April, 
1905, Doyle procured evidence that Bum s( meaning this 
plaintiff) had bribed the. jury in the last case (meaning the 
jury in ithe last trial of said case), and his proof was so strong 
that Judge Greenwald set aside the verdict (meaning the said 
verdict in favor of this plaintiff in said case) in favor of Bums 
(meaning thereby that the said verdict was set aside on ac- 
count of bribery of the jury by this plaintiff)'." 

The complaint also alleged "that in truth and in fact the 
said motion for a new trial was expressly overruled, denied* 
alid refused by the said judge, as to each and every charge* 
and statement therein contained, charging this plaintiff withi 
such bribery, and was sustained for entirely different and dis- 
tinct grounds and reasons therefor/' Special damages were 
not claimed. 

The statement quote<l in effect charges that plaintiff was 
found guilty of bribery, when, in fact, according to other 
averments of the complaint, this statement was not true. The 
complaint avers that it is false, nor can it be said the statement 
is a mere narration of what occurred in the Iowa court, for the 
complaint further avers that in tmth and in fact the motion 
for a new trial upon the grounds of the alleged bribery was 
denied, and expressly overruled. 

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I02 MiTSUNAGA V. ThE PEOPLE. [54 CoIo. 

On behalf of defendant it is contended that the language 
of the statement is not actionable per se, for the reason it is 
not charged that bribing a jury is an offense in Iowa. We 
do not deem it necessary to go into this question. A false 
writing published of another of a character which manifestly 
tends to charge him with the commission of an act which will 
make him the subject of odium is libelous per se. Republican 
Publishing Co, v, Mosman, 15 Colo. 397. The demurrer 
should have been overruled. 

The judgment of the district court is reversed and the 
cause remanded, with directions to overrule the demurrer. 

Reversed and Remanded, 

Decision en banc. 

Chief Justice Campbell and Mr. Justice Musser not 
participating. 



[No. 7422.] 

MiTSUNAGA V. The People. 

1. JuBORS — Open Venire— Under the statute the court may order 
a jury drawn from the box or summoned by an open venire. Unless 
prohibited by statute this power is inherent in the courts at common 
law. 

2. Criminal Law — Practice — Openinff Statement of Prosecutor'-' 
A narration by the prosecutor, in his opening statement, of the details 
of an alleged confession of the prisoner is harmless, where the con- 
fession is afterwards held competent and admitted. But it seems the 
l)etter practice merely to refer to the confession, without |foing into 
details. 

3. Instructions Must Be Based Upon the Evidence — In the 

trial of one accused of willful murder an instruction upon the law of 
manslaughter is properly refused where there is no evidence upon 
which a conviction of that degree of homicide can be rested. 

4. Interest of Party Testifying in His Own Behalf— Where in 

the trial of an indictment the jury are told, by an instruction applying 
to all the witnesses, that in determining the weight to be given to 
their testimony they should take into consideration the motive any 



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Sept., 'i2.] MiTsuNAGA V. The People. 103 

witness may have to testify falsely, it is not error to say to the jury, 
Jh another part of. the charge, ttiat the, accused is Bubject to^the same 
test as other witnesses, and that they should take into consideration 
his interest in the result of the trial. 

. 5. . Evidence — Croasrewamination-^lt is ,npt admissible to interro- 
gate a witness on cross-examination as to matters not germane to his 
testimony in chief, and having no reference to statements attributed 
t'to him at variance ^^ with his testimony. 

e» Discrediting iWitneas— Prior Statements, of a witness 

^bout matters upon which he has • nqt given testimony ar^ not to be 
shown; nor statements touchiiig collateral irrelevant, or immaterial 
matters, which have no tendency to aftect his credibility or test his 
recollection. ' • ' ' 

7. -^—Confessions — Privileged — A statement made by an accused 

.person tcr an officer, in the- presence and through the. aid of a clergy- 
man, is not to be excluded on suggestion of the ecclesiastical charac- 
ter of such clergyman, where it does not appear that the clergyman 
was the spiritual adviser of the accused, or even that they were of 

•the same sect, or denpmlnation. 

81 Prosecution Not Bound, by— -The prosecution are aot bound 

by tl\e statements made by the •prisoner, even though, produced in 
chief against him, and though they are not contradicted. It is for 

Hhe jury to say how far the statement is to be accepted. 

9. Writ of EIrror — Harmless Error — To admit evidence of a con- 
fessioiL or statement of the accused is not injurious, where testifying, 
on his own behalf, he makes substantially the same statement. 

, So where, the prisoner being charged with murder, his counsel 
called upon the prosecutor to produce certain clothing of defendant, 
in order to show that 'it bore no bl6od-stains. It did not appear that 
the prisoner wore the clothes in question while at the scene of the 
homicide, and the chief of police, to whom they had been delivered, 
testified that they showed no blood-stains. Held, that the failure to- 
require their production was harmless. 



Error to Denver District C^wr^-r-Hon. Hubert L. 
Sh.attuck, Judge. 

Mr: O. N. Hilton, Mr. B. B. Laska and Mr. Caesail 
A. Roberts, for plaintiflF in error. 

Hon. Benjamin Griffith, attorney general, Mr. Phiuf 
W. MoTHERSiLL, assistant attorney general, for the people. 



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I04 MiTsuNACA V. The People. [54 Colo. 

Mr. Justice Garricues delivered the opinion of the 
court: 

I. Friday, May 6, 1910, Catherine Wilson moved into 
No. 1054 Clayton street, Denver. The family consisted of 
herself and husband ; but she was alone at the time, he being 
at Hot Springs, Arkansas. That night, she stayed with her 
daughter, Mrs. Galland, and Saturday, returned to the house, 
where she employed the defendant to clean the windows and 
bath tub, in the afternoon. Saturday afternoon, she met Hazel 
Miller, whom she invited to stay with her that night, and as 
far as disclosed by any of the evidence— other than the account 
given by the defendant — this is the last that was seen or heard 
of her, until her body was found Monday afternoon. Miss 
Miller on arriving at the house Saturday evening to keep her 
engagement, found the house locked. She went in by raising 
a back window ; but found no one there, and after waiting for 
Mrs. Wilson an hour or more, left about 8 :30. Sunday, May 
8, Mr. Wilson, who was on his way to Denver from Hot 
Springs, tel^raphed his wife, in care of Mrs. Galland, that he 
would arrive in Denver about 12:15 Monday noon. Late in 
the afternoon, Mr. Galland took this message to 1054 Clayton 
street, and finding the house locked, and no one at home, left 
it sticking in the door. Miss Miller told Mrs. Galland of her 
experience at the Wilson house Saturday night, and Mrs. 
Galland, still unable to learn of the whereabouts of her mother, 
met Mr. Wilson at the station, and told him she was missing 
They went to the house that afternoon, finding it still locked, 
and upon searching the premises, found the body in the cellar, 
crowded into a box, covered with excelsior, straw, and an- 
other box. A strip of muslin cloth was drawn tightly about 
the throat, indicating strangulation. There were bruises and 
cuts on the head and chest, and blood stains in the kitchen and 
on the stairs leading to the cellar, an attempt having been 
made to obliterate these by wiping them up with rags, left in 
the sink. Her "rat" had been crowded into her throat, and a 

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Sq)t., 'i2.] MrrsuNAGA v. The PjaopiA 105 

three-pound Indian club stained with blood, was found behind 
the retaining wall in the cellar. 

Deceased was a large, robust woman weighing about 160 
pounds. The defendant was a small Japanese, about 120 
pounds in weight, but physically strong and active, except 
that his left arm had been injured ten years before. He worked 
for a Broadway cleaning establishment, operated by a Jap- 
anese, who took orders, and filled them by sending others to 
do the work, collecting a percentage on what they received, as 
commission. 

On this Saturday morning, defendant was sent to clean 
carpets on York street, and while there, was directed by phone 
from the establishment, to go to 1054 Clayton, to work in the 
afternoon, which he did, arriving there about 1 130, and going 
to work at once. He left about 5 130, before finishing, going 
to the cleaning house, where he ate his supper, changed his 
ctothes, went down town, returned, and erased his name from 
a book \vhich gave the information that he had been sent to 
1054 Clayton. That night he went to McCook, Nebraska, 
changed his name, and in a couple of days, went to work as a 
section hand. Later he ^vas arrested there, brought to Den- 
ver, and placed in jail. While confined, he made two separate 
statements to the authorities regarding the transaction, which 
were reduced to writing, and on the trial, were read to the 
jury as part of the people's case in chief. In the first state- 
ment, he said he had not worked at all, at 1054 Clayton, that 
he went there; but that the lady who came to the door, told 
him she wanted a Jap to come in the morning, and not in the 
afternoon, so he returned to the cleaning establishment. In 
the second statement, he said he worked at 1054 Clayton, 
cleaning the windows in the afternoon, and assisted a man in 
putting the dead body of Mrs. Wilson in the box. In the first 
statement, he said he went on the train with 12 Jap boys to 
McCook. In the second, he said he did not know whether 
they were on the train; that he met them after he arrived 
there. In the first statement, he said he borrowed the money 



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I06 MiTSUNAGA V. ThE PEOPLE. [54 Golo. 

to buy a ticket to McCook ; in the second statement he said he 
bought it with money given him by the man he assisted. On 
the trial, he said that he was sent by the cleaning establishment 
to 1054 Clayton, where he made an agreement with the ladx 
to clean her windows and bath tub, and went to work at once; 
that he cleaned the windows first, and then went to the bath 
room, the lady being about the house, and occasionally con- 
versing with him ; that while he was working in the bath room, 
a tall stranger came in, his face scratched and bleeding, , and 
his shirt covered with blood, who, with a revolver in his right 
hand, seized defendant with his left, and forced him to go. 
to the cellar, where, at the bottom of the stairs, lay the dead 
body of the lady; that the man's left arm was injured, and he- 
put a cloth around her neck, stood on one end of it and pulled 
the other end with his right hand until it was tight, then at 
the point of his revolver, he forced defendant to assist him in 
putting the body in the box ; that the stranger, still threatening 
him with his revolver, forced him to take rags and wipe up 
the blood stains, after which, he took him to the front door, 
gave him $30.00, and pushed him out. Going to the cleaning 
establishment, he changed his clothes, ate supper, and went 
down town, where he met a fellow countryman, to whom he 
related the occurrence, and being informed that it was a .seri- 
ous matter, he became frightened, went back and erased his 
name from the book showing his presence at 1054 Clayton, 
not on account of the transaction : but to escape the payment 
of a commission; then went down to.wn again and tried to 
secure a railroad pass to accompany a number of Japanese 
boys who were going to McCook, X^ebraska, to work on the 
section; but failing in this, he bought a ticket with a portion 
of the money the man had given him, and left that night. 

The defense is, that the murder was committed by the 
stranger who compelled defendant to assist him in putting the 
body in the box, and wipe up the blood stains ; and an attempt . 
is made to cast suspicion upon Mr. Wilson. There is no evi- 
dence in the whole record even suggesting the husband had 

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Sept., 'i2.] MiTsuNAGA V. The People. 107 

anything to do with the crime. Nb objection is made here 
that the evidence is not sufficient to support the verdict. The 
errors assigned are: i. Challenge to the array; 2. Election 
between counts; 3. Remarks of the district attorney in open- 
ing the case; 4. Refusal to allow certain cross-examination; 
5. Admission of defendant's statements; 6. Failure of the 
chief of police to produce certain clothes. Such of these as- 
signments as have not been abandoned, will be considered. 

2. Defendant challenged the array because the jurors 
were selected upon an open venire, and not drawn, at a time 
when there were in the box the names of 500 competent jurors. 
There is nothing in this contention. The statute provides, that 
the court may order a jury drawn from the box, or summoned 
by an opai venire. Whenever the court needs more jurors, it 
has the power, under the statute, to either draw, them from 
the box or summon them by an open venire. Aside from this, 
we have held that the statutory method of summoning jurors 
is not exclusive, and unless prohibited, the court has the in- 
herent common law power to select a jury upon an open venire, 
directed to the sheriff. — Mackey v. People, 2 Colo. 13; Giano 
V, People, 30 Colo. 26; Imboden v. People, 40 Colo. 142 ; Walt 
i\ People, 46 Colo. 138. 

3. It is next complained that the district attorney in his 
opening statement, told the jury that the defendant had con- 
fessed, and narrated the purported confessions — being the two 
statements afterwards admitted in evidence — to the jury. It 
is contended the court should not have allowed the prosecu- 
tion to do this, because the admissibility of the evidence had 
not been determined, and if excluded, the rights of the defend- 
ant rnight be jeopardized. It probably would be the better 
practice, ordinarily, for the prosecution in opening, merely to 
refer to such matters, without going into details : because at 
the trial, the offered evidence might be excluded. In this case, 
however, no harm was done the defendant, because the state- 
ments were afterwards held competent, and admitted in evi- 
dence. 

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I08 MiTSUNAGA V. ThE PEOPLE. [54C0I6. 

4. Deceased's husband, Ridgley Wilson, testified about 
starting to Denver from Hot Springs, and tel^raphing his 
-wife from Kansas City that he had missed connections, and 
would not reach Denver until 12:15 Monday noon; of Mrs. 
Galland meeting him at the station and telling him of the dis- 
appearance of his wife; of their going to the house in the aft- 
ernoon and finding the body in the cellar. This, in substance, 
was his testimony. On cross-eyamination he was asked : Did 
your wife tell you, just before you left Denver, that she had 
told Mrs. Faxon, that she desired to change her insurance 
policy, so as to make her daughter beneficiary instead of your- 
self; that she expected something would happen to her, and 
that if she was killed, it would be you who did it, to look for 
her and she would be found? Did you ever pursue her with 
a revolver, about the house? You had frequent quarrels with 
your wife, while you were married and living with her? Did 
you tell her in a letter, that when she found a house, you 
wanted her to get one in a locality where you were not known ? 
Did you tell Mal)el Galland, you wanted her to keep it, (the 
identification slip given him by the porter on the Pullman) 
that somebody might say you had come into Denver on a 
mule? The objections to these questions were sustained, be- 
cause they were not proper on cross-examination. It is claimed 
in argument, they were asked for the purpose of impeaching 
the witness. It is evident they were not germain to any mat- 
ter about which the witness had testified, and therefore, not 
proper cross-examination; neither were they proper impeach- 
ing questions. If a witness has made previous statements out 
of court, upon a matter material to the issue, substantially dif- 
ferent from his evidence in court, such statements may tend 
to impeach his recollection or his truthfulness, and should be 
considered by the jury in determining the credibility of the 
witness, and the weight to be given to his testimony. — Rose v. 
Otis, 18 Colo. 59; Mullen v. MdKint, 22 Colo. 468; Jaynes v. 
People, 44 Colo. 541; Ryan v. People, 21 Colo. 119: Nutter 
V. O'Donnell, 6 Colo. 253. 

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Sept., 'I2.] MiTSUNAGA V. ThE PEOPIX IO9 

But prior statements of a witness about matter^ upon 
which he has not testified in court, cannot be shown. There 
must be a material inconsistency or contradiction between his 
evidence in court, and his alleged previous statements out of 
court, and the impeaching question must not be upon collat- 
eral, irrelevant or immaterial matters; but must be upon mat- 
ters material to the issue. The test as to its materiality is 
said to be: If the statement which it is alleged the witness 
made out of court, was true, would the impeaching party be 
entitled to prove it in support of his case ? — Askew v. People, 
23 Colo. 455 ; 40 Cyc. 2700. 

These questions did not tend to affect the credibility, or 
test the recollection of the witness upon any material evidence 
he had given, and if he had answered in the negative, defend- 
ant would not, on that account, have been allowed to prove the 
contrary. 

5. While in jail, defendant was visited by Shirato, a 
Japanese Methodist minister, who reported to the chief of po- 
lice, that defendant wished to see him. He was taken to the 
chief, and made the first statement. Later, he again sent word 
by Shirato that he wanted to see the chief, to whom he made 
the second statement. It is claimed these statements were 
privileged communications, because made to Shirato as his 
spiritual adviser. There is no evidence that defendant was a 
Methodist, or that Shirato was his spiritual adviser. Defend- 
ant voluntarily sent his wish by Shirato to see the chief, and 
then made the statements to him. He was well represented 
by interpreters, and precaution was taken to remind him of the 
seriousness of the offense, and that his statement must be vol- 
raitary. No violence, threats, inducements, promises or hope 
of any kind were held out to him to induce him to make these 
statements, and there was no error in admitting them in evi- 
dence. — Reagan v. People, 49 Colo. 316; Byram v. People, 
49 Colo. 533. The defendant afterwards testified in his own 
behalf in practically the identical language of his second state- 



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no MiTsuNAGA V. The People. [54 Colo. 

ment, so we do not see how he could have been harmed by its 
introduction in evidence by the people. 

6. It will be remembered the defendant, after he left 
Clayton street, went to the cleaning establishment, ate his sup- 
per, changed his clothes, and went down town. Afterwards, 
the proprietor of the place, delivered some clothes to the chief 
of police, which were said to belong to defendant, and on the 
trial the officer was subpoenaed duces tecum, by the defendant, 
to produce these articles; the purpose being to show the jury 
they contained no blood stains. This the chief said he could 
not do, because they had disappeared, and this is assigned as 
error. There is no evidence that these clothes were worn by 
the defendant while at the Wilson house; and as the chief 
testified the clothes brought to him showed no signs of any 
blood stains, their non-production could make no difference to 
the defendant. 

7. Error is assigned upon the refusal of the court to in- 
struct upon manslaughter. The deceased was murdered. 
Over this, there was no controversy. Who committed the 
murder, was the only question. There was no occasion for in- 
structing on manslaughter, because there was no evidence 
upon which to base such a verdict. — Sffiiih v. People, 1 Colo. 
144; Crawford v. People, 12 Colo. 292; Kelly v. People, 17 
Colo. 137; Carpenter v. People, 31 Colo. 290; Mow v. People, 
31 Colo. 360; Van Wyk v. People, 45 Colo. 12-18; Reagan v. 
People, 49 Colo. 326. 

8. In instruction 16, the court told the jury they were 
the judges of the credibility of all the witnesses and the weight 
to be given their testimony; in determining which, they should 
take into consideration the motive or interest any witness 
might have in testifying falsely. In instruction 17, they were 
told that defendant was subject to the same test as other wit- 
nesses, and they should take into consideration his interest in 
the result of the trial. Error is assigned upon the latter in- 
struction, because it singles out the defendant, and directs 
special attention to his credibility. The court had previously 



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Sept., 'i2.] MitsiJnaga v. The PEOPtE. 1 1 1 

told the jury in instruction i6,' that they were the judges of the 
credibility of , all the witnesses, and should take into consid- 
eration the interest any witness h^d in the trial. This in- 
cluded the defendant as a witness, and the court might prop- 
erly have stopped there; but perhajps some juryman might 'not 
have comprehended that this included him, that is, might have 
considered him in some different or other capacity; therefore, 
it was not prejudicial error for the court to tell the jury in 
another instruction, that the defendant was a witness, and they 
had no right to disr^ard his testimony merely because he 
was the defendant ; but must consider it, and give it such 
weight as they thought proper, in connection with all the other 
evidence in the case, and in determining the weight and credi- 
bility of his evidence, they had a right to take into considera- 
tion the fact that he was the defendant, and his interest in the 
result of the trial. We know there are authorities holding it 
is reversible error to single out the defendant in this manner ; 
but we fail to see how such an instruction can so prejudice 
the rights of the defendant as to make it reversible error, and 
this court is committed to its propriety. — MinicH v. People, 
8 Colo. 440-453; Babcock v. People, 13 Colo. 515-523; Porter 
^. People, 31 Colo. 508-515. . 

9. Counsel for defendant contend the people were bound 
by his statements which the prosecution introduced in evidence 
in chief, unless they were shown to be untrue. It was for the 
jury to determine from all the evidence in the case, how much, 
if any of the statements they would believe. — State v. Merkle, 
189 Mo. 315-321. 

Affirmed, 
Mr. Justice White and Mr. Justice Musser concur. 



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112 Lyons v. Ixwgmont. [54 Cola 

[No. 7426.] 

Town of Lyons v. City of Longmcw t. 

1. CoKBTiTUTiONAL Law — When the CanstitiUion Is Self-Execute 
Uig — Constitutional provisions are self-executing when it appears from 
the context that they are intended to operate at oace, without the aid 
of legislation to give effect to the right conferred, or enforce the duty^ 
prescribed. 

Section 7, art. XVI of our constitution is of this character. It 
does not merely declare principles, but confers a right and prescribes 
the conditions and rules under and by means of which that right 
may be enforced. 

2. OonatructUm of the OonetituHonr-The purpose of a con- 
stitutional provision is to be ascertained from the words thereof. The 
title or caption of the article in which it is found is not controlling. 

3. Section 7 of art. XVI, confers on all persons and corporis 

tions the right of way across any lands, public or private, for convey- 
ing water for domestic purposes. The character of the conduit is un- 
important A municipal corporation may condemn a way through 
and across the public streets and alleys of another municipality for 
the construction of a pipe-line for conveying water for the domestic 
uses of its inhabitants. 

The latter municipality still retains authority to prescribe neces- 
sary ressonable regulations which must be observed by the former in 
maintaining and operating such pipe-line. 

Error to Boulder District Court. — Hon. James E. Gar- 
RicuES, Judge. 

Messrs. Schuyi^er & Schuyler and Mr. Henry Trow- 
bridge, for plaintiff in error. 

Mr. Grant E. Halderman and Mr. Horace N. Haw- 
kins, for defendant in error. 

The town of Lyons ^nd the city of Longmont are located 
on the St. Vrain, the former near the point where the stream 
emerges from the foot-hills, and the latter about nine miles 
below. The city of Longmont commenced an action against 
the town of Lyons and a number of private owners of property 
in the town to condemn a right of way for a pipeline to carry- 
water for domestic and other uses and purposes, for the in- 



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Sq)t, 'i2.] Lyons v. Longmont. 113 

habitants of the city, through, and under certain streets and 
alleys of the town, and also through certain parcels of land 
owned by the individual property owners. The water supply 
for this system is taken from the north fork to the St. Vrain 
some distance above the town of Lyons. It is not necessary to 
notice in detail the averments of the petition filed by the city, 
as its sufficiency is not challenged, if the city has the right to 
condemn a right of way for its pipeline through the streets of 
the town of Lyons. To the petition the respondents filed their 
joint and several demurrers on the ground that the court was 
without jurisdiction of the proceedings, or to grant possession 
of the premises described in the petition, and, generally, that 
the petition did not state facts sufficient to constitute a cause 
of action. This demurrer was overruled. The city then ap- 
plied for an order granting it possession of the premises de- 
scribed in its petition, to enable it to proceed with the con- 
struction of its pipeline, which was granted. Thereafter, for 
the purpose of saving time and expense to the parties, and in 
order to hasten the disposition of the case, a stipulation of 
facts was entered into between the parties, by which it was 
* agreed that an answer need not be filed by respondents, and 
that the case should be considered at issue, without any fur- 
ther plea ; that a board of commissioners need not be appointed, 
nor jury summoned ; that the findings of the court should be 
as valid and effective as if a board of commissioners had been 
appointed and returned their report, and appraisement; that 
the value of the land or property actually taken was one dollar 
for each tract or parcel; that there were no damages to the 
residue; and no benefits to any of the land of respondents not 
taken. It was further stipulated that the route described in 
the petition through the town of Lyons from petitioner's 
intake dam is the most practicable, feasible, and least 
expensive route, and that if a line was constructed which 
did not pass through the town of Lyons it would in- 
volve a greatly increased cost, and engineering questions of 
getting the line over hills and cliffs, which are not involved in 



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by^^oogle — 



114 Lyons V. LoNGMONT. [54.6016. 

•the line going through the town of Lyons; that the town of 
Lyons lies between the diversion, or. intake dam of the city 6f 
Longmont, and the corporate limits of the latter, and that the 
pipeline did not pass through cultivated or improved land in 
the town of Lyons, and that no building or improvement was 
interfered with or damaged. It was also stipulated, as alleged 
in the petition, that the line was to be a "flow line," — that is, a 
pipeline in which the water flowed by gravity, and not by 
pressure, and that the line through Lyons should be, and was, 
a concrete and steel pipe, laid several feet below the surface, 
with every joint cemented or leaded, and fitted so closely to- 
gether that water would, or could, not leak from the line; and 
that the city, as stated in its petition, only sought to obtain the 
right of way through the town of Lyons for the purpose of 
conducting water through its pipeline. Subject to all reason- 
able rules and regulations, which then existed or might there- 
after be enacted by the town with respect to the laying and 
maintenance of the line within its boundaries. 

The line had been laid through the town before the cause 
was tried. At the trial it appeared without dispute that the 
pipe had been laid through the town of Lyons at a depth of 
from four to ten feet ; that no improvements of the town had 
been interfered with ; that the water line of the town of Lyons 
had been crossed twice, Longmont's pipe going underneath; 
and that the pipe had been laid through the town with extra 
care and expense, so as to make it absolutely safe, the line hav- 
ing been surrounded with concrete, so that it would never 
break, no matter how heavy the travel over the streets might 
be. It appears from the stipulation of the parties and the testi- 
mony, that the use of the streets by the town of Lyons through 
Avhich the pipeline passes is not in any manner interfered with. 

On these facts the court entered judgment awarding the 
city of Longmont a right of way over, upon, and through the 
parcels of land and streets mentioned in its petition, for its 
pipeline, for the conveyance of water to its water works sys- 
tem : and that upon payment of the damages, as fixed by the 

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Sept., 'i2.] Lyons v. Longmont. 115 

stipulation of the parties, the city of Longmont should become 
seized in fee of the right of way through such streets and par- 
cels of land- The town of Lyons brings the case here for re- 
view on error, and contends the judgment is erroneous for the 
following reasons : . 

"i. The streets and alleys of the town of Lyons are pub- 
lic property and no right exists, and* the courts of this state 
have no jurisdiction, to condemn a right of way for a water 
pipe line by one municipality through the streets and alleys of 
another municipality. 

2. The statutes of Colorado specifically prohibit the lay- 
ing of any pipeline in any street or alley of a town or city 
without the consent of such town or city. 

3. Towns and cities of this state have exclusive jurisdic- 
tum over the use of their own streets, and the judgment of the 
district court herein deprives the town of Lyons of such juris- 
diction, and also results in giving jurisdiction to two munici- 
palities over a portion of the streets and alleys of one of said 
municipalities, at the same time, and for the same purpose.'' 

In support of this proposition, the following statutory 
provisions of the Revised Statutes of 1908 are relied upon: 
Section 6519; sub-divisions 58, 67, 68, 70 and 74, and para- 
graphs I, 4, 7, 8, 9, of sub-division 7 of section 6525 ; section 
6815; the Eminent Domain Act, sections 2415, 2416, 2458 ct 
seq; and sections 6676 and 6588. "^ 

Based on these provisions, and the facts, the argument of 
counsellor the pISiTtiff in error is, that the streets and alleys 
of the town of Lyons are public property ; that the constitution 
and statutes of the state only confer the right to condemn pri- 
vate property ; that a pipeline can not be laid in any street or 
alley.of a town without its consent; that towns and cities have 
exclusive jurisdiction over the use (ff their streets; that the 
judgment confers jurisdiction on two municipalities over the 
same streets and deprives the town of Lyons of the use of its 
streets for water, gas, sewer, pipeline and other municipal 
uses. 



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1 1 6 Lyons v. Longmont. [54 Colo. 

The contention of counsel for the city of Longmont is, 
that the Eminent Domain Act gives the city a right to con- 
demn a right of way through the streets of the town of Lyons, 
or, if it does not, that this right is conferred by section 7 of 
article XVI of the constitution, which is as follows : 

"All persons and corporations shall have the right of way 
across public, private and corporate lands for the construction 
of ditches, canals and flumes for the purpose of conveying 
water for domestic purposes, for the irrigation of agricultural 
lands, and for mining and manufacturing purposes, and for 
drainage, upon payment of just compensation." 

For a reply to this argument, coimsel for plaintiff in error 
contend that the section is not applicable, for the reason that 
it is part of an article confined to the subject of "Mining and 
Irrigation," and was not intended for a municipal water sup- 
ply; that it only applies to "ditches, canals and flumes," and 
does not apply to a "pipeHne" for carrying water underneath 
the surface; that the streets and alleys of the town of Lyons 
are not "public lands" within the meaning of this provision, 
and that it is not self -executing. 

Mr. Justice Gabbert delivered the opinion of the court : 

The sole question involved is, whether the city of Long- 
mont has the right to condemn a right of way for its pipeline 
through the streets and alleys of the town of Lyons. Inde- 
pendent of statutory provisions cited by counsel for plaintiff in 
error, we think this right is conferred by the constitutional 
provision above quoted. It declares that all persons and cor- 
porations shall, have the right of way across public, private 
and corporate lands, for the purpose of conveying water for 
domestic purposes. The intent of a constitutional provision is 
the law. Manifestly, the intent of the provision under consid- 
eration was to confer upon all persons and corporations the 
right of way across lands, either public or private, by whom- 
soever owned, through which to carry water for domestic pur- 
poses, and necessarily, embraces a municipal corporation 
seeking a right of way for such purposes. It covers every 

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Sq)t, 'i2.] Lyons V. LoNGMONT. 117 

form in which water is used, domestic, irrigation, mining and 
manufacturing, and its object is' to be ascertained from its lan- 
guage and not from the title or heading the compiler of the 
constitution has given the article in which it is found. If does 
not mention a pipeline, but its evident object was to permit a 
right of way for a conduit through which to convey water for 
the purposes designated, and hence, the kind of conduit em- 
ployed and utilized is of no material moment, so far as any 
question in the case at bar is involved. It does not merely de- 
clare principles. On the contrary, it is complete in itself, and 
by its own terms, confers a right and prescribes the rules and 
conditions by means of which such right may be enforced. It 
employes no language to indicate that the subject with which 
it deals is to be referred to the legislature for action. A con- 
stitutional provision is a higher form of statutory law, which 
the people may provide shall be self-executing, the object be- 
ing to put it beyond the power of the legislature to render it 
nugatory by refusing to pass laws to carry it into effect. Con- 
stitutional provisions are self-executing when it appears that 
that they shall take immediate effect, and ancillary legislation 
is not necessary to the enjoyment of the right thus given, or 
the enforcement of the duty this imposed. In short, if a con- 
stitutional provision is complete in itself, it executes itself. — 
Dazns v, Burke, 179 U. S. 399; Cooley on Const. Lim., 6th 
Ed., 99; 6 Am. & Eng. Ency., 912 ; Kitchin v. Wood, 70 S. E. 
(N. C.) 995; WUlis V. Mabon, 48 Minn. 140. 

To summarize: The constitutional provision under con- 
sideration confers a right and prescribes the rule by means of 
which, in an appropriate action in a court of competent juris- 
diction, that right may be enforced without further legislation, 
and is, therefore, self -executing. 

In so far as the statutory provisions cited by counsel for 
plaintiff in error are in any sense applicable, the rights thereby 
conferred upon cities and towns are subject to this constitu- 
tional provision. The judgment in no sense deprives the town 
of Lyons of jurisdiction over its streets and alleys, as it re- 



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*^oogle 



]i8 GAI.LIGAN V. Luther. [54 Goto, 

tains authority to prescribe all reasonable and necessary rules 
and regulations, which the city of Longmont must observe in 
maintaining its pipeline through such streets and allej'Sj and 
all rights which it may exercise over its line within the corpor- 
ate limits of Lyons are, therefore, subject to such control. It 
affirmatively appears that the judgment of the district court 
does not deprive the town of Lyons of the use of its streets for 
any purpose w^hatever, either present or future, and it is, there- 
fore, unnecessary to consider whether a right of way for the 
purposes mentioned in the constitution would be granted when 
the effect would be to deprive a municipality of all use of its 
streets through which such right of way was sought. 
The judgment of the district court is affirmed. 

Judgm^fit affirmed. 

Decision at bofic. 

Chief Justice Campbeu^ and Mr. Justice Garrigues 
not participating. 



[No. 7535.J 

Gau^igan v. Luther. 

1. Pleadings — Amendment — An amended complaint is not to be 
filed without leave of the court. 

A Judgment rendered after a trial had without notice to the de- 
fendant, upon an amended complaint filed without leave, and increas- 
ing the plaintiff's damages, should be vacated on motion. 

2. New Trial — Verdict Not Conforming to the Evidence — ^A ver- 
dict must be supported by the evidence, and consistent with some 
legitimate theory of what the testimony tends to establish. If wholly 
at variance with the testimony and the theory upon which the cause 
was tried, it should be vacated. 

Error to Pueblo District Court. — Hon. C. S. Essex, 
Judge. 

Mr. M. J. Gaixigan, plaintiff in error, prose. 



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Sq).t., 'i2.] Gaixigan v. Luther. 119 

Messrs. McCorkivE & McCoRKLrE, for defendant in 
error. 

Mr. Justice GabbERT delivered the opinion of the court : 

Plaintiff in error commenced an action against the defend- 
ant in error to recover the sum of three hundred and fifty dol- 
lars, claimed as the balance due for services as an attorney in 
the sum of five hundred dollars, and fifty dollars advanced at 
the defendant's request. After the issues were made, plaintiff, 
"without leave of court, or application for that purpose, filed an 
amended complaint, in which he claimed that the services ren- 
dered were worth the sum of one thousand dollars, and prayed 
judgment for eight hundred and fifty dollars. A copy of this 
amendment was served upon counsel for defendant. A few 
days after service of the amendment, plaintiff, without notice 
to defendant, or rule upon him to plead to the amended com- 
plaint, had the cause set for trial. Pursuant to this order, and 
without any further proceedings or knowledge on the part of 
defendant, plaintiff tried the cause before a jury, and obtained 
a verdict for eight hundred and fifty dollars, upon which judg- 
ment was rendered. Shortly after defendant moved to set 
aside the verdict and judgment upon the ground, among 
others, that the cause was not at issue, when tried. This mo- 
tion was sustained. Thereafter, the defendant filed an 
amended answer to the amended complaint, and the cause was 
tried before a jury, and a verdict rendered for fifty dollars, 
upon which judgment was entered. The plaintiff brings the 
case here for review. 

The first point urged is, that the court erred in setting 
aside the judgment. Without leave of court the plaintiff was 
without right to file an amended complaint After the 
amended complaint was filed, increasing the claim for services 
from five hundred to one thousand dollars, the cause was tried 
without notice to defendant, and in his absence, and without 
an amended answer or rule to file one. We think the court 
ruled correctly in setting aside the judgment. 

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I20 Gaixigan v. Luther. [54 Colo. 

The defense was to the effect that plaintiff had agreed to 
render the services to recover the value of which the action 
was brought for the sum of two hundred and sixty dollars, 
upon which defendant had paid two hundred and forty-six 
dollars. The testimony on the part of defendant tended to 
support this contention. It was also claimed on his part that 
plaintiff had not complied with his agreement, and for that 
reason he had been compelled to employ other counsel. There 
was no testimony as to what sum he had paid on this account, 
or what the services of other counsel were reasonably worth. 

The claim of plaintiff was, that there was no express 
agreement, but that he was to be paid the reasonable value of 
the services rendered. The testimony on his behalf was that 
they were worth the sum claimed. There was no evidence to 
the contrary. Plaintiff testified that only two hundred dollars 
had been paid. The verdict rendered was wholly at variance 
with the testimony, and the theory upon which it was tried 
and submitted to the jury by the respective parties. A verdict 
must be consistent with the testimony and the facts which it 
purports to determine. It must be consistent with some legiti- 
mate theory of the testimony or what the testimony tends to 
prove; and when it is not warranted by any legitimate analysis 
of the evidence or what may be fairly inferred therefrom, it 
should be set aside. — Burns-Moore M. & T. Co, v, Watson, 45 
Colo. 91. 

According to the testimony on behalf of plaintiff, he was 
entitled to recover practically the sum claimed in his complaint. 
According to the testimony of the defendant, he had paid 
plaintiff two hundred and ten dollars on account of services 
rendered under his special contract with plaintiff, and thirty- 
six dollars for court costs, while plaintiff testified that nothing 
had been paid on account of the latter item, although for this 
purpose he had advanced fifty dollars. That this sum had 
been advanced was not denied by defendant, so that, according 
to the testimony, bearing on the subject of the amount ad- 
vanced for costs, he would owe plaintiff the sum of fourteen 

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Sept., 'I2.] GAU.IGAN V. LUTH^. . 121 

dollars, and, from the testimony of the defendant as to the 
balance of the contract, the sum of fifty dollars, leaving the 
amount due plaintiff the sum of sixty-four dollars; or, if we 
accept the testimony of plaintiff that nothing had been paid 
for court costs, then defendant would owe him fifty dollars 
on this account, and if the contract was established, the defend- 
ant would owe him sixty dollars more, making a total of one 
hundred and ten dollars. Counsel for defendant seek to avoid 
this situation by claiming the jury believed that plaintiff had 
agreed to render the services involved for two hundred and 
sixty dollars ; that he had received two hundred and forty-six ; 
and that as he had not tried some of the cases, and therefore 
had not complied with his contract, which necessitated the em- 
ployment of other counsel, the fifty dollars awarded was for 
the costs advanced by plaintiff. This theory is wholly at vari- 
ance with the testimony of defendant, or entirely without testi- 
mony to support it. If adopted, then we would be required to 
accept the conclusion that the jury concluded that the failure 
of plaintiff to comply with his contract had necessitated the de- 
fendant employing other counsel to take care of the litigation, 
at an expense of fourteen dollars, when there is no testimony 
. whatever as to what sum he expended, or the amount of the 
obligation he assumed on this account. 

Again, he did not claim that the thirty-six dollars which 
he testified he had advanced was for other than court costs, so 
that he was not in a position to assert that this sum had been 
paid the plaintiff for services. It is impossible to reconcile the 
verdict with any theory of the case, or the testimony. In ad- 
dition to the authority cited, we also call attention to Burling- 
ton Interurban Ry. Co, v. Chapman, 53 Colo. 28, 123 Pac. 
649; Leander v. Graves, 45 Colo. 246; Hassel v. Iron Works 
Co., 36 Colo. 353; Robeson v. Miller, 4 Colo. App. 313; Jen- 
sen V. Nail, 53 Colo. 212, 124 Pac. 471 ; Ferrari v. Fuel Co., 
53 Colo. 259, 125 Pac. 125. 



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122 King v. The Peopi^e. [54 Colo. 

The judgment of the district court is reversed and the 
cause remanded for a new trial. Reversed and Remanded. 

Mr. Justice Musser and Mr. Justice Hiix concur. 



[No. 7643.] 

King v. The Peopi^e. 

1. Criminal Law — Instructions — Construed — Indictment for Mur- 
der — ^An instruction declared that "deliberately" does not mean brood- 
ed over, or reflected upon, for a week, day or hour, "but an intent to 
kill executed by the defendant-' in cold blood. The use of the definite 
article in referring to the accused was held not to be taken as the 
court's expression of a belief in his guilt. 

2. To Be Taken as a Whole — What is omitted from one part 

of the charge may be effectually supplied by what is said elsewhere 
therein. The jury were told by one instruction that to warrant a ver- 
dict of guilty they must find that the killing was with premeditation. 
The failure to impose upon the prosecution the burden of establishing 
the defendant's guilt, by the evidence, beyond reasonable doubt, was 
held immaterial where this was prescribed elsewhere in the charge. 

One instruction told the jury that if they should find from the 
evidence beyond reasonable doubt that another person than the ac> 
cused committed the homicide, and from the evidence, beyond reason- 
able doubt, that the prisoner unlawfully, feloniously, premedltatedly> 
etc., abetted or assisted, etc., he also was guilty of murder in the first 
degree. By another instruction the two degrees of murder as defined 
in the statute were fully explained. Held, that the effect of the in- 
struction first quoted was not to take away from the jury the degree 
of the homicide. 

By one instruction the jury were told that if they should find 
from the evidence beyond reasonable doubt that the prisoner and one 
Fields, at a time and place named, wilfully, etc., .engaged in an at- 
tempt to rob the deceased, and in this attempt Fields infiicted upon 
the deceased a mortal wound, and at the time, etc., the prisoner "was 
present, unlawfully, feloniously, etc., aiding, abetting, assisting, etc.," 
the prisoner was guilty of murder in the first degree. Held, that this 
instruction in no manner invaded the province of the jury.' 

By another instruction the jury were told that if Fields committed 
the homicide without premeditation, and that the prisoner aided 
therein, the prisoner was guilty of murder in the second degree, pro- 
Tided they should further find, etc., that the homicide was not com- 



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Sept., 'i2.] King v. The People. 123 

mitted in an attempt to rob. Heldt that thereby the jury were in ef- 
fect Instructed that though the homicide was without premeditation, 
ir was murder in the first degree unless they should further, affirm- 
atively, find that it was not committed in an attempt to rob. Where- 
as, If there was no premeditation, and the jury made no finding upon 
the question whether it was committed In an attempted robbery, the 
prisoner could be convicted only of murder in the second degree. And 
the evidence not being preserved in the record, it was not to be pre- 
sumed that it supported only the charge of murder committed in the 
perpetration or attempted perpetration of a robbery, where the court 
had charged, not only upon that theory, but upon the theory of an 
actual preconceived design to take the life of the deceased, and upon 
the theory of murder in the second degree. The conviction was 
therefore reversed. 

3. Bill of Exceptions — Xot Required of Defeated Party — No law 
makes it incumbent upon the defeated party, to bring the evidence 
into the record. 



Error to Elbert District Court. — Hon. J. W. ShEafor, 
Judge. 

Mr. H. A. Hicks and Mr. Charles Roach, for plaintiff 
in error. 

Hon. Benjamin Griffith, attorney general, and Mr. 
Charles O'Connor, first assistant attorney general, for the 
people. 

Mr. Justice White delivered the opinion of the court : 

George King was tried for, and convicted of the murder 
of Felix Jackson, commonly known as Pete Jackson, and, 
upon the verdict of the jury, sentenced to death. He brings 
the case here for review. 

In instructing the jury as to the meaning of the word 
"deliberately" the court stated, inter alia, that it does not mean 
"brooded over or reflected upon for a week, or a day, or 
an hour, but it means an intent to kill, executed by the defend- 
ant in a cool state of the blood," ei cetera, and plaintiff in error 
claims that by the use of the adjective "the" instead of "a" be- 
fore the word "defendant," the court thereby expressed an 

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124 King v. The Peopi^. [54 Colo. 

opinion that the "defendant on trial had in a cool state of the 
blood committed the crime charged." 

We are not impressed with the criticism or the inference 
sought to be drawn from the language used. The clear min- 
ing of the instruction is, that deliberation, as an element of the 
crime, did not exist, unless the jury found that the defendant, 
in the absence of overpowering passion, distinctly formed in 
his mind the intent to kill the deceased, and thereafter, how- 
ever short the time, so executed the act of killing. 

Instruction No. 8 told the jury that in order to warrant 
them in finding a verdict of murder in the first degree, "you 
must find, and so indicate in your verdict, that the killing was 
with deliberation and premeditation," and it is claimed that be- 
cause they were not also told therein that such finding must be 
upon the evidence and beyond all reasonable doubt, it consti- 
tutes reversible error. The burden of proof to establish the 
guilt of defendant from the evidence beyond- a reasonable 
doubt, was placed upon the people by Instruction No. 5, which 
also declared that the defendant must be presumed to be inno- 
cent of the crime charged against him until proven guilt}^ by 
the evidence beyond a reasonable doubt. Moreover, the neces- 
sity of finding the truth of the charge from the evidence be- 
yond all reasonable doubt was covered by several other in- 
structions, and it is clear that no possible misconception in that 
respect could have entered the minds of the jurymen. It is 
not a case where there was given an incorrect and a correct in- 
struction covering the same matter, but rather one wherein 
that which is said to be an omission from one instruction was 
supplemented and cured by the language of another forming a 
portion of the same charge. 

Instruction No. 9 told the jury that if they believed and 
found from the evidence beyond a reasonable doubt that one 
"John Fields * * * wilfully, unlawfully, feloniously, de- 
liberately, premeditatedly and with malice aforethought," 
killed and murdered the deceased, and "if you should further 
find and believe from the evidence beyond a reasonable doubt 

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Sept., 'i2.] King v. The Peofuj. 125 

that the said defendant, George King, was present at the time 
and place aforesaid, and did then and there "unlawfully, wil- 
fully, feloniously, deliberately, premeditatedly and of his 
malice aforethought, abet or assist" in such killing, "then you 
are instructed that the defendant, George King, is also guilty 
of murder of the first degree, and you should so find and state 
in your verdict." It is claimed that the instruction constitutes 
reversible error, because the question of the degree of murder 
is thereby taken from the jury. We do not believe that the in- 
struction has the effect claimed. The statute declares murder 
to be the unlawful killing of a human being with malice afore- 
thought, either express or implied, by any of the various means 
by which death may be occasioned. Sec. 1622, R. S., 1908. 
And section 1624, R. S., 1908, declares, inter alia, that murder 
which shall be perpetrated "by any kind of willful, deliberate 
and premeditated killing," or "which is committed in the per- 
petration or attempt to perpetrate any * * * robbery 
* * * shall be deemed murder of the first degree." By In- 
struction No. 3 the two degrees of murder, as defined in the 
statute, were fully explained. So the substantial effect of In- 
struction No. 9 was to say to the jury that if they found from 
the evidence beyond a reasonable doubt that John Fields was 
guilty of murder in the first degree, and that the defendant 
was an accessory thereto during the fact, deliberately and pre- 
meditatedly assisting therein, he was likewise guilty of mur- 
der in the first degree, and they should so find by their verdict. 
A like objection and criticism is made and urged against 
Instruction No. 10. It told the jury that if they found and 
believed from the evidence beyond a reasonable doubt that de- 
fendant and Fields, at a time and place named, did wilfully 
and feloniously engage in an attempt to take from the person 
of Jackson, by violence and force, or by violence and intimi- 
dation, his money, goods or other valuable things, and while 
so engaged Fields did unlawfully and feloniously shoot and 
kill Jackson, and at the time the shot was fired by Fields and 
the mortal wound inflicted upon Jackson, the defendant, 

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126 King v. Thh) Peopi.E. [54 Colo. 

George King, was present, unlawfully and feloniously aiding, 
abetting or assisting Fields in the attempt to take from Jack- 
son his money, et cetera, then the defendant. King, would be 
guilty of murder in the first degree, and the jury should so 
find and state in their verdict. 

While it is true that when the crime of murder is estab- 
lished the law declares it to be murder of the second, in the ab- 
sence of circumstances showing it to have been murder of the 
first degree, nevertheless when the facts and circumstances in 
evidence are detailed in an instruction and embody only the 
elements of murder in the first degree as declared by the 
statute, it is not improper to state in an instruction that if the 
jury finds the existence of such facts beyond a reasonable 
doubt the defendant would be guilty of murder in the first de- 
gree, and the jury should so find. The statute makes a homi- 
cide committed in the perpetration or attempted perpetration 
of robbery, murder in the first degree, and the substantial ef- 
fect of the instruction was to impose the duty upon the jury 
to ascertain whether the robbery had been committed or at- 
tempted, and, if so, whether the homicide had been committed 
in the perpetration thereof. If both were found in the affirma- 
tive, beyond a reasonable doubt, the statute fixes the homicide 
as murder of the first degree, and under such circumstances 
that degree is the only grade of the offense of murder the evi- 
dence will support. The rule as stated in 21 Cyc. 1067, is that, 
*Svhere the absence of an actual preconceived design to take 
life does not reduce the grade of the offense, where the homi- 
cide was committed in the perpetration of certain other fel- 
onies, such as arson, burglary, rape, or robbery, the court need 
not, in such cases, instruct the jury as to minor included of- 
fenses." Under such circumstances there is but one grade of 
the offense, that is, murder in the first degree. 

By Instruction No. 12, the jury were told, substantially, 
that if they found beyond a reasonable doubt that John Fields 
wilfully, unlawfully, feloniously and with malice afore- 
thought, killed the deceased, and they did not find that such 

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Sept., '12;.] King v. The P^opije. 127^ 

killing was with deliberation and premeditation, and they fur- 
ther found beyond a reasonable doubt that the defendant, 
King, so aided and assisted Fields in such killing, "then you 
are instructed that the defendant, George King, is guilty of 
murder of the second degree, and you should so find and state 
in your verdict; provided you further find from the evidence 
that at the time of the killing of the said Felix Jackson, com- 
monly known as Pete Jackson, the said defendant and the said 
John Fields were not engaged in an attempt to rob the said 
Felix Jackson, commonly known as Pete Jackson, as defined 
in Instruction No. 10." 

We think the instruction vicious. Its effect was to tell 
the jury that although the killing of deceased may have been 
without any deliberation or premeditation whatever, it was. 
nevertheless, murder in the first degree, unless they further 
found affirmatively that the homicide was not committed in 
the execution or attempted execution of robbery. Such is not 
the law. If the jury believed and found that the killing was 
w-ithout deliberation and premeditation, but attended with all 
the other elements of murder, the defendant was entitled to a 
verdict of murder in the second degree, though the jury en- 
tertained a reasonable doubt, and made no finding as to 
whether the homicide was or was not perpetrated in an attempt 
to rob. The principle applicable here is considered, and ap- 
plied in Prihhle v. People, 49 Colo. 210. If the case had been 
submitted solely upon the theory that the murder was com- 
mitted in the perpetration or attempted perpetration of rob- 
bery, or if the evidence had been embodied in a bill of excep- 
tions and made a part of the record, and we could clearly dis- 
cover therefrom that the homicide had been so committed, it 
might be held that the instruction was without prejudice. — 
Wickham v. People, 41 Colo. 345. Under the first instance 
we might presume that all the issues made were presented by 
the instructions, and inasmuch as homicide committed in the 
perpetration or attempted perpetration of robbery is murder 
of the first degree, the defendant had suffered no injury; and 

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128 King v. The Peopi^e. [54 Colo. 

under the second we might know that the defendant was in no 
wise prejudiced. But this record presents no such facts and 
conditions. Two theories of murder of the first d^ree were 
covered by the instructions. One that there was an actual pre- 
conceived design to take the life of the deceased; the other that 
there was no actual design to kill, but that the homicide was 
committed in the perpetration of a designated felony. An in- 
struction also covered the theory of murder in the second de- 
gree, the jury being told that if they did not find the defendant 
guilty of murder of the first degree, as explained in the charge, 
it would be their duty to determine whether he was guilty of 
murder of the second degree as elsewhere defined in the in- 
structions, and that they could find him guilty of either degree 
of murder, or not guilty as the evidence warranted. As the 
evidence was not brought into the record by a bill of excep- 
tions, we must presume that it called for the instructions 
given. We can not presume that it supported only the theory 
of murder in the first degree committed in the perpetration, or 
attempted perpetration of robbery, when the court not only in- 
structed upon that theory, but upon the theory of an actual 
preconceived design to take the life of the party killed, and 
also upon the theory of murder in the second degree. On the 
contrary, the controlling presumption must be that the instruc- 
tions given presented only the issues involved. — Garuer v, 
Garuer, 52 Colo. 227; 121 Pac. 165. The instruction can not 
be applied, as a correct proposition of law, to any conceivable 
state of facts consistent with the record, and is governed by 
the rule stated in Garuer v, Garuer, supra, where, on page 167, 
we said : "While it is true, as claimed by defendant in error, 
if the evidence be not preserved by bill of exceptions, an in- 
struction, erroneous as an abstract proposition of law, but 
which, as applied to a particular state of facts, may be correct, 
will not necessarily require the reversal of a case; nevertheless 
a contrary rule exists, and must be applied where the instruc- 
tion is clearly erroneous and could not be applied as a correct 
proposition of law to any conceivable state of facts." 

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Sept., 'i2.] King v. The Peopus. 129 

In Murray v. Johnson^ 45 Iowa 57, 58, the rule is recog- 
nized and applied in the following language : "The errors as- 
signed relate solely to the instructions given and refused, and 
it is objected by the appellee that no part of the evidence is 
properly before us, and that, therefore, we cannot pass upon 
the pertinency of the instructions or determine they are erron- 
eous. This does not necessarily follow, for if under no possi- 
ble view that can be taken do the instructions embody correct 
propositions of law when applied to the issues presented by 
the pleadings, and if, on the contrary, they are clearly erron- 
eous, then we not only have the power but it is our duty to 
pass upon and determine the questions presented." 

And in Downing v. State, 10 Wyo. 373, 377, after stat- 
ing that it has been repeatedly held that when the evidence is 
not in the record, a cause will not be reversed for giving to 
the jury an instruction which would be correct under any evi- 
dence that could have been admitted under the issues in the 
cause, the court says : "It is held, however, that if the instruc- 
tions are in themselves radically wrong under any state of 
tacts that could have been proven under the issues in the cause, 
and direct the minds of jury to an improper basis on which to 
place their verdict, the cause will be reversed, though the evi- 
dence is not in the record." 

Every presumption in favor of the correctness of a ruling 
of the trial court is indulged by this court, and unless the rec- 
ord affirmatively discloses an error of which complaint is 
made, based upon the entire record, the judgment will be af- 
firmed. But here the record affirmatively discloses prejudicial 
error under the issues in the cause as made by the pleadings 
and submitted to the jury. This is essentially true, because 
the evidence is no part of the record until made such by bill 
of exceptions, and no law makes it incumbent upon the losing 
party to bring the evidence into the record. So upon the 
whole record it appears affirmatively that prejudicial error was 
committed, and the substantial rights of tfie defendant disre- 



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130 King v. The PeopItE. [54 GqIo. 

garded. The judgment is, therefore, reversed, and the cause 
remanded for a new trial. 

Judgment Reversed and Rema^ided. 

Decision eti bmic. 

Mr. Justice Musser specially concurs. 

Mr. Justice Gabbert and Mr. Justice Garrigues dis- 
sent. 

Chief Justice CampbelIv not participating. 

Mr. Justice Musser specially concurring: 

I concur in the result reached by Mr. Justice White and 
in his opinion, except in so far as the views I herein express 
may conflict with or modify it. 

It appears from the record in this case that at the trial an 
official stenographer was present and took down the testimony 
in shorthand, and that afterwards his shorthand notes were 
unintentionally destroyed. Apparently these notes were un- 
wittingly picked lip by some member of the stenographer's 
family at his home and with other papers, supposed to be of 
no value, thrown into a fire. Anyway the stenographer could 
not find them, and, therefore, could not furnish the testimony 
as is usual in such cases. Neither the defendant nor anyone 
for him had anything to do with the loss or destruction of 
these notes. Section 1472, Rev. Stats., provides that the judge 
of each judicial district may appoint a shorthand reporter to 
attend during any term of court and on the direction of the 
court take down in shorthand the testimony and other matters 
occurring at the trial. This section was in the General Laws 
of 1877, the General Statutes of 1883 and all statutes since. 
For years it has been the invariable custom for district judges 
to appoint stenographers for their respective districts to appear 
at every criminal trial, and under the court's direction, take 
down the testimony and other matters, and when a defendant 
wanted a bill of exceptions, containing all of the testimony in 

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Sept., 'i2.] King v. The People. 131 

a case, if desired, it has been the custom invariably to obtain it 
from the stenographer. In accordance with that custom, and 
by virtue of the statute, a stenographer was present and was 
directed to take down the testimony in this particular case, 
and he did take it down. The defendant had the right, unUer 
such circumstances to assume that he would obtain the testi- 
mony from this stenographer for his bill of exceptions. He 
was not called upon to make any other arrangements than 
were, in virtue of the statute, provided by the direction of the 
court trying him, nor to anticipate that he would be called upon 
to procure that testimony from any other source, nor com- 
pelled to depend iipon the uncertain memory of those present 
as to what the testimony was. In this condition of affairs, 
without any fault of his own, he was deprived of this statutory 
and usual, and in this case particular, source for obtaining 
the testimony for his bill of exceptions, solely on account of 
the fault of an official of the court, who did not properly care 
for his notes. It is for this reason that the testimony does not 
appear in the bill of exceptions. Of course he might have 
collected together some persons who were present at the trial, 
who might have detailed to him their version of what the tes- 
timony was, and the judge of the court, upon his own memory 
and the memory of these persons, may have put into the bill 
of exceptions something which they thought was the testi- 
mony. 

It cannot be the law of this state that the defendant, un- 
der sentence of death, must suffer for the fault of the court 
stenographer, whose duty it was to preserve his notes, nor that 
the defendant, by reason of such official neglect, was compelled 
to resort to an uncertain and antiquated method df obtaining 
the testimony for his bill of exceptions, which has long ago 
been discarded in the practice in this state. If the defendant 
or his attorney were to blame for the loss of the notes, or if 
the stenographer had the notes and the defendant had failed 
or n^lected to have them extended and put into the bill of 
exceptions, that is if the absence of the testimony from the 



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*^oogle 



132 King v. The People. [54 Colo. 

bill of exceptions was caused by any fault, neglect or wrong 
of the defendant, an entirely different question would be pre- 
sented. Here, the absence of the testimony is the fault of the 
official of the court, nnd not of the defendant. Unde. suck 
circumstances, it is^the law, in my judgment, that the instruc- 
tions can be reviewed, notwithstanding the absence of the tes- 
timony. To say that they can not be is to take away from 
defendant the right of review, on account of the fault of the 
other party to the litigation. It was the officer of the court 
who was to blame for the condition of the record. Through 
no fault of his, but by reason of the officer's fault, it was im- 
possible for the defendant to obtain the testimony and put it 
into his bill of exceptions, in accordance with the recognized 
practice in this state. He was entitled to pursue that prac- 
tice, and was not required to resort to some discarded one. To 
say that he is cut off from his right to have the instructions 
reviewed, on account of the absence of the testimony, is to 
say that the prosecution, The P(*ople, shall profit by the fault 
of their official and that the defendant shall bear the burden 
of their fault! In the cases wherein this court has said that 
instructions can not be reviewed in the absence of the testi- 
mony no such circumstances existed as are here presented ta 
account for such absence, and they are, therefore, not ap- 
plicable. Let him who is at fault bear the resulting burden. 
Therefore, forasmuch as the absence of the testimony 
was occasioned by the neglect of the court official, which 
neglect rendered the recognized and established practice im- 
possible, it should be conclusively presumed as against the 
people that there was evidence that would warrant the jury 
in returning a verdict of murder in the second degree, because 
the court instructed in that degree. This being so, the defend- 
ant was entitled to a correct instruction. As Instruction No. 
12 was erroneous, for the reasons stated by Mr. Justice 
White, the error could not be otherwise than prejudicial in 
the state of the testimony. 



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Sq)t., 'i2.] King v. Thr People. 133 

Mr. Justice Gabbert dissenting: 

The province of this court is to redress real grievances, 
and not to decide moot questions. For this reason, it is a rule 
of universal application, that a judgment will not be reversed 
on account of an erroneous instruction, unless it appears prob- 
able that the jury were misled to the prejudice of the party 
appealing. It is not sufficient to show that error, in the ab- 
stract^ was committed in giving an instruction. It must af- 
firmatively appear that it was prejudicial. This can only be 
determined by a consideration of the evidence. In other 
words, a party bringing a case here for review cannot base 
reversible error on only part of the record or proceedings 
which led up to his conviction. It is said in the opinion that 
if the evidence were preserved by a bill of exceptions, it might 
appear that this instruction was not prejudicial. This an- 
nouncement recognizes that a consideration of the testimony 
might disclose that an erroneous instruction was not preju- , 
dicial, but notwithstanding this conclusion, the opinion is 
based upon the erroneous theory, that it may be considered in 
the absence of the testimony, although whether or not it 
prejudiced the rights of the party bringing the case here for 
review can only be ascertained by a consideration of every- 
thing presented to the trial court. But the conclusion an- 
nounced in the majority opinion, that an instruction may be 
considered without the testimony, permits reversible error to 
be predicated upon a part of the record and proceedings, in- 
stead of the whole, and hereafter we shall find that a party 
convicted of a crime will find it not only convenient, but to his 
advantage, when an instruction given does not correctly state 
the law, to bring up the instructions without the testimony, 
for, with the latter, it might conclusively appear that the 
error predicated upon the instruction did not prejudice his 
rights. It is hardly necessary to refer to the many cases 
where we have held, in both civil and criminal actions, that 
in the absence of the testimony, the instructions will not be 

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134 King v. Th^ Pkople. [54 Colo. 

reviewed. It is sought to take the case out of this general 
rule by stating, in effect, that Instruction No. 12 cannot be 
applied as a correct proposition of law to any conceivable state 
of facts consistent with the record. Applying this rule, the 
opinion, in my judgment, is not logical. True, the court in- 
structed on murder in the first and second degrees, but it by 
no means follows that, in the absence of the testimony, we can 
say or assume there was testimony, when considering an in- 
struction alone, to establish the fact that the life of Jackson 
was taken, except in the attempt to rob him. 

But, waiving these matters, I cannot agree that Instruc- 
tion No. 12 is erroneous, for the reason stated in the majority 
opinion, to the eflfect that the burden of proving that the homi- 
cide was not committed in an attempt to rob, was placed upon 
the defendant. Instruction No. 10 clearly advised the jury 
that murder committed in an attempt to rob constituted mur- 
der in the first degree. By Instruction No. 12 they were told 
what constituted murder in the second degree; and if they 
found the state, of facts therein enumerated was established 
by the evidence beyond a reasonable doubt, then the defendant 
was only guilty of murder in the second degree, but that the 
killing of Jackson would not reduce it to that degree if it ap- 
peared from the testimony, beyond a reasonable doubt, that 
Jackson's life was taken in an attempt to rob him. Instruc- 
tions must be considered as a whole, and when instructions 10 
and 12 are read together, it appears to me that this was clearly 
the eflfect of the two instructions, and that under no circum- 
stances could the jury have been misled or have understood 
that any burden w^as placed upon the defendant, whatever, to 
show a state of facts which would reduce the homicide to mur- 
der of the second degree. 

Nor do the views expressed by Mr. Justice Musser change 
the situation. I have alw-ays understood the rule to be that a 
court of review never acted upon what w^as not, or could not 
be brought before it. With all due deference to my learned 
associates. I respectfully submit that if the decision of the ma- 

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Sept., 'i2.] King v. The People. 135 

« 
jority is followed in the future, it will inevitably result in the 

reversal of convictions which would, and should, without 
question, have been sustained had it been declared, as it should 
be, that in the absence of the testimony, instructions will not 
be reviewed. 

Now, what does the statement in the opinion of Mr. Jus- 
tice White, to the effect that if the evidence were here, it might 
appear that the instruction upon which the reversal is based, 
mean, except to say that if one convicted of a crime only 
brings up the instructions for consideration, his case may be 
reversed, whereas, if he brought the testimony before the court 
by a bill of exceptions, it might not be. This is equivalent to 
saying, and in fact, does say, that a case may be reversed upon 
part of the proceedings before the trial court, when the proper 
rule is, that all matters before the trial court which in any 
manner bear upon the question presented for review must be 
considered before an alleged error will be declared preju- 
dicial. That this must be the true rule is manifest from the 
expression just mentioned, for the very obvious reason that 
if the evidence were here, it might appear the instruction, al- 
though erroneous as a legal proposition, was not prejudicial. 
In other words, this expression of itself recognizes that, with 
the testimony before us, the judgment of the trial court might 
be affirmed, thus, in effect, saying that from all the proceed- 
ings it might appear that the error complained of was non- 
prejudicial. Does not this statement, then, logically recognize 
that the testimony must be considered before an instruction 
will be declared to be prejudicial, although erroneous? If it 
does (and I submit that this is the only logical conclusion to 
be deduced from it), then it must follow, as of course, that a 
person convicted of a crime cannot predicate alleged preju- 
dicial error upon an instruction alone, when, with the testi- 
mony before us, it might appear that it was not. In brief,, 
when it is recognized that a consideration of all the proceed- 
ings had in the lower court in any manner bearing on the 
question raised by an instruction, might show that it was with- 

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136 Sheely v. The People. [54 Colo. 

out merit, the rule must be that they must be presented here 
in an appropriate manner before we can say that an error 
worked prejudice; otherwise, a defendant convicted of a crime 
is permitted to gain an advantage by not bringing up the tes- 
timony in the case. There may be decisions from other juris- 
dictions which tend to support the conclusion of the majority, 
that instructions may be reviewed in the absence of the testi- 
mony ; but if they do, they are manifestly illogical, and ought 
not to be followed. 

In my opinion the judgment of the district court should 
be affirmed. 

The writer is authorized to state that Mr. Justice Gar- 
rigues concurs in this opinion. 



[No. 7841.] 

SheeltY v. The People. 

1. Statutes — Construction — A statute defining and denouncing a 
crime is to be strictly construed as against the state, but is not to be 
confined within narrower limits than the legislative intent. The leg- 
islative purpose is not to be destroyed by construction. 

2. Maxims — Of Constructlon^-e. g., ''Ejuadem generis,'* ''Noacitur 
a sociis,** *'Expre8io unius exclusio alterius,** are to be resorted to only 
when they afford aid in ascertaining the legislative intent. 

The maxims interpreted, their application explained, and held 
that in the words "any judge, justice of the peace, sheriff, coroner, 
clerk, constable, jailer, attorney general, or prosecuting attorney, 
mayor, alderman, or member of city council, member of legislative 
assemely, or other officer, ministerial or judicial,** in Rev. Stat, see, 
1720, it is not apparent that the legislature had in mind any particu- 
lar class of ofiicers, and that therefore these maxims afford no aid in 
the interpretation of the statute. 

3. Criminax Law — Bribery of Officers — The county commission- 
ers of a county are ministerial ofiicers within the meaning of sec. 
1720 Revised Statutes, and a conviction may be had under the statute, 
for the bribery of one of the county board. 



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Sept., 'i2.] She^y v. The People. 137 

Error to Weld District Court. — Hon. N'eil P. Graham, 
Judge. 

Mr. Geo. Q. Richmond, Mr. O. N. Hilton, Mr. M. B. 
Waldron and Mr. B. B. Laska, for plaintiff in error. 

Hon. Benjamin Griffith, attorney general, Mr. Charles 
O'Connor, first assistant attorney general, Mr. Geo. A. 
Carlson, district attorney, and Mr. John T. Jacobs, for the 
people. 

Mr. Charles B. Ward, Amiens Curiae. 

Mr. Justice Musser delivered the opinion of the court : 

The plaintiff in error was sentenced for a term in the 
penitentiary for bribing one of the county commissioners of 
Weld county. The information was based upon section 1720, 
Rev. Stat., which, so far as is material to this review, is as 
follows : * 

"If any person shall directly or indirectly give any sum 
or sums of money * * * to any judge, justice of the 
peace, sheriflF, coroner, clerk, constable, jailer, attorney gen- 
eral or prosecuting attorney, mayor, alderman or member of 
city council, member of the legislative assembly, or other offi- 
cer, ministerial or judicial (but such fees as are allowed by 
law), with intent to induce or influence such officer to 
* * * the person so giving and the officer so receiving 
any money, * * * with intent or for the purpose of con- 
sideration aforesaid, shall be deemed guilty of bribery, and on 
conviction, * * *." 

It is the contention of the plaintiff in error that a county 

commissioner is not included within the section, and that, 

therefore, the information did not charge an offense against 

I any law of this state. To determine the question presented it 

I is necessary, as it is in the case of any statute, to ascertain the 

intention of the legislature in enacting the law. For this pur- 



pose, such rules of construction as are favored by the courts 

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133 Sheely v. The People, [54 Colo. 

and that may aid in reaching a correct determination may be 
employed. At the same time, it must be remembered that this 
is the criminal statute and should be strictly construed as 
against the state and liberally in favor of the accused, but the 
strictness to be employed or the liberality to be indulged must 
not be such as will confine the operation of the statute within 
limits narrower than those intended by the l^islature, or de- 
stroy the intention of the law-making body. Counsel for 
plaintiff in error have called to our attention certain well 
known rules of statutory construction and insist that they 
should be applied to determine the intention of the legislature 
with respect to the statute in question. They are the rules of 
ejusdem generis, twscitur a sociis and expressio unius est ex- 
chisio alteritis. We have no quarrel with these rules, nor the 
authorities cited with respect to them. They can be used only 
to aid the courts in ascertaining the legislative intent, and 
when they are to be used for that purpose they of course must 
be applicable and afford aid. If they do not afford any aid 
they are not to be resorted to. 

The first two of the rules mentioned are closely related. 
This is one: "Where a particular class is spoken of, and gen- 
eral words follow, the class first mentioned is to be taken as 
the most comprehensive, and the general words treated as re- 
ferring to matters ejusdem generis with such class." — State v. 
Krueger, 134 Mo. 262. The second is that the meaning of a 
doubtful word may be ascertained by reference to the mean- 
ing of words associated with it. That is, "by considering 
whether the word in question and the surrounding words are 
in fact ejusdem generis and referable to the same subject mat- 
ter." — Brooms' Leg. Max. (7th Ed.), p. 439. 

It is plain the statement of these rules that before they 
can be of any aid it must clearly appear that the legislature 
was thinking of a particular class of persons or objects. Now 
it does not appear that the legislature had in mind any particu- 
lar class of officers when we read the section under considera- 
tion. The words are, "any judge, justice of the peace, sheriff. 

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Sq)t, 'i2.] Sheely v. The Peopu:. 139 

coroner^ clerk, constable, jailer, attorney general or prosecut- 
ing attorney, mayor, alderman or member of city council, 
member of the l^islative assembly, or other officer, minis- 
terial or judicial." Here are enumerated executive, legisla- 
tive and judicial officers; state, county and municipal officers; 
some that possess ministerial qualities in varying degrees; 
some that are alone in their office, others that are members of 
official bodies. It cannot be said that those mentioned are all 
of one particular class, so as to make the general words refer- 
able to a class. The other rule, that the mention of one thing 
is the exclusion of the other, is equally inapplicable. Specific 
enumeration of the officers mentioned does not exclude county 
commissioners if the general words that follow will fairly in- 
clude them. It follows that these maxims or rules are not 
aids in the construction of this statute. If the statute relates 
to a county commissioner it must be because that officer is 
fairly included in the words "or other officer, ministerial or 
judicial." In the general scope of their duties commissioners 
arc not judicial officers. 

In Menvin v. Boulder Co,, 29 Colo. 169, this court held 
that passing on claims against the county, which is one of the 
duties of a county commissioner, is not a judicial act. Yet 
such an act requires the exercise of discretion and the ascer- 
tainment of facts. So in many other matters the county com- 
missioners are vested with large discretionary powers. Some 
of them may approximate judicial powers, may be called 
quasi-judicial powers, but most of them are not really judicial. 
The commissioners are the agents of the county. When they 
act it is the county acting through them. Whatever they do 
is in the management and administration of the affairs of the 
county. They do not sit like a disinterested judge to hear and 
determine controversies between two parties, but they hear 
and determine the case of the county that they represent. 
They, in effect, ascertain facts and employ their discretion 
largely in their own cases and determine them similar to the 
the way any business man will do in the management of his 



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I40 Shebi<y v. The People. [54 Colo. 

own affairs. These are administrative acts rather than judi- 
cial. 

County commissioners represent their county and have 
charge of its property and the management of its business con- 
cerns. Their duties are to administer the affairs of their 
county, and in that behalf to exercise such power as is ex- 
pressly conferred upon them by the constitution and the 
statutes of the state, and such implied power as is reasonably 
necessary to the proper execution of the express power. — 
Roberts v. People, 9 Colo. 458 ; M&rwin v. Boulder Co., supra. 

The general scope of their duties being the administra- 
tion of the affairs of the county, they must be administrative 
officers, and though vested with a large amount of discretion, 
which this court has many times said cannot be controlled by 
the courts, yet it is administrative discretion rather than judi- 
cial. Nor are they legislative officers. They do not make law, 
but are themselves wholly subject to the constitution and the 
statutes, and are concerned only in the administration of the 
business of the county as therein directed. If they are neither 
judicial nor legislative officers they must fall within the ex- 
ecutive department, the administrative branch, and are to be 
classed 'as executive or administrative officers, as these terms 
are used interchangeably. — State v. Loechner, 65 Neb. 814. 

So we come to the real question in the case. Did the 1^- 
islature intend to cover county commissioners by including 
them within the designation of other ministerial officers? A 
primary rule of construction is that the intention of the legis- 
lature is to be found in the ordinary meaning of the words of 
a statute in the connection in which they are used and in the 
light of the mischief to be remedied. While there is a 
rule requiring the strict construction of a penal statute that 
rule is not violated by giving to the words their full meaning 
in connection in which they are employed. — Woodworth v. 
State, 26 O. St. 196. 

The mischief sought to be remedied by the statute is the 
bribery of public officers. Everyone must admit that it is just 

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Scpt./i2.] Sheely v. The People. 141 

as necessary to prevent the bribery of a county commissioner 
as that of any other official, and that the bribery of a county 
commissioner is as much within the mischief sought to be 
remedied by this statute as the bribery of any other officer. A 
reading of the authorities discloses that the word "ministerial" 
is used with various shades of meaning. The plaintiff in error, 
by giving the word the very narrowest meaning it ever has, 
asserts that county commissioners are not embraced in that 
meaning. This may be true, but the meaning of the word in 
the statute under consideration is much more comprehensive 
than the one given it by counsel. Its precise meaning in any 
sentence depends upon the connection in which it is used. In 
the section under consideration the word "ministerial" is used 
in connection with the word "judicial." The words are used 
in opposition to one another, and the word "judicial" includes 

I officers that the word "ministerial" does not. It is our duty 

I then to ascertain the ordinary meaning of the word "minis- 
terial" in the connection in which it is used in the section un- 
der consideration; that is, in opposition to the word "judicial." 
Used in this way, it is said in People v. Jerome, 73 N. Y. Sup. 

I 306, that the act of every public official is either ministerial or 
judicial. One of the definitions of "ministerial" given in 

j Webster's New International Dictionary is as follows: "Of 
the nature of those acts or duties belonging to the administra- 
tion of the executive function; designating, or pertaining to, 
an act that a person performs in a given state of facts, in a 
prescribed manner, in obedience to the mandate of legal au- 
thority without regard to, or without the exercise of, his own 
judgment upon the propriety of the act done; — opposed to 
judicial." In State v. The Governor, 25 N. J. L. 331, it is 
said at page 350: "As contra-distinguished from judicial du- 
ties all executive duties are ministerial." The same classifica- 
tion that is made in these authorities with respect to acts and 
duties must be made with respect to officers. Those officers 
whose duties are judicial in their general scope are judicial 
officers and those whose duties are executive to the same ex- 



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142 Sheely v. The People. [54 Colo. 

tent are executive officers. It, therefore, follows that as con- 
tra-distinguished from judicial officers all executive officers 
are ministerial. The management of the executive department 
of the government is the administration thereof, and those 
who are engaged in such management or administration are 
executive or administrative officers, and are themselves re- 
ferred to as the administration. — i Bouv. Diet. (Rawle's 
Rev.) 56. 

"Ministration'' in Webster's Dictionary is said to be "the 
act of ministering/' and "minister" is defined to mean "ad- 
minister." And in the same dictionary, one of the synonyms 
of "administer" is "minister," and "administerial" is defined 
as "pertaining to administration or to the executive part of 
the government." Now the fact that these executive, admin- 
istrative or ministerial officers may and do exercise discretion 
and judgment in varying degree in the discharge of their ad- 
ministrative duties does not make them the less ministerial 
for if it did there would be few administrative or ministerial 
officers. Most of them would be excluded and would have to 
be placed in a class that has not yet been defined by the author- 
ities. The administration of government often requires, in a 
large degree, the exercise of discretion and judgment. 

In People v. Walter, 68 N. Y. 403, the court, at page 
410. uses the word "ministerial" in opposition to "judicial"" 
and speaks of ministerial officers as exercising judgment and 
discretion and treats town commissioners as being in that 
class, notwithstanding that they were given discretion and 
judgment in the discharge of their duties. It follows from al! 
this that county commissioners who are charged with the ad- 
ministration of tlie county government and the management 
of its affairs naturally fall into the class designated as minis- 
terial, in the classification made in the statute under considera- 
tion. It is only by giving to the word the very narrowest 
meaning with which it is ever used — ^a meaning designated 
often in the authorities as purely ministerial" — ^that an officer 
can be excluded from the ministerial class because he may ex- 
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S€pt4 • i2f. ] SheeivY v. The Peopi^. 143 

ereisc discretion in the performance of his duti^, and it is 
very plain that the meaning intended in the statute is much 
more comprehensive than the narrow one sought to be put 
uppn it by the plaintiff in error. Aside from its connection 
with the word "judicial/' "ministerial" is often used as 
synonomous with "administrative" or "executive," and is used 
to refer to acts requiring the exercise of discretion. In Peo- 
ple V. Salisbury, 96 N. W. 936, it is said : 

"The character of the act does not depend on the amount 
of discretion confided to the officer. There is much reason for 
saying that under our constitution all administrative or minis- 
terial duties are executive in character, as they not only can 
be nothing else under the constitution, but they are all acts in 
the conduct of the government, i. e., the administration of 
public affairs through and under the regulations prescribed by 
law." 

In State v. Loechner, supra, the statute under considera- 
tion provided that "any clerk, sheriff, coroner, constable, 
county commissioner, justice of the peace, recorder, county 
surveyor, prosecuting or district attorney, or any ministerial 
officer," who was guilty of certain acts should be fined, etc. 
A member of a board of education of a school district in a city 
Avas held to come under the provisions of the statute as being 
a ministerial officer. The duties of a member of the school 
board, as related to his district, were analogous to the duties 
of a county commissioner in this state, as related to his county, 
as is shown by the following quotation from the opinion : 

"The members of the school board are unquestionably re- 
garded by statute as the servants or agents of the corporation, 
selected for the purpose of conducting and managing its af- 
fairs in the manner and under the restrictions pointed out by 
statute. They are an administrative body charged with the 
duty of administering the law governing the public schools 
within the city composing the school district of which they 
are officers. It is their duty to administer the affairs of the 
corporation as directed by statute in the exercise of such pow- 



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144 State Bank op Chicago v, Plummeil [54 Colo. 

ers and authority as are vested in them. Doubtless in many 
instances in the performance of their duties they may exer- 
cise a discretion or judgment quasi-judicial in character, but 
this fact alone can not determine the class to which they be- 
long, or bring them in the category of judicial officers." 

Prom this the court held that the member was an ad- 
ministrative officer and proceeded to show that the word 
"ministerial" in the statute meant the same thing as "admin- 
istrative," and that, therefore, the defendant belonged to the 
class of officers designated as "ministerial," and came within 
the statute. 

Enough has been said to demonstrate that a county com- 
missioner is not only fairly but plainly a ministerial officer in 
the sense intended by the statute in question, and, therefore, 
the judgment is affirmed. Judgment affirmed. 

Decision en banc. 

Chief Justice Campbell not participating. 



[No. 6416.] 

State Bank of Chicago v. Plummer. 

1. Practice— £iK of Particulars — It seems to be the general rule 
that in proceedings to enforce a mechanic's lien, where the work was 
done for a stipulated price, no bill of particulars is required. 

But where the contract entitled plaintiff to a certain monthly 
stipend "and his expenses" the defendant may require detailed in- 
formation, concerning such expenses. So where the demand Is for 
"material furnished." 

2. For What Demands a Lien Is Allowed — ^Where by the 

contract plaintiff was employed as superintendent, etc., at a monthly 
salary, "and his expenses," the expenses were held to be as much a 
part of his compensation as the stated monthly allowance. But only 
such expenses as are incurred in the work for which he was em- 
ployed are allowed to him. 

8. Time of Filing Statement of Hen — Single or Several 

Contracts — ^The defendants^ a railway company, and a tunnel corn- 



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Sept., 'i2.] State Bank of Chicago v. Pi^ummer. 145 

pany projected a railway, one terminus of which was In the moun- 
tains, and the other In the plains, and a tunnel, to be part of such 
railway. The work was projected and planned as an entirety. There 
were three Hen claimants, one an engineer, a part of whose claim 
was for general superintendence at a monthly salary, and other por- 
tions of it for the construction of particular parts of the tunnel, and 
laterals thereto, under separate contracts, and materials furnished la 
and for such construction. Another claimant had furnished material 
during different stages of the work, some to the defendant companies, 
directly, and some to the engineer while performing his contracts. 
The third claimant had sold and delivered ore cars to the railway 
company while work was proceeding in the tunnel. The last deliv- 
ery made by this company was in 1903. There was no cessation of 
work upon the railroad and tunnel, for the period of thirty days, 
from a date prior to December 1st, 1902, to July Ist, 1905. Neither 
the railroad nor the tunnel had been completed at the time of the trial. 
All the lien claims were filed In the early days of July, 1905. Held^ 
that as the completion of the tunnel as an entirety was planned In 
the beginning, and all the work was performed and all the material 
furnished In furtherance of this general design, what was done under 
these several contracts was not to be regarded as a separate structure 
or thing, nor were the several contracts to be regarded as distinct, 
for the purposes of the lien; that the liens attached to the railroad 
and tunnel as a whole, and that the several claims or statements of 
lien of the claimants were filed in apt time. 

4. Relation of Claim to the Beginning of the Work — Held^ 

further, that under Rev. Stat. sec. 4030 the liens related to the begin- 
ning of the work and were preferred to a mortgage subsequently re- 
corded. 

5. Parties — In an action by a material man or subcontractor 

the original contractor must be made party; and if a mortgagee la 
joined the owner must also be made party. 

6. Judgment Against Owner — Evidence Against Mortgagee — 

The lien claimant must establish as against the mortgagee, not only 
the Indebtedness of the owner, but that his claim Is of a character 
entitling him to a lien. Therefore a judgment recovered by the lien 
claimant against the owner is admissible against the mortgagee, and 
conclusive that the claim has been adjudicated against the owner. 
But, as against the mortgagee it is not conclusive as t6 the amount 
thereby awarded. And where the judgment against the owner is not 
pleaded by the lien claimant the mortgagee may assail it by evidence 
of payment made by the owners for which no credit was given by the 
lien claimant, in taking judgment. 



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146 State Bank of Chicago v. Pi^ummer. [54 Colo. 

7. Plsading — WJiat Must Be Specially Pleaded— In a proceeding 
to enforce a mechanic's lien the owner of the premises and a mort- 
.gagee thereof were made defendants. Judgments recovered by the 
lien claimants against the owner, were, though not pleaded, admitted 
in eyidence as against the mortgagee. Held, that if exoessive in 
amount they were to this extent a fraud upon the mortgagee, and 
the mortgagee having had no opportunity to plead this defense It 
w^as not to be excluded for the failure to plead it 

Error to Teller District Court. — Hon. James Owens, 
Judge. 

Mr. Charles J. Hughes, Jr., Mr. Henry C. Cassidy 
and Mr. Barnweix S. Stuart, for plaintiff in error. 

Mr. Henry Trowbridge, for defendants in error. 

Mr. Justice Hiix delivered the opinion of the court : 

The defendants in error, John T. Plummer, The Morrell 
Hardware Company and J. M. Parfet, instituted separate 
«uits in the district court of the city and county of Denver to 
foreclose mechanics' liens against certain property of The 
Cripple Creek and Pueblo Railway Company and The Gold 
Exploration and Tunnel Company. This property is in Teller 
county. To these actions the above named owners, The State 
Bank of Chicago as trustee and W. H. Spurgeon were made 
parties defendants. Personal judgments by default were pro^ 
cured against the owners of the property before answer by the 
bank, and before the time for it to answer had expired (it be- 
ing a non-resident). After its appearance and upon its appli- 
cation the cases were transferred to the district court of Teller 
county, where they were consolidated for trial, pertaining to 
the issues raised by the bank, which included the amount and 
validity of the Hens, and if valid, the question of priority be- 
tween them, and the bank's lien evidenced by a mortgage upon 
the same property, executed by the railway company in favor 
of the bank, as trustee for certain bond holders. The judg- 
ments were in favor of the several lien claimants decreeing 



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Sept., 'i2.] State Bank of Chicago v. Plummer. i47 

the liens of Plummer and The Morrell Hardware Company 
superior to that of Parfet, and all three superior to the lien of 
the bank, to the property; foreclosure was ordered accordingly. 
The bank as trustee brings the case here for review upon 
error. 

One hundred thirty-two assignments of error are pre- 
sented. Those necessary to consider can be grouped into a 
few general contentions and will be disposed of accordingly. 

It is claimed that the court erred in allowing the plaintiff 
Parfet to make certain amendments to his complaint during 
the trial. We cannot agree with counsel that the amendments 
added new causes of action. The action as against the bank 
was to foreclose a mechanic's lien for a certain amount, upon 
certain property in which it claimed an interest. The amounts 
covered by the amendments were included in this plaintiff's 
lien statement. The ?imount for which the lien was sought 
was greater in the original complaint than it was after the 
amendments were added. The amendments are now a part of 
the complaint, and as the case must be reversed for reasons 
hereafter stated, prior to a new trial the bank will have had 
ample time to make any preparation for any defense it may 
have thereto. This will eliminate any question concerning 
surprise or necessity for delay. 

Prior to the trial the bank made a written demand upon 
the plaintiff Parfet for a bill of particulars covering each and 
every cause of action set forth in his complaint. This demand 
'was not complied with; upon account of which the bank ob- 
jected to the introduction of any testimony on Parfet's behalf; 
it also moved to strike all of his testimony. The objection and 
motion were overruled. The bank alleges, that his failure to 
furnish a bill of particulars was prejudicial error, upon ac- 
count of which it was greatly handicapped in presenting its 
defense; that the provisions of general section 69, Revised 
Code, 1908, are applicable as well as mandatory. Upon be- 
half of Parfet it is claimed, that while the demand was made 



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148 State Bank of Chicago v. Plummer. [54 Colo. 

upon the entire cause of action, the objection was limited to 
the first three causes concerning which, by order of the court, 
he had previously been required to sub-divide upon the bank's 
motion; that the motion to strike was too broad, because it 
jointly attacked both first and sixth causes; that the complaint 
as amended as to the first three causes contained as particular 
an itemized statement as could be required; also, that section 
' J69, supra, does not apply; that the bank's relief, if any, should 
have been by motion under general section 66, Revised Code, 
1908. 

It appears to be the general rule in actions to foreclose 
mechanics' liens where the work was to be for a certain con- 
tract price that no bill of particulars is necessary. — Montpe- 
Her Light, etc., Co. v. Stephenson, 22 Ind. App. 175; Steph- 
.enson v. Ballard, 50 Ind. 176; White v. West, 58 N. Y. Sup. 
841 ; Men^sel v. Tubbs, 51 Minn. 364. 

This general rule applies to part of Parfet's causes of 
action, but as to a part of the first and sixth we are of opinion 
that the bank was entitled to more definite information. The 
first is based upon an agreement that he was to be paid a cer- 
tain amount per month and his expenses. The sixth is for 
•services rendered and material furnished. These expenses 
and material items fall within the rule calling for detailed in- 
formation. We see no necessity for determining whether it 
should be secured under section 66 or 69, Revised Code, 
1908, for in either event, in view of a new trial, opportunity 
should be granted to plaintiff Parfet to furnish this informa- 
tion and to introduce evidence to support it. 

It is claimed that no lien can attach for the so-called Par- 
fet expense account of $1,500, which it is alleged was allowed 
under his first cause of action. The total amount allowed 
Parfet was much smaller than claimed. Much evidence was 
admitted, under the statement that as the trial was to the 
court it would admit the evidence and consider only that 
which it deemed competent. For these reasons it is impos- 
sible to ascertain the items which went to make up the $27,- 

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I 



Sept, 'i2.] State Bank of Chicago v. Plummer. 149 

909.17, for which Parfet was decreed a lien. We might as- 
sume that this amount was awarded for other items than this 
expense account ; there is evidence to sustain this assumption ; 
but in view of a new trial, for other reasons, we think it com- 
petent to pass upon the contention concerning this claim. The 
complaint alleges and the evidence discloses that plaintiff Par- 
fet was employed as superintendent, engineer and draftsman 
in the construction of the property at an agreed price of $250 
per month and his expenses. Under these circumstances the 
•expenses were part of the compensation to be paid him for his 
Avork while acting as superintendent, engineer and draftsman; 
therefore, it is just as much a part of his compensation as the 
$250 per month was. — Lybrandt v. Eberly, 36 Penn. St. 347. 
In considering the items that are proper to be included 
in this expense account as lienable (in view of the different 
views of counsel) it is proper to state that they should be 
limited to his expenses as superintendent, draftsman or 
•engineer in the construction of the property, — R. A. G. & S. 
M. Co. V. Bouscher, 9 Colo. 385. 

It is claimed that none of the plaintiffs are entitled to a 
lien against the property involved, or if they are, they are in- 
ferior to the rights of the bank. The facts presenting these 
propositions are substantially as follows: Upon December 
the 3rd, 1902, the railway company gave a mortgage to the 
bank upon all of its property to secure its bonds in the sum of 
$250,000. This mortgage was filed for record in the office 
of the county clerk and recorder of Teller county Decembei- 
13th, 1912; the bonds were sold; the money realized was 
principally in paying the expenses of extending a tunnel and 
laterals and placing railroad tracks therein, which one or both 
of the defendants (the tunnel and railway companies) were 
^engaged in doing. This was to be a part of a railroad to be 
constructed by the railway company. The prospective ter- 
minal points of the railroad were Cripple Creek and Pueblo; 
the tunnel was to be utilized for railroad purposes. 

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ISO State Bank of Chicago v. Pi^ummer. [54 Colo. 

Prior to the execution and recording of the mortgage 
Parfet was employed as superintendent of the work by the 
railway company. In this capacity he performed services in 
superintending the work of extending the tunnel, in connec- 
tion with the construction of the railroad, commencing in 
November, 1902, continuing to March loth, 1904. This was 
at an agreed price of $250 per month and his expenses. Dur- 
ing this period he incurred considerable expenses which were 
unpaid, as well as the greater amount of the $250 per month 
agreed upon. On March loth, 1904, he entered into a writ- 
ten agreement with the railway company to construct three 
hundred feet of tunnel at a specified sum per foot. Between 
that date and July the ist, 1905, he entered into similar con- 
tracts to construct other portions of the tunnel, including sev- 
eral laterals connecting with the main tunnel, during which 
period at the request of the railway company he furnished 
materials and supplies which were used. In addition he also 
performed labor and services in constructing the railroad and 
tunnel, in the way of superintending such work. To secure 
and enforce a lien for the amount still due him for services 
rendered and material furnished during this entire period, the 
plaintiff Parfet, on July 3rd, 1905, filed a lien statement in 
the office of the county clerk and recorder of Teller county. 
There is abundant testimony to the effect that there was no 
cessation of labor on the tunnel and railroad for a period of 
thirty days from prior to December the ist, 1902, to July 
the 1st, 1905. 

The Morrell Hardware Company's account is for ma- 
terial and supplies furnished at different stages in the progress 
of the work of constructing the tunnel, laterals, and railroad, 
some furnished to the railway and tunnel companies direct, and 
some furnished Parfet under some of his contracts. The last 
of these materials appears to have been furnished about July 
6th, 1905, at which date the company filed its lien statement 
therefor in the office of the county clerk and recorder of 
Teller county. 

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Sept., 'i2.] State Bank of Chicago v. Plummer. 151 

The Plummer claim is for ore cars sold and delivered to 
the defendant, the railway company, during the period the 
companies were doing work under the direction of Parfet as 
superintendent, between January 7th, 1903, and March nth, 
1903. The last item was delivered March loth, 1903. This 
plaintiff's lien statement was filed July 6th, 1905, for the 
amount claimed to be due him. Both these materialmen in- 
troduced testimony to the effect that there was no cessation 
of labor for the period of thirty days between the commence- 
ment of the work on or before December the ist, 1902, down 
to July the ist, 1905. NIeither the railroad nor tunnel had 
been completed up to this last named date, nor at the time of 
the trial. 

The plaintiff in error contends, that each of the several 
items which go to make up the amounts included in the lien 
statements can only be regarded as having been rendered or 
furnished under separate and distinct contracts; that for lien 
purposes each of such contracts must be considered separate 
and distinct, and that the work provided to be done under 
each must be considered as a separate and entire structure 
within itself for the purposes of our lien act ; that when thus 
considered the time within which to file a lien statement for 
the amount due under each contract began to run from the 
date each contract was completed; for which reasons none 
of the items can be made a basis for a lien against the prop- 
erty of the railway and tunnel companies, except those con- 
tracted for in 1905, and that when they are thus considered 
as standing alone, they cannot be made liens superior to that 
of the mortgage executed December 3rd, 1902, and recorded 
December 13th, same year. 

As previously stated the evidence discloses that the work 
of constructing the tunnel and railroad was practically con- 
tinuous from the time the work commenced on or before 
December ist, 1902, down to July ist, 1905, although under 
sundry different contracts and arrangements. But the agreed 
statements of fact and the evidence are conclusive of the fact. 

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152 State Bank of Chicago v. Pi^ummer. [54 Colo, 

that it was all in furtherance of one general design and in- 
tention on the part of the railway and tunnel companies, viz, 
to complete as one structure a railroad and tunnel, which tun- 
nel was to be a part of the railroad system; that the entire 
structure when completed was to be a railroad between Crip- 
ple Creek and Puiblo. This was what the railway company 
was incorporated for. It was agreed that this was the object 
of its incorporation ; but even if we ignore this general design 
and intention of the parties and limit our consideration to 
the tunnel itself (in which practically all this work was done) 
we are driven to the same conclusion. It was not planned 
as mining tunnels are, to be run for a certain distance at one 
time, with the possibility that it might be run a further dis- 
tance at some future time if desired by its owners, depend- 
ing upon many conditions and circumstances; but to the con- 
trary, the completion of this tunnel in its entirety was planned 
for at the time this work was commenced by Parfet. It was 
to be constructed for railroad purposes, in order that a rail- 
road could run between certain points, passing through it. 
Without its completion the objects for which it was being 
constructed could not be accomplished; the laterals in cen- 
nection therewith were also thus planned as a part thereof, as 
Parfet states in his testimony when asked "Q. Mr. Parfet, 
what was this drift and laterals run for, if anything, aside 
from the construction of the railroad? A. Run as feeders 
for the main line, to get business for the main line of the rail- 
road." This line of testimony stands uncontradicted; when 
the facts are summed up in their entirety, if we apply the rule 
to the entire proposed railroad, or limit it to that portion in- 
cluded in the tunnel and its laterals, the result is the same. 
They were all planned and being constructed as an entirety, as 
one structure, the lesser included in the greater. The facts 
are quite similar to those in Brooks v. Burlington & South- 
western R. Co., 1 01 U. S. 443, where a similar conclusion was 
reached. When the property is thus ascertained to be one 
structure or identity, we find nothing in our mechanics* lien 

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Sept., *i2,] State Bank of Chicago v. Pi^ummer. 153 

act which requires that the work done under each contract be 
considered as a separate structure for the purposes of the act ; 
but to the contrary, the act throughout contemplates that dif- 
ferent portions or parts of the work will be done by different 
contractors, and that each may have a lien upon the entire 
property for the amount of his claim, for the work done upon 
or material furnished for a portion of the whole. — Section 
4027, R. S., 1908. 

This court has heretofore held, under section 4027, supra, 
that where the contract is for the construction of a part of a 
railroad or for materials furnished, used in constructing a part 
only, that the claimant is entitled to a lien upon the entire 
road. — Barnes et al. v. The C. S. & C, C, D, Ry. Co., 42 Colo. 
461. 

We also held under the former act which was quite simi- 
lar to section 4027, supra, where the contract was for the con- 
struction of a flume along the line of a canal, that this gave a 
lien upon the entire canal as between the lien claimant and the 
owner. — Jarvis et al. v. State Bank of Fort Morgan et al., 22 
Colo. 309. 

These principles are applicable here. As between the lien 
claimants and the owners the liens, if valid, attach to the en- 
tire property. — Brooks v. Burlington & S. W. R. Co., loi U. 
S. 443; Steger v. Arctic Refrigerating Co., 89 Tenn. 453; 
Creer v. Cache Valley Canal Co., 4 Idaho 280; 2 Jones on 
Liens, section 1619; Boisot on Mechanics' Liens, section 190; 
Phillips on Mechanics' Liens (3rd Ed.), section 202; Neilson 
et al. V. Iowa Eastern Railroad Co., 51 Iowa 184. 

Section 4033, R. S., 1908, in part, reads : 

"* * * all such lien statements claimed for labor and 
work by the day or piece, but without furnishing material 
therefor, must be filed for record after the last labor for which 
the lien claimed has been performed and at any time before 
the expiration of one month next after the completion of the 
building, structure or other improvement; all lien statements 
of aH other sub-contractors and of all material men whose 

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154 State Bank of Chicago v. Pi^ummer. [54 Colo* 

claims are either entirely or principally for materials, machin- 
ery or other fixtures, must be filed for record after the last 
labor is performed or the last material furnished for which the 
lien is claimed, and at any time before the expiration of two 
months next after the completion of such building, structure 
or other improvement, and the lien statements of all other 
principal contractors must be filed for record as aforesaid after 
the completion of their respective contracts and at any time 
within three months next after the completion of the buildings 
structure or other improvement." 

This section (which is diflFerent from the former act) is 
self-explanatory of the fact that the liens were not filed too 
early or too late. They were filed after the contract was per- 
formed, or the material furnished, for which the lien was 
claimed, and before the completion of the structure. As pre- 
viously stated there had been no cessation of labor thereon 
from the time the first work commenced under Mr. Parfct 
until the date the liens were filed. This section does not re- 
quire that they wait until the property is completed ; that time 
might never arrive. — Rice v. Rhone ^ 49 Colo. 414 The Look- 
out Lbr, Co. V, The Mansion Hotel and Belt Railway Co., 109 
N. C. 658 ; Levert v. Read, 54 Ala. 529 ; Young v. The Or^ 
pheus, 1 19 Mass. 179 ; Dairies v. Miller, 130 U. S. 284; Hunter 
V. Truckee Lodge, 14 Nev. 24; Baldridge v. Morgan et al., 
106 (N. M.) 342. 

Section 4030, R. S., 1908, reads, in part : 
"All liens, established by virtue of this act shall relate 
back to the time of the commencement of work under the con- 
tract between the owner and the first contractor; or, if said 
contract be not in writings, then such liens shall relate back to 
and take effect as of the time of the commencement of the 
work upon the structure or improvement, and shall have prior- 
ity over any and every Hen or encumbrance subsequently in- 
tervening, or which may have been created prior thereto, but 
which was not then recorded, and of which, the lienor, under 
this act, did not have actual notice." 

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Sept., 'i2.] State Bank of Chicago v. Pi^ummer. 155 

The first contract with Parfet as superintendent is not 
shown to have been in writing. None of the contracts arc 
shown to have ever been recorded and none of the provisions 
of section 4029, R. S., 1908, were ever complied with. If the 
first contract with Parfet is to be construed as a contract with 
a contractor within the meaning of section 4030, supra, then 
he commenced construction under it in November, 1902, or at 
least on or before December the 2nd, 1902. If we accept this 
position as correct, all these liens would relate back to and take 
effect as of that date. If this construction of his contract is 
not correct, and it was not a contract with a contractor within 
the meaning of this section, but while acting as superintend- 
ent, he was the agent of the companies, 'and they were in this 
manner engaged in the construction of the work, then, under 
this section, the liens would relate back to and take effect as 
of the date of the commencement of the work by the com- 
panies, under him as superintendent. This was on or before 
December 2nd, 1902, and prior to the date of the execution or 
recording of the mortgage; hence, accepting either position as 
correct, the result is the same, and under section 4030 the 
Hens antedate the date of the execution of the mortgage 
which, by stipulation, is shown to have been December the 
3rd, 1902 ; the date when it was filed for record was December 
13th, 1902, for which reasons the liens became prior in time 
upon this property. This conclusion which is in harmony 
with the findings of the trial court makes unnecessary any con- 
sideration of the contention pertaining to the after acquired 
property clause in the mortgage, where the property was par- 
tially brought into existence by the lien claimants. 

Over the objections of the defendant, the plaintiffs were 
allowed to introduce in evidence their judgments secured by 
default against the railway and tunnel companies. It is 
claimed that this was prejudicial error. We cannot agree with 
this contention. In an action by a sub-contractor or material- 
man to foreclose his lien the original contractor must be made 
a party to the suit. The claim must be adjudicated and estab- 

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iS6 State Bank of Chicago v. Pi^ummer. [54 Colo* 

lished against the contractor in favor of the sub-contractor or 
materialman. — Charles v. Hallack Lbr. Co., 22 Colo. 283; 
DaiHs V. Motuit Lbr. Co., 2 Colo. App. 381 ; Bstey v. Lumber 
Co., 4 Colo. App. 165; Marean v. Stanley, 5 Colo. App. 335; 
Clayton v. Fcprrar Lbr. Co., 1 19 Ga. 37; Vreeland v. Ellsworth 
et al.y 71 Iowa 347. 

Where there is a mortgage upon the property and the 
mortgagee is made a party, the same rule would apply in re- 
quiring that the owner be made a party to the suit. In order 
for these plaintiffs to recover it was necessary for them to 
show in order to bind the mortgagee, not only that the own- 
ers were indebted to them in the amount alleged in the peti- 
tion, but that the sarhe was the kind of indebtedness which 
would sustain a lien against the property sought to be held, 
and both facts must be established against the owners. It 
must be adjudicated in this, or have been in some other case, 
as between them. Where, as in this case, the contention is 
between two rival claimants to the property, to-wit, lien claim- 
ants and mortgagee, it was necessary for the plaintiffs to es- 
tablish their claims against the owners. The judgments were 
competent evidence to show that the claims had been estab- 
lished against the owners. They were estopped from deny- 
ing their validity. It was conclusive against them that the 
personal liability had been established. This estops them from 
thereafter disputing the claim.^ — Missoula Mercantile Co. v. 
O'Donnell, 24 Mont. 65; Batchelder v. Rand, 117 Mass. 176. 

There are reasons for the rule which requires this. To 
illustrate, suppose that service had not been made upon the 
railway company and no adjudication had against it; that 
the action had proceeded against the mortgagee; that the liens 
were established as against it, and in order to prevent fore- 
closure it paid the indebtedness and upon foreclosure of its 
mortgage it then sought to have the amount paid the lien 
claimants added to its lien and in this manner be subrogated 
to the rights of the Hen claimants; that in answer to such 
petition the owner denied the indebtedness or alleged that a 

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Sept., 'i2.] State Bank o^ Chicago v. Pi^ummer. 157 

part of the indebtedness had been paid prior to the entry of 
the judgment and that it had never had its day in court con- 
cerning it. In such case it could not be estopped from so do- 
ing, for the reason that the claim had never been established 
against it. This reason for the general rule is apparent in 
most all cases, if a sub-contractor establishes his lien against 
the property and the owner is compelled to pay it (if not 
owing the principal contractor the amount) he has recourse 
upon him, but must be furnished with an adjudicated claim 
between the two contractors and not with a mere open ac- 
count. We think the judgments competent for the purpose 
of showing that such claims had been established against the 
owners of the property. It was conclusive against the owners 
and was likewise conclusive against the mortgagee of that 
fact, to- wit, that the claim had been adjudicated against the 
ow^ner. 

In presenting its alleged defenses the bank attempted to 
prove that a part of the alleged indebtedness covered in the 
Parfet default judgment had been paid, prior to the time the 
judgment was secured, and prior to the date that his suit was 
instituted. All this line of testimony was excluded upon the 
theory that the judgment was conclusive of these facts and 
could not be impeached by the bank, except upon allegations 
and proof of fraud and collusion between the parties to the 
judgment. Many authorities are cited to show that judg- 
ments cannot be otherwise attacked. 

In considering this question it is necessary to take into 
consideration the parties, the pleadings and record as they 
existed at the time this testimony was offered. The plaintiff 
Parfet instituted his action to foreclose a mechanic's lien, 
making as parties defendants the owners of the property and 
the mortgagee representing an interest therein. His com- 
plaint alleges that he performed services and furnished mate- 
rials' in th^ construction of the property, for which the owners 
owed him a certain amount, which had not been paid ; that he 
was entitled to a Hen therefor, etc. These were the allega- 



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*^oogle 



158 State Bank of Chicago v. Plummer. [54 Colo. 

tions in the complaint which the bank was summoned to an- 
swer and which it did within the time allowed. In its an- 
swer and which it did within the time allowed. In its an- 
of a part of this indebtedness. In his replication to this an- 
swer Parfet denied the allegation of payment. This was the 
condition of the pleadings when the evidence was offered. It 
will be observed that no judgment against the owners was 
plead, hence, the mortgagee had no opportunity by answer- 
ing any pleading to attack for fraud or collusion, the validity 
of the judgment between Parfet and the owners; but if coun- 
sel are correct, regardless of these facts, upon account of the 
owners allowing a default judgment to be taken against them, 
the bank is precluded from presenting a defense which is 
made a direct issue by pleadings between it and Parfet. If 
this is the correct rule, in this class of cases a portion of the 
issues as made up by the pleadings might or might not be 
issues upon which evidence could be received at the time of 
the trial, depending upon whether certain other defendants 
might or might not allow default judgments to be taken 
against them. We do not think this reasoning sound, but 
are of opinion that the fact that the owners allowed judg- 
ments to be taken by default against them did not preclude 
the mortgagee from showing that a part of this alleged in- 
debtedness had been paid prior to the time the suit was 
brought. If the bank could show this, then the judgment 
was in law a fraud as against it. The issues as made up in- 
volved the payment of a part of the indebtedness, the ruling 
was that upon account of the default judgment against the 
owners, the bank was not entitled to offer evidence to sustain 
this defense, for the reason that the owners had not seen fit 
to defend the action, although the bank had sought to do so. 
In Brooks v. Burlington & Southwestern R. Co., loi U. 
S. 443, it was held that judgments in favor of sub-contrac- 
tors against the owners are not conclusive as to the validity 
of the lien against a mortgagee not a party to the action. We 
gather this from the following language in the opinion : 

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Sept., 'i2.] State Bank of Chicago v. Plummer. i59 

"It is also to be observed that OfHara & Co. and Wells^ 
French & Co., had both commenced legal proceedings in the 
proper courts of the state to establish their liens before the 
present foreclosure suit was begun by appellants, and that in 
those courts, after a contest with the railway company, judg- 
ments were rendered establishing their liens, and it was after 
this that they were made defendants to the present foreclos- 
ure suit 

To these proceedings, Barnes, the principal contractor,, 
and the railway company were parties, and we take it for 
granted that as against them the judgment of the state court 
establishes the validity of the lien. The appellants being no 
party to these proceedings are not bound by that judgment,, 
and both the validity of the lien as against them, and 
whether the lien, if valid, is paramount to that of the mort- 
gage, are the questions for consideration here." 

In Sargent v. Salmond et al., 27 Me. 539, it was held 
that a judgment is evidence of the amount of indebtedness 
between the parties to it, but is not binding as to third per- 
sons not parties or privies 'thereto. A creditor of Salmond,. 
after having obtained a judgment against him, sought to re- 
cover in satisfaction of his judgment certain real estate which 
it was alleged belonged to the defendant Salmond, but was 
held in the name of Mary P. Salmond. In the latter action 
she sought to attack the validity of the indebtedness upon 
which the judgment was rendered. It was held she had that 
right. In commenting upon this phase of the case, at page 
547, the court said : 

"The judgment is evidence against William Salmond,. 
the debtor therein, of the amount of indebtedness; but it is 
not binding against the other defendant, who was not a party 
to the judgment or the suit in which it was rendered. She is 
entitled to impeach it in this suit, commenced for the purpose 
of affecting her personally, or the interest in the property, 
which she claims as belonging to her. If she has received 
property of the other defendant fraudulently as against the 

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i6o State Bank of Chicago v. PlumMer. [54 Colo. 

creditors of the latter, she cannot be bound to restore it be- 
yond an amount sufficient to cover the just and legal claims 
of creditors. When the bill, answers and proof are consid- 
ered, it satisfactorily appears, that the complainant took judg- 
ment against William Salmond for a sum larger than that to 
which he had a just and legal claim, and it does not conclude 
the defendant, Mary P. Salmond." 

In Montgomery et cd. v. Rich et cU., 3 Tenn. Ch. Rep. 
660, it was held that a bona fide purchaser to land may suc- 
cessfully contest a claim of the creditor of the vendor by vir- 
tue of mechanics' liens fixed by attachment and judgment, by 
showing that the lien debt had been paid before the sale and 
judgment. In commenting upon this subject the court, at 
pages 663-664, in part, said: 

"The case before us is that of a third person who is 
seeking to avoid the effect of the judgment of a justice on 
realty, the title to which was acquired by such third person 
previous to the rendition of the judgment. It is not exactly 
a collateral attack on the judgment. It is rather the assertion 
of a right which, the bill insists, should not be affected by the 
judgment. And the question is not so much the invalidity of 
the judgment, as of the complainant's right to contest with 
the defendants, asi between them, facts which the defendants 
may claim as settled in their favor, against Long, by the 
judgment. 

As a general principle, a transaction between two parties 
in a judicial proceeding will not be binding on a third party. 
* * * "it would be unjust to bind any person who could 
not be admitted to make a defense, or to examine witnesses, 
or to appeal from a judgment he might think erroneous; and, 
therefore, the depositions of witnesses in another cause in 
proof of a fact, the verdict of a jury finding the fact, and the 
judgment of the court upon facts found, although evidence 
against the parties and all claiming under them, are not, in 
general, to be used to the prejudice of strangers." ♦ ♦ ♦ 
Accordingly, it has been held that a mortgagee of land is not 

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Sept., *i2.] State Bank of Chicago v. Plummer. i6i 

estopped by a judgment, in an action between his mortgagor 
and a prior mortgagee, rendered after the execution of the 
second mortgage, but may litigate the amount due upon the 
mortgage, notwithstanding the prior judgment. — Campbell 
V Hall, i6 N. Y. 575. * * * The complainants have the 
right, therefore, to contest with the successful litigant those 
matters which bear upon their rights, just as if no such judg- 
ment had been rendered. And they have proved by Long 
himself that the defendants' debt, so far as it could claim to 
be a mechanics' lien on their land, was paid before the at- 
tachment suit was instituted. * * * The burden of 
proof is thus thrown upon the defendants, as between them 
and complainants, to show affirmatively the existence of a 
mechanics' lien for any portion of the debt claimed." 

In Clark et al. v, Moore, 64 111. 273, it was held, that 
where certain lien claimants had not been made parties to a 
foreclosure under mechanics' liens by others, and where prop- 
erty had been sold thereunder at an inadequate price, that on 
application by them the court was justified in setting the for- 
mer sale and decree aside; that by the decree and sale the 
other lien claimants had acquired no right that barred or pre- 
cluded those not made parties from asserting their rights; 
that when the decree and sale were set aside the other lien 
claimants were then at liberty to contest the amount or valid- 
ity of any or all of the liens being asserted against the prop- 
erty, precisely as they could have done had they been parties 
to the first proceeding; that if the allowance was too large in 
favor of any one of the plaintiffs and endangered any por- 
tion of the other claims, that they, for their own protection, 
had the unquestioned right to resist and have it reduced to its 
just and fair amount, just the same as though the former 
judgment had not been rendered; that the findings of the 
court in the first decree was not conclusive against those not 
then parties to the action. The same rule is announced in 
Boisot on Mechanics' Liens, section 670. 



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i62 State Bank of Chicago v. Pi^ummer. [54 Colo. 

In Early v. Albertson, Vol. 2 Weekly Notes of Cases 
(Penn.) 369, it was held that terre tenants should always 
have an opportunity to defend against the validity of lien 
claimants. 

In Field v. Oberteuffer, 2 Phila. Rep. 271, it was held 
that the amount of a judgment confessed on mechanics' lien 
claims is not conclusive against- an auditor of the court in 
making his report for its distribution where the defendant's 
real estate had been sold at sheriff's sale and the funds paid 
into court. In passing upon this subject at page 273 the 
court said: 

"We agree with the auditor that the judgment confessed 
upon the claim filed, ought not to have been deemed conclur- 
sive evidence of the sum due, but no case could better illus- 
trate the propriety of this decision, than that which has given 
rise to the exception. For it appears plainly on the auditor's 
investigation, that the judgment had been advisedly confessed 
for a much larger sum than was due as mechanics' claim un- 
der the acts of assembly." 

Without approving or disapproving as a whole the rul- 
ings in the cases last cited, we think, as stated in the last case 
that the facts here are also of that class which gives rise to 
the exception. This record discloses, that Mr. Parfet was 
one of the promoters as well as one of the original stockhold- 
ers of the railway company; that he was its first superintend- 
ent of construction; he testified that certain gentlemen would 
become interested therein only on condition that he be se- 
lected in such capacity ; that as the representative of the com- 
pany he disbursed in construction a large amount of the 
money received from the sale of the bonds represented by the 
plaintiff in error. 

Under such circumstances, without making any intima- 
tion that there is anything wrong with the amount of Mr. 
Parfet's claim, or that there is any fraud or collusion, where^ 
as here, it is made an issue by the pleadings, we think that 

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Sept., 'i2.] State Bank of Chicago v. Plummer. 163 

the bank should have the opportunity to defend against any 
and all portions of the claim, and if payments have been 
made, as its pleadings alleged, it should have the right to 
show these facts, r^ardless of the default judgment entered 
against the owners. This principle is recognized in Gordon- 
Tiger Co. V. Loomer, 50 Colo. 409. A purchaser had acquired 
from the decedent's heirs certain real estate which might be 
jeopardized by the allowance of certain claims against the 
estate, for that reason we held that he had the right to inter- 
vene and defend against the claims. 

That portion of the decree fixing the amount of their 
claims and declaring them liens upon the property including 
the order of their rank or class in favor of the plaintiffs, John 
T. Plummer and The Morrell Hardware Company, as be- 
tween themselves an^ the plaintiff Parfet, and as against the 
defendants is affirmed. For the reasons stated the judgment 
in favor of the plaintiff J. M. Parfet is reversed and the cause 
as between him and the bank is remanded for a new trial upon 
the questions only of the amount due him, including the ques- 
tion of payments and what items are lienable under his ex- 
pense account, in harmony with the views herein expressed. 
The ultimate decree rendered to include an order of foreclos- 
ure in favor of the plaintiff Plummer and The Morrell Hard- 
ware Company similar to the former decree in this respect. 
The plaintiff in error will recover one-half of its costs for this 
writ of error against the defendant in error Parfet, the de- 
fendants in error Plummer and The Morrell Hardware Com- 
pany will recover their costs upon this writ of error against 
the plaintiff in error. Affirmed in part 

Reversed and Remanded in part. 

Decision en banc. 

Mr. Justice Gabbert dissents. 

Chiei^ Justice Campbeix not participating. 

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i64 State Bank of Chicago v. Plummer. [54 Colo. 

Mr. Justice Gabbert, dissenting in part: 

In concur in the reversal of the judgment of the trial 
court, but dissent from so much of the opinion as holds that 
the lien claimants are, or may be, entitled to any relief giving 
them rights in the property involved superior to that of the 
mortgagee. The liens of claimants cannot relate back to the 
inception of the work in December, 1902, except it be upon 
the theory that the work done and materials furnished be- 
tween that date and July, 1905, was in furtherance of one 
general design on the part of the railway and tunnel com- 
panies to complete, as one structure, so much of the tunnd 
and railway as was completed on the latter date. There is 
not the slightest testimony to indicate any such design. On 
the contrary, in my opinion, it is clear from the testimony, 
pleadings and agreed statement of facts, that the work of con- 
structing a railroad and tunnel during the period for which 
the respective liens are claimed, was not one entire undertak- 
ing continuously and uninterruptedly followed up as one piece 
of work, and carried on in furtherance of one general design ; 
but that the work prosecuted during this period was on a 
series of disconnected, separate and distinct structures or im- 
provements, constructed either by the owners or by contrac- 
tors under separate and distinct contracts, and that the mate- 
rials furnished were under separate and distinct contracts, cor- 
responding in point of time with the periods and during which 
the separate and disconnected portions of the tunnel and rail- 
way were constructed. Such being the facts, it follows 
on principle and authority, that where labor or mate- 
rials are furnished under separate and distinct con- 
tracts for the construction of separate and distinct 
portions of a tunnel or railway, a lien statement must be 
filed for what was done or furnished under each contract, 
within the statutory period after its completion. — 27 Cyc. 
144; Sweet et al. v. James, 2. R. I. 270; Hobkirk v. Portland 
B. B. Club, 44 Oregon 605 ; King et d. v. Shipbuilding Co., 

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I 



Sept., 'i2.] State Bank of Chicago v. Plummer. 165 

50 Oh. St. 320; Nye et ol, v. Berger, 52 Neb. 758; Lwer- 
morev. Wright, 33 Mo. 31. 

Applying this rule, it is apparent that neither of the liens 
claimed can be enforced as superior to the mortgage lien of 
the bank. 



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JANUARY TERM 1913. 



[No. 7978.] 

IN RE INTERROGATORIES OF THE SENATE. 

1. Legislative or £2xecutive Questions — Doctrine of the Court — 
It Is the settled doctrine of the court that where a question Is pro- 
pounded by either the legislative or executive department, under sec. 
3/ art. VI of the constitution, the court will decide for Itself whether 
the occasion Is one demanding a response. 

/2. Where Private Rights Are Involved, the court will not 

gwre an ex parte opinion in response to such Interrogatories. 

^ Before the canvass of the Vote, the person chosen to the ofBce of 
lieutenant governor at the election held In November, A. D. 1912, de- 
parted this life. The person chosen to the same office at the preyloos 
biennial election was assuming to hold over, and preside In the ses- 
sions of the senate, though the senate, under sec. 10 of art V of the 
constitution had elected a president pro tern. The senate having pro- 
pounded to the court question as to the right of this person to so hold 
over, under the provisions of the constitution, held, that Inasmuch as 
the officer so assuming to hold over was unquestionably an officer de 
facto, and his acts as such necessarily valid, the question was not one 
of sufficient Importance or solemnity to demand the expression of an 
opinion by the court 

The opinion of the court is in response to the following 
communication from the senate : 

''To the Honorable Supreme Court of the State of Colo- 
rado: Pursuant to the provisions of the constitution of the 
state of Colorado in that behalf made and provided, the sen- 
ate, one of the houses of the nineteenth general assembly, now 
in session, does hereby respectfully submit certain questions 
hereinafter propounded, and does respectfully request that you 
furnish and deliver your opinion thereon at the earliest possi- 
ble moment ; and the court is hereby advised of the following 

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Jan., '13.] In Re Interrogatories 01^ Senate. 167 

facts necessary to be stated for the rendition of judicial opin- 
ion upon said questions, viz. : 

A general election was held in the state of Colorado oa 
the fifth day of November, A. D. 1912, pursuant to the consti- 
tution and laws of said state ; that at said election cme Benja- 
min F. Montgomery was a candidate upon the democratic 
ticket for the office of lieutenant governor of said state, for the 
term beginning on the second Tuesday of January, A. D* 
1913; that at the canvass of the votes duly held by the joint 
session of both houses of the nineteenth general assembly, on 
the 3rd day of January, A. D. 1913, it appeared from said 
canvass that Benjamin P. Montgomery, candidate for lieuten- 
ant governor on the democratic ticket, received a plurality of 
all votes cast. 

That on the 30th day of December, and prior to the can- 
vass of said votes, the said Benjamin F. Montgomery departed 
this life; that at the general election held on the 7th day of 
November, A. D. 191 o, one Stephen R. Fitzgarrald was duly 
elected lieutenant governor of the state, took the oath of office 
and has been and now is the duly elected, qualified and acting: 
lieutenant governor of the state of Colorado, and was such at 
the time of the death of said Benjamin P. Montgomery, and 
at the time of the canvass of said votes ; that it also appears* 
and is a fact that at the time of the death of the said Benjamiff 
F. Montgomery the said vote.had not been canvassed, and no 
certificate of election had been issued to said Benjamin F, 
Montgomery, or to any other person for the office of lieuten- 
ant governor, and none has yet been issued ; that Benjamin F, 
Montgomery or no other person voted upon at the election' 
held in November, 1912, for the office of lieutenant governor 
has taken and filed the oath of office as lieutenant governor of 
the state of Colorado, pursuant to said election and canvass. 

That at a session of the senate held on the 3rd day of 
January, A. D. 191 3, the said Stephen R. Fitzgarrald, lieuten- 
ant governor and president of the senate, made the following 



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l6S In Re Interrogatories of Senate. [54 Colo. 

statement in reply to a request made by senator Burris from 

the second district : 

'Senator from the Second, and Gentlemen of the Senate : 

I first want to say that the death of Col. Montgomery has 
made no greater wound in any heart in this state than in mine, 
outside of his own family. He was a splendid citizen, and 
our state has lost a grand character. His record is an open 
book and he has left as a heritage to the people of this state 
and to his friends something that we would all be proud to 
leave for ourselves. His voice was always lifted for the bet- 
terment of the people of this state, and Colorado is much 
poorer today than it was before he died. But the good old 
man is gone, and this situation presents itself to me person- 
ally. It has given me a great deal of concern as to what was 
my duty in the premises. I have had the advice and counsel 
of a great many good friends, and have had the assistance of 
some of the very best lawyers of the state, who have volun- 
teered their services to look up the matter for me. I have con- 
sulted a great many authorities myself, in order that I might 
come to a conclusion befitting a gentleman and a member of 
the executive department of this state. I am glad that you 
have asked this question at this time, so that the record may 
show my position in the matter. I have come to this conclu- 
sion : That it is my duty to hold this office until my successor 
has been elected and duly qualHied as provided by the consti- 
tution of this state. After having arrived at this conclusion, 
no one could do more, and no one would want to do less, so 
that you may know that after the 14th of this month I shall 
consider it my duty to exercise the duties of this office until 
my successor has duly qualified, and I want to say to this sen- 
ate that I am not going to object to whatever action you may 
take, only to preserve my legal rights. I am just as anxious 
to know whether I will be the lieutenant governor after Jan- 
uary 14th as you are. Nevertheless, I desire to preserve my 
legal rights and that it is only upon legal grounds that I have 
stated somewhat my reasons, so the senate may take their own 

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Jan., '13.] In Re Interrogatories of Senate. 169 

course and I will take mine. I have been advised by my 
friends and counsel that it is my duty to hold the office until 
it is determined who is my legal successor, so you may take 
whatever, action you please, and I thank you for this oppor- 
tunity of expressing myself and I don't think any good citi- 
zen would do differently than I have determined to do in this 
matter.' 

That on Tuesday, the 7th day of January, A. D. 19 13, 
the senate of the nineteenth general assembly, elected William 
H. Adams president pro tent of the said body, and thereafter 
said Adams took the oath of office as president pro tern and 
entered upon his duties as such officer. 

NOW, THEREFORE, In view of said existing condi- 
tions and to enable the senate of the nineteenth general as- 
sembly of the state of Colorado to discharge its legal and con- 
stitutional duties in the premises, 

BE IT RESOLVED BY THE SENATE of the State 
of Colorado that the following questions be submitted to the 
supreme court in the state of Colorado for its opinion in the 
premises, which said questions are as follows, towit : 

Interrogatory i : Does said Stephen R. Fitzgarrald, the 
present duly elected, qualified and acting lieutenant governor 
of the state of Colorado, continue to hold the office of lieuten- 
ant governor on and after the 2nd Tuesday of January, A. D. 
1913, under the provisions of sections i, 3, 6, 14 and 15 of 
article IV, and sections i and 10 of article XII of the consti- 
tution of the state of Colorado ? 

Interrogatory 2: If the said Stephen R. Fitzgarrald 
does not hold the said office of lieutenant governor of the state 
of Colorado, who, under the provisions of the constitution 
above referred to, or what officer is entitled to perform the 
duties of the office of lieutenant governor, on and after the 
second Tuesday of January, A. D. 191 3? 

BE IT RESOLVED, That said court is hereby respect- 
fully advised and informed that in the opinion of the said sen- 
ate, the questions, and each of them, sa submitted are import- 



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I70 In Re Interrogatories of Senate. [54 Colo. 

ant questions upon a solemn occasion, and that the situation 
is 90 grave and serious that the highest public interest requires 
that the said honorable supreme court shall, at the earliest 
possible moment, render and deliver its opinion to the said 
senate upon each, every and all of the foregoing questions." 

The questions presented were discussed by Mr. W. H. 
Malone, Mr. Stephen R. Fitzgarrald, Mr. John D. Milliken 
and Mr. Benjamin Griffith. 

Mr. Justice White delivered the opinion of the court : 

In considering interrogatories propounded under section 
3 of article VI of the constitution, this court, soon after the 
adoption of the constitutional provision, established certain 
rules governing the practice to be observed in the exercise of 
the jurisdiction conferred. As the authority conferred and 
duty imposed upon the court to give its opinion is '*upon im- 
portant questions, upon solemn occasions," and not whenso- 
ever required by the governor, the senate or the house of rep- 
resentatives, it was held that the duty rested finally upon the 
court to determine for itself as to the solemnity of the occa- 
sion and the importance of the questions propounded. More- 
over, that the question must relate to* purely public rights, be 
propounded upon a solemn occasion, and possess a peculiar or 
inherent importance not belonging to all questions of the kind ; 
that executive questions must be exclusively publici juris, and 
legislative ones be connected with pending legislation, and re- 
late either to the constitutionality thereof or to matters con- 
nected therewith of purely public right. — In the Matter of 
the Constitutionality of Senate Bill No, 65, 12 Colo. 466, 471 ; 
In the Matter of Senate Resolution on the Subject of Irriga- 
tion, 9 Colo. 620; In Re Appropriations, 13 Colo. 316, 321; 
In Re Speakership, 15 Colo. 520; In Re Fire and Excise 
Com., 19 Colo. 482; In Re House Bill No. 99, 26 Colo. 140; 
In Re Senate Resolution No, 10, 33 Colo. 307. 

At an early date, speaking through chief justice Helm, 
this court, in In the Matter of the Constitiftionality of Senate 
Bill No. 65, 12 Colo. 466, 471, 472, said: "We feel con- 
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Jan., '13.] In Re Interrogatories of Senate. 171 

strained to repeat and emphasize the thought heretofore ex- 
pressed, that the utmost vigilance and caution be exercised by 
both the general assembly and the court in acting under this 
novel constitutional authority. There cannot well be too much 
moderation in the premises. We note that, in those states 
which permit consultation with the justices, the privil^c 
seems to be less often invoked than it has been here. The at- 
torney general is the natural as well as the statutory legal ad- 
viser of the executive and legislative departments. His coun- 
sel should be solicited ; and only as a dertfier ressort, upon the 
most important questions and the most solemn occasions, 
should the court be requested to act" 

He further therein said that, "While the question must be 
one relating to purely public rights, it can only be propounded 
upon solemn occasions, and it must possess a peculiar or in- 
herent importance not belonging to all questions of the kind. 
* * * Upon mature investigation and reflection we are of 
the opinion that executive questions must be exclusively juris 
publici, and that legislative questions must be connected with 
pending legislation, and relate either to the constitutionality 
thereof, or to matters connected therewith, of purely public 
right. We believe that the accuracy as well as the wisdom of 
this inteipretation will commend themselves alike to the 
legislative judgment and the legal mind." 

And in referring to that decision Mr. Justice Elliott, 
speaking for the court in In Re Appropriations, sxipra, said: 
"The latter opinion was announced after much consideration, 
and is authority for saying that this court must decide for 
itself, as to any given question, whether or not it should exer- 
cise the jurisdiction of answering the same; and that only 
questions of law publici juris, and not questions affecting pri- 
vate or corporate rights, should be thus answered. That de- 
cision was based upon the fundamental doctrine that for this 
court to answer questions of the latter class, ex parte, would 
inevitably result in disposing of the rights or claims of liti- 
gants without due process of law, without counsel, and with- 

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172 In Re Interrogatories of Senate. [54 Colo. 

out allowing them their day in court." 

And in In Re Fire and Excise Commissioners, supra, it 
is said: "While we concede to the governor full liberty to 
submit such questions as he may deem consistent with his ex- 
ecutive powers, this court reserves for itself the right to ex- 
press its opinion freely, in whole or in part, or not at all, as it 
shall deem consistent with its judicial powers and constitu- 
tional obligation." It is further therein said : "Were it not 
for the threatened dangers by force, military and otherwise, 
the question propounded would not be important nor the occa- 
sion solemn." And in the same opinion, on page 499, upon 
the question of an incumbent of an office attempting to hold 
over in opposition to an executive order of removal, it is said : 
"* * * if the executive order of removal is questioned by 
the incumbent, the courts have the power, and it is exclusively 
within their province, to pass upon such objections and deter- 
mine as between the respective claimants the right to the office 
in question, and the law provides a plain and adequate pro- 
cedure for that purpose; and a speedy determination of such 
question is assured by express statute. Mills' An. Stats., p. 
830. All law-abiding citizens will, and all others should be 
required to, submit such controversies to these tribunals for 
settlement." 

And in In Re Senate Resolution No. 10, supra, "Private 
rights, the title to an office, or the construction of an existing 
statute will not be determined in an ex parte proceeding- in 
answer to a question from either the legislative or executive 
departments." 

These rules have been applied, and such has been the 
practice in this state for a fourth of a century. Occasionally, 
it may be, as pointed out in In Re House Bill No, 99, supra, 
"There was a departure from it, but an examination of those 
cases shows that it was for reasons held conducive to the pub- 
lic welfare, and because the cases were of extreme emergency. 
* * * When we thus made answer we deviated somewhat 
from the established practice to which, at the first opportunity. 

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Jan., '13.] In Re Interrogatories of Senate. 173 

we now return. In doing so, we are satisfied that we are pur- 
suing the only safe course, and one that commends itself to 
the judgment of the thoughtful and earnest legislator, as well 
as to the members of the bar and publicists who have given to 
the subject careful attention." 

Those cases, nevertheless, it should be observed, carefully 
avoided determining any private rights. There was involved 
in In Re Speakership, the legality of the organization of the 
house of representatives, each of two rival organizations 
claiming to constitute that body. Incidentally, the court was 
asked, among other things, to say who was then the speaker 
of the house of representatives. We did not give a direct an- 
swer to the question. On the contrary, we held substantially, 
that as the constitution invests the house of representatives 
with the power to judge of the election and qualification of its 
members, and likewise invests it with the power to elect its 
own speaker, and such power is continuing and no other de- 
partment of the government has any voice in the matter, such 
branch of the general assembly "must assume and bear the re- 
sponsibility for the exercise of their powers," and that it could 
remove and elect another speaker at its pleasure. 

In Re Fire and Excise Commissioners, supra, involved 
the right of the executive to remove certain fire and excise 
commissioners from office in the city of Denver, appoint others 
in their stead, and induct the latter into office by force. As 
the court had previously held that the power of removal and 
appointment in that respect was vested in the executive, it 
therein reaffirmed the holding and declared that the constitu- 
tional oath of the executive to "take care that the laws be 
faithfully executed" imposed no obligation upon him to en- 
force his order of removal, and that a proper regard for the 
reputation and peace of the community would dictate that the 
appointees institute proper proceedings in court to determine 
their rights to the office. In other words, the Speakership 
case declared that the house of representatives was the tri- 
bunal to ascertain and determine who was its speaker. While 

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174 In Re Interrogatories oi^ Senate. [54 Colo. 

the Fire Commissioners' case declared that the governor was 
the person invested by law to hear charges against and remove 
for cause the fire and excise commissioners of the city of Den- 
ver and to appoint their successors. This was in effect saying 
only that whatsoever person, body or tribunal, invested by law 
with the power to appoint or remove from public office, has 
the exclusive right to exercise the power, and it is the duty of 
good citizens to accept and abide by that which is so done in 
the premises. 

The matters involved in /h Re Senate Resolution No. 10, 
supra^ concerned a contest for the governorship, pending be- 
fore the general assembly. It was therein pointed out that 
the contestor and the contestee were actual litigants before the 
general assembly, having submitted their respective claims to 
the determination of that body, and as the questions submitted 
to the court for answer arose out of that contest, the parties 
litigant were necessarily before the court as to the matters in- 
volved, and it was not an ex parte proceeding. 

Testing the questions propounded by the rules established, 
it is evident that we should not assume jurisdiction in the 
premises. The occasion is not of sufficient solemnity, and 
private rights are involved. It is conceded that when the 
nineteenth general assembly convened it was the duty of 
Stephen R. Fitzgarrald to appear in, and preside over the de- 
liberations of the senate during the term for which he was 
elected. Sec. 14, art. IV, constitution. It is likewise conceded 
that it was the duty of the senate, at the beginning of its ses- 
sion, to elect one of its members president pro tempore. Sec. 
10, art. V, constitution. We are advised by the resolution that 
such duties were duly performed, and the only circumstance 
in addition thereto is, that on the 3rd day of January, during 
the time Fitzgerrald was unquestionably the lieutenant gov- 
ernor, he stated to the senate, in answer to some inquiry made, 
that lie had concluded it was his duty, under sections i and 10 
of article XII of the constitution, to hold the office of lieuten- 
ant governor after the 14th of January until a successor ap- 

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Jan., '13.] In Re Interrogatories of Senate. 175 

pcared, elected and qualified as such officer, or until such time 
as it was legally determined otherwise. This is the extent of 
the controversy as disclosed by the resolution and questions 
propounded. If Montgomery had lived, qualified for the office 
and assumed the duties thereof, the senate would, nevertheless, 
have elected a president pro tempore. So it does not appear 
that the orderly procedure of the senate has been affected by 
that which has occurred, or that Fitzgarrald's claimed right to 
perform the duties of lieutenant governor been l^ally ques- 
tioned. Whether Fitzgarrald is rightfully entitled to hold 
over, his acts as such officer are necessarily valid. If he be 
not the de jure lieutenant governor, he is unquestionably such 
officer de facto. This is elementary. 29 Cyc, p. 1392. He 
was l^ally in the office. He is still therein, actually perform- 
ing the duties thereof. Under these circumstances, surely the 
occasion is not one of solemnity, and we are not authorized 
under the constitutional provision to answer questions pro- 
pounded to the end that solemn occasions may not arise. It 
is only upon solemn occasions that we are authorized to act. 
Moreover, it is not to be presumed that either public officials 
or private citizens will disr^ard the orderly procedure of the 
la\\, but, on the contrary, when claimed rights are questioned, 
or sought to be questioned, resort will be had to the proper 
tribunals established for the purpos of determining such mat- 
ters. 

Furthermore, to answer the questions propounded would, 
as hereinbefore stated, involve a determination of private 
rights in an ex parte proceeding. It would necessarily deter- 
mine the title to the office of lieutenant governor and to whom 
the salary pertaining to such office properly belongs. If 
Stephen R. Fitzgarrald is the lieutenant governor, entitled to 
perform the duties of that office, he is likewise entitled to re- 
ceive the emoluments thereof, but if he is not the lieutenant 
governor, and some other person is entitled to perform the 
duties of such office, the latter person is entitled to receive the 



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176 In R^ Interrogatories of Senate. [54 Colo. 

emoluments of the offict.— People ex rei v. Cornforth, 34 
Colo. 107. 

Such private rights can not be determined in an ex parte 
proceeding to which such possible claimants of the office, and 
the salary pertaining thereto, are in no wise parties. If any 
public official or tax-paying elector desires to question the 
right of Mr. Fitzgarrald to hold the office of lieutenant gov- 
ernor, the law has provided a tribunal and adequate procedure 
for that purpose, wherein both private and public rights may 
be properly considered and protected. Such was the case and 
procedure in People ex rei v, Comforth, supra, wherein this 
court assumed original jurisdiction. 

We shall continue, as heretofore^ to observe the require- 
ments of all constitutional provisions, including the one now 
under consideration, and take pleasure in rendering such as- 
sistance to every department of government as shall be con- 
sistent with our duty and in harmony with a sound exposition 
of the constitution. To adhere to the rules established by this 
court we deem wiser and more seemly than to place a different 
interpretation upon a constitutional provision that would nec- 
essarily bring confusion and uncertainty. We are persuaded 
that this course will commend itself to both the legislative and 
the legal mind. 

In view of the foregoing consideration we respectfully 
ask the honorable senate to recall the questions propounded. 

Decision en banc. 

Mr. Justice Hill and Mr. Justice Scott dissent. 

Mr. Justice Hill dissenting : 

I cannot concur in the conclusion reached by the major- 
ity. As I read the resolution from the senate it discloses, 
that the candidate who received the highest number of votes 
for the office of lieutenant governor at the election held in 
November, 1912, departed this life after the election; that he 
never qualified as such officer; that the present senate, pur- 



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Jan., '13.] In Re Interrogatories o^ Senate. 177 

suant to the provisions of section 10 of article V of the consti- 
tution, elected one of their number as president pro tempore; 
that the lieutenant governor elected in November, 1910, claims 
the right to the office for the present biennial term, or the 
right to hold over, as it is termed, until his successor is elected 
and qualifies. Section 14 of article IV of the constitution 
reads : "The lieutenant governor shall be president of the sen- 
ate, and shall vote only when the senate is equally divided. In 
case of the absence, impeachment, or disqualification from any 
cause of the lieutenant governor, or when he shall hold the 
office of governor, then the president pro tempore of the sen- 
ate shall perform the duties of the lieutenant governor, until 
the vacancy is filled or the disability removed." Upon account 
of the above and other sections of the constitution, and the 
circumstances above set forth, it is evident that the senate is in 
doubt as to the proper person to be recognized as its presiding 
officer after January 14th, 19 13, when both the lieutenant gov- 
ernor elected in 1910 and the president pro tempore of the sen- 
ate elected at the beginning of the present regular session are 
present and claim the right to so act. Under such circum- 
stances this becomes an important question and to my mind 
presents a solemn occasion. 

The senate, in order to be advised as to the proper inter- 
pretation to be given the different sections of the constitution 
upon this subject, so that they may act advisedly and thus 
avoid any attack upon, or criticism pertaining to, their pro- 
ceedings, have submitted the interrogatories. As I view the 
questions, they are, in part, publici juris and in my opinion 
should be answered to the extent of placing an interpretation 
upon these different sections of the constitution sufficient to 
cover the question concerning the presiding officer of the sen- 
ate. In my judgment, this position is supported by the follow- 
ing opinions of this court. — In Re Senate Resolution No, 10, 
Concerning Governorship Contest, 33 Colo. 307 ; In Re Fire 
and Excise Commissioners, 19 Colo. 482; In Re Speakership 
of the House of Representatives, 15 Colo. 520. 

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178 In Re Interrogatories of Senate. [54 COI0. 

Mr. Justice Scott dissenting : 

I cannot concur in the conclusion of the court, to refuse 
in this instance to give its opinicMi upon the questions pro- 
pounded by the senate. The provision of section 3, article YI, 
of the constitution of Colorado, is as follows : 

"The suprane court shall give its opinion upon import- 
ant questions, upon solemn occasions, when required by the 
governor, the senate, or the house of representatives ; and all 
such opinions shall be published in connection with the re- 
ported decisions of said court." 

I am not unmindful of the fact that this court has as- 
sumed to itself in such cases, the absolute right to determine 
whether or not a question is important, or the occasion solemn. 
I cannot agree that this was the intendment of this constitu- 
tional provision. Such power of the court is in my judgment 
unwarranted, either by the language or purpose of this pro- 
vision. The language is distinctly mandatory upon the su- 
preme court, and there is not even a suggestion of discretion 
upon its part. The word "require" as used in this connection 
can have no meaning other than the right to demand as by 
right and authority. This right to demand is specifically con- 
ferred upon two of the co-ordinate branches of the govern- 
ment, and the duty of the other branch of the government to 
obey is to my mind clear. 

It is true that this court has said, 33 Colo. 321, "The de- 
partment propounding the question in the first instance deter- 
mines whether an occasion exists which justifies its submis- 
sion." But qualifies this declaration by asserting, "But it re- 
mains for the court to finally determine that proposition." I 
r^ard this qualification as a clear assumption of power, in no 
way to be reconciled with the language of the section of the 
constitution, or the essence of the proposition stated by the 
court. The right to propound the question rests, necessarily, 
upon the right to determine that the occasion exists, and only 
after such determination. That question having been deter- 

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Jan., '13.] In Re Interrogatories of Senate. 179 

mined by the department having the declared right, it is illogi- 
cal and incongruous to say that such determination may be re- 
viewed and set aside by another department to which the ques- 
tion is addressed, having no express authority to do so. This 
would reduce the constitutional enactment to an absurdity. 
The people through their constitution, have the same power to 
command courts, as legislatures and executives are command- 
ed, and it is not for the former to complain or attempt to de- 
cree otherwise. Certainly where the right to thus determine a 
given state of facts, is conferred upon one department of the 
state government, it is not within the province of another de- 
partment to assume to be the sole arbiter as to its importance. 

But the power to determine that an occasion is important 
or solemn, is not such an unusual or extensive power as to 
justify the assumption of doubt as to its meaning. Greater 
and entirely exclusive powers have been conferred upon both 
the executive and the legislature charged with the responsi- 
bilities of government. It would therefore seem that execu- 
tives and legislators have at least equal opportunities and equal 
judgment with courts, as to the importance or solemnity of 
problems presented to them. 

It is not necessary to recite the many grave questions 
which the legislature alone may determine. The same may be 
said as to the executive. This court has said that he may even 
declare a state of insurrection and suspend the writ of habeas 
corpus without consulting any other department of the state 
government. Surely then, he may be trusted to determine 
when such an important or solemn occasion is presented to 
him as to require the lagol advice of the court. Likewise 
rither branch of the general assembly. 

Courts should not impute to executives or legislatures, 
the doing of foolish Or useless acts. These should be r^arded 
as expressing their solemn conviction within their respective 
spheres. To refuse to answer the questions in this instance is 
to refuse to obey that which I r^^ard as an imperative consti- 



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i8o In Re Interrogatories of Senate. [54 Colo. 

tutional mandate, or on the other hand, to assume a power | 
neither expressed nor reasonably implied. ! 

In the case of Opinions of Justices (Maine) 51 Atl. 224, 
cited by counsel, while the majority of the court held to the 
view now expressed by the majority here, yet the argument of . 
the dissenting justices is so convincing, and so replete with 
judicial authority as to appear unanswerable. This case was 
decided as late as 1902, and it is there said : 

"Against this long and unbroken array of precedents for 
more than a century (40 years under the Massachusetts con- 
stitution and 80 years under our own similar c(Histitution), 
and against the opinions of the eminent jurists cited, we have 
in this state but the one late solitary instance where the jus- 
tices refused to answer a question duly propounded, that in 
1 89 1, when the justices refused to answer the inquiry of the 
governor as to his power to remove a county attorney. 85 
Me. 545, 127 Atl. 454." 

And again : 

"The early practice under any constitutional provision is 
admittedly of very great, and even controlling, force when 
such practice does not conflict with the express words of such 
provision. It is well known as matter of history that members 
of the convention drafting the constitution afterward became 
governors, legislators, and judges under it. They best knew^ 
the scope and purpose of its provisions. The people who them- 
selves voted upon the adoption of the constitution would more 
quickly notice any departure from its letter or spirit. If, there- 
fore, we find a comparatively uniform practice under a consti- 
tutional provision by the earlier incumbents of office, ac- 
quiesced in by the persons or officers unfavorably affected by 
it, and not opposed to clear, express language of the constitu- 
tion, such practice is a better, safer guide to the real meaning 
and scope of the provision than any verbal, grammatical, or 
even philosophical interpretation by subsequent generations in 
after years. Broom, Leg. Max. 658, 884; Cohen v. Virginia, 
6 Wheat 418, 5 L. Ed. 257; Rhode Island v. Massachusetts, 

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Jan., '13.] In Re Interrogatories of Senate. 181 

12 Pet 657, 9 L. Ed. 1233.; Rogers V. Goodwin, 2 Mass. 475; 
Gray, C. J., in Opinion of Justices, 126 Mass. 594. 

In obedience to the constitution as thus authoritatively in- 
terpretated by the unvarying practice of more than a century, 
— ^40 years in Massachusetts to the time of the separation, and 
then in Maine for 70 years more until 1891, — we give our 
opinion upon the questions submitted briefly as follows :" 

But if the view of the majority of the court be admitted, 
still under the decisions of this court, the questions here should 
be answered. While the form of the questions submitted may 
be unfortunate, yet these in fact simply ask the court for an 
interpretation of certain constitutional provisions, seemingly 
necessary for guidance of the senate. 

It is urged that these should not be answered because the 
questions involves a private right, that is to say the title to an 
office, that of lieutenant governor, and that under the rule of 
the court such title can only be determined in another and dif- 
ferent proceeding. It must be admitted that to an extent, a 
private right is involved, but it likewise involves a question of 
grave public concern, compared with which the private right 
sinks into insignificance. 

In the Speakership Case, 15 Colo. 520, the question pro- 
pounded by the house of representatives, was as to the power 
of that body to declare the office of speaker vacant, and the 
court answered that it had such power. Plainly this involved 
a constitutional private right, to-wit : title to the office of 
speaker, which like the office of lieutenant governor, carries 
with it the right of succession to the governorship. 

In the case, In Re Senate Resolution No. 10, 33 Colo. 
307, the question as to whether or not the joint assembly had 
the power to declare the office of governor vacant, was an- 
swered by this court. This was a contest for the office of gov- 
ernor, was purely a political matter over which this court could 
have no control, and it would be difficult to understand how 
the office of lieutenant governor can involve a clearer case of 
private right. 



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l82 In Re iNTBKROGATQiUES OP SENATE. [54 Colo. 

In Re Fire etc. Commissioners, 19 Colo. 482, involved the 
power of the governor under the law as it then stood, to re- 
move the fire and police ccxnmission of the city of Denver. 
These were c^ces carrying salaries and the court in that ease 
admits the existence of private right, but declares that the 
gravity of the situation demands an answer to the question 
propounded. 

This case clearly illustrates the unsoundness of the rule 
adopted by the majority in the matter before us, and makes 
clear the reasoning in Opinion of Justices, supra, having refer- 
erence to the dissenting opinion as follows : 

"Whether the questions submitted are important, or 
whether there be sufficient occasion for their solution, is not 
itself a question of law, or a judicial question. These are 
rather political questions in the broad sense of that term. 
When the requirement is made by the house of representatives, 
they are pre-eminently questions for the house itself to con- 
sider and determine. The house is a political agent of the peo- 
ple. It has the sole power of impeachment. It is the grand 
inquest. With the senate and the governor, it is the judge of 
what is for the people's welfare, is charged with the duty of 
seeking out abuses, disorders, and irregularities in the public 
service and is also charged with the duty of their reform or 
removal. The justices are by the constitution (article 3, sec. 
2), excluded from that sphere of duty and action, and limited 
to judicial questions. Even in cases where all the facts and 
conditions are public, and known to all the justices, it is cer- 
tainly doubtful if they are to override the judgment of the rep- 
resentatives of the people, that those acts and conditions ren- 
der the questions of law important and the occasion solemn. 
But the justices can never be sure they know all the facts and 
conditions. There may be — ^perhaps in this case — ^many facts 
and conditions known to the house and not known to the jus- 
tices, clearly showing the given question to be important, and 
the occasion sufficiently solemn. It has never been the prac- 
tice, nor is the house obliged by anything in the constitution. 

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Jan., '13.] .In Rb Interrogatories op Senate. 183 

to state facts affirmatively showing the question to be import- 
.ant and the occasion solemn. We do not think the justices 
should treat the house as a suitor, nor its order like a petition 
demurrable for want of sufficient allegation of facts." 

But if we are to assume the exclusive right to determine 
whether or not the question is important and the occasion 
grave, we cannot escape the conclusion that such is the case 
before us. 

The questions by the senate presuppose a desire upon its 
part to obey the constitution, and we cannot doubt that the 
several constitutional provisions, under the state of facts pre- 
sented, admit of serious question. 

The lieutenant governor is not a member of the senate. 
That body under the constitution, consists of thirty-five mem- 
bers, elected from districts, created by law, and of which mem- 
bership the lieutenant governor cannot be one. He presides 
over the senate simply by virtue of his office as lieutenant gov- 
ernor, and which duty is simply incidental to his office. If he 
is not lieutenant governor, can he preside, or exercise any of 
the powers and duties of the presiding officer? The actual offi- 
cial duties of this officer as such are limited, Micawber like, to 
simply waiting for something to turn up, and when this some- 
thing does turn up he no longer performs the duties of lieuten- 
ant governor, but rather the duties of governor. 

It is suggested that even though he may not be the lieu- 
tenant governor, in fact, yet his acts arc valid as a de facto 
official. 

From what I have said of the duties of the lieutenant gov- 
ernor as such, it would seem that as a de facto official, he 
wotild have as much substance and power as the proverbial 
hole in a doughnut. Can he preside and give validity to his 
acts as the president of the senate, unless he is the actual lieu- 
tenant governor? He cannot preside as president pro tern, for 
the senate may elect only one of its members to such position. 
It IS urged that in permitting him to preside, the senate 
thus recognizes the validity of his acts. Does the mere recog- 

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1 84 In Re Interrogatories of Senate. [54 Colo. 

nition by the senate, validate an invalid vote? Can the sen- 
ate be said to be charged and bound by mere recognition, when 
in the exercise of all its power it cannot elect or place in au- 
thority, the official so said to be recognized ? 

The constitution confers upon the president of the senate 
the power to cast the deciding vote when the senate is equally 
divided. Thus while he is not a member of the senate, yet in 
this particular he is given certain powers of a l^slator. Will 
this court say that there can be such a thing as a de facto leg- 
islator, casting votes and making laws? To my mind this is 
inconceivable. 

Again, it is the constitutional requirement that the presid- 
ing officer of the senate shall in the presence of the senate, sign 
all bills and joint resolutions passed by the assembly. This 
seems to be clearly mandatory. Are we ready to say that one 
who is not the lieutenant governor, and who is not eligible to 
election by the senate, as president pro tetn, may sign them? 
Are we ready to say that if such bills are not signed by the 
proper officer that they are not for such reason invalidated ? 

The questions are purely legal and the members of the 
senate are not presumed to be learned in the law, yet all these 
legal questions which may vitally effect the whole people of 
the state are before them. Are these matters not important 
and can this court say that the occasion is not sufficiently 
grave as to require its advice when requested ? 

I am clearly convinced that the matter is of such import- 
ance as to make the refusal of the court to answer a serious 
error. Beside, I do not understand that the answer requested 
is anything but advisory, and may be reviewed or changed 
upon a more formal and complete investigation. I regard the 
constitutional mandate binding on the court, and against 
which we may not interpose a rule of procedure, a precedent, 
or the convenience of the court. The senate is entitled to 
know and the whole people are entitled to know the view of 
the court upon so serious a legal question. 

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Jan., '13.] Empire Co. v. Zehr. 185 

[No. 7474.] 

Empire Ranch & Cattle Co. v. Zehr. 

Limitations — Section 407S of the RevUed 8tatute9, applies to 
^raonal actions only and Is no bar to a bill to remove a specific cloud 
apon the title to land*. 

Appeal from Washington District Court. — Hon. H. P. 
Burke, Judge. 

Mr. R. H. GiLMORE, for appellant. 

Messrs. Munson & Munson, for appellee. 

Mr. Justice Garrigues delivered the opinion of the 
court: 

1. This action was commenced by the patent owner to 
quiet his title against a tax deed, each party claiming title in 
fee simple. Defendant's adverse claim was a tax deed, void 
on its face. It was admitted on the trial that the land was 
patented to the plaintiff. Defendant in support of its title 
relied upon and offered in evidence a tax deed, which the 
court excluded because it was void upon its face, and, defend- 
ant offering no further evidence, entered judgment for the 
plaintiff. 

2. Defendant pleaded the five years' equity statute of 
limitations, which in part is as follows: 

"Bills of relief * * * in all other cases not herein 
provided for, shall be filed within five years after the cause 
thereof shall accrue, and not after." — Sec. 4073, Rev. Stats., 
1908. 

The "other cases" therein provided for, are : "Bills for 
relief on the ground of fraud," and "The existence of a trust 
not cc^izable by the courts of common law." 

While the tax deed was not admitted in evidence, the 
pleadings admitted it was recorded January 5, 1903, and the 
^Syllabus by Garrigues, J. 



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i86 Marks v. Morris. [54 Colo. 

complaint was filed December 28, 1908. Defendant's conteft- 
tion is, that as soon as the tax deed was recorded, it became a 
cloud on plaintiff's title; that his cause of action then ac- 
crued ; that this is a bill for relief to remove the cloud, and in 
as much as it was not brought until almost six years after the 
cause of action accrued, that it is barred by this statute. 

There is no doubt if the tax deed was a cloud upon plain- 
tiff's title, that the cause of action to quiet it accrued as soon 
as it was filed for record, and, as the suit was not brought 
until almost six years thereafter, the action was barred if the 
statute applies to a case of this kind ; but the case of Munson 
V. Marks, 52 Colo. 553; i^^ Pac. 187, is decisive of the ques- 
tion. It is there held that this statute is a limitation upon 
personal actions only, and was never intended to apply to ac- 
tions affecting real estate. The judgment will therefore be 
affirmed . A ftirm cd. 

Chief Justice Musser and Mr. Justice Scott concur. 



[No. 7515.] 

Marks v. Morris. 

Limitations— CoZor of Title— Payment of Taxes— A treasurer's 
deed is not color of title until recorded. One who, claiming under a 
void tax deed, would avail of the seven-year llmiUtion prescribed by 
Rev. SUt., sec. 4090, must show the lapse of the sUtutory period, not 
only between the first payment of taxes and the institution of the 
action of the paramount owner, br* between the record of his deed 
and the institution of this action. 

Appeal from Logan District court.— Hon. H. P. Burke. 
Judge. 

Messrs. McConley & Hinkley, for appellant. 
Mr. John F. Mail, for appellee. 

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Jan., '13.] Marks v. Morris. 187 

Mr. Justice Garrigues delivered the opinion of the 
court : 

This is a code action for the possession of real property. 
Defendant has a tax deed, void on its face, which he claims 
vests the legal title in him, under the following statute : 

"Whenever a person having color of title, made in good 
faith, to vacant and unoccupied land, shall pay all taxes legally 
assessed thereon for seven successive years, he or she shall be 
deemed and adjudged to be the legal owner of said vacant and 
unoccupied land to the extent and according to the purport of 
his or her paper title." — Sec. 4090, Rev. Stats., 1908. 

The tax deed was recorded April 19, 1900; first payment 
of taxes thereunder, was December 18, 1901 ; this action was 
commenced May 16, 1908. 

This statute was no defense unless seven years had 
elapsed between the date of the first payment of taxes, and the 
date of bringing the action. Empire Co. v. Howell, 22 Colo. 
App. 585 ; and a tax deed is not color of title until recorded. — 
Sayre v. Sage, 47 Colo. 559. 

In a case of this character, where conflicting titles are in- 
volved, before the seven years' statute can operate as a liml 
tation, there must not only be seven years between the date 
the suit is brought and the first payment of taxes; but there 
also must be that length of time between the date of record 
of a tax deed, and the commencement of the action. In this 
case, while more than seven years elapsed between the date 
the deed was recorded and the commencement of the action, 
less than seven years had expired between the first payment of 
taxes and the bringing of the suit. The judgment is there- 
fore affirmed. Affirmed. 

Chiei^ Justice Musser and Mr. Justice Scott concur. 



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i88 Henwood v. The People. [54 Colo. 

[No. 7624.] 

Henwood v. The People. 

1. Cbiminal ItAw— Murder— Death of One "by a Blow Intended for 
Another — One engaged in an affray with a particular person kills both 
that person and an innocent bystander. If guilty of murder in the 

(case of his adversary, he is guilty of murder in that of the by- 
; stander. 

2. Information For^ includes all the lower grades of homi- 
cide. 

3. Evidence— Manslaughter — Where upon the trial of an in- 
formation for murder there is evidence sufficient to go to the Jury of 
circumstances tending to excite in the accused a sudden heat of pas- 
sion, the question whether they amount to the statutory provocation, 
so as to reduce the offense to the grade of manslaughter (Rev. Stat^ 
sec. 1625,) is for the Jury. 

4. Involuntary Manslaughter— One who, exercising the right 

of self-defense, discharges a pistol at his adversary, but acts withoat 
due regard to the presence of others, and unintentionally kills a by- 
stander, may be declared guilty of involuntary manslaughter. 

5. Instructions — ^Where upon the trial of an information for 

a murder there is evidence sufficient to go to the Jury tending to show 
that the prisoner delivered the fatal shot under the influence of & 
sudden and irresistible passion, it is error to take from the Jury the 
question of the degree of the crime. The Jury must be left free to 
find guilty of manslaughter, even though the prisoner, testifying Id 
his own behalf, asserts that he acted only in self-defense. 

Error to Denver District Court, — Hon. Greeley W. 
Whitford, Judge. 

Mr. John T. Bottom and Mr. Milnor K. Cleaves, fc 
plaintiflf in error. 

Hon. Benjamin Griffith, attorney general, Mr 
Archibald A. Lee, deputy attorney general, Mr. Theodore 
M. Stuart, Jr., assistant attorney general Mr. Willis V. 
Rluott, district attorney, and Mr. John Horne Cifrr.Es. 
chief deputy district attorney, for the people. 

Mr. Justice Gabbert delivered the opinion of the court: 

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Jan., '13.] Kenwood v. The People. 189 

The plaintiff in error, whom we shall hereafter designate 
as defendant, was convicted of murder in the second degree 
and sentenced to the penitentiary for life. He maintains that 
prejudicial error was committed at the trial in several par- 
ticulars, only a few of which, however, will be considered. 

The defendant shot and killed Sylvester L. Von Phul. 
For this homicide an information was filed charging him with 
murder. It was claimed that some of the shots fired by de- 
fendant at Von Phul struck George E. Copeland and caused 
his death, and an information was also filed, charging the de- 
fendant with the murder of Copeland. The defendant was 
tried for the offense so chaffed, with the result above noted. 
Copeland was a by-stander, taking no part whatever in the 
difficulty between the defendant and Von Phul, so that if the 
defendant committed an offense in taking the life of Von 
Phul, he was guilty of a like offense in causing the death of 
Copeland. — Ryan v. People, 50 Colo. 99. 

At the outset counsel for defendant contends the evi- 
dence does not establish that any of the shots fired by defend- 
ant took effect in the body of Copeland, and for this reason 
urges the court should have sustained a motion to instruct the i 
jury to return a verdict of not guilty at the conclusion of the 
testimony on the part of the people. We do not deem it neces- ' 
sary to either review or go "into an extended discussion of the 
testimony bearing on this subject, as, in our opinion, it was 
ample to sustain the finding of the jury that shots fired by 
defendant at Von Phul struck and caused the death of Cope- 
land. 

The testimony on the part of the prosecution bearing on 
the taking of the life of Von Phul is substantially as follows: 
Several persons, including Von Phul, Copeland and the de- 
fendant, were in the bar-room of the Brown Palace hotel. 
The latter and others with him, at his invitation, were about 
to take a drink at the bar. Von Phul and a friend or acquaint- 
ance of his were also standing at the bar, waiting to be 
served. After the defendant had ordered the drinks for his^^j^ 

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190 Kenwood v. The Peopia [54 Colo. 

guests, he approached Von Phul, to whom he made a re^ 
mark, which the witnesses for the people did not hear or un- 
derstand, when Von Phul turned, and with his fist struck him 
in the face, knocking him down, his head, as one of the wit- 
nesses for the people expressed it, striking the floor "hard." 
As to what then occurred the witnesses do not altogether 
agree. On behalf of the prosecution, the testimony is to the 
eflfett that Von Phul, after knocking the defendant down, 
turned his back upon him, and faced the bar-tender; that he 
did not attempt to pursue the defendant, or to draw a re- 
volver, or put his hand to his hip pocket, or make any demon- 
stration, that he intended to pursue the defendant; that the 
latter raised from the floor and attempted to draw his re- 
volver; that it caught in his clothing; that he unfastened it; 
that two men seized and tried to prevent him from shooting ; 
that he pushed both aside, and commenced to shoot at Von 
Phul, and that during this time Von Phul did not advance on 
defendant, or make any hostile demonstration whatever. The 
defendant testified that on the afternoon preceding the shoot- 
ing, he had gone to Von Phul's room in the Brown Palace 
hotel, where they were both guests, for the purpose of induc- 
ing him to return letters a woman had written to Von Phul, 
and which she had commissioned him to obtain; that on this 
occasion Von Phul struck him on the left temple with a shoe- 
tree, and drew a revolver, saying that he would kill the de- 
fendant if he were armed, but as be was not, wouldn't do so 
because, as Von Phul expressed it, "They would have it on 
me." The defendant, also, testified that on the following 
day, and preceding the night of the encounter in the bar-rocxn, 
he was informed that Von Phul had threatened to kill him; 
that these threats were communicated to him orally, and by a 
note written by the woman mentioned, and that after learning 
of these threats, he purchased the revolver with which he did 
the shooting. With respect to the affray in the bar-room, 
the 'defendant testified that Von Phul entered the room with 
a friend after he did, and stood at the bar talking with this 

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Jan., '13.] Henwood v. The People. 191 

friend; that he changed positions, which brought the defend- 
ant and Von Phul quite close; that he, the defendant?, then 
said to Von Phul, "Won't you consider what happened yes- 
terday afternoon," to which Von Phul replied : "I am going 
upstairs and I am going to grab that grey-haired (using a 
foul epithet) by the hair and pull him out of there, and show 
him who is master here;" that he, the defendant, then said: 
"I am not going to allow you to get that over me," and that 
Von Phul then said : "I will get you first, you understand," 
following this remark with a blow with his right hand on the 
point of defendant's chin, which felled him to the floor and 
dazed him for a minute. As to what then occurred, the de- 
fendant stated: "As I lifted myself up from the ground, I 
remember this part, and that was, to see that man reach for 
the gun. I am sure he reached for it, and it was only a move- 
ment on my part to protect my life, and I pulled my pistol and 
shot him. I fired all the shots the gun contained, but I don't 
know how many." In brief, as we understand the testimony 
of defendant, it is, that as he was rising from the floor, Von 
Phul looked at him, and placed his right hand at his hip 
pocket as though to draw a revolver, and that for this reason, 
he drew his weapon and fired at Von Phul. Three of the 
shots fired struck Von Phul, one in his right wrist and the 
other two in his back. The defendant also testified he thought 
Von Phul was armed. There was testimony on the part of 
the people to prove that he was not, and probably some evi- 
dence tending to prove that the defendant knew he was not. 
The bar-tender testified that Von Phul stepped from his 
friend's left to his right: that this change of position placed 
him next to the defendant : that Von Phul asked his friend to 
be permitted to make this change, saying to him : "There is 

a dirty : I licked him once, and will lick him 

again, but he won't fight." This witness also stated : "Hen- 
wood did not go over to Von Phul : Von Phul went over to 
Fen wood," and that Von Phul was looking at the defendant 
at the time the shots were fired. Another witness on behalf 



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192 Henwood v. The Peopi^e. [54 Colo. 

of defendant testified that Von Phul, after knocking the de- 
fendant down, was almost facing him, with his right hand on 
his hip pocket, when the defendant commenced shooting; 
while a third witness for the defendant testified that Von 
Phul, after knocking defendant down, looked at him with a 
sneer, and had one hand resting on the bar and the other on 
his hip, and that at the time the defendant was drawing his re- 
volver, Von Phul was looking directly at him. There was 
also testimony on the part of the people to the effect that de- 
fendant had threatened to kill Von Phul. This the defendant 
denied. The testimony stands undisputed that the defendant 
did not fire a single shot until after he was knocked down, 
and that he commenced shooting as soon thereafter as he 
could draw his revolver. 

The court instructed the jury on the law of murder in 
the first and second degree, and also on the law of self-de- 
fense, but stated to the jury : "There is no manslaughter in 
this case.*' 

Sections 1625 to 1628, inclusive, R. S., 1908, are as fol- 
lows: 

"Manslaughter is the unlawful killing of a human being 
without malice, express or implied, and without any mixture 
of deliberation whatever. It must be voluntary, upon a sud- 
den heat of passion caused by a provocation apparently suffi- 
cient to make the passion irresistible, or involuntary in the 
commission of an unlawful act, or a lawful act without due 
caution or circumspection." 

''In cases of voluntary manslaughter there must be a 
serious and highly provoking injury inflicted upon the person 
killing, sufficient to excite an irresistible passion in a reason- 
able person, or an attempt by the person killed to commit a 
serious personal injury on the person killing." 

"The killing must be the result of that sudden, violent 
impulse of passion supposed to be irresistible, for if there 
should appear to have been an interval between the assault or 
provocation given and the killing sufficient for the voice of 

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Jan.,/i3J Kenwood v. The Pkopia 193 

reason and humanity to be heard, the killing shall be at- 
tributed to deliberate revenge, and punished as murder." 

"Involuntary manslaughter shall consist in the killing of 
a human being without any intent so to do; in the commission 
of an imlawful act, or a lawful act, which probably might pro- 
duce such a consequence in an unlawful manner, provided al- 
ways, that where such involuntary killing shall happen in the 
commission of an unlawful act, which, in its consequences, 
naturally tends to destroy the life of a human being, or is 
committed in the prosecution of a felonious intent, the offense 
shall be deemed and adjudged to be murder." 

These statutory provisions are a recognition of the 
frailty of human nature, the purpose of which is to reduce a 
homicide committed in the circumstances therein contem- 
plated to the grade of manslaughter, either voluntary or in- 
voluntary^ as the facts may warrant. From the statutes above 
quoted it appears that the unlawful killing of a human being, 
without malice and deliberation, upon a sudden heat of pas- 
sion caused by a provocation apparently sufficient to excite an 
irresistible passion in a reasonable person constitutes man- 
slaughter; and that involuntary manslaughter may consist in 
the taking of a human life without any intent so to do in the 
commission of a lawful^act without due caution or circum- 
spection. 

The information charged murder in the first degree, and 
therefore, included all the lower grades of criminal homicide. 
If there was no evidence upon which a verdict of manslaugh- 
ter could be based, then the trial court was justified in in- 
structing the jury to that effect. On the other hand, if there 
was evidence relevant to the issue of manslaughter, its credi- 
bility and force were for the jury to consider in determining 
the facts, and not as a matter of law for the decision of the 
court. — Crawford v. People, 12 Colo. 290; Stevenson v. 
United States, 162 U. S. 313. 

So that, whether it was proper to withdraw from the 
jury the question of the guilt of the defendant of any particu- 

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194 Henwood v. THJi PEOPirE. [54 Colo. 

lar grade of the offense included in the infonnation, must be 
answered by considering whether there was any evidence 
tending to establish' such grade. — Allison v. State, 86 S. W. 
(Ark.) 409. 

The evidence shows without question that immediately 
preceding the shooting the defendant and Von Phul were en- 
gaged in a conversation in a public bar-room, where many 
were present; that Von Phul knocked defendant down with 
his fist by a blow so violent that defendant struck the floor 
with great force, his head striking "hard," and that as de- 
fendant raised up he drew a revolver and commenced firing 
at Von Phul. This statement of what occurred shows cir- 
cumstances tending to excite a "sudden heat of passion." 
Whether they amounted to the statutory "provocation" and 
were sufficient to cause passion on the part of the defendant 
which the statute denominates "irresistible," was not for th^ 
court to determine, either as a question of law or of fact, but 
one of fact for the jury to determine from the evidence in the 
case. The defendant claimed to have fired the shots at Von 
Phul with the intention of striking him for the purpose of 
protecting his life. If the facts justified him iii so doing, his 
action in this respect would be lawful ; but if he did so with- 
cait due caution or circumspection, taking into consideration 
the presence of others in the bar-room, he was not guiltless, 
I)ut might be adjudged guilty of in voluntary manslaughter in 
causirg the death of Copeland ; but with the question of man- 
slaughter taken from the jury, there was nothing left for 
them to do but to find him guilty of murder, when they 
found, as they evidently did, that defendant was not justified 
in firing the shots in self-defense, thus depriving them of 
their exclusive province to determine the grade of the offense 
from the evidence in the case, notwithstanding that there was 
evidence upon which a verdict of manslaughter might have 
been based. 

We do not mean to intimate what the verdict should 
have been, but as there was not an entire absence of evidence 

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Jan., '13.] Kenwood y. The PEOPue. 195 

tending to establish the crime of manslaughter, it was error 
for the court to take that question from the jury by instruct- 
ing them "that there is no manslaughter in this case." 

Counsel for the prosecution insist that it was not error 
to so instruct, for the reason the defendant stated that at the 
time he shot at Von Phul he had no feeling of either passion 
or revenge. An examination of the record convinces us that 
what the defendant meant by this statement was, that he had 
no feeling of passion or revenge when he purchased the re^ 
volver, and was not referring to the time when he fired the 
shots at Von Phul. It is also contended on behalf of the peo- 
ple, that as the defendant testified he shot to protect his life, 
manslaughter was not involved. In other words, the conten- 
tion is, that defendant, having claimed that he acted in self- 
defense, he is precluded from asserting that the shooting was 
done under circumstances which reduce the homicide to man- 
slaughter. In the circumstances of this case, we do not re- 
gard this contention as tenable, as there was evidence tending 
to prove that the homicide was manslaughter. 

In Stevenson v, U. S., supra, the testimony tended to 
establish that the deceased, by his conduct, had provoked pas- 
sion on the part of the defendant, and also that the latter had 
acted in self-defense. There, as here, it was urged that the 
two defenses were incompatible. On that subject the court 
said (at page 322) : 

"It is objected that while the evidence above set forth 
was proper to be submitted to the jury upon the issue of self- 
defense, it was not of that character to even raise an issue as 
to the grade of the crime, if the theory of self-defense were 
not sustained. We do not see the force of the objection. The 
fact that the evidence might raise an issue as to whether any 
crime at all was committed is not in the least inconsistent with 
a claim that it also raised an issue as to whether or not the 
plaintiff in error was guilty of manslaughter, instead of mur- 
der. It might be argued to the jury under both aspects, as 
an act of self-defense and also as one resulting from a sudden 

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196 Kenwood v. The People. [54 Colo. 

passion, and without malice. The jury might reject the 
theory of self-defense as they might say the shot from the 
pistol of the deceased had already been fired, and the plaintiff 
in error had not been harmed, and therefore firing back was 
unnecessary and was not an act of self-defense. But why 
should the other issue be taken from the jury, and they not be 
permitted to pass upon it as a question of fact." 

As there was testimony tending to prove that defendant 
acted under the influence of passion provoked by Von Phul, 
and that he also acted in self-defense, we think the rule an- 
nounced in Kent v. People, 8 Colo. 563, applicable, which is 
to the effect that the defendant was entitled to have the entire 
res gestae laid before the jury, to be considered as a whole, 
without distinction as to which party introduced the several 
matters of evidence. 

In this connection the Craufford case, supra, is in- 
structive. In that case chief justice Helm, after stating what 
had occurred between the deceased, his father, who was with 
him, and the defendant, from which it appeared there was an 
affray between the parties, stated what then occurred as fol- 
lows : 

"That in the confusion and excitement, and further in- 
censed by these additional epithets, defendant took a small 
shotgun loaded with a single charge of fine shot, and went to 
the door, not designing, as he asserts, to take the life of 
Pratt, but with a view of defending himself and protecting 
his premises. The gun was, however, discharged, and the 
son was unintentionally killed." 

The trial court had refused to instruct on manslaughter. 
In the opinion, the learned chief justice, after enumerating 
instances when it would be proper to withdraw from the con- 
sideration of the jury the question of the grades of man- 
slaughter, said: 

"But where there is an affray, and where self-defense is 
a defense relied on, the court exercises an exceedingly dan- 
gerous prerogative in refusing to charge upon the minor, as 

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Jan.. '13.] Henwood v. The Peopus. 197 

well as the graver, offenses covered by the indictment. 
* * ♦ By statute the accused in criminal cases is permit- 
led to become a witness, and when once upon the stand, all 
the ordinary rules of evidence apply to him. He is subject to 
cross-examination; his testimony may be impeached; the cir- 
cumstances under which he testifies may be considered; and 
perjury on his part can be as readily disclosed as in the case 
of other witnesses. The jury are to give his testimony such 
credit and such weight as, in their judgment, shall, under all 
the circumstances, be proper. They may accept it as true, or 
they may reject it as false. * * * ' The evidence shows 
without question that at the time of the homicide there was a 
quarrel between defendant and Gideon Pratt, followed by an 
affray, during which violent, profane and angry words were 
used by both parties, and in which they engaged in a physical 
rencounter of considerable duration, grappling and exchang- 
ing blows. The firing of the fatal shot grew out of this af- 
fray, and was directly connected with, and a part of it. There 
were circumstances tending to excite a "sudden heat of pas- 
sion." Whether such circumstances amounted to the statu- 
tory "provocation" or caused the passion which the statute 
denominates "irresistible," was not for the court to deter- 
mine." 

It is also urged by the prosecution that if there was a 
preconceived designed on the part of the defendant to kill Von 
Phul, the homicide was murder, notwithstanding the fact that 
there was provocation. This contention is based upon the 
fact that defendant had purchased a revolver after the diffi- 
culty in Von Phul's room, and the testimony to the effect that 
defendant had threatened to kill Von Puhl. We cannot de- 
termine as a fact that defendant sought Von Phul in the bar- 
room with the intention of taking his life. The defendant 
did buy a revolver the day preceding the shooting. He says 
he bought it for his protection.' There was evidence on the 
part of the people that he had threatened to kill Von Phul. 
This the defendant denied, so that whether he sought out 

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198 Kenwood v. The PeopW. LS4 Colo. 

Von Phul for the purpose of taking his life, and pursuant to 
a preconceived design to do so, shot him, or whether he spoke 
to him without such design, and the shooting was the result 
of such a degree of passion caused by a provocation on the 
part of Von Phul as would reduce the homicide to man- 
slaughter, were questions for the jurjr to determine, and 
neither the trial court nor this court can invade that province. 

Counsel for the people cite many cases wherein it is held 
that the trial court did not err in taking the question of man- 
slaughter from the jury. It can serve no useful purpose to 
review them. They are all based on the" principle that when 
there is no evidence to establish manslaughter it is not error 
to take that question from the jury, and point out from the 
testimony in each of the cases, that such was the fact. This 
constitutes the distinguishing feature between these cases and 
the one at bar. All authorities, both text writers and re- 
ported cases, uniformly hold that where there is testimony 
tending to prove manslaughter, it is error to refuse to in- 
struct the jury on that offense, or by an instruction, to take 
th^t question from them, for the reason, as held in the Stev- 
jenson case, supra, (quoting from the syllabus) : 

"On the trial of a person indicted for murder, ^although 
the evidence may appear to the court to be simply overwhelm- 
ing to show that the killing was in fact murder, and not man- 
slaughter, or an act performed in self-defense, yet, so long as 
there is evidence relevant .fo the issue of manslaughter, its 
credibility and force are for the jury, and cannot be matter 
of law for the decision of the court" 

In Rutherford v. The State, 16 Texas Court of Appeals 
649, the case had once been before that court, and reversed 
for the reason that the trial court had refused to give an in- 
struction on manslaughter. At the second trial the trial judge 
again refused to instruct on this subject. In reviewing the 
case a second time, the appellate court said : 

"We still think that a charge upon the law of man- 
slaughter is demanded by the evidence. We have never held. 

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Jan., '13.] Henwood v. The People. 199 

as the karned judge seems to think we have, that the evidence 
would justify a verdict for manslaughter. It was not, and it 
is not, our province to determine that question when consider- 
ing the law of the case, nor was, or is it, the province of the 
trial judge to determine that question when instructing the 
jury. That was a question exclusively for the jury to de- 
cide. His idea seems to be that if the evidence, in his opin- 
ion, would not justify a verdict of manslaughter, then he 
ought not to charge the law of that offense. Such is not the 
rule of the law. If there is evidence in the case tending to 
raise the issue of manslaughter, it is the duty of the trial 
judge to charge the law of that offense, regardless of his own 
opinion as to whether or not such evidence would justify a 
conviction for said offense. It is the business of the jury, 
and not the court, to pass upon the sufficiency of the evidence. 
Our constitution and laws guarantee a citizen charged with 
felony the right of trial by jury, and it is made the duty of 
the jury, and not of the judge, to pass upon the credibility of 
the witnesses and determine the weight of the testimony. 
* * * When the judge assumes the power of determining 
the sufficiency of the evidence to support an issue presented 
by it, and refuses to charge the law relating to that issue, he 
invades the exclusive province of the jury, and denies to the 
citizen on trial the full benefit of the trial by jury, and thus 
deprives him of a trial by due course of the law of the land." 
The results of the affray between Von Phul and the de- 
fendant are deplorable in the extreme, but this did not de- 
prive the defendant of the right to have his guilt or innocence 
determined by a jury according to the law of the land. The 
constitution and laws of the state provide for the trial of a 
person charged with murder by a jury. They, and they 
alone, must determine the facts, and no court, either trial or 
appellate, has a right to constitute itself a trier of facts, and 
thus invade the province of a jury. 'No matter how lightly 
the court may regard the testimony offered on behalf of the 
defense, the question of its weight and the credihih'tv of the 



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200 Loth v. Loth's Estate. [54 Colo. 

witnesses is to be determined by the jury, properly instructed 
as to the law. Unless this course is followed, a defendant is 
deprived of his constitutional right of a trial by jury. It is 
manifest there was testimony tending to prove manslaughter. 
Whether or not is was sufficient to justify a verdict of that 
character was for the jury to determine, and not the court. 
By advising the jury that there was no manslaughter in the 
case, the trial judge deprived the defendant of his unques- 
tioned right guaranteed by the fundamental and statutory 
law of the state, to have a jury determine the g^ade of the of- 
fense for which he was on trial. 

The judgment of the district court is reversed, and the 
cause remanded for a new trial. 

Reversed and Remanded. 

Decision en heme. 

Mr. Justice Scott not participating. 



[No. 7739.] 
Loth v. Loth's Estate. 

DiYOBCB — Foreign Marriage within the Tear—A woman residing 
in Colorado is divorced, the decree expressly prohibiting re-marrlage 
within a year, save to the divorced husband. Within the year she 
resorts to the territory of New Mexico and is there united In mar- 
riage with a citizen of Colorado, not the former husband. The mar^ 
riage being lawful in New Mexico, is lawful in Colorado. 

Error to Denver County Court. — Hon. John R. Dixon, 
Judge. 

Mr. Paul De Laijey and Mr. James A. Harris, for 
plaintiff in error. 

Mr. Robert H. Kane, for defendant in error. 

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Jan., '13.] Loth v. Loth's Estate. . 201 

Mr. Justice Hnju delivered the opinion of the court : 

Carl L. Loth departed this life at the city and county of 
Denver about September the ist, 191 1; he was possessed of 
certain real and personal property situate in said county. 
Upon September i8th following, Alice G. Loth filed her peti- 
tion in the county court setting forth the matters. above stated, 
with the further facts that she was his wife and sole and only 
heir at law, upon account of which she prayed that letters of 
administration be granted to her. This petition was resisted 
by a sister of the deceased, under the claim that the petitioner 
was not the widow of the deceased, that she was never legally 
married to him. The court denied the petition of the alleged 
wife and appointed Henry B. Teller as administrator. The 
wife brings the case here for review upon error. 

If the plaintiff in error was the lawful wife of the de- 
ceased (no other objection having been presented), it is 
agreed that she was entitled to the appointment; if not, the 
order of the court was correct. The record discloses, that the 
plaintiff. in error was formerly the wife of Daniel B. Hayne; 
that on June i6th, 191 1, while she was a resident of Denver, 
she was granted a decree of divorce from Hayne by the 
county court of said county; that no application has ever been 
made to 5et the decree aside. This decree is absolute in form, 
and is not shown to be irregular or void. It contains the 
usual clause concerning re-marriage within a year, as follows, 
**That until the expiration of the full period of one year from 
after the day of the date hereof, neither of said parties be per- 
mitted to re-marry to any other person." Thereafter, upon 
July 2ist following, the plaintiff in error and Carl L. Loth, 
since deceased, (while both were residents of Colorado) at 
the county of San Juan in the territory of New Mexico, se- 
cured a marriage license, and were married in full conformity 
with the laws of that territory. The sole question necessary 
for determination is the validity of the marriage contract en- 
tered into in New Mexico within one year from the date of 

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202 Loth v. Loth's Estate. [54 Colo. 

the decree of divorce dissolving the bonds of matrimony 
theretofore existing between the plaintiff in error and her 
first husband. Its determination depends upon the construc- 
tion of section 2122, Revised Statutes of 1908, and its effect 
upon marriage contracts in another state (recognized as valid 
there) when considered in connection with section 4165 of 
said statutes. 

This identical question was recently passed upon by our 
court of appeals in case No. 3591, Adam H, Griswold v. Hat- 
tie B. Griswold, wherein for the reasons stated it was held 
that such a marriage was valid in this state. We have given 
that opinion careful consideration and have reached the con- 
clusion that it states the correct rule upon the subject; we add 
our approval thereto; the reasoning and conclusion arc ap- 
plicable here. We think it unnecessary to add anything to 
the reasons given ; they cover the question in its entirety. It 
follows that the marriage contract solemnized in New Mex- 
ico is valid, in this state upon account of which plaintiff in 
error was the lawful wife of the deceased at the time of his 
death and should have been appointed administratrix of his 
estate. 

The judgment is reversed and the cause remanded with 
instructions that the former administrator be discharged and 
that the plaintiff in error be appointed administratrix of said 
estate. Reversed. 

Decision en banc. 



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Jan., '13.] Denver v. Pitcher. 203 

[No. 7981.] 

City and County of Denver v. Pitcher. 



[No. 7982.] 

The Colorado Tax Commission v. Pitcher. 

1. Taxation — The Purpose of the FroviHons of the Constitution 
and Statute Regulating the AsMessment of Property^ is to secnre nni- 
formlty of taxation In each county of the state, for county purposes, 
and enable the commissioners in each county to determine the rate 
of tax necessary to meet the expenses of the county for the ensuing 
fiscal year. The proTisions of the charter of the city and county of 
Denyer, regulating the same matters, were enacted with a like pur- 
pose. 

2. Aasesament Roll — When Complete— The assessor may, at 

any time before the meeting of the county hoard of equalization, cor- 
rect the assessment of any exempt property, the double assessment of 
the property of any tax-payer, or the assessment to a tax-payer of 
property of which he was not the owner at the time of the assessment, 
or any excessive assessment. He may also at any time before the re- 
turn of the roll to the treasurer, supply clerical omissions and cor- 
rect clerical errors in the roll, where it can be ascertained therefirom 
what was intended. He may supply such omissions as come to the 
notice of the county commissioners of his county, or, in Denter, those 
to which his attention is directed by the board of supervisors acting 
as a board of equalization. But where he has delivered to the audi- 
tor of state the abstract of the assessment roll required by Rev. Stat., 
sec. 6659, the roll is deemed complete, and thereafter the assessor may 
make only those changes which are expressly authorized by the 
statute. 

A horizontal reduction in the assessment thereafter attempted, is 
without authority of law. 

3. Injunction — Against PubHc Officer — If a public officer is 
transcending his authority, and the resulting injury is not susceptible 
of reparation by proceedings at law, he may be restrained by injunc- 
tion. 

An injunction awarded to restrain an assessor from making an 
unlawful reduction in the assessment roll after its completion. 

The provisions of Rev. Stat, sec. 5636, were held to be without 
application. 



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204 Denver v. Pitcher. [54 Colo. 

^rror to Deliver District Court, — Hon. Greeley W. 
Whitford^ Judge. 

Mr. VV. H. Bryant, Mn J. A. Marsh and Mr. Paul 
Knowles, for the city and county of E>envcr. 

Hon. Fred Farrar, attorney general, Mr. Frank C. 
West, assistant attorney general, Mr. Norton Montgom- 
ery, assistant attorney general, and Mr. Philip W. Moth- 
ERSiLL, for the Colorado tax commission. 

Mr. Fred W. Parks, attorney for defendant in error. 

The defendant in error in each of these cases is the as- 
sessor of the city and coiinty of Denver. He was engaged in 
making a horizontal reduction of ten per cent, on the valua- 
tions of property theretofore assessed, valued and listed by 
him for the year 191 2, and extending the tax roll accordingly, 
when each of the plaintiffs in error brought an action to re- 
strain him from so doing, and for such other, further and 
general relief as to the court should seem meet and proper in 
the premises. In the case of the city and county of Denver an 
ex parte restraining order was issued by the district court. 
The defendant filed a general and special demurrer in each 
suit, which was sustained, and the restraining order in the 
one case dissolved, and denied in the other. Thereupon, the 
plaintiffs in each case stood upon their respective complaints, 
and their actions were dismissed. The plaintiffs have brought 
their respective actions here for review on error, and sever- 
ally ask for a restraining order against the assessor tintil the 
causes can be determined on their merits. Both parties ap- 
peared at the oral argument, and stipulated that the argu- 
ments on the application for the restraining orders asked for 
by the plaintiffs should be treated as arguments ,on the merits, 
and that the causes should stand submitted for final deter- 
mination. As the causes present practically the same ques- 
tions, they will be disposed of in one opinion. 



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Jan.,/ 1 3-] DENVEjt V. Pitcher. 205 

On behalf of the city and county of Denver the complaint 
filed in the court below alleged, in substance: That the plain- 
tiff is, and at all times mentioned, Was; a municipal corpora- 
tion, existing by virtue of the constitution and laws of the 
state of Colorado; that the defendant is, and at all times since 
June first, 1912, has been, the duly elected, qualified and act- 
ing assessor of the city and county of Denver, and has at all 
times since that date had, and now has, the actual possession, 
custody and control of the office of the assessor, and of all 
books, records, matters and things pertaining to that office; 
that, pursuant to law, and prior to August ist, 1912, he made 
and caused to be made an assessment of the real and per- 
sonal property within the city and county of Denver, and 
thereafter, and on or about the first Tuesday in August, 19 12, 
met with the assessors of the different counties of the state, as 
provided by law, and compared his assessment with the as- 
sessments of the property in other counties of the state, and 
after such comparison, did not change or correct his assess- 
ment, as theretofore made; that he made an assessment roll 
of the property in the city and county of Denver, and on or 
about August 30th, 19 12, produced an abstract of his assess- 
ment roll and subscribed and swore thereto, at the city of 
Boulder, in the presence of the auditor of state, which as- 
sessment roll showed a total valuation of the property within 
the city and county of Denver, subject to assessment, in the 
sum of $133,835,120.00; that after the authentication of such 
assessment roll, the auditor of state presented it to the state 
board of equalization, and to the Colorado tax commission, 
and thereafter, and prior to October ist, 1912, the state board 
of equalization held a meeting for the purpose of adjusting 
and equalizing the valuation of real and personal property 
among the several counties of the state; that at this meeting 
no objection or complaint was made by the defendant, or any 
one, to the assessment made by the defendant, as verified be- 
fore the auditor of state; that the Colorado tax commission, 
after the presentation to it of such assessment roll, held vari- 

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2o6 Denver v. Pitcher. [54 Colo. 

ous meetings for the purpose of examining the assessment of 
the real and personal property in the several counties, as made 
by the respective assessors, and certified the same to the state 
auditor, as provided by law ; that neither the board of equali- 
zation nor the tax commission made any change or correction 
in the assessment made by the defendant, nor requested him 
to make any change or correction ; that during the month of 
September, 191 2, the board of supervisors of the city and 
county of Denver sat as a board of equalization ; that at such 
meetings only two complaints upon petition were presented 
to the board of equalization with respect to the assessment 
made by defendant, which, after a hearing, were denied ; that 
after the assessment roll for the year 19 12 prepared by de- 
fendant was ready for the extension of taxes, he certified the 
total amount of property assessed within the limits of the city 
and county of Denver to the city council, showing the assess- 
ment so made by him, and also the assessment upon the prop- 
erty of telegraph, telephone and railroad companies, as certi- 
fied to him by the tax commission, and that thereafter the 
council passed an ordinance, levying taxes on all taxable prop- 
erty within the limits of the city and county of Denver for the 
year 1912, which was duly and r^fularly passed, and signed 
and approved by the mayor; that at various times subsequent 
to the acceptance by the state board of equalization and Colo- 
rado tax commission of the assessment of real and personal 
property, made by defendant, and prior to December 20, 19 12, 
the auditor of state and state treasurer issued warrants in pay- 
ment of appropriations theretofore made by the general as- 
sembly, which warrants were based upon, and in anticipation 
of, the revenues to be derived from taxes collected upon prop- 
erty within the city and county of Denver, in accordance with 
the assessment made by the defendant; that on December 2, 
1912, the mayor of the city and county of Denver presented 
to the council what is known as the "mayor^s budget" for the 
year 1913, which budget was based upon the revenue to be 
derived from taxes collected in accordance with the assess- 

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Jan., '13.] Denver v. Pitchee. 207 

nicnt so made by defendant, and the appropriation ordinance 
for the city and county of Denver during the year 1913; that 
on or about the 20th day of December, 1912, the defendant 
wrote to the auditor of state a letter, notifying him that, he 
desired to withdraw the assessment theretofore made by him, 
and that he had concluded to make a horizontal reduction of 
ten per cent, of all assessments under his jurisdictioij, and 
notified the auditor that the assessed valuation of the property 
within the city and county of Denver for the year 1912 would 
be reduced ten per cent., and would stand at, approximately, 
$121,709,835.00; that at about the same time the defendant 
notified the mayor of the city and county of Denver of his 
proposed horizontal reduction on the assessment of property 
within his jurisdiction; that defendant has not delivered to 
the treasurer of the city and county of Denver the tax list and 
warrant under his hand and official seal, setting forth the as- 
sessment roll, with the taxes extended, and is proceeding to 
prepare a tax list and warrant, setting forth the valuation ar- 
rived at by a horizontal reduction of ten per cent, from the 
valuation and assessment made and certified by the defend- 
ant to the auditor of state and city council. 

The complaint then charged that certifying and deliver- 
ing to the treasurer the tax list and assessment roll and war- 
rant prepared in accordance with the proposed horizontal re- 
duction of assessments will subject the government of the city 
and county of Denver and that of the state to great embar- 
rassment and difficulties; would create unutterable confusion 
in the administration of the financial department of these gov- 
ernments in the collection of taxes, and will cause delay in 
such collection, and that, as plaintiff is informed and believes, 
the assessor, through persons acting under his direction and 
control^ has for some time past been working in making the 
horizontal reduction of ten per cent., and extending taxes 
based thereon, to the end that the tax list and warrant for the 
collection of taxes may be delivered by him to the treasurer 
of the city and county of Denver before any order of court. 



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2o8 Denver v. Pitcher. [54 Colo. 

commanding him to desist therefrom, can be applied for aind 
secured. 

The complaint on behalf of the Colorado tax commis- 
sion, after alleging that it is created by the laws of the state, 
and is authorized to bring in its own name such suits as are 
necessary to enforce all laws of the state for the assessment, 
levying and collection of taxes, alleges substantially the mat- 
ters set up in the complaint of the city and county of Denver. 

To each of these complaints the defendant filed a special 
demurrer based upon the ground that the court was without 
jurisdiction of the subject matter of the action, in that the 
statutes provide a method of procedure for the hearing and 
trial of the questions set up in the complaint, and that no 
showing is made that the plaintiff has or has hot availed 
itself of these statutory provisions; that the defendant is a 
public officer of the city and county of Denver and state of 
Colorado, and that the acts which the plaintiff is seeking to 
enjoin him from performing are acts required of him by the 
statutes of the state; and that the defendant is a constitutional, 
and state officer, performing duties of a quasi judicial nature, 
and the effect of the relief sought is to control him in the ex- 
ercise of his official functions of a governmental and execu- 
tory nature, and prevent him from exercising his discretion 
and judgment in the matter of assessment. The defendant 
also demurred upon the ground that the respective complaints 
did not state facts sufficient to constitute a cause of action. 

In this court each plaintiff has filed what is denominated 
a petition for a temporary injunction or restraining order. 
To these petitions the defendant has answered, and also de- 
murred, and the respective plaintiffs have demurred to the 
answer. We do not deem it necessary to give a S3mppsis of 
these pleadings, as the case must be determined on the plead- 
ings presented to the trial court, and not on new plead- 
ings filed here. In determining the questions presented, it is 
necessary to consider the following constitutional, statutory 
and charter provisions : 

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Jan., '13.] Denver v. Pitcher. 209 

"There shall be elected in each county, at the same time 
at which members of the general assembly arc elected, com- 
mencing in the year 1904 * * * one county assessor 

* * *." Art. XIV, sec. 8, constitution. 

"All taxes shall be uniform- upon the same class of sub- 
jects within the territorial limits of the authority levying the 
tax, and shall be levied and collected under general laws, 
which shall prescribe such regulations as shall secure a just 
valuation for taxation of all property, real and personal 

* * V Art. X, sec. 3 ifrirf. 

"On the first day of January in each year, or as soon 
thereafter as practicable, the assessor or his deputy shall call 
upon each inhabitant of his county, at the residence or place 
of business of such inhabitant, and deliver or leave for him or 
her the proper blanks for the return of the property of such 
inhabitant for assessment * * *. Every such inhabitant 
shall make and deliver to the assessor, between the first day 
of April and the 20th day of May in each year a full and cor- 
rect schedule and description upon the blanks furnished as 
aforesaid of all the personal property of which such person 

was the owner on the first day of April of the current year 

* ♦ * " 

''In every such schedule and description the person mak- 
ing the same shall set down the full cash value of each item 
of the property therein mentioned for the guidance of the as- 
sessor. But the assessor shall determine for himself the value 
of each item after an examination of the schedule. * * .'^ 
Sec. 5573, R. S., 1908. 

"At the hour of ten o'clock A. M. on the first Tuesday in 
August in each year, all the county assessors of this state 
shall meet at the capitol, and the auditor of state shall provide 
a place for them to meet, where they may have opportunity to 
compare their assessments before making affidavit thereto, 
and if, upon such ccmparison, and from other information ob- 
tainable, any assessor is satisfied that his valuation of any 
class of property is too high or too low, and that it does not 

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2IO Denver v. Pitcher. [54 Colo. 

<:orrectly set forth the proper value thereof, it shall be his duty 
to correct the same and thereafter make affidavit thereto, as is 
required by section 84 of this act. * * f .*' Section 5633 
ibid, 

"The assessor of each -county of the state, except as- 
sessors of counties having more than one hundred thousand 
population, upon the completion of the assessment toll in each 
year, and prior to the endorsement of the tax list and warrant 
thereon, and on or before September first of each year, shall 
produce the abstract of the same in person, and not by deputy, 
to the auditor of state, and he shall there, in the presence of 
the auditor, subscribe his name to the following statement, 
which shall be appen<J?d to said assessment roll and constitute 
a part thereof, to-wit : 
State of Colorado, County of ss. 

I, , the assessor of 

t:ounty, Colorado, do solemnly swear that in the above and 
foregoing assessment roll I have assessed all the taxable prop- 
erty in the county for the current year and 

at the true value thereof. 



Subscribed and sworn to before me this day of 

, A. D. 19.... 



Auditor of State. 

The assessor so subscribing the statement aforesaid shall 
thereupon be sworn to the truth of the facts set forth in said 
statement by the auditor. The auditor is authorized to ad- 
minister the oath to said assessor, so subscribing said state- 
ment. * * * *." Sec. 5628 ibid. 

Immediately a'fter the assessment is completed, and the 
affidavit provided for in section 84 hereof (sec. 5628, supra,) 
is subscribed by the assessor and sworn to before the auditor 
of state, the county assessor shall make out an abstract thereof 
stating in detail the following facts with reference to the as- 
sessment in his county: (Then follow directions as to what 

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Jan., '13-] Denver V. Pitcher. 211 

such details shall exhibit, which are to the effect that the as- 
sessor shall state in such abstract the amount, kind and value 
of the property possessed in his county, and provides:) The 
said abstract the county assessor shall make out in duplicate^ 
and transmit one copy forthwith to the auditor of state. The 
state board of equalization is authorized to diminish or add to 
the above list and to require such different or further matters 
to be returned as it may deem advisable." Sec. 5659 ibid. 

"The auditor of state, upon receipt of the abstract of as- 
sessment from any assessor, shall, without delay, examine the 
same, and if found to be correct, shall send the assessor a cer- 
tificate stating the fact therein." Sec. 5662 ibid. 

"The state board of equalization shall sit on the first 
Monday of October in each year, at the executive office, for 
the purpose of examining, adjusting and equalizing the as- 
sessments in the several counties of the state." Sec. 5764 
ibid. 

"If, in the opinion of the state board of equalization,, 
upon satisfactory information submitted, any county assessor 
has omitted taxable property in his county from the abstract 
of assessment, or has assessed the property of his county pal- 
pably and manifestly below its true value, or has failed to 
verify his return, as herein required, and if said state board 
of equalization is likewise of the opinion that such delin- 
quency operates as a fraud upon the state revenues, and that 
such revenues will be seriously impaired thereby, then and in 
such case the state board of equalization shall, upon reason- 
able notice to the assessor, and after summary hearing, require 
the delinquent assessor to forthwith make such corrections 
and additions to the said assessment as will make the same 
in accordance with the statutes * * * provided that ift 
such case, before any such corrections or additions to said as- 
sessment shall be required, if desired by the assessor, he may 
have an appeal from the decision of the state board of equali- 
zation to the district court of the county of which he is the 
assessor. * * *." Sec. 5636 ibid. 

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?2i2 Denv^ V. Pitcher. [54 Colo. 

"Immediately upon the receipt by the assessor of each 
county of the statement of changes in the assessment of his 
<:ounty made by the state board of equalization, he shall im- 
mediately make such correction of the assessment and assess- 
ment roll as may be necessary to carry out the directions of 
the state board of equalization." Sec. 5664 ibid. 

"On or before the third Monday of October in each year 
the board shall complete the equalization, and the state auditor 
ahall transmit to the clerk of each county a statement of the 
changes, if any, which have been made in the assessment, and 
the rate of tax which is to be levied and collected within his 
county, which shall not exceed the limit permitted by the con- 
stitution; * * * and the assessor of each county, in 
making up the tax list, shall compute and carry out in the 
proper column, a state tax at the rate aforesaid * * *." 
Sec. 5767 ibid. 

"On the first day of the meeting of the county commis- 
sioners of each county as a board of equalization, the county 
assessor shall submit to said board the complete assessment of 
his county, together with a list of property returned to him. 
♦ * *." Sec. 5658 ibid. 

"The county commissioners of each county shall consti- 
tute a board of equalization for the adjustment and equaliza- 
tion of the assessment among the several taxpayers of their 
respective counties. Said board shall hold two regular meet- 
ings in each year, at the office of the county clerk, at the 
county seat, at follows, viz. : Commencing on the first Tues- 
day in September and continuing not less than three, nor more 
than ten consecutive days, and on the third Tuesday of Sep- 
tember, and continuing not less than two nor more then ten 
consecutive days. The board shall notify the assessor to 
supply any omissions in the assessment roll which may come 
to their notice. In case any material changes are made or 
directed by said board in the assessment of any person or 
persons at said first meeting, the county clerk shall, as soon 
as may be, after the close of said meeting, mail to each of 

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Jan., '13.] Denver V. Pitcher. 213 

3aid persons, prepaying the postage thereon, a notice of such 
^change ♦ * *. The board shall, at its second meeting, 
sit to hear complaints only from those dissatisfied with said 
-changes, and to adjust the assessment so as to equalize the 
same among the several taxpayers of the county * * *." 
Sec. 5761 ibid. 

"Except as an incident of equalization, the county board 
•of equalization shall have no power whatever to make any in- 
crease or decrease in the total amount of the valuation of the 
property of the county as set forth in the assessment roll. 
The power of said board shall be to adjust and equalize the 
valuation of the property set forth in the assessment roll, and 
shall exercise no other power, and shall have no other author- 
ity in the premises." Sec. 5638 ibid. 

"If, in the opinion of any taxpayer, his property has 
been twice assessed, or if the property exempt from taxation 
has been assessed, or if personal property has been assessed 
•of which said person was not possessed at the time of the 
assessment, or if any property has been assessed too high, or 
if any property has been otherwise illegally assessed, such 
person having such grievance may appear before the assessor 
and make known to the assessor the facts in the premises, and 
if in any particular the assessment complained of is erroneous 
under the statutes, the assessor shall correct the same. * * ♦ 
The assessor shall continue such hearing from day to day and 
time to time until all grievances shall be heard, but all hear- 
ings shall be concluded before the day of the first meeting of 
the county board of equalization." Sec. 5639 ibid. 

"Omissions, errors or defects in form in any assessment 
list or tax roll, when it can be ascertained therefrom what was 
intended, may be supplied or corrected by the assessor at any 
time before the return of the assessment roll to the treasurer, 
or by the treasurer at any time before the receipt of the said 
roll. * * *." Sec. 5722 ibid. 



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214 Denver v. Pitcher. [54 Colo. 

By section 124, ibid, the board of county commissioners 
is empowered to order the levying of taxes, as provided by 
law. 

"On the first Monday of November in each year the 
board of county commissioners shall, by an order to be en- 
tered of record among their proceedings, levy the requisite 
tax for the year for school and other county purposes, as re- 
quired by law, and the same may be levied at any time prior 
to the first Monday of November, if the statement of the rate 
of tax to be levied for state purposes has been received from 
the auditor. * * *." Sec. 5760 ibid. 

"The fiscal year of each county in the state of Colorado 
shall commence on the first day of January in each year. The 
board of county commissioners of each county in this state 
shall, within the last quarter of each fiscal year, and at the 
same time that the annual levy of taxes is made, pass a reso- 
lution, to be termed the annual appropriation resolution, for 
the next fiscal year, in which said board shall appropriate 
such sum or sums of money as may be deemed necessary to 
defray all necessary expenses and liabilities of such county for 
the next fiscal year, and any such resolution shall specify the 
objects and purposes for which such appropriations are made^ 
and the amount appropriated for each object or purpose. No 
further appropriation shall be made at any other time within 
such fiscal year, nor shall the total amount appropriated ex- 
ceed the probable amount of revenue that will be collected 
during the fiscal year." Sec. 1215 ibid. 

"As soon as practicable after the taxes are levied and not 
later than the first day of January annually, every county as- 
sessor shall deliver to the county treasurer the tax list and 
warrant under his hand and official seal, setting forth the as- 
sessment roll, with the taxes extended, containing in tabular 
form and alph'abetical order the names of the persons and 
bodies in whose names property has been listed in his county, 
with the several species of property, and the value, and the 
total amount of taxes, and with the column of numbers and 

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Jan., '13.] Denver v. Pitcher. ?iS 

value footed, and commanding the treasurer to collect said 
tax, and in a column to be provided for that purpose, he 
shall write the words, "By the assessor," when the list was 
made by himself." Sec. 5666 ibid. 

In the case of the city, the following charter provisions 
of the city and county of Denver are to be considered : 

• "The assessor shall assess all taxable property within 
the city and county at the time, and in the manner prescribed 
by the General Laws of the state. * * *." Sec. 46. 

"Except as otherwise herein provided, the officers who 
shall respectively perform the acts and duties required of 
county officers to be done by the constitution and General 
Laws in all cases not specifically provided for, so far as ap- 
plicable, shall be as follows : * * * The board of super- 
\'isors shall act as a board of equalization, and perform the 
acts and duties required of a board of county commissioners 
when sitting as a board of equalization ; the assessor, the acts 
and duties required of county assessor; * * *." Sec. 

156. 

By section 213 it is made the duty of the assessor, as 
soon as the assessment roll is ready in each year for the ex- 
tension of taxes, in accordance with the General Law, to cer- 
tify the total amount of property assessed within the limits 
of the city and county to the council, whereupon it is made 
the duty of the council to proceed to make the proper levy 
upon such valuation to meet the expenses of the municipality, 
and at the same time cause the total levies, including school, 
state and special levies, to be certified by the clerk to the as- 
sessor, who shall then extend the same upon the tax list of 
the current year. 

By section 212 the council is directed to levy a tax not 
in excess of a specified rate for all general, state and county 
purposes, upon the total assessed valuation of the property 
within the state, and shall, also, in addition, levy the state 
and school district tax. "The fiscal year of the city and 



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2i6 Denver v. Pitcher. [54 Colo* 

county shall commence on the first day of January and end on. 
the last day of December of each year." Sec. 211. 

By section 217 the mayor is required on or before the 
first day of December in each year, to present to the council a 
detailed statement of the amount necessary to defray the ex- 
penses of the city and county government and each depart- 
ment thereof, for the ensuing fiscal year, and also the amount 
to be raised by taxation to pay interest on bonded indebted- 
ness and to provide for sinking funds. 

By section 218 the council shall meet in joint session an- 
nually between the first and third Monday in December, and 
make a budget of the estimated amounts required to pay the 
expenses of conducting the public business of the city for the 
next ensuing fiscal year, based upon the mayor's budget, and 
for the other purposes required by the charter. After this 
estimate is made, section 219 requires that it shall be signed 
by the mayor and clerk, and filed in the office of the auditor, 
and that appropriations shall then be made by ordinance for 
the ensuing fiscal year, to the several purposes and depart- 
ments therein named. 

"The council shall not order the payment of money for 
any purpose whatsoever, nor shall any warrant or other evi- 
dence of indebtedness issue, in excess of the amount appro- 
priated for the current year, and at the time of said order re- 
maining unexpended in the appropriation of the particular 
class or department to which such expenditures belong; nor 
shall any liability or indebtedness incurred in any one fiscal 
year be a charge upon or patd out of the income or revenue 
of any other fiscal year." Sec. 246. 

Mr. Justice Gabbert delivered the opinion of the court : 

The main contention on the part of the respective plain- 
tiffs in error is, that the defendant, in making the ten per cent, 
horizontal reduction, is committing an act which the statutory 
provisions prescribing his duties do not authorize, and that in 
so doing he is acting directly contrary to such provisions; 

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Jan., '13.] Denver V. Pitcher. 217 

while on the part of the defendant the claim is made that he 
is performing an act of a governmental and executive nature, 
which the courts are without authority to control. Which of 
these contentions is correct turns upon the consideration of 
the constitutional, statutory and charter provisions above 
quoted, or to which reference has been made, and applicable 
to the facts stated in the complaints. 

An assessor is a constitutional officer, but his duties are 
prescribed by statutes, which provide that he shall list and 
value property in his county for the purpose of taxation. The 
statutes evidently contemplate that this shall be completed be- 
fore the first Tuesday in August of each year, as on that date 
all county assessors are required to meet at the state capitol 
for the purpose of comparing their assessments before mak- 
ing affidavit thereto, when, if any assessor is satisfied that the 
value of any class of property in his county is too high or too 
low, it is made his duty to correct the same. When such cor- 
rection is made, if necessary, or if it is found a correction is 
not required, then the assessment roll is considered completed, 
for we find the next step required is that when the assessment 
roll is completed, each assessor, on or before the first day of 
September in each year, shall make an affidavit thereto before 
the state auditor, to the effect that in such roll he has assessed 
all the taxable property in his county at its true value. Imme- 
diately thereafter, each assessor is required to make in dupli- 
cate an abstract of the assessment in his county, showing the 
amount, kind and value of the property therein assessed, one 
copy of which shall forthwith be transmitted to the auditor of 
state. The state board of equalization is required to convene 
on the first Monday in October, in each year, for the purpose 
of examining, adjusting and equalizing the assessments in the 
several counties, which it does by an examination and com- 
parison of the abstracts furnished by the county assessors. If, 
from such examination, or from any other source, the board 
is satisfied that taxable property in any county has been 
omitted, or property assessed too low, then the board, upon 

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2i8 Denver v. Pitcher. [54 Colo. 

reasonable notice to the delinquent assessor, may require hun 
to forthwith make such corrections as will make the assess- 
ments in his county conform to the statutes, and unless the 
assessor so directed desires to appeal from such order, he shall 
at once make the corrections necessary to comply with the 
directions of the state board of equalization. 

In its logical order, the next, and final, act of the state 
board of equalization consists in a compliance with the statute 
which requires this board, on or before the third Monday of 
October, in each year, to transmit to the clerk of each county 
a statement, which, among other things, shall state the rate 
of tax to be levied in each county for state purposes. This 
statute makes it the duty of the assessor of each county, in 
making up the tax list, to compute and carry out, in the 
proper column, a state tax at the rate certified by the board. 
The evident purpose of the statutory provisions so far consid- 
ered is two-fold : First, to secure a uniform valuation of prop- 
erty in the state upon which to levy a tax for state purposes 
in compliance with the constitution, which requires that taxes 
shall be uniform upon the same class of subjects within the 
territorial limits of the authority levying the tax; an^ji next, 
to furnish the state authorities with the total assessed valua- 
tion of the taxable property in the state, so they may be ad* 
vised as to what tax rate is necessary in order to raise suffi- 
cient revenue for state purposes. 

In 191 1 (Session Laws of that year, p. 612 et seq.), the 
general assembly passed an act entitled "Tax Commission,"^ 
but, so far as advised from the briefs of counsel, no changes 
were made affecting any question involved in this case, al- 
though, the tax commission is now vested with some of the 
powers formerly possessed and exercised by the state board 
of equalization. They do not appear to be antagonistic to any 
of the sections which we have quoted, or to which we have 
referred, but are merely additional, or impose upon the com- 
mission some of the duties which the state board of equaliza- 
tion was theretofore required to perform ; but, as stated, our 

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Jan., '13.] Denver V. Pitcher. 219 

attention has not been directed to any of the provisions of the 
act which could in any manner affect the cases under consid- 
eration, except that by sections 13, 15 and 36 general super- 
vision over the administration of assessing officers is con- 
ferred upon the commission, and to this end, the commission 
is empowered to enforce all laws for the assessment, levying 
and collecting of taxes, and may cause to be instituted such 
proceedings as will remedy improper or negligent administra- 
tion of the tax laws of the state, and may compel compliance 
with the provisions of the act and with the orders of the com- 
mission by proceedings in mandamus, injunction, or other 
proper civil remedies. 

We now come to the duties and functions of the assessor 
and county commissioners of each county, in connection with 
the assessment and the levy of taxes. The statute makes it 
the duty of the assessor to submit to the county commissioners 
of his county, on the first day they meet as a board of equali- 
zation, the complete assessment of his county. These officials 
constitute the county board of equalization for the purpose of 
equalizing and adjusting assessments among the taxpayers of 
their respective counties. They are required to hold two meet- 
ings each year, one commencing on the first Tuesday in Sep- 
tember, and the other on the third Tuesday of the same 
month. By reference to the time when each assessor is re- 
quired to transmit the auditor of state an abstract of the as- 
sessment in his county, it will be seen that the assessor is re- 
quired to submit his assessment to the county commissioners 
of his county at substantially the same time. This board 
shall require the assessor to supply any omissions in the as- 
sessment roll which may come to their notice, but except as 
an incident of equalization, they have no authority to make 
any increase or decrease of the total valuation of the property 
of the county, as exhibited by the assessment roll furnished 
them by the assessor. 

The fiscal year of each county commences on the first 
day of January of each year. It is the duty of the board of 

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220 Denver v. Pitcher. [54 Colo. 

county commissioners, and within the last quarter of each 
fiscal year, and at the same time the annual tax levy is made» 
to pass what is termed the annual appropriation resolution for 
the next fiscal year, by which there shall be appropriated such 
sums as may be deemed necessary to meet and defray the nec- 
essary expenses and liabilities of the county for the next fiscal 
year. This resolution shall specify the object for which the 
appropriations are made, the amount appropriated for each 
purpose, and further appropriations at any other time within 
such fiscal year are expressly inhibited. The board is author- 
ized to levy taxes, and this authority may be exercised on the 
first Monday in November in each year by the levy of the 
requisite tax for school and other county purposes, or earlier^ 
if the rate of tax to be levied for state purposes has been re- 
ceived from the auditor. The purpose of these provisions is 
to secure a uniformity of taxation in each county for county- 
purposes, and also to enable the commissioners in each county 
to determine what rate of tax is necessary to meet the county 
expenses for the ensuing fiscal year. As soon as practicable 
after the taxes have been levied by the commissioners, and not 
later than January first, each year, it is made the duty of the 
assessor to extend the taxes on the assessment roll, and de- 
liver the same to the county treasurer. By the charter pro- 
visions of the city and county of Denver, the board of super- 
visors are required to perform the acts and duties by boards 
of county commissioners, as a board of equalization, and the 
assessor, the acts and duties of a county assessor. It is also 
made the duty of the assessor, as soon as the assessment roll 
is ready in each year, for the extension of taxes, in accordance 
with the general law, to certify the total value of the property 
assessed within the limits of the city and county of Denver ta 
the city council. The fiscal year of the city and county begins 
on the first day of January, and ends December 31st, each 
year. The mayor is required, on or before the first day of 
December, each year, to present to the city council a detailed 
statement of the amount necessary to defray the expenses ot 

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Jan., '13.] Denver v. Pitcher. 22P 

the city and county government for the ensuing fiscal year; and. 
also, the amount necessary to raise, by taxation, with which to 
pay interest on bonded indebtedness, and to provide for sink- 
ing funds. The council shall then meet in joint session be- 
tween the first and third Mondays in December of each year,, 
and make a budget of the estimated amounts required to pay 
the expenses of the city and county for the next ensuing fiscal, 
year, based upon the mayor's budget, and for other purposes 
required by the charter. After this estimate is made, it is 
signed by the mayor and clerk and filed in the office of the 
auditor. Appropriations shall then be made by ordinance for 
the ensuing fiscal year, to the several purposes named. The- 
necessary taxes are then levied to meet these appropria- 
tions, including state, school and special levies, which are then 
certified to the assessor, who is then required to extend the- 
same upon the tax roll, and deliver to the treasurer for col- 
lection. The purpose of these several provisions are the same 
as stated in considering the duties and acts of commissioners 
and assessors, in assessing the property in counties and the- 
levy of taxes upon property therein. In this connection, it 
should be noted, that in the city and county of Denver the- 
total amount appropriated in any one year shall in no case ex- 
ceed ninety per cent, of the anticipated revenues for that year, 
as estimated upon the tax levied on the assessor's valuation,, 
and from other sources of revenue, and that the council is in- 
hibited from ordering the payment of money for any purposes 
in excess of the amount appropriated for the current year, 
and that any liability incurred in any one fiscal year shall' not 
be a charge upon, or paid out of the income or revenue of, any 
other fiscal year. 

According to the averments of the respective complaints 
the defendant made the assessment required by law; there- 
after met with the assessors of the counties of the state ; com- 
pared his assessment with the assessments of property in other 
counties, but did not change his assessment ; that he prepared 
an abstract of the assessment made by him, and delivered it to* 

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2^22 Denver v. Pitcher. [54 Colo. 

the state auditor; that this abstract was delivered to the state 
board of equalization ; that no changes were made therein by 
this body; that it was certified to the proper officials; that he 
certified the total assessment made by him to the city council ; 
that the board of equalization of the city and county of Den- 
ver made no changes ; and that thereafter the taxing authori- 
ties of that municipality levied a tax for the ensuing year 
based upon the valuation certified by the defendant. By the 
complaint on behalf of the tax commission, it is not ex- 
pressly averred that the state authorities have levied a state 
tax ; but as the time for doing so had expired when the com- 
mission brought its action, and as it is averred that state offi- 
cials have issued warrants based upon and in anticipation of 
the revenue to be derived from taxes collected upon property 
of the city and county of Denver, it will be assumed that such 
tax was levied. According to the respective complaints, the 
reduction in the assessed valuation of property was proposed, 
and attempted, to be made after all these steps had been taken ; 
so that the next question to consider, in connection with these 
facts, is, the changes in the assessment roll which an assessor 
is authorized to make, after delivering the abstract of assess- 
ment to the state auditor. 

The statutes bearing on this subject require him to make 
such changes as the state board of equalization direct, to sup- 
ply omissions in the assessment roll as may come to the notice 
of the board of county commissioners of his county, and nec- 
essarily perform the same act when directed by the board of 
supervisors of the city and county of Denver in their capacity 
as a board of equalization. He may also, on the application of 
a taxpayer whose property has been twice assessed, or whose 
property has been assessed which is exempt, or of which the 
taxpayer was not possessed when assessed, or has been as- 
sessed too high, correct such assessment; but these applica- 
tions must be made and hearings thereon concluded before the 
first day of the meeting of the county board of equalization. 
He may also supply omissions and correct errors or defects in 

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Jan., '13.] Denver v. Pitcher- 223; 

the tax roll when it can be ascertained therefrom what was. 
intended, at any time before the return of the assessment roll 
to the treasurer ; but these corrections are merely clerical. This, 
embraces all the changes he is authorized to make after the 
abstract has been delivered to the state auditor, so that it is 
evident he is not authorized by statute, either directly or indi- 
rectly, to make the horizontal reduction complained of; and 
hence, it must logically follow, that except in the particulars 
above mentioned, his roll is deemed complete upon delivery of 
the abstract of assessment to the state auditor. If the defend- 
ant assessor desired to make uniform reduction on the valua- 
tion of property in the city and county of Denver, the time 
for him to have done so was when he was vested with that 
power, which was after meeting with the county assessors,, 
and before he delivered his abstract to the state auditor, for 
after such act, according to the statutes, his assessment roll 
was completed, and he could make no change thereafter, ex- 
cept as specifically authorized. That other changes than those 
mentioned are inhibited, is made manifest by the fact that a 
board of county commissioners (and in the city and county of 
Denver, the board which performs its functions) is expressly 
inhibited from making any change in the way of increasing or 
decreasing the total valuation of the property of a county, as 
exhibited by the assessment roll furnished by the assessor, ex- 
cept as an incident of equalization, and that any changes which 
the assessor is authorized to make, on the application of a tax- 
payer, must be made before the first meeting of the county 
board of equalization. 

The wisdom of these provisions is evident. The assess- 
ors meet at the state capitol for the purpose of comparing as- 
sessments, so that there may be a uniform valuation of prop- 
erty of the same classes in the state. If such uniformity does 
not exist, they make the corrections which will bring about 
this result. The abstracts of assessment are then delivered to 
the state auditor. The state board of equalization may order 
diang-es if they find the different classes of property in the 



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224 Denver v. Pitcher. [54 Colo. 

state have not been uniformly assessed. Upon the total valua- 
tion as shown by the abstracts of assessment, a state tax is 
levied. Upon the total valuation of the assessments in each 
county, the county authorities levy taxes for county purposes ; 
and should the assessors, after these levies are made, have the 
authority to make a horizontal reduction in the total assessed 
valuation of their respective counties, the revenues which the 
state and county authorities are required to provide by specific 
rate of taxation, would be reduced accordingly. The defend- 
ant has no authority to do this. If the taxes are too high for 
state purposes, or too high for the city and county of Denver, 
the fault lies with the taxing authorities, who, alone, are re- 
sponsible to the people for this result, and he cannot correct 
these mistakes if they have been made, by doing an act which 
the statutes do not require him to do, but which they inhibit 
him from doing. We reiterate, that the time for him to have 
made the reduction he is now attempting to make, if justified 
at all, was when he met with the county assessors. 

The next question to determine, is, whether a court can in- 
hibit the defendant from making the proposed reduction. It 
is true, as contended by counsel for defendant, that the judi- 
cial department of the state has no power by an injunction to 
control an official in the exercise of his official functions of a 
governmental and executive nature — People v. District Court, 
29 Colo. 182 — ^but that is not this case. On the contrary, it 
clearly appears that defendant is violating the faw relating to 
assessments by doing, or proposing to do, an act which the 
law inhibits him from doing, and with respect to which he has 
no authority or discretion, whatever. In other words,, he is 
attempting to undo a completed act. After an assessment has 
been completed, the assessor may not alter or change it unless 
he has express statutory authority to do so. Cooley on Taara- 
tion, 3rd Ed. 765. In applications for relief by injunction 
against the acts of public officials, the material question, gen- 
erally speaking, is, whether they are acting within the scope 
of their authority, or whether they are transcending that au- 

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Jan., '13.] Denver v. Pitcher. 225 

thority. If they are doing the latter, and the resulting injury 
is not susceptible of reparation by proceedings at law, they 
may be enjoined from the commission of such illegal act. — 
High on Injunctions, 4th Ed., sees. 130&-1309. 

It is manifest that an action at law cannot give the plain- 
tiffs adequate relief, or any relief whatever, and that an in- 
junction to restrain the defendant is the only remedy which 
will prevent the wrongful acts of the defendant, and give 
plaintiffs the relief to which they are entitkd, for the obvious 
reason that it is the duty of the defendant to extend the levy 
upon the assessment acted upon by the officials authorized to 
levy such tax, and deliver the tax roll, as thus completed, to 
the treasurer for collection. This is a duty imposed on the 
defendant by law with respect to which he has no discretion, 
and is, therefore, ministerial, and hence, a duty which a court 
can compel him to perform. — Cooley on Taxation, 3rd Ed., 

1359. 

Counsel for defendant contend that a statutory remedy is 
provided, and that, therefore, the actions at bar cannot be 
maintained. This contention is based on ssection 5636, R. S., 
which provides that if, in the opinion of the state board of 
equalization, any county assessor has assessed the property of 
his county manifestly below its true value, that then the board, 
upon reasonable notice to the delinquent assessor, may require 
him to make it conform with the statutes. In our opinion, 
this section does not apply to an assessor who is making a 
horizontal reduction in a completed assessment, but covers a 
case where the valuations of property assessed, as originally 
returned and from which the abstract of assessment is com- 
piled, that is lodged with the state auditor, when it appears 
that such assessment does not, for any of the reasons enu- 
merated in the section, comply with the statute. 

It is also urged on behalf of defendant that there is no 
allegation of facts in either complaint from which it appears 
that irreparable injury will result to plaintiffs or either of 
them, by the act of the defendant in reducing the assessed val- 

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226 Green Valley Co. v. Frantz. [54 Colo. 

uation, in that it is not charged upon the part of either the 
state or city that they will not have sufficient revenue to pay 
the expenses and debts of the several departments of govern- 
ment. That question is in no sense involved, as the case turns 
entirely upon the proposition, that the proposed reduction by 
defendant is, ipso facto, illegal, for the reason that the law in- 
hibits him from making it. 

The judgments of the district court are reversed and the 
causes remanded, with directions to overrule the demurrers, 
and for such further proceedings as will harmonize with the 
views expressed in this opinion. 

Reversed and Remanded with directions. 

Decision en banc. 



[No. 6793.] 

Green Valley Ditch Co. et al. v. Frantz et al. 

Watee Right — Aban^nment — Failure for the period of eighteen 
years to apply to beneficial use, or In any manner control, water to 
which one Is entitled, must be regarded as an abandonment of the 
right, unless some peculiar condition excusing the delinquency la 
shown. Merely asserting a claim to the right through a continuous 
chain of paper title, even though coupled with an oral assertion of 
the right upon a single occasion, will not suffice. 

The evidence examined and held to lead to the Irresistible con- 
clusion that those under whom plaintiffs claimed had abandoned the 
right. 

Brror to Denver District Court. — Hon. Hubert L. 
Shattuck, Judge. 

Mr. John W. Helbig and Mr. D. B. Kinkaid^ for plain- 
tiffs in error. 

Messrs. Bartels & Silverstein and Messrs. Allen <§• 
Webster, for defendants in error. 



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Jan., '13.] Green Yaixey Co. v- Frantz. 227 

Mr. Justice Hiix delivered the opinion of tlie court : 

This action was brought by The Green Valley Ditch 
Company (a corporation) on behalf of itself and its stock- 
holders against the defendants in error, Frantz and Benton^ 
for the purpose of quieting its title, and that of its stockhold- 
ers, in and to a certain ditch and the appurtenances thereunto 
belonging, including appropriations. The defendants by their 
answer claim an interest in the ditch and the waters carried 
therein. They prayed that they be adjudged the owners of a 
certain interest in the ditch and water. The allegations in the 
answer are denied. The judgment was in favor of the defend- 
ants quieting their title to one-twenty-sixth of the water there- 
tofore used upon any or all of the lands lying under the ditch. 
It also gave them the right, without interference, to its use and 
enjoyment, through the ditch, subject to prorating in times 
of scarcity. The plaintiffs bring the case here for review upon 
error. 

Upon September 23rd, 1907, the defendants entered into 
a contract with its then owners to purchase block 5, Manches- 
ter, which, including streets and alleys, contains about five 
acres. They are in possession and claim that a certain interest 
in the ditch and waters carried therein belongs to this land. 
Upon October ist, 1907, they made written demand upon the 
plaintiff company to have such interest recognized and water 
furnished therefor. Upon January 24th, 1908, this demand 
was formally refused; this suit was instituted upon the same 
date. 

The main contention pertains to the abandonment by the 
predecessors in interest of the defendants to that portion of 
the ditch and waters theretofore appertaining to this land. 
ThtTt is but little conflict in the evidence. There is ain absence 
of evidence pertaining to sdfiie matters, althoujg*h aipparently 
sufficient to satisfy both sides. This pertains particularly to 
the amount of water to which the ditch is entitled, and the 
date of its appropriation. No decree covering these questions 



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228 Gre^ V1ai,i,ey Co. v. Frantz. [54 Colo. 

was plead or offered in evidence. It appears to be assumed 
by counsel (and for the purposes of this case we shall so 
treat it), that the pleadings and evidence discloses that this 
ditch has, or did have, an appropriation of 2.25 cubic feet of 
water per second of time from the South Platte river, and 2 
cubic feet of water per second of time from a small tributary 
called Sand creek. The dates of these appropriations, so far 
as the pleadings or any evidence is concerned, are not at- 
tempted to be fixed. 

The record discloses, that between 1868 and 1880 a small 
ditch was constructed about two and one-half miles in leng-th ; 
that its headgate was located on the west bank of the South 
Platte river, from whence it runs in a northerly direction ; that 
it crosses this so-called Sand creek about half way down ; that 
as early as 1885 Hiram and Artemecia Epperson (husband 
and wife) were the owners of eighty acres of land in section 
21 and of seventy acres in section 15, all in township 4, south 
range 68 west; that this ditch (called the Epperson ditch) was 
used exclusively for irrigating some portions of this land and 
was evidently considered as appertaining thereto; that the 
house in which the Eppersons then lived was situate in section 
21 ; that the portion covered by the building thereafter became 
a part of block 5, Manchester; that in 1887 the Eppersons be- 
gan to sell off portions of this land, which sales included water 
out of, or an interest in the ditch therefor; that considerable 
of this land was sold and has ever since been used for garden- 
ing purposes, and has been continuously irrigated through this 
ditch; that these are the lands owned by the stockholders of 
the plaintiff company ; that they are lower down the ditch than 
block 5 in Manchester; that in 1888 the ditch was in a dilapi- 
dated condition; that in 1888 or 1889 a meeting of consumers 
was held for the purpose of devising ways and means to repair 
and put the ditch in proper condition, it being then partially 
obliterated m places and out of repair; that Hiram Epperson 
and wife were present at this meeting, and when requested to 
assist in such repairs and maintenance for the benefit of lands 

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Jan., '13.] Gre^n Vau^y Co. v. Frawtz. 229 

then owned by them, including block 5, Manchester, they re- 
fused to do so, and, in substance, said that they did not need 
the ditch, that they were not using water from the Platte 
river, and had no further use for it and told the plaintiffs that 
the ditch was theirs, to take it. 

The evidence discloses beyond contradiction that the E^ 
persons did not use the ditch from the South Platte river to 
where it crosses Sand creek, or secure any water from the 
South Platte river, or in any manner assist in its maintenance 
or participate in its control, above Sand creek since 1886. 
There is evidence that they used the ditch below Sand credc 
and run a small amount of water, through it, obtained from 
Sand creek, during the years 1887, 1888 and possibly 1889. 
The contention of the defendants is, that the Eppersons' re- 
fusal to contribute was limited to that portion of the ditcb 
above Sand creek, but it is undisputed that they never osed^ 
or contributed to repair, or thereafter assisted in maintaining^ 
the ditch above Sand Creek, after 1886, or below that point 
after 1889, but that during 1888 and 1889 and thereafter tfie 
company's stockholders, or their predecessors in interest, re- 
constructed, repaired and cleaned out, whenever necessary, the 
entire ditch at considerable expense; that they constructed a 
dam in the Platte river at a cost of about $2,000, and there- 
after maintained the ditch at an expense of from three to- 
five hundred dollars a year, and ever since have had the ex- 
clusive use and enjoyment of the entire ditch and waters run' 
therein. The record is not clear as to the amount of water,. 
from where secured, or upon what portions of these lands 
used, or the extent of such use upon any of them, prior to- 
1887. 

In November, 1889, the original plat of Manchester or 
Manchester addition was filed. This was signed by Hiram- 
and Artemecia Epperson with the usual dedications of streets, 
alleys, etc. ; it covers portions of these lands then owned bjr 
the Eppersons, including what is termed their old home site 
covered by block 5. About November, 1889, the land ibe» 

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230 Green Vau^ey Co. v. Frantz. [54 Colo. 

owned by the Eppersons covered by this plat was conveyed to 
McCallum, who, in November or December, same year, con- 
veyed it to The Manchester Land Company; this included 
block 5. In June or July, 1890, this company proceeded to 
destroy the whole length of this ditch where it crossed the 
streets and blocks in Manchester. Upon August 2nd, 1800, a 
suit was instituted by the stockholders of this plaintiff and 
some of their predecessors in interest against The Manchester 
Land Company to restrain it from destroying the ditch upon 
its lands, or in any manner interfering with their running 
water through it. This resulted in an agreement between the 
then owners of the land (which included this block 5) and 
the consumers, whereby the land company allowed them to re- 
construct the ditch in a certain manner, and have the exclusive 
use and enjoyment thereof during the pendency of the action. 
What disposition was made of this suit is not disclosed, but 
the consumers continued to operate and have the exclusive use 
and control of the ditch, as before, without any adverse claim 
being made by anyone until about the time of the institution 
of this suit, during which period they increased their acreage 
irrigated from thirty-three and one-half to about fifty acres. 

It is proper to observe that the stipulation entered into in 
the suit between the land company and the consumers recog- 
nizes the latter as being the owners of the ditch, in the follow- 
ing language, "The Manchester Land Company will convey all 
water which the plaintiffs may bring down in their old ditch." 
It will be noted that at this time it made no claim to either 
ditch or water, but was attempting the destruction of the for- 
mer. 

In October, 1906, these consumers incorporated the plain- 
tiff and executed a deed to it for the ditch, etc., accepting its 
stock in payment therefor; reserving, however, the water 
rights and appropriations as theretofore owned and enjoyed 
by them. This evidently was for the purpose of providing a 
regular system for the maintenance of the ditch and the distri- 
bution of water to those entitled thereto. This ditch company. 

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Jan., '13.] Green Valley Co. v. Frantz. 231 

at all times thereafter, continued to operate and manage the 
property. Other than the deed to it by its stockholders, there 
does not appear to have ever been any deeds executed by any- 
one for a right of way for the ditch. In addition to the stipu- 
lation referred to in the other suit, there are some reservations 
in some of the instruments executed by the Eppersons pertain- 
ing to some of this land, recognizing this ditch as having a 
right of way. 

The record further discloses, that about 1891 these water 
consumers had trouble with a paper mill company, which, in 
Building a large plant, destroyed a part of the canal, and, to 
avoid litigation, they (under protest) allowed the company to 
substitute a pipe line for eight or nine hundred feet and to 
change this right of way from where it originally was situate 
upon the Manchester and other lands, and for this distance to 
run the pipe line upon the right of way of a railway company ; 
that since which time there has never been any flume, pipe or 
laterals or other means by which water could be conveyed to 
block 5, Manchester. 

The defendants' evidence discloses, tha.t a deed of trust 
was given back to the Eppersons, or one of them, upon the 
Manchester land ; that The Manchester Land Company failing 
to pay in 1897 deeded back (in lieu of foreclosure) the prem- 
ises in question to Mrs. Epperson; that thereafter she con- 
veyed to L. Cook, trustee, who thereafter, in April, 1901, 
conveyed to William P. Epperson and Frank Steinmetz, who 
thereafter, in 1904, conveyed them to Lenora Epperson, who 
thereafter conveyed them to Louis and Theodore Bartels, who 
shortly prior to the bringing of this action entered into the 
agreement of sale with the defendants in error. It is proper 
to state that these sundry conveyances and others included 
therein declarations of all water rights belonging and apper- 
taining to the land conveyed. This chain of paper title is all 
the uncontradicted evidence that the defendants introduced 
pertaining to non-abandonment, or intention by any of the 
owners of this land to claim any interest in the ditch or water. 

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232 Green Valu^y Co. v. Frantz. [54 Colo. 

The only other evidence upon this subject is that of William 
P. Epperson (a son of Hiram Epperson, and stepson of Mrs. 
Epperson), who states that in a conversation with sundry of 
these water consumers about six or seven years prior to the 
bringing of this suit, he asserted a right to the use of this 
water. This was denied by the plaintiff's witnesses. It is 
further disclosed that the contract of purchase from Bartels 
to the defendants concludes with the following paragraph, "In 
the event that no water rights belong to said land, then the 
above one hundred ($100) dollars to be refunded, and this 
receipt to be null and void." 

In North American Exploration Co. v. Adams, 104 Fed. 
404, wherein rights to water in Colorado were involved, it is 
said: • 

"The abandonment of the right to divert and use the 
waters of a stream is not different in its nature or character 
from the renunciation of any other right which is asserted 
and maintained by its use. It may be express or implied. It 
may be effected by a plain declaration of an intention to aban- 
don it, and it may be inferred from acts or failures to act so 
inconsistent with an intention to retain it that the unpreju- 
diced mind is convinced of the renunciation." 

In New Mercer Ditch Company v, Armstrong, 21 Colo. 
3S7> it was held that a corporation may not divert water from 
a stream and make beneficial use of a portion thereof, and as 
to the residue so diverted never make any use whatever for 
over twenty years from the time of the original diversicMi, for 
snore than eighteen years from the time of an additional diver- 
sion, and for more than nine years after its rights to the quan- 
tity theretofore diverted have been judicially established, and 
then be heard to assert its claim to such excess after subse- 
quent appropriators have continuously, adversely, openly and 
notoriously been enjoying the use thereof for such lengths of 
time. 

In Alamosa Creek Canal Company v. Nelson, 42 Colo. 
140, this court held that non-use of water continued for a 

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Jan., '13.] Green Valley Co. v. Frantz. 233 

considerable time, coupled with other acts showing an inten" 
tion on the part of the owner not to resume or to repossess 
himself of the thing whose use he has relinquished, consti- 
tutes abandonment. 

In Sieber et al. v. Frink et al, 7 Colo. 148, it was held 
that a failure to use water is competent evidence of an aban- 
donment of the right thereto, and if continued for ^ unrea- 
sonable period it creates a presumption of an intention to 
abandon; but this presumption is not conclusive and may be 
overcome by other satisfactory proof. 

When these well known rules are considered in connec- 
tion with our recognized doctrine of priority by appropria- 
tion, without attempting to lay down any definite rule per- 
taining to the length of time necessary to create the presump- 
tion of abandonment upon account of non-use, coupled with 
other acts, although slight, disclosing an intention to abandon, 
it may well be said that a period of twenty years or even 
eighteen years is too long a time for an individual or corpora- 
tion to be permitted to thereafter make claim to an appropria- 
tion without having asserted a right thereto, or attempting to 
convert, control or in any manner to apply it to a beneficial use 
during some portion of that period, unless some peculiar fact 
or condition can be shown by which the party or parties might 
be excused during that length of time, and such excuses must 
be other than making a claim thereto down through a con- 
tinuous chain of paper title. Here no excuse is given or pecu- 
liar circumstances attempted to be shown ; but to the contrary, 
during all this time the predecessors of these defendants sat 
silently by and allowed not only the plaintiffs to act as above 
set forth, but allowed other consumers both up and- down the 
river to construct many ditches and reservoirs, and invest 
large amounts in the construction thereof, and the diversion 
and application of waters to a beneficial use, without any as- 
sertion of right upon behalf of the predecessors of the defend- 
ants to the ownership or right to use any of the waters from 
said streams. 

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234 Green Vali^ey Co. v. Frantz. [54 Colo. 

Outside of the alleged paper title, the only conflict in the 
evidence pertaining to abandonment is in the alleged declara- 
tion of one of the predecessors in interest of the defendants, 
who says that some seven or eight years before suit he claimed 
the right to a portion of the water in said ditch. This was 
disputed, but if true it was but an oral statement followed by 
no act, for which reason it could not change conditions. — 
Hewitt V. Story, 40 L. R. A. (Calif.) 265. While upon the 
other hand the undisputed declaration of his predecessors, to- 
wit, his father and stepmother, is to the fact that they de- 
clined to participate in the expenses of the reconstruction of 
the ditch, and the repairs and maintenance therefor, or in its 
use thereafter, stating in substance that they had no use for 
it, that it belonged to the plaintiffs, for them to go take it, etc. 
Later, their grantees made an effort at the complete destruc- 
tion of the canal by plowing it in for about twelve hundred 
feet, wherever any street or alley in Manchester was to cross 
it, and they persisted in thus having it destroyed until a suit 
was instituted against them with the view of restraining them 
from accomplishing such destruction. This contention was 
thereafter adjusted under some arrangement by which the 
plaintiffs were allowed to reconstruct, and have enjoyed its use 
ever since, as theretofore. 

It is also undisputed that the grantors of these defend- 
ants never made any claim to any interest in the ditch or 
waters, and that the defendants in buying had notice of con- 
ditions and protected themselves by the clause referred to in 
their contract of purchase. It is evident that the trial court 
misconstrued the legal effect of the evidence. 

The facts are along the same lines as those in Dorr v. 
Hammond, 7 Colo. 79. The contlusion is irresistible, upon a 
review of the whole record, that the appropriation acquired by 
the Eppersons for the lands now claimed by the defendants 
by means of the application of water upon a portion of it, 
through this ditch, on and before 1887, 1888 and 1889, was 
afterwards abandoned. The testimony shows that no water 

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I 



Jan., '13.] Green Valley Co. v. Frantz. 235 

was thereafter taken through this ditch from either the Platte 
river or Sand creek for this land, and no claim made by any 
owners of it that they be furnished with any water until after 
the contract of purchase by the defendants in October, 1907, 
a period of over twenty years, when applied to the south Platte 
river and that portion of the ditch above Sand Creek, being 
about one-half of the ditch, and a period of eighteen years or 
over, when applied to the lower end of the ditch and the waters 
derived from Sand creek. During this entire period, the Ep- 
persons as well as all subsequent owners, interposed no objec- 
tions to the plaintiffs' application of all the waters that the 
ditch would carry, but to the contrary not only stood by and 
saw them partially reconstruct the ditch at considerable ex- 
pense, also continue its maintenance, but permitted them, dur- 
ing all these years, to divert all the waters carried through the 
ditch, without even notifying them of their claim thereto other 
than the one alleged statement of the son, William P. Epper- 
son, (which is in dispute). It is undisputed that the town 
site company attempted the destruction of the entire ditch 
through the land platted by the Eppersons while the company 
was the owner and in possession. These facts all tend to show 
a voluntary yielding up and waiver of the priority acquired by 
Eppersons (not sold to the other consumers) without any in- 
tention of resuming it and constitute a clear case of abandon- 
ment. 

The plaintiffs are entitled as against the defendants to a 
decree quieting their title to the ditch and waters appropriated 
by them and their predecessors in interest heretofore carried 
therein to the extent of such appropriations from both the 
South Platte river and Sand creek. These should be limited 
to the amount that they have heretofore enjoyed as disclosed 
by the evidence, which is to be tested by the amount heretofore 
actually carried through the ditch and pipe line and applied to 
a beneficial use, making the necessary allowance for seepage 
and evaporation. When the amount of land heretofore irri- 
gated, the capacity of the pipe line constituting a part of the 

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236 Elder v. Wood. [54 Colo. 

ditch and the waters heretofore carried are considered, it is 
evident that it does not exceed 2.90 cubic feet of water per 
second of time from both sources. 

The judgment is reversed and the cause remanded with 
instructions that a decree be entered in harmony with the 
views herein expressed. Reversed, 

Chief Justice Musser and Mr. Justice Gabbert con- 
cur. 



[No. 6713.] 

Elder v. Wood. 

PEAcncB IN THE SupBEME CouBT — Appeal From a Judgment Pursu- 
inff a Mandate, of this court awarded upon the judgment In a former 
appeal wUl be dismissed. 

Appeal from Lake District Court. — Hon. M. S. Baiixy, 
Judge. 

Mr, George R. Elder, for appellant. 

Mr. Frazer Arnold and Mr. Samuel Houston Thomp- 
son, Jr., for appellee. 

Per Curiam: 

This case was determined by this court in Wood Im- 
pleaded, Etc. V. McCofnbe et al, 37 Colo. 174, and the cause 
was remanded with directions to the lower court to vacate its 
judgment and enter another one in favor of Wood. A writ 
of error from the supreme court of the United States was sued 
out to review^ the judgment of this court, and that judgment 
was affirmed in Elder v. Wood, 208 U. S. 226. Thereupon, 
the district court entered judgment in obedience to the man- 
date of this court. The present appeal is from the latter judg- 
ment There were no proceedings subsequent to the entry of 

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Jan., '13.] People Ex rel. v. District Court. 237 

that judgment. The appellee Wood has filed a motion to dis- 
miss this appeal. The motion must be sustained. 

Every question now raised by appellant, including the 
question whether a construction of the constitution of the 
United States or of this state was involved, was dispussed by 
him in his principal brief, or his brief on his motion for re- 
hearing in the former appeal, and therein determined. The 
judgment appealed from is, in effect, the judgment of this 
court entered in exact accordance with our mandate and an 
appeal therefrom cannot be entertained. — Stewart v. Scdamon, 
97 U. S. 361. 

Motion to dismiss appeal granted. 
Decision en banc. 

Chief Justice CampbeivL and Mr. Justice Baii^ey not 
participating. 

Decided October 7, A. D. 191 2. Rehearing denied 
March 3, 1913. 



[No. 7637.] 



The People of the State of Colorado ex rel. v. The 
District Court of the First Judicial District et al. 

District Attobnby— Appointment of Special Prosecutor — ^Upon affi- 
davit filed, charging the district attorney, his deputy, and others with 
an assault upon the affiant, the district court appointed an attorney to 
prosecute the offense charged. The attorney so appointed filed an in- 
formation against all the parties named^ jointly. The district attorney 
and his deputy, being tried separately, were acquitted. As to the 
others, the special prosecutor entered a noUe, and later, by leave of the 
court, withdrew from the prosecution. The same affiant thereupon 
filed a second affidavit charging the same persons with instigating a 
riot at the same time and place mentioned in the former affidavit, and 
with committing an assault, not only upon himself, but upon members 
of his family as well. The district attorney thereupon filed a motion 
to quash the last information, upon the ground that the court, by the 
first appointment had exhausted its powers, and the second informa- 
tion was therefore a nullity. 



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238 People ex rel. v. District Court. t54 Colo. 

The motion was held properly denied and both certiorari and pro- 
hibition was refused. The authority of the court to appoint a special 
prosecutor in the second instance was declared to be the same, under 
the statute (Rev*. Stat., sec. 2109), as in the fir8t.--Oray v. District 
Court, 42 Colo. 298, distinguished. 

Hnx, J., dissented. 

Mr. T. E. Watters, for petitioner. 

Messrs. Crump & Aixen and Mr. E. M. Sarin, for re- 
spondents. 

Mr. Justice Bailey delivered the opinion of the court: 

This is an original application for a writ of certiorari 
and prohibition. At a primary election, held September 3, 
1910, at the residence of John W. Maloney in a South Engle- 
wood precinct, Arapahoe county, an altercation ensued which 
ended in an affray. It is out of prosecution over that diffi- 
culty that this application arises. 

A petition was filed, October 5, 19 10, on affidavit by 
Maloney, charging the petitioner here and Luke J. Kava- 
naugh, district attorney and deputy district attorney, respect- 
ively; and Claude E. Street, Joseph Kille, John D. Frederick 
and P. Z. Fogle with an assault, with a deadly weapon, upon 
him, praying the appointment of a special prosecutor to take 
charge of and investigate the matter, because of the personal 
interest therein of the regular prosecuting officers. The court 
thereupon appointed J. W. B. Smith, Esq., an attorney of 
the Colorado bar, to act in that capacity. On November 11, 
19 10, he filed an information against the parties named, 
charging them jointly with the alleged offense. Morgan and 
Kavanaugh were put to trial separately. Under court in- 
structions, the jury returned a verdict of not guilty, and they 
were discharged. Thereupon Smith entered a nolle prosequi 
as to the defendants Street, Kille, Frederick and Fogle, and 
they also were discharged. Presently thereafter Smith filed 
his report with the district court, showing, among other 
things, the matters above set forth, and withdrawing from 



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Jan., '13.] People Ex rei^. v. District Court. 239 

the prosecution, which withdrawal was by formal order duly 
accepted. 

Thereafter Maloney filed another affidavit, charging the 
same persons with instigating, at the time and place previ- 
ously designated, a riot, and charging them with an assault, 
not only upon himself, but upon members of his family as 
well. On the same day E. M. Sabin, Esq., an attorney, filed 
a motion for the appointment of a special prosecutor, based 
on Maloney's affidavit, showing the disqualification of the 
district attorney and deputy because of interest* Pursuant to 
that motion, an order was entered appointing Sabin as such 
prosecutor, duly empowered to take such action on the affi- 
davit as to him might seem proper. In making this order the 
court found that both Morgan and Kavanaugh had a personal 
interest in any investigation of the offenses of which com- 
plaint was made. 

Later, Maloney filed two more affidavits, one charging 
•Street, Frederick, Kille and Fogle with an assault on his per- 
son, the other charging Morgan with unlawfully beating 
Mary E. Maloney, the wife of affiant, a new offense, but all 
growing out of the difficulty at the primary. Sabin there- 
upon informed against these parties for the alleged respective 
offenses. The petitioner, Morgan, filed a motion to quash 
the information against him, setting up, by affidavit, that 
there was no lawful charge upon which he could be tried, for 
the reason that the court had exhausted its power, relative to 
this matter, by the appointment of Smith as special prosecu- 
tor, and that therefore the information filed by Sabin w^as a 
nullity; and also because the alleged offense prosecuted by 
Smith, against him, is the same offense charged in the infor- 
mation filed by Sabin. The motion was overruled, and Mor- 
gan applies for a writ prohibiting the respondents from fur- 
ther acting under the order naming Sabin special prosecutor, 
because of the supposed lack of authority in the court to 
make the appointment. 



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240 People ex rel. v. District Court. [54 Colo. 

We have examined the record with the utmost care and 
are persuaded, beyond question, that it was within the juris- 
dicticm of the court to name the second special prosecutor. 
The interest of Morgan and Kavanaugh, district attorney and 
deputy, respectively, in the matter to be examined, remained 
the same as originally. Attorney Smith, first appointed, had 
withdrawn as such officer, the withdrawal having been al- 
lowed by the court and noted of record. Thereafter new affi- 
davits, embodying new charges, were formally presented. 
Some disposition must be made of them. By the affidavits 
the power and authority of the court were invoked. In this 
state of the record it seems that nothing was left for the 
court to do but designate a suitable person to represent the 
people. The regular prosecuting officers were disqualified, 
and the special prosecutor having declined to act further, 
plainly it was not only within the power of the court, but was 
its clear duty to appoint an attorney to take action upon the 
matters thus presented. There was no attempt to direct the 
action of that officer or control his discretion. The whole 
controversy is as to the authority of the court to make the 
second appointment. If it had jurisdiction, the information 
must be met and defended against in the court where filed, 
and if it did not have jurisdiction, then further proceedings 
should be prohibited. The sole question is, did the court have 
authority to act? If it did, w^hether it exercised that author- 
ity correctly or erroneously are matters which may not be in- 
quired into in this proceeding. That it had such authority 
seems too clear for argument. New and different charges 
were before the court, the special prosecutor first named had 
withdrawn, the regular officers were disqualified, and unless 
a substitute may be named, the whole machinery of the court, 
so far as this matter be concerned, is completely blocked. It 
was never contemplated that such a situation could be brought 
about by any one, or by any set of facts or circumstances. All 
conditions w^ere present to give the court authority, under 
the statute, to appoint a special prosecutor, and we are unable 

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Jan., '13.] P130PL.E Bx rel. v. District Court. 241 

to see why it did not have the power to do so, although such 
appointee be a second one, just the same as, under like cir- 
cumstances, it had power to appoint originally. The juris- 
diction of the court was complete, and there is nothing in the 
statute, which confers the power of appointment, to indicate 
a limitation upon the court in respect to its exercise. The 
discretion is with the court to appoint, or decline to, as pub- 
lic interest seems to require and demand. 

The petitioner relies upon the case of Gray, District At- 
torney, V. District Court, reported in 42 Colorado 298, as de- 
termining that the court had no jurisdiction to appoint in this 
case. The two cases are clearly distinguishable. The thing 
in the Gray case which disclosed lack of jurisdiction in the 
court to remove him, was the fact that it did not appear that 
he had any personal interest in the subject-matter of the 
trial. In this case it is shown that the petitioner has pre- 
cisely the sort and kind of interest in the matter to be exam- 
ined that is, by statute, made cause for the removal of a regu- 
lar district attorney and the appointment of a special prose- 
cutor. In the Gray case the interest contemplated by statute 
was wholly lacking; while here such interest fully appears. 
Under the facts and circumstances of this case, the court be- 
low clearly had authority to appoint Sabin, and the informa- 
tions presented by him were lawfully and properly filed and 
must be disposed of in the manner prescribed by law for the 
disposition of all criminal charges. 

Since the informations were presented by one duly 
authorized, whatever objections or defenses there may be to 
them, some of which have been suggested in these proceed- 
ings, either in law or fact, must be offered and urged in the 
trial court, in the usual and ordinary way, where a complete, 
adequate and speedy remedy at law is afforded, with full 
opportunity for review should there be occasion for it. To 
hold otherwise would be, in effect, to convert the writ of pro- 
hibition into a writ of error, a course which is contrary to 
reason and unsupported by precedent. 

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;242 PEOPI.E EX REL. V, EtlSTiaCT CoURT. [54 Cplo. 

The application and alternative order are dismissed and 
-the writ of prohibition denied. 

Decision en banc. 

Mr. Justice Musser not participating. 

Mr. Justice Hiix dissenting : 

I cannot agree with the conclusion reached by the ma- 
jority. In People ex rel, v. District Court, 23 Colo. 466, it 
was held that the district attorney has power to discontinue 
any criminal cause without the consent of the court, and that 
prohibition lies to restrain a district court from trying a crim- 
inal cause after the district attorney has entered a nolle 
prosequi. It is an elementary principle of law that nothing 
-can be done indirectly which cannot be done directly. This 
applies to the courts as well as to everyone else. It appears 
to me that our refusal to grant this writ is to allow a violation 
of this elementary principle. In Gray v. District Court, 42 
Colo. 298, we held that the writ of prohibition will lie 
against the appointment of a special prosecutor to act as dis- 
trict attorney where the facts disclosed were not sufficient to 
authorize the appointment. 

The record discloses, that the court (Honorable Charles 
McCall, judge presiding), upon October the 3rd, 1910, 
(after the filing of Maloney's first affidavit) appointed attor- 
ney Smith as special prosecuting attorney therein, to investi- 
gate and take such steps in the premises as he deemed proper, 
^ith all the powers of a duly qualified district attorney and 
as fully as if his powers were especially set forth and enum- 
erated in the order; he performed these duties unquestionably 
proper, lawful and right, as they appeared to him. In so do- 
ing upon November the nth, 1910, he filed an information 
-against six persons, among which were the district attorney 
and his deputy; these latter two, upon Nbvember 21st and 
22nd, 19 10, were tried and by court instructions (Honorable 
Charles Cavender, judge presiding), the jury returned ver- 

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Jan., '13.] PEOPue EX REL. v. District Court. 243 

diets of not guilty and they were discharged. There does not 
appear to have been any steps taken to have the rulings of 
judge Cavender reviewed by this court, as provided for by 
law in case the district attorney feels that such rulings were 
wrong. Thereafter, special prosecutor Smith entered a nolle 
prosequi as to the other defendants named in the information 
and they were discharged. Upon January 21st, 191 1, attor- 
ney Smith filed his report in said court (addressed to and 
considered by Honorable Charles McCall, judge presiding). 
This report discloses, that he made a full investigation of the 
entire matter by talking with Maloney and members of his 
family, with other election judges and others who were pres- 
ent and saw what took place at the time referred to; that 
after having made this investigation he prepared and filed the 
information charging, not only those named in the Maloney 
affidavit (who were Morgan, Street, Kavanaugh, Kille and 
Frederick) but also one Fogle, with the commission of a 
crime in connection with the transaction. After filing this 
report and its acceptance, he was discharged from any fur- 
ther duty in respect to said matters. Thereafter, on March 
nth, 1911, Maloney filed another affidavit charging sundry 
crimes to have been committed by the same persons at the 
same time, all growing out of the same transaction covered 
in his former affidavit. In the second affidavit he sets forth 
the fact of filing his former one, the actions taken thereunder, 
the result of said trial and dismissals, he also sets forth 
therein his version of the trial of Morgan and Kavanaugh 
and the dismissal as to the others and his reason for being 
dissatisfied therewith. His second affidavit reads in part as 
follows : 

"That this honorable court has heretofore appointed an 
attorney at law to inquire into and investigate the riotous 
conduct and assault of the said parties hereinbefore men- 
tioned, and the said attorney so appointed, after due investi- 
gation, filed a cettairi information in this court therein, mak- 
ing certain charges against the said Morgan and Kavanaugh,. 

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244 People Ex rei^ v. District Court. [54 Colo. 

and the said mentioned Morgan and Kavanaugh were 
brought to trial and a jury empanelled to try the charges 
therein made against the said Morgan and Kavanaugh, and 
the affiant herein took the stand and testified in said cause; 
that upon the conclusion of affiant's testimony, the honorable 
judge then sitting, directed a verdict in favor of the defend- 
ants in said cause, and suggested to the special prosecutor 
that all other cases in which informations had been filed be 
nollied; thereupon the said special prosecutor stated to the 
court that he had several competent and credible witnesses 
present who could and would testify to the effect that Claude 
E. Street on said September 3rd, 1910, drew a gun or re- 
volver upon this affiant, and that the said witnesses would 
testify as to the facts concerning said assault; that the judge 
then sitting refused to hear such testimony and dismissed 
said suit, and upon the suggestion of the judge then sitting, 
the said special prosecutor nollified all other cases in which 
informations had been by him filed. 

This affiant respectfully represents and states that in his 
opinion the erids of justice were not meted out, and that the 
parties who participated in said riot and assault should and 
ought to be prosecuted, and all the facts presented to a jury 
touching the guilt of the said parties of the matters charged 
herein." 

It was upon this affidavit that the court (Honorable 
Charles McCall, judge presiding), appointed a second spe- 
cial prosecutor to investigate the matters set forth therein 
holding, that the district attorney and his deputy being in- 
terested, were disqualified. Upon August loth, 1911, Ma- 
loney filed another affidavit charging Street, Frederick, Kille 
and Fogle with an assault upon his person with a deadly 
weapon, being the same charge stated in his first affidavit 
against the first three, and the same charge included in the 
information against all of them theretofore nollied by attor- 
ney Smith. August loth, 191 1, a second special prosecutor 



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Jan., '13.] PEOPLE EX REL. v. District Court. 245 

filed informations against all of said parties, as stated in the 
opinion. These included the identical charges against Street, 
Frederick, Kille and Fogle covered by the informations there- 
tofore nollied by Smith. 

The motion of the district attorney includes and involves 
the validity of the appointment of the second special prose- 
cutor, and his right 'to review the work of the first one, as 
well as to file new informations and try defendants there- 
under where similar ones were theretofore nollied by the for- 
mer special prosecutor, as well as to continue a disability 
against the district attorney in the performance of duties be- 
longing to that office in his district. 

I have set forth at length the facts in order to show that 
the efforts of Mr. Maloney were, as stated in his second affi- 
davit, to secure an investigation by a second special prosecu- 
tor, of the same matter for which the first one was appointed 
and acted, in hopes that he might reach a different conclusion 
from the first, and also to secure another trial covering the 
same transaction, or practically so, by making the charges 
slightly different from those theretofore tried, and also to 
secure the filing of two new informations charging the iden- 
tical offenses against some of the same defendants that were 
contained in the first information which the first special 
prosecutor had nollied, and also to secure trials thereunder. 

If as held in the case of People ex rcL v. District Court, 
supra, prohibition Hes to restrain a district court from trying 
a criminal case after the district attorney has entered a nolle 
prosequi therein, then it appears to me that by denying this 
writ we are allowing this court to do, indirectly, what we 
have heretofore held that it cannot do directly, to-wit, by 
appointing a second special prosecutor; it also allows him to 
file new informations and try the identical charges contained 
in the information nollied by the first special prosecutor, with- 
out any showing that the first special prosecutor was in any 
way disqualified to act or had failed or refused to dct. Like- 



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246 People ex rel. v. District Court. [54 Colo. 

wise, we are allowing a complaining witness, who is dissatis- 
fied with the district attorney's (in this case the special prose- 
cator's) investigation of matters, without making any show- 
ing against him, to have another appointed to investigate the 
same transaction, who, perchance, may arrive at a conclusion 
in harmony with the views of the complaining witness ; in my 
opinion, the court was without jurisdiction to do so. It will 
be observed that there is rio contention made that Mr. Smith 
was disqualified or that he did not perform his duties as he 
saw them, or that he refused to act in the matter; but to the 
contrary, the record throughout discloses that he investigated 
the entire matter, this is self-evident, not only from his re- 
ports, but from the fact that he informed against Fogle, 
whose name is not mentioned in Maloney's first affidavit. To 
my mind, unless there is some showing to the contrary, no 
other rational view can be given his acts; for these matters 
he was the district attorney, he was learned in the law, he 
knew if dissatisfied that he could have had judge Cavender's 
rulings on law points reviewed by this court, also that the 
authority to enter a nolle prosequi against the other defend- 
ants, or to file any other informations pertainhig to this en- 
tire transaction was vested in him; having done nothing fur- 
ther than as above stated, we must assume until a showing is 
made to the contrary that he took all action therein he 
thought proper and that he disposed of the entire matter as 
seemed lawful and proper to him before making his report 
and receiving his discharge. It was after all these matters 
had transpired that Maloney filed his second affidavit, and 
without making any charge to disqualify Mr. Smith or im- 
peach his good faith or honesty, he attempts to again have 
the entire matter reviewed by another special prosecutor. Un- 
der the rulings in Gray v. District Court, supra, in my opin- 
ion, under such circumstances the court was without juris- 
diction to make the second appointment. It will be observed 
that it is the actions of Mr. Smith as special prosecutor which 

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Jan., '13.] People ex reu v. District Court. 247 

it is sought to have thus reviewed. If it were alleged that he 
was interested or otherwise disqualified, then the trial court 
would have something to pass upon, but this is not the case; 
neither is there any showing that Mr.. Smith had failed to in- 
vestigate, had overlooked or left unfinished before his dis- 
charge, any portion of the entire transaction, but to the con- 
trary his report discloses that he had finished and disposed 
of the entire matter. Mr. Maloney's second affidavit informs 
the court of Mr. Smith's appointment and his investigation 
and disposition of the matter, but in a manner not satisfac- 
tory to him. This was the state of the record upon the filing 
and presentation of Mr. Maloney's second affidavit and upon 
Avhich the majority opinion says, the power and authority of 
the court were invoked and that nothing remained for the 
court to do but to designate a representative of the people to 
act upon the matters thus presented to the court. As I view 
it the second Maloney affidavit, when considered in connec- 
tion with the Smith report (on file) to which it refers, dis- 
closes to the court the necessary facts showing that it was 
without jurisdiction to appoint a second special prosecutor, 
unless the rulings announced in both of the decisions above 
referred to are to be overruled; or we are to now say that 
things can be done by the courts indirectly which we have 
heretofore held cannot be done directly. 

Decided January 6, A. D. 1913. Rehearing denied 
March 3, A. D. 1913. 



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248 SlI^FORD V. SXRATTON. [54 Colo. 

[No. 7611.J 

SiLFORD ET AI^ V. StrATTON. 

1. Tax TiTLE — Void Deed — ^A treasurer's deed appearing upon Its 
face to be based on a sale to the county, and an assignment of the cer- 
tificate by the county clerk more than three years after Its issuance^ 
is TOid. 

2. Limitations — Color of Title — Good Faith — ^A deed void upon 
Its face Is sufllclent color of title to set In motion the seven-year limi- 
tation act (Rev. Stat, sec. 4087). But It Is not conclusive of the good 
faith of the party claiming thereunder. AflElrmatlve evidence may be 
produced that the party claiming under such a conveyance, and assert- 
ing the defense of the statute, was conscious of the Infirmity of his 
title, and while making payment of taxes, sought, by shifting the title 
through conveyances not recorded, to prevent the paramount owner 
from efTectually assailing It. One so conducting himself will be denied 
the benefit of the statute. 

Appeal from Washington District Court, — Hon. H. P. 
BuRKE^ Judge. 

Messrs. Allen & Webster, for appellants. 

Mr. John F. Mail, for appellee. 

Mr. Justice Bailey delivered the opinion of the court: 

Complaint, in the usual form, was filed March 22, 1909^ 
to quiet title to the land in controversy. The answer denies 
the allegations of the complaint, except wherein it alleges 
that defendant claims an interest in the land; it then sets up 
title in fee from the United States, by mense conveyances, in 
defendant ; also title through a decree of the district court of 
Washington county, rendered and entered April 11, 1908, in 
favor of defendant, and against one E. P. Dalander, through 
whom plaintiffs claim title. In the complaint in that suit it 
is alleged, among other things, that no person other than E. 
P. Dalander claimed any interest in the land in dispute, of 
record or otherwise, at the time the suit, in which that decree 
was rendered, was commenced, October 31, 1907. By re- 
plication all new matter in the answer is denied. For a fur- 
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Jan./ 1 3-] SiLFORD V. Stratton. 249 

ther reply, plaintiffs set up title in themselves, through a tax 
deed executed and recorded on the 27th day of January, 
1901, from the county treasurer of Washington county, con- 
veying to the remote grantors of plaintiffs the land described 
in the complaint; that such deed purported to convey these 
lands in fee simple, and was color of title made in good faith ; 
that thereafter, under such color of title, the land being mean- 
while vacant and unoccupied for more than seven successive 
years prior to the commencement of this action, plaintiffs and 
their grantors paid all taxes assessed thereon, and plaintiffs 
are therefore, under the statute, the legal owners thereof, ac- 
cording to the extent and purport of their paper title, for 
which reason the claim of title by the defendant is barred by 
the statute of limitations, section 4090, Revised Statutes of 
Colorado, 1908. The decree and judgment was for the de- 
fendant, that he is the owner in fee and entitled to the posses- 
sion of the premises; that the treasurer's tax deed in question, 
and all conveyances thereunder, be canceled and set aside, and 
the cloud thereby created removed; and that defendant re- 
fund to the plaintiffs all taxes, paid by them and their pre- 
decessors, on the land, with interest and penalties. Plaintiffs 
bring the case here for review on appeal. 

The sole question is, whether the claim of plaintiffs; un- 
der color of title, was made in good faith. The tax deed of- 
fered in evidence is void on its face, because it shows that it 
is based upon a certificate of sale of the property to the 
county which was assigned by the county clerk of Washing- 
ton county more than* three years after its issuance; so that 
this deed may only be counted upon as color of title. Plain- 
tiffs rely upon title through it, and the payment of taxes for 
more than seven successive years, to defeat the claim of de- 
fendant. The proof, in addition to the tax deed, and mesne 
conveyances which purport to vest title in plaintiffs, shows 
that the taxes assessed upon this land for the years 1900 to 
1908, inclusive, were paid by the plaintiffs and their grantors 
and predecessors in interest. If the claim of title was made , 

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250 SiLFORD V. STRATTON. [54 Colo. 

in good faith, then it appears that the statute has in fact run^ 
and that the title of the defendant is barred. 

The record shows that the tax deed was issued to Fred- 
erick H. Davis and Charles T. Kountze on January 26, 1901^ 
and passed to record on that day in the office of the county 
clerk. On July 20, 1906, Davis and Kountze conveyed to E- 
P. Dalander, which deed was duly recorded. On February 
16, 1907, E. P. Dalander conveyed to S. A. Dalander, but 
this deed was not recorded until January i, 1908. Notice of 
lis pendens in the suit of Straiton v. Dcdander, begun October 
31, 1907, was filed December i8th next thereafter. S. A. 
Dalander conveyed to Ida C. Silford, December 21, 1907^ 
deed not recorded until June 15, 1908. March 19, 1908, E. 
P. Dalander filed a disclaimer in the Stratton suit. On April 
II, 1908, decree was entered in that suit in favor of Stratton^ 
quieting title in him. On June 13, 1908, Ida C. Silford con- 
veyed to Charles A. Silford, one of the plaintiffs herein^ 
which deed was recorded June 15, 1908, on the same day 
that the deed from S. A. Dalander to Mrs. Silford was re- 
corded. On February 4, 1909, Charles A. Silford conveyed 
an undivided one-half interest in the premises to August 
Muntzing, which deed was recorded on the same day. 

The testimony shows that Muntzing, one of the plain- 
tiffs, was a member of the law firm of Muntzing & More, at 
Akron, Colorado, which had charge of the litigation between 
Stratton and Dalander, and that the correspondence of that 
firm concerning the same was mainly had with the other 
plaintiff, Charles A. Silford, residing *in Iowa. The testi- 
mony of Silford shows that he is a brother-in-law of E. P. 
Dalander; that he was entirely familiar with the purchase by 
the latter of this property from Davis & Kountze; that he 
knew of the conveyance of E. P. Dalander to S. A. Dalander, 
in February, 1907, and of the pendency of the suit between 
Stratton and Dalander, to quiet title in the former to the land 
in question, but does not think this knowledge came to him 
before January i, 1908; that he knew of the filing of the dis- 

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Jan.,'i3.] S11.FORD V. Stratton. 251 

daimer by E. P. Dalander on March 18, 1908, and knew that 
Muntzing & More were Dalander's attorneys; that he had 
had correspondence with them relative to the defense of suits 
involving several pieces of land in Washington county; that 
he knew when they filed the disclaimer for E. P. Dalander 
that the title had been conveyed to S. A. Dalander; that Ida 
C. Silford, to whom S. A. Dalander conveyed on December 
21, 1907, ten days before the latter's deed was recorded, is 
his wife, and he knew of the conveyance to her; his wife con- 
veyed to him on the 13th of June, 1908, and he afterward 
conveyed an undivided one-half interest to August Muntzing, 
the other plaintiff in the suit. In short, it satisfactorily ap- 
pears from Silford's testimony, although he was an unwilling 
witness, called by the defense, that he had intimate knowledge 
of the entire transaction and was fully apprised of all the facts 
connected with it. The suit by Stratton to quiet title against 
E. P. Dalander was instituted before a single deed included 
in the chain of title under which plaintiffs now claim was 
seven years old. This suit had been begun in apt time, 
against the only person then of record as owner of the land, 
to have the tax deed declared void, of which fact Silford was 
well aware. Muntzing was attorney for Dalander, and must 
have been equally well advised. The tax deed through which 
plaintiffs claim was void on its face. No title could come 
from it except through the statute of limitation, upon proof 
that everything needful to be done to make it applicable had 
been done. Therefore it would not do to permit the owner of 
the patent title to reach the holder of the tax title in a suit to 
cancel the same before the statute had fully run, otherwise 
this worthless claim would be completely overthrown. It 
must be apparent to the most casual observer that it was to 
avoid that inevitable result that the title to this land was jug- 
gled among members of the family, deeds withheld from the 
record and the actual holder of the tax title kept undisclosed 
for the express purpose of allowing the limitation statute to 
run before the holder of the tax deed could be reached by 



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252 Siu^oRD V. Stratton. [54 Colo. 

legal process. A careful inspection of the record shows any- 
other conclusion untenable. Under such circumstances it is 
impossible to say that the claim of plaintiffs under color of 
title is made in good faith. On the contrary, it clearly ap- 
pears from the facts in the case that the element of good faith 
was entirely lacking, and that plaintiffs knew that the title 
relied on was in fact no title. 

Under the statute of limitations relied upon, in addition 
to the fact that the land must have been vacant and taxes 
paid for seven successive years, three things are essential: 
there must be color of title; the party must claim under it; 
that claim must be made in good faith. If any one of these 
elements be lacking the title will be defeated. 

While this court has held that a deed void on its face is 
sufficient color to set the seven-year statute of limitation in 
motion, it has never held that such a deed coupled with the 
payment of taxes, is conclusive of good faith. So that it was 
competent for the defendant in this case, as was done, to in- 
troduce affirmative proof to establish the fact that the plain- 
tiffs did not act in good faith in the transaction. It was 
within the power of Silford to have the question of the valid- 
ity of the tax title determined once for all, by having the 
holder of it appear in the Stratton suit. He not only did not 
do this, but instead, by affirmative action, put it beyond the 
power of Stratton to locate that title, and so reach and bring 
into court the actual holder thereof. His conduct in this par- 
ticular furnishes additional proof of lack of good faith. It 
being clear that the element of good faith is absent, the plain- 
tiffs ought not to be permitted to successfully rely upon the 
statute of limitation. 

That good faith is essential, where in asserting a claim 
under color of title the statute of limitation is relied on, is 
settled by a number of authorities in our own state. In 
Lebanon Mining Company y. Rogers, 8 Colo. 34, discussing 
the matter of good faith, in connection with clgiim and. color 



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Jan., '13.] Sii^oRD V- Stratton. 253 

of title, tinder a plea of the statute of limitation, which at that 
time was five years instead of seven, as now, the court said : 

"We come now to the second question presented in this 
case, viz. : appellant's affirmative defense, the statute of limi- 
tations. Under the act referred to (see General Statutes, sec. 
2186 et seq.), the possession must have been for five years 
with 'claim and color of title in good faith.' 

It is extremely doubtful, particularly in view of section 
2189 being section 4 thereof, if this act was intended to apply 
in cases where the disputed territory is patented ground; but 
we are not obliged to pass upon that question. The posses- 
sion is averred in the answer to have continued for about five 
and a half years prior to this suit. In view of what has al- 
ready been said, it appears that such possession could not 
have been for five years under claim of title in good faith, for 
the Wolfley case was decided some time previous to the ex- 
piration of that period. Moreover, the matter of good faith 
is expressly made material by the statute. It was appellant's 
duty to prove not only his claim and color of title, but also 
the bona fides thereof; this it made no effort or offer to show. 
We do not think the court erred upon this branch of the 
case," 

In that case the appellant was claiming through a patent 
which had been theretofore declared not to include the ground 
in controversy. The court held, in substance and effect, that 
inasmuch as the patent had been held not to cover the dis- 
puted premises, no presumption of good faith obtained in 
favor of one claiming under it, with full knowledge of the 
previous holding, but that good faith must be established by 
other proof. 

And again in Arnold v. Woodward, 14 Colo. 164, be- 
ginning at the bottom of page 168, it was said : 

*'The claim of a bar by the statute of limitations (Gen. 
Stat., sec 2186), is not well taken. Arnold's entry in the 
land-office had been set aside or disregarded, and the patent 
from the United States had issued to Woodv(rard. Such is^ 

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254 SiLifORD V. Stratton. [54 Colo. 

suance of the patent necessarily indicates that all steps re- 
quired in connection therewith were duly taken. During a 
large part of the period covered by Arnold's alleged adverse 
holding, these facts existed and were known to him. Under 
the circumstances, there was not such a 'claim and color of 
title made in good faith' as laid the foundation for an appli- 
cation of the statute." 

In the case of Warren v. Adaffis, 19 Colo. 515, on pages 
525 and 526, the court said: 

"Nor can the appellants avail themselves of the pro- 
visions of section 2187 of the General Statutes, by reason of 
the payment of these taxes. The 'color of title' therein re- 
ferred to must arise out of some conveyance purporting to 
vest in the grantee an interest in his own right adverse to the 
true owner, and not from one that constitutes him a trustee 
of the title for the use and benefit of such owner. And, fur- 
thermore, such claim or color of title must be made in good 
faith." 

And again in De Foresta v, Gast, 20 Colo. 307, at page 
311, the court said: 

"In this case, defendant having color of title to the land 
by virtue of his tax deed, and having paid all taxes on the 
land for more than twice the period prescribed by the statute, 
is entitled to its protection, provided he has acted in good 
faith in the transaction." 

In the case of Hardin v. Gouveneur, 69 111. 140, the su- 
preme court of Illinois used this language : 

"In a number of cases it has been inaccurately said, that 
a deed purporting to convey title is claim and color of title, 
made in good faith. Such a deed is undoubtedly color of 
title, having been received by the grantee, and acted under as 
though it conveyed title, such action implies claim of title. 
But color and claim may be made in good faith or in bad 
faith. The good or bad faith is not a result of color of claim. 
The faith, whether good or bad, depends upon the purpose 
with which the deed is obtained, and the reliance placed upon 

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Jan., '13.] SiLFORD V. Hayes. 255 

the claim and the color. A party receiving color of titkj^ 
knowing it to be worthless, or in fraud of the owner's rights,, 
although he holds the color and asserts the claim, can not ren-^ 
der it availing, because of the want of good faith." 

The foregoing statement fits the facts in the case at bar 
and supports the conclusion here reached. The court below, 
having determined the controversy in accordance with the 
views herein expressed, the judgment must be affirmed. 

Judgment affirmed. 

Chief Justice Musser and Mr. Justice White con- 
cur. 



[No. 7612.] 

SiLFORD ET AL. V. HaYES. 
The case ruled by the Judgment In number 7611 ante 248. 

Appeal from Washington District Court. — Hon. H. P. 
Burke, Judge. 

Messrs. AixEn & Webster, for appellants. 

Mr. John F. Maii^, for appellees. 

Mr. Justice Bailey delivered the opinion of the court r 

This case was tried below, and argued here in connection 
with case No. 761 1, Charles A. Silford and August Munt- 
zing. Appellants, v. W. S. Strait on, Appellee, just decided,. 
The proofs and pleadings are substantially alike in both cases. 
The conclusion in No. 761 j is decisive of and determines the 
matters at issue in this case, and requires an affirmance of the 
judgment. Judgment affirmed, 

Chiei^ Justice Musser and Mr. Justice White con- 
cur. 

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256 Colorado Assurance Co. v. Clayton. [54 Colo. 

[No. 7218.] 

Colorado National Li^E Assurance Co. v. Clayton, 
Commissioner of Insurance. 

1. CoNSTiTUTiONAii hAW—Revetiue Bills — ^A bill designed to ac- 
complish some well defined purpose other than raising revenue is not 
within the prohibition of sec. 31, art. V of the constitution, even 
though, as incident to its main purpose, it contains provisions, the en- 
forcement of which may produce revenue. An act, the primary pur- 
pose of which is to regulate insurance companies (Laws 1907, c. 19S, 
Rev. Stat, c. 70) is not to be regarded as within the constitutional pro- 
vision merely because certain small fees, and a tax upon the gross 
amount of the premiums collected in each year, are imposed upon the 
insurance companies. 

2. Statute Unconstitutional in Part — If a statute contains an 

unconstitutional provision which was inducement to its passage, and 
all its parts are so closely connected as to compel the conclusion that 
the act would not have been passed without the vicious provision, the 
infected clause must be condemned to the extent of the infection. 

3. • Statutes — Construed — An act making elaborate provision for 
regulating the business of insurance, and the conduct of insurance 
companies (Rev. Stat., c. 70) contained a section imposing, beside cer- 
tain fees, an annual tax upon the gross amount of the annual pre- 
miums collected by the insurance companies, and exempted such cor- 
porations from all other taxes except those assessed upon real prop- 
erty. This exemption was void under sec. 6 of art. X of the constitu- 
tion. Considering that since. 1883, in all legislation upon the subject, 
insurance companies had been required to pay, in some form, a similar 
regulation tax, held, that the clause containing, the exemption might 
be rejected, and the residue of the section saVed. 

Error to Denver District Court. — Hon. GreelEy W. 
Whitford, Judge. 

Mr. Clarence A. Brandenburg, Mr. Jacob Fillius 
and Mr. William E. Hutton, for plaintiff in error. 

Mr. Benjamin Griffith, attorney general, and Mr. 
Archibald A. Lee, deputy attorney general, for defendant 
in error. 



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Jan./ 13.] CowJRADo Assurance Co, v. Ci^yton, 257 

Mr. Justice Garrigues delivered the opinion of the 
court : 

I. December, 1969, plaintiff filed a complaint in the 
district court at Denver, alleging its incorporation tinder the 
laws of Colorado; that the l^islature in 1907 passed an act 
regulating insurance companies within the state, and that de- 
fendant is the commissioner of insurance provided by the act ; 
that section 16 of the act provides: 'All insurance companies 
engaged in the transaction of the business of insurance in 
this state, shall annually, on or before the first day of March, 
in each year, pay to the commissioner of insurance, two per 
cent, on the gross amount of premiums received within this 
state during the year ending the previous 31st day of Decem- 
ber. Insurance companies shall not be subject to any fur- 
ther taxation except on real estate, and the fees provided by 
this act' ; that section 74 repeals all laws relating to insurance 
in force prior thereto; that section 16 is a revenue measure 
and unconstitutional, because it originated in the senate, in- 
stead of the house; also that it violates sections 6, 9 and 10, 
article X, of the constitution; that prior to March ist, 1909, 
plaintiff was enjoying in this, and other states, a large and 
profitable life insurance business; that its right to continue in 
business in this state depended upon its securing annually on 
the I St of March, a license from the commissioner of insur- 
ance, and its right to transact business in other states depends 
upon its right to continue in business in this state; that 
the insurance act provides: Should the commissioner of in- 
surance refuse to renew plaintiff's license, it becomes his duty 
to publish the fact in one or more of the Denver daily papers, 
and prohibits plaintiff from transacting any insurance busi- 
ness in this state until its authority shall have been restored 
by the commissioner; that its success depends on securing 
new business, and a failure to obtain a license upon the ist of 
March, would have destroyed its business in Colorado, and 
would have caused the revocation of its license to do business 



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258 Colorado Assurance Co. v. Clayton. [54 Colo. 

in other states, because it is prohibited from transacting busi- 
ness without a license. Notwithstanding which, defendant, 
as commissioner of insurance, on March ist, 1909, refused to 
renew the petitioner's license, or to issue to it a license unless 
it paid to him as commissioner of insurance, a two per cent, 
tax on the gross amount of premiums it received within the 
state during the year ending the previous 31st day of Decem- 
ber, and threatened in that event to publish that plaintiff's 
license had not been renewed, and that it could not longer 
transact business within the state, and alleged should it at- 
tempt to do so, that its officers and. agents would be liable to 
fine and imprisonment; that to prevent the destruction of its 
business, and to secure the required license, plaintiff then and 
there, under duress and under protest, and claiming and in- 
sisting that section 16 was unconstitutional and void, and that 
defendant as commissioner of insurance had no right to in- 
sist upon payment to him of the two per cent, tax, paid de- 
fendant as commissioner of insurance, the sum of $3,842.48, 
which was two per cent, of the gross amount of premiums re- 
ceived within the state during the year ending the previous 
31st day of December, and thereupon defendant issued to 
plaintiff a license; that when the license was refused, plain- 
tiff had complied with all the remaining insurance laws of 
Colorado; that defendant refused to return the money, 
though requested so to do; and it prays judgment for 
$3,842.48, with eight per cent, interest from March ist, 1909, 
and costs. 

December 13, 1910, the court sustained a general de- 
murrer to the complaint, and plaintiff electing to abide by its 
complaint, entered judgment for defendant, and plaintiff 
brings the case here upon error. 

2. The legislature passed insurance acts in 1883, 1895- 
and 1907, all of which required the payment of certain enum- 
erated fees and a two per cent; tax on premiums. The act 
of 1883 required the payment of enumerated fees,, a two per. 
cent, tax annually on net premiums, and exempted insurance 

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Jan.,' 13.] Cow)RADO Assurance Co. v. Ciayton. 259 

companies from further taxation except upon real estate. 
The act of 1895 required the fees, the payment of a two per 
cent, tax annually upon gross premiums received during the 
year; but made no exemptions. The act of 1907 repeals all 
prior acts, reorganizes and re-establishes the department of 
insurance with a commissioner of insurance at its head, and 
is a comprehensive code of insurance laws intended to pro- 
tect the people and regulate the insurance business and insur- 
ance companies doing business within the state. It requires 
the payment of enumerated fees, a two per cent, tax annually 
on gross premiums, and exempts them from further taxation 
except on real estate. 

3. This exempting clause in section 16 was held un- 
constitutional in Imperial Co. v. Denver, 51 Colo. 456; that 
is, it was there held that insurance companies must pay taxes 
on all their property, and that the exemption was illegal on 
account of constitutional restrictions, and it is claimed this 
makes the two per cent, tax ill^al because the exemption was 
the consideration or inducement for its passage. 

4. Plaintiflf contends the tax is a revenue measure, and 
unconstitutional because the act originated in the senate in- 
stead of the house. This contention does not meet with our 
approval. A bill designed to accomplish some well defined 
purpose other than raising revenue, is not a revenue measure. 
Merely because, as an incident to its main purpose, it itiay 
contain provisions, the enforcement of which produces a rev- 
enue, does not make it a revenue measure. Revenue bills are 
those which have for their object the levying of taxes in the 
strict sense of the words. If the principal object is another 
purpose, the incidental production of revenue growing out of 
the enforcement of the act will not make it a bill for raising 
revenue. The primary object and purpose of this bill was to 
regulate insurance companies, and the insurance business in 
the state. It is a r^ulation or supervision tax, and the 
method of arriving at the amount, or because of its operation 
the act produces an excess which is required to be turned into 

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26o Colorado Assurance Co. v. Clayton. [54 Cola 

the general fund, does not affect its validity or render it an 
act for revenue. — 26 Am. & Eng. Enc. of I^aw, 539; i Story 
on the Constitution (5th Ed.), sec. 880; i Andrews' Am. 
Law, 241 ; Twin City Nat. Bank v. Ndbeker, 167 U. S. 196; 
Northern Counties Trust v. Sears, 30 Ore. 388; French v. 
People, 6 Colo. App. 311 ; Home Ins. Co. v. N. Y., 134 U. S- 

594. 

5. The remaining question is, what effect does the ex- 
emption clause in the section have upon the two per cent, tax ; 
does it destroy the tax or does the remainder of the section 
stand without the exemption? Will the intent of the legis- 
lature be defeated by holding the exemption invalid, and the 
two per cent, tax valid ? It is fundamental in the construction 
of legislative acts, if a statute contains an unconstitutional 
clause which was the inducement for its passage, and all its 
parts are so closely connected as to warrant the belief that 
the legislature would not have passed the valid part alone, 
then the law should be declared void. The power of the leg-- 
islature to impose the two per cent, tax may well be conceded ; 
but in determining its legality, we should try to ascertain the 
object and intent of the legislature, and, if we find the two per 
cent, tax on premiums is so dependent upon and closely con- 
nected with the exempting clause that the former would not 
have been passed without the latter, then it is illegal. 

It is claimed by plaintiff, the intention in imposing on in- 
surance companies the two per cent, tax on premiums was 
contingent upon their being exempt from the payment of 
other taxes except on real estate, and as the contingency is 
unconstitutional, the tax does not express the legislative in- 
tent ; that the exemption was the inducement for imposing the 
tax, and the legislature would not have passed one without 
the other. If it is true the exemption was the inducement for 
imposing the tax on premiums, and the two clauses are so 
intimately connected as to make it clear that the tax on pre- 
miums would not have been imposed without the exemption 
then both should be declared illegal. 

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Jan./ 13.] Cou)RADo Assurance Co. v. Clayton. 261 

We have attempted to show that the object of the legis- 
lature was to regulate insurance companies and insurance 
business in the state, and the intent was to create a fund for 
this purpose and for the maintenance of the insurance de- 
partment. We have also said, because it produces an excess, 
which is required to be transferred into the general fund, does 
not make it a revenue measure or change the primary pur- 
pose of the legislature. 

In arriving at the legislative intent, it is proper that we 
should consider the legislative history of this two per cent, 
tax. Insurance companies have been required since 1883, to 
pay a regulation tax of two per cent., sometimes with, and 
sometimes without exemptions; sometimes on gross, and 
sometimes on net premiums; but they have always been re- 
quired to pay it in some form. This shows that it has always 
been the legislative intent since 1883, to require them to pay 
a regulation tax. The exemption has nothing to do with the 
necessity for requiring this tax, and we are not at liberty to 
presume it would not have been imposed without the exemp- 
tion. We have no right under the circumstances and history 
of this tax to say, that because the exemption is unconstitu- 
tional, the tax would not have been imposed. The purposes 
for which it is needed are just as necessary, and just as press- 
ing with or without the exemption. The exemption does not 
change the necessity for, or the object of the tax, or the in- 
tent of the l^islature in requiring it. So it is not apparent 
that the exemption was the inducement which caused the leg- 
islature to impose it. The tax and the exemption are not so 
closely related or connected that the tax cannot stand and the 
exemption fall without doing violence to the legislative in- 
tent. Because the exemption is illegal does not change the 
general object and purpose of the legislature requiring insur- 
ance companies to pay a regulation tax. If the legislature 
had made no exemption, and carried out its object, it is evi- 
dent it would have required a regulation tax. We believe the 
tax can stand without the unconstitutional part and that when 

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^62 In Re Senate Resolution. [54 Colo. 

the invalid exemption is expunged, the act is still operative 
and that the legislative intent can be carried into effect with- 
out the exemption. 

If the section stood alone, as a primary and independent 
revenue measure, there would be force in the contention that 
the enactment of the two per cent, tax was intended to be 
contingent upon insurance companies being exempt from the 
further payment of taxes. But as we have said, the two per 
cent, tax is primarily for the purpose of raising necessary 
funds for carrying the insurance act into effect, and would 
have been just as necessary without exemption. — Stcpte of 
Jowa V. Santee, iii Isl. 1; N, W. Mut Ins. Co. v, Lewis & 
Clark Co. 28 Mont. 484. 

The judgment is affirmed. Affinned. 

Decision en banc, 

Mr. Justice Scott not participating. 

Decided January 24, A. D. 191 3. Rehearing denied 
March 3, A. D. 1913. 



[No. 7900.] 

In Re Senate Resolution No. 4. 

1. L(E»isiATivE Questions — As to Completed Legislation— The 
duty of the court in responding to legislative questions is limited to 
those which relate to proposed legislation. Completed legislation is 
not a subject of legislative inquiry. It is not within the province of 
the court to advise the general assembly as to whether existing legis- 
lation upon any subject satisfies the requirements of the constitution. 
All departments of government are of equal dignity. Neither can de- 
clare that another has not performed a duty Imposed by the consti- 
tution. 



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Jan., '13.] In Re Senate Resoi^ution. 263 

2. Pending Legislation — There were upon the statute book» 

two acts relating to the hours of service of men employed In mlneSr 
smelting furnaces, and other like places, one adopted by the general 
assembly (Laws 1911, c. 149), and which being referred to the pe<K 
pie, had received their approval. The other. Initiated pursuant to sec* 
tion 1 of article V of the constitution, (Laws 1910, c. 3) assuming to* 
repeal the former. This act also received the popular sanction. A 
bill was pending in the general assembly upon the same subject, suIk 
stantlally Identical with the earlier act, repealing both the former 
acts and declaring that the enactment therein proposed was "neceB' 
sary for the Immediate preservation of the public health and safety." 
Upon an Interrogatory from the senate as to its duty In the prem^ 
lse8» it being fairly Inferrable from the communication that it was 
a desire of that body to pass an act which should remove the embar« 
rassments attending the situation so presented, h^ld, that the ques- 
tion was within the provisions of section 3 of article VI of the con- 
stitution. 

3. Involving Private Rights — Considering that private 

rights might have accrued under the act of 1911 or under the 
initiated act the court declined to express an opinion as to which^ 
if either, was in force, or when either took effect, or as to the effect 
of the repealing clause in the Initiated act. 

4. CJoNSTiTUTiONAL Law — Legislative Power — ^Under the provi- 
sion of the constitution (sec. 1, art. V, Laws 1911, c. 3), that "This 
section shall not be construed to deprive the general assembly 
of the right to enact any measure," the legislature may repeal eveir 
an initiated act, approved by the people. And may by declaring that* 
a measure is "necessary for the immediate preservation of the pulv 
lie peace, health and safety," prevent the reference thereof to the 
people. Such a declaration concludes all departments and all parties^ 
in BO far as it abridges the right to invoke the referendum. 



Hon. Fred Farrar, attorney general, Mr. Francis E^ 
BoucK, deputy attorney general, Mr. Henry A. Dubbs, Mn 
Horace N. Hawkins, Mr. Harry B. Tedrow and Mr. Johk 
H. Gabriei., Amid Curiae. 

The honorable senate, now in session, has submitted ques-* 
tions to this court with the request that it* give its opinion- 
upon, and answer thereto, which are preceded by a resolution, 
reciting; in substance, that the twelfth session of the general 
assembly passed an eight hour act, which was thereafter de- 
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264 In Re Senate Resolution. [54 Colo. 

dared unconstitutional ; that at the election on the 4th day of 
November, 1902, a constitutional amendment was adopted 
(section 25-a, art. V), which empowered and directed the gen- 
eral assembly to provide by law for a period of employment 
not to exceed" eight hours within any twenty- four hours, except 
in cases of emergency, where life or property was in imminent 
danger, for persons employed in underground mines, or other 
underground workings, blast furnaces, smelters, and any ore 
reduction works, or branch industry or labor that the gen- 
eral assembly might consider injurious or dangerous to health, 
life or limb, and to prescribe suitable penalties for the viola- 
tion of such law ; that at the fifteenth session of the general as- 
sembly an act was passed, providing for an eight hour day in 
underground mines and underground workings, and in speci- 
fied ore reduction works — Laws 1905, 284; that at the eight- 
eenth session of the general assembly an act was passed — Ses- 
sion Laws 191 1, 454 — which declared that employment in the 
mines, workings, smelters and other reduction works men- 
tioned in the title was injurious to health, and dangerous to 
life and limb ; that the period of employment of men engaged 
in such workings and reduction works should not exceed eight 
hours within any twenty-four hours, except in cases of emer- 
gency, where life or property was in imminent danger, and 
prescribed a penalty ior a violation of its provisions, and in 
express terms repealed the act passed in 1905. The act of 
191 1 was approved June 2, 191 1. It did not contain any 
declaration to the effect that it was necessary for the imme- 
diate preservation of the public health or safety. 

The resolution then recites that, on the 3rd day of Au- 
gust, 191 1, and within ninety days after the eighteenth gen- 
eral assembly had adjourned for the session, there was ad- 
dressed to, and filed with, the secretary of state a petition, 
purporting to be signed by the requisite number of legal voters, 
asking that the 191 1 act be referred to the people for ratifica- 
tion at the ensuing general election ; that thereafter, and on the 

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Jan., '13.] In Re Senate Resolution. 265 

2nd day of July, 19 12, there was addressed to, and filed with, 
the secretary of state a petition, purporting to be signed by 
eight per cent, of the legal voters of the state, requesting that 
there be submitted to the people at the next regular general 
election, for adoption or rejection, a proposed measure, which 
was entitled the same as the act of 191 1, except that instead of 
reciting, "and repeal chapter 1 19 of the Session Laws of 1905, 
approved March 21, 1905, and all other acts and parts of acts 
in conflict with this act," it recites, "to repeal all other acts 
and parts of acts in conflict with this act." Section i of this 
proposed act declared, in substance, that employment in all un- 
derground mines, underground workings, open cut workings, 
open pit workings, or directly attending the reduction works 
or ovens mentioned in the title, was injurious to health, and 
dangerous to life and limb, whenever such employment was 
continuously in contact with noxious fumes, gases or vapors. 
By the next section it was provided that the period of employ- 
ment of men working in all underground mines, underground 
workings, open cut workings, open pit workings, or directly 
attending the reduction works mentioned in the title, should 
not, during any one month, exceed an average of eight hours 
within any twenty-four hours, whenever such employment was 
continuously in contact with noxious fumes, gases or vapors, 
except where life or property was in imminent danger. The 
act then provided a penalty for its violation, and purported to 
expressly repeal the act of 1905 and the act of 191 1. Both 
these measures were published by the secretary of state and ap- 
peared on the official ballot at the general election in Novem- 
ber, 19 12, at which time, according to the certificate of the 
canvassing board of the state, both measures were adopted. 
The resolution then continues : 

"And, Whereas, no proclamation was made by the gov- 
ernor as to the adoption or rejection of either of said two 
measures ; 



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. 266 In Re Senate Resolution. [54 Colo. 

And, Whereas, uncertainty exists in the minds of many 
as to the effect of said election on said act of the eighteenth 
session of the general assembly, approved June 2, 191 1, and 
as to whether or not the said act is now in existence, or 
whether or not it has been repealed. 

And, Whereas, the constitution of the state of Colorado 
provides, as hereinbefore quoted, that "The general assembly 
shall provide by law, and shall prescribe suitable penalties for 
the violation thereof, for a period of employment not to ex- 
ceed eight hours within any twenty- four hours (except in 
cases of emergency where life or property is in imminent dan- 
ger), for persons employed in undergrqund mines, or other 
underground w-orkings, blast furnaces, smelters; and any ore 
reduction works or other branch of industry or labor that the 
general assembly may consider injurious or dangerous to 
health, life or limb; 

Andy Whereas, a question exists as to whether or not the 
duty thus imposed upon the general assembly has been carried 
out, or w^hether the obligation and duty thus imposed on the 
general assembly still exists; 

And, Whereas, the members of this session of the general 
assembly are desirous of performing any duty that may ha\e 
devolved upon them by the constitution ; 

And, Whereas, there has been introduced in the present 
session of this house, and is now pending, an act in the words 
and figures following, to-wit: "Senate Bill No. 47 (By Sena- 
tor Bel lesfield)." 

The title then recites that it is a bill to regelate and limit 
hours of employment in mines, specified workings connected 
therewith, reduction works named, and coke ovens, and to de- 
clare certain employments injurious to health and dangerous 
to life and limb; to provide a penalty for its violation; to re- 
peal the eight hour law of 1905 ; to repeal the eight hour act 
submitted by initiative petition at the last November election; 
and to declare that the act is a law necessary for the imme- 
diate preservation of the public health and safety, and shall be 



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Jan., '13.] In Re Senate Resolution. 267 

in effect from and after its passage, and to repeal all other acts 
and parts of acts in conflict with it. 

Section i of this proposed act declares that employment 
in the mines, reduction works and ovens mentioned in- the title, 
is injurious to health, and dangerous to life and limb. By sec- 
tion 2 it is provided that the period of employment of men 
working in such mines or workings connected therewith, and 
reduction works and ovens mentioned in the title, shall not ex- 
ceed eight hours within any twenty- four hours, except in cases 
of emergency, where life or property is in imminent danger. 
By section 3 a penalty is provided for the violation of the act. 
By the sections following it is provided that the eight hour 
law of 1905 and the act submitted through initiative petition 
at the last general election in November, 19 12, are repealed, 
and that any adoption of the latter was annulled and should 
be held for naught, and that any and all other acts and parts 
of acts in conflict with the present proposed act of the nine- 
teenth session of the general assembly are repealed. Sections 
6 and 7 of the proposed act are as follows : 

"6. It is hereby declared and enacted that this present 
act is a law necessary for the immediate preservation of the 
public health and safety." 

"7. In the opinion of the general assembly an emer- 
gency exists; therefore, this act shall take effect and be in 
force from and after its passage." . 

The resolution then continues : 

"And, Whereas, the constitution of the state of Colorado 
provides that the supreme court shall give its opinion upon im- 
portant questions upon solemn occasions, when required by 
the senate or the house of representatives ; 

And, Whereas, there has been much contention, strife, 
agitation and controversy throughout the state of Colorado 
for many years over the eight hour question, and it is of the 
highest importance to the people that all such questions be 
speedily settled and determined; 



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268 In Re Senate Resolution. [54 Colo. 

Now, therefore, be it resolved by the senate of the nine- 
teenth session of the general assembly of the state of Colo- 
rado, that the supreme court of the state of Colorado be, and 
it is hereby requested, to give its opinion upon, and in answer 
to the following questions : 

(i) Was the said act approved June 2, 191 1, such an 
act as could be referred to a vote of the people at the Novem- 
ber, 191 2, election upon a referendum petition? 

(2) If the said 191 1 act of the general assembly was a 
measure that could be referred by a referendum peti- 
tion, could there legally be submitted to the people by 
initiative petition at the same election another measure con- 
taining a clause repealing said 191 1 act? In other words, was 
it legal when the 191 1 act was to be ratified or rejected at the 
election, to also submit at said election, by initiative petition, a 
measure repealing, or attempting to repeal, a measure which 
the people were, at said election, to ratify or reject, and what 
was the legal effect, if any, of said repealing clause in said 
initiative measure ? 

(3) What was the legal effect of both said initiative 
measure and said referred act receiving a majority vote at the 
same election ? Did both of said measures become the law, or 
only one of them, and if only one of them, which one? 

(4) Is there now any duty devolving upon the general 
assembly, under the constitutional clause hereinbefore quoted, 
or has the duty of the general assembly been fully performed ?" 

This resolution and the foregoing interrogatories were 
accompanied by a certificate, stating that the resolution had 
been duly adopted by the senate, and that the proposed act 
mentioned in the resolution which the senate now has under 
consideration and is designated Senate Bill 47, has passed sec- 
ond reading. 

PER CURIAM. 

From the foregoing resolution, it is evident the honor- 
able senate is confronted with an anomalous situation, from 

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Jan., '13.] In Re Senate Resolution. 269 

the fact that it appears two acts are upon the statute books 
upcMi the same subject, both, apparently, adopted, the initiated 
one containing a repeahng clause which creates uncertainty; 
and that the senate has under consideration a proposed act on 
the same subject, which has passed second reading, the pur- 
pose of which is to take the placd of both the others, and that 
from the questions propounded, though not directly expressed, 
it is the desire of the senate to pass an act which cannot be suc- 
j cessfuUy attacked for any of the reasons which the first three 
I questions impliedly suggest, provided it has authority to do so 
'i in such manner as will prevent the situation now presented from 
I being repeated in the future. We think we are justified in de- 
ducing this conclusion from the fact that if the senate were 
not in doubt regarding its authority in the premises, the pro- 
posed act would be passed in due course, for by so doing the 
two acts mentioned would be repealed, their validity, so far as 
the future is concerned, no longer open to question, and in 
their place there would be but one act, the validity of which, 
on the score of its passage, would be unassailable. We think 
this presents the question of the constitutionality of the pro- 
posed act in particulars we shall later consider, within the con- 
stitutional provision under which the resolution and questions 
have been submitted, the purpose of which was to have un- 
constitutional legislation avoided by having the validity of 
proposed acts determined in advance.' — In re Senate Bill 65, 
District Attorneys, 12 Colo. 466. 

We cannot express any opinion with respect to the valid- 
ity of the referred and initiated acts, which, if either, is in 
force, or when they took effect, or what was the legal effect of 
the repealing clause in the initiated measure, for the reason 
that both purport to be completed legislation ; that under them 
rights may have arisen or attached which should not be deter- 
mined in a purely ex parte proceeding; and for the fdrther 
reason that, so far as the validity of legislation is involved, in 
response to legislative questions, it is confined to proposed 
acts, in order that unconstitutional legislation may be avoided. 



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270 In Re Senate Resoi^ution. [54 Colo. 

and cannot call for a construction of acts already passed. The 
results which would follow any other rule demonstrates that 
the validity of completed legislation cannot be made the sub- 
ject of legislative inquiry; otherwise, this court, at the request 
of the legislative department, could be called upon to deter- 
mine the validity of any number of acts which have been upon 
the statute books for many years, and under which rights, pub- 
lic and private, have attached. 

That we should not determine, in any respect, the valid- 
ity of the referred and initiated acts, however, does not pre- 
vent us from furnishing the information at least impliedly 
sought which will enable the honorable senate to clear the 
situation. The proposed act expressly repeals the act of 1905, 
and also the one initiated, and all other acts in conflict there- 
with. There can be no question about the authority to repeal 
the act of 1905. The question regarding the power to repeal 
the initiated and referred acts (if it can be said the latter is in- 
cluded in the general repealing clause) turns upon a construc- 
tion of the constitutional amendment usually spoken of as 
"The Initiative and Referendum." That is, does this provision 
prevent the general assembly from repealing an initiated act, 
or one which has been referred? We think not, for it ex- 
pressly provides : "This section shall not be construed to de- 
prive the general assembly of the right to enact any measure.'* 
This language is broad and comprehensive. An act repealing 
an act is a measure, and as the general assembly is not de- 
prived of the right to enact any measure, it clearly has the 
power to repeal any statute law, however adopted or passed. 

The next question is, can the general assembly lawfully 
prevent the proposed act from being referred by the declara- 
tion contained in section 6 thereof. To answer this, reference 
must again be had to the constitutional provision under con- 
sideration. It provides that the power reserved designated the 
"referendum," "may be ordered, except as to laws necessary 
for the immediate preservation of the public peace, health or 
safety." Whether a law is of this character, is for the general 

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Jan., '13.] In Re Senate Resolution. 271 

assembly to determine, and when it so determines, by a 
declaration to that effect in the body of a proposed act, we are 
of the opinion that such declaration is conclusive upon all de- 
partments of government, and all parties, in so far as it 
abridges the right to invoke the referendum. Such a declara- 
tion is a part of the act, and may be passed by the majority re- 
quired to pass any act, and is in no sense an emergency clause, 
as contemplated by article Vi, sec. 19. 

As to the fourth question, it is not, in our judgment, 
within the province of this court to say whether or not the 
general assembly has performed the duties imposed by the 
constitution. All departments of government stand on an 
equal plane, and are of equal constitutional dignity. The con- 
stitution defines the duties of each. Neither can call the others 
directly to account for actions within their province ; and so it 
follows, that the judicial cannot say to the legislative depart- 
ment that it has, or has not, preformed its constitutional duties. 
That the legislative department must determine for itself, in- 
dependent of either of the other departments of government, 
by passing such legislation as, in its judgment, the constitution 
requires. The views we have expressed are simply intended 
to aid the general assembly in solving this important question. 

In conclusion, we add that this court will always take 
pleasure in rendering to each house of the general assembly 
such assistance, under the constitutional provision by virtue of 
which the honorable senate has propounded the interroga- 
tories considered, as shall be consistent with its position as a 
separate and independent branch of our state government, and 
in harmony with 'what is deemed a sound exposition of the 
constitution — the paramount law of the state. 

The clerk is directed to forthwith transmit to the honor- 
able senate a copy of this opinion. 

Decision en heme. 



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2y2 Ev^HART V. The Peopus. [54 Cola 

[No. 6549.] 

EvERHART V, The Peopia 

1. Gambuitg — BtisXute Construed — ^Under section 1791, 1792 of 
the RevlBed Statutes neither the keeping of gambling devices nor 
playing a game is prohibited, hut only gaming for money or prop- 
erty, or betting upon the result of a game. 

A game is any sport or amusement, and includes physical con- 
tests, whether of man or beast. 

Gaming is the risking of money or property on a contest of 
chance, skill or hazard, wherever one must win and the other lose. 

Horse-racing is gaming, and a wager on the result of a horse- 
race is within the words of the statute, "any game whatsoever." 

The statute prohibits gambling, the keeping of a place where 
gambling is commonly carried on, the keeping at such place, and ex- 
hibiting of gambling devices, and the betting of money or other prop- 
erty upon the result of any game. 

Gambling devices as used in the statute include any device or 
apparatus kept or used for gambling. 

One who, at a race meeting, had a space adjoining the grand 
stand, a blackboard upon which were entered the names of the horses 
competing, received bets upon the races, and issued cards recording 
the bet, upon the presentation of which after the race he paid the 
sums won, was declared to be guilty of keeping a gambling tabl^ 
establishment, device or apparatus. 

The territorial act of 1867 (Laws 1867, 114) is not a legislative 
construction of the statute against gambling. It simply suspended for 
one day in each year, at a certain place, the operation of the statutes 
against gambling, as to certain specified acts thereby prohibited. 

2. Statutes — Construction — ^Where identical words occur in dif- 
ferent parts of a statute the same meaning is to be ascribed to them 
in each case, unless it clearly appears that a diCTerent meaning was 
intended, e. g., "game," "gaming," and other like words in the dif- 
ferent sections of the criminal code against gambling are to be re- 
ceived in the same sense. Corson v. Neatheny, 9 Colo. 212, approved 
and followed. 

3. Dormant Statute — Things clearly prohibited do not become 
lawful by the failure, for many years, to enforce the legislative will. 

Error to Denver District Court. — Hon. George W. At,- 
LEN, Judge. 



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Jan., '13.] EvERHART V. The Peopi^. 273 

Mr. T. J. O'DoNNEU^ Mr. Edwin H. Park, Mr. John 
W. Graham, Mr. John A. Rush, Mr. Cau>weij. Yeaman 
and Mr. J. D. Benedict, for plaintiff in error. 

Hon. Benjamin Gru^i^ith^ attorney general, and Mr. 
Charles O'Connor, first assistant attorney general, for the 
people. 

Mr. Justice White delivered the opinion of the court : 

An information in two counts was filed against plaintiff 
in error, upon which he was tried and • convicted. The first 
count was under section 1791, R. S., 1908, and charged that 
he "unlawfully did keep and exhibit a certain gaming table, 
establishment, device and apparatus, * * * to win and 
gain money by gambling," etc. The second count was under 
section 1792, R. S., 1908, and charged that he "unlawfully 
did play at a game for a sum of money or other property of 
value, and did make a bet and wager for a sum of money or 
other property of value, upon the result of such game," etc. 

The proven or admitted facts are: that plaintiff in error 
made books and sold pools upon certain horse races held un- 
der the auspices of the Overland Jocky Club at Overland Park 
race tracks, in the city and county of Denver on a certain day. 
Preceding the running of each race the plaintiff in error en- 
tered the names of the horses competing in the race, upon a 
blackboard placed upright upon a table or platform prepared 
for that purpose, adjoining the grand stand at the race tracks; 
and, in conjunction with others employed for the purpose, re- 
ceived the money bet upon the races, giving in exchange there- 
for cards upon which was recorded the bet ; and, after the re- 
sult of each race, paid the sums won to the winners, upon pre- 
sentation and surrender of the cards, keeping the balance, 

Much of the argument of counsel is predicated upon the 
assumption that in order to sustain the judgment of convic- 
tion, it IS essential to hold that horse racing is unlawful within 
the intent of these statutes. The assumption is erroneous and 

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:274 EvERHART V. The Peopi^. [54 Colo. 

•cannot be upheld. Neither the keeping or exhibiting of a gam- 
ing table, establishment, device or apparatus, nor the playing 
at a game is prohibited. On the contrary, such things, as far 
as these sections of the statute are concerned, may be done 
with impunity. It is only when such tables, etc., are kept or 
exhibited to win or gain money or property, or when the play 
at a game is for a sum of money or other property, or a bet is 
made upon the result of such game that the acts become un- 
lawful and the doers thereof subject to punishment. More- 
over, there can be a game without the element of either chance 
'or hazard. A game is any sport or amusement, public or pri- 
vate. It includes physical contests whether of man or beast, 
when practiced for the purpose of deciding wagers or for the 
purpose of diversion, as well as games of hazard or skill by 
means of instruments or devices. — Boughner v. Meyer, 5 Colo. 
71, 74; Corson v. Neathetiy, 9 Colo. 212. 

As defined in the Century dictionary, it is "a contest for 
•success or superiority in a trial of chance, skill or endurance, 
or of any two or all three of these combined : as, a game at 
cards, dice, or roulette; the games of billiards, draughts, and 
dominoes; athletic games; the floral games. The games of 
classical antiquity were chiefly public trials of athletic skill 
and endurance, as in throwing the discus, wrestling, boxing, 
leaping, running, horse and chariot-racing, etc." — Desgain v. 
Wessner, 161 Ind. 205; People v. WeithofF, 51 Mich. 203. 

A horse race, according to the weight of authority, 
though there are decisions to the contrary, is a game within 
the meaning of the statutes against gaming. — 20 Cyc, p. 884; 
Thrower v. State, 117 Ga. 753; Swigart v. People, 154 III. 
284. 

Whether it is such within the meaning of the sections un- 
der consideration, we must now determine. In Corson v, 
Neatheny, supra, we held that a horse race was a game within 
the intent of section 1796, R. S., 1908, citing: Boughner v. 
Meyer, supra; Talman v. Strader, 23 111. 493 ; Shropshire v. 
Glascock et aL, 4 Mo., 536 ; Boynten v. CurW, Id. 599. 

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Jan., '13.] EvERHART V. The People. 275 

Boughner v. Meyer, supra, involved the validity of a 
check, the consideration of which was a wager as to whether 
a certain execution issued upon a judgment would or would 
not be collected. Section 1796, supra, was quoted and the 
question propounded; "Was the consideration of the check 
won by any gaming within the meaning of the section above 
quoted ?" We then said : "If the wager was upon any game^ 
the check is absolutely void in the hands of every holder. 
Horse-racing had been decided to be gaming within the in- 
tent of the language here used. * * * But a wager as to 
whether an execution can be collected, we are constrained to 
conclude, cannot be considered as a wager upon any game." 
It was unnecessary to, and we did not determine therein^ 
whether horse racing is a game within the meaning of that 
word as used in the section. We, nevertheless, declared that 
it had been so decided, citing Tatman v. Strader, supra; 
Shropshire v. Glasscock, supra; Boynton v. Curie, supra. But 
in Corson v, Neatheny, supra, we referred to the Boughner- 
Meyer case, and the authorities therein cited, and expressly 
held that horse racing is gaming within the intent of the sec- 
tion. That the case might have been decided exactly as it was, 
as claimed by plaintiff in error, does not render the holding 
obiter. The decision was based upon the applicability of the 
statute, and, therefore, determined that horse racing is a game, 
and betting thereon is gaming, within the meaning of the sec- 
tion. 

As the section of the statute involved and construed in 
the Corson-Neaiheny case affects only contracts, etc., entered 
into as a result of gaming, or in which the consideration was 
for money, property or other valuable thing won by gaming, 
declaring them void and of no effect, and the decisions cited 
therein are in civil cases, it is claimed that the rule announced 
and applied therein is not applicable in the construction of the 
criminal sections. A sufficient answer thereto is, that the al- 
leged civil section involved and construed in that case, and the 
criminal sections upon which this prosecution is based, are 

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^76 EvERHART V. The People. [54 Colo. 

•embodied in, and form a part of, the same legislative act. — 
Session Laws 1866, p. 56; R. S. 1868, pp. 224, 225; G. L, 
1877, PP- 297-299; G. S. 1883, pp. 332-334; R- S. 1908, sees. 
1791, 1792, 1796. 

We must ascribe the same meaning to the same words 
<x:curring in different parts of the same statute, unless it clearly 
appears therefrom that a different meaning was intended. — 
Dixon V, People, 53 Colo. 527; 127 Pac. 930. 

This does not appear from the statute in question. On 
the contrary, it is clearly evident that the same words in the 
several sections of the act were used in the same sense, and the 
purpose of the law-making power was to suppress gambling, 
Avhich, as used in the act, includes betting and winning money 
or property upon any game whatsoever. The title of the act 
of 1866 is, "An act to suppress gambling and gambling 
houses," and that law has been in no substantial respect 
changed or modified by subsequent legislation. We can not 
assume that the law-making power used the words "game" 
and "gaming" in a different sense in one section of the statute* 
from that in which it employed them in other sections of the 
same act. In the passage of each of these sections the legisla- 
ture must have had in mind the immorality of the acts and the 
evils resulting. Under section 1791 the party violating the 
provisions thereof is to be punished by fine and imprisonment ; 
under section 1792 the offender is subjected to a pecuniary 
penalty, while under section 1796 certain contracts, etc., the 
consideration of which has arisen from the practice of the im- 
moral and inhibited acts, are rendered nugatory and of no ef- 
fect. So, in order to effectually suppress gambling, the act 
subjects the violator thereof to punishment and makes it im- 
possible, upon the instruments designated, for any person to 
reap the fruits growing out of the acts prohibited. 

But Corson v, Neatheny, supra, as an authority is ques- 
tioned. It is claimed that this court in basing that opinion 
upon Tatnum-Strader, supra, did not take into consideration 
the difference between the Illinois statute and the Colorado 

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Jan., '13.] EvERHART V. The People. 277 

statute upon the subject, and that the former statute, after the 
word "game" uses the words "or sport" and contains other 
words not found in the latter statute upon which that decision 
could properly be based. The words "game" and "sport" are 
synon)rmous. — Webster's dictionary. Moreover, the statute 
under consideration in the Tatman-S trader case was section i 
of chapter XLVI of the Illinois Revised Statutes of 1845. We 
observe no substantial difference in respect to the question now 
under consideration between that section and section 1796, 
supra, of our own statute. If anything, the language of the 
latter is broader and more comprehensive than that of the for- 
mer. It was not until long after the decision in Tatman v. 
Strader, supra, that the words said to be excluded from our 
statute, and included in the Illinois statute, appeared in either 
the criminal or civil sections of the statutes of that state. — 
Sees. 129, 130, p. 174, and sec. i, p. 263, R. S. 111. 1845; sec. 
I, Public Laws of Illinois, 1871-72, p. 462; par. 179, sec. 
131, p. 792, Vol. I, Starr & Curtiss' Annotated Statutes, Illi- 
nois, 1885. 

Counsel for plaintiff in error maintain that the history of 
the several legislative acts on the subject of gambling in this 
state shows conclusively that horse racing is not a game within 
the meaning thereof, and that the holding in Corson v, Neath- 
eny, supra, in that regard is illogical and incorrect. We can 
not concur in this view. On the contrary, when we bear in 
mind the provisions of the several acts, their titles, nature, the 
history of their enactment, and the state of the law when 
passed, the conclusion is inevitable that the legislative intent, 
as the law now^ is, was to prevent public gambling, and in- 
cludes the risking of money or anything of value between two 
or more persons, on a contest of either chance, skill or hazard, 
where one must be the loser and the other the gainer. 

Our first legislation on the subject is found in the Session 
Laws of 1861, p. 313, under the heading: "Offenses Against 
the Public Morality, Health and Police," embodied in "An act 
concerning criminal jurisprudence." It consisted of but two 



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278 EvERHART V. The People. [54 Colo. 

sections. The first section on the subject, being section 1 12 of 
the act, made it a crime for any person to "deal 6r play at or 
make any bet or wager for money or other thing of value, at 
any of the games commonly known or called three card monte, 
the strap game, thimble, the patent safe game, or any other 
game of similar character, or shall induce, or attempt to in- 
duce, any person whatever to make any bet or wager at any 
such game," etc. The other section, being sec. 113 of the act, 
prohibited the keeper of a house, etc., to knowingly permit a 
person within such house, etc., "to deal or play at any of the 
games mentioned in the' preceding section, or any game of 
similar character, or any game or games of cards, roulette, 
dice, or any other games where .fraud or cheating is practiced, 
or where loaded dice or marked cards or waxed cards are 
used," etc. These sections are aimed exclusively at games and 
bets and wagers thereon in which an element of cheating, 
trickery or fraud enters, and in no sense at fair and honestly 
conducted games or betting thereon. 

The second act upon the subject was in 1864 Session 
Laws, p. 96, entitled: "An act to suppress gambling and 
gambling houses." Section i thereof makes it a criminal of- 
fense for any person to keep a house, etc., "or place resorted 
to for the purpose of gambling, or permit or suffer any per- 
son" therein "to play at monte, three card monte, or any other 
game at cards, dice, faro, roulette, or any other game what- 
ever for money or other things of value." The second section 
subjected any person to fine and imprisonment who should, in 
such gambling house or place, "play at any game for any sum 
of money or other property of value" or make therein a bet or 
wager for money or other property of value. Section 3 made 
all contracts, when any part of the consideration thereof was 
for money or other valuable things won or lost, laid or staked 
upon any game or bet or wager, absolutely void and of no 
effect. 

In argument it is pointed out that in this act we find for 
the first time the words "any other game" associated with 

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Jan., '13.] Ev^HART V. The People. 279 

'"monte, three card monte," etc., and it is impossible to con- 
ceive that horse racing or betting or wagering thereon was in- 
cluded within the meaning of the statute ; and further, that the 
act does not penalize gambling generally, but only gambling 
and betting at a place resorted to for the purpose of gambling 
and the keeping of such place. Such is unquestionably the 
purpose of the act, and it may be that under the rule of 
ejusdem generis the gambling and games prohibited thereby 
are such only as belong to the class enumerated therein. Be 
that as it may, subsequent legislation broadened the law mate- 
rially. In 1866 Session Laws, p. 56, "An act to suppress 
gambling and gambling houses" was adopted. The act con- 
sists of sections i to 12, inclusive, and as to the offenses created 
and the acts and things prohibited, seems to be identical with 
sections 1790 to 1796, inclusive, of the Revised Statutes of 
1908. This act differs materially from those preceding it. 
The things prescribed therein are as follows: section i, places 
used or occupied for gambling, the keeping of gaming tables, 
apparatus or establishment therein to be used for gambling 
and winning, betting or gaining money or other property ; sec- 
tion 2, which is section 1791, R. S. 1908; the keeping or ex- 
hibiting "any gaming table, establishment, device, or appa- 
ratus to win or gain money or other property," and the prac- 
tice of gambling; and section 3, which is section 1792, R. S. 
1908; the playing "at any game whatsoever," for a sum of 
money or other property of value, and betting and wagering 
upon the result thereof. These changes in the law are signifi- 
cant and pregnant with meaning. Previous legislation was 
directed against games and bets thereon in which an element 
of cheating, trickery or fraud entered, and to places wherein 
such games and bets continuously occurred; whereas this act, 
being the law as it now is, is directed against all places used or 
occupied for gambling, the keeping or exhibiting of gaming 
tables, establishments, devices, etc., to win or gain money or 
other property, the practice of gambling and the playing "at 
any game whatsoever" for a sum of money or other thing of 

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28o EVERHART V. ThE PEOPLE- [54 Colo. 

value, and betting and wagering upon the result thereof. 
There being no enumeration of specific games, subjects or 
things, the general words used must be ascribed their ordinary 
meaning. The language is plain and unambiguous. The 
statute does not prohibit the playing of games. It is only 
when they are made instruments of winning or losing money 
or property that a criminal character attaches to them. When 
we bear in mind the purpose of the act as expressed in its title, 
the enumerated things prescribed, it is clear that the law in- 
tends to, and does, prohibit every place commonly used or oc-^ 
cupied for gambling of any character whatsoever, and the 
keeping and exhibiting of any instrumentality to be used for 
gambling and winning,, betting or gaining money or other 
property upon the result of any game, and likewise the prac- 
tice of gambling. 

The words "gaming table, establishment, device or appa- 
ratus," as used in the statute, do not mean literally instrumen- 
talities with appliances adapted and essential to particular 
games, but include any species of table, establishment, device 
or apparatus kept and used for gambling, winning, betting or 
gaining money or other property. It is the use to which the 
article or thing is appropriated which renders the keeping or 
exhibition thereof unlawful within the meaning of the sections 
here involved. — Toney v. State, 6i Ala. i ; Bstes v. State, lo 
Tex. 300, 308; C happen v. State, 27 Tex. App. 310, 312; 
Jones V. Okla. Ty., 5 Okla. 536. 

"Gaming table" is said to be synonymous with "gaming 
house." 20 Cyc, p. 967. It means a place kept for gambling 
and supplied with materials for that purpose. It may include 
any kind of contrivance used in betting. Cyc, supra, Garvin 
V. State, 87 Tenn. (13 Lea) 162. This is made more certain 
by the word "establishment" used in connection therewith. 
One meaning of this word is, the place of business, including 
grounds, furniture, equipage, etc., with which one is fitted out ; 
also that which serves for the carrying on of a business. So 
a device is that which is devised, or formed by design ; a con- 
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Jan., '13.] EvERHART V. The PEOPue. 281 

trivance; an invention; a project; a scheme; often, a scheme to 
deceive; a stratagem; an artifice. And "apparatus" means, 
things provided as means to some end. A full collection or 
set of implements, or utensils, for a given duty, experimental 
or operative; any complex instrument or appliance, mechanical 
or chemical, for a specific action or operation; machinery; 
mechanism. 

A gaming table, therefore, consists in the essentials of the 
game. A table in the literal sense need not exist. A game 
played and something of value bet are the essential elements of 
a gaming table, establishment, device or apparatus as used in 
this act. In Garvin v. State, supra, Desty's Amer. Crim. Law, 
section 102b, is quoted as follows : "Setting up a gaming table 
consists in providing the essentials of the game, and a table in 
the literal sense need not exist, nor money or property be 
staked, but credit may be substituted, yet a game must be 
played and something bet." It is then said, page 173; "If this 
law is sound, and the proof shows it is, a gaming table is any 
place convenient for and in which the game may be played. 
If 'setting up a gaming table consists in providing the essen- 
tials,' and a real table is not necessary, then the room, the hall, 
the house or other place used for gaming purposes, is one of 
the indispensable 'essentials' of a gaming table. ♦ ♦ ♦ a 
house, etc., could not be kept for the conduct of the prohibited 
games unless the tools of the game were also kept. A house, 
hall, or room kept for a purpose must be supplied with the 
materials for that purpose. As already intimated, all these 
combined constitute a gaming table, or gaming house, the 
terms are synonymous in gaming vernacular." 

Applying these rules to the facts of this case, we think it 
is clear that plaintiff in error kept and exhibited a gaming 
table, establishment, device and apparatus to win or gain 
money or other property, and played at a game and made a 
bet on the result thereof for a sum of money. He had a place, 
to-wit : the space adjoining the grand stand, kept for gambling, 
and supplied with materials for that purpose, that is, the table, 

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282 EVERHART V. ThE PEOPI^. [54 CoIo, 

the blackboard, the slips and the horse races then run, which 
latter he adopted and made a part of his establishment, project 
or scheme. These constituted a gambling table, establishment, 
device or apparatus. They were the essentials of the game as 
devised or projected as a means to a certain end. That plain- 
tiff in error had nothing to do with the running of the races 
is of no consequence. The acts and instrumentalities of others^ 
in that respect, he adopted and thereby they became, in legal 
effect, his. It might well be said that his establishment, device 
and apparatus, that is, his gaming table, included the race 
tracks and the horses thereon to the same extent and effect as 
though they were confined to the limits of the platform upon 
which he stood and operated. He brought them there by adop- 
tion and made them and their acts his for the purposes of his 
plan of operation. He, and those participating in the pools, 
were, in the understanding of all, "playing the races." 

As said in Joseph v. Miller, i New Mex. 621, 626: "We 
are unable to discover any distinction in general principle be- 
tween the various methods that may be adopted for determin- 
ing by chance who is the winner and who the loser of a bet — 
whether it be by throwing dice, flipping a copper, turning a 
card, or running a race. In either case it is gambling. This is 
the popular understanding of the term 'gambling device' and 
does not exclude any scheme, plan, or contrivance for deter- 
mining by chance which of the parties has won, and which has 
lost a valuable stake. That a horse-race, when adopted for 
such purpose, is a 'gambling device,' there can be no doubt.'' 
To the same effect and quoting the above language in Jctmes v. 
State, 4 Okla. Crim. Rep. 587. A horse race is a game, and 
selling pools or making books upon the result of a horse race 
is gaming, because it is betting on a game, and is unlawful, 
though the game itself be not unlawful. Swigart v. People, 
supra, affirming the same case in 50 111. App. 181. — Edwards 
V. State, 8 Lea 441 ; Thrower v. State, supra; People v. Weith- 
off, supra; Miller v. U. S., 6 D. C. 6. 

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Jan., '13.] EvERHART V. The People. 283 

In 1867 Session Laws, p. 114, the territorial legislature 
created a private corporation under the title, "The Ford's Park 
Association" which, it is claimed, constitutes a legislative con- 
struction of the anti-gambling statutes that will not permit the 
meaning we have ascribed to them. The objects of the asso- 
ciation were the encouragement of stock raising and the im- 
provement of the breed of horses within the territory. It was 
authorized to acquire and own a certain described tract of 
land; to hold thereon a^ horse fair once in each year; to offer 
such premiums and purses for horses to be exhibited and com- 
peted for, and to charge an admission to any race not to ex- 
ceed $1.00 for each person. The association was required to 
enter and record in a book all wagers made upon any trial of 
speed held upon the grounds, and the act made such wagers so 
entered a valid and legal contract enforcible in any court of 
competent jurisdiction. Two and one-half per centum of the 
winnings of all wagers so recorded, and of the purses and pre- 
miums competed for, were required to be paid to the treasurer 
of the territory of Colorado by the association for the use and 
benefit of the Colorado Territorial Agricultural Society. 

We do not think the act is in any sense a legislative con- 
struction of the gambling statutes. On the contrary, its legal 
effect simply suspended the operation of the gambling statutes 
as to certain of the inhibited acts herein, but only upon one day 
in each year, in a designated and limited space. In other 
words, it was like unto a license authorizing the doing of cer- 
tain acts, at a particular time and place, which, without the 
license and at any other time or place, would be unlawful. Be- 
cause the law-making power authorized pool-selling and book- 
making upon horse races occurring, at the time, upon the lim- 
ited territory described in the act of incorporation, and under 
the control of the incorporated association, does not establish 
or manifest a l^slative intent to authorize such acts upon like 
events occurring elsewhere, at other times, nor does it in any 
sense indicate that such acts are not within the meaning of, 
and made unlawful by, the statutes aforesaid, but rather that 

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284 People v. Zobeu [54 Colo. 

they are thereby inhibited. Otherwise, why grant the power 
to the association and place limits upon its exercise? 

But it is said that prior to this prosecution, neither lawyer 
nor layman considered acts like those of plaintiff in error as 
being within the inhibition of the statutes. However that may 
be, it does not subtract from the legal meaning of the words 
used in the legislation which corresponds precisely with the 
historical and popular meaning. It is a matter of common 
knowledge that many laws are enacted which lie dormant, in 
whole or part, for years. We know of no court, however, that 
has held that things clearly within the letter and spirit of an 
act are excluded from the operation thereof because of such 
desuetude. The judgment of conviction is affirmed. 

Judgment affirmed. 

Chief Justice Musser . and Mr. Justice Garrigues 
concur. 



[No. 6572.] 

The People v. Zobel. 

1. Cbiminal Law — Accessorv^Principal — ^An accesfiory may, un- 
der Rev. Stat. 1620, be indicted and punished as a principaL T^e 
dismissal of an Information as to a principal, and his discharge, doea 
not Justify the discharge of the accessory by the court of its own mo- 
tion, against the protests of the district attorney. At that stage of 
the proceedings only the district attorney may order a discontinu- 
ance. 

2. TBiAj^-^Insuffident Evidence — Power of the Court, Semble 
that if upon the trial of an information the evidence is insufficient 
to warrant a conviction the court may order the discharge of the 
accused. 

3. Writ of Error by the People — ^Three were made defend- 
ants in a civil action for the value of ores alleged to have been stolen. 
Judgment was recovered against all. An information then pending 
against the same persons, for the larceny of the ores, was discon- 
tinued by the district attorney, as to two of the defendants* upon 
their promise to give testimony against the third, one E. The pre- 
siding Judge thereupon announced that the evidence heard in the 
trial of the civil action satisfied him that those as to whom the in- 



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Jan., '13.] People v. Zobel. 285 

formation had been dismissed were the real principals, and Z onlr 
an accessory, and that as the principals had been discharged the ac- 
cessory could not be prosecuted; and, over the objections of the dis- 
trict attorney, the court dismissed the information, discharged Z, 
and exonerated his sureties. Held, in legal effect, the discharge of Z. 
was upon "a plea in bar" orally Interposed by the court, and that a. 
writ of error by the people lay under the statute (Rev. Stat, sec^ 
1997.) 

4. Judgment — The order of the district court discharging an 

accused person being reversed, the cause was remanded for further 
proceedings according to law. 

Error to Lake District Court. — Hon Chas. CavendER^ 
Judge. 

Hbn. John T. Barnett, attorney general, Mr. James M. 
Brinson, deputy attorney general, and Mr. James T. Hogan^ 
district attorney for the people. 

Mr. Joseph W. Clarke and Mr. T. E. McIntyre, for 
defendant in error. 

The district attorney of the fifth judicial district filed ant 
information against the defendant in error, charging him with 
larceny of ores. Two others were also charged with the lar- 
ceny of these ores, whether in the same or other informations, 
is not altogether clear; but that is not material. Subsequently,, 
in the same district court in which these criminal proceedings 
were instituted, and before the same presiding judge, a civif 
action against these parties, for the recovery of the value of 
the ore so charged to be stolen, was tried, and a judgment 
rendered against them. Thereafter the criminal proceedings: 
against defendants other than Zobel were dismissed by the 
district attorney upon their promise to give evidence against 
Zobel. Later, the district attorney made a motion to fix a 
time for the trial of Zobel, when the presiding judge said to- 
the district attorney that he had already heard the evidence in- 
the civil action, and therefore it appeared that the defendants^ 
ag'ainst whom the charge had been dismissed were the princi- 
pals in the crime, and Zobel only sn accessory, and as the prin- 
cipals had been discharged by the district attorney, Zobel, as 
accessory, could not thereafter be tried. The judge thereupon,. 

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286 Peopi^e v. Zobel. [54 Colo. 

over the objection and against the protest of the district attor- 
ney, and notwithstanding the latter's statement that he had 
other evidence of Zobel's guilt than that produced at the trial 
of the civil action, dismissed the criminal charge against Zobel, 
discharged him, and released his bondsmen. To review this 
action, the district attorney has brought the case to this court 
for the review on error, under and by virtue of the provisions 
of section 1997, R. S. 1908, which, so far as material to any 
question involved, is as follows : 

"* * * Writs of error shall lie on behalf of the state 
or the people to review decisions of the trial court in any crim- 
inal case upon questions of law arising upon the trial, motions 
to quash, demurrers, pleas in bar, pleas in abatement, motions 
in arrest of judgment, or where a statute is declared unconsti- 
tutional * ♦ ♦ provided, that nothing in this act shall be 
construed so as to place a defendant in jeopardy a second time 
for the same offense." 

On behalf of the people the district attorney contends that 
the dismissal of the action and the discharge of the defendant 
were erroneous, because that step could not be taken without 
his consent and over his objection; while on the part of the 
defendant the contention is, that the question presented does 
not come within the purview of the section of the statute above 
quoted, for the reason that the dismissal was not ordered upon 
"questions of law arising upon the trial." 

Mr. Justice GabbeRT delivered the opinion of the court : 

It is well settled in this state, and generally, in this coun- 
try, that a writ of error in a criminal case will not lie at the 
instance of the state unless clearly authorized by statute — 
People V. Raymond, 18 Colo. 242; U. S. v. S<mges, 144 U. S. 
310 — and the first question we shall determine, is, whether or 
not the section of the statute above quoted covers the case 
made by the facts. 

It appears from the record that the dismissal of the cause 
was based upon facts, knowledge of which the judge obtained 
outside of the record in this case, which were, that because the 

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Jan., '13.] Peopi<E v. ZobEL. 287- 

proceedings against the other defendants charged with the lar- 
ceny of the ores had been dismissed, and it appeared to the 
court from the facts established at the trial of the civil action^ 
that they were the principals, and the defendant only an acces- 
sory, that the latter could not be tried after the discharge of 
his principals. In legal effect, therefore, the action of the 
court was based upon a plea in bar, which of its own motion it 
orally interposed. Such being the case, it is not necessary to. 
define the meaning of the phrase "questions of law arising at 
the trial," for the reason that a decision of the court was made 
on a plea in bar, and that is one which the statute specifically 
authorizes to be reviewed in a proceeding like the present one. 
In this state an accessory is guilty the same as a principal,, 
and may be indicted and punished as a principal — sec. 1626,. 
R. S. 1908. The mere fact that the district attorney had dis- 
missed the proceedings against the principals did not justify 
the court, over his objection, to discharge the accessory. This 
is true, even if an accessory can not be tried after the discharge 
of the principal ; that is, the court should not, for this reason,, 
refuse to set a case against an accessory for trial, and of its 
own motion dismiss it before it had regularly been brought on 
for trial before a jury. It would doubtless be within the juris- 
diction of the trial court, after the trial was commenced, if it 
appeared the evidence was insufficient, or that the law, as ap- 
plied to the facts, developed at the trial, would not permit a 
conviction, to discharge the defendant, but, in advance of the 
trial, as in this case, it was not competent for the court of its 
own motion, and against the protest and objection of the dis- 
trict attorney, to dismiss the cause and discharge the defend- 
ant. At that stage of the proceedings the district attorney was 
the only one who could order the proceedings discontinued. — 
People V. District Court, 23 Colo. 466 ; Gray v. District Court,. 
42 Colo. 298. 



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288 Smith v. Denver & Rio Grande Co. [54 Colo. 

For the reason that in our opinion the court erred in dis- 
missing the action, the judgment is reversed and the cause re- 
manded for further proceedings according to law. 

' Reversed and Remanded, 

Decision en banc. 

Chief Justice Musser, Mr. Justice Scott and Mr. 
Justice Baiujy dissent 



[No. 6789.] 

Smith v. Denver & Rio Grande Raiuioad Co. 

Rah^boad Company — Liability for Fire NegHgently Set Out — 
luimitation — Section 5512 of the Revised Statutes doea not create or 
include a Uability founded upon negligence. It is cumulative to the 
common law. The limitation of two years there prescribed has no 
application to an action founded on negligence in setting out a fire. 

Brror to Denver District Court, — Hon . Carwon M. 
Buss^ Judge. 

Mr. Carle Whitehead and Mr. Albert L. Vogl, for 
plaintiff in error. 

Mr. E. N. Clark, Mr. T. L. Philips and Mr. J. T. Mc- 
MuRRY, for defendant in error. 

Chie^ Justice Musser delivered the opinion of the 
court : 

Henry Smith filed his complaint below to recover damages 
for property alleged to have been destroyed by fire negligently 
set out and caused (for the purposes of this case) by the de- 
fendant railroad company. It appears from the allegations of 
the complaint that the action was brought three years and five 
months after the fire occurred. To the complaint the defend- 
ant interposed, by special demurrer, a plea of the two years 
statute of limitations contained in the railroad fire statute. 
The demurrer was sustained. The plaintiff, electing to stand 

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Jan., '13.] Smith v. Denver & Rio Grande Co. 289 

by his complaint, has brought here for review the action of the 
court in sustaining the demurrer, dismissing the complaint 
and rendering judgment against him for costs. Our railroad 
fire statute, sec. 5512, Rev. Stat, passed in 1903, so far as it 
is relevant to this case, is as follows : 

"Every railroad company operating its line of road, or 
any part thereof, within this state shall be liable for all dam- 
ages by fires that are set out or caused by operating any such 
line of road, or any part thereof, in this state, whether negli- 
gently or otherwise; and such damages may be recovered by 
the party damaged, by the proper action, in any court of 
competent jurisdiction; provided, the said action be brought by 
the party injured within two years next ensuing after it ac- 
crues." 

The rest of the section provides that the liability imposed 
shall inure solely in favor of the owner or mortgagee of the 
property damaged or destroyed and forbids the passing of the 
right of action by assignment or subrogation in favor of any 
insurance company that has insured the property. It is the 
contention of the plaintiff that the action which he commenced 
is not the action contemplated in the statute, but is what he 
denominates a common law action for negligence, and that, 
therefore, the limitation of the statute does not apply. On the 
other hand, the defendant contends that the statute covers the 
whole law with r^ard to damages for fire set out or caused 
by the operation of railroads and that the action commenced 
by plaintiff is barred by the statute. 

In 1874, the legislative assembly of Colorado territory 
passed an act substantially the same as the portion of section 
5512 quoted above, except that it did not contain the words 
"whether negligently or otherwise," and in which the period 
of limitation was three years. Sess. Laws 1874, p. 225 ; Gen. 
Laws 1877, sec. 2237. In 1887, sec. 2237, aforesaid, was 
amended, leaving it the same as before except that there was 
added a provision for the appraisement of damages. Sess. 
Laws 1887, p. 368. 

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290 Smith v. Denver & Rio Grande Co. [54 Colo. 

Under the statutes, as they existed prior to the act of 
1903, the liability of a railroad company for damages by fires 
stt out or caused by operating a road was absolute and 
the question of negligence was eliminated. Whether the 
fire was set out or caused by the operation of the road and the 
amount of damages were the questions for determination. — 
U. P. Ry. Co. V. De Busk, 12 Colo. 294; Garnet Co. v. Samp- 
son, 48 Colo. 285 ; Denver etc. R. R. Co. v. De Graf, 2 Colo. 
App. 42; U. P. Ry. Co. V. Arthur, 2 lb. 159. 

The act of 1903 is the same in this r^ard as the previous 
statutes. Under it a railroad company is unconditionally 
liable for damages by fire set out or caused by operating the 
road whether negligently or otherwise. — British^Amer. Assur. 
Co. V. C. & S. Ry. Co., 52 Colo. 589; 125 Pac. 508. 

It is plain that the words "whether negligently or other- 
wise," in the statute, only emphasize the absolute liability im- 
posed, and that instead of putting negligence in the statute as 
an element to be considered these words exclude it. To re- 
cover under this statute, plaintiff need not allege or prove 
negligence. The gist of the action is the setting out or caus- 
ing of the fire by operating the road. Nfegligence is elimi- 
nated. It is such a liability that is fixed by the statute and it 
is an action to recover on such a liability that is barred in two 
years. The action instituted by plaintiff is not such an action. 
He -did not attempt to hold the railroad company under its 
statutory liability for the destruction of the property by fire 
set out or caused by operating the road. What he did was to 
institute an action to recover damages for the destruction of 
property by fire negligently set out or caused by the company. 
The gist of his action was negligence in setting out and caus- 
ing the fire. He took upon himself the burden of proving this 
negligence. In the action instituted by him he would not only 
have to prove that the railroad company set out or caused the 
fire, but also that it was set out or caused through the negli- 
gence of the company. The complaint states an ordinary 
cause of action for damages occasioned by the n^ligence of 

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Jan., '13.] Smith v. Denver & Rio Grande Co. 291 

a defendant. It is familiar law that he who is guilty of ac- 
tionable negligence, that is the proximate cause of injury to 
another, may, in an appropriate action, be made to respond 
for the damage resulting to the injured party who is not 
chargeable with contributory negligence. The liability for 
such damage exists independent of statute, and certainly it 
can only be taken away, if at all, by statutory provisions that 
are express and clear. The statute in question does not create 
or comprehend a liability, founded on negligence. The statu- 
tory liability is imposed whether negligence is present or not. 
Certainly a statute can not take away or abolish something that 
it does not embrace either expressly or impliedly, nor can the 
limitation of a statute bar an action on a liability which the 
statute does not comprehend. The statute imposes an abso- 
lute liability for damages by fire set out or caused by operat- 
ing a railroad, and limits the time within which an action may 
be begun for such damages. How can such a statute be said 
to include the liability of a railroad company based upon its 
negligence in setting out or causing a fire, or to limit the time 
within which an action may be begun to recover damages for 
such negligence? Any other person or company is liable in 
an action based on negligence for damages by fire negligently 
set out or caused. It can not be said that a statute imposing 
an unconditional liability for fire set out or caused in a par- 
ticular manner, whether negligently or otherwise, exempts a 
railroad company from a liability for negligence that all other 
persons must endure, or that such a statute will favor a rail- 
road company with a period of limitation not enjoyed by 
others who may be sued upon a like liability for negligence. 
It may be, though the fact does not appear from the com- 
plaint, that the alleged fire was set out or caused by operating 
the road. The defendant seems to treat the complaint as 
alleging that fact. If that was so, plaintiff, within the two 
years, might have begun an action to recover on the absolute 
liability imposed by the statute. It is not probable that within 
that time a plaintiff would endeavor to recover damages in an 



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292 Smith v. Denver & Rio Grande Co. [54 Cola 

action for negligence that might be recovered in an action in 
which negligence cuts no part. That is not saying, however, 
that a plaintiff cannot, if he chooses, nor can a defendant 
complain, if he does, take upon himself the needless burden of 
negligence. A plaintiff can recover such damages but once. 
If he recovers under the statute his right of action for negli- 
gence is gone and vice versa. If, however, the statutory right 
of action is barred by the limitation of two years that fact 
certainly cannot bar his action for negligence when the statute 
does not include or contemplate a liability for negligence, nor i 

an action to enforce such liability. j 

Our view of the statute of 1903 is expressed in C. & F. ( 

Lumber Co. v. D. & R, G. /?. R. Co., 17 Colo. App. 275, at j 

288, wherein our court of appeals, in speaking of the statute 
of 1887, said: 

"In Railway Co. v. Hefiderson, 10 Colo. 2, our supreme 
court in construing the stock killing statute, says : 'The stat- 
ute is in our judgment simply cumulative. The object of the 
legislature was not to interfere with the owner's existing 
rights, but owing to the difficulty of establishing negligence, 
to give him additional relief.' This language is, we think, 
equally applicable to the fire statute. Nowhere in the statutes, 
either within the fire statute itself, or elsewhere, is the slight- 
est intent manifested to substitute this for the common-law 
remedy of a party, and entirely abolish the latter, and to so 
hold would in our opinion be a judicial assumption without 
authority or support." 

The defendant concedes the correctness of that decision 
under the law of 1887, but contends, as we understand, that 
the addition of the words "whether n^ligently or otherwise," 
in the statute of 1903, abolished the liability for n^Hgencc 
and the remedy based thereon, or perhaps its contention is 
that these words show an intent to abolish the pre-existing 
remedy for negligence. As has been said, and as appears 
dear, these words have the effect and can serve no other pur- 
pose than to leave no doubt that the liability imposed by the 

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Jan., '13.] Young v. The People. 293 

statute exists whether the fire was caused by negligence or 
not, so long as it was set out or caused by opetjiting the road, 
or any part of it, and they thus made no change in the statute 
in that respect. — British-Am. Assur, Co. v. C. & S. Ry. Co., 
supra. These words exclude negligence as an element in the 
doing of the act for which the statutory liability is imposed 
and from consideration in the use of the remedy afforded, and 
plainly they are not to be considered as relating to another 
remedy in which negligence is included as an element. In 
other words, their use is to exclude negligence from consid- 
eration in the liability created and the remedy afforded by the 
statute and not to abolish another right of action in which 
negligence is to be considered. 

The plaintiff was, therefore, by his complaint, prosecut- 
ing a right of action to which he was entitled and which did 
not appear on the face of the complaint to be barred by the 
two years statute of limitations in question. This being so, 
the ruling of the court in sustaining the demurrer was wrong, 
and the judgment is, therefore, reversed and the cause re- 
manded with instructioris to overrule the demurrer and to 
proceed with the action in accordance with the views herein 
expressed and as the law provides. 

Reversed and remanded with instructions. 

Mr. Justice White and Mr. Justice Garrigues con- 
cur. 



[No. 7355.3 

Young v. The People. 

1. Practice — Change of Venue — Application — ^An application for 
a change of venue under Mills' Stat, sec. 4613 (Rev. Stat, sec. 6963), 
must be verified by the defendant in person. An application not so 
Verified is properly denied. 



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294 Young v. The Peopi^e. [54 Colo. 

2. Prejudice of Judge — Where an application for a change 

of the venue assigns as the ground thereof prejudice on the part of 
the judge, affidavits expressing merely the belief of the affiant that the 
applicant can not have a fair trial, etc., because of the prejudice of 
the Judge, not averring any fact upon which the belief is based, are 
insufficient. The requirement in the present statute that prejudice of 
the Judge must be shoton is of the same effect as the earlier statute 
by which the facts were expressly required to be stated. 

3. Cbiminal Law — Former Jeopardy — Conviction of murder in 
the second degree. Judgment reversed for error in law. Under the 
constitutional provision (sec. 18, art. II,) the accused stands in the 
flame position as if the first trial had neVer been had. He may be 
put upon trial for the highest degree of the crime. 

4. Instructions— Homicide — Presumptions — On the trial of 

an information for wilful murder the court charged that where the 
homicide is committed "with a weapon calculated to produce and 
actually producing death, malice may be legitimately inferred, in the 
absence of proof that the act was done in necessary self-defense or 
upon sufficient provocation, and the presumption in such case will be 
that the act was voluntary, and committed with malice." 

Held, that the Jury were not required to infer malice, but advised 
merely that such inference would be legritimate; that the question of 
malice was left to the Jury. And the court having further charged 
that malice is not presumed in law, but for the Jury to determine 
from the evidence, that it was not a subject of legal presumption, or 
inference, and that each fact necessary to establish the guilt of the 
accused must be proven beyond a reasonable doubt, by evidence of 
facts and circumstances consistent with the prisoner's guilt, and in- 
consistent with any other reasonable conclusion, held, that any im- 
plication that malice was to be inferred as matter of law, was re- 
moved. 

5. PB3BCEDENTS — Eftcct — ^E^xpressious of the court uiK)n a ques- 
tion incidentally presented are without authority. 

Error to Montrose District Court. — Hon. Sprigg 
SHACKI.EFORD, Judge. 

Mr. T. J. Black, Mr. O. N. Hiwon and Mr. Caesar A. 
Roberts, for plaintiff in error. 

Mr. Benjamin Griffith, attorney general, and Mr. 
Phiup W. Mothersill, assistant attorney general, for the 
people. 



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Jan., '13.] Young v. The People. 295 

Mr. Justice Bailey delivered the opinion of the court: 

This cause has been in this court once before from a 
judgment on a verdict of conviction of murder in the second 
degree, which was reversed solely on a question of law, in 
that it was there held that the trial court failed to properly in- 
struct the jury upon the matter of self-defense, on which re- 
liance was had for acquittal. Young v. The People, 47 Colo. 
352. Upon a new trial the defendant was again convicted of 
murder in the same degree, and brings the case here a second 
time for review, alleging numerous errors. On this review 
the defendant raises no question of the sufficiency of the testi- 
mony to support the verdict ; indeed there is no room for such 
claim on any reasonable basis, as the testimony is ample to 
support it, as it would have been had the verdict been one 
of murder in the first degree. The errors relied upon go 
mainly to questions of procedure, and relate particularly to 
change of venue, former jeopardy, and objections to instruc- 
tions given and refused. 

On October 24th, 1910, the day before the trial was to 
begin, according to a previous setting, counsel for the defend- 
ant filed a motion to change the venue on the ground of bias 
and prejudice of the judge. This motion was supported by 
two affidavits, identical in subject-matter and verified, re- 
spectively, by the two record attorneys of the defendant. The 
motion was based specifically, as shown by the affidavits, on 
section 4613 of 2 Mills' Annotated Statutes, and, omitting 
formal parts, is as follows : 

"Comes now the defendant Henry Young and presents 
this, his motion, and moves the court to change the venue of 
this cause to some other court of competent jurisdiction in 
this county or some other county, or notify and request the 
judge of some other court, having jurisdiction of a like of- 
fense to try the said cause, because the said presiding judge, 
the Hon. Sprigg Shackleford, is so biased and prejudiced 
against this defendant that* he cannot have a fair and impar- 
tial trial of his said cause before said presiding judge and in 

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296 Young v. The People. [54 Colo. 

support of his said motion tenders herewith the affidavit of 
two credible persons not related to this defendant." 

One of the affidavits was by O. N. Hilton, the other by 
T. J. Black, precisely alike except the name of the affiant. The 
Hilton affidavit follows : 

"O. N. Hilton being duly sworn says on oath, that he is 
a citizen of the state of Colorado and has been such citizen for 
more than twenty years past ; that the defendant above named 
is on trial for a felony, being a criminal cause now pending 
in the district court of said county, before the Hon Sprigg 
Shackleford, the presiding judge thereof; that it is the belief 
of affiant that the said defendant, Henry Young, cannot have 
a fair and impartial trial before the said presiding judge, the 
Hon. Sprigg Shackleford, because of the prejudice and bias 
of the said judge against the said defendant; that this affiant 
is not in any manner related to the said defendant Henry 
Young and 'makes this affidavit in accordance with section 
4613 of Mills' Annotated Statutes of Colorado to show the 
prejudice of said judge against the said defendant Henry 
Young." Duly sworn and subscribed. 

These affidavits comprise the entire showing to support 
the motion, which was signed by the attorneys only. Under 
the statute this application is insufficient, not only in form, but 
like wise in substance. The statute provides, among other 
things, that : 

"Every application for a change of venue shall be by 
petition, verified by the affidavit of the defendant," etc. 

It is at once apparent that the application does not at all 
comply with the statute. It is not only not signed by the de- 
fendant, but it is unverified. Verification by the defendant is 
a substantial requirement. By this application no sworn com- 
plaint whatever against the trial judge was presented. In the 
absence of a verified charge by the defendant, in substantial 
conformity with the statute, the application is fatally defec- 
tive. Furthermore, the section of the statute on which the 
application is specifically based provides: 

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Jan., '13.] Young v. The Peopi.^. 297 

"Third. When the judge is in any wise interested or 
prejudiced, or shall have been of counsel in the cause, such 
prejudice} of the judge must be shown by the affidavit of at 
least two credible persons not related to the defendant." 

How can it be fairly said that the prejudice of the judge 
has been shown when the only allegation is the bare statement 
of a belief that the defendant cannot have a fair and impartial 
trial, because of the prejudice and bias against him of the pre- 
siding judge? There is no showing of fact which 
discloses that any such prejudice or bias actually 
exists. The mere expression of a belief that the 
judge would not give the defendant a fair and impartial 
trial, without the statement of a single fact upon which such 
belief is based, is in no sense a compliance with the require- 
ments of the statute, that the prejudice of the judge must be 
shown. It would be a travesty upon justice, and in direct 
conflict with sound common sense to permit such a showing 
to effect a change of venue in a criminal cause under such a 
statute. It has been the policy of this state from the earliest 
times to require the disclosure of sworn facts showing the 
prejudice of the judge, and such facts must be sufficient to re- 
quire the change. Under early statutes upon this subject 
there was a specific requirement that the facts showing the 
prejudice be set forth in the application, and the affidavits 
filed in support thereof. The requirement under the present 
statute, that the prejudice of the judge must be shown, is 
equivalent to that contained in the earlier ones. 

In the case of Solander v. The People, 2 Colo. 48, this 
court, passing upon an application for change of venue for 
prejudice of the judge, said : 

"It is plain that the petitioner must now set forth in his 
petition the ground upon which the venue may be changed, 
as, that the judge or the inhabitants of the county are preju- 
diced against hirn, and also the facts which lead to the belief 
that such ground exists. Affidavits may be filed to show the 
tnith of these facts, and if the ground upon which the change 

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298 Young v. The People. [54 Colo. 

is asked sufficiently appears, the prayer of the petitioner will 
be granted; otherwise it should be denied. 

In support of the allegation that the judge was preju- 
diced against her, petitioner averred that she had heard that 
the judge had expressed the opinion that she was guilty of the 
crime charged, and that, at a former term of court, he had 
tried to prevent her from procuring bail in the cause. The 
mere statement that she had heard such rumors, there being 
no averment as to the truth of them, may be dismissed with- 
out comment." 

In Mullin v. The People, 15 Colo. 437, speaking to this 
proposition, under the present statute, it was said : 

"In some jurisdictions, when a change of venue is asked 
on account of the prejudice of the presiding judge, it is not 
necessary to set forth in the petition the fact or facts on 
which the party bases his fears that he will not receive a fair 
trial in the court wherein the cause is pending. But in this 
state such facts must be stated, although with not the same 
particularity as is required in cases in which the application is 
based upon the alleged prejudice of the inhabitants of the 
county." 

Our own authorities seem clear upon this point and we 
need not look elsewhere. The reason for such requirement is 
obvious, else the mere filing of an application and affidavits 
simply expressing a belief that, because of the bias and preju- 
dice of the judge, a fair and impartial trial could not be had, 
would work a change of venue in any criminal cause. The 
statute is incapable of any such construction; its plain mean- 
ing h to the contrary. The hardship, delay and impossibility 
of bringing offenders to justice in many cases, if the venue 
mught be thus readily and easily changed, is manifest. The 
motion was properly denied. 

The defendant was convicted upon the first trial of mur- 
der in the second degree, on an information charging first de- 
gree murder. On writ of error from this court, the judgment 
entered on that verdict was reversed for failure of the trial 

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Jan., '13.] Young v. The People. 299 

court to fully instruct upon the subject of self-defense. On a 
second trial the defendant was again convicted of murder in 
the second degree, the trial having been conducted as though 
no previous trial had been had. The claim is that having been 
once convicted of second d^ree murder, the defendant was 
by the verdict acquitted of first d^ree murder, and on a sec- 
ond trial could not be put in jeopardy of punishment for a 
crime higher in d^ree than that of which he was first con- 
victed. 

By section 18 of article II of the constitution of the state, 
it is provided : 

"That no person shall be compelled to testify against 
himself in a criminal case nor shall any person be twice put 
in jeopardy for the same offense. If the jury disagree, or if 
the judgment be arrested after the verdict, or if the judgment 
be reversed for error in law, the accused shall not be deemed 
to have been in jeopardy." 

This provision of the constitution needs no construction ; 
it is as plain and clear as language can make it. It means: 
First. If the jury disagree, that the accused may be tried 
again upon the charge as if no trial had been had ; Second. If 
the judgment be arrested after the verdict, for any reason, 
that the defendant shall be deemed not to have been in 
jeopardy, and may be again tried as originally; and Third. 
If the judgment be reversed for error in law, that then the 
defendant shall be deemed not to have been in jeopardy, and 
may be again tried under the information, upon every charge 
contained in it. If the defendant in this case had not been in 
jeopardy, and such is declared to be the fact upon the record, 
by this provision of the constitution, the former judgment 
having been reversed for error in law, then he could be law- 
fully tried for and convicted of the highest d^jee of crime 
contained in the charge. Upon a reversal of a conviction for 
error of law, under this provision, one accused of murder 
stands as though there never had been a former trial ; his sec- 
ond trial is de novo. The same presumption of his innocence 

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300 Young v. The People. [54 Colo. 

of any degree of unlawful homicide, although he has been 
convicted of one degree thereof, prevails as upon the first 
trial. The accused stands upon a second trial as though the 
former trial had never taken place, and the state stands in 
precisely the same position. This is the evident purpose and 
intent of the framers of our constitution. Unless it be as- 
sumed that the criminal laws are designed to facilitate the 
escape from just punishment of those charged with offenses, 
instead of for the protection of society through punishment 
of those who violate its laws, the above interpretation must 
be accepted as correct. 

The argument advanced in the cases cited in behalf of 
the defendant in support of his position of former jeopardy, 
is that a conviction of a lesser degree of homicide is an ac- 
quittal of all higher degrees of that crime. This is undoubt- 
edly true so long as that conviction stands, for no one should 
be twice punished for the same oflfense. But where, as here, 
such conviction has been set aside, on review, for error in law 
committed by the trial court, then by the constitutional pro- 
vision under consideration the implied acquittal of the higher 
offense charged in the information is completely overthrown. 

It is to be noticed that section 18 of article II, above 
quoted, upon the question of former jeopardy, differs widely 
from corresponding provisions found in the constitutions of 
those states where the doctrine is held that one convicted of 
murder in the second degree, under an information charging- 
murder, cannot, on a new trial, be tried for a greater d^ree 
of crime than that of which he was first convicted. The con- 
stitutions of states so holding simply have the provision, in 
substance, that no person shall be twice put in jeopardy for 
the same offense. They do not have the further provision, 
found in our constitution, that if the judgment be reversed 
for error in law the accused shall not be deemed to have been 
in jeopardy. For this reason the cases from the various 
states, holding as above indicated, are not in point in deter- 

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Jan., '13.] Young v. The Peopi^e. 301 

mining the question of former jeopardy under a constitutional 
provision such as ours. 

Several of the states have either constitutional or statu- 
tory provisions in effect like the one now before us, and in 
those states it has been uniformly held that upon a new trial 
the accused cannot plead former jeopardy, though the first 
trial resulted in a conviction of a degree of crime less than 
the highest one contained in the charge. The constitution of 
Georgia provides: 

"No person shall be put in jeopardy of life, or liberty, 
more than once for the same offense, save on his or her own 
motion for a new trial after conviction, or in case of mis- 
trial" 

The case of Wcdler v. State, 104 Ga. 505, was determined 
under this provision. In that case Waller was indicted for the 
oflfense of murder, put upon trial and convicted of that of- 
fense. He moved for a new trial, and when this motion was 
denied, took the case to the supreme court, where the judg- 
ment was reversed and a new trial granted. He was again 
tried in the lower court and convicted of voluntary man- 
slaughter, and the judgment upon that verdict was also re- 
versed and a new trial awarded. Upon a third trial, when ar- 
raigned in the lower court, he filed pleas setting up that he 
had been acquitted of the crime of murder by the verdict of 
the jury pronouncing him guilty of voluntary manslaughter, 
and could not therefore be again put in jeopardy on an indict- 
ment of murder, and submitted himself for reindictment for 
voluntary manslaughter. This plea was overruled and Waller 
convicted of voluntary manslaughter. He once more took the 
case to the supreme court for review of the question of former 
jeopardy. In the course of its opinion on this proposition, 
the supreme court of that state said : 

"Prior to the constitution of 1865 all of the constitutions 
of this state had cead, in regard to this matter : *No person 
shall be put in jeopardy of life, or liberty, more than once for 
the same offense.' Under the sam^ or a similar provision 



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302 Young v. Thb Peopi^e. [54 Colo. 

many courts had held that a person who had been tried for 
murder, and convicted of a lower offense, was by the verdict 
acquitted of the higher offense and could not be again put 
upon trial for it. When the constitutional convention of 1865 
met and organized, Charles J. Jenkins was appointed chair- 
man of the committee to draft a new constitution. He was at 
that time a member of the supreme court of Georgia, and had 
served for several years. Judge Jenkins had doubtless read 
the various opinions of the courts and text-writers upon this 
question ; and in order to put the question at rest in this state, 
he added to the provision of the older constitutions the words : 
'save on his or her own motion for a new trial after convic- 
tion, or in case of mistrial.' This addition was adopted by 
the convention * * * and forms part of our present con- 
stitution. If, prior to its adoption, the accused had the abso- 
lute right to which many of the decisions above referred to 
held him entitled, this right has since that time existed only 
in a modified form. The state said to the accused : *If you 
are indicted for a major offense and convicted of a minor, 
and a new trial is granted upon your own motion, you may be 
a second time tried for the major offense. * * * The 
state, for the purpose of protecting society against crime and 
criminals, reserved the right to place more than once upon 
trial for the same offense persons accused of crime who had 
upon their own motion been granted new trials. Waller made 
this motion for a new trial and obtained it with a knowledge 
of this constitutional provision. He therefore can not com- 
plain of his having been again put upon trial for murder, al- 
though the jury may, in the other trial, have found him guilty 
of manslaughter only." 

The Missouri constitution provides : 

"That no person shall be compelled to testify against 
himself in a criminal cause, nor shall any person, after being 
once acquitted by a jury, be again, for the- same offense, put 
in jeopardy of life of liberty; * * * and if judgment be 
arrested after verdict of guilty on a defective indictment, or 



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Jan., '13.] Young v. The People. 303 

if judgment on a verdict of guilty be reversed for error in 
law, nothing herein contained shall prevent a new trial of the 
prisoner on a proper indictment, or according to correct prin- 
ciples of law." 

In State v. SimmSj 71 Mo. 538, considering the question 
of a plea of former jeopardy under that provision, the court 
said: 

"As this cause will be remanded, it may be well to ob- 
serve that sec. 10 of art. XIII of the constitution of 1820, 
which provides that *no person having once been acquitted by 
a jury can, for the same offense, be again put in jeopardy of 
life and limb," * * * and under which the case of the 
State V, Ross, supra, was decided, has been materially 
changed by section 23, article II of the constitution of 1875, 
by the addition to what has been copied of the following 
words : 'And if judgment be arrested after verdict of guilty, 
<Mi a defective indictment, or if judgment on a verdict of 
guilty be reversed for error in law, nothing herein contained 
shall prevent a new trial of the prisoner on a proper indict- 
ment, or according to correct principles of law.' The change 
thus made in the said section overthrows the rule laid down 
in the case of the State v. Ross, supra, that a person who is 
indicted for murder in the first degree, if t;ried and convicted 
of murder in the second degree, which judgment is reversed 
for error in law, cannot on a second trial be tried for murder 
in the first degtee. They are equivalent to declaring that 
when such a judgment is reversed for error at law, the trial 
had is to be regarded as a mis-trial, and that the cause when 
remanded is to be tried anew, and when remanded, that it is 
put on the same footing as to a new trial as if the cause had 
been submitted to a jury resulting in a mis-trial by the dis- 
charge of the jury in consequence of their inability to agree 
on a verdict. It is difficult to conceive what other construc- 
tion can be given to the words added to said section." 

In State v. Billings, 140 Mo. 193, speaking to this propo- 
sition, it was said : 



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304 Young v. The People. [54 Colo. 

"It was held in State v, Ross, 29 Mo. 32, that one in- 
dicted for murder in the first degree, and put upon his trial, 
and convicted of murder in the second degree, and a new trial 
granted upon his application, could not legally be put upon 
trial again for murder in the first degree. But by article II, 
section 23, constitution of Missouri, that decision is no longer 
law in this state. A defendant convicted of murder in the 
second degree under an indictment for murder in the first de- 
gree may now be awarded a new trial, and, when granted, he 
may be again put upon trial for murder in the first degree." 

In some states there is a statute which has the same effect 
as our constitutional provision, most of which are substan- 
tially in the words of the Indiana statute, which provides as 
follows : 

"The granting of a new trial places the parties in the 
same position as if no trial had been had; the former verdict 
cannot be used or referred to, either in the evidence or argu- 
ment." 

In Veafch v. State, 60 Ind. 291, in reference to a reversal 
of a conviction for manslaughter under indictment charging 
murder, on plea of former jeopardy of the higher grades of 
the offense charged, the supreme court of Indiana had this to 
say: 

"On the trial, the defendant offered in evidence the rec- 
ord of the former conviction in the cause, *as proof of his 
former acquittal of murder in the first and second degrees, 
and for no other purpose,' but the evidence was excluded. 

The theory of the appellant is, that the former verdict, 
which was for manslaughter only, operated as an acquittal of 
murder in either of its degrees; and that, upon a subsequent 
trial, he could not be convicted of murder in either degree. 
The constitution, it is true, provides, that 'No person shall be 
put in jeopardy twice for the same offense.' 

But there are many cases in which this constitutional 
provision is deemed to have been waived. Thus, if one is 
convicted of an offense, and obtains a new trial, either in the 

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Jan., '13.] Young v. The People. 305 

court in which the case is tried, or on appeal or writ of error, 
he is deemed to have waived the constitutional provision, and 
may, of course, be put upon trial the second time for the same 
offense, and so on as often as he obtains a new trial. The 
statute regulating criminal pleading and practice provides, 
that *the granting of a new trial places the parties in the same 
position as if no trial had been had ; the former verdict cannot 
be used or referred to, either in the evidence or argument.' 
2 R. S. 1876, p. 408, sec. 141. 

Now, it would seem, that, if a party takes a new trial in 
a criminal case, he takes it on the terms prescribed by the stat- 
ute, and consents to be placed *in the same position as if no 
trial had been had.' If this is so, where a party has been tried 
on an indictment for murder, and convicted of manslaughter, 
and has obtained a new trial, he may, upon the new trial, be 
convicted of murder; for, by obtaining the new trial, he con- 
sented to be placed in the same position as if no trial had been 
had. But, however this may be, the appellant was not in- 
jured by the rejection of the evidence, for he was not con- 
victed of murder, but of manslaughter only." 

In the case of Ex Parte Bradley, 48 Ind. 548, the su- 
preme court of that state, discussing the question of former 
jeopardy at considerable length, under both the common law 
and the statute quoted above, upholds the rule that where the 
accused is convicted of murder in the second degree or man- 
slaughter upder a charge of murder, and secures a reversal of 
that judgment, he may be again tried for murder in the first 
degree. In People v. Palmer, 109 N. Y. 415; Commonwealth 
V. Arnold, 83 Ky. i ; Briggs v. Commonwealth, 82 Va. 554; 
and State v. McCord, 8 Ka. 232, the sair e rule is announced, 
all under statutes substantially like that of Indiana. In re 
Somers, 31 Nev. 541, a case urrder a statute sii.iilar to those 
above referred to, the suprem* court of hat stJte, reviewng 
at considerable length the i.thoiities relati^i to former 
jeopardy, overruled the contei L; n c? th^ irfind fit, that upon 

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3o6 Young v. The People. L54 Colo. 

a new trial brought about by his own application he could not 
be tried for a higher degree of the offense than that of which 
he had been convicted. 

It becomes unnecessary, as already indicated, to consider 
or comment on the many cases from various states announc- 
ing a different rule, where the sole provision for consideration 
is in effect that no person shall be twice put in jeopardy of life 
or liberty for the same offense, since such decisions can have 
no application to a like question, considered under the pecu- 
liar provisions of our constitution on this subject. 

In several states, however, the rule is upheld that, upon 
a new trial, a previous conviction having been set aside, the 
plea of former jeopardy of the higher grades of the offense 
charged than the one on which conviction was had, is un- 
availing, even without the aid of a constitutional provision 
such as ours, or statutory provisions similar to those 
heretofore considered, notably, in South Carolina, in 
State V, Gilles, 73 S. C. 318; Ohio, in State v. Beheimer, 20 
Ohio State 572; Utah, in State v. Kessler, 15 Utah 142; Ne- 
braska, in Bohcnum v. State, 18 Nieb. 57; Oklahoma, in Tur- 
ner V, Territory of Oklahoma, 15 Okla. 557; and Vermont, 
in State v. Bradley, 67 Vt. 465. 

In Trono v. United States, 192 U. S. 521, the United 
States supreme court definitely declared the same doc- 
trine. In that case the rule announced in People v. Palmer, 
supra, was specifically approved, and the statutory provision 
in New York, there under consideration, that 'the granting of 
a new trial places the party in the same position as if no 
trial had been had, and when a new trial is ordered it 
shall proceed in all respects as if no trial had been held/ was 
declared not to contravene the constitutional provision that no 
person shall be twice put in jeopardy for the same offense. 
The doctrine of the Trono case was reaffirmed in Flemister v. 
United States, 207 U. S. 372. If, by statutory provision, a 
defendant may upon a new trial be lawfully held to answer 



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Jan., '13.] Young v. The Peopi.e. 3^7 

to a higher degree of an offense than that of which formerly 
convicted, then certainly it is competent to so provide by a 
constitutional provision. 

It is urged by counsel for the defendant that by previous 
opinions of this court a different rule from the one here stated 
has been indicated. It is sufficient to say that never before has 
this court been called upon to directly consider or determine 
this question, and anything which may have been heretofore 
said, indicative of a view contrary to that here declared, was 
purely incidental, and in cases where that question was not 
properly before the court for determination. Such expressions 
are, therefore, in no sense authority upon the proposition. 

Of the instructions of the court, it is complained gener- 
ally that at this trial instructions were again given which 
had been condemned in our former opinion, and that some 
which had been expressly approved were not given. A care- 
ful inspection of the record fails, in any true sense, to support 
these contentions. Of the three instructions, which it is 
claimed were condemned in the former opinion. Young v^ 
People, sitpra, this court spoke as follows : 

"The first instruction is the statutory definition of justi- 
fiable homicide, and the other two are mere negative instruc- 
tions, given on behalf of the people, specifically pointing out 
certain conditions, circumstances and situations, under which 
the defendant may not avail himself of that defense. They 
do not purport to state the law of this subject in extenso, or 
with any d^ree of fulness. They were entirely proper for 
the purpose intended, but under the conflicting testimony, 
touching the facts immediately surrounding the homicide 
itself, the defendant had a constitutional right to have a lucid, 
accurate and comprehensive statement by the court to the jury 
of the law on the subject of self-defense from his standpoint, 
upon the supposition that the jury might believe, and accept 
as true, his testimony, and that of his witnesses, explanatory 
of the encounter which resulted in the death of Wilkinson." 



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3o8 Young v. The People. [54 Colo. 

From the foregoing it is apparent, that these instructions 
were not condemned. They are declared to be entirely proper 
for the purpose intended. It was there further held, in sub- 
stance, that the defendant was entitled to have affirmative in- 
structions covering the law of self-defense from his stand- 
point, which were not given, and it was solely because of the 
failure to so further instruct that the former judgment was 
reversed and the cause remanded. It is plain that if upon the 
former trial the court had, in addition to those instructions, 
given instructions embodying the defendant's right to act upon 
appearances, even though such appearances may have been de- 
ceptive, and also covering generally the rights of one claim- 
ing to act in self-defense, then the charge which contains these 
instructions would not have been a proper subject of criticism. 
On page 300 of the opinion in the former case, this court 
quoted two instructions, numbered one and five, which were 
requested by the defendant on the first trial and refused by 
the court, stating the law as to the rights of the defendant 
relative to self-defense as announced in the opinion of the 
court, at page 355, where it is said : 

"It is fundamental that the law of self-defense, which is 
emphatically a law of necessity, involves the question of one's 
right to act upon appearances, even though such appearances 
may prove to have been deceptive; also the question of 
whether the danger is actual or only apparent, and as well the 
fact that actual danger is not necessary, in order to justify 
one in acting in self-defense. Apparent necessity, if well 
grounded and of such a character as to appeal to a reasonable 
person, under like conditions and circumstances, as being suf- 
ficient to require action, justifies the application of the doc- 
trine of self-defense to the same extent as actual or real neces- 
sity." 

In the former opinion the court did not specifically direct 
that these instructions, numbered one and five, should have 
been given. What it did say, at page 361 of that opinion, was 
this: 

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Jan., '13.] Young v. The People. 309 

"While we do not say that these particular instructions 
should necessarily have been adopted, what we do say is, that 
under the facts it is clear that proper instructions, either like 
those requested or their equivalent, covering the defendant's 
right to act upon appearances, that actual danger is not in»- 
dispensable to warrant one acting in self-defense, and that the 
defendant, acting as a reasonable person, had a right to judge 
for himself of the danger, should have been given. A single 
instruction covering this entire phase of the case could easily 
have been framed by the court for the jury." 

The inquiry of the court will now be directed, not to the 
question as to whether these specific instructions were given^ 
as there was no direction that they should be, but as to 
whether the court did in fact give instructions upon 
the law of self-defense, such as the defendant was entitled to 
have, and while it is asserted by counsel that no such instruc- 
tions were given, the record discloses the fact to be precisely 
the contrary. Instructions numbered nineteei\ and twenty- 
five, respectively, requested by the defense at the trial, were 
given, and fully and accurately state the law upon this sub- 
ject. They were quite as favorable to the defendant as were 
instructions numbered one and five, which this court ap- 
proved. It satisfactorly appears from the whole record that 
all of the rights of the defendant on his theory of the case 
upon the law of self-defense, under the evidence adduced, were 
fully protected by the instructions of the trial court in the 
present case, in strict compliance with the suggestions of this 
court in its former opinion. 

Instruction number four, given by the court, reads as 
follows : 

"The jury are instructed that when the killing is done 
with a deadly weapon, or weapon calculated to produce, and 
actually producing death, malice may be legitimately inferred 
in the absence of proof that the act was done in necessary 
self-defense or upon suifficient provocation or cause, and the 

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3IO Young v. The People. [54 Colo. 

presumption in such case will be that the act was voluntary 
and committed with malice aforethought." 

This is vigorously attacked as invading the province of 
the jury, for failure of the court to say that such presumption 
only obtains where the killing has been shown to have been 
deliberate and unlawful. The words, "in the absence of proof 
that the act was done in necessary self-defense or upon suffi- 
cient provocation or cause/' characterize the killing as unlaw- 
ful, and clearly, as we think, leaves the question as to whether 
malice had been shown as one of fact for the jury, upon the 
whole testimony. If testimony was adduced showing or tend- 
ing to show necessary self-defense, or sufficient provocation 
or cause for the act, then, under this instruction, the jury was 
free to reach a conclusion upon the question of malice from all 
of the facts and circumstances before it. It was only in the 
entire absence of testimony showing or tending to show neces- 
sary self-defense, or sufficient provocation or some cause 
which justified" or explained the act, that the jury was per- 
mitted, if they should see fit from all of the facts before them 
to do so, to draw the presumption of malice from the use of 
the weapon to which the instruction referred. They were not 
instructed that they should draw such a conclusion, but ad- 
vised merely that it would be legitimate to do so under the 
circumstances and conditions suggested. So that the question 
of malice after all was left to the jury to determine from the 
testimony as a fact. In other words, if the instruction had 
said, where the killing is unlawful, and done with a deadly 
weapon, malice may be implied, that clearly would have been 
been proper; and in the present case we are of the opinion 
that the words of limitation used in the instruction given are 
«quivalent to the use of the word unlawful, to describe the 
character of the killing referred to in the instruction. Fur- 
thermore, the jury were instructed upon the question of malice 
as follows : 



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Jan., '13.] Young v. The People. 311 

"The court instructs the jury that malice is not a pre- 
. sumption of law, but a fact for the jury to determine from the 
evidence, imder the instructions of the court." 

The jury were also instructed upon the question of in- 
tent in this language: 

"The court instructs the jury that the intention of the 
accused at the time of the killing, is to be ascertained by the 
jury upon the evidence, and cannot be made the subject of 
legal presumption or inference." 

And further, the court, having theretofore instructed the 
jury that malice was one of the essential elements to be found 
from the testimony in order to convict the defendant of the 
crime of murder, instructed as follows : 

"The court instructs the jury that to warrant a convic- 
tion, each fact necessary to establish the guilt of the accused 
must be proven by competent evidence beyond a reasonable 
doubt, and the facts and circumstances proven should not only 
be consistent with the guilt of the accused, but inconsistent 
with any other reasonable hypothesis or conclusion." 

These instructions are sufficiently explicit upon the ques- 
tion, that malice was a fact to be proven and determined as 
a fact by the jury, to remove any implication, in the instruc- 
tion of which complaint is made, that the jury should as a 
matter of law infer malice or intent to kill from any particular 
or special fact or circumstance. Furthermore, this precise in- 
struction has been specifically approved by this court in its 
opinion in the case of May v. The People, reported in 8 Colo. 
210, where it, with other instructions quoted, is characterized 
as follows : 

"The court gave the jury twenty-six instructions, six- 
teen of which were upon the court's own motion, the other 
ten upon the motion of the counsel for the prisoner; and for 
the reason that, in my opinion, these instructions furnish in 
themselves better proof of their correctness, lucidity and com- 
prehensiveness in their application to the facts of the case, and 
under our statutes relating to murder and manslaughter in 



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i 
_ J 



^12 Young v. The Peopi^e. [54 Colo. 

force at that time, than could be made by any discussion of 
them simply with reference to the verdict complained of, they 
are inserted here in full." 

Repeatedly throughout the instructions the court directed 
that the jury should make their findings upon the testimony 
in the case, and particularly directed the jury to treat and 
•consider the instructions as a series, that no one instruction 
stated all the law, but that the instructions were to be taken 
and considered together as the law in governing the jury in 
applying the law to the facts. The jury could not have failed 
to understand, from all of the instructions, that they were to 
•determine the character of the killing, the question of justifi- 
cation, and all the necessary elements to determine the guilt 
or innocence of the defendant from all of the facts and cir- 
cumstances disclosed by the testimony, taken and considered 
as a whole. From a complete survey of the record, including 
all testimony introduced and instructions given, we have no 
hesitancy in reaching the conclusion that the giving of in- 
struction number four was not misleading, and that no preju- 
dicial error was occasioned thereby. 

The refusal of the trial court to give certain instructions 
asked on behalf of the defense is urged as a ground of com- 
plaint. There was no error in such refusal, since every propo- 
sition sought to be covered by those instructions was fairly 
covered by the instructions which were given, and this court 
has repeatedly declared that it is not error to refuse to give 
instructions which are merely cumulative. 

It is further urged that the testimony of Gass, Taylor 
and Pitts, taken at the former trial, was improperly intro- 
duced in evidence at this trial. The testimony taken showed 
that the witness Gass was absent from the state, located in 
Missouri, beyond the jurisdiction of the court, and that the 
witnesses Taylor and Pitts were dead. The questions of 
whether the absence of Gass from the state, and the death of 
the witnesses Taylor and Pitts had been satisfactorily estab- 
lished, was primarily a matter for the trial court, and that 

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Jan., '13.] Young v. The Peopi^e. 313: 

court having held that these matters were sufficiently shown^ 
such finding will not be disturbed if it is fairly supported by 
the testimony. Upon this subject we have carefully exam- 
ined the record, and are satisfied that the findings of the court 
in this respect are supported by clear and convincing testi- 
mony. When these facts were established, then the testimony 
taken at the former trial, preserved and identified by bill of 
exception, was clearly competent in evidence at this trial. The 
contention is made that this testimony was introduced from 
stenographic notes. The record does not support this claim. 
On the contrary, it was from the bill of exceptions, made a part: 
of the record at the former trial and used in this court upon 
review of that judgment, that the testimony of these three 
witnesses were read into the present record. That testimony 
was duly authenticated, certified and sealed by the trial judge, 
as being all of their testimony introduced at the former trial,, 
both on direct and cross examination. The bill of exceptions 
w^as further identified by the official stenographer, who also 
testified that it contained all the testimony of these three wit-- 
nesses adduced, oflfered and received at the first trial. It wa& 
therefore properly received. — Rico R. & M. Co, v. Musgrcwe, 
14 Colo. 79; Emerson v, Burnett ^t al., 11 Colo. App. 86; 16 
Cyc. 1088, 1096 and 1097, subject Former Evidence. 

Other errors are assigned, which we have carefully ex- 
amined. They are without merit and need not be further 
considered or discussed. Upon the whole record, we are con- 
vinced that the defendant had a fair and impartial trial, that 
the verdict was fully warranted under the law, upon the facts 
shown, and that the judgment upon the verdict is a just and 
proper one, which should not be disturbed. 

Judgment affirmed. 

Decision en banc. 



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314 BuRCHMOR^ V. Antusrs Hotei* Co. [54 Colo. 

[No. 7441.] 

BuRCHMORE V. Antlers Hotel Co. 

1. EyiDEJXca—Relevancu — ^Action for an injury occasioned by the 
collapsing of a chair provided for plaintiff in the dining-room of de- 
fendant's hotel, where plaintifT was a guest. There were many chairs 
in the same room, some like that offered to plaintiff, others of differ- 
ent style, structure, and fashion. The particular defects in the 
chair provided for plaintifT were not shown. Testimony as to the 
alleged defective condition of other chairs in the dining-room, and 
other accidents occurring there prior to plaintiff's injury, was held 
irrelevant to the issue. 

2. iNSTBUcnoNB — Assuming a Fact in Issue. In an action for 
an injury attributed to a defective chair negligently provided for 
plaintiff, a guest in defendant's hotel, an instruction which permitted 
the Jury to find for the plaintiff, if the chair was defective, and de- 
fendant "had it used reasonable care'* would have known of the de- 
fect, even though it had no actual notice thereof, is properly refused, 
because assuming a want of reasonable care on the part of the de- 
fendant. 

3. Objections and Exceptions To — The rule prescribed in 

Hasse v. Herring, 36 Colo. 383, has no application to an instruction 
which contains but one proposition of law, and the objection calls 
the attention of the court to that particular proposition; nor to a 
case where each of several instructions contains a single proposition 
and objection is made to each separately, e. g., where in an action 
foi^ an injury attributed to the negligence of defendant an inn-keeper, 
in providing for plaintiff a defective chair, an instruction which im- 
posed upon plaintiff the burden to establish "that defendant invited 
plaintiff to sit in a chair which was unsafe and out of repair and 
known to defendant" to be so, prior to the happening of the accident 
and that the injury was "the natural and probable result of sach 
negligent act of defendant" was held to present only a single propo- 
sition, to which a general objection was sufficient — France v. Oaryot, 
30 Colo. 227, and National Fuel Co, v. Green, 50 Colo. 307, distin- 
guished. 

4. Neqliqence— -Reasonable Care— An inn-keeper invites his 
guest to occupy a chair, which by reason of its defective condition 
collapses, precipitating the guest to the floor. The inn-keeper is lia- 
ble if by reasonable care he would have known of the defect, even 
though he had no actual knowledge thereof. 

5. PLBiU>iirGS— <7ofutru€<I--Gomplaint for an injury attributed 
to the negligence of defendant, an inn-keeper, in providing for plain- 



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Jan., '13.] BuRCHMORE v. Antlers Hotel Co. 315 

tiff, a guest at his hotel, a defective chair, alleged that the defect 
was "known to defendant," before and at the time,, etc. Held, to ad- 
mit evidence that the defendant would have known of the defect, if 
reasonably diligent. 

Error to El Paso District Court. — Hon. W. S. Morris^ 
Judge. 

Mr. Joseph N. Baxter, Messrs. Vanatta & Dolph 
and Mr. Robert E. Harding, for plaintiff in error. 

Mr. Wm. E. Hutton and Mr. Bruce McCoy, for de- 
fendant in error. 

Mr. Justice Scott delivered the opinion of the court : 

This is an action upon the part of the plaintiff in error^ 
plaintiff below, to recover damage for injuries alleged to have 
been received while a guest of the Antlers hotel at Colorado 
Springs, conducted and operated by the defendant corpora- 
tion. The plaintiff was a resident of the city of Boston, Mas- 
sachusetts, and was one of a party of about one hundred and 
seventy-five making a tour across the country. The party, in- 
cluding the plaintiff, stopped at the city of Colorado Springs 
and became guests of the said hotel. 

Presumably because of so large a party to be cared for 
at one time, the hotel management provided one of its dining 
rooms, partially, with certain camp chairs. The plaintiff on 
the evening of the second day at the hotel, entered the dining 
room in company with two friends, husband and wife, and 
were being seated at the same table. The plaintiff while be- 
ing seated, and while assisted by a waiter, sat down on the 
chair provided for her, and it immediately collapsed, partici- 
pating the plaintiff to the floor, causing the injuries alleged to 
have been sustained. The particular chair in question is de- 
scribed as a folding camp chair, with perforated wood back 
and scat. The other chairs were as hereinafter stated, and at 
least a part of them were camp chairs, and presumably of the 
same description. 



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3i6 BuRCHMORE V. Antlers Hotei* Co. [54 Colo. 

The allegation in the complaint as to negligence is that 
the defendant "neglectful of its duty, carelessly, negligently, 
knowingly, recklessly, wantonly and maliciously invited the 
plaintiff to the use of a chair which was unsafe and known to 
be so by the defendant company." 

The answer is a general denial, and also charges con- 
tributory negligence. As to what was the character or nature 
of thei defect in the chair used, is not clear, in fact this ap- 
pears to be purely speculative. The cause was tried to a jury 
and a verdict returned for the defendant. 

The assignments of error are: (a) the refusal of the 
court to admit certain testimony; (b) the refusal to submit to 
the jury an instruction tendered by the plaintiff, and (c) the 
giving of other instructions by the court over the objections 
of defendant. 

The testimony refused was as to the condition of other 
chairs in the dining roofn prior to the accident, and as to 
other accidents occurring in the dining room prior thereto. 
No testimony was offered as to the particular defect in the 
chair used by the plaintiff, and the same seems to have dis- 
appeared and could not be produced at the trial. 

Plaintiff cites many cases wherein testimony is admitted 
as to the prior condition of the particular object or thing, 
causing the accident, and also of other and prior accidents oc- 
casioned thereby, but in no case cited, does it appear that such 
testimony was admitted as to the condition of similar objects 
or things in the same vicinity, or as to previous accidents oc- 
casioned by similar objects or things, not related to the object 
which was the direct cause of the accident. 

The testimony discloses that the chairs in the dining 
room were not all of the same make or design, or of similar 
defective condition, but on the contrary, that some were solid 
framed, some cane bottomed, and others of the type of the 
chair in question. Hence, it cannot be justly reasoned that a 
defect in one should give notice to the defendant of a danger- 
ous condition in the particular chair in question. It is true 

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Jan., '13.] BuRCHMORE v. Antlers Hotel Co. 317 

that in cases where the specific defect is of such a character 
that the general condition, as in case of a sidewalk, would 
naturally draw attention to the precise defect complained of, 
that such general condition is sometimes admitted. — Lyons v. 
Grand Rapids, 121 Wis. 609. 

But the condition of one particular chair in a large din- 
ing room could not be expected to give notice of the condition 
of any other one chair, though if such defective condition was 
known to be general with the chairs used, it might be permis- 
sible as tending to show a prudent duty upon the part of the 
landlord to examine all of them. The rule in this respect as 
stated by Wigmore on Evidence, is "that the prior injury or 
defect should be one which, if known, would naturally warn 
the person charged of the existence of the defect in question. 
It should be so closely associated with the one in question that 
the discovery of the one would naturally lead to the discovery 
of the latter, or would warn of its existence." 

It is said in R. G. 5*. i?y. Co, v. Campbell, 44 Colo. 
**In an action for negligence the general rule is that evidence 
of other independent and disconnected acts of negligence, 
which could not have contributed to the plaintiff's injuries, is 
not admissible to establish the n^ligence charged." 

The testimony complained of was properly excluded. 
That part of the instruction complained of as having been re- 
fused by the court is as follows : 

"And if you find that the defendant, had it used reason- 
able care, would have known of the defect in the chair pro- 
vided for plaintiff, if you find the same was defective, it would 
be liable in this action, although it had not actual notice of 
the defect." 

The law in this respect is reasonably well stated in other 
instructions and the expression "had it used reasonable care," 
would appear to be an assumption upon the part of the court 
that the defendant did not use reasonable care. We see no 
error in the refusal of this language as an instruction. 

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3i8 BuRCHMORE V. Anti*ers Hotel Co. [54 Colo. 

The objection as to instructions given and nunjbered 3^ 
4, 7 and 10, is of more serious concern. It is contended by 
the appellee that we may not consider these several instructions 
on appeal, for the reason that sufficient and proper objections 
and exceptions were not made at the time. The defendant in 
error cites Hasse v. Herring, 36 Colo. 383, in support of this 
contention and wherein it is held: "When one instruction 
contains two or more independent and distinct propositions of 
law, one of which is right and another, or the others wrong, 
a general exception directed to the whole instruction will not 
entitle the party to be heard as to that portion of the instruc- 
tion, which he deems to be wrong." This must be r^arded 
as the rule of this court not only at the time of the decision 
in that case, but before and subsequent. But it cannot be the 
rule where the instruction contains but one proposition of law ; 
for a specific objection to a single legal proposition is all that 
can be reasonably asked, and the objection is sufficiently spe- 
cific if it calls the attention of the trial court to that particular 
proposition. In the present case the objection was made to 
each instruction separately and not as one general objection to 
all instructions. An examination of the instructions com- 
plained of makes it clear that neither one of them contains 
more than one proposition of law, and that each of them are 
subject to the identical criticism. Instruction No. 7 is as fol- 
lows: 

7. "The court instructs the jury that the burden of 
proof is on the plaintiff to establish by a preponderance of the 
evidence that the defendant invited the plaintiff to sit in a 
chair which was unsafe and out of repair, and knotim by the 
defendant to be unsafe and out of repair prior to the happen- 
ing of the accident complained of, and that the injuries occur- 
ring to the plaintiff were the natural and probable conse- 
quences of such negligent act on the part of the defendant." 

This purports to set forth certain prerequisite determina- 
tions of fact in order to lawfully establish by proof, the ques- 
tion of negligence under the law, as applicable to the case. It 

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Jan., '13.] BuRCHMORE v. Anti^ers Hotei* Co. 319 

IS not possible to conceive of more than the one l^al proposi- 
tion in this statement. In France v, Geryot, 30 Colo. 227, 
cited by counsel, it was said : 

"It has been held by this court that a general exception 
to an instruction which contains more than one proposition of 
law, is not an exception which entitles the party to have the 
alleged error reviewed in this court.'* 

In that case there was but the cMie general objection to all 
instructions, including those admittedly good, so that the 
court was not even advised as to the specific instruction, or in- 
structions, relied on as being erroneous. 

National Fuel Co. v. Green, 50 Colo. 307, also relied on 
by counsel, does not sustain their contention in this case, for 
there the instruction to which objection was made, contained 
three distinct propositions of law, each relating to a different 
item of damage involved in the case ; viz. : damages to be al- 
lowed during plaintiff's minority, damages subsequent thereto, 
and damages on account of expenses incurred, in each of 
which a different rule of law obtained as to measure of dam- 
age. 

It was not intended to be the rule of this court that an 
objection should embrace an argument, but rather that the at- 
tention of the court should be called to each particular legal 
proposition objected to. Holding therefore, as we do, that the 
instruction now being considered, contained but one legal 
proposition, the objection thereto as stated, was sufficient. It 
is not seriously contended by counsel for defendant thstt the 
instruction correctly states the law, if the pleadings are suffi- 
ciently broad to cover a proper statement of the law in that 
respect. The objection to the instruction is that it holds the 
defendant liable only in case of actual knowledge, for it de- 
clares "and known by the defendant to be unsafe and out of 
repair," thus overlooking the l^al proposition as to the duty 
imposed on the defendant in such cases in the matter of the 
exercise of reasonable care. F^or the law holds the defendant 
to the exercise of reasonable care, to the same extent as in case 

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320 Wiu^isoN V. Cooke. [54 Colo, 

of actual knowledge. Particularly is this the rule in case of 
hotel keepers, livery stable keepers and common carriers, as it 
relates to the patrons of these. But it is said that the com- 
plaint in this case allies knowledge and omits the alternative 
usually pleaded in such cases, "or by the exercise of ordinary 
care could have known, etc.," and therefore the latter duty is 
not within the pleadings and such an instruction is for that 
reason improper. While the form of the complaint is not to 
be commended in this respect, yet the charge as to knowledge,, 
must of necessity embrace and include the full requirement of 
the law in that respect. 

But the instruction not only does not embrace more than 
one proposition of law, but the four instructions complained 
of, embrace but one and the same proposition of law, and the 
same erroneous statement is included in each, thus unneces- 
sarily and without reason, repeating the error, so that in this 
case it became flagrant. By these instructions the plaintiff was 
denied a substantial right, for it is difficult in any case to 
prove actual notice, and to sustain the instructions complained 
of, would be to overrule an unbroken line of precedent in this 
court. 

Judgment reversed and the case remanded. 

Chiejp Justice Musser and Justice Garrigues concur- 
ring. 



[No. 7468.] 

WiLUSON, Building Inspector of Denver v. CooKa 

1. Denvsb — Charter Comtrued^-^The charter of Denyer (sec 
17) authoriied the city council to enact and enforce ordinances nee- 
easary to protect life, health, and property; to declare, preyent, and 
summarily abate nuisances; and preserve and enforce good govern- 
ment, the general welfare, order, and security of the municipality, 

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Jan., '13.] WiuuisoN v. Cooke. 321 

and the inhabitants thereof. Held, not to confer power to prohibit 
the erection of a store building upon lots fronting upon an ordinary 
street, without first obtaining the consent of the owners of the prop- 
erty in the same block, on each side of the street, and submitting to * 
other burdensome restrictions. 

2. Constitutional Law — Police Power — Restrictions Upon 
Buildinff — One of the essential elements of property is the right to its 
unrestricted use and enjoyment. Restrictions upon the use of pri- 
vate property are permissible only when necessary to the general 
health, comfort or general welfare of the public. A use of private 
lands which does not infringe the rights of others or impair the 
welfare and security of the public cannot be prohibited under the 
police powers of a municipality. 

An ordinance which assumes to prohibit the erection, upon an 
ordinary street, of a store building, which, in respect of material and 
manner of construction complies with all local regulations, and is in 
no sense a menace to the health, comfort, safety or general welfare 
of the public, and involves no injury or insecurity to others, with- 
out first procuring the consent of the other owners of property in the 
same block, on each side of the street, and submitting to other bur- 
densome regulations, is not within the implied powers of a municipal 
corporation, deprives the owner of his property without compensa- 
tion, and without due process of law, is opposed to our bill of rights, 
sees. 3, 15, 25, and to the fourteenth amendment of the federal consti- 
tution, and is void. 

3. Practicb in the Sitfbeme Ck>UBT — Question not Presented Be- 
loio, will not be considered in the court of review. And the court 
will refer to the opinion of the court below, when found in the record, 
to determine what questions were there agitated. 

Error to Denver District Court. — ^Hon. H. C. Riddle, 
Judge. 

Mr. Henry A. Lindsley, Mr. G. Q. Richmond, Mr. 
John T. Bottom and Mr. A. Newton Patton, for plaintiff 
in error. 

James H. Brown, for defendant in error. 

Defendant in error, as petitioner, brought an action in 
mandamus against the plaintiff in error, as respondent, in his 
official capacity as building inspector of the city and county 
of Denver, the purpose of which was to compel him to issue 

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322 WiLrUSON V. Cooke. [54 Colo. 

a permit for the construction of a building on the southeast 
comer of Colfax avenue and Williams street. In his petition, 
petitioner alleged that he was the owner of the lots in quesr- 
tion; that respondent was the duly appointed, qualified and 
acting building inspector of the city and county of Denver; 
that he applied to respondent for a permit for the erection and 
construction of a one-story brick store building upon his lots, 
to cost the sum of ten thousand dollars, and then and there 
submitted and filed with him plans and specifications of the 
proposed building, showing and describing all parts of the 
construction thereof, and tendered him ten dollars, the pre- 
scribed fee for the issuance of the permit requested; that the 
plans and specifications submitted to and filed with the inspec- 
tor, indicated and showed that the work to be done in the con- 
struction of the building was in all respects in accordance with 
the provisions of the ordinances of the city and county of 
Denver; that the inspector so found, but, without lawful ex- 
cuse or reason therefor other than the provisions of certain 
ordinances referred to by number and title, refused to issue the 
permit applied for. Petitioner prayed that a peremptory writ 
of mandamus be issued, directed to the building inspector, 
ordering and commanding him, upon payment or tender of 
the proper fee therefor, to at once issue a permit for the erec- 
tion of the proposed building on the lots mentioned. 

To this pleading the respondent answered, admitting that 
petitioner was the owner of the lots in question; alleged that 
they fronted on the east side of Williams street, at the comer 
of Colfax avenue; admitted that, in so far as the application 
and the plans and specifications of the proposed building were 
involved, they indicated that the constmction of the building 
and the materials to be used therein, were in all respects in 
accordance with the provisions of the ordinances of the city 
and county of Denver, and that he found the plans and speci- 
fications submitted to him by the petitioner to be in full com- 
pliance with such ordinances, in so far as the character of the 
building or the construction thereof, and the materials to be 

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Jan., '13.] VViLLisoN v. Cooke. 323 

used therein, were concerned ; but alleged that the building as 
indicated by the plans and specifications, as well as the appli- 
cation for the permit to erect the same, and in so far as the 
erection of the buildings relates to the location and construc- 
tion thereof upon the premises described, did not comply with 
the provisions of the ordinances of the city and county of Den- 
ver. The answer then sets out the ordinances referred to, 
which are as follows : 

"In the following described section or portion of the city 
and county of Denver (then follows a description by refer- 
ence to streets, which includes the lots in question), it shall be 
unlawful to build or erect or make addition to a terrace (for 
more than two (2) families), apartment house, or flat (for 
more than four (4) families) , store building or factory of any 
kind, rooming house of more than thirty (30) rooms, hotels 
or any buildings similar to those before mentioned, unless the 
party desiring a building permit for any such building has 
first secured and filed with the building inspector the signa- 
tures of a majority of the owners of the property in the same 
block, on the same side of the street, and of the owners of the 
property in the block on the opposite side of the street or ave- 
nue, facing same, approving of the erection of such a build- 
ing, such approval to be accompanied by a certificate from 
some reliable abstract company that the parties signing the 
same are the owners of the property for which they signed.. 
Before issuing any permit for any building, as before men- 
tioned, the owner must specifically agree in writing to build 
said building on a line of the average distance back from the 
front line of lots as the buildings on the same side of the 
street in the same block; whenever such buildings are pro- 
posed to be erected on comer lots, they shall be set back fron» 
the front face of the lots to conform to the other buildings on- 
the same side of the street in the same block, but may be built 
up to the lot line toward the street or avenue on the long side 
of the lot, provided that for the purpose of this section, the 
frontage of all lots within the city and county of Denver shatt 

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324 WiLLisoN V. Cooke. [54 Colo. 

be and remain as laid out and platted at the time of the pas- 
sage of this ordinance.*' Sec. 248, Municipal Code, as 
amended. 

'*I£ the matters mentioned in the application for a permit, 
or the plans and specifications filed with the same, indicate to 
the building inspector that the work to be done is not in all 
respects in accordance with the provisions of the city ordi- 
nances, he shall refuse to issue a permit therefor until the same 
has been made so to comply, when he shall issue the permit." 
Sec. 226, ibid. 

"Whenever, in any block or on any street or avenue in 
the residence sections of the city and county of Denver, and 
fifty (50) per cent, of the lots in such block facing on said 
street or avenue have been improved, and the building line of 
the improvements made permanent, it shall be required that 
all buildings thereafter erected on adjoining lots within such 
block and facing on the same street or avenue must have the 
front building line established not nearer to the front lot line 
than the average distance back from the front line of the 
buildings already built. * * * "Sec. 250, ibid. 

The answer then alleged that the petitioner did not sc- 
cdre and file with the inspector the signatures of a majority of 
the owners of the property in the block on the same side of the 
street in which the lots upon which it was proposed to erect 
the building are located, and the owners of property on the 
opposite side of the street facing the same, approving of the 
erection of such buildings ; nor did petitioner specifically agree 
in w^riting to erect the building on a line the average distance 
back from the front lot line of lots that buildings on the same 
side of the street in the block in which his lots are situate, arc 
constructed, nor did he agree that the building proposed to be 
erected should be set back from the front line of his lots to 
conform to other buildings on the same side of the street in 
the same block, but, in fact, insisted that the ordinances im- 
posing these conditions as a condition precedent to the is* 
stance of a permit were invalid and of no effect. The answer 



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Jan., '13.] WiuuisoN v. Cooke. 325 

further allies that the permit was refused because of the fail- 
ure of petitioner to comply with the provisions of the ordi- 
nances above quoted in the particulars noted, for the reason 
that to issue the permit requested in such circumstances would 
be in violation of such ordinances, and contrary to the duty 
and obligation of respondent as building inspector of the city 
and county of Denver. The answer does not raise any issue 
upon the question that the proposed building will obstruct the 
street, or sidewalk, or upon the question of fire protection or 
insurance. 

To this answer a demurrer was filed by petitioner, chal- 
lenging its sufficiency to constitute a defense to the petition. 
This demurrer was sustained, and the respondent electing to 
stand upon his answer, the court ordered that a peremptory 
writ of mandamus issue, as prayed for by petitioner. The re- 
spondent has brought the case here for review on error. 

Mr. Justice Gabbert delivered the opinion of the court : 
From the foregoing synopsis of the answer, in connec- 
tion with admissions therein of allegations in the petition, and 
the ordinances set out haec verba, it appears that petitioner is 
the owner of lots upon which he desires to erect a store build- 
ing in a district which the ordinances of the munifcipality in- 
hibit, unless he first secures and files with the building in- 
spector the signatures of a majority of the owners of prop- 
erty in the same block, on the same side of the street, and of 
the owners in the block on the opposite side of the street fac- 
ing the same, approving of the erection of such building, and 
that when such approval is secured, a permit will be withheld 
unless he agrees to build on a line the average distance back 
from the front line of lots that buildings on the same side of 
the street in the block in which his lots are situate are con- 
structed; that the building which he proposes to erect complies 
in all respects, according to the plans and specifications, with 
the ordinances, in so far as the character of the building and 
the materials to be used therein are concerned, and that the 
sole defense interposed by respondent, and his only reason for 

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326 WiixisoN V. Cooke. [54 Colo. 

refusing a permit, is based upon the failure or refusal of peti- 
tioner to comply with the provisions of the ordinances, as above 
noted. In brief, the ordinances inhibit petitioner from ccm- 
structing a store building upon his lots until he complies with 
the provisions of such ordinances upon which respondent 
bases his right to refuse the permit requested, and even then, 
petitioner must agree not to construct his proposed building 
nearer the front line of his lots on Williams street than the 
average distance back other buildings on that street are con- 
structed, in the same block, before the permit will be granted. 
The important question, then, to determine, is the validity of 
these ordinances, in so far as they provide conditions with 
which petitioner did not comply, and for which reason the re- 
spondent, according to his answer, refused the permit re- 
quested. 

On behalf of respondent it is contended that these pro- 
visions are a valid exercise of the police power of the city, 
while on behalf of petitioner it is asserted that they are not, 
on the ground that they are so unreasonable as to be invalid, 
and, if enforced, deprive him of his property without compen- 
tation. It is a fundamental law, that a municipality under our 
system of government may, by ordinance, require the owner of 
a lot to so use it that the public health and safety will be best 
conserved, and to this end its police power may be exercised; 
but it is also fundamental, that such owner has the right to erect 
such buildings covering such portions thereof as he chooses, 
and put his property, as thus improved, to any legitimate use 
which suits his pleasure, provided that in so doing he docs not 
imperil or threaten harm to others. — Currcm Bill Posting Co. 
V. City of Denver, 47 Colo. 221 (225); City v. Whitlock, 
149 N. C. 542; Bryan v. City of Chester, 212 Pa. St. 259; 
Commonwealth v, Boston Advertising Co., 188 Mass. 348; 
Bill Posting Co. v. Atlantic City, 71 N. Y. Laws 72, 

So that legislative restrictions upon the use of property 
can only be imposed upon the assumption that they are neces- 
sary for the health, comfort or general welfare of the public; 

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Jan., '13.] WiixisoN v. Cooke. 327 

and any law abridging rights to a use of property which does 
not infringe the rights of others, or which limits the use of 
property beyond what is necessary to provide for the welfare 
and general security of the public, cannot be included in the 
police power of a municipal government. — In Re Morgan, 26 
Colo. 415 (423) ; Curran Co. v. D&nver, supra (425). 

Williams street is an ordinary public thoroughfare. It 
is not a park or park-way, and the authority of the municipal- 
ity to make the provisions in question, so far as advised from 
briefs of counsel, is found in section 17 of the charter, which 
provides : 

"* * * The council shall have power to enact and 
provide for the enforcement of all ordinances necessary to pro- 
tect life, health and property; to declare, prevent and sum- 
marily abate and remove nuisances; to preserve and enforce 
the good government, general welfare, order and security of 
the city and county and the inhabitants thereof; * * *." 

It will be observed that there is no express authority con- 
ferred upon the council to pass ordinances embracing the con- 
ditions and restrictions imposed as to lots fronting on an ordi- 
nary street upon which respondent relies ; and hence, it is only 
by virtue of the incidental powers with which the municipality 
is vested to pass police regulations that it assumes to act in 
passing the ordinance in question ; consequently, they are in- 
valid, if it appears that they are unreasonable, arbitrary or op- 
pressive. — Phillips V. City of Denver, 19 Colo. 179; Curran 
B. P. Co. V. City of Denver, supra {22g) ; City and County of 
Denver v. Rogers, 46 Colo. 479. 

Police regulations, in order to be valid, must tend to ac- 
complish a legitimate public purpose; that is, such regulations 
must have a substantial relation to the public objects which 
government may legally accomplish; and while it is for the 
legislative department of a municipality to determine the oc- 
casion for the exercise of its police power, it is clearly within 
the jurisdiction of the courts to determine the reasonableness 
of that exercise, when, as in the case at bar, it assumes that 

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328 WiLUSON V. Cooke. [54 Colo. 

power by virtue of its incidental or a general grant of au- 
thority. — C B. & Q. Ry. Co. v. Drainage Commission's, 200 
U. S. 561 (593); In Re Morgan, supra (424) ; Curran B. P. 
Co, V, City of Denver, supra (226). 

The building which petitioner proposes to erect complies 
in all respects with the ordinances relating to the materials 
which shall be used in its construction. The lots upon which 
it is proposed to erect it front upon an ordinary street or pub- 
lic highway. A store building is in no sense a menace to the 
health, comfort, safety or general welfare of the public, and 
this is true, whether it stands upon the rear portion of the lots 
upon which it is erected, or is constructed to the line of the 
street; but even if it could be said that its construction im- 
periled or threatened harm to others, such objections would 
in no sense be removed by the consent to its construction by 
the majority of the owners of property in the same block on 
the same side of the street, and of the owners in the block on 
the opposite side of the street facing it ; neither is it any more 
or less objectionable on the score mentioned, whether it be lim- 
ited to the rear portion of the lots or covers them from alley 
to street line. It is thus apparent that the sole purpose of the 
regulations involved is to prevent the construction of a store 
building in the locality where petitioner's lots are located un- 
less property owners, as indicated, consent; and then, if such 
consent is secured, to limit its construction to that portion of 
the lots not nearer to the front line of Williams street than 
the average distance back other buildings on that street in the 
same block are constructed. These regulations do not, in the 
slightest degree, have any relation whatever to the health, 
safety or general welfare of the public, nor do they tend, in 
any sense, to accomplish anything for the benefit of the public 
in this respect, but merely attempt to limit the petitioner in a 
use of his property, which does not infringe upon the rights 
of others. This deprives him of the fundamental right to 
erect a store building upon his lots covering such portions 
thereof as he chooses, although, by so doing, he does not ira- 

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Jan., '13.] WiixisoN V. Cooke. 329 

peril or threaten injury to others of which they can lawfully 
complain. A store building in a residence section of the city 
is not desirable, from an aesthetic point of view ; but restric- 
tions for this purpose alone cannot be upheld, as it is only 
those having for their object the safety and welfare of the 
public which justifies restricting a use of property by the 
owner. — Curran Co. v. City of Denver, supra (226) ; State 
V. Whitlock, supra (543) ; Varney et al, v. Williams, 100 Pac. 
(Cal.) S67; City of Passaic v. Patterson Bill Posting, A. & 
S. P. Co., 62 Atl. (N. J.) 267; Commonwealth v. Boston 
Adv. Co., supra. 

We must, therefore, hold that the restrictions under con- 
sideration are invalid, because they have no relation to any 
object which the municipality, in the exercise of its police 
power, may legally accomplish, and are unreasonable, arbi- 
trary, and oppressive. 

Aside from this, the ordinances in the particulars in- 
volved violate sections 3, 15 and 25 of our bill of rights, w'hich 
provide : 

"Section 3. That all persons have certain natural essen- 
tial and inalienable rights, among which may be reckoned the 
right of enjoying and defending their lives and liberties; that 
of acquiring, possessing and protecting property; and of 
seeking and obtaining their safety and happiness." 

"Section 15. That private property shall not be taken or 

damaged for public or private use without just compensation 
♦ * * »» 

"Section 25. That no person shall be deprived of life, 
liberty or property without due process of law." 

This latter section is similar to the fourteenth amendment 
to the federal constitution, which declares : 

"* * * Nor shall any state deprive any person of 
life, liberty or property without due process of law, nor deny 
to any person within its jurisdiction the equal protection of 
the laws." 



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330 Larimer County v. Annis. [54 Colo. 

One of the essential elements of property is the right to 
its unrestricted use and enjoyment; and as we have seen, that 
use cannot be interfered with beyond what is necessary to pro- 
vide for the welfare and general security of the public. En- 
forcing the provisions of the ordinances in question does not 
deprive the petitioner of title to his lots. He would not be 
ousted of possession. He would still have the power to dis- 
pose of them ; but, although there would be no actual or physi- 
cal invasion of his possession, he would be deprived of the 
right to put them to a legitimate use, which does not injure 
the public, and this, without compensation or any provision 
therefor. This would clearly deprive him of his property 
without compensation, and without due process of law, which 
our federal and state constituticms not only inhibit, but which 
would be repugnant to justice, independent of constitutional 
provisions on the subject. — City of St. Louis v. Hill, 116 Mo. 
527; Bill Posting Co. v. Atlantic City, supra; Conwnonwedth 
V. Boston Adv. Co., supra; City and County of Denver v. 
Rogers, supra. 

For these reasons, the provisions of the ordinances in- 
volved are, also, invalid. 

On behalf of the respondent it is urged that mandamus 
is not the proper proceeding on the part of the petitioner. It 
appears from the opinion of the trial judge that this question 
was not urged or passed upon in the court below, and for this 
reason, we do not deem it necessary to discuss that question 
on review. 

The judgment of the district court is affirmed. 

Judgmeftt affirmed. 

Decision en banc. 



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Jan., '13.] Larimer County v. Annis. 331 

[No. 7639.] 

County of Larimer v. Annis. 

1. Water Rights — Adjudication of Priorities — It seems that 
after the proceeding under the statute for the adjudication of priori- 
ties has gone to final decree, the same court may, in the same pro- 
ceeding, entertain a supplemental petition, and adjust the priorities 
of consumers whose rights were Initiated subsequent to such final 
decree, readjusting and renumbering all priorities from the begin- 
ning. 

2. Liability of County for Fees of Referee — Under section 

3300 of the Revised Statutes the counties embraced within a water 
district are liable for the fees of the referee, not only in the initial 
proceedings for adjusting priorities, but in a supplemental proceed- 
ing had under the original petition, on application of consumers 
whose rights were not determined by the first decree, but had their 
inception subsequent thereto. 

3. PBAcncE Iff THE SuPBEME CouBT — Presumptions — Unless the 
contrary appears it will be presumed that the inferior court was act- 
ing within its Jurisdiction. 

4. What May be Assigned for Error — ^A county having re- 
fused to pay the allowances made by the district court to the referee 
in a proceeding to adjudicate the priorities to the use of water, that 
court ordered each of the persons and corporations affected by the 
decree to pay into court their proportionate shares of the amount 
awarded to the referee, to be refunded to them if the award to the 
referee should be affirmed. Held, that the county was not affected 
thereby and would not be heard to complain thereof. 

Error ta Larimer District Court: — Hon. James E. Gar- 
RiGUES, Judge. 

Mr. T. J. Leftwich, for plaintiffs in error. 

Messrs. Lee & Ayi<ESW0rth, for defendant in error. 

Mr. Justice Scott delivered the opinion of the court : 

This case was submitted to the trial court upon an agreed 
statement of fact. From this it appears that on the 4th day of 
October, 1902, the defendant in error was appointed by the 
district court of Larimer county, as referee in the matter of 

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332 Larimer County v. Annis. [54 Colo. 

water district No. 3, proceeding under the statute in such case 
provided for the adjudication of the rights of priorities to the 
use of water for reservoir purposes in said water district. 

That in the discharge of his duties as such referee he 
rendered services for one hundred and twenty-five days, and 
which at the statutory fee of $6.00 per day, amounted to 
$750.00. 

That he also incurred actual expenses in addition thereto 
in the sum of $986.20, making the total sum of the bill ren- 
dered, $1,736.20. It appears also that this water district em- 
braced parts of both Weld and Larimer counties ; that the judge 
of the court acting under the direction of the statute, in that re- 
spect, approved the said account for services and expenses, and 
divided it into two equal parts as provided by statute in such 
case, and certified to each of the said counties its proportion- 
ate share in the sum of $868.10. It appears that this account 
was paid by Weld county, but was disallowed by the board of 
county commissioners of Larimer county, and from such ac- 
tion an appeal was taken to the district court of that county. 
Upon the trial, judgment was rendered in favor of the defend- 
ant in error for the amount claimed as against the county, 
which judgment is now before us for review. 

. The only serious objection to the judgment is, that the 
statute under which this proceeding was had, is intended to 
apply to what counsel refers to as an "initial proceeding," 
whatever that may be. That the services of such referee 
were not rendered in such a proceeding and therefore the pub- 
lic, and in this case the county, could not be held liable for the 
expense of the reference. 

It would seem to be the contention of counsel for the 
county, that where an adjudication had been once had as to 
priorities in a district, under the statute applicable, that there- 
after no other general adjudication of like character can be 
had; but that claims of adjustment or for the establishment of 
priorities of water rights must proceed as affecting purely pri- 



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Jan., '13.] Larimer County v. Annis. ^ 333 

vate rights, and the expense incurred should be that of the 
individuals, corporations or associations concerned. 

No authorities are cited in support of this contention. 
The referee was appointed in this case, presumably under 
authority of sub-division B, chapter 72, Revised Statutes of 
1908. The compensation for a referee is provided by sec. 
3300 as follows : 

"The referee appointed in this act shall be paid the sum 
of six dollars per day while engaged in discharging his duties 
as herein provided, and also his reasonable and necessary ex- 
penses and mileage at the rate of ten cents for each mile 
actually and necessarily traveled by him in going and coming 
in the discharge of his duties as such referee, which said per 
diem allowance, expenses and mileage shall be paid out of the 
treasury of the county in which such water district shall lie, 
if it be contained in one county, and if such water district shall 
extend into two or more counties, then in equal parts thereof, 
shall be paid out of the treasury of such county into which 
such district shall extend. He shall keep a just and true ac- 
count of his services, expenses and mileage and present the 
same from time to time to the district court, or judge in vaca- 
tion verifying the same by oath, and the judge, if he find the 
same correct and just, shall verify his approval thereof there- 
on, and the same shall thereupon be allowed by the board of 
county commissioners of the county in which said water dis- 
trict shall lie, but if said water district extend into two or more 
counties, he shall receive from the clerk of the district court 
separate certificates, under seal of the court, showing the 
amount due him from each county, upon which certificate the 
board of county commissioners of the respective counties shall 
allow the same on presentation thereof." 

The agreed statement of fact as to a former proceedir^ 
in relation to the adjudication of water rights in said water 
district No. 3, is in substance as follows : 



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334 Larimer County v. Annis. [54 Colo. 

On or about the first day of August, 1879, proceedings 
were instituted in that county entitled, "In the matter of a 
certain petition for adjudication of priorities of rights to use 
of water for irrigation in water district No. 3 ;" that a decree 
therein was entered on the nth day of April, 1882, adjudicat- 
ing certain water rights in said district. That subsequent to 
the day last named, certain persons interested, petitioned for a 
further adjudication of water rights in said district, and that 
these proceedings culminated in a decree of that court on the 
nth day of April, 1884, and which decree determined the re- 
'spective rights of all persons who had applied in said supple- 
mentary proceedings, save and except the rights of the Lari- 
mer County Ditch Company for its ditches and reservoirs, and 
that the said proceedings were continued open with respect to 
said claimants, and leave given to adduce proof of the comple- 
tion of said ditches and reservoirs, and of the application of 
ivater by such means to a beneficial use; that afterward such 
proof was adduced and a decree entered adjudicating the 
rights of said claimants with respect thereto, on October 12th, 
1886. Further, that the proceeding leading up to the decree 
of Nbvember nth, 1882, and all subsequent proceedings there- 
to, were numbered 320 of the serial numbers of the cases filed 
in that court. 

The agreed statement then sets forth certain named 
priorities and awards, under the last two named supplementary 
decrees, but these are not identical with the priorities and 
claimants involved in the proceeding under consideration. 

It is further stipulated that all of these several rights were 
numbered with respect to the decree entered April nth, 1882, 
which required the re-numbering of all priorities decreed be- 
tween the first day of August, 1879, and the 12th day of Octo- 
ber, 1886. 

It is further agreed that the adjudication proceeding in 
which the defendant in error was referee, concerned no rights 
which antedated the entry of the original decree of April 
nth, 1882, and concerned only such rights for storage pur- 
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Jan., '13.] Larimer County v. Annis. 335 

poses as had their inception subsequent to the last named date, 
except the Windsor Lake reservoir, owned by the claimants in 
these proceedings, upon which reservoir work was commenced 
between the first and fifteenth days of February, 1882, by the 
construction of an outlet ditch, the said reservoir being a 
natural basin having been filled for the first time during the 
year 1882, and subsequent to April nth; and also excepting 
reservoirs 2, 3 and 4 of the Larimer County Ditch Company, 
work whereon was commenced April 21st, 1881, and not com- 
pleted or in operation until after the nth day of April, 1882. 
The priorities of the reservoir in the proceedings in which this 
plaintiff was referee, were numbered and considered inde- 
pendently of said former proceedings, also that in the proceed- 
ings which culminated in a decree dated December 9th, 1904, 
sixty-four separate reservoir priorities were awarded, ten of 
which antedated the nth day of April, 1884; priorities No. 10 
for the Richards reservoir, belonging to the Water Supply and 
Storage Company, being of the date of January 17th, 1884, 
and that fifteen of said priorities so awarded antedated the 
I2th day of October, 1886; priorities No. 15 belonging to 
reservoir claimants No. 8, the Dickson Canon Ditch and Res- 
ervoir Company for the Dickson Canon reservoir being dated 
October 8th, 1885, which priority is the last numbered prior- 
ity prior in time, to four years subsequent to the date of the 
entr)' of the decree of April nth, 1884. 

This is all the information before this court for its con- 
sideration of the contention of counsel for the county, as it 
relates to prior proceedings in adjudication. 

There seems to have been thirty-two water priorities in- 
volved in the proceeding in which the defendant in error acted 
as referee, owned by as many different persons, associations 
and corporations. But the record does not disclose the nature 
and character of such proceeding so as to convey even a sug- 
gestion of the issues involved or the scope of the action. 



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336 Larimer County v. Annis. [54 Colo. 

There is certainly not sufficient in the showing here to 
enable this court to review that case so as to determine the 
regularity and validity of the proceeding, even were it proper 
to do so in this case. We must therefore, presume for the 
purpose of this action, that the' court was acting within its 
jurisdiction and that all parties were within their rights. No 
objection is presented here and no right asserted by any claim- 
ant of a water right in that water district, and we can scarcely 
sustain the contention of the county without declaring the 
court to have been without jurisdiction in rendering the de- 
cree in that case. 

The court also entered an order requiring all of the per- 
sons, associations and corporations affected by the decree, to 
pay into the court their proportionate share of the expense 
herein involved, for use of the defendant in error, pending this 
hearing, and that if the judgment in this case rendered shall 
• be sustained, that the sum so recovered from the county, is to 
be paid into court and in the manner provided in the order, 
and repaid to the several contributors. It is contended that 
such order is in effect a double payment to the defendant in 
error for his services and expenses. This contention is not 
tenable. Beside, it is not for the county to complain of such 
order, for it is in no wise affected by it. 

Complaint is further made that the item of stenographer's 
fees in the account so allowed by the court is excessive. The 
court made a finding and made its certificate of such finding as 
required by the statute. We see no reason to disturb it. 

The judgment is affirmed. 

Chief Justice Musser and Justice Hiix concurring. 



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Jan., '13.] Baii<ey v. The People. 337 

[No. 7730.] 

Bailey v. The People- 

1. Cbiminal Law — Homicide — Self-Defense — Right to Act on Ajh 
pearancea — Where to an information for murder the defense is 
that the prisoner acted in defense of his household against serious 
bodily injury threatened by the deceased, the Jury are to take into 
consideration, what, under the circumstances, the prisoner might 
have reasonable cause to believe as to the intentions of the deceased. 
An instruction to the effect that in order that the doctrine of self*- 
defense should apply, the Jury must believe tliat deceased intended 
to assault or kill the inmates of the house, is error, as a denial of the 
right of self-defense as defined in the statute (Rev'. Stat., sec. 1632). 

2. Evidence — Information for Jfurder^-Deceased was the 

busband of a sister of the prisoner. The homicide was committed 
while deceased was attempting to forcibly enter the house of the pris- 
oner where the wife had taken refuge, and was refusing to return to 
him. E^ridence of acts of brutality committed by deceased upon the 
person of his wife, that these had been made known to the prisoner, 
that the wife had fled to the house of prisoner for protection, that 
deceased had made threats to take the life of both the wife and the 
prisoner, and that the general reputation of deceased was that of a 
quarrelsome' and dangerous man, is admissible to show the state of 
mind of the prisoner, and the apprehensions which he might reason* 
ably entertain as to the designs of the deceased. 

3. Duty of Prosecutor — Information for wilful murder. 

Deceased was the husband of sister of prisoner. She had taken 
refuge from the husband's brutalities at the house of the prisoner 
where her mother was also, residing. The homicide was committed 
while the deceased was attempting to force himself into the house 
of the prisoner in order to coerce the wife to return to him. The 
prosecutor was permitted to propound questions which, by innuendo,, 
tended to reflect upon the moral character of defendant's house, and 
those who resided there. There was n6 evidence Justifying these in- 
sinuations. The conduct of the prosecutor was declared reprehenst 
ble. "It is the duty of all counsel to repudiate all appeals to un- 
worthy prejudice, and this is eminently so in the case of one who 
prosecutes for the people. / 

4. Poor Per$on^-Con»ideratipn Due To— The prosecutor is 

bound to see to it that no unworthv advantage is taken of the ac- 
cused, and this is especially so where accused is a poor person, and 
defends by appointed counsel. 

5. HovBi^^Riifht of Hou$eholder to Defend— A. householder may 
repel by force one who seeks to forcibly enter his dwelling; and if the 



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338 Bailey v. The People. [54 Colo. 

•conduct, words, and known character of the assailant are such as to 
excite in the mind of a reasonable person the belief that his purpose 
Is to kill or do great bodily harm to some person within the house, 
the householder is Justified in carrying his defense, eyen to the taking 
of life. 

6. Husband and Wife— Riffht of Husband to Control Wif&i 
Person — ^The husband Is not entitled to enter the house and premises 
of another, against the will of the householder, for the purpose of 
•conferring with his wife, and persuade her to return to him; much 
less may he use force to compel such return. 

Error to Denver District Court. — Hon. George W. Air 
ij£N, Judge. 

Mr. T. J. O'DoNNEix, Mr. J. W. Graham, Mr. Canton 
CDoNNEU* and Mr. Wiujs Stidger, for plaintiff in error. 

Mr. Justice Scott delivered the opinion of the court : 

Joseph E. Bailey, defendant in error, was convicted in 
the district court of the city and county of Denver, on the 
charge of the murder of Eugene H. Smith. The verdict was 
that of murder in the first degree. The wife of Smith 
was a sister of the defendant Bailey. The homicide occurred 
on the 1 8th day of July, 191 o. It appears that because of a 
quarrel between Smith and his wife, and of the violent beat- 
ing and abuse of her by Smith on the isth day of July, the 
wife with her two children, left home and took refuge with her 
mother at the house where the defendant and his wife re- 
sided. This seems to have been but one of many similar oc- 
currences. 

At about ten o'clock on the evening of the i8th, Smith 
called over the telephone demanding that he be permitted to 
talk with his wife, which was refused by the mother who an- 
swered the telephone, whereupon Smith replied with vile and 
abusive language, which caused the mother to hang up the re- 
ceiver. About fifteen minutes after this, Mrs. Smith's little 
boy, by a former marriage, who was in the yard for the pur- 
pose of sleeping there, and who had heard his grandmother 

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Jan., '13.] Baiuby v. The P^plE- 339 

talk over the telephone, came running into the house and 
shouted to his mother that he, meaning Smith, was coming. 
It seems that all of the occupants of the house had at this 
time retired, or were in the act of retiring. Upon hearing the 
boy's cry. Mrs. Smith ran into the bedroom occupied by the 
defendant and his wife, and called to him. 

Mrs. Smith's testimony upon this point is in substance 
as follows : 

"I looked out of the window, locJced northward; I was 
undressed to go to bed ; he was under the arc lights. He was 
almost running. He was just plunging, just coming in a jump 
like that, (indicating). It frightened me so; I could see from 
his appearance that he was in a very angry, bad mood, and I 
ran to my brother's bedroom door and called to him that there 
he came. I said to my brother : 'Get up out of bed, yes, there 
he comes,' and I said, Tor God's sake, don't let him come in 
here; if you do he will kill the whole family — ^he will kill 
mother and me.' " 

The defendant thereupon arose from his bed, secured a 
revolver and called out to Smith through the window, de- 
manding that he should not come into the yard. He then 
went from his bedroom into a room from which a door 
opened upon a poreh, and upon which Smith was entering. 
The defendant called to Smith, it appears four times, and de- 
manded that he should not come in. In reply to either the 
first or second request Smith said, "I will come in and get 
the whole God damned push of you." 

Smith finally opened the screen door as if coming in, 
when the defendant said, "I tell you for God's sake don't try 
to enter this side porch or the house; if you do I will shoot 
you." About this time the defendant fired the shot that re- 
sulted in the death of Smith. The defendant was crippled in 
his right hand from an injury recently sustained, and was 
compelled to use the revolver with his left hand. Smith was 
a very large and powerful man, much larger than the de- 
fendant. 

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340 Baii^y v. The Peopi^e. [54 Colo. 

It appears that earlier in the day R. L. McDonald, a 
brother-in-law, at the request of Mrs. Smith, went to Smith 
to see if an adjustment of their trouble could not be had, and 
at which time Smith said, "Well, if she will come back and 
live with me and do just as I say, I will live with her, and if 
she won't, God damn her, I will kill her." 

A witness named Tyler, who was at the time living at 
the house of the Smiths', also testified that, "On the morning 
of the shooting. Smith showed me a gun and said, *It was a 
Ood damn good thing you got me drunk last night, or I 
ivould have gone down and cleaned out the whole God damn 
push.' Smith came home on the morning of the i8th of July 
(the day of the shooting) about two o'clock. He had been 
•drinking. He came into my room and raised a fuss with me; 
•struck me and used — (the witness repeats vile language of 
•deceased toward him). I had a thirty-eight revolver under 
my pillow ; I drawed the gun on him and stood back on the 
opposite side of the bed until I could get down the stairway, 
•and when I got down the stairway, I got out and stayed out 
the rest of the night. Mrs. Smith wasn't there; just I and 
•Smith." 

There are many assignments of error, but in as much as 
the case must be reversed by reason of certain prejudicial in- 
structions given, it will not be necessary to consider other as- 
signments. 

The court over the objection of the defendant, gave in- 
structions Nos. 10 and 21, which are so clearly erroneous and 
prejudicial to the rights of the defendant, and are so closely 
connected in their subject matter as to make it convenient to 
•consider them together. These in full are as follows : 

"No. 10. That if you believe from the evidence, that 
the deceased, Eugene H. Smith, attempted to enter the house 
of Joseph E. Bailey or his mother, wherein he resided, and 
that at the time he attempted to enter the same he feloniously 
intended to assault or kill any of the inmates thereof, then 
you are instructed that the doctrine that every man's house is 

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Jan., '13.] BA11.EY V. The People. 341 

his own castle, would apply, and the defendant Joseph E. Bai- 
ley is not required under the law to retreat from the position 
or stand which he had taken ; but upon the other hand, if you 
believe that the said Smith attempted to enter the said house 
for the purpose of conversing with and inducing his wife to 
leave the said house, or for the purpose of using physical 
force, in endeavoring to do so, and had no intention of injur- 
ing or attempting to injure any of the inmates of the said 
house further than to exercise a reasonable supervision and 
control over his wife and her conduct, then you are instructed 
that there is no self-defense in this case, and no justifiable 
killing, and the said Joseph Bailey's killing of the deceased 
was unlawful, unless you believe from the evidence, that the 
circumstances attending the entry into the house was of such 
a character as would lead a reasonable man under like cir- 
cumstances to believe that he or the inmates of the said house 
were about to receive great bodily injury." 

"No. 21. The court instructs the jury: That the de- 
ceased, Eugene H. Smithy as the husband of the sister of the 
defendant, Joseph E. Bailey, had a right to exercise such rea- 
sonable control over her as was necessary to conduce to the 
proper establishment and maintenance of his household as the 
head of a family; and as such husband had a right to enter, 
in a lawful manner, the house or houses of any person whom- 
soever, for the purpose of talking with and procuring his 
said wife to leave the said house, if he so desired, and had a 
right to use such reasonable force and persuasion as was 
necessary to induce her to leave the house of her mother and 
come back to her home with him ; and no person, not even her 
brother, Joseph E. Bailey, had a right to interfere with him 
in the exercise of such reasonable force or persuasion ; and if 
you believe from the evidence, beyond a reasonable doubt, 
that the deceased, Eugene H. Smith, left his home on the 
evening of July i8th, and after telephoning to the house of 
Mrs. Bailey, went there for the purpose of seeing his wife 
and talking with her and endeavoring to persuade and induce 

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342 Bailey v. The Peopijs. [54 Colo. 

her to leave the house of the said Mrs. Bailey, her mother, or 
to talk over their family affairs and difficulties, and that he 
had no intention to inflict bodily harm or injury upon the 
persons in said house, then you are instructed that there is no 
self-defense in this case and no justification for the killing of 
the said Eugene H. Smith by the said Joseph E. Bailey." 

These instructions not only announce such palpable mis- 
statement of the law as to prejudice the rights of the defend- 
ant, but go to the extent of proclaiming a doctrine concern- 
ing the relation of husband and wife as to appear nothing less 
than monstrous at this period of our civilization. 

The jury are here told that in order that the doctrine of 
self-defense may apply, they must believe from the evidence 
that Smith attempted to enter the house of defendant, and 
also that at that time he feloniously intended to assault or 
kill any of the inmates. This is not the law. It is not the 
state of the mind of the defendant alone which the jury are 
to consider, but of the deceased as well. That is to say, what 
the defendant believed, or what under all the circumstances 
he might have reasonable cause to believe to be the intention 
of the defendant. 

These instructions are the equivalent of a denial of the 
very right of self-defense as defined and provided by our 
statutes. Sec. 1632, Revised Statutes, 1908, provides: 

"Justifiable homicide is the killing of a human being in 
necessary self-defense or in the defense of habitation, prop- 
erty or person against one who manifestly intends or endeav- 
ors by violence or surprise to commit a known felony, such 
as murder, rape, robbery, burglary and the like, upon either 
person or property, or against any person or persons who 
manifestly intend and endeavor in a violent, riotous or 
tumultous manner to enter the habitation of another for the 
purpose of assaulting or offering personal violence to any 
person, dwelling or being therein.** 

The evidence clearly justified the submission to the jury 
of the question as to whether or not the deceased was a per- 

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Jan., '13.] BA11.EY V. The PEOPI.E. 343 

son who manifestly intended and endeavored in a violent, 
riotous or tumultous manner to enter the habitation .of the de- 
fendant for the purpose of assaulting or offering personal vio- 
lence to any person dwelling or being therein. 

Instruction No. 21, without qualification, declares in 
substance that a husband without warrant of authority, and 
over the protest of the occupant has a right to enter the house 
or houses of any person whomsoever, for the purpose of talk- 
ing with, and procuring his wife, and against her will, to 
leave such house if he so cfesires. 

This is not now and never was the law in this country. 
It is a repudiation of every reasonable conception of the law 
of domicile and the right of habitation. Neither a husband 
nor any other person has such right. It strikes at the very 
foundation and sanctity of home life. It gives license to 
every drunken vagabond or other evil person, to invade the 
privacy of every man's home. It would destroy the moral, 
constitutional, statutory and common law right of defense of 
habitation. 

It is true the instruction declares the entrance must be 
in a lawful manner. But there can be no such thing as law- 
ful entrance under such circumstances. 

But the part of the paragraph of the instruction follow- 
ing, is even more shocking. Here the jury are told that a 
husband may over the protest of the occupant of the house, 
and over the protest of the wife of the husband so entering, 
not only enter any man's house, but has a right also to use 
such reasonable force and persuasion as may be necessary to 
cause the wife to leave the house of his mother and come back 
to his home with him, and that no person, not even her 
brother has a right to interfere with him in the exercise of 
such reasonable force or persuasion. 

The use of the word "force" in connection with the word 
persuasion can refer to physical force only, and the exent of 
this force is thus limited only by the necessity of the case, in 
order to so secure the possession, control and abduction of 



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344 Baii^y v. The Peopi^ [54 Colo. 

the person of the wife, and all this as against her will, her 
fear,, and even the apparent danger of her life. 

In other words, if this be the law, whatever may be the 
circumstances, the defendant was absolutely without right to 
defend his home and his near relatives from the threatened 
assaults and brutality of an infuriated and drunken husbadd, 
at whose will the home is to be made the place of riot and 
the occupants to suffer mental distress, probable assault, and 
as indicated by the testimony in this case, possible murder. 

Such is not and can never be the law in a civilized 
country. 

This assertion of the right of a husband to control the 
acts and will of his wife by physical force cannot be tolerated. 

The prejudicial effect on the defendant's rights by these 
instructions is too palpable to require comment. 

Counsel for defendant in their very excellent brief have 
cited many cases bearing upon this question. Among these 
is that of the English case of Queen v. Jackson, Div. i, 1891. 
This was a case where a husband undertook to restrain the 
liberty of his wife by forcibly keeping her in his own home 
after she had declined to further live with him. The decision 
of the court in that case may be epitomized in the statement 
of Mr. Helmer Collins, Q. C, as follows : 

"The contention of the husband would result in the re- 
introduction into society of private war; for the male rela- 
tions of a wife would naturally, if at hand, be likely to resist 
her capture by the husband. The contention for the husband 
involves wholly untenable propositions. First, it involves 
that the husband may take possession of the wife's person by 
force, though no process of law could give him such posses- 
sion of her. There never was any process of law for siezing 
and handing over the wife to the husband." * * . * 

"A husband has no such right at common law to the 
custody of his wife. It is inconceivable that the husband 
should be entitled to do by force for himself that which the 
law cannot enforce in his favor." 



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Jan., '13.] Bailey v. The People. 34S 

In Fulgham v. State, 46 Ala. 143, the rule is stated as 
follows : 

"But in person, the wife is entitled to the same protec- 
tion of the law that the husband can invoke for. himself. She 
is a citizen of the state, and is entitled, in person and in prop- 
erty, to the fullest protection of the laws. Her sex does not 
d^rade her below the rank of the highest in the common- 
wealth." 

In State v. Oliver, 70 N. C. 44, it is said : 

"We may assume that the old doctrine that a husband 
had a right to whip his wife, provided he used a switch no 
larger than his thumb, is not law in Nbrth Carolina. Indeed, 
the courts have advanced from that barbarism until they 
have reached the position that the husband has no right to 
chastise his wife under any circumstances." 

Again, in Buckingham v. Buckingham, 81 Mich. 89, the 
same doctrine is declared: 

"There would seem to be no legal principle which would 
prevent her from voluntarily deserting her husband, and 
abandoning her homestead. She is in no sense the slave of 
her husband, and is so far the master of her own will that 
she has liberty to remain with her husband, or go from him, 
as she pleases; and he has no l^al remedy to compel her to 
return." 

In State v. Connolly, 3 Ore. 69, the principle is stated as 
follows : 

"If Mrs. Hill, the wife of the deceased, having reason- 
able ground to apprehend personal violence at the hands of 
her husband, sought a temporary refuge in the defendant's 
house, and the deceased, being forbidden, sought to enter, 
then either the defendant or his wife had a right to use all 
necessary force to prevent him from entering." 

And in Commonwealth v, McAfee, 108 Mass. 459, we 
'find a very clear and comprehensive statement of the rule: 

"It may be stated, however, that under modem legisla- 
tion, as well as judicial ot>inions, that fiction oi legal Unity 

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346 Bailey v. The People. [54 Colo. 

by which the separate existence of the wife in a legal sense 
is denied is exploded. Her person is as sacred as that of the 
husband, and the protection afforded by law to the one should 
not be denied to the other. In fact, courts of equity have al- 
ways recognized the separate existence of the wife in refer- 
ence to her sole and separate estate, and to say that a court 
of law will recognize in the husband the power to compel his 
wife to obey his wishes, by force if necessary, is a relic of 
barbarism that has no place in an enlightened civilization." 

Many additional authorities are cited to the same effect. 
Instruction No. 25 was as follows : 

"No. 25. You are instructed that there is no man- 
slaughter in this case." 

And again, instruction No. 26 contains the following: 

"You are instructed that under the instructions in this 
case, and the evidence, you are at liberty to find the follow- 
ing verdicts: Murder in the first d^ree; murder in the sec- 
ond degree, or not guilty." 

Under the testimony, this was clearly material error. 
This subject was exhaustively discussed by Mr. Justice Gab- 
bert in the recent case of Hetvwood v. People, decided at this 
term of court, and it is only necessary to cite this authority 
without a repetition of the argument. 

Considering the testimony in this case in comparison 
with the circumstances there, we cannot escape the conclusion 
of error in the giving of these instructions. This becomes 
more apparent when we consider the testimony offered by the 
defendant and refused by the court. 

In line with the court's theory as outlined in the instruc- 
tions, testimony competent and vital to defendant's defense of 
self-defense, was refused and stricken out. This line of testi- 
mony is sufficiently indicated by the statement of defendant's 
counsel as to what he desired to prove as follows : 

"I want to show, prior to the night of the killing and 
since the marriage of the deceased to Mrs. Smith, the sister 
of the defendant, that there have been repeated and continued 

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Jan., '13.] Bailey v. The People. 347 

acts of brutality on the part of the deceased; that these acts 
were made known and the results of them, to the defendant. 
That the deceased had made threats to take the life of both 
the sister of the defendant and the defendant himself; that 
on the day of July 15th, 1910, there was a fight, a row oc- 
curred in the house of Smith; at that time he jumped upon 
the abdomen of his wife and caused hemorrhages, which aft- 
erwards necessitated an operation. That Mrs. Smith left his 
house and fled to the house of the defendant for protection, 
as she had done oftentimes before; and I want to show that 
also, to show the state of mind that the defendant was in and 
the apprehension he might have as to the designs of the de- 
ceased." 

And again: 

"I want to ask questions of this witness, and other wit- 
nesses, which show the probability of whether or not Mr. 
Smith was the aggressor, and I want to ask this witness 
everything that Mrs. Smith would have been allowed to tes- 
tify to were she the defendant, and what he knew of prior to 
the time of the shooting." 

The court in the instructions and in the rejection of tes- 
timony offered, has overlooked the right of the brother to use 
such force as may be necessary for the protection of the per- 
son and life of his sister, as. well as a consideration of the 
sudden passion that may be aroused in such a case. — Camp- 
bell V. Commonwealth, 88 Ky. 402. 

The defendant complains and assigns as error the con- 
duct of the deputy district attorney and the court. It is not 
necessary to go into detail in this matter, nor to especially 
consider it in that light, but some of the acts of both, in this 
r^ard were unusual, uncalled for, and manifestly unfair. 

The refusal of the court to permit the defendant to show 
the general reputation of the deceased in the neighborhood 
in which he lived, as to being quarrelsome and dangerous, 
was worse than error. Considering the well known state of 
the law in this regard, this was inexcusable. 

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348 Bailey v. The People. [54 Colo. 

But still more grevious was, that after the court had re- 
jected such testimony, it permitted the deputy district attor- 
ney to introduce testimony in rebuttal tending to show the 
reputation of the deceased in this respect, to be good. Cita- 
tion of authorities as to these matters is not required. 

Very much of the conduct of the deputy district attorney 
upon the trial was unfair, at least, if not reprehensible. For 
instance, he asked and was permitted to ask, questions of wit- 
nesses which by insinuation and innuendo, tended to reflect 
upon the moral character of the home of the defendant and 
hi0i mother, when there was not a scintilla of testimony to 
justify these questions. This court in Ritchey v. People, 2j 
Colo. 314, has approved Mr. Wharton's statement of the duty 
of a prosecuting attorney in the trial of criminal cases: 

"It is scarcely necessary to add that a prosecuting attor- 
ney is a sworn officer of the government, required not merely 
to execute justice, but to preserve intact all the great sanc- 
tions of public law and liberty. No matter how guilty a de- 
fendant may in his opinion be, he is bound to see that no con- 
viction shall take place except in strict conformity to law. It 
is the duty, indeed, of all counsel to repudiate chicanery and 
appeal to unworthy prejudice in the discharge of their high 
office; but eminently is this the case with public officers,, 
elected as representing the people at large, and invested with 
the power which belongs to official rank, to comparative su- 
periority in experience, and to the very presumption here 
spoken of that they are independent officers of state." 

Particularly should this be his course of conduct in a case 
like this, where the defendant is in poverty and defended as 
a poor person. It is such conduct upon the part of officials, 
entrusted with power to enforce the law, as appears in this 
case, that breeds discontent, subjects courts to criticism and 
provokes contempt of the law. 



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Jan., '13.] FuuuEN v. WuNDERiacH. 349* 

The judgment is reversed and the case remanded. 

Mr. Justice Muss^ concurs. 

Mr. Justice Garrigues concurs i nthe reversal of the 
case upon the ground that the instructions were erroneous. 



INo. 7744.J 

FULI^N V. WUNDERUCH. 

1. PaAcncE IN Supreme Coubt — Questions not Presented Beloto^ 
win not be considered in this court, even though upon application to 
vacate a judgment, and the objection goes to the jurisdiction of the- 
court. 

2. Judgment — Vacating — Summons not Personally Served — 
Whether upon application under section 81 of the code a judgment 
rendered without personal service may shall be vacated, Is In the dis- 
cretion of the court. 

The action was instituted in January, 1911, and judgment en- 
tered July 20th, A. D. 1911, upon publication of the summons, the* 
clerk of the court had mailed a copy of the summons and complaint 
to defendant, at the address given in the affidavit for publication. 
The motion to vacate the judgment was filed February 11th, A. D^ 
1912. No explanation was given of this delay. The affidavit in sup- 
port of the motion failed to show that defendant was Ignorant of the 
pendency of the cause, nor that he failed to receive the copy of the* 
summons and complaint, nor that the address given in the affidavit 
for publication was not his address. The affidavit was held insuffi- 
cient, and the motion properly denied. 

Error to Phillips County Court. — Hon. S. S. Worley^ 
Judge. 

Messrs. RoufsoN & Hendricks^ for plaintiff in error. 

Mr. W. D. Kelsey, for defendant in error. 

Mr. Justice Hill delivered the opinion of the court : 

Upon July 20th, 191 1, the plaintiff, defendant in error 
here, secured a judgement against the defendant, plaintiff ii> 

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350 FuixEN V. WuNDERUCH. [54 Colo. 

error here, in the sum of $265.15 and costs taxed at $32.54, 
This judgment sustained a writ of attachment theretofore 
levied upon real estate, and included an order that so much 
thereof as was necessary to satisfy the judgment, be sold 
under special execution. This was issued upon the same date 
and returned August 15th, 191 1, showing the sale of the prop- 
erty, etc. 
property,etc. 

Upon February 9th, 19 12, the defendant filed a motion 
to set aside the judgment and for leave to answer to the 
merits of the original action for the following reasons: 
First, that defendant had not been personally served with 
summons and that judgment was entered on the 20th of July, 
191 1, being less than one year previous to the filing of the 
motion. Second, that the defendant has a good and sufficient 
defense to the action on the merits. This, it is alleged, more 
fully appeared in the affidavit of the defendant filed with the 
motion. It states, that he is a non-resident of Colorado; that 
he has not been personally served with summons in the above 
entitled action; that the judgment was entered on the 20th 
day of July, 191 1 ; that he has fully and fairly stated the case 
to his counsel and after such statement he is advised by his 
counsel and believes that he has a good, full and perfect de- 
fense to the action upon the merits. 

The motion to vacate the judgment, etc., was overruled. 
The defendant brings the case here for review. 

Many reasons are urged why the court was without 
jurisdiction in the original action, the pleadings defective, the 
service void, the proceedings irregular, the judgment void, 
voidable, etc. As none of these questions were raised in the 
court below upon this motion, following the well recognized 
practice of this court, we will not consider them, but will 
limit our review to the reasons then raised and passed upoii, 
as to why the motion should be granted. — Cone v. Bldridge, 
51 Colo. 564; Leary v. Jones, 51 Colo. 185; Jakway v. Rk^ 
ers, 48 Colo. 49 ; Rice v. Cossells, 48 Colo. 73 ; Nelson ef at. v. 

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Jan., '13.] FuLi^N. V. WuNDERUCH. 351 

Chittenden, 123 Pac. (Colo.) 656; Bcprr v. People, 30 Colo. 
522; Auckland v. Lcowrence, 20 Colo. App. 364; Quinn v^ 
Baldwin Star C. Co., 19 Colo. App. 497; City of Denver v. 
Moewes, 15 Colo. App. 28; Clayton et al. v. Clayton's Heirs,, 
etc., 4 Colo. 410. 

The defendant's contention presented by his motion rests 
upon the proper construction to be given the concluding clause 
of general section 81, Revised Code, 1908, it reads: 

"When for any cause, the summons in an action has not 
been personally served on the defendant, the court may allow,, 
on such terms as may be just, such defendant, or his legal 
representatives, at any time within one year after the rendi- 
tion of any judgment in such action, to answer to the merits 
of the original action." It is claimed that when a defendant 
brings himself within the provisions of this paragraph and 
shows he has a meritorious defense that he is entitled to this, 
relief as a matter of right without showing mistake, inad- 
vertence, surprise or excusable neglect, that the court has no 
discretion, but must grant the relief. Gray v. Lawlor, 151 
Calif. 352, the cases therein cited and other California cases 
are cited to sustain this position. Whatever may be the rule 
in other jurisdictions, under their code provisions, it has been 
held by this court and by our court of appeals that the grant- 
ing or denying of a motion to set aside a judgment and to 
allow answer to the merits under section 81, supra, is discre- 
tionary with the trial court. — R. E. Lee S. M. Co. v. Bngle- 
hack, 18 Colo. 106; Donald v. Bradt, 15 Colo. App. 414 r 
Morrell H. Co. v. Princess G. M. Co., 16 Colo. App. 54. 

Eliminating the question of the sufficiency of the affi- 
davit pertaining to merits, under the circumstances disclosed 
we do not think the court abused its discretion in overrulling^ 
the defendant's motion. The suit was instituted in January, 
191 1 ; judgment was entered July 20th, 191 1. The defend- 
ant's motion to set aside judgment and for leave to answer 
to the merits was filed February 9th, 1912. The affidavit in 
support thereof does not state that he was theretotere ignor- 

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352. FULUBN V. WUNDERUCH. [54 Colo. 

ant of the pendency of the action, or if he was when knowl- 
edge reached him concerning it, or that he acted with any 
diligence thereafter; he in no manner attempts to excuse his 
delay of over seven months before making this attempt to 
have the judgment set aside. He does not state that he did 
not receive a copy of the summons and complaint mailed to 
him at his postoffice address in Nebraska. The burden is 
upon him to show everything that would entitle him to a 
vacation of the judgment in the exercise of sound discretion 
by the court. As stated by our court of appeals in Donald v. 
Bradt et d., supra, at page 418, "It is true, that under this 
code section, a defendant not personally served with summons 
has twelve months within which to apply to have a judgment 
vacated, but the lapse of time after he obtains knowledge of 
the judgment and before he applies may be, and indeed is, in 
many cases an important factor to be considered by the court 
in exercising its discretion." The affidavit upon which the 
order for publication of summons was based, states his last 
known place of residence was Grand Island, Nebraska. The 
clerk of the court, as appears from his affidavit in the record, 
mailed a copy of the summons and complaint to the defend- 
ant at that point, immediately upon the issuance of the order 
for publication. The defendant does not allege that he did 
not receive these papers or that Grand Island was not at that 
time his post office address. For all that appears in the affi- 
davit the defendant could have known all about the suit and 
might be attempting to take advantage of his being a non- 
resident in order to delay its ultimate termination. In our 
opinion the affidavit in this respect was insufficient to justify 
the granting of the motion. 

Perceiving no prejudicial error the judgment of the court 
in refusing to set aside the judgment and for leave to answer 
to the merits is affirmed. Afftrthed, 

Chiei? Justice Musser and Mr. Justice Gabbert con- 
cur. 



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Jan., '13.] CoRYELi. V. Fawcett. 353 

[No. 7763.] 

Cor YEW. ET Au V. Fawcett., 

Pbagtice in the Sxjpbeme Coubt — Writ of Error Sued Out 
CoUuHveJy, and under a precedent agreement that the defendant in 
error shall confess errors, the controversy of the parties being ad- 
justed, and the real purpose being to vacate an allowance to the at- 
torneys for their fees, will be dismissed. Such proceeding Is a fraud 
upon the attorneys and an Imposition upon the court. 

Error to Garfield District Court, — Hon. Charles Mc- 
Caix, Judge. 

Mr. B. L. Cw)VER, for plaintiffs in error. 

Mr. H. J. CXBryan, for defendant in error. 

PER CURIAM: 

Through her attorneys, D. M. Campbell and S. J. De 
Lan, the defendant in error, Miss Pauline M. Fawcett, claim- 
ing to be a stockholder in the Garfield County Coal and Fuel 
Company, prosecuted an action in the district court of Gar- 
fied county against Perry C. Coryell and his wife, Minnie B. 
Coryell, and the coal company. The Coryells were the offi- 
cers and a majority of the board of directors of the company, 
and the holders of all the capital stock, unless Miss Fawcett 
owned five thousaild shares which she claimed. In the com- 
plaint It was alleged that she owned these shares. Her own- 
ership thereof was admitted by the defendants in their answer 
and throughout the trial. The certificate therefor was not 
produced, and the company had no stock ledger or other book 
to show who were the owners of the stock. The result of the 
action in the district court was a decree that Mrs. Coryell con- 
vey to the coar company certain lands which she had taken in 
her own name, and which the court found belonged to the 
company; that she pay' to the company $20,474 in money; 
that Perry C. Coryell pay to the company the sum bf $1,000, 



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354 CoRYEix V. Fawcett. [54 Colo. 

and that the company pay to D. M. Campbell and S. J. De 
Lan, as attorneys' fees for them as the plaintiff's attorneys, 
the sum of $2^5oa 

A receiver was appointed to take charge of the business 
and property of the coal company, who was empowered to do 
all things that he might lawfully do for the best interests of 
the company and those interested, and to sue for and collect 
all money and property due the company, and make distribu- 
tion thereof according to the respective rights of the stock- 
holders, and in such manner as might be approved by the 
court. 

After judgment, the Coryells applied for a new trial. In 
support of this application, Mr. Coryell, in an affidavit set 
forth a chain of facts and circumstances which be began 
vaguely to remember after the trial, and whereby he at- 
tempted to show that Miss Fawcett did not in fact own any 
stock in the company, but that the stock she had owned, and 
which was treated as hers at the trial, had been turned over to 
Mrs. Coryell several years before for a certain consideration, 
since which time the Coryells had been the owners of all the 
stock of the company, and the corporation had practically 
gone out of business. Miss Fawcett denied this in a counter- 
affidavit. The motion for a new trial was overruled in Au- 
gust,' 191 1. On March 14, 1912, a transcript of the record 
was filed in this court, and the cause docketed on error with 
the coal company and the two Coryells as plaintiffs in error, 
and Miss Fawcett as defendant in error. On the same day 
and simultaneous with the filing of the transcript, there was 
filed on behalf of Miss Fawcett, the defendant in error, what 
purports to be a confession of errors, wherein, after confess- 
ing that the court below committed prejudicial error in many 
particulars. Miss Fawcett empowered an attorney other than 
Campbell and Dc Lan to appear for her, file the confession of 
errors, consent that the judgment be reversed and annulled, 
and that a final judgment be entered in this court dismissing 
the complaint. 



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Jan., '13.] CoRYELi. V. Fawcett. 355 

When the filing of this confession of errors was brought 
to its attention, this court, of its own motion, appointed a 
commissioner to take testimony with reference to the prepara- 
tion and filing thereof. The parties, together with Campbell 
and De Lan, appeared before this commissioner. Testimony 
was taken, and the same together with the certificate of the 
commissioner relative thereto were filed in this court It ap- 
pears from the testimony of Miss Fawcett, Mr. Coryell and 
others, taken before the commissioner, that after the motion 
for a new trial was denied Miss Fawcett became convinced 
that she was not the owner of any stock in the company, and 
that the stock which she had claimed had been by her turned 
over to Mrs. Coryell for a consideration several years before 
she began the action. When she became convinced of this 
she disclaimed any interest in the company, or in the litiga- 
tion or judgment, and desired, as she expressed it, "to quit," 
Thereupon, the Coryells and Miss Fawcett had various meet- 
ings, conversations and negotiations, the result of which was 
that the certificate of stock theretofore claimed by Miss Faw- 
cett was found and turned over to the Coryells, and Mr. Cory- 
ell had his attorney prepare the confession of errors, which, 
if we understand her testimony aright, was outlined by Miss 
Fawcett. The confession was prepared and sent to Mr. Cory- 
dl, who in turn sent it to Miss Fawcett. The latter signed 
and acknowledged it before a notary public, and transmitted 
it to an attorney, authorizing and directing him to file it and 
to consent to the reversal of the judgment and the dismissal 
of the complaint as above stated. Mr. Coryell, at the request 
of Miss Fawcett, had seen this attorney, and the latter con- 
sented to act for her upon her assurance that her other attor- 
neys had been discharged. Campbell and De Lan were not 
notified or consulted with reference to the confession of errors, 
and knew nothing concerning it until they were notified by 
order of this court. All that was said to them with reference 
to settling the matters was in September, 191 1, when Miss 
Fawcett sent to Campbell an alleged proposition of compro- 

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356 CoRYEU. V. Fawcett. [54 Colo. 

mise or settlement from Coryell, which was returned by 
Campbell to Miss Fawcett, with a notation thereon that there 
was nothing to compromise; that her rights were fully pro- 
tected by the judgment and there was nothing to do but tc 
execute it. When asked by Campbell if she remembered send- 
ing a proposition of compromise, Miss Fawcett said : "I do. 
You turned it down as a yellow dog. You told me to go no 
further. I got your letter. I know what you said. I gave 
you a fair, square chance. You would not take it. I was go- 
ing into bankruptcy and I wasn't going, and I quit. Now, 
there you have got it." After that Campbell and De Lan 
seemed to have been studiously ignored. It was also made to 
appear to this court that shortly before the transcript and con- 
fession of errors were filed, the receiver, at the direction of 
the district court, was proceeding to sell some of the property 
of the company to pay the costs of the trial and the attor 
neys' fees allowed to Campbell and De Lan. While the Coi >- 
ells and Miss Fawcett were careful in their testimony to avoid 
saying that their matters had been settled prior to the filing 
of the transcript and confession of errors, it is very plain from 
the testimony and the confession of errors that they had 
reached an understanding and agreement to wipe out the 
judgment of the district court, and to dismiss the action, leav- 
ing the Coryells the owners of and in possession of all the 
capital stock of the company, and its officers and directors. 
Before the cause was docketed in this court. Miss Fawcett had 
disclaimed all interest in the company and the judgment, and 
declared that she never had any cause of action against the 
defendant. She no longer claimed to be a stockholder. The 
stock that she had claimed had been turned over to the Cory- 
ells, and they were, without dispute, the owners of and in 
possession of all the capital stock, and were the officers and 
directors. There remained no longer any real or live con- 
troversy between the parties to the action. So far as the 
rights of the Coryells, the company and Miss Fawcett arc 
concerned, their controversy was settled, and the matters over 

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Jan., '13.] CoRYEU. V. Fawcett. 357 

which the litigation had been waged adjusted. To effectually 
wipe out the litigation and the judgment, it is plain that the 
parties further agreed that the case should be lodged in this 
court in the form of a writ of error, together with a confes- 
sion of errors, so that a reversal of the judgment and a dis- 
missal of the complaint should be at once secured. It was not 
necessary to bring the case here to effectuate the settlement. 
In so far as the rights of the parties are concerned, that could 
have been accomplished in the district court. Mrs. Coryell 
was the owner of all the capital stock, except possibly two 
shares held by Perry C. Coryell and Perry C. Coryell, Jr., 
who with Mrs. Coryell were directors, and the company had 
no debts. The only reason for the attempted proceeding in 
this court that the parties could have had was the anticipation 
that a reversal of the judgment and a dismissal of the com- 
plaint would defeat the rights of Campbell and De Lan to the 
attorneys' fees allowed them. Having settled their own mat- 
ters, the parties have attempted surreptitiously and without 
notice, to use this court to defeat the attorneys. From the 
foregoing, the following conclusions necessarily follow : 

1. The matters in controversy and the subject of the 
litigation between the Coryells, Miss Fawcett and the com- 
pany have been adjusted and settled between them, and the 
errors, if any, occurring in the lower court, have become 
moot; for whether the judgment be reversed or affirmed the 
same result will follow from their agreement. When parties 
have settled their differences there remains no real controversy 
or live question concerning the matters that the litigation was 
about. If parties dispose of the subject matter of litigation 
there remains no matter to litigate. Under such circum- 
stances, a writ of error will be dismissed. — People v. Hall, 45 
Colo. 303; 2 Cyc. 533; 3 Cyc. 188. 

2. The parties did not intend that any of the errors as- 
signed should be reviewed in this court. The confession of 
errors was made before the case was lodged here, and then 
filed at the same time that the transcript was filed and the case 



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358 CoRYEix V. Fawcett. [54 Colo. 

docketed, and the confession was made without regard to the 
merits of the alleged errors. As no review was ever intended 
the writ of error was not sued out in good faith. The pur- 
pose of a writ of error is to obtain a bona fidef review of a 
judgment of a lower court and when such a writ is sued out, 
not for the purpose nor with the intention of having a bona 
fide review, but for some other and ulterior purpose, foreign 
to the purpose of appellate jurisdiction, it cannot be said to 
save been sued out in good faith, nor that the appellant juris- 
diction has attached. Such a proceeding is a pretense and a 
sham and can not give parties any standing. 

3. The evidence before us, circumstantial and other- 
wise, indicates that the parties endeavored to defeat Camp- 
bell and De Lan of their attorneys' fees. For the accomplish- 
ment of that purpose, the parties hit upon the plan of pretend- 
ing to institute proceedings in error in this court, and, by 
confessing error as to matters concerning themselves and over 
which there was no longer any controversy, secure a reversal 
of the judgment and a dismissal of the complaint. It was not 
intended to have a real review of the question of the allow- 
ance of attorneys' fees. The proceeding was resorted to for 
ridding the company and the Coryells of the attorneys' fees 
allowed, and leaving the attorneys to look for payment for 
their services to their client, who confessed that she was go- 
ing into bankruptcy. It is certain that Campbell and De Lan 
were led to believe, and confirmed in the belief by all the par- 
ties, plaintiff and defendants, that Miss Fawcett was a stock- 
holder in the company, and as such prosecuted the action, 
which, through the work of the attorneys, resulted in a very 
substantial judgment in favor of the corporation. Certain it 
IS that these attorneys were and are entitled to just compen- 
sation from some one. In the final disposition of the contro- 
versy, fair dealing required that they be considered, consulted 
and given an opportunity to protect their rights, whatever 
they may be. The manner in which it was sought to do away 
with the rights of these attorneys was a fraud upon them. 

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Jan., '13.] CoRYEw* V. Pawcett. 359 

and the use of the forms of review, for the purpose of com- 
pleting' that fraud, was an imposition upon this court. This 
court has the right and it is its duty to protect itself from im- 
position and from being used as an instrument for the accom- 
plishment of a designed wrong, by parties who invoke its- 
jurisdiction in bad faith. To retain this pretended proceed- 
ing in error in this court would be to condone wrong and to 
say that 'parties have the right to impose upon courts and use 
them for illegitimate purposes. 

The least that should be done under all the circumstances 
as recited is to leave the parties in the situation in which they 
had placed themselves before they pretended to invoke the 
jurisdiction of this court. That can be accomplished by strik- 
ing the confession of errors and '"dismissing the writ of error, 
and the same is accordingly done. 

Writ of Error Dismissed. 
Decision en banc. 

Mr. Justice White dissents. 

Mr. Justice White dissenting : 

I can not agree to a dismissal of this suit, at this time^ 
upon the record as it now is. To do so affirms the judgment 
in every particular and, as I believe, deprives, at least, two of 
the plaintiffs in error of a constitutional right. 

Pauline M. Fawcett prosecuted a stockholders' suit 
against The Garfield County Coal and Fuel Company and 
Perry C. Coryell and Minnie B. Coryell, a majority of the- 
members of its board of directors. Upon final hearing a de- 
cree was entered requiring Minnie B. Coryell to convey to the 
coal ccMnpany certain lands of the value of $50,000, which she- 
claimed at her own; that she likewise pay to the company 
$20,474 in money; that Perry C. Coryell pay to the said com- 
pany the sum of $1,000. It was further adjudged in the de- 
cree that the company pay to D. M. Campbell and S. J, De- 



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360 CoRYEu. V. Fawcett. [54 Colo. 

Lan, who had represented the plaintiff in the prosecution of 
the suit, the sum of $2,500 as attorneys' fees therein, and a 
receiver was appointed to take charge of the property and 
carry on the business of the company. 

March 14, 19 12, the company, Minnie B. Coryell and 
Perry C. Coryell, as plaintiffs in error, presented a transcript 
of the record and docketed the cause in this court on error, 
being represented therein by the same attorney that repre- 
sented them in the trial court. On the same day Pauline M. 
Fawcett, the defendant in error, through an attorney of this 
court, H. J. O'Bryan, filed a confession of errors and consent 
that the judgment be reversed and annulled, and that a judg- 
ment be entered in this court dismissing the complaint. Plain- 
tiffs in error thereupon applied for a supersedeas, and, at the 
time of the hearing thereof, the confession of errors was 
brought to the attention of the court. Upon an inspection of 
the record, it appearing that the decree ordered the payment 
by the coal company to Messrs. Campbell and De Lan of a 
certain sum sts attorneys' fees, it was thought wise, before 
taking action in the premises, to advise them of the confes- 
sion of errors filed, which was done. Thereupon Messrs. 
Campbell and De Lan, by telegram, and subsequently by let- 
ters, entitled in the cause and addressed to the clerk of this 
court, protested against the acceptance of the confession of 
errors and the disposition of the cause thereon, claiming to be 
the attorneys authorized to act for the defendant in error. 
Within two or three days thereafter, defendant in error, in 
her own proper person, presented for filing in this court a 
paper, entitled in the cause, wherein she denied the authority 
of Campbell and De Lan, or either of them, to represent her 
in the suit in this court, declaring that they had no right or 
authority to appear for her in said cause in any way, and that 
H. J. CyBryan was her attorney therein. Thereupon this 
court, of its own motion, appointed a commissioner to take 
testimony with reference to the preparation and filing of the 
confession of errors, but in no wise designated the witnesses 

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Jan., '13.] CoRYEiJ. V. Fawcett. 361 

to be examined, or the scope of the inquiry. The witnesses 
examined were E. L. Clover, attorney for plaintiffs in error; 
Pauline M. Fawcett, defendant in error; Henry J. CVBryan, 
the attorney representing her in this court ; Perry C. Coryell, 
one of the plaintiffs in error; D. M. Campbell and S. J. De 
Lan, the attorneys who had represented defendant in error in 
the court below, and J. D. Fillmore, a clerk in the office of S. 
J. De Lan. 

Plaintiff in error, Minnie B. Coryell, neither testified, nor 
does the record disclose that she was present at, the hearing 
before the commissioner. Moreover, contrary to the state- 
ment in the opinion, it does not appear that the Coryells and 
Miss Fawcett had various meetings, conversations and nego- 
tiations, and had reached a conclusion whereby the rights of 
the Coryells, the company and Miss Fawcett were settled and 
the matters in litigation adjusted. The only meetings, con- 
versations and negotiations that were had, if any, were be- 
tween Perry C. Coryell and Miss Fawcett, and there is no evi- 
dence that Minnie B. Coryell was in any wise apprised thereof. 
Besides, the testimony is positive that nothing whatever was 
paid or promised Miss Fawcett as a consideration for the 
filing of the confession of errors. Her testimony is specific 
that she was prompted thereto solely by reason of the produc- 
tion and inspection of a forgotten letter written years before, 
wherein she had sold and placed in trust for delivery the 
shares of stock in the company which she had, prior to the 
determination of the suit, believed she owned and which trust 
had been carried out according to its terms. The testimony 
of Perry C. Coryell is to the same effect, and there is none 
of a direct nature to the contrary. If this court, upon evi- 
dence taken for the purpose of ascertaining the relation of at- 
torneys to a confession of errors filed, disr^ards the positive 
testimony of two of the interested parties to a suit, and, from 
inferences only, finds that the cause was settled as between 
the two, it surely can not properly extend that finding to an- 
other party to the suit who was neither a witness heard 



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362 Coryell V. Fawcbtt. [54 Colo 

therein, nor apprised that the inquiry would extend to the 
question of whether or not a settlement of the litigation had 
been made. Therefore, the court can not, it seems to me, con- 
sistent with the rules of procedure and the principles of jus- 
tice, foreclose the constitutional right of Minnie B. Coryell, at 
least, to have the enormous judgment entered against her re- 
viewed by writ of error in this court. It is said that the only 
reason for lodging* the case here was the belief of the parties 
that a reversal of the judgment and the dismissal of the com- 
plaint would defeat the rights of Campbell and De Lan to the 
attorneys* fees allowed them. If it be true that some of the 
parties so intended, the record certainly does not disclose, 
even by inference, that Mrs. Coryell shared in such intent or 
had knowledge thereof. 

It is asserted, presumably to show that no harm will fol- 
low an affirmance of the judgment by dismissal of the writ of 
error, that Mrs. Coryell is the owner of all the capital stock 
of the corporation, except two shares held by Perry C. Cory- 
ell and Perry C. Coryell, Jr., and that the Coryells constitute 
the board of directors, and the company has no debts. If the 
statement, as to the ownership of the stock, control of the cor- 
poration and its freedom from indebtedness, be true, it in no 
sense changes the situation nor removes the probability of 
grave injustice being done the Coryell judgment debtors. 
The record shows conclusively that forty-five thousand (45,- 
000) shares of the capital stock, being all thereof except five 
thousand (5,000) shares claimed at the time of the suit by 
Miss Fawcett, are in the possession of a bank as collateral se- 
curity upon an indebtedness to the bank of some person or 
corporation hot disclosed. Suppose the payment of such in- 
debtedness is defaulted? Thereupon the bank resorts to the 
collateral security and sells the shares of stock. It would 
necessarily follow that the new holder of the stock could force 
payment into the treasury of the corporation of the judg- 
ments against the Coryells, affirmed by the dismissal of this 
writ of error. 

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Jan., '13.] CoRYEU. V. Fawcett. 363 

Moreover, I am not convinced that the record is conclu- 
sive that the corporation is not indebted at the present time. 
It shows that several years ago all indebtedness was paid, but 
not the negative of subsequent indebtedness. Whatever the 
condition of the corporation was then, does this court know 
its condition now? Besides, the record shows that the con- 
cern is now in the hands of a receiver authorized to carry on 
its business, to incur indebtedness, to collect money and prop- 
erty due the company, and to make distribution thereof. But, 
let us suppose, at this time, there are no debts of the corpora- 
tion, that the Coryells own all the stock, that the receiver is 
discharged and the Coryells, as a board of directors, cause the 
corporation to satisfy of record the judgments involved in this 
suit. Thereupon the stock passes into the hands of others, or 
the corporation becomes financially involved. Is it at all cer- 
tain that the new holders of the stock, or the creditors of the 
corporation would be precluded from forcing the payment of 
the judgments in question, or a surrender to the corporation 
of the property claimed herein by Mrs. Coryell ? If the prop- 
erty which she holds and claims as her own actually belongs 
to the corporation, as adjudged by the decree herein affirmed, 
would it not seem that whosoever acquired ownership of any 
portion of the capital stock of the company could force a re- 
conveyance of such property to the corporation from one who 
had been released from such obligation without consideration, 
by an act of the corporation which was, at the time of the re- 
lease under the full control of the person released ? 

But were we to assume that all the parties to the litiga- 
tion participated in the acts and things which, in the opinion 
of the court, constitute a settlement of the litigation, it would 
not, in my judgment, warrant a dismissal of the writ of error. 
Substantial judgments actually exist against two of the plain- 
tiffs in error. There is no claim that these judgments have in 
any wise been satisfied or discharged. The only claim is that 
Miss Fawcett was satisfied in some way. Neither should the 
writ be dismissed, though it be true that one of the purposes 

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364 CORYEI.L V. FaWCETT. [54 Colo. 

thereof, in conjunction with the confession of errors, was to 
deprive Campbell and De Lan of that which was their just 
due. Their fees were earned in the trial court, not in this. The 
proceedings here constitute a new suit and the employment of 
attorneys in the court below does not constitute them attor- 
neys in the proceedings here. It is quite true that attorneys 
should be paid for their services, and Campbell and De Lan 
are entitled to theirs, and may receive them in a proper pro- 
ceeding either in the court below, or, perhaps, by intervention 
in the proceeding here. If the allegations of the complaint 
and the admissions of the answer disclose a certain state of 
facts, and these attorneys have rendered services justly charge- 
able under such facts, to the corporation itself, it would neces- 
sarily follow that the corporation would be estopped, as be- 
tween itself and the attorneys, from denying the existence of 
such facts. A reversal of the judgment would send the mat- 
ter into the district court, possessed of full jurisdiction in the 
premises, where all parties could be heard and the matter prop- 
erly adjusted. 

But it is said that the writ of error is not prosecuted in 
good faith; that its purpose, together with the confession of 
errors, was to secure a reversal of the judgment and a dis- 
missal of the complaint, and that it was unnecessary to bring 
the case here, as that could have been accomplished in the dis- 
trict court, or at least a settlement therein made. If it is meant 
by this, that the district court could have rendered the relief 
a judgment of reversal would afford, a sufficient answer 
thereto is, that the term of the district court, at which the de- 
cree was entered, had expired prior to the time that Miss 
Fawcett concluded that she was in the wrong. The district 
court was, therefore, powerless to set aside, change or modify 
its decree in any particular. Again, how could a settlement 
have been made in the district court? The Coryells consti- 
tuted the board of directors of the corporation. The judg- 
ments are against them and in favor of the. corporation. Un- 
der these circumstances, it is probable that neither the Cory- 
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Jan., '13.] National Surety Co. v. The People. 365 

ells nor the corporation itself could safely discharge or satisfy 
the judgments without payment thereof. Nor is it certain 
that Miss Fawcett possessed that power. She was, in legal 
effect, a trustee for the corporation, suing for herself and 
those similarly situated. However, were we to assume that 
the entire matter could have been adjusted in the district 
court, because it was not, is this court to dismiss the writ of 
error, thereby affirm the judgment, and thus impose upon the 
Coryells a payment aggregating over $71,000 in money and 
property which they claim they do not owe ? Would it not be 
wiser and more consonant with sound judicial procedure to 
reverse the case and let the entire matter be inquired into 
where all parties may be heard, a full inquiry had, every one's 
rights protected and substantial justice done? 



[No. 7810.] 

National Surety Co. v. The People. 

1. Pleadings — Construed — ^A complaint upon a bond given in 
certain appeals from a magistrate's court to the county court averred 
that after such removal of the causes to the county court each of 
"said actions'' was dismissed. In view of other allegations manifestly 
importing that the causes were still depending, "actions" was con- 
strued to mean "appeals." 

2. The bond provided that the principal should pay any 

Judgments that might be rendered upon dismissal or trial of the ap- 
peals, "or" surrender herself in satisfaction thereof. The complaint 
averring simply non-payment of the judgments, without specifically 
negativing the condition following the disjunctive "or/' was held suf- 
ficient. The surrender of the principal would have satisfied the judg- 
ments, and they would not have remained "due and unpaid," as the 
complaint alleged. 

3. Waiver — ^Uncertainty or ambiguity in a pleading if not 

assailed by demurrer. or motion is waived. 

4. EumaOfCE— Admission by Conduct — ^Delivery of an appeal 
bond by the surety therein, with, a signature aflixed purporting to be 
that of the principal, and the filing thereof by the principal, is suffi- 
cient evidence of the verity of such signature. 



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366 National Surety Co. v. The Peopix. [54 Colo. 

5. PUNGiPAL AND Agknt — Agcfifs Authority — Pr€9Ufnptions — 
There is a presumption that a known agent acts within his authority. 
Defendant, a surety company, hy its local agent delivered to a mag- 
istrate an. appeal bond. The magistrate rejected it as not in form, 
requiring certain changes. The agent returned the bond, with 
changes which were material and changed the character of the obli- 
gation, writing to the magistrate that he "had corrected the bond." 
and that it would be delivered by the appellant's attorney. It was to 
deliTered and accepted by the magistrate. The local agent was em- 
ployed for the purpose of obtaining such business. It was his duty 
to furnish similar bonds wheneTer satisfactory opportunity presented 
itself. He had the apparent as well as the real authority to deliver 
the bond of the company. It was held that the magistrate had the 
right to presume that the agent was acting within his authority, and 
that the company should not be heard to deny the bond, in view of 
the fact all that the agent did was, to all appearance, what he was 
authorized to do. • 

6. Voluntary Bond — yoZidity— A voluntary bond, given upon 
consideration, not prohibited by law, binds the surety, though not in 
statutory form. 1 

Error to Gunnison District Court. — Hon. Sprigg 
Shackleford, Judge. 

Mr. George Q. Richmond and Mr. J. M. McDougaix, 
for plaintiff in error. 

Mr. Dexter T. Sapp and Mr. J^mes B. Nash, for de- 
fendant in error. 

Chief Justice Musser delivered the opinion of the 
court: 

The action below was on an appeal bond given by one 
Mrs. Curley, with the plaintiff in error as surety. Mrs. Cur- 
ley had been convicted in a police court in eleven different 
cases for violations of an ordinance of the town of Marble. A 
fine was assessed in each case. The fines aggregated 
$3,200.00, for which amount the bond was given. While 
there was but one bond, the recitals therein showed the charge 
and conviction, and the amount of the fine in each of the 
eleven cases, and that an appeal was taken in each and the 

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Jan., '13.] National Surety Co. v. The People. 367 

bond, by apt words, was made to apply in each of the ap- 
peals. That is, while there was but one instrument, yet it 
was intended to be in effect the same as eleven bonds, for the 
amount of the fine in each case, to be used in each case for the 
purpose of appealing it. . Upon the filing of the bond, pro- 
ceedings were stayed in the police court, and the cases were 
transmitted to the county court as is done in such appeals. 
Thereafter, as we think sufficiently appears from the record, 
the appeals were dismissed in the county court and a pro^ 
cedendo issued to the police court. Mrs. Curley failed to pay 
the fines and an action was brought to recover on the bond, 
which, after a trial to the court, resulted in a judgment 
against the surety. 

It was urged by demurrer and otherwise in the court be- 
low, and is urged here, that the complaint did not state factd 
sufficient to constitute a cause of action. This objection seems 
to be based in this court on two grounds : 

I. The complaint allied that after the cases were taken 
to the county court such action was had in that court that 
each of the "said actions" was dismissed. The contention is 
that it appears in the complaint that the actions, or suits, or 
causes were dismissed, and that therefore no cause of action 
was stated. This would be true if the word "actions" was 
used in the complaint in the sense of suits, or causes, or in the 
sense it is used in our code when referring to a civil action, 
for if these were dismissed the judgments would have been 
wiped out. It is clear that the word "action" was not used in 
that sense in the complaint, for immediately thereafter it 
speaks of each of "said causes" as having been remitted to the 
police court, and allies that Curley failed and refused to pay 
the judgments and that each of the judgments was still due 
and unpaid at the time of the filing of the complaint, all of 
which was admitted by the answer. If the causes, the suits, 
the civil actions, (for they were civil actions, — Greeley v, 
Hamman, 12 Colo. 94; Weiss v. The People, 39 Colo. 374), 
were dismissed, and it was intended to so allege in the com- 



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368 Nation Ai. Surety Co. v. The Peopi^ [54 Colo. 

plaint, then the allegations concerning the remission of the 
causes, and that the judgments were still due and unpaid, 
would be altogether wrong and at variance with the preced- 
ing allegations. It is fairly clear that the pleader, when 
speaking of the suits or civil actions, used the word "causes," 
and by the use of the words "said actions" was referring to 
the actions of Mrs. Curley, which had been mentioned, and 
those actions were taking the appeals in each of said cases. 
So that when the complaint said that "said actions" were dis- 
missed it meant that " said appeals" were dismissed. At the 
trial, the complaint seems to have been so treated, for while 
the attorney who tried the case was quite specific in mention- 
ing defects in the complaint, the allied defect as now speci- 
fied was not mentioned. At most the complaint might be said 
to be ambiguous in that particular. If it was, the defect has 
been waived, for it was not raised by demurrer on the ground 
of uncertainty or ambiguity, nor by motion to make more cer- 
tain. 

2. The bond was conditioned that if Mrs. Curley should 
prosecute the appeals with effect and pay off any judgment or 
judgments that might be rendered by the court, upon dis- 
missal or trial of the appeals, or would surrender herself in 
satisfaction of any such judgment or judgments, and if she 
would appear before the county court on the first day of the 
next term, and be and remain at and abide the order of the 
county court, and not depart the court without leave, etc., 
then the bond to be void, otherwise in full force and eflfect 
The contention in this court seems to be that the complaint 
should have negatived all the conditions, whereas all it said 
was that Mrs. Curley failed and refused to pay the judgments, 
or any part thereof, and that the said judgments and each of 
them were still due and unpaid. No such contention was 
made in the lower court. It was there contended that the 
complaint only n^atived the payment of the judgments; 
whereas, as was said, it should also negative the conditicMi 
that Mrs. Curley would surrender herself in satisfaction of 

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Jan., '13.] National Surety Co. v. The Peopi^. 369 

the judgments. Now, it is plain that the conditions in the 
bond that are joined by the word "and" must all be performed 
and the violation of any one of them would be a breach. The 
conditions relative to the prosecution of the appeals with ef- 
fect, and the payment of the judgments and the appearance be- 
fore the county court, were ail of this kind. Each one of them 
had to be performed. The only condition preceded by the 
word "or" is the condition relative to the surrender of Mrs. 
Curley in satisfaction of the judgment. There is no doubt 
that in the lower court the company took the position that the 
conditions joined by the word "and" were all to be performed 
and that the only other condition besides the one of payment 
that had to be n^atived was the condition concerning the sur- 
render of Mrs. Curley. If it was necessary to negative the lat- 
ter condition, that has been done in a manner sufficient to with- 
stand a general demurrer. The allegation that the judgments 
were due and unpaid negatived the idea that Mrs. Curley had 
surrendered herself in satisfaction thereof, for if the 
judgments were satisfied by Mrs. Curley 's surrender they 
were not due and unpaid. The answer admitted that the 
judgments were due and unpaid, thus further negativing the 
idea that they had been satisfied in any manner. It is also 
contended that no proof was oflfered that Mrs. Curley signed 
the bond. The proof showed that Mrs. Curley's name was 
signed to the bond and the bond was delivered by the com- 
pany's agent with the signature on it. The bond was filed by 
Mrs. Curley with the magistrate for the purpose of securing 
the appeal and a consequent stay of the proceedings, and such 
appeal and stay were secured. Such evidence is sufficient 
proof that Mrs. Curley signed the bond. The real defense be- 
low and the contention here is that the company never ex- 
ecuted the bond sued on. The company had a local agent at 
Glenwood Springs. Upon application of Mrs. Curley, or her 
attorney, to this local agent, a bond for $3,200.00 was ex- 
ecuted in the name of the company by one Toncray, its attor- 
ney in fact. This bond was sent to the local agent, and 

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370 Nation Ai, Surety Co. v. The People. [54 Colo. 

through him was lodged with the magistrate. The latter did 
not approve the bond because it was not in form to answer 
the requirements of the situation. It was , returned to the 
local agent, and the magistrate indicated what the situation 
was and the nature of the bond required. The agent changed 
the bond to meet the circumstances. It is not necessary to 
particularly state what changes were made by the local agent. 
It is enough to say that they were such as to materially 
change the nature and character of the bond from what it had 
been. The bond as changed by the local agent was given by 
him to Mrs. Curley's attorney to be delivered to the magis- 
trate. The local agent wrote a letter to the magistrate in- 
forming him that he had corrected the bond and that it would 
be delivered to the magistrate by Mrs. Curley's attorney. The 
magistrate received the bond. He did not know in what man- 
ner the correction had been made. It cannot be said from this 
record that the magistrate knew that the local agent had cor- 
rected the bond by changing it himself, or by sending it to an- 
other agent to be changed. He approved the bond, knowing 
that it came to him from the local agent apparently duly ex- 
ecuted by the company, and proceeded with the appeals as the 
law required. That the local agent had the authority to de- 
liver bonds executed by the company is undisputed. The 
company was in the bonding business and all of its business 
was conducted by agents. The local agent was there for the 
purpose of obtaining such business, and when a satisfactory 
opportunity presented itself to furnish a bond, it was his busi- 
ness to see that it was furnished. The presumption is that 
one known to be an agent is acting within the scope of his 
authority. — Austrian & Co. v. Springer, 94 Mich. 343. The 
local agent was known to the magistrate to be such agent. The 
local agent had the apparent as well as the real authority to 
deliver such a bond executed by the company. The magistrate 
had the right to presume that the agent was acting within 
the scope of his authority and did deliver a bond executed by 
the company, and the company cannot be permitted to say 

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Jan., '13.] LiuTz v. Denver Tramway Co. 371 

that the agent did not do that which it had authorized him to 
do, when that which he did was to all appearances that which 
he was authorized to do. 

It is also contended by the company that the bond is not 
in statutory form and that such a bond was never before filed 
in a court. This may all be true, but it is not necessary to 
dwell long upon this contention. As a matter of fact, through 
the instrimientality of this bond, as* was intended, proceed- 
ings were stayed in the magistrate's court in all of the cases, 
and they were transmitted to the county court. It was en- 
tered into voluntarily. It was an obligation founded on a 
valuable consideration and which consideration was delivered. 
By its terms, for this consideration, the board recited that if the 
appeals were dismissed and Mrs. Curley did not pay the judg- 
ments or surrender herself in satisfaction thereof, it would re- 
main in full force and effect. It was not against public policy. 
The company had the right to enter into such an obligation 
whether in statutory form or some other form, and having 
done so, and having received the consideration therefor, the 
bond is enforcible according to its terms and provisions. — 
Abbott V. Williams, 15 Colo. 514; Dry Goods Co, v. Living- 
ston, 16 Colo. App. 257. 

• 

Perceiving no error in the record, the judgment is af- 
firmed. Judgment affirmed, 

Mr. Justice Gabbert and Mr. Justice Hill concur. 



[No. 6909.] 

LiuTz v. Denver City Tramway Co. 

1. Contributory Negligence — Examples — Deceased stepped so 
immediately in front of a street car that it was impossible to prevent 
injury to her. Those in charge of the car did everything that could 
reasonably be expected of them to avoid the collision. Her death gave 
no action. 



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372 LiuTz V. Denver Tramway Co. [54 Colo. 

2. Last Clear Chance — In order to the application of the 

doctrine of the "Last Clear Chance" the circumstances must present 
a clear chance to avert injury by the exercise of reasonable care. All 
the circumstances are to be considered. One who, without fault on 
his part, is presented with the sudden appearance of instant and aw- 
ful danger to a human being Is not culpable for merely failing to 
manifest the same presence of mind, or exercise the same care and 
effort, as might be expected in an ordinary situation. 

3. Instructions — Repetition — ^Unnecessary repetition in the 
charge to the Jury, though reprehensible, is not necessarily error; 
e. g. the frequent repetition of the phrase "verdict for the defendant" 
is not prejudicial, where the facts warranting such a verdict are 
clearly defined. 

4. Fair Trial — Evil Practice to Influence Jurors — Duty of Court 
and Attorneys — If it is made to appear that persons employed by a 
suitor hang about the purlieus of the court, and the approaches there- 
to, mingle with those summoned as Jurors, converse with them touch- 
ing causes in which the suitor is concerned, and by fiattery, ridicule* 
&nd like insidious means, endeavor to improperly influence them, the 
court has power to punish and suppress the practice, and should not 
hesitate to employ drastic measures to that end. 

And it is the duty of attorneys who have knowledge and evidence 
of such scandalous practices, to bring the matter to the attention of 
the court, and co-operate in suppressing the evil. 

A verdict shown to have been influenced by such practices should 
be unhesitatingly vacated. 

5. • New Trial — Affidavits of Jurors, as to the ground upon which 
the verdict was reached, will not, as a general rule, be received to 
impeach it. 

6. Improper Remarks to Jurors, which manifestly had no 

effect upon their deliberations is not ground for a new trial. 

7. Treating Jurors — That the attorney of the successful party 

treated four of the Jurors to cigars, after the verdict, merely in a way 
of civility, and without any design or forethought, held, no ground to 
vacate the verdict, though the court suggested that, upon ethicaf 
grounds the act of the attorney was indiscreet. 

Error to Detiver District Court. — Hon. Hubert L. 
Shattuck, Judgpe. 

Messrs. Stark & Martin, Mr. George S. Redd and 
Mr. George Stidger, for plaintiff in error. 



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Jan., '13.] LiuTz v. Denver Tramway Co. 373 

Mr. Gerald Hughes and Mr. Howard S. Robertson, 
for defendant in error. 

Mr. Justice Musser delivered the opinion of the court: 

This cause was in this court before and the former opin- 
ion is reported in 43 Colo. 58. The facts relative to the acci- 
dent, in which the wife of the plaintiff in error received in- 
juries which caused her death, are substantially the same in 
this record as narrated in the former opinion. 

Mrs. Liutz, a young and vigorous woman, started diag- 
onally across Larimer street, in Denver, near its intersection 
with Twenty-fifth street, obviously intending to board an ap- 
proaching car at the usual place on the opposite side of 
Twenty-fifth street. She was carrying a small child in her 
arras, and as she proceeded she signalled the car. A gong 
was sounded. She stepped upon the track immediately in 
front of the car, was struck by the fender or rail guard, which 
projected forward from the front of the car over the rails, 
fell upon it, struggled an instant and then fell from the fender 
on the right side in the space between the fender and the front 
wheel. She stepped upon the track at about the middle of 
Twenty-fifth street. The car was running slowly, evidently 
slowing up to make the stop on the opposite side, for there 
was evidence that the brake had been applied. There was 
nothing in the situation to indicate to the motorman that she 
was about to attempt to cross the track before the car had 
passed her. Her signals indicated that she knew the car was 
approaching, and the gong reminded her of that fact. The 
car was moving at a lawful rate of speed. The brakes were 
in good order. One witness testified that the car was five or 
six feet from her when she stepped upon the track, and an- 
other that it was not more than seven or eight feet away. 
The motorman testified that he w^as not more than six feet 
from her. These witnesses evidently estimated the distance 
with reference to the body of the car. Another testified that 
the projecting fender was not more than fifteen inches from 

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374 LiuTz V. Denver Tramway Co. [54 Colo. 

her. Another testified that she was struck when she was 
about to step on the track and when she stepped on the track. 
So that she must have been struck by the fender almost the 
instant she stepped on the track. The motorman immediately 
further applied the brake and the car was stopped within 
eight or ten feet after she was struck. When the car was 
stopped Mrs. Liutz was lying on her stomach and the front 
wheel was resting between her limbs, near the trunk, or on 
the right limb and pelvis at the junction with the thigh on 
the side toward the rear of the car. Her trunk was outside 
of the rails and the limbs were resting upon them. The 
motorman and conductor immediately jumped off when the 
car stopped, and, after looking, decided that it was necessary 
to get the car off the body before it could be taken out. The 
car was backed very slowly twelve or eighteen inches and 
Mrs. Liutz was then easily taken out and removed to a hos- 
pital where she died the next day. Her right limb was frac- 
tured below the knee and there was another injury at the 
junction of the right thigh and pelvis, including both of them 
somewhat. 

There were two causes of action in the complaint. The 
first was based upon negligence in operating the car. in not 
stopping it in time to prevent the injury, and in not dropping 
the fender so as to prevent the body of Mrs. Liutz from get- 
ting under the car. The second cause of action alleged the 
same things except with reference to the fender, and further 
alleged that the injury was inflicted by negligently backing 
the car after it had stopped. The lower court directed a ver- 
dict for the defendant company on the first cause of action, 
and submitted to the jury the second cause of action with ref- 
erence to the backing of the car, and the jury returned a ver- 
dict for the defendant company. It is contended that the court 
erred in directing a verdict for defendant on the first cause 
of action. In the former opinion it was held that up to the 
time the car stopped the company was not guilty of any n^li- 
gence and that the injury to Mrs. Liutz by the forward mo- 



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Jan., '13.] LiuTz v. Denver Tramway Co. 375 

tion was due entirely to her own negligence in stepping upon 
the track immediately in front of the car. 

Upon reading the record now before us, we are not in- 
clined to change the view of the matter heretofore announced, 
and the reasons are so fully discussed in the former opinion 
that it is unnecessary to discuss them -here. Upon reading 
the whole record, it appears clear that only one conclusion 
can be drawn from the evidence, and that is, that any injury 
which was inflicted upon Mrs. Liutz by the forward motion 
of the car was due solely to her own act in stepping upon the 
track so immediately in front of the car that it was impossible 
to prevent injur}^ to her, and that the motorman did all that 
in reason could have been expected of him. It is contended 
that even though Mrs. Liutz was negligent in stepping upon . 
the track, the evidence showed that the front end of the fender 
was about a foot above the rails and if the motorman would 
have dropped it, as he might have done, she would not have 
gotten under the car, or at least there was a chance for the 
jury to say she would not. Many authorities are cited to the 
effect that notwithstanding the negligence of a plaintiff, if 
the defendant observed or should have observed such negli- 
gence in time to avert injurious consequences by the exercise 
of reasonable care, it is the duty of the defendant to exercise 
such care. That is commonly called the doctrine of last clear 
chance. This can be answered in two ways. It clearly ap- 
pears from the evidence of all the witnesses who testified with 
any knowledge of how Mrs. Liutz fell from the fender that 
she did not fall from it in front so that it would pass over 
her, but that she fell off at the side in the space between the 
fender and the front wheel. Under these circumstances it is 
unlikely that the dropping of the front end of the fender 
would have availed anything. 

If we are wrong in this it nevertheless is plain that in 
order to apply the doctrine mentioned to a state of facts the 
circumstances must be such as to present a last clear chance 
to avert injury by the exercise of reasonable care. In this 

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3/6 LiuTz V. Denver Tramway Co. [54 Colo. 

case the situation itself, as detailed by the witnesses, clearly 
indicates that there was not a fair opportunity, or any oppor- 
tunity within reason, for the motorman to have overcome the 
consequences of Mrs. Liutz's act. These circumstances 
clearly show that her stepping on the track and falling from 
the fender were practically simultaneous, and that her negli- 
gence occurred for all practical purposes simultaneously with 
her fall from the fender and under the car. The circum- 
stances, the suddenness of the whole transaction, the practi- 
cally simultaneous occurrence of her negligence and her fall- 
ing under the car excluded the idea of any chance for the 
motorman to have saved her. The facts and circumstances 
were clear and undisputed, fixed and unalterable, and no ex- 
pert testimony could throw any light on them or change their 
inevitable result. To say that there was a chance would be 
to require of the human mind and muscle a rapidity and un- 
erring precision of thought and action of which they are in- 
capable, especially when that mind must have been shocked 
by the sudden appearance of instant and awful danger to a 
human being. Under such circumstances, what might be 
done in an ordinary situation, when there is no danger appar- 
ent or imminent, is inapplicable. The case of Weitaman %\ 
Nassau E. R. Co., 53 N. Y. Sup. 905, which the plaintiff in 
error says is exactly in point here, is entirely different in its 
facts. There, the motorman testified that he saw the child 
twenty feet away on the track before it was struck by the 
fender, and the child was carried a distance of from thirty- 
two to one hundred and fifty feet on the fender. After the 
motorman saw the child the car ran at least fifty-two feet, 
while the motorman testified that the car could have been 
stopped in forty-five feet. Such a state of facts is altogether 
different from the situation presented here, and this remark 
is applicable to the many other authorities cited. In Griffith 
V. Tramway Co,, 14 Colo. App. 504, the circumstances with 
reference to the stepping upon the track and the suddenness 
of the collision were substantially the same as here, and it was 

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Jan., '13.] LiuTz v, Denver Tramway Co. 377 

tliere held that '*the facts which would warrant an application 
of the doctrine, invoked by counsel, of a liability for an in- 
jury notwithstanding the negligence of a person injured, did 
not exist." 

As has been said, the contention that the fatal injuries 
were caused by negligently backing the car was submitted to 
the jury. Complaint is made of several of the instructions 
given at the request of the defendant. In each of them the 
jury were told that if they found a certain state of facts the 
verdict should be for defendant. There was some repetition 
in the instructions, but it cannot be said that any one was the * 
counterpart of the other. It is claimed that what repetition 
there was tended to confuse the jury, and that the frequent 
use of the phrase "verdict for defendant" gave undue promi- 
nence to the idea that the jury should so find. Each instruc- 
tion was clear enough in itself and no claim is made that any 
of them incorrectly stated the law or recited facts not de- 
ducible from the evidence. Many authorities are cited show- 
ing that repetition in the instructions is to be avoided. All 
of them, however, save one, are to the eflfect that it is not 
error to refuse a correct instruction when the charge already 
contains the same thing expressly or substantially. This is 
undoubtedly good law, but that is far from saying that repe- 
tition is reversible error. In the one case of State v. Lcgg, 59 
W. Va., 315, the court condemned the practice of repetition 
in instructions, but refused to say whether it was reversible 
error or not, and did not intimate what it would do in that 
behalf were it necessary. Of course unnecessary repetition in 
the charge is to be condemned, but that is not saying that it 
must be regarded as reversible error. It might become so if 
it tended to confuse the jur\'. In the present case, however, 
the instructions, even with the repetition they may have con- 
tained, cleared confusion rather than produced it. The con- 
flicting claims of plaintiff were likely to produce confusion. 
It was first contended that the fatal injury was inflicted by 
the car before it stopped in its forward motion, and next that 

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378 LiuTz V. Denver Tramway Co. [54 Colo. 

it was inflicted, not by the forward motion, but by negligently 
backing it after it had stopped. The testimony introduced by 
the plaintiff to support each of these claims was blended to- 
gether. Now the fact was that the plaintiff could not re- 
cover on his first contention because in that case the injury 
would have been caused by the negligence of Mrs. Liutz, and 
if that contention were true the second could not be, and if 
the second contention were true the first could not be. It was 
very likely that such a state of affairs would produce con- 
fusion in the minds of the jury and it was very proper for 
the court to give instructions that would place the matter 
clearly before them in its various phases. This is what the 
instructions did. The plaintiff was not entitled to have the 
confusion which he created continue with the jury, while the 
defendant was entitled to have the matter fairly presented to 
them. We cannot say that the repetition of the phrase "ver- 
dict for the defendant" would prejudice them when the facts 
were clearly presented upon which such a verdict should be 
based. If they did not find the facts as predicated in any of 
the instructions they certainly knew that their verdict should 
not be for the defendant, and if the facts were as predicated 
they could not render any other verdict. 

In the motion for a new trial it was alleged : 

1. That the Tramway Company made it a practice to 
keep two men about the court house to mingle with prospec- 
tive jurors, talk with them particularly with reference to 
Tramway cases, and by flattery, ridicule and other insidious 
means endeavor to improperly influence them so that verdicts 
might be returned for the company. 

2. That one of the jurors in this case had been in- 
formed that if a verdict was not reached before bed-time the 
jury would be compelled to sleep over night in beds infected 
with vermin, and that rather than sleep in such a bed the 
juror, against his will, agreed to the verdict for the defendant. 



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Jan., '13.] LiuTz v. Denver Tramway Co. 379 

3. That the attorney for defendant was guilty of mis- 
conduct in treating the jurors to cigars after the receipt of 
the verdict. 

When these charges were brought to the attention of 
the court, an investigation was ordered and plaintiff was di- 
rected to produce his evidence. A hearing was had, much 
testimony was taken, and the court found that the charges 
were not sustained and overruled the motion for a new trial. 
Unless the finding of the court was manifestly against the 
weight of the testimony, or its discretion was abused, we can 
not disturb this finding. It is enough to say that in the cold 
record before us there does not appear sufficient evidence to 
sustain the charges. The district judge saw the witnesses on 
the stand, observed their demeanor, interrogated many of 
them himself, and was much more competent to judge of their 
testimony than an appellate court. If the first charge were 
true, that the Tramway Company made it a practice to influ- 
ence jurors as alleged, such a practice is to be condemned in 
the severest terms. The district court, in such a case, has it 
within its power to severely punish any who may resort to 
such an evil practice, and should not hesitate to employ dras- 
tic measures to stamp it out. It is the duty of attorneys of 
the court, who are aware of such conditions and have evidence 
thereof, to co-operate with the court in bringing offenders to 
punishment and in putting a stop to such a condition of cor- 
ruption. Verdicts influenced thereby should unhesitatingly 
be set aside. However, before anything can be done sufficient 
evidence must be produced. Men cannot be punished or ver- 
dicts set aside for such a reason upon mere suspicion and 
without evidence. If there is any evidence at all in this rec- 
ord of such a practice it is very meager indeed, and there is 
no evidence whatever that the jurors in the present case ever 
heard of it or were in any manner influenced in their present 
verdict thereby. On the contrary, it affirmatively appears, 
uncontradicted, that the jury was free from such an influ- 
ence. An affidavit of the juror, who claimed that his verdict 

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380 LiuTz V. Denver Tramway Co. [54 Colo. 

was induced by what he had heard of the condition of the 
beds, was filed to support that charge. Section 236, Rev. 
Code, provides when an affidavit may be used to impeach the 
verdict of a jury, and this court has held that no affidavit of 
a juror will be received to impeach the verdict for miscon- 
duct of the jury except as provided in that section, and that 
is when the verdict is brought about by a resort to the deter- 
mination of chance. Richr.rds v. Richards, 20 Colo., 303, 
The particular misconduct that is sought to be charged to the 
jury in this case was that there was some conversation to the 
effect that if a verdict was not reached they would have to 
sleep in beds infected with vermin. As a general rule, affi- 
davits of jurors stating the ground upon which they ren- 
dered their verdict will not be received to impeach it. — Wray 
V, Carpcfiter, 16 Colo. 271. In the hearing on the motion for 
a new trial each of the other eleven jurors were interrogated 
with reference to this matter. Many of them said that they 
heard some remarks with regard to vermin in the beds, but 
it did not seem to make any impression upon them, and some 
of them regarded the talk more in the nature of a joke. The 
verdict was rendered immediately after the evening meal, 
quite a while before bed-time and before the juror would 
know that he was to sleep over night in the beds provided, 
by the county. He did not know that the beds were in such a 
condition. He did not attempt in any way to have the 
authorities provide proper beds. There was nothing in the 
situation to alarm him, or to cause him to violate hfs sworn 
duty as a juror. There was no error committed in overruling 
the motion on that ground. 

The facts with reference, to the treating of jurors with 
cigars appears to be as follows: The jury agreed on their 
verdict in the evening, sealed it and dispersed to their homes. 
The next morning they returned the verdict into court. It 
was received and they were dismissed. After this, in going 
down the elevator to the lower floor of the court house, de- 
fendant's attorney and some of the jurors were together. 

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Jan., '13.] LiuTz v. Denver Tramway Co. 381 

Someone said something about cigars, and, on reaching the 
floor where they were to be obtained, the defendant's attor- 
ney treated each of four jurors to one cigar. There is no 
statute in this state forbidding such a thing. The occurrence 
seems only to have been an innocent one, and is the only one 
of its kind shown in this record. How it could have influ- 
enced the verdict which had been returned and received can 
not be conceived. The cases cited by plaintiff in error are not 
in point. The Vermont cases, Baker v. Jacobs, 23 Atl. 588, 
and Shattuck v. Wrought Iron R, Co,, 38 Atl. 72, were based 
upon a statute. In Marshall v. Watson, 40 S. W. 352, one of 
the parties during an adjournment and while the case was on 
trial entertained two of the jurors at a restaurant. Afterward 
the verdict was returned in favor of the host. In Johnson v. 
Hobart, 45 Fed. 542, and Ensign v. Harney, 18 N. W. 73, 
the matter occurred before the cases were submitted to the 
juries for verdict. In McLaughlin v. Hinds, 38 N. E. 136, 
the attorneys for each party and some of the jury entered a 
saloon and indulged in cigars and drink after the verdict. 
The court refused to set the verdict aside because each party 
was guilty, and said it would not hesitate to do so if the at- 
torney for the successful party had been alone with the jury. 
The remark did not apply to the actual facts in the case and 
besides the conduct of the attorneys and jurors was flagrant, 
and was enough to show, if participated in by the successful 
attorney and the jurors, that the latter were so prejudiced in 
his favor as to taint the verdict. The conduct complained of 
occurred after the verdict was reached and sealed and before 
its return into court. In B^id, R, of O. of K, P. v. Steele, 
■ 63 S. W. 1 126, some of the jurors, when examined for serv- 
ice, had answered that they had not served on a jury within 
two years, when the fact was that they had and were thereby 
rendered incompetent. This fact was linked with the fact 
that they drank with the brother of the plaintiff after the ver- 
dict to show that they were anxious to sit upon the case and 
that they were not the fair and impartial jurors that the par- 
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382 LiuTz V. Denver Tramway Co. [54 Colo. 

ties had a right to demand. Scott v. Tubbs, 43 Colo. 221, 
was a condemnation proce^ing. After the jury had viewed 
the premises and before they returned to the court room or 
made their award, four of the jurors accompanied the peti- 
tioner, at his invitation, to a saloon and drank with him. This 
court correctly held that a new trial should have been granted. 
Courts should guard the purity of the jury with jealous care 
and see to it, as far as within them lies, that jurors are not 
tampered with so that the verdicts that are returned may be 
free from taint and prejudice and be the honest convictions 
of the jury upon the law and the evidence. Too great a care 
in this behalf cannot be taken, yet at the same time courts 
should not misconceive their duties and go so far as to work 
injustice. In Vane et al. v. City of Bvanston, 150 111. 616, the 
rule was announced : 

"That customary offices of civility, and ordinary hospi- 
tality or courtesy, extended by the successful litigant, when 
not designed or calculated to influence the juror or jurors in 
their consideration of the case, and which are devoid of sus- 
picion, will not afford sufficient ground for setting the verdict 
aside and awarding a new trial." 

And in Gde agt. N. Y. C. & H. R, R. R. Co., 53 How- 
ard's Prac. 385, it is said: 

"When, however, the court is satisfied that there has 
been no attempt by the successful party to unduly influence a 
juror, either by conversation or by placing him under obliga- 
tions, and that his action has not in fact been improperly in- 
fluenced, then, even though the act may have been indiscreet, 
the court will not disturb the verdict." 

These utterances of the courts and others of like charac- 
ter are quoted and the principles therein announced followed 
in the case of Mo. Pac. Ry. Co. v. Boumum, 75 Pac. 482 
(Kans.). There is an entire absence of any indication that 
the attorney for the defendant treated the jurors to cigars, in 
any other spirit than one of civility, hospitality and courtesy 
that came to him on the spur of the moment after the verdict. 

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Jan., '13.] Springhetti v. Hahnewai^d. 383 

without any design or forethought, but upon a jocular sug- 
gestion, as such things often innocently occur. It does not 
appear that is was customary for him to do so, or that the 
jurors bore such relations to him that they expected it of him. 
The act is entirely devoid of suspicion. It could not have in- 
fluenced a verdict already rendered. It might be said, upon 
ethical grounds, that the act of the attorney was indiscreet, 
but that affords no reason for setting aside the verdict. The 
judgment is affirmed. 

Judgment affirmed. 

Mr. Justice White and Mr. Justice Garrigues concur. 

Decided January 6, A. D. 19 13 .Rehearing denied April 
7, A. D. 1913. 



[No. 6968.] 

Springhetti et au v. Hahnewald et al. 

1. Pleading — Waiver — ^A demurrer for a miBjolnder of plaintiffs 
Is overruled. Defendants answer and proceed to trial. The misjoinder 
is waived. 

Misjoinder of plaintiffs, not appearing by the complaint, may be 
taken advantage of by answer. If not so brought in question it is 
waived (Mills' Code, Sec. 55, Rev. Code, Sec. 61). 

2. BoDT Judgment — Rescission of Contract for Fraiid, One who 
by fraudulent misrepresentation has been induced to enter into a con- 
tract may either have his action for the deceit, or rescind the con- 
tract and recover what he has paid. Relief in either form of action 
is grounded upon the allegation of fraud, and, prevailing in an action 
to rescind, he may, under the statute (Rev. Stat., Sec. 3024), have 
execution against the body. The rescission of the contract is no waiver 
of the fraud. 

3. Evidence — Fraud — The defendants induced plaintifT to pur- 
chase an interest in a worthless mine by falsely representing, among 
ether things, that one of them had paid to the other a large sum of 
money for an interest in the property, exhibiting a check for the sum 
mentioned. In fact the check was drawn upon a bank where the 
drawer had no funds, and after the accomplishment of the fraud was 



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384 Springhetti VI Hahnewald. [54 Colo. 

surrendered. In an action to rescind the purchase it was held that 
evidence of this false representation was properly admitted; that the 
rule that false representations by vendor as to what he has paid for 
what he proposes to sell, had no application. 

4. Practice in Supbeme Coubt — Harmless Error — Plaintiffs, by 
false representations of defendants, had been induced to purchase 
from one of them an interest in a leasehold of a worthless mine, 
and from the other an interest in an option from the owner of the 
same premises. Under this option so assigned to them, plaintiffs, 
moved by the same false representations, had purchased an interest 
from the owner, paying therefor a large sum of money. In an action 
by plaintiffs to rescind the transaction the district court allowed them 
the money obtained by defendants, but refused to make any award in 
respect of what had been paid by plaintiffs to the owner. This was 
assigned for error, as permitting a rescission in part; it being con- 
tended that plaintifTs should have been required to restore to the de- 
fendant owning the option, what they had purchased thereunder. Held, 
that as this would have required defendants to pay plaintiffs a large 
sum of money for what was of no value, the error if any was to the 
advantage of defendant, and not prejudicial. 

Error to Lake District Court. — Hon. Charles Caven- 
DER, Judge. 

Mr. R. D. McLeod, Mr. James T. Hogan and Messrs. 
Barnett & Teli^ER^ for plaintiffs in error. 

Mr. John A. Ewing^ for defendants in error. 

Mr. Justice Gabbert delivered the opinion of the court : 

Defendants in error, plaintiffs below, brought an action 
against plaintiffs in error, as defendants to recover sums of 
money which, it was charged, had been obtained from them 
by fraud and willful deceit on the part of the defendants, and 
also to cancel all indebtedness or claims of indebtedness 
against the plaintiffs in favor of the defendants growing out 
of the same transaction. At the time this suit was instituted, 
there was another action pending by Springhetti against Al- 
bert Hahnewald, on a three thousand dollar note which had 
been given by Hahnewald to Springhetti in connection with 



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Jan., '13.] Springhetti v. Hahnewald. 385 

the above transaction, and it was agreed that that suit should 
abide the result of the trial of this action. The case was tried 
before the court, and the issues made by the pleadings found 
in favor of the plaintiffs, and a finding made that in commit- 
ting the wrongs complained of in the complaint, the defend- 
ants were guilty of malice, fraud and willful deceit, and pro- 
cured from the plaintiffs the sum of $5,333.33 by means 
thereof. Judgment was rendered accordingly, which provided 
that if the amount which the plaintiffs were adjudged to re- 
cover from the defendants was not paid within thirty days 
from the date the judgment was rendered, that then plain- 
tiffs might have an execution against the bodies of the defend- 
ants, under which they could be committed to jail for a term 
of one year, unless the judgment was sooner paid. The de- 
fendants bring the case here for review on error. 

The complaint alleged that plaintiff, Albert Hahnewald, 
and defendant, Louis Springhetti, were the owners of an un- 
divided one-half interest each in a lease upon the Chautauqua 
lode mining claim ; that at the same time the defendant, Julius 
Muller, was the owner of an option to purchase an undivided 
six-tenths interest in this claim from the owner, by virtue of 
which Muller was entitled to purchase such interest within a 
time specified for the sum of $2,400.00; that defendant 
Springhetti and plaintiff, Paul Hahnewald, were engaged in 
making preparations to work the property under their lease, 
and that during this time prospecting was done in a shaft 
thereon, and workings connected therewith, and that this 
prospecting was done by one Louis Beati, who took orders 
from the defendant Springhetti, neither of the plaintiffs hav- 
ing any control or direction over such work, in any way ; that 
defendants, for the purpose of inducing these plaintiffs to pur- 
chase from Springhetti his one-half interest in the lease, and 
the option held by Muller,* falsely represented to the plaintiffs 
that in the workings in which Beati was prospecting, great 
values in minerals were disclosed, and for the purpose of con- 
summating such fraud, caused material to be taken from these 



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386 Springhetti VI H'ahnewald. [54 Colo. 

workings with which they mixed gold and silver in such man- 
ner that assays of such material showed high values; that 
for the purpose of deceiving and defrauding these plaintiffs, 
they further falsely represented to them that in workings on 
the premises there was a large quantity of high grade ore 
which had been hidden and covered up by material which had 
fallen from the roof, and also falsely represented to the plain- 
tiffs that defendant MuUer and other persons associated with 
him had paid the sum of ten thousand dollars in cash for the 
half interest of Springhetti in the lease; that in truth and in 
fact, the material taken from the premises and assayed was of 
no value whatever, until the same had been so mixed with 
gold and silver that an assay thereof would disclose great 
values; that plaintiffs believed the representations made to 
them by the defendants in regard to the presence of valuable 
ore in the mine, and the sale of Springhetti's interest in the 
lease, and relying upon these representations, they purchased 
from Muller a two-thirds interest in the lease, and also a two- 
thirds interest in the option to purchase held by Muller, pay- 
ing therefor the sum of $6,999.99, and agreed to pay the fur- 
ther sum of $3,000, for which they executed their note. The 
complaint then alleges that prior to the commencement of the 
action, and as soon as they discovered the fraud which had 
been practiced upon them, the plaintiffs notified the defend- 
ants that upon the return of the sum of money which they 
had paid, they would convey to the defendants the interest in 
the lode mining claim which they had acquired in the lease 
and the purchase of the option, and by apt statements in the 
complaint, tendered and offered to assign these interests. The 
plaintiffs prayed judgment against the defendants for the 
amount they had paid, and for a judgment cancelling all in- 
debtedness, or claim of indebtedness, against them in favor 
of the defendants growing out of the transaction, and for a 
finding, decree and judgment of the court that the defendants 
were guilty of malice, fraud and willful deceit in the state- 
ments and representations made by them in procuring such 

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Jan., '13.] Springhetti v. Hahnewai^d. 387 

sums of money, and that upon such finding, judgment and or- 
der, the plaintiffs have an execution as provided in the statutes 
of the state of Colorado against the bodies of the defendants, 
under which they might be committed to jail under writ of 
execution against their bodies, as provided by law. 

To this complaint the defendants demurred upon the 
ground that there was a misjoinder of plaintiffs, and also upon 
the ground that the complaint did not state facts sufficient to 
constitute a cause of action. This demurrer was overruled. 
After this ruling the defendants answered. Counsel for de- 
fendants contend the demurrer should have been sustained. 
The objection to overruling the demurrer for misjoinder of 
parties pldintiff, is not available to the defendants upon this 
review. By answering and going to trial upon the merits, 
they waived the right to question the ruling upon the de- 
murrer for alleged misjoinder. — The Sams Automatic Car 
Coupler Co. v. League, 25 Colo. 129; The Diamond Rubber 
Co. V. Harrynum, 41 Colo. 415; City of Canon v. Mannings 
43 Colo. 144. 

From the argument of counsel for defendants, we under- 
stand the contention is made that the court erred in overrul- 
ing the general demurrer, for the reason it appears facts are 
not stated in the complaint sufficient to justify a body judg- 
ment against the defendants, in that the action is for a rescis- 
sion of the contract entered into by the plaintiffs, and for the 
recovery of the amount paid by them, and while the ground 
for rescission is deceit, they may not recover as for a tort that 
with which they parted, as, by electing to rescind the contract, 
they have waived the tort, and their action is in assumpsit for 
money had and received, in which character of action a body 
judgment can not be rendered. Where a party to a contract 
discovers that he has been defrauded, either one of two reme- 
dies is open to him — to rescind the contract and recover that 
which he has paid, or to sue for damages on account of the 
deceit. Whichever remedy he pursues, however, is based 
upon fraud. 

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388 Springhetti VI Hahnewald. [54 Colo. 

Section 3024, Rev. Stats. 1908, provides that in a civil 
action, when it shall appear from the pleadings and summons 
that it is founded upon tort, and judgment is rendered in favor 
of the plaintiff, and the verdict of the jury or the finding of 
the court shall state that in committing the tort complained 
of, the defendant was guilty of either malice, fraud or will- 
ful deceit, then, in such case, the plaintiff may have execution 
against the body of the defendant. In the case at bar the 
plaintiffs elected to rescind the transaction with the defendants 
and recover the money which they had been induced to pay by 
reason of such fraud and deceit, and for the cancellation of 
all indebtedness to the defendants growing out of the trans- 
action. The basis, therefore, of the right of plaintiffs to re- 
scind was the wrong which the defendants were charged with 
having committed, and the right to recover that with which 
they had parted was based upon the same ground ; so that it ap- 
pears clear the action of the plaintiffs was founded upon a 
tort. In other words, their right of action and the relief 
which they demanded grew out of an alleged tort, and this, 
we think, is what the statute means by an action founded upon 
tort, irrespective of what the action itself might be denomi- 
nated in legal parlance. This is manifest from the language 
of the statute, which speaks of an action "founded upon tort." 
"Founded upon" means the bottom, or foundation, on which 
something rests or relies; so that, in speaking of an action 
founded upon tort, one was meant the basis or foundation of 
which was a tort. 

Testimony was admitted, to the effect that Springhetti 
had represented to plaintiffs that Muller had paid him ten 
thousand dollars for his interest in the lease, and exhibited to 
them Muller's check in that sum. This, it is urged, w^as error, 
for the reason that a statement of a vendor as to the price 
paid for an article, though false and made with intent to de- 
ceive, will furnish no ground for action. In the circum- 
stances of this case, the rule contended for is not applicable. 
It appears the Muller check was drawn on a bank, where he 

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Jan., '13.] Springhetti v. Hahnewald. 389 

did not have a cent to meet it, and was afterwards returned 
to the drawer; that the transaction between Springhetti and 
Muller, according to testimony adduced, was a mere subter- 
fuge which they pretended was genuine, by the passing of a 
worthless check pursuant to an understanding between them 
that it would never be presented to the bank upon which it 
was drawn, the purpose of which was to cause the plaintiffs 
to believe that it was a bofia fide transaction, because the prop- 
erty contained large quantities of valuable mineral. In brief, 
from the testimony of plaintiffs, it was a farce sale, which was 
part of a concerted scheme of defendants to induce plaintiffs 
to believe that the property contained valuable ore bodies. The 
statement of the sale was relied on by plaintiffs, and as it was 
an artifice on the part of defendants, in connection with other 
frauds and false representations made and resorted to for the 
purpose of deceiving the plaintiffs, it was properly admitted 
in evidence. 

At the conclusion of the testimony, the defendants moved 
for a non-suit, based upon the ground that the evidence dis- 
closed there was no community of interest between the plain- 
tiffs in the subject of the suit; that is, that there was no joint 
interest, and hence, they could not maintain a joint action. 
What the evidence may disclose on this subject, we do not 
deem it necessary to consider, for the reason it presents the 
question that there was a misjoinder of plaintiffs. Section 55 
of Mills' Code provides, that if an objection to a misjoinder 
of parties plaintiff be not taken, either by demurrer or an- 
swer, the defendant shall be deemed to have waived the same. 
In the case at bar, the defendants demurred to the complaint 
upon the ground of misjoinder, but, as previously stated, 
having answered after this demurrer was overruled, they 
waived the right to question such ruling. Thereafter they 
could only raise it by answer, provided, of course, the alleged 
misjoinder did not appear on the face of the complaint. They 
interposed no such defense, and, therefore, under the pro- 
visions of the code, waived it. — Keys v. Morrison, 3 C. A. 



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390 Springhetti vi Hahnewau>. [54 Colo. 

441 ; Sams Automatic Car Coupler Co, v. League, supra. 

It is also contended on behalf of defendants, that the evi- 
dence is insufficient to sustain the judgment rendered because 
it does not establish any conspiracy between the defendants, 
or that they, or either of them, committed the frauds 
charged. It is unnecessary to undertake a review of the testi- ' 
mony further than to say, that, in our opinion, it is ample to 
establish the fraud and conspiracy charged in the complaint. 
There may be some conflict in the testimony bearing on these 
subjects; but that conflict was decided in favor of the plain- 
tiffs, and, therefore, such finding will not be disturbed on re- 
view, when the finding made by the trial court is fully sus- 
tained by the evidence. 

In the judgment rendered the court decreed that plaintiffs 
were not entitled to any relief on account of the purchase of 
the four-tenths interest in the property from the owner, who 
had given an option to purchase her interest to Mullen This, 
it is urged, was error, for the reason that it allowed the plain- 
tiffs to affirm in part and rescind in part ; that is to say, if plain- 
tiffs were entitled to rescind, the judgment should have re- 
quired them to rescind in toto by restoring to Muller his option 
to purchase so much of the fee as they purchased under the op- 
tion. It appears from the testimony that plaintiffs purchased 
their interest in the title to the property from the owner 
direct, and paid her the money therefor, so that none of this 
purchase money ever came into the hands of the defendants. 
Such being the case, the trial court evidently determined that 
they should not be held for the amount of such purchase. If 
this was error, it was in favor of the defendants, because if 
they were entitled to be placed in statu quo in respect to the 
option, then they should have been required to repay the plain- 
tiffs the amount which they had expended in securing title to 
the four-tenths interest. This would have increased the judg- 
ment something like sixteen hundred dollars. The code, sec- 
tion 78, Mills', provides that errors in proceedings which do 
not affect the substantial rights of the parties shall be disre- 

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Jan., '13.] Montezuma District v. Longenbaugh. 391 

garded. We have often decided that error without prejudice 
will not work a reversal on review. The trial court evidently 
found (and the evidence fully sustains such finding), that 
the property was practically worthless. Such being the fact, 
end even if it be conceded that defendants were entitled to be 
placed in statu quo, with respect to the four-tenths interest, 
they cannot complain when, for such alleged error, they have 
escaped being required to pay sixteen hundred dollars or more^ 
for that interest which it appears is of no substantial value. 

The judgment of the district court is affirmed. 

Judgment affirmed. 

Chief Justice Musser and Mr. Justice Hili< concur. 

Decided March 3, A. D. 191 3. Rehearing denied April 
7, A. D. 1913. 



[No. 7197.] 

Montezuma Valley Irrigation District v. Longenbaugh. 

1. Statutes — Construction — In th€ construction of a statute aU 
provisions pertaining to the same subject are to be taken together. 

In construing the proviso to sec. 1, of the act for the organization 
of irrigation districts (Laws 1901, c. 87) the first proviso to section 
2. that the county commissioners shall not modify the boundaries of 
a proposed district so as to exempt from the operation of the act any 
territory within the proposed boundaries "which is susceptible 0/ 
irrigation by the same system of works applicable to other lands in 
such proposed districts"; as well as the second proviso in the same 
section that "any person whose lands are susceptible of irrigation from 
the same source shall, upon application to the board, be entitled to 
have his lands included in said district/' are to be taken into consid- 
eration. 

2. Estoppel — By Conduct — ^Plaintiff sued to restrain the collec- 
tion of irrigation district taxes upon certain lands, and for a decree 
that his lands were no part of the irrigation district. His complaint 
alleged, and the court found, that prior to the organization of the dis- 



Digitized by 



*^oogle 



392 Montezuma District v. Longenbaugh. [54 Colo. 

trict, and ever since, he was the owner of water rights sufficient for 
the irrigation of his lands, and which he had alwaya since applied to 
this purpose; and that the district was not formed to acquire such 
water rights, and had not acquired them; upon account of which facts 
the plaintiff claimed that he was within the proviso to the first section 
of the act under which the district was organized (Laws 1901, c. 87). 

But plaintiff, with full knowledge of the situation, had signed the 
petition for the organization of the district, which, as therein defined. 
Included the land described in his complaint. During two years fol- 
lowing the organization of the district he had paid irrigation district 
taxes upon said land. Without objection from him, proceedings had 
been taken, and a decree entered under the act, declaring the validity 
of the district, and confirming an issue of district bonds. The cour^ 
were of the opinion that if plaintiff's lands had not boen included 
within the district as proposed, he might, under the last proviso of 
section 2, have procured them to be included; that his signature to 
the petition was equivalent in effect to an application under this 
proviso, was a representation that his lands were such as might under 
the statute be so included, and a prayer for such inclusion; that the 
action of the board of county commissioners establishing the district 
was in the nature of a Judgment; and that plaintiff by his conduct 
was estopped from afterwards denying, or bringing in question, the 
truth of his own representation upon which the board had tak«n ac- 
tion, especially In view of the fact that the district had contracted a 
large indebtedness to supply water to all the lands included therein. 

A statute (Act 1901, c. 87) required, as the initiatory step for 
the organization of an irrigation district, a petition to the board of 
county commissioners, signed by a majority of the resident free hold- 
ers who were qualified electors and owners of a majority of the whole 
number of acres belonging to resident electors, within the proposed 
district. Heldf that one who has subscribed such a petition will not 
be permitted to afterwards dispute the facts therein asserted, even 
though his name is necessary to make up the required majority. 



Error to Montezxima District Court, — Hon. Charles A. 
Pike, Judge. 

Mr, W. F. MowRY, for plaintiffs in error. 

Messrs. Goudy & Twitchell and Mr. J. H. Burk- 
HARDT. for defendant in error. 



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Jan., '13.] Montezuma District v. Longenbaugh. 393 

Mr. Justice Hili^ delivered the opinion of the court : 

This action involves the validity of certain irrigation 
district taxes upon certain lands included in an irrigation dis- 
trict, organized under our former irrigation district act en- 
titled "An act to provide for the organization and govern- 
ment of irrigation districts,'* etc., approved April 12th, 1901. 

Soon after the approval of this act, which contained an 
emergency clause, the defendant in error, in conjunction with 
many other landowners, signed and caused to be presented 
to the board of county commissioners of Montezuma county 
a petition praying for the organization of The Montezuma 
Valley Irrigation District. The boundaries of the proposed 
district as set forth in the petition included three hundred 
twenty acres of land owned by the defendant in error. The 
county com'missioners duly considered the petition, made cer- 
tain findings of fact, and, following the procedure prescribed 
by the act after the election therefor, declared the district as 
such duly organized under date of December 4th, 1901. Its 
boundaries as defined by the board included the above lands 
of the defendant in error. He paid irrigation district taxes 
upon them for the years 1904 and 1905. Prior to the insti- 
tution of this suit, the district had contracted a large bonded 
indebtedness for a water system for the purpose of supplying 
the lands in the district with water for irrigation purposes. 
The regularity of the proceedings relative to the organization 
of the district and the issuance of the bonds (the evidence of 
this indebtedness) was duly confirmed by decree of the dis- 
trict court May 12th, 1906, as provided for by the act. No 
exception was taken to, or appeal from, this decree ; no ques- 
tion is raised concerning the regularity of any of these pro- 
ceedings. 

Upon January 13th, 1909, w^hich was more than seven 
years after the organization of the district, and more than 
two years after the date of the decree of confirmation, the .de- 
fendant in error instituted this suit to restrain the district 

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394 Montezuma District v. Longenbaugh. [54 Colo. 

board, the county treasurer, and the county assessor from 
levying and collecting irrigation district taxes upon these 
lands. He also prays the court to decree that they are no part 
of the district. 

As grounds for this relief he alleges that prior to the 
organization of the district, and during all times since, he 
owned and possessed ditches previously constructed of suffi- 
cient capacity, and also owned sufficient water rights for the 
irrigation of this land, which he has ever since been using 
for the irrigation of all of it, with the exception of about ten 
acres. He also alleges, and it is conceded, that the district 
was not organized or formed to purchase, acquire, lease or 
rent the plaintiff's alleged ditches or water rights, and that it 
has never made purchase of any of them. 

Numerous defenses were presented. The relief prayed 
for was granted, save and except as to ten acres. The de- 
fendants bring the case here for review upon error. 

Section i of the Irrigation District Act of 1901, p. 198, 
reads: 

"Whenever a majority of the resident freeholders own- 
ing lands in any district susceptible to one mode of irrigation 
from a common source and by the same system of works, de- 
sire to provide for the irrigation of the same, they may pro- 
pose the organization of an irrigation district under the pro- 
visions of this act, and when so organized, each district shall 
have the powers conferred or that may hereafter be con- 
ferred by law upon such irrigation district. Provided, That 
where ditches, canals or reservoirs have been constructed be- 
fore the passage of this act of sufficient capacity to water the 
land thereunder for w^hich the water taken in such ditches, 
canals or reservoirs is appropriated, such ditches canals, 
reservoirs and franchises and the land subject to be watered 
thereby shall be exempt from operation of this law\ except 
such district shall be formed to make purchase of such 
ditches, canals, reservoirs and franchises, and that this law 



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Jan., '13.] Montezuma District v. Longenbaugh. 395 

shall not be construed to in any way affect the rights of 
ditches, canals and reservoirs already constructed/' 

It is claimed that the lands of the defendant in error 
come within the proviso in the above section and are there- 
fore exempt from the operation of the act, the district not be- 
ing formed to make purchase of the ditches, etc., in existence 
at the time of its organization, used for the irrigation of this 
land. There is evidence concerning previous ditches, their 
enlargement since the organization of the district, also evi- 
dence concerning what is termed private water rights used in 
the irrigation of a portion of this land. It is conflicting. If 
this was the only question raised, it might be proper to sus- 
tain the judgment, but a more serious difficulty confronts us. 

The defendants plead and introduced evidence to sustain 
an estoppel. It has universally been held in the construction 
of a statute that all matters therein pertaining to the same 
subject should be considered in connection with each other. 
This rule is especially applicable here for the reason that when 
the different sections and provisos in this act are read sepa- 
rately and thus considered literally, they cannot be harmon- 
ized, but are in conflict and inconsistent with each other. 
Section 2 provides that a petition shall be filed with the board 
of county commissioners which embraces the largest acreage 
of the proposed district, signed by a majority of the resident 
freeholders who are qualified electors of the proposed dis- 
trict, who shall also own a majority of the whole number of 
acres belonging to the resident electors of the proposed dis- 
trict ; that the petition shall set forth and particularly describe 
the boundaries of the district, and shall pray that the lands in- 
cluded therein be organized into an irrigation district under 
the provisions of the act. Also, that when the petition is pre- 
sented, the board of county commissioners shall hear it, and 
on the final hearing may make such changes in the proposed 
boundaries as they may find to be proper, and shall establish 
and define the boundaries, provided that said board shall not 
modify said boundaries so as to exempt from operation of the 



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396 Montezuma District v. Longenbaugh. [54 Colo. 

act any territory within tlie boundaries of the district pro- 
posed by said petitioners, which is susceptible of irrigation by 
the same system of works applicable to the other lands in such 
proposed district; nor shall any land, which will not in the 
judgment of said board be benefited by irrigation by said sys- 
tem, be included in such district. Another proviso in this sec- 
tion states, ''That any person whose lands are susceptible of 
irrigation from the same source shall, upon application of the 
ozvfier to said board, be entitled to have such latuis included 
in said district/' Sections 9 and 10 provide what the board 
can do in securing sundry systems of water works, etc., for 
the irrigation of the lands in the district, etc. Section 13, for 
the issuance of bonds, etc. Sections 29 to 38, inclusive, pro- 
vide for changing the boundaries of the district after its or- 
ganization, and allowing, under certain conditions, contiguous 
territory to be included therein. 

It is admitted that the defendant in error voluntarily 
signed the petition for the organization of the district; that 
the petition set forth the boundaries of the proposed district, 
which embraced therein the three hundred twenty acres of 
land in question; that when he signed it he was the owner 
of this land and that he knew the contents of the petition. He 
thereby prayed that the proposed district as then defined, 
which included this land of which he w^as then the owner, be 
orgcinized into an irrigation district under the provisions of 
this act. Thereafter, during the years 1904 and 1905 he paid 
irrigation district taxes thereon and thereby again recognized 
the proper inclusion of these lands in the district. 

It also appears that in 1906 proceedings for the approval 
of the validity of the district and the confirmation of certain 
bonds were had and became final to which he made no objec- 
tions, although the regular statutory notices were given of 
these matters, yet not until over two years thereafter, and until 
after a large indebtedness had been contracted by the district 
for the purpose of supplying the lands therein with water for 
irrigation purposes, did he take any steps to have his land de- 
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Jan., '13.] Montezuma District v. Longenbaugh. 397 

clared exempt from the operation of the law. It will be ob- 
ser\'ed that the proviso in section i of the act exempting cer- 
tain lands from its operation depends upon certain questions 
of fact, namely, that ditches, canals and reservoirs have been 
constructed before the passage of the act ; that they have suf- 
ficient capacity to water the land thereunder for which the 
water taken in such ditches, canals and reservoirs is appro- 
priated, provided further, except such district shall be formed 
to make purchase of such ditches, canals, reservoirs and fran- 
chises. 

When the defendant in error signed the petition for the 
organization of this district he knew, as he admits, the actual 
facts concerning his land, the ditches and waters therefor, if 
any; yet regardless of these facts which he now states existed, 
he prayed that an irrigation district be organized to include 
them. This petition was an allegation, as well as an ad- 
mission by him, that this land was such as could properly be 
included in such an irrigation district (not being formed to 
make purchase of any ditches or waters then owned by him) 
and also as the owner that he desired it included. Under the 
last proviso in section 2 of this act, had his land not been in- 
cluded in the proposed irrigation district, yet was susceptible 
of irrigation from the same source (a fact here admitted), 
upon application to the board, he probably would have been 
entitled to have had it included in the district. His signing 
the petition and thereby praying for the organization of a dis- 
trict to include the lands named then owned by him, was the 
same in substance as a statement therein by him that this land 
was such as could be, and a prayer that it be included in the 
district. The commissioners having acted favorably upon his 
request, their action is in the nature of a judgment and the 
facts as then represented by him upon which they acted are 
not thereafter open to attack by him. In this respect he is 
estopped from thereafter making claim to a different state of 
facts than his previous acts would imply. 

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398 Montezuma District v. Longenbaugh. [54 Colo. 

In Vol. 16, Cyclopedia of Law and Procedure, at page 
796, it is said, "A party who has, with knowledge of the facts, 
assumed a particular position in judicial proceedings is 
estopped to assume a position inconsistent therewith to the 
prejudice of the adverse party." At page 799, it is also said, 
"A claim made or position taken in a former action or judicial 
proceeding will estop the party to make an inconsistent claim 
or to take a conflicting position in a subsequent action or 
judicial proceeding to the prejudice of the adverse party, 
where the parties are the same, and the same questions are 
involved." At page 801, the author further states, "If in a 
particular transaction or course of dealing the authority, 
capacity, character, or status of one of the parties is recog- 
nized as one of the basic facts on which the transaction pro- 
ceeds, both parties are as a rule estopped to deny that the one 
occupied that position or sustained that character." The 
above general rules are sustained by both reason and author- 
ity. We think they are applicable here. The authority of the 
board to include this land which rested upon a certain state of 
facts was not only recognized by the plaintiff, but with knowl- 
edge of all facts he assumed that it was such as would give 
the board jurisdiction over it; by his actions he took a posi- 
tion in harmony therewith, and by his signed petition prayed 
that the board act accordingly. Under these circumstances he 
ought not now be heard to say that the facts are different than 
what his former petition would imply, and for which reason 
that the board was without jurisdiction to do what he had 
previously prayed them to do. 

Under one of the provisos in section 2 of the act, if 
omitted, he probably could have had his land included in the 
proposed district by presenting his individual petition to the 
board for that purpose, the land being susceptible of irrigation 
from the same source. If such a petition had been presented, 
and the board had included his land, under such circumstances 
could it be consistently urged (after the district had contracted 
a large indebtedness with which to supply water for all the 

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Jan., '13.] Montezuma District v. Longenbaugh. 399 

lands, including that in question) that he could then be heard 
to say that the facts were lifferent than what his former pe- 
tition would imply, and for which reasons his lands were not a 
part of the district? We do not think so. We see no dif- 
ference, in substance, between the signers of the two petitions. 
The first is to secure the organization of the district to cover 
the lands therein named of which the signers of the petition 
are the owners of a majority of the acreage. The second is 
to allow the signer to have his land included as a part of the 
proposed district, if he so desires, although not included in the 
original petition. 

Section 2 provides that the original petition shall be 
signed by a majority of the resident freeholders who are quah- 
fied electors of the proposed district, who shall also own a 
majority of the whole number of acres belonging to the resi- 
dent electors of the proposed district. Assuming, argiiendo, 
that the nartie of the defendant in error was necessary to be 
counted to make a majority of the resident freeholders who 
are qualified electors, or was necessary to be counted as one of 
those owning a majority of the acreage of the proposed dis- 
trict, and that this land was necessary to be included for that 
purpose, under such circumstances it has repeatedly been held 
that the signer will not be allowed to thereafter dispute such 
questions of fact. — Betwer Borough v. Davidson, 9 Penn. Sup. 
Ct. 159; Person's Appeal, 96 Penn. St. 140; Lake City v, FuU 
kerson, 98 N. W. (Iowa) 376; Bidwell v. City of Pittsburgh, 
85 Penn. St. 412; Dewhurst v. City of Allegheny, 95 Penn. 
St. 437; Broad Street Church's Appeal, 165 Penn. St. 475; 
Matter of Cooper et ah, 93 N. Y. 507 ; Burlington v, Gilbert, 
31 Iowa, 356; 7. Am. & Eng. Ency. of Law, p. 20, Notes; 
Pepper v. City of Philadelphia, 114 Penn. St. 96; McKnight 
V, City of Pittsburgh, 91 Penn. St. 273. 

We think that the reasons and rules announced in the 
above cases are applicable here, and that the facts and circum- 
stances of this case justify the application of the principle of 

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400 Montezuma District v. Johnson. [54 Colo. 

estoppel. This makes unnecessary any consideration of the 
other reasons urged for a reversal of the judgment. 

For the reason stated the judgment is reversed and the 
cause remanded with instructions to dismiss the action at the 
costs of the plaintiff. Reversed, 

Chief Justice Musser and Mr. Justice Gabbert con- 
cur. 



[No. 6465.] 

Montezuma Valley Irrigation District et al. v. John- 
son. 

The case ruled by the opinion in Montezuma Vailey Irrigation 
District V. Longenhaugh ante. 

Error to Montezuma District Court, — Hon. Charles A. 
Pike, Judge. 

Mr. W. F. MowRY, for plaintiffs in error. 

Mr. Charles A. Johnson, for defendant in error. 

Mr. Justice Hill delivered the opinion of the court: 

This action involves the validity of certain irrigation dis- 
trict taxes upon certain lands included in an irrigation dis- 
trict organized under our former irrigation district act, ap- 
proved April I2th, 1901. 

Soon after the approval of this act, which contained an 
emergency clause, the defendant in error, in conjunction 
with many other landowners, signed and caused to be pre- 
sented to the board of county commissioners of Montezuma 
county a petition praying for the organization of the Monte- 
zuma Valley Irrigation District. The boundaries of the pro- 
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Jan., '13.] Montezuma District v. Johnson. 401 

posed district as set forth in the petition, included eighty acres 
of land owned by the defendant in error. The county com- 
missioners duly considered the petition, made certain find- 
ings of fact, and, following the procedure prescribed by the 
act, after the election therefor, declared the district as such 
duly oiTganized under date of December 4th, 1901. Its boun- 
daries as defined by the board included the above lands of the 
defendant in error. She paid irrigation district taxes thereon 
for two years. Prior to the institution of this suit the dis- 
trict had contracted a large bonded indebtedness for a water 
system. 

The regluarity of the proceedings relative to the organi- 
zation of the district and the issuance of the bonds (the evi- 
dence of this indebtedness) was duly confirmed by decree of 
the district court upon May 12th, 1906, as provided for by 
the act. No exception was taken to, or appeal from, this 
decree; no question is raised concerning the regularity of any 
of these proceedings. 

Upon August 22nd, 1907, which was more than six 
years after the organization of the district and more than one 
year after the date of the decree of confirmation, the defend- 
ant in error instituted this suit to restrain the district board, 
the county treasurer, and the county assessor, from levying 
and collecting irrigation district taxes uopn these lands. She 
also prayed the court to decree that they are no part of the 
district. As grounds for this relief she alleges that prior to 
the organization of the district, and during all times since, 
there were ditches constructed of sufficient capacity to water 
these lands, and that waters from certain natural springs and 
seepage were and had been so appropriated by this plaintiff 
and her grantors to water the said lands, and they were at all 
times mentioned watered and irrigated from said natural 
springs and seepage by and through said ditches. She also 
alleges, and it is conceded, that the district was not organized 
or formed to purchase, acquire, lease or rent the plaintiff's 
alleged ditches or water rights acquired from said natural 



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*^oogle 



402 Farmers' Co. v. Cooper. [54 Colo. 

springs, seq)age or otherwise, and that the district has never 
made purchase of any of them. 

Numerous defenses were presented, including that of 
estoppel. The relief prayed for was granted. The defend- 
ants bring the case here for review upon error. 

The pleadings as well as the facts necessary to consider 
are substantially the same as those in case No. 7197, The 
Montezuma Valley Irrigation District, et al v. George M. 
Longenbaugh decided at this term. For the reasons there 
stated the judgment is reversed and the cause remanded with 
instructions to dismiss the action at the cost of the plaintiff. 

Reversed, 

Chief Justice Musser and Mr. Justice Gabbert 
concur. 



[No. 7310.] 

Farmers' Reservoir and Irrigation Company v. Cooper, 

ET Al^ 

1. Water Right — Evidence — ^The petitioner in proceedings in the 
Eminent Domain Act impliedly admits that those named as respondents 
are the owners of the land, and of all appurtenances thereof. Including 
the right to enjoy the waters of a spring rising thereon, and seepage 
waters which accumulate there, all of which such respondents have 
for many years applied to beneficial uses. 

2. EjMInent Domain — Damages to Land M)t Taken — In proceed- 
ings under the statute of eminent domain the Jury should allow all 
damages, present and prospective, which are the natural and necessary 
or reasonable incident of the taking. 

3. Negligent or Wrongful Construction — ^Anticipated dam- 
ages, by reason of the negligent or unlawful construction of the im- 
provement, by the petitioner, are not to be allowed. But where, be- 
fore the hearing the petitioner had assumed possession, and con- 
structed an irrigating canal across a gulch or ravine, by means of an 
embankment, without any opening, and had thus prevented the land 
owner from receiving the waters of a spring which rose above the 



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Jan., '13.] Farmers^ Co. v. Coopcbl 403 

embankment, and seepage waters which before that had, with the 
craters of the spring been wont to flow down the gulch, and had for 
years been applied by the land owner to beneficial uses, it was held, 
not a case of anticipated damages, but an actual, present injury, de- 
preciating the value of the land not taken, and for which, though re- 
sulting from the manner in which the work was constructed was prop- 
erly considered, in the estimate of damages. 

4. Incidental Damages — ^Destruction of growing crops, injury 

by flooding, to an orchard, upon the land not taken, and to buildings 
situate thereon, additional fencing made necessary by reason of the 
Improvement, and that portions of the land are made inaccessible and 
practically valueless, are proper matters of consideration, as bearing 
upon the difference in market value, before and after the taking, of 
the land not taken; but not as constituting separate elements of dam- 
age. No allowance should be made for these particular injaries, as 
such. They are to be considered solely as bearing upon the deprecia- 
tion in value of the land not taken. 

5. Evidence — Rental Value, of the land, within a time rea- 
sonably proximate to the time of the assessment, may be shown to 
aid in estimating the depreciation in value of the land not taken. 
The assessment being had in March, 1910, held, that the rate at which 
the land rated prior to 1908, was properly rejected, as too remote. 



Appeal from Jefferson District Court, — Hon. John T. 
Shumate, Judge. 

Mr. W. A. DiER, Messrs. Smith, Brock and Pfrguson 
and Mr. W. W. Pi^TT, for Appellant. 

Mr. F. T. Johnson, for Appellees. 

Mr. Justice GabbERT delivered the opinion of the court : 

The Farmers' Reservoir and Irrigation Company insti- 
tuted proceedings under the Eminent Domain Act to condemn 
a right of way for its canal across a quarter section of land 
owned by A. A. Cooper and occupied by Frank Merrick, as 
tenant, under a lease from Cooper, both of whom were made 
parties to the proceeding.. The case was tried to a jury and 
a verdict brought in, fixing the value of the land actually 
taken at $747.50, and the damages to the residue at $6,229.00, 



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404 Farmers' Co. v. Cooper. [54 Colo. 

and a judgment rendered accordingly. From this judgment 
the company has appealed. For convenience, we shall here- 
after refer to the appellant as petitioner, and the appellees as 
respondents, that being their relation in the court below. 

The quarter section is crossed by a depression, which 
runs diagonally across the center of the tract from the north 
to the south line, and is mentioned in the testimony as Spring 
Gulch. 

When the proceedings were instituted, the petitioner was 
granted immediate possession of the land sought to be con- 
demned. Under this order the canal was constructed and 
completed before the case was tried. On the land there was 
a natural spring, the flow from which was augmented by 
seepage water originating on the land, all of which flowed 
down Spring Gulch. The right of way crosses this gulch 
below the spring, and the point where the seepage water orig- 
inated. Over and through this tract petitioner built what is 
referred to in the testimony as the Croke Canal. This canal 
w^as carried across Spring Gulch by a fill, without any open- 
ing. As we understand the record, a reservoir had been con- 
structed by respondents and their grantors which was sup- 
plied with water from Spring Gulch. Other improvements 
on the land consisted of a house, bam, and outbuildings, and 
an orchard, all of which were located above the canal, and 
in the near vicinity of Spring Gulch. The right of way de- 
stroyed some of these improvements. 

On behalf of respondents resulting damages, that is, 
damages to the land not taken for the right of way, were 
claimed, based upon the ground that the canal, as con- 
structed, prevented the use of the water flowing in Spring 
Gulch, and cut off the water supply for the reservoir. 

Witnesses for respondents were asked the following 
question: "Assuming that the spring of water, togtether 
with the seepage water, situated in the draw in and above 
and upon the right of way of this company is practically de- 
stroyed, taken and appropriated by this company; assuminsr 

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Jan., '13.] Farmers' Co. v. Cooper. » 405 

that the reservoir now located on the land is practically made 
useless for the purpose it was used for and can be used, 
♦ * * What would be the actual diminution in the mar- 
ket value of this land?" We understand by "this land" is 
meant the remainder of the tract not actually taken for right 
of way. The answers varied from twelve hundred to twenty- 
five hundred dollars. 

Counsel for petitioner contend that an objection to this 
question should have been sustained for three reasons: (i) 
That it was based upon an assumption contrary to the facts ; 
(2) that even if the use of the water from Spring Gulch was 
prevented and destroyed by the construction of the canal, it 
was not a proper element to consider in estimating damages, 
for the reason that respondents showed no right to the use 
of such water; and (3) that, under the petition, the cutting 
off of the water was not a matter for which damages could 
be recovered in this action. 

As previously stated, the cause was tried after the canal 
had been constructed, and we should here note that the jury 
viewed the premises. 

The testimony on behalf of respondents tended to prove 
that the water flowing down Spring Gulch from the sources 
named was arrested in its flow, and accumulated behind the 
fill and overflowed into the canal, which prevented it from 
passing beyond the right of way occupied by the ditch. Below 
the canal was a reservoir on the land, which, previous to the 
construction of the canal, was supplied with from from the 
spring and the seepage in question ; that the spring water was 
suitable for domestic use ; that in connection with the seepage 
water, it was suitable for stock, and irrigation purposes, and 
that the water from these sources which accumulated in the 
reservoir was good for irrigation, stock, fish, and ice pur- 
poses; that it had been used for all these purposes by re- 
spondents, in connection with the quarter section involved; 
that the spring furnished the sole supply for domestic use; 
and that the fill, right of way, and accumulation of water be- 



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4o6 Farmers' Co. v. Ccx>per. [54 Colo. 

hind the fill so covered up the waters from the spring, that it 
was rendered inaccessible and no longer fit for domestic use. 

There may be some conflict in the testimony as to the 
extent the use of the water from Spring Gulch is interfered 
with by the construction of the canal; but this conflict was a 
matter for the jury to determine, and as they viewed the prem- 
ises, and there is testimony to prove the facts upon what may 
be termed the hypothetical question propounded to witnesses 
for respondents was based, we are of the opinion that the con- 
tention by counsel for petitioner, that the question was based 
upon an assumption contrary to the facts, is not supported by 
the record. 

- In our opinion there is no merit in the contention that 
petitioner is not liable to respondents for the depreciation in 
the value of the land not taken resulting from destroying the 
use of water from Spring Gulch, upon the ground that they 
did not establish a right to its use. The petitioner commenced 
these proceedings, naming the respondents as the parties in 
whom the title to the land was vested, thereby admitting, in 
the absence of a special averment to the contrary, that they 
were the owners of the land, and everything upon it which 
might be regarded appurtenant. The water involved origi- 
nated on this land. It had been applied by respondents and 
their grantors to beneficial uses upon the land for many years 
prior to the construction of the canal, through the reservoirs 
and ditches constructed by Cooper and his grantors. We 
think this is sufficient, in connection with the conceded owner- 
ship of the land, to make a prima facie case establishing in re- 
spondents the right to the use of water from Spring Gulch as 
an appurtenance to the land. 

In condemnation proceedings, the owner across whose 
land a right of way is taken, is entitled to recover damages to 
the residue caused by such right of way, equal to the diminu- 
tion in the market value of such residue for any use to which 
it may reasonably be put. — Colo. Midland Ry, Co. v. Brozim, 
15 Colo. 193. It IS true the petitioner is not attempting to 

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L 



Jan., '13.] Farmers' Co. v. Cooper. 407 

ccMidemn the spring and seepage water for its own use, but by 
constructing its ditch in the place and manner it did, it has 
interfered with the use of water belonging to respondents upon 
their land as theretofore enjoyed by them. This necessarily 
depreciates its market value, and to this extent the petitioner 
should respond in damages, not for the value of water taken 
or appropriated, but because by the construction of its canal, 
it has depreciated the value of respondents' land by depriving 
them of the use of water thereon to which they are entitled. 

In condemnation proceedings all damages, present and 
prospective, that are the natural, necessary or reasonable inci- 
dent of taking the property sought to be condemned, must be 
assessed, but this does not include such as may be anticipated 
from negligent or unlawful construction of an improvement 
thereon by the petitioner. — Denver City I. & W. Co. v. Mid- 
daugh, 12 Colo. 434. Based upon this proposition, counsel 
for petitioner contend that respondents are not entitled to re- 
cover damages resulting to the residue of the land occasioned 
by being deprived of the use of the spring and seepage water, 
lor the reason that if damages are thus caused, they are the 
result of the unskillful construction of the canal across the 
gulch down which these waters naturally flow. This conclu- 
sion is not tenable. Petitioner constructed its canal across the 
gulch by means of a fill. By so constructing it, respondents 
have been deprived of the use of spring and seepage water, 
which is the natural* result of constructing the canal in the 
manner the petitioner did, by means of which damages have 
been occasioned at the very time they were assessed; hence, 
respondents are not claiming anticipated damages for negli- 
gent or unskillful construction, but damages which directly 
result from the taking of the land and the construction of the 
canal, which had been suffered at the time the case was on 
trial, as an incident to the taking of the right of way, and the 
construction of the canal thereover, and which will continue 
in the future. In such circumstances, depriving respondents 
of the water to which they are entitled is in no sense an inde- 

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4o8 Farmers' Co. v. Ccx>per. [54 Colo. 

pendent tort which should be the subject of an independent 
action. 

On the land were located a house, out-houses and a bam; 
also, an orchard, consisting of about fifty trees, and some 
growing crops. Some of these improvements were on the 
right of way and destroyed. Others, it was claimed, by rea- 
son of the near proximity of the canal, were rendered useless. 
The orchard in part was flooded by the water collecting back 
of the fill. The crops growing on the right of way were in- 
jured or destroyed. Testimony regarding the value of these 
improvements, crops and orchard was introduced by respond- 
ents, and the extent the market value of the residue was in- 
jured by reason of the destruction or injury of these items. A 
general question was propounded to witnesses for respondents, 
the object of which was to elicit an answer as to what the 
effect on the market value of the residue of the land would be, 
assuming that these items were injured or destroyed. Coun- 
sel for petitioner insist that from this question, which the wit- 
nesses were permitted to answer, the jury were allowed to infer 
that in estimating the damages to the land not taken, they were 
authorized to consider the value of such land, plus the value 
of crops destroyed, the value of buildings injured or destroyed, 
as Avell as the value of other items included in the question. 
In condemnation proceedings, double damages are not allow- 
able, so that in estimating damages to the land not taken for 
a right of way, the value of improver^ents injured and de- 
stroyed are not to be considered, standing alone; but, in esti- 
mating damages to the residue a wide range of evidence is ad- 
missible. If an improvement is injured or destroyed by a 
right of way, necessarily the market value of the residue is 
depreciated ; for in estimating the value of lands, the improve- 
ments thereon cut more or less of a figure. For this reason, 
the value of the improvements injured or destroyed by the 
right of way are proper to consider, not as constituting sepa- 
rate elements of damage, but in estimating the depreciation of 
the value of the land not taken. We think this was the pur- 
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Jan., '13.] Farmers' Co. v. Cooper. 409 

pose and purport of the question, and was so understood and ' 
treated by the jury, as the court, in instructing them, stated, 
in effect, that in estimating the damages, if any, to the resi- 
due of respondents' land, they were not authorized to assess 
damages for each specific element or item of alleged damage, 
which may have been shown by the evidence, but that their 
consideration of these elements of damage could only be con- 
sidered by them in so far as they found, from the evidence 
and from their view of the premises, that the fair cash market 
value of the residue of the land was thereby depreciated by 
the construction of petitioner's canal, and that none of these 
elements of damages could be considered as independent of, 
and additional to, the depreciation of the value of the residue, 
and concluded the instruction by stating: "The question is, 
after considering all proper elements of damages, as limited 
by these instructions, and rejecting all remote and speculative 
elements of damages ; how much is the fair, cash market value 
of the residue of said lands, not taken, decreased or dimin- 
ished in value by reason of the construction and operation of 
said canal ?" In this connection, it is not amiss here to note, 
that this instruction carefully guarded the rights of the peti- 
tioner with respect to the value of the right to the use of the 
water which the respondents claimed was rendered useless by 
reason of the construction of the canal. 

Counsel for petitioner also contend that from the evi- 
dence admitted and the instructions given, the jury were au- 
thorized to assess, as damages, the expense of additional fenc- 
ing. This contention is not supported by the record. To the 
extent the taking of the right of way impaired the value of 
the residue, respondents were entitled to be compensated. If 
the future use of the residue required additional fencing, and 
this fact would render it less valuable than it would other- 
wise have been, then this was proper to consider in estimating 
damages to the residue, not, however, as a separate element 
equal to the cost of increased fencing, but the amount of de- 
preciation in the value of the residue caused by the increased 

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41 o Farmers' Co. v. Ccx>per. [54 Colo. 

burden upon its use. — Newgctss v. Railway Co., 54 Ark. 140. 
This was the purport of the instructions of the court bearing 
on the subject. 

At the trial counsel for petitioner, on the cross-examina- 
tion of a witness for respondents, elicited the fact that the 
quarter section had been rented for the years 1908 and 1909 
for between three and four hundred dollars per annum. They 
afterwards introduced testimony tending to prove that for the 
years 1902 or 1903 to 1907, inclusive, the place had rented for 
one hundred and fifty to two hundred dollars per annum. On 
motion of respondents the testimony relating to the rent re- 
ceived prior to 1908 was stricken, upon the ground that it was 
too remote. Where a tract of land is injured by taking a por- 
tion of it in the exercise of the power of eminent domain, it 
is proper in determining the damages to consider the income 
derived from it. Testimony on this subject, however, ought 
to be limited to a period reasonably proximate to the time the 
damages are being assessed, as such testimony tends better to 
establish a rental value than what such value may have been 
several years prior. We think the court did not err in strik- 
ing the testimony under consideration. 

Numerous errors are assigned upon the admission of tes- 
timony by respondents, the purpose of which was to show in- 
jury to the residue of their land, as the result of the construc- 
tion of the canal. We do not believe it is necessary to con- 
sider the various questions thus raised in detail, as we think 
the testimony challenged was competent as tending to prove 
what might reasonably and naturally be anticipated would oc- 
cur in the future which would affect the market value of the 
residue. 

It is finally urged that the verdict is excessive. The jury 
viewed the premises. There is ample testimony to su^xxrt 
their verdict. It does not appear that inccwnpetent testimony 
was admitted. It appears that the canal enters the quarter 
section near the southeast corner, and after a meandering 

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Jan., '13.] McGovERN v. Denver. 411 

course of about three-quarters of a mile, leaves the premises 
near the northwest corner, thereby cutting into and through 
three of the four forty-acre tracts constituting the land in- 
volved ; that the amount of land actually taken for the right 
of way is about eight acres, but on account of the course of 
the canal, the manner of its construction, and its future 
method of operation, about six acres outside of the right of 
way are practically made valueless. The jury were carefully 
instructed what matters they should consider in estimating 
damages. In such circumstances it is not within the province 
of this court to say from a review of the testimony that the 
jury erred in rendering the verdict they did. 

The judgment of the district court is affirmed. 

Judgment affirmed. 

Chief Justice Musser and Mr. Justice H11.1. concur. 



[No. 7536.] 

McGovERN v. City and County of Denver. 

1. Public Officer — Fees — ^Where fees are the only compensation 
allowed by law to a public officer for the discharge of his official duties, 
lie is not entitled to compensation for the discharge of duties for 
vhich no fee is prescribed. The performance of such duties without 
compensation is a burden which the officer assumes when he accepts 
the place. 

2. CoRONEB — "No Fee Allowed for Mere Investigations — ^Under 
Rev. Stat, sec. 2577, the coroner is not allowed compensation for the 
investigation of cases of violent or sudden death, when he holds no 
inquest; and section 1219 of the Revised Statutes does not have the 
effect of allowing such compensation. 

3. Statutes — Construed — A statute allowed the coroner a speci- 
fied fee for each day employed in holding an inquest. Another statute 
prescribed the manner in which accounts against the county should 



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412 McGovERN V. Denver. [54 Colo. 

be made, requiring that each item should be separately stated, and 
tedding "and where no specific fees are allowed by law the time actually 
and necessarily devoted to the performance of any service charged in 
such account shall be specified." Held, that the latter statute has not 
the effect to entitle the coroner to compensation for the investigation 
of violent or sudden deaths, where no inquest was held. 

Error to Denver District Court. — Hon. Carlton M. 
Bliss, Judge. 

Mr. Paul J. McGovern, Mr. G^rge F. Dunklee and 
Mr. Oscar E. Jackson, for plaintiff in error. 

Messrs. Smith & Brock, for defendant in error. 

Mr. Justice Bailey delivered the opinion of the court: 

The complaint allies, among other things, that plaintiff 
was at all times mentioned therein the regularly elected, quali- 
fied and acting coroner of the city and county of Denver ; that 
as such officer it was his duty, upon being informed of the 
violent or sudden death of a person within his jurisdiction, 
the cause of which was unknown, to immediately view the 
body and make investigation respecting the cause and man- 
ner of the death, and if satisfied that death was not procured 
by another person, or by unlawful means, no suspicious cir- 
cumstances appearing, to deliver the body to the friends or 
relatives of the deceased for interment; that from February 
3rd, 1909, to January 5th, 191 1, as such officer, he was in- 
formed of the violent or sudden deaths of five hundred and 
seven persons, and made separate investigation and inquiry 
in each case, in compliance with the statute; that he neces- 
sarily spent one day in each case, which service was reason- 
ably worth $5.00 a day, aggregating a total of $2,535.00, and 
prays judgment for that amount. The parties stipulated that 
monthly accounts of such services were regularly itemized, 
presented to, and disallowed by the defendant, and also finally 
presented to it for the total amount above specified and dis- 
allowed on January i, 1911. A general demurrer was inter- 
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Jan., '13.] McGovERN v. Denver. 413 

posed to the complaint and sustained. The plaintiff elected 
to stand by his cause as made; the court thereupon dismissed 
the action, at the cost of plaintiff, who brings the case here 
on error to review that judgment. 

The statute relative to compensation of county coroners, 
Section 2577, Revised Statutes of Colorado, 1908, reads as 
follows : 

"In counties of every class the coroner shall be allowed 
the sum of five dollars p^r day, for each day actually employed 
in making an inquest and ten cents per mile for each mile 
actually and necessarily traveled in going to and returning 
from the place of inquest, to be paid out of the county treas- 
ury. For all services performed in the place of sheriff, the 
coroner shall receive the same fees as are allowed to the sheriff 
for like services." 

The compensation claimed in this suit is not for serv- 
ices rendered in conducting inquests, but for investigating 
cases of violent or sudden death in which the coroner deemed 
no inquest necessary. It is plain that -the fee fixed by stat- 
ute, which is the only compensation provided for county coro- 
ners, is purely for services rendered when an inquest is act- 
ually held. The sole question, therefore, is whether a county 
coroner may recover from the county compensation for offi- 
cial service other than as provided by statute. It has been 
determined in this state that a county clerk, judge or treas- 
urer may not recover additional compensation under like cir- 
cumstances, and there is no reason why any other county of- 
ficer, whose compensation is fixed in fees, should be permitted 
to do so. Garfield County v, Leonard, 26 Colo. 145 ; Garfield 
County V, B^ardsley, 18 Colo. App. 55: and Mitchell zk 
Wheeler, 20 Colo. 159. 

In the case of Garfield County v. Leonard, supra, speak- 
ing of a like proposition to that presented here, the court 
said: 

"The remaining items in this account consist of claims 
for services performed, which are public in their character, like 

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414 McGovERN V. Denver. [54 Colo. 

giving election notices, canvassing vote, recording abstract of 
official vote, issuing certificates of election, preparing tax list 
of county and state taxes and other services of a similar na- 
ture. The performance of these duties devolved upon appellee 
in his capacity as county clerk. The statute does not provide 
that for services rendered for which no special fee or other re- 
muneration is provided, the county clerk shall be paid a rea- 
sonable compensation; no implied assumpsit existed between 
appellee and the county for services rendered by him in the 
capacity of clerk for which no fees were specially fixed by law. 
— Locke V. City of Central^ 4 Colo. 65. * * * Upon 
what theory, then, can it be maintained, that when he per- 
forms official duties imposed by law for which no compensa- 
tion is provided, he shall be paid therefor by the county, in the 
absence of any provision to that effect? The performance of 
duties enjoined by law is not of itself the rendition of services 
at its instance, and to hold that the county must pay therefor, 
would create a liability against it which has no existence, 
either expressly or by implication, and result in injecting into 
the law, a provision entirely foreign to its letter and spirit. 
* * * When appellee assumed the duties of his office, he 
did so subject to its burdens. — Turpin v. Board of Commis- 
sioners, 7 Ind. 172. His compensation for official acts being 
regulated by statute, he is only entitled to charge for those 
services to which compensation by law attaches {^Debolt v. 
Trustees, Cincinnati Twp., 7 Ohio St. 237), for the rule is in- 
flexible, that an official can demand only such fees or compen- 
sation as the law has fixed and authorized for the performance 
of his official duties (Town of Carlyle v. Sharp, 51 111. 71; 
Board of Commissioners v, Barnes, 123 Ind. 403), and the 
statute having imposed upon appellee the duty of performing 
services which he incidentally rendered in the discharge of his 
general official duties for the performance of which no com- 
pensation is provided, cannot require the county to pay there- 
for. His remuneration for such services was had in the com- 
pensation received for those to which it spedally attached, and 

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Jan., '13.] . McGovERN v. Denver. 415 

which the l^islature intended as an equivalent for the duties 
he was required to perform, for which none was provided. — 
Cole V. White, 32 Ark. 45/' 

Where certain fees are prescribed for an official, as com- 
pensation, it is fundamental that he is not entitled to demand 
and receive any other, different or additional pay. Where the 
only compensation provided for a public officer for the dis- 
charge of his official duties consists of fees, and certain duties 
are imposed upon him by law, for which no compensation is 
provided, he cannot recover for services in the performance 
of such duties on the basis of a quantum meruit, or at all, 
the conclusive presumption being that compensation for such 
services is covered by the allowance made for the performance 
of other official acts for which fees are prescribed. The per- 
formance of certain duties, without compensation in a feed 
office, is a burden attaching practically to all such official posi- 
tions, and this burden is voluntarily assumed by an officer when 
he accepts the place, as he is presumed to know the require- 
ments of the law. Judgment affirmed, 

Chiei^ Justice Musser and Mr. Justice White concur. 

On Petition for Rehearing. 

On application for rehearing, it is contended, under sec- 
tion 1 2 19, Revised Statutes of 1908, which is in part as fol- 
lows: 

"No account shall be allowed by the board of county com- 
missioners, unless the same shall be jnade out in separate 
items, and the nature of each item stated, and where no specific 
fees are allowed by law the time actually and necessarily de- 
voted to the performance of any service charged in such ac- 
count shall be specified ; which account so made out shall be 
verified by affidavit;" etc., that the coroner is entitled to com- 
pensation for the services in question according to their reason- 
able worth. This section does not provide or undertake to pro- 
vide for compensation. It simply directs how bills for services, 

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4i6 LeM ASTER V. The PEOPtE. [54 Colo. 

fof'whieh compensation is due, but for which no specific fee is 
fixed, shall be made out. That is, applying the statute to the 
slaim in suit, if there were a law to the effect that in addition 
to the regular fees fixed by statute, the coroner, for the services 
in question, should receive reasonable compensation, to be allo- 
wed by the board of .county commissioners and paid out of the 
county treasury, he would have a claim for submission under 
this section. Since, however, there is no statute allowing com- 
pensation for such services, the coroner has no claim on this ac- 
count, and it w^as properly disallowed. 

If the decision in 3 Colorado Appeals 576, Board of 
County Commissioners v. Leonard, is in any particular in con- 
flict with the foregoing views, it was to that extent overruled 
in Garfield County v. Leonard, supra, which states a rule in 
.harmony with that here announced. 

Petition for rehearing denied. 

Decided March, A. D. 1913. Rehearing denied April 
7, A. D. 1913. 



[No. 7574.] 

LeMaster V. The People. 

\l( CiUMiNAL Law — Emhezzlement of Corporate Fund^-^oruent 
of Officers — ^Where the oflBcers of a corporation fraudulently consent 
to the appropriation of its funds by one of their number, on pretense 
of satisfying a factitious and groundless claim which he asserts 
against the" corporation such consent is no defense to the charge of 
embezzlement. 

2. Evidence — Depositions — In order to enable certain non- 
resident witnesses for the people to return to their homes their deposi- 
tions are taken, under the statute (Rev. Stat., Sees. 7277-7279), by 
consent and in the presence of the accused. It is not error to receive 
such depositions, in behalf of the people though no affirmative proof 
is given that the personal attendance of the witnesses might not be 
procured. 



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Jan., '13.] LeMaster v. The Peopi^e. 417 

3. ——-Letters of Corporation AdmiaHhle Against the Managing 
Officer — Information against the managing officer of a corporation for 
embezzling the corporate funds. Letters purporting to come from the 
corporation, and shown to have been received, in due course of mail, 
by the witnesses producing them, and which relate to transactions had 
between the corporation and those so producing them, at a time when 
the accused was controlling the affairs of the corporation and which 
tend to show the source of the funds in question, are admissible, with- 
out evidence identifying the handwriting of such letters. 

4. Copies of Letters — In the same case copies of letters writ- 
ten or dictated by the accused, in reply to those received from the 
corporation, were held admissible against him, the originals not being 
produced nor accessible. 

5. Copies of Letters of the Corporation, found in its impres- 
sion book, written at defendant's dictation, and mailed to persons in 
other states, were held admissible against him, without any showing 
to excuse the non-production of the originals. The book was regarded 
as, in effect, containing the letters of the accused, and the letters a 
declaration against interest. 

6. Annual Report of the Corporation, filed in the secretary's 

office and certified therefrom, and tending to show criminal intent, 
held admissible for the people. 

7. Account Books of the Corporation — Information against 

the managing officer of a corporation for the embezzlement of its 
funds. The defense being that the moneys in question had been 
properly applied by the accused to discharge salary due him, the ac- 
count books of the company were held admissible to show what had 
in fact been paid him on account of salary. 

The evidence held sufficient to identify the books produced, as 
those of the corporation. 

8. Expert's Examination of Account Books — Voluminous 

Books of Account of such character as to render it difficult for a jury 
to arrive at correct conclusions therefrom, may be explained by an 
expert accountant, and the true state thereof shown by his testimony 
— the books being produced in court. 

9. Relevancy — ^The corporation, the embezzlement of whose 

funds was charged against the prisoner was in effect the accused 
himself. Held, that its insolvency might be shown as bearing upon 
the Intent of the accused. 

10. Witness — Competency — One K, while in the employ of the 
corporation whose moneys the prisoner was alleged to have embezzled 
had been giving information to the attorneys of certain parties with 
whom the company was dealing. Being discharged he was at once 



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4i8 LeMaster v. The People. , [54 Colo. 

taken into the care of, and supported by, one of these parties, a cred- 
itor of the company, and the same by whom the present accusation 
was instigated and prosecuted. The same witness had made oath to 
the information against the prisoner. Held, that he was nevertheless 
a competent witness for the people. 

11. Writ of Bkbob,— Harmless Error — The admission of evidence 
cures any error in its previous exclusion. 

The admission of evidence having no bearing upon the matter 
in issue is harmless. 

12. Evidence — Cros8-Examinati07i — ^The extent to which cross- 
examination may be carried is largely in the discretion of the trial 
court. One who had been a prisoner in the county Jail at the same 
time with the accused, testified to conversations had with him during 
such imprisonment. This witness had been in Jail on several occa- 
sions. Held, not an abuse of discretion to exclude a question pro- 
pounded on cross-examination, as to the charge upon which he bad 
first been arrested. 

13. Instructions — To Be Construed As a Whole — Where the law 
of the case is clearly and explicity set forth in one point of the charge 
the efPect of equivocal language elsewhere therein is eliminated. 

Brror to Denver District Court. — Hon. Greeley W. 
Whiti^ord, Judge. 

Mr. Thomas M. Morrow, for plaintiff in error. 

Hon. Benjamin Grifi^ith, attorney general, and Mr. 
George D. Talbot, special counsel, for the people. 

Mr. Justice Hiu, delivered the opinion of the court: 

The plaintiff in error was convicted of embezzling $3,700 
from The D. F. LeMaster Brokerage Company, a corporation ; 
he brings the case here for review upon error. 

It is earnestly urged that the evidence is insufficient to 
sustain the verdict. The defendant contends, that, while he 
appropriated the money, he was guilty of no crime, for the 
reason that he was entitled to it, as and for salary for serv- 
ices previously rendered to the corporation, and that he had the 
consent of the company to so apply the money. The peq)Ie 
claim : first, that the defendant had been paid his salary in full 
and that the claim of $3700 for back salary was a trumped-up 

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Jan., '13.] LbMaster v. Thk Peopub. 419 

claim; second, that if the company was indebted to him for 
salary, it being insolvent to his knowledge, and owing various 
parties large amounts for flour which it had but recently pur- 
chased on credit and sold for cash, it was fraudulent for him to 
thus convert the money so due them to his own use, and that 
even assuming he was a creditor that because he was also a 
director, an officer and its manager, his duty was to hold this 
money in trust for all the creditors; that upon account of 
these facts and the circumstances under which he appropriated 
it, he was guilty of embezzlement. It is unnecessary, in an 
opinion, to analyze or set forth in detail the evidence pertain- 
ing to the transaction. It is sufficient to state that we have 
given it careful consideration and are of the opinion that there 
is sufficient evidence to justify the verdict. 

Prior to the trial, depositions of witnesses residing in 
Kansas were taken, in the presence of the accused, pursuant to 
a waiver of notice by him. These were taken under the pro- 
visions of General Sections 7277-727^, Revised Statutes, 1908. 
When the district attorney offered to read these depositions to 
the jury, counsel for the defendant objected, claiming that no 
proper foundation was laid; that there was no showing that 
the witnesses could not be produced. The objection was over- 
ruled. We find no error in this respect. Section 7278, supra, 
provides, "that such deposition shall not be used if, in the opin- 
ion of the court, the personal attendance of the witness might 
be procured by the prosecution, or is procured by the accused." 
It stands admitted that these witnesses were residents of Kan- 
sas, their depositions were taken in order that they might re- 
turn to that state. By the ruling it was evidently the opinion 
of the court that the personal attendance of the witnesses 
might not be procured by the prosecution, there was no offer 
by the defense to produce them. The statute says "if, in the 
opinion of the trial court," etc. ; we find no abuse of the dis- 
cretion exercised. 

Complaint is made to the admission in evidence of cer- 
tain letters purporting to have come from The D. F. LeMaster 



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420 LeM ASTER V. The People. [54 Colo. 

Brokerage Company. It is claimed there was no attempt to 
identify the signature as the handwriting of D. F. LeMaster. 
They were received in the r^;iilar course of mail; their con- 
tents were in connection with a general line of transactions be- 
tween the corporation (of which the plaintiff in error was the 
controlling factor) and the sundry witnesses, and were intro- 
duced principally for the purpose of disclosing the transactions 
which led up to and disclosed from what source the corpora- 
tion received the money which the jury found was thereafter 
embezzled by the defendant. We do not understand that it 
requires the testimony of an expert in handwriting to make 
admissible letters of this character. We think they were suffi- 
ciently identified for the purposes offered. 

Complaint is made to the admission in evidence of carbon 
copies of letters written by witnesses in reply to those received 
from the defendant's company, either written or dictated by 
him. Upon his objections to the copies the defendant was re- 
quested to produce the originals; he stated his inability to do 
so and from his counsel's statements it appears that the allow- 
ance of time after the request was made would have been of no 
assistance in this respect. The witnesses testified that the car- 
bon copies were made at the same time and that the originals 
were properly mailed, etc. Under these circumstances we 
think the copies were properly admitted. 

A Mr. Grandt testified that he had been employed by The 
D. F. LeMaster Brokerage Company. An impression copy 
book was placed in his hands which he identified as belonging 
to the company, and he referred to copies of various letters 
therein, stating that the originals of which the impressions in 
the book were copies had been written and mailed to various 
persons and companies; that he wrote the greater majority of 
the letters at the dictation of the defendant. The pages in this 
book thus referred to by the witness were offered in evidence. 
It is claimed that this was prejudicial error, as no effort was 
shown to have been made to obtain the originals. We do not 
think so. The object of this testimony was to show the crimi- 

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Jan., '13.] LeMaster v. The People. 421 

nal intent of the defendant. The letters were shown to have 
been mailed to sundry people and companies in other states, 
who were beyond the jurisdiction of the court. The book con^ 
tained impression copies taken at the time ; we think this suffi- 
cient without further showing to justify their admission. This 
was in substance the defendant's impression book of his own 
letters. It contained declarations against interest and for this 
purpose was properly adriiitted. — D. & R. G. R. R. Co. v. 
Wilson, 4 Colo. App. 355. 

A certified copy of the annual report of The D. F. LeMas- 
ter Brokerage Company, filed in the office of the secretary of 
state, March 2nd, 1910, was offered in evidence over the ob- 
jection of the defendant. We find no objection to this evi- 
dence. It likewise went to show the criminal intent of the de- 
fendant; if otherwise, it was harmless error. 

The books of The D. F. LeMaster Brokerage Company 
were proi>erly admitted in evidence, as well as the defendant's 
salary account therein, showing what he had been paid, etc. 
All had a bearing upon his contention that he had, in good 
faith, appropriated this $3,700 to his own use upon account of 
salary. This line of testimony was especially applicable when 
it is considered that this was practically a one man corpora- 
tion. It is claimed that the books of the company were not 
properly identified. J. F. Spencer testified, that he was the 
trustee in bankruptcy of The D. F. LeMaster Brokerage Com- 
pany; that as such trustee he had the books of that company 
and that he recognized the books in court before him as the 
books of the company. A Mr. Grandt testified that he had 
been employed by the company; that the defendant was in. 
charge of its affairs and that he recognized the books in court 
as the books which he saw while employed by the company. 
We think the books were sufficiently identified. 

Many exceptions were taken to the evidence of E. D. 
Kellogg; he had been in the employ of The D. F. LeMaster 
Brokerage Company just prior to the time it went into bank- 
ruptcy. It is claimed, that while thus employed he was en- 
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422 LeM ASTER V. The PEOPI.E. [54 Colo. 

gaged in giving allied information to the attorneys for cer- 
tain Kansas millers from whom this company purchased flour; 
that just before it went into bankruptcy Kellogg was dis- 
charged ; that he was immediately taken to Kansas, and there 
supported and maintained by The Phillipsburg MiUing and 
Elevating Company ; that this concern was responsible for the 
defendant's prosecution, and that this witness swore to the 
original information in this case. Unquestionably Mr. Kel- 
logg's testimony was very damaging to the defendant in dis- 
closing his criminal intent, but whether or not his evidence was 
manufactured, as claimed, was for the jury to determine. The 
facts above named, if true, did not make him incompetent to 
testify. 

It is claimed that the court erred in refusing to admit in 
evidence page 13 of the minute book of the corporation when 
John Bernard, a witness called by the defendant, identified the 
page and book. Thereafter, the defendant took the stand and 
this identical evidence was admitted during his examination. 
This eliminates any question of prejudicial error concerning 
its original rejection. 

One James W. Bennett, who had been incarcerated in the 
county jail several times prior to the trial, testified to an al- 
leged conversation between himself and the defendant, while 
both were in jail. Counsel claims an inspection of his evidence 
will show that the alleged conversation had no bearing what- 
ever on the issue of the case. If that is true, we fail to appre- 
ciate wherein any prejudicial error was committed. It would 
be harmless error at least. Upon cross-examination the court 
declined to compel the witness Bennett to answer what the first 
charge was on which he had been incarcerated. The evidence 
disclosed that the witness was then in jail and had been for 
some time. He was not asked if he had ever been convicted 
of a crime. If he had not been, but was awaiting trial, we 
think the general rule concerning impeaching testimony was 
applicable to him the same as any other witness. — Tollifson et 
al V. People, 49 Colo. 219. The witness' histor\% pertaining 

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Jan., '13.] LeMastter v. The Peopus. 423 

to his sojourn in the county jail, was gone into quite fully. 
The jury had this before them with which to determine the 
weight to be given his testimony. The extent to which coun- 
sel may go upon cross-examination in such matters is largely 
within the discretion of the trial court. We cannot say that 
the court abused its discretion in the respect referred to. 

E. F. Arthur, an expert accountant, was permitted to tes- 
tify that he had made an examination of the books of The D. 
F. LeMaster Brdcerage Company and as to certain facts which 
they disclosed, one of which was that the company was insolv- 
ent at the time of the alleged embezzlement. It is claimed this 
was prejudicial error. The books were in court sub jet to in- 
spection ; they were quite voluminous and of such a character to 
render it difficult for the jury to arrive at a correct conclusion 
concerning their exact condition. Under such circumstances 
resort may be had to the aid of an expert bookkeeper to exam- 
ine and explain the true state of their condition, etc. — Brown 
V. First National Bank, 49 Colo. 393. It is further urged, that . 
it was prejudicial error to thus show the insolvency of the cor- 
poration ; that as the charge was for embezzlement it was im- 
material whether the corporation was solvent or insolvent. 
This last statement is unquestionably true, but, when we con- 
isder that this was in fact what is commonly termed a one man 
corporation, and that man was the defendant, its solvency 
would have a bearing upon the question of his criminal in- 
tent, when it is shown, and in fact admitted, that he at this one 
time took $3,700 of its funds and appropriated it to his own 
use, under the alleged claim of back salary then ow-ing him by 
his corporation. 

About one hundred twenty assignments of error have 
been made pertaining to the admission and rejection of testi- 
mony. We have answered in detail what appears to us to be 
the most important. It would unnecessarily lengthen this 
opinion to thus answer all; we have considered them but find 
no prejudicial error in this respect. 



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424 LeM ASTER V. The Peopi^E. [54 Colo. 

Numerous assignments are made pertaining to instruc- 
tions given, refused and modified. They all center around the 
correctness of Instruction No. 10, which, in substance, advised 
the jury that while it is essential to constitute the crime of em- 
bezzlement that it be proved beyond a reasonable doubt that 
the moneys were taken and converted without the consent of 
the corporation, nevertheless, that the officers and directors 
could not legally consent to a fraudulent transaction, and that 
when, knowing the insolvency of the corporation, etc., they 
fraudulently consented to such a transaction, that such consent 
was illegal and the appropriation would still constitute the 
crime of embezzlement. 

Tlie rule, that it is no defense to a charge of embezzle- 
ment of the funds of a corporation to show that the moneys 
were taken by its consent where the officers and stockholders 
fraudulently consented thereto, in reason is supported by an 
overwhelming weight of authority. — Reeves v. State, 11 So. 
"(Ala.) 158; United States v. Harper, 33 Fed. 471 ; State v. 
Kortgaard, 64 N. W. (Minn.) 51 ; Taylor v. Commonwealth, 
75 S. W. (Ky. App.) 244; McKnight v. United States, 115 
Fed. 972; State v. Brozmving, 82 Pac. (Or.) 955; Secor v. 
State, 95 N. W. (Wis.) 942; Sta>te v, Foust, 19 S. E. (N. 
Car.) 27s; Stat^ v, Nicholls, 23 So. (La.) 980; People v. 
Butts, 87 N. W. (Mich.) 224; Saranac & L. P. R. R. Co. v. 
Arnold, 167 N. Y. 368; People v. Ward, 66 Pac. (Calif.) 
372; Holmes et al. v. Willard, 125 N. Y. 75. 

It is further claimed that this instniction is erroneous be- 
cause it tells the jury that if the corporation was insolvent it 
would be unlawful for it to pay the defendant's claim and 
thereby make him a preferred creditor, because it says that the 
stockholders and directors cannot consent to an unlawful act 
on the part of the corporation; that from this language if the 
payment was unlawful, although made in good faith, the de- 
fendant had to be found guilty. We do not so understand the 
instruction, but to the contrary it says that the jury must fur- 
ther believe from the evidence, etc., that this was done while 

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Jan., '13.] LeMaster v. The People. 425 

the company was insolvent and with the intention that the 
money was to be fraudulently converted from the corporation 
and fraudulently diverted from the payment of the creditors of 
the corporation, etc. As we read them in the manner there 
used, the words "fraudulently converted" and "fraudulently 
diverted" apply to criminal acts which include the intent, and 
not to where it was done in good faith, yet was in fact unlaw- 
ful. In addition it is elementary that instructions must be con- 
sidered as a whole. By Instruction No. 9 the jury were told 
that it would be a complete defense if the moneys were taken 
by the defendant on a claim for back salary, if this was done in 
good faith and without any intention on his part to defraud 
the corporation or its creditors, etc. ; yet if the claim for back 
salary was not made in good faith, but if it were a mere pre- 
tense, or show, or device on his part to obtain the money and 
convert it to his own use, and to give the transaction the ap- 
pearance of legality it was put upon the ground of a claim for 
back salary, that it would not constitute a defense. By In- 
struction No. 1 1 the jury were told, in substance, that in order 
to convict they must find that the company was under the con- 
trol and management of the defendant; that it was insolvent; 
that this condition was known to the defendant; that he had 
this money in his possession by virtue of his employment and 
with this knowledge of the company's condition that he applied 
and converted the money to his own use under a claim or pre- 
tense that the same was due him for back salary, which had 
not been paid, and that this claim for back salary was not as a 
matter of fact a bona Me claim, and was not made in good 
faith, but was a mere pretense on the part of the defendant to 
convert the money to his own use instead of letting the cor- 
poration apply the money to the payment of all its debts. 

When Instructions Nos. 9 and 1 1 are considered in con- 
nection with No. 10 complained of, we are of opinion that they 
eliminate any possibility of conviction in case the money was 
taken under a claim for back salary made in good faith, and 
also any question concerning the consent of the board of direc- 



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426 Steinhauer v. Henson. [54 Colo. 

tors to the application of these funds in payment of back sal- 
ary, if given in good faith, regardless of whether it was in- 
tended to give a preference to the defendant or otherwise. 
This makes unnecessary any consideration of the question of 
the validity of the acts of the officers of an insolvent corpora- 
tion, where in good faith, they attempt to make a preference 
in favor of one creditor. 

Perceiving no prejudicial error the judgment is affirmed. 

Affirmed. 

Chief Justice Musser and Mr. Justice Gabbert con- 
cur. 

Decided March 3, A. D. 1913. Rehearing denied April 
7, A. D. 1913. 



[No. 7804.] 

Steinhauer et als. v. Henson. 

1. Sale — Option to Return — Effect — Where goods are purchased 
with an option to return them, the title passes, subject to the right to 
lescind and return. 

2. Option to Purchase — In the case of a mere option to pur- 
chase the title remains in the one granting such option: the delivery 
of the goods to the one receiving the option is a mere bailment.. If 
the bailee fails to exercise his option within a reasonable time, where 
no time is specified, the bailor may recall the goods. 

3. Duty of Seller — One who has granted to another an op- 
tion to purchase an article, no time being appointed for its return, 
or for the exercise of the option, shortly thereafter closes his place 
of business, goes abroad, and so remains till after the death of the 
optionee. He is not to be heard to complain of the failure of the op> 
tionee to return the article, nor will the option be converted into a 
purchase by such failure. 

Whether the optionee was under duty to take affirmative action, 
and return the goods, Quere, 



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Jan., '13.] Steinhauer v. Henson. 427 

4. Contracts — Construed — ^A memorandum was signed by both 
parties as follows: "Pictures left with Mr. Smith on approval." Then 
followed the names and description of certain pictures. Opposite to 
each was set down the price, the whole amounting to |1,900 

Under this was the following: "Credit by old frame 10 



"11,890" 
"The above paintings may be exchanged at any time for face value 
"(that is, the price paid plus the increased market value)." Held, 
not a sale but a mere option to purchase. 

Error to Denver District Court. — Hon. Hubert L. 
Shattuck, Judge. 

Mr. John A. Bwing, for plaintiffs in error. 

Mr. James J. Banks, Mr. Francis J. Knauss, Mr. H. 
E! LrUTHE and Mr. C. R. Bell, for defendant in error. 

Chief Justice Musser delivered the opinion of the 
court: 

Henson was engaged in selling paintings in Denver and 
made his headquarters at a certain studio where his pictures 
were on exhibition. About January 14, 1910, Smith and his 
wife visited the studio. After the visit and on the same day, 
or the next, three paintings were taken by Henson to Smith's 
residence, where they were at the time of Smith's death, \vhich 
occurred on May 9th following. After the latter part of Jan- 
uary, Henson did not make the studio his headquarters, but 
what pictures he had were taken to his residence. Early in 
February, Hienson, leaving his residence in charge of a ser- 
vant, went to Europe where he remained until July. After his 
return, he filed a claim against Smith's estate for the paintings 
left at Smith's residence. The county court disallowed the 
claim. On appeal, the district court, after a trial to the court, 
allowed the claim against the estate. Aside from the above 
facts, the only material evidence introduced by Henson was 
the following memorandum : 

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4^8 Steinhauer v. Henson. [54 Colo. 

"Denver, Colo., Jan. 25, 1910. 
Pictures left with Mr. Smith on approval : — 

I water color by "Gabrini" (Music Master) $1,200.00 

I water color by "ter Burgh" (Dutch Mill) 250.00 

I oil by "de Mester" (Shore Scene) 450.00 

$1,900.00 
Cr. by old frame 10.00 



$1,890.00 
The above paintings may be exchanged at any time for 
face value (that is the price paid plus the increased market 
value.) 

J. E. Henson, 
American Agent, 

UOuvre, ^ 
PRANK L. SMITH." 
It was admitted that the signatures were those of Hen- 
son and Smith. Henson contends that this memorandum is 
evidence of a sale to Smith with the option of returning the 
paintings if the latter did not like them. The administrators 
contend that the memorandum shows that Smith did not buy 
the pictures, but that they were left with him with the option 
to purchase them if he liked them. If the parties understood 
that a sale had been made they certainly would have used 
words to express that understanding. The idea of a sale is a 
simple one and could have been simply expressed by the use of 
the words "sold to" instead of "left with," if the parties so 
understood it. "Pictures sold to Mr. Smith on approval" 
would be easily understood to mean that Smith bought the pic- 
tures with the option of returning them if he did not like them. 
"Pictures left with Mr. Smith on approval" would be a simple 
way to express the idea that the pictures were left with Smith 
with the option to purchase them if he liked them. The rest 
of the memorandum would then mean that if Smith bought 
them he was to have them at the prices named, receive credit 

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Jan., '13.] In Re Senate Resolution. 429 

for an old frame and have the privilege of exchanging the pic- 
tures at any time for face value as expressed. Smith did not 
agree to return them at any particular time. Of course if he 
did not choose to exercise his option to take the pictures in a 
reasonable time, Henson could have recalled the option and re- 
taken them. We do not say that Smith would have been 
called upon to move within a reasonable time, but if he had 
been, he had no opportunity to do so, for Henson went away 
in a few days after the date of the memorandum, and remained 
away until after Smith's death. An option to return a pur- 
chase, if one does not approve, is different from an option to 
purchase, if one does approve. In the former case, the title 
passes, subject to the right to rescind and return; in the lat- 
ter, the title does not pass until the option to buy is determined. 
The former is a sale and delivery, the latter a bailment which 
may be converted into a sale, at the option of the bailee. — 
Hunt V. Wyntan, 100 Mass. 198. 

The transaction between Henson and Smith was a bail- 
ment with the option to purchase, and as the option was never 
determined no sale took place. It follows that the judgment 
of the district court was wrong and is reversed and the cause 
remanded. Reversed and Remanded, 

Mr. Justice Gabbert and Mr. Justice Hill concur. 

Decided March 3, A. D. 19 13. Rehearing denied April 
7, A. D. 1913. 



[No. 8026.] 

IN RE SENATE RESOLUTION NO. 9. 

1. CoNSTiTUTio:yAL Law — Jncreose in Judicial Districts — Change 
of Boundaries — The increase, diminution, or change of boundaries in 
the Judicial districts, or in the number of Judges in any district, re- 
ferred to in section 14, of art. VI of the constitution is such as is 
brought about by the formation of a new district or the abolition of 



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430 In Re Senate Resolution. [54 Colo. 

£n existing one. The section has no relation to legislation changing 
a county from one district to another, so as not to abolish any district. 

2. Change of County from One District to Another — Effect — 

Where a county is changed from one district to another, the judge of 
the latter district will thereafter preside in the district court of such 
county; neither of the judges of the district from which the county is 
taken is thereby removed from office. 

Mr. Fred Farrar, attorney general, and Mr. Francis 
E. BoucK, debuty atttomey general, appeared in support, by 
the senate's request. 

There has been submitted to this court, by the honorable 
senate of the nineteenth general assembly now in session, the 
following resolution : 

"Senate Resolution No. p. By Senator Cornforth. 

Whereas, There is now under consideration by the sen- 
ate of the nineteenth general assembly of the state of Colorado 
Senate Bill No. 19 by Senator Van Tilborg, entitled : 

"A BILL FOR AN ACT TO DETACH THE COUN- 
TY OF TELLER FROM THE FOURTH JUDICIAL 
DISTRICT OF THE STATE OF COLORADO, AND TO 
ATTACH THE SAID COUNTY OF TELLER TO THE 
ELEVENTH JUDICIAL DISTRICT OF THE STATE 
OF COLORADO FOR JUDICIAL PURPOSES : AND TO 
REPEAL ALL ACTS AND PARTS OF ACTS INCON- 
SISTENT WITH THIS ACT." 

And Whereas, said bill has passed on second reading by 
said senate on the 17th day of March, 191 3, receiving eighteen 
votes in favor thereof, and said bill is now pending for third 
reading before the senate of the nineteenth general assembly. 

And Whereas^ it is believed that a two-thirds vote is 
necessary to pass this bill in conformity with section 14 of 
article VI of the constitution of the state of Colorado. 

Now Therefore, Be if Resolved, by the senate of the nine- 
teenth general assembly of the state of Colorado, that the su- 
preme court of the state of Colorado be and it is hereby n- 

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Jan., '13.] In Re Senate Resoi^ution. 431 

quested to give its opinion upon and in answer to the follow- 
ing question: 

FIRST : Does it require a two-thirds vote of the senate 
and the house of representatives of the state of Colorado to 
change the boundary lines of judicial districts in said state? 

SECOND : Does the removal of one county from one 
judicial district in the state into another judicial district in the 
state, operate as a removal from office of the judge or judges 
of the district from which the county is removed? 

And be it Further Resolved^ That a copy of this preamble 
and resolution be forthwith transmitted to the said supreme 
court 

I herewith certify the above resolution duly and regularly 
adopted by the senate of the nineteenth general assembly. 
(Signed). S. R. Fitzgarrau>, 

President. 

ATTEST: Mark A. Skinner, 
Secretary. 

PER CURIAM: 

Section 14 of article VI of the constitution referred to in 
said resolution is as follows: 

"The general assembly may (whenever two-thirds of the 
members of each house concur therein) increase or diminish 
the number of judges for any district, or increase or diminish 
the number of judicial districts and the judges thereof. Such 
districts shall be formed of compact territory, and be bounded 
by county lines; but such increase, diminution, or change in 
the boundaries of a district shall not work the removal of any 
judge from his office during the time for which he shall have 
been elected or appointed." 

It will be noticed that the increase, diminution, or change 
in the boundaries of a judicial district referred to in that sec- 
tion is such as is brought about by the formation of a new 
judicial district, or the abolition of an existing one, and does 
not relate to a change in boundaries produced by taking one 



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432 Barrows v. McMurtry Co. [54 Colo. 

county from a district composed of more than one county and 
adding it to another. 

By Senate Bill No. 19, now pending- on third reading in 
the senate, it is proposed to take Teller county from the fourth 
judicial district and attach it to the eleventh judicial district. 
The fourth judicial district is composed of more than one 
county, and that district will remain should the bill pass. Un- 
der such circumstances, the bill does not require a concurrence 
of two-tliirds of the members of each house. 

We take it that, by the second interrogatory, the honor- 
able senate desires to know what judge or judges will preside 
over the district court in Teller county in the event that that 
county is attached to the eleventh judicial district. In that 
event, the judge of the eleventh judicial district would preside 
over the district court in Teller county the same as in any other 
county of that district, and neither of the judges of the fourth 
judicial district would be removed from office. Our answers 
are limited to a consideration of the aforesaid section of the 
constitution. 

Mr. Justice White and Mr. Justice Baii<ey do not par- 
ticipate. 



[No. 6577.3 

Barrows v. The McMurtry Manufacturing Co. et al. 

1. Contracts — Validity — Restraint of Trade — One purchasing the 
business of a competitor with the good will thereof may lawfuUy ex- 
act from the seller a stipulation not to carry on the same business 
within such limit of time and space as is reasonably necessary for 
the buyer's fair protection. There mere fact that such restraint e^^tends 
to the limit of the state, or even to a wider territory, is not of Itself 
sufficient to condemn it. The public welfare is the first consideration, 
and if this is not adversely afiPected, and the contract imposes upon 
the seller no greater restraint than is necessary for the protection 
of the buyer, it is sustained. 



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Jan., '13.] Barrows v. McMurtry Co. 433 

2. Monopoly — Discountenanced — ^Tbe law regards with high dis- 
favor any condition that tends to stifle competition in the necessities 
of life, or in those things which contribute to the general comfort and 
welfare, and where such condition is asserted the court will make 
most careful and diligent inquiry to ascertain the very truth of the 
matter. 

3. Evidence — That a dealer, after purchasing the stock and 

good will of the competitor, advances the price of the commodity 
which is the subject of his business. Is not sufficient of Itself to estab- 
lish an improper motive as animating his purpose. The question is 
best determined by the prices demanded by other dealers in the same 
commodity within the same territory, and the effect of the new quota- 
tions upon the general market. 

Where after the purchase there still remained in the same field 
many competitors, and the defendant himself, shortly after disposing 
of his stock, again engaged in the same line of trade, in violation of 
his covenant, the contention that the purchase in question tended to 
create a monopoly was held to be entirely overthrown. 

3. DuBESS — Evidence — Defendant had sold his stock, business 
and good will, covenanting not to engage in the same line within a 
limited time and area. On bill brought to restrain the violation of 
this covenant the defense was that defendant's contract was induced 
by threats made by the plaintiff. The fact that, very shortly after the 
sale, defendant had resumed business in the same line was held to 
negative this contention. 

4. Contracts — Inviolability of — Public Policy— To a bill to re- 
strain the defendant's violation of a covenant not to engage in a cer- 
tain business for a limited time and area, the defendant set up the 
unfounded pretense that the sale of his stock and good will upon 
which his covenant was founded conferred a monopoly upon plalntilt, 
or tended so to do. The court, repelling this contention upon the facts 
shown, observed that while the general welfare is subserved by healthy 
competition there can be no sound or wholesome public policy which 
lends approval in the slightest degree to the open violation of personal 
contracts entered into in good faith, and upon fair consideration; that 
it is quite as important to the public welfare that evil minded persons 
be not allowed to transgress with impunity their solemn undertakings, 
as that the public should have protection In other respects. 

Brror to Denver District Court. — Hon. Greei^Ey W. 
Whit^ord^ Judge. 

Messrs. Davis & Whitney, for plaintiff in error. 

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434 Barrows v. McMurtry Co. [54 Colo. 

Messrs. Cranston^ Pitkin & Moore, for defendants in 
error. 

Mr. Justice Baiusy delivered the opinion of the court : 

The action was by defendants in error against Stanley M. 
Barrows, plaintiff in error, to enjoin him from continuing to 
violate the terms of a certain contract entered into May 5th, 
1906, between himself, his sister and brother of the first part, 
the Denver Plate Glass Company of the second part, and the 
defendants in error of the third part. The defendant was the 
largest stockholder in, and president and general manager of, 
the Denver Plate Glass Company, a corporation engaged in 
the business of handling paints, varnishes, and plate and win- 
dow glass in Colorado and neighboring states. The McMur- 
try Manufacturing Company and the McPhee & McGinnity 
Company, plaintiffs, were engaged in similar business in about 
the same territory. The chief place of business of the three 
companies was Denver, where their main offices were located. 
Under the contract the entire stock in trade of the Denver 
Plate Glass Company, except a portion of the paint stock, was 
sold to the plaintiff companies, including the good-will of the 
company and that of Stanley M. Barrows and his brother and 
sister. The amount charged and paid for the good-will was 
$2,5,00.00. Among other things, the contract contained the 
following : 

"And the parties of the first part and each of them agree 
with the third parties that if there is a consummation of this 
deal, until May ist, 1916, they will not, nor will any of them, 
engage directly or indirectly in any business in the state of 
Colorado, which carries, handles or sells paints, varnishes or 
glass, or accept employment wath or work for any house or 
business which handles any such goods or merchandise or class 
of business, or invest any money in or become stockholders or 
directors in any company or corporation which in any way 
carries on in the state of Colorado any class of business similar 
to that heretofore carried on by second party." 



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Jan., '13,] Barrows v. McMurtry Co. 435 

In substance, the complaint alleges that defendant vio- 
lated this covenant, in that, soon after the consummation of 
the sale, he not only engaged in the glass business himself, but 
was instrumental in the organization of certain corporations 
within the state for like purposes, one of which, in particular, 
the Independent Glass Company, was incorporated within two 
weeks after the execution of the contract. The defendant an- 
swered that the contract is against public policy, secured under 
a collusive and fraudulent agreement for the purpose of creat- 
ing a monopoly in restraint to trade, and therefore void; and 
further, that it was executed by the defendant under duress, 
and for that reason unenforcible. A replication denied the 
charges of duress and conspiracy and other affirmative defen- 
sive matter. The court, without a jury, upon hearing found 
the issues joined generally for the plaintiffs, with specific find- 
ings as follows : 

"That said defendant, Stanley M. Barrows, received and 
obtained a good and valuable consideration for the execution 
of said agreement, and for the making of the personal cov- 
enants made by him and contained therein ; that the said con- 
tract was not executed by him under duress of any kind, nor 
under intimidation or coercion of any kind, but was executed 
of his own free will and volition, and solely and alone for the 
consideration arising therefrom, and for the benefits he would 
receive from the payment of the moneys therein agreed to be 
I>aid ; that neither the said contract nor any part thereof was or 
IS invalid or void ; that no agreement or covenant therein con- 
tained was or is in restraint of trade, and that the agreements 
therein contained made by the defendant, including the agree- 
ment contained in said tenth paragraph, were and are reason- 
able and fair, and were necessary to protect the plaintiffs in the 
purchase made by them of goods, wares and merchandise, and 
good-will. 

Second. The court finds, from the evidence, that said 
contract was not obtained by plaintiffs for the purpose of, nor 
with the intention of, securing or obtaining any monopoly of 



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43^ Barrows v. McMurtry Co. [54 Q>lo. 

any kind, at any place, of any business, trade, occupation or 
calling, and that no monopoly of any kind was in any way ob- 
tained by plaintiffs, through or because of the execution or 
consummation of said contract, or at all. The court finds from 
the evidence that neither the said written contract nor any 
agreement therein contained was ever in any way waived or 
cancelled, or discharged by plaintiffs, or any of them, and that 
the said contract and all of the agreements made by plaintiffs 
have been fully kept and performed by them, and that said con- 
tract is now in full force and effect, and that plaintiffs are en- 
titled to have the same specifically enforced and carried out. 

Third. The court, from the evidence, specifically finds 
that each of the defenses interposed in the answer of defend- 
ant is not sustained by the evidence, and on all of said defenses 
and on all of the issues herein joined, the court finds for the 
plaintiffs. 

Fourth. The court finds that the defendant, Stanley M. 
Barrows, from time to time, and frequently and continuously, 
by various and sundry pretenses, practices, devices and 
machinations, both directly and indirectly, has sot^ht to evade, 
and has evaded, and has infringed and violated the terms of 
said agreement, and more particularly the provisions of para- 
graph loth thereof; that he, the said defendant, has been and 
IS associated with the Independent Glass Company, a corpora- 
tion doing business in Denver and throughout the state of 
Colorado, and which corporation was organized for the pur- 
pose of carrying, handling and selling, and which corporation 
has carried, and does carry, handle and sell glass in Denver and 
throughout the state of Colorado, and that he has worked for 
said The Independent Glass Company, has taken orders for it 
and has sought to build up its business in divers ways, and to 
deprive the plaintiffs of the benefit of the agreements made 
by the Denver Plate Glass Company and the defendant in said 
written contract of May 5, 1906, and that through said the In- 
dependent Glass Company he has been and is engaged in doing 
business in the state of Colorado, and handling and selling 

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Jan., '13.] Barrows v. McMurtry Co. 437 

glass therein, and that the plaintiffs have suffered, and will 
continue to suffer, great and irreparable injury by the viola- 
tion of said contract by defendant, unless they receive the pro- 
tection of a court of equity. 

Fifth. The court further finds from the evidence that 
the said defendant has, under the guise of conducting the busi- 
ness of an agent for a plate glass insurance company, kept his 
office in the same room with the said the Independent Glass 
Company, and has been therein engaged in directing, or aid- 
ing in directing, the business of the said the Independent Glass 
Company, and that the practices and conduct of the defendant 
have been such that in order to make effective the said con- 
tract of May 5, 1906,* and to protect the plaintiffs therein, it 
will be necessary for the court to restrain the said defendant, 
among other things, from continuing to maintain his office or 
place of business with the said the Independent Glass Com- 
pany, during the period provided for in said contract, to-wit, 
up to and including the first day of May, 1916." 

A judgment and decree restraining the defendant from 
further acts in violation of the terms of the contract was ac- 
cordingly entered. To review which defendant brings the case 
here on error. 

The main question is whether that part of the contract 
wherein and whereby the defendant agreed and undertook not 
to engage in the glass business within this state for a period 
of ten years, is void as being in restraint of trade, and thus 
against public policy. The defendant contends that it is, and 
predicates error on the fact that the court below held a con- 
trary view. 

That one may lawfully covenant to refrain from pursuing 
a particular business within the limits of a certain territory, 
even if it be an entire state, if the restraint thereby enjoined is 
reasonable and affords only a fair protection to the one in 
whose favor it is imposed, is no longer an open question. The 
following general rules applicable to contracts of this character 
are found in Eddy on Combinations, sec. 688 et seq.: 



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438 Barrows v. McMurtry Co. [54 Colo. 

"It will be found that in the earlier days contracts in re- 
straint of trade were looked upon with great disfavor by the 
courts. The attitude of the courts in this respect has greatly 
changed, and the most enlightened tribunals not only consider 
contracts in restraint of trade with favor, but look upon them 
as essential to the well being and progress of the community. 
It is not seldom, however, that even now the courts, carried 
away by the earlier decisions, arbitrarily pronounce contracts, 
which as a matter of fact appear entirely reasonable under all 
the circumstances, to be void, not so much because they are 
unreasonable as because they seem contrary to some earlier 
authorities. 

Contracts in restraint of trade should be interpreted in the 
light of the following propositions : 

(a) The right to contract is fundamental to all social 
organization. 

(b) Good- will is property, and as such is subject to 
transfer like any other species of property; and in its enjoy- 
ment the purchaser is entitled to exactly the same measure of 
protection that is afforded the purchaser of tangible property ; 
the law should not permit the vendor to regain possession, 
contrary to the terms of his agreement, of all or any part of 
that which he has sold. 

(c) All contracts made for the protection of the pur- 
chaser of good-will should be strictly enforced, unless it 
clearly appears that they are so unreasonable in their terms as 
to deprive the vendor or the party bound of valuable rights, 
without any corresponding benefit to the purchaser; even un- 
der such conditions a contract should be enforced wherever it 
is possible to so divide it as to declare it binding over such 
territory and for such time as are reasonably necessary for the 
protection of the purchaser, and declare it void as to such 
time and such territory as are not necessary for the protection 
of the purchaser. It will be found that it is occasionally possi- 
ble for courts to hold the contract divisible in this respect. 



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Jan., '13.] Barrows v. McMurtry Co. 439 

(d) A contract in restraint of trade being the contract by 
which the good-will of a profession, trade of calling, or of a 
business or enterprise, is sold, the courts should look with favor 
upon such contracts and enforce them, except in^ those cases 
where the enforcement would be manifestly inequitable and 
amount to the enforcing of a contract that is void for want of 
consideration. 

(e) The consideration for a contract in restraint of 
trade being that which ;s paid for the good-will of the profes- 
sion, trade, calling, business or enterprise in question, it is 
obvious that the entire consideration is met by the transfer of 
the entire good- will, and any agreement which arbitrarily 
binds the vendor beyond the territory and the time necessary 
for the protection of the good-will transferred is without con- 
sideration.'' 

And in Hammon on Contracts, at sec. 244a, the rule re- 
specting agreements of the kind under consideration is thus 
clearly stated : 

"In reference to time and place, while it has always been 
held in the American states that a promise not to engage in a 
particular business within reasonable limits within the state is 
valid, even though the duration of the agreement is unlimited, 
the doctrine of a few of the earlier cases was that a promise 
not to carry on a particular business at any place within the 
state was illegal per se, because it would compel the promisor 
to transfer his residence and allegiance to another state in or- 
der to pursue his vocation. This reasoning, however, was 
hardly applicable to the several states of the Union, which 
form one entire nation, and, except in a few states, the doc- 
trine no longer prevails, and, accordingly, the validity of a 
stipulation not to carry on a trade within the state ordinarily 
depends upon whether it is reasonably necessary for the pro- 
tection of the promisee. If it is, it is lawful; otherwise, not. 
Some courts, applying the same principle, hold that an agree- 
ment in restraint of trade may be valid, even though it is gen- 
eral as to space, if the promisee requires its enforcement to 



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440 Barrows v. McMurtry Co. [54 Colo. 

protect him. This doctrine is the logical result of the condi- 
tions of modern trade. 

As generally laid down, the rule is that an agreement in 
restraint of trade is valid if the restriction does not go, as to 
its extent in space or otherwise, beyond what, in the judgment 
of the court, is reasonably necessary for the protection of the 
promisee, regard being had to the nature of the trade or busi- 
ness." 

The bare fact that the restraint* is applied to an entire 
state, or even to a wider territory, is not of itself sufficient to 
condemn and nullify a contract of this sort. The public wel- 
fare is the first consideration, and if it be not adversely af- 
fected thereby, the contract should be sustained, if it is rea- 
sonable, and imposes upon the party bound no greater re- 
straint than is necessary for the fair protection, within the 
plain purpose and meaning of the contract, of the party for 
whom protection is intended. Such now is practically the uni- 
sersal criterion by which contracts ot this character are to be 
adjudged; that is, the question of whether the contract, under 
the circumstances of each particular case, is reasonable or un- 
reasonable is the controlling factor. 

In Beach on Modem Law of Contracts, sees. 1569, 1575, 
the following is stated : 

"The tendency of modem thought and decisions has been 
no longer to uphold in its strictness the doctrine which for- 
merly prevailed respecting agreements in restraint of trade. 
The severity with which such agreements were treated in the 
beginning has relaxed more and more by exceptions and quali- 
fications, and a gradual change has taken place, brought about 
by the growth of industrial activities, and the enlargement of 
commercial facilities which tend to render such agreements less 
dangerous, because monopolies are less easy of accomplish- 
ment. Whether the restraint be general or partial is no longer 
considered a material question. * * * 



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Jan., '13.] Barrows v. McMurtry Co. 441 

The modem doctrine is well-nigh universal that when one 
engaged in any business or occupation sells out his stock in 
trade and good-will or his professional practice he may con- 
tract with the purchaser and bind himself not to engage in the 
same vocation in the same locality for a time named and he 
may be enjoined from violating this contract. * * *." 

The following authorities, with many others, announce 
the law to be as stated in the forgoing quotations, and uphold 
the doctrine that whether the restraint is general or partial, 
widely extended or narrowly limited, is in and of itself alone 
immaterial: Harrison v. Glttcose Sugar Refining Co., 116 
Fed. 304; Anchor Electric Company v, Hawkes, 171 Mass. 
1 01 ; Bancroft v. Union Embossing Co., 72 N. H. 402 ; Beai v. 
Chase, 31 Mich. 490; Diamond Match Co, v. Roeber, 106 N. 
Y. 473; Fisheries^ Company v, Lennen, 116 Fed. 217; Oregon 
Steam Navigation Co. v. Winsor, 87 U, S. 64; Trenton Pot- 
teries Co, V. Oliphant, 58 N. J. Eq. 507 ; Swigert v. Tilden, 
121 la. 650; Oakdale Manufacturing Co. v. Garst, 18 R. I. 
484; National Benefit Co. v. Union Hospital Co., 45 Minn. 
272; Gibbs V. Baltimore Gas. Co. 130 U. S. 396; National 
Enameling & Stamping Co. v. Haberman, 120 Fed. 415; 
IVood V. Whitehead, 165 N. Y. 545. 

But we are not without authority in our own state upon 
the precise question under consideration. In Freudenthal v. 
Espey, reported in 45 Colorado at page 489, the law respect- 
ing such contracts, from its incipiency in the early English 
cases to the present, is reviewed, analyzed and applied. In the 
light of that decision it is unnecessary to enter upon a more 
exhaustive discussion to ascertain the rule in this jurisdiction 
applicable to the contract in question, for the doctrine is stated 
so plainly in that case that we have but to examine the condi- 
tions of this one and apply the rule there announced to them, 
since each case is to be resolved on its own particular facts. 
— Harrison v. Glucose Sugar Refining Co., supra; Oregon 
Steam NofvigaHon Co. v. Winsor, supra; Alger v. Thacher, 
supra. In Freudenthal v. Espey, supra, both parties were 

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442 Barrows v. McMurtry Co. [54 Colo. 

physicians ; the defendant, a young practitioner, agreed not to 
enter "the practice of medicine, surgery or obstetrics, or the 
branches of either, in the city of Trinidad," either directly or 
indirectly, "for the full period of five years," if within that 
time he should quit the employment of the plaintiff, an old 
practitioner, to whom he was bound by contract as a stated 
salary for that period ; there was a sufficient consideration ; the 
defendant left the employment of the plaintiff before he \vas 
entitled to, and immediately engaged in and continued the 
practice of medicine at Trinidad contrary to his agreement not 
to do so. Upon suit by plaintiff for damages for such breach, 
and injunctive relief, defendant relied upon the invalidity of 
the restrictive covenant in the contract as a defense. At page 
493 it was there said : 

"Expanding commercialism, advancing science and arts, 
the desire and necessity for education, and the spirit of the age, 
however, eventually impressed the judicial mind with the 
necessity of remodeling the rule to meet the needs and require- 
ments of men. It was recognized that both public interest and 
private welfare often render engagements not to carry on a 
trade or to act in a profession in a particular place for a lim- 
ited time, proper and even beneficial. — Mallan v. May, 1 1 M. 
& W. 653; Homer v, Ashford, 3 Bing. 326; Herreshoff z\ 
Boutineau, 17 R. I. 3. 

Thus impressed the courts sought to meet such require- 
ments by first fusing into the law a distinction between sealed 
instruments and simple contracts. This distinction being with- 
out reason, and not founded upon principle, soon disappeared, 
and the more logical distinction between general and limited 
restraint of trade grew and found favor with the courts. The 
latter distinction appeared as early as Braad v, JoUyffe, Cro. 
Jac. 596, in which it was held that a contract not to use a cer- 
tain trade in a particular place, was an exception to the gen- 
eral rule, and not void. The seed thus sown did not fully fruc- 
tify, however, until the leading case of Mitchell v, Reynolds, 
I P. Wms. 181, by which the attempted distinction between 

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Jan., '13.] Barrows v. McMurtry Co. 443 

sealed contracts in restraint of trade, and those not under seal 
was abrogated, and the distinction between general and lim- 
ited restraints, or rather the true distinction, to-wit, between 
unreasonable and reasonable restraints was fully established.*' 

And again at page 502 this is declared : 

*'Agreements like this must be construed with reference 
to the objects sought to be obtained by them. The object here 
is the protection of one of the parties against competition in 
his profession. The nature of the business to protect was a 
medical practice, extending far beyond the limits of the city of 
Trinidad ; that the covenantee possessed this business, and the 
knowledge and the skill that enabled him to acquire it. Cer- 
tainly in limiting the restriction to the city of Trinidad and 
for the period of five years was only affording *a fair protec- 
tion to the interests of the party in favor of whom it is given, 
and not so large as to interfere with the interests of the pub- 
lic.' The restraint was no larger than the needs of the cov- 
enantee required. It was of material l)enefit to him, and was not 
oppressive on the covenantor, nor was it in any sense in- 
jurious to the public. The contract is in no wise forbidden by 
any principle of policy or law. The defendant can be as use- 
ful to the public at any other place as at Trinidad, and the in- 
terests of the community, elsewhere, are as important as they 
are there." 

And in that case the court approves the rule as stated in • 
Homer v. Grceues, 7 Bing. 743, in the following quotation : 

" *We do not see how a better test can be applied to the 
question whether reasonable or not than by considering 
whether the restraint is such only as to afford a fair protection 
to the interests of the party in favor of whom it is given, and 
not so large as to interfere with the interests of the public. 
Whatever restraint is larger than the necessary protection of 
the party, can be of no benefit to either; it can only be oppres- 
sive; and, if oppressive, it is in the eye of the law unreason- 
able. Whatever is injurious to the interests of the public, is 
void on the ground of public policy.' " 

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444 Barrows v. McMurtry Co. [54 Colo. 

While it is true that in the Freudenthal case the precise 
facts found in the case at bar were not present, still in so far as 
an application of the law be concerned, there is no essential 
difference between them. The Freud^thal case brought up 
for the first time in this state a direct consideration of con- 
tracts in restraint of trade, and it became necessary to exam- 
ine and analyze the cases on this subject, both ancient and 
modern, and to note the history and development of the law 
on the subject, and the growth of the modem as distinguished 
from the ancient rule, so that the one best adapted to present 
needs should be approved for this commonwealth, with the re- 
sult that the doctrine of the Freudenthal case, as indicated by 
the foregoing quotations from that opinion, respecting such 
contracts, is the one to which we are committed. 

Alger V. Thacher, 19 Pick. 51 ; Tuscaloosa Ice Manufac- 
turing Co. V. Williams, 127 Ala. no; and Consumers' Oil 
Co. V. Nunnemaker, 142 Ind. 560, are relied upon by plaintiffs 
in error as upholding a Contrary doctrine to that here an- 
nounced, and requiring a reversal of the judgment. A careful 
examination of the decisions in these cases show that in none 
of them is the rule which we adopt denied or modified. The 
restraint attempted was found to be unreasonable, upon the 
facts of each of those cases, and they are therefore practically 
in accord with our views. The Illinois and California cases, 
Lanjsit v. Sefton Manf. Co,, 184 111. 326; Union Strawboard 
Co, V. BonHeld, 193 111. 420; Wright v, Ryder, 36 Cal. 342; 
and More v, Bonnett, 40 Cal. 251, may fairly be said to an- 
nounce a different rule ; but they stand substantially alone, and 
we are not disposed to approve or follow them. 

Upon the contention that the contract was the result of a 
conspiracy to create a monopoly, the facts show that the three 
companies to the contract operated in practically the same field, 
throughout Colorado and in neighboring states. Mr. Barrows 
testified that the business of the Denver Plate Glass Company, 
at the time of sale, extended over Montana, Idaho, Wyoming, 
Nebraska, South Dakota, Kansas, Colorado, New Mexico, 

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Jan., '13.] Barrows v. McMurtry Co. 445 

Texas, Arizona and Utah. It is clear from the uncontroverted 
testimony of several witnesses that no monopoly could or did 
result from the contract in question; that there were many 
dealers in glass in Denver and that competition was sharp. 
The witness Mineheart said : 

"Q. I wish you would state to the court in your own 
way what the situation was in the city of Denver and what it 
was after May, 1906, with reference to whether the McPhee & 
McGinnity Company and the McMurtry Manufacturing Com- 
pany had any monopoly? 

A. The McPhee & McGinnity Company carry a large 
stock of plate glass. The McMurtry Manufacturing Company 
also carries plate glass. The Independent Glass Company car- 
ries plate glass, and prior the Denver Plate Glass Company 
carried plate glass. After we took over the Denver Plate 
Glass Company, this company, the Denver Plate & Window 
Company, was formed, for the purpose of winding up and dis- 
posing of the stock that was taken from the Denver Plate 
Glass Company; also the Hallack & Howard Lumber Com- 
pany, and the H. W. Bingham Lumber Company. The Salzer 
Lumber Company, the Fleming Bros., and perhaps a dozen 
other people took contracts for glass and buy it from St. Louis, 
Kansas City and Omaha. The market in Denver is by no 
means closed. It is a physical impossibility to make any ar- 
rangement of that kind. The competition in the glass business 
in Denver in the last eight and a half years, since I have been 
here, and the competition throughout the country has been 
fierce; the history of the glass business has never seen the 
state of affairs that has existed in the past three years." 

McMurtry and McPhee, as well as Williams, a witness 
tfor defendant, testified to the same effect. The testimony 
shows conclusively that the glass business was in a demoral- 
ized condition, in Denver and throughout the state, prior to 
the sale, as a result of the unbusinesslike policy of the defend- 
ant in carrjring on the affairs of the Denver Plate Glass Com- 

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446 Barrows v. McMurtry Co. [54 Colo. 

pany ; that it was impossible at that time to make a fair or rea- 
sonable profit from the business at all. 

In cases where a claim of this sort is made the courts will 
make most careful and diligent inquiry to ascertain whether 
there is any encroachment on the public welfare. The law 
looks with high disfavor upon any condition which tends to 
stifle the free and unimpeded course of competitive buying 
and selling in the open market of commodities which are neces- 
sities, and contribute to the general comfort and well being of 
humanity. But it is not a judicial province to presuppose that 
such a condition exists, when as matter of fact it does not. It 
is sufficient to say, upon this branch of the case, that the testi- 
mony introduced by defendant, in support of the contention 
that the contract tended to create a monopoly, considered in 
the most favorable light for that purpose, utterly fails to estab- 
lish that such was its effect. The selling schedule adopted by 
the plaintiff companies, after purchasing the stock of defend- 
ant under contract, showed an advance over the price at which 
sales had been made before the purchase, and this was strongly 
relied upon to prove that the securing of the contract was part 
of a collusive and fraudulent scheme to create a monopoly. 
This alone is not sufficient to prove such claim. The single 
fact that thle plaintiffs raised the price of glass after purchas- 
ing the Denver Plate Glass Company's stock and good-will, as 
well as the good-will of the defendant, does not show an in- 
tent even to create a monopoly, much less that one was in fact 
created ; more especially is this true where the testimony dis- 
closes that the defendant had by his business policy, prior to 
the time of sale, completely demoralized the glass market and 
fixed prices that were ruinous to the trade. If the prices 
quoted after the purchase were exhorbitant, and tended to 
show the existence of a monopoly, that could be best made to 
appear by a comparison with the prices at which other dealers 
in glass generally throughout the territory had been and were 
selling it, and the effect of the new quotations upon the general 
market, rather than by a comparison with the cut prices at 

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Jan., '13.] Barrows v. McMurtry Co. 447 

which the plaintiffs and defendant themselves had handled it 
just prior to the purchase of the business of defendant. The 
fact that, through organizing the Independent Glass Company 
only a short time after he had disposed of his stock in trade 
and good-will to the plaintiffs, the defendant engaged in that 
line again, is in and of itself alone a complete refutation of his 
contention that a monopoly had been effected. At most, only 
one competitor was removed by the purchase, and its tendency 
to create a monopoly is too remote for serious consideration. 
In a case like this, from a trade standpoint, the interests of the 
public was practically unaffected by such purchase. There sim- 
ply has been the substitution of one tradesman for another. 
The plaintiffs had no control over the supply, numerous other 
competitors remained, fresh capital was entirely free to enter 
the field, and would certainly have done so had prices been 
held unreasonably high. No other concerns were purchased, 
and, as shown by the testimony, there were many dealers in 
the field competing for business. The plaintiffs themselves 
were bona fide competitors, as were also eastern jobbers. The 
field was open to all comers, and there is little or no danger 
that the public will suffer from lack of persons to engage in a 
profitable business. Under the conditions shown to exist,- it 
was impossible to create a monopoly through the contract in 
question ; it neither did or could confer a special or exclusive 
privilege. To hold that the purchase of a single business, in 
a wide field occupied by numerous competitors and open to all 
who might desire to engage in that business, is invalid, as 
tending to create a monopoly, would be to prohibit the pur- 
chase by any merchant of the stock in trade and good-will of 
another, carrying on a like business in the same place, and 
and would be utterly inconsistent with a free exercise of the 
right of contract. 

The plain truth is that the defendant was carrying on an 
unbusinesslike warfare, it may be for the express purpose of 
compelling some one to buy him out. It was entirely proper, 
under the facts of this case, for the plaintiffs to do so, since 

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448 Barrows v. McMurtry Co. [54 Colo. 

the defendant persisted in the employment of tmfair methods 
in the conduct of his business. While it is doubtless true that 
competition is the life of trade, it is also equally true that com- 
petition of a certain sort almost inevitably leads to disaster, 
not alone to those immediately concerned, but to the public as 
well. It is safe to say that the general welfare is best served 
by healthy competition, which allows business enterprise, when 
conducted with energy and skill, to gather fair returns upon 
the ability, industry and capital employed. While ruinous 
competition, which demoralizes an industry and business, and 
prevents reasonable returns on the investment, may sometimes 
bring temporary gain to the public, must, in the very nature 
of things, finally result in general and permanent loss and dis- 
aster. The record wholly fails to support the claim of defend- 
ant, that the contract in question either did or could create for 
the plaintiffs a monopoly of the business under consideration. 

Neither is the contention that the contract was executed 
by the defendant under duress, and therefore not binding, well 
founded. The testimony that threats were made against him 
by certain members of the plaintiff companies a month or so 
prior to the execution of the contract is flatly denied. It is 
manifest that even if such threats were made, they had little if 
any effect upon the defendant, for almost immediately after 
the sale, having received full consideration for his business and 
good-will, he re-engaged in the same line from which, as is 
claimed, such threats had driven him. From all of the testi- 
mony the conclusion is irresistible that the contract was volun- 
tarily executed for the express purpose of consummating a 
sale, which upon the record showing was highly advantageous 
to the defendant, and out of which he secured a large price for 
his stock in trade, together with twenty-five hundred dollars 
cash additional for the good-will of the business. 

It may not be amiss to here suggest that there can be no 
sound and wholesome public policy, which operates in the 
slightest degree to lend approval to the open disregard and 
violation of personal contracts entered into in good faith, upon 

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Jan., '13.] Barrows v. McMurtry Co. 449 

good consideration. It is quite as important, as a matter of 
public interest and welfare, that individuals be not allowed, 
with impunity, to transgress their solemn undertakings, advis- 
edly entered upon, as it is that the public have protection in 
other respects. Where one is so lost to a sense of moral obli- 
gation as to accept a full consideration for his stock in trade 
and good-will, upon express condition that he refrain from 
again entering that business for a limited time, within a cer- 
tain territory, and then immediately, having pocketed the 
fruits of the agreement, deliberately and wilfully ignores the 
controlling condition thereof, courts should certainly not himt 
for legal excuse to uphold him in such moral delinquency. On 
the contrary, in the interests of the general public, and to dis- 
courage bad faith conduct of that sort, wherever, without vio- 
lation of legal principles and public policy, it may be done, con- 
tracts like the one under discussion should be rigidly upheld 
and enforced. A recent expression of the English court of 
appeals on this subject, in Underwood v. Barber, 68 L. J. Ch. 
Div. 201, meets with our cordial approval, and is as follows: 

"If there is one thing more than another which is essen- 
tial to the trade and commerce of this country, it is the invio- 
lability of contracts deliberately entered into; and to allow a 
person of mature age, and not imposed upon, to enter into a 
contract, to obtain the benefit of it, and then to repudiate it and 
the obligations which he has undertaken, is prima facie at all 
events, contrary to the interests of any and every country." 

To like effect are Casserleigh v. Wood, 14 Colo. App. 
265, and Swigert v, Tilden, supra. 

The conclusions announced in this opinion have been 
reached by the court upon a full, careful and independent ex- 
amination and consideration of the testimony brought up and 
the complete record in the case. Fortunately, however, it ap- 
pears that the honorable trial judge, who met the witnesses 
face to face, heard them under oath, observed their demeanor 
on the stand, marked any and all conflict of testimony, made 
full and explicit findings, all amply supported by evidence, al- 

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450 Barrows v. McMurtry Co. [54 Colo. 

though it may well be that on some points there was conflict- 
ing testimony, in harmony wath the views we sustain. The 
result and effect of those findings were to establish: First. 
That plaintiffs below had no intention or purpose of obtaining 
a monopoly and obtained none; Second. That the restrictive 
clause of which complaint is made was reasonable and neces- 
sary to the fair protection of the plaintiffs in the enjoyment of 
the business and good-will purchased by them, and was in no 
sense contrary to public policy; Third. That the defendant 
executed the agreement freely, and received a good and ade- 
quate consideration therefor; and Fourth. That the plaintiffs 
have never at any time waived any right under the restrictive 
clause of the agreement, the terms of which the defendant had 
violated and was continuing to violate. 

It is manifest, on principle, authority and public policy, 
that the agreement entered into between the defendant and 
plaintiffs should be given full effect, according to its very terms ; 
and it is also equally plain that both the law and the facts 
abundantly support the findings of the court below and the 
judgment and decree entered. 

Every person must pay the penalty for the wrong he does. 
The defendant is no exception to the rule. The law of com- 
pensation is fixed and certain. The defendant has wilfully vio- 
lated and ignored the terms of a lawful contract, entered into 
in consideration of a large sum of money paid him, which he 
retains. By these acts he has committed a wrong and must 
pay the price. It was so adjudged and decreed by the trial 
court, and that judgment and decree meets our sanction and 
approval. Judgftteftt affirmed. 

Chief Justice Musser and Mr. Justice Garrigues 
concur. 



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Jan., '13.] Pinnacle Co. v. Popst. 451 

[No. 6720.] 

The Pinnacle Gold Mining Co. et al. v. Popst et al. 

1. Judgments — Void or Voidable — Collateral Attack — A decree 
rendered by a court which has not acquired jurisdiction, and where 
this absence of jurisdiction appears by the record, is void, and may 
be assailed directly or collaterally. 

If there be any jurisdictional infirmity, not apparent by the record, 
the judgment is voidable merely, and in full effect until reversed, set 
aside, or declared void, in an action brought to try the very issue. 

Mere error or irregularity though sufficient to reverse the decree 
on appeal or error brought, has not the effect to render it void. 

Where a court proceeds to hear and determine a cause without 
service made for the period prescribed by statute for defendant's ap- 
pearance, the judgment is void. 

2. Administratob's Sale of Land — Petition — The petition of an 
administrator for leave to sell the lands of his intestate for the pay- 
ment of debts, which conforms substantially to the requirements of 
the statute is sufficient. 

3. Decree — Presumptions — It is presumed that the county 

court in directing the sale of an intestate's land, pursuant to the 
statute, found from evidence produced at the hearing that the per- 
sonalty was not sufficient to discharge the decedent's debts, and this 
finding is not to be overthrown by evidence that the court was mis- 
taken. 

The personal estate of the decedent was shown by the inventory 
and appraisement to have a value largely in excess of his debts. The 
petition averred that this value was wholly prospective, the property, 
aside from certain exempt household goods, consisting of mining stock 
not susceptible of sale at any price. On bill in the district court to 
vacate the sale, the presumption was indulged that the court heard 
evidence and found this averment to be true. 

4. Relief in Equity — Evidence — ^In the same case, there being 

no evidence that the action of the county court was founded in fraud, 
held, that it was not competent to receive evidence that, in fact, there 
was no necessity to make sale of the real property to discharge the 
decedent's debts. 

5. Widow's Allowance a Debt — The widow's allowance is a 

debt of the estate, for which, if the personalty be insufficient, the 
lands pertaining to the estate may be sold. 



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452 Pinnacle Co. v. Popst. [54 Colo. 

6. Pbocbss — Return — Evidence to Contradict — ^To contradict the 
sheriff's return of the seryice of mdane process, and the recitals of the 
record declaring service, the evidence must be. clear, unequivocal, and 
sufdcient to exclude all reasonable doubt. 

The return of the service of a summons was supported by the 
testimony of the officer who made it, and the attorney who directed it 
Testimony of one of the defendants to the proceeding that eleven 
years prior to his deposition, and when he was a mere boy, necessarily 
having no conception of the purpose or effect of legal proceedings, he. 
was not served with the summons, no circumstance being shown to 
fix the occasion in his mind, is not sufficient. 

The question being whether the summons was served on the 22nd 
or 29th of the month, a certified copy from the docket kept in the 
sheriff's office, showing service on the latter date; the account kept by 
the keeper of the livery stable at the place of service, showing that 
the officer who made the return had a certain conveyance on the 29th, 
It not being shown for what purpose, and the statements of the officer, 
afterwards made, that whatever appeared in the sheriff's docket was 
true, held, insufficient to overthrow the return which showed service 
on the 22nd. 

The officer's return is not to be impeached by a record kept in his 
office; nor by his statements orally made at a later date. 

7. District €ouvr— Jurisdiction — ^The district court h.*i8 no Juris- 
diction to review the Judgments of the county court and vacate them 
for error. 

8. Equity — Purchase Bona Fide — 2<^tice — Presumptions — Where 
it is sought to set aside the title of one who Is admitted to have pur- 
chased for value, without actual notice of an alleged fraud invalidating 
bis title, upon evidence of matters putting him upon inquiry, it will 
not be presumjed that inquiry on his part, diligently pursued, would 
have resulted in the discovery of any other or different facts than 
those which the complaining party establishes on the trial. 

The evidence produced to establish constructive notice examined 
and held insufficient. 

Appeal from Teller District Court, — Hon. Jambs Owen, 
Judge. 

Mr. Frankun E. Brooks, Mr. Michael B. Huruby, 

Mr. George W. Bierbauer, Mr. Guy P. Nevitt and Mr. H. 
Alexander Smith, for appellants. 

Mr. Charles C. Butler, for appellees. 



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Jan., '13.] PiNNAci^ Co. V. Popst. 453 

Mr. JusTiciS Garrigues delivered the opinion of the 
court : 

John Popst died intestate May 15, 1895, owning an undi- 
vided interest in unpatented mining lode locations in the Crip- 
ple Creek district. He left as his heirs, his widow Honora 
Popst, and eight minor children for whom she was appointed 
guardian. John Nolon, the administrator, under an order from 
the county court, sold the estate's interest in the Brindsmaid 
and Uncle Sam locations at public sale, to Frank Dodson. By 
mesne conveyances the title to the Brindsmaid passed to Fams- 
worth, who patented it, and conveyed it to the Pinnacle com- 
pany, which conveyed a portion to the Flying Cloud company. 
The Blanche company acquired the Uncle Sam. Before this 
suit was commenced, two of the children, George M. and John 
F., became of age and deeded an undivided 1/32, and the 
widow deeded an undivided 1/6 interest in both locations to S. 
A. Pipps and W. R. Gillpatrick in consideration for which 
they were to bear 'the expense of this litigation. George M. 
Popst, John F. Popst, Honora Popst, S. A. Phipps and W. R. 
Gillpatrick individually, and Mary, William, Michael, Hugh, 
Harry and James Popst minors, by Honora Popst as guardian 
commenced this suit July 2, 1902, against The Pinnacle Gold 
Mining Company, The Flying Cloud Gold Mining Company, 
John Nolon and the Blanche Gold Mining Company. The 
subject of the action was the Brindsmaid and Uncle Sam loca- 
tions; the object of the action was to recover the title that had 
been divested by the administrator's sale of real estate to pay 
debts. The court found all the issues in favor of the children ; 
also in favor of Phipps and Gillpatrick as to the 1/32 interest 
conveyed to them by George and John. It found against 
Honora Popst; also against Phipps and Gillpatrick on the 1/6 
interest conveyed by her. It declared the county court judg- 
ment void, and ordered it, the administrator's sale, the certifi- 
cate thereof, order approving it, administrator's deed, patent 
to Famsworth, and all the mense conveyances from Dodson to 

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454 Pinnacle Co. v. Popst. [54 Colo. 

appellants, annulled and set aside. It found these were clouds 
which it ordered removed from the title of those in whose 
favor it found. The Pinnacle and Flying Cloud companies ap- 
pealed, the Brindsmaid being the only property affected by the 
appeal. 

There were four issues involved, first, that the county 
court acquired no jurisdiction over the proceedings to sell real 
estate to pay debts, because the petition failed to state neces- 
sary jurisdictional facts, and the order contained recitals show- 
ing the court acted without jurisdiction. Second, that no sum- 
mons was in fact sensed on the children, though the decree 
recites, and the return shows they were personally served. 
Third, that the summons was not in fact served ten days prior 
to November 2, 1895, though the return shows and the decree 
finds ten days prior service. Fourth, that the purchaser at the 
administrator's sale fraudulently purchased the locations for 
the administrator and his associates, for an inadequate price, 
of which fraud appellants had notice. The district court made 
no specific findings on any issue ; but found all of them in favor 
of the children, which has compelled us to review all the issues 
and a very voluminous record. To make the case intelligent, 
we feel obliged to set forth rather fully the petition and order 
of sale, as follows : 

, PETITION FOR SALE OF REAL ESTATE. 
Filed October 21, 1896. 
State of Colorado, 

ss. 
County of El Paso. 

In the County Court. 
In the matter of the estate 
of George Popst, deceased. 

Petition for the sale of real estate. 

John Nolon as administrator of the estate of George 
Popst, shows the court:" That' the amount and value of the 
personal estate belonging to deceased at his death, as shown by 
the inventory and appraisement herein, was $4,108.00: that of 

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Jan., '13.] Pinnacle Co. v. Popst. ' 455 

said amount, the $108.00 consists of the household goods and 
furniture which are exempt from sale for the payment o£ 
debts; that the $4,000.00 consists entirely of 72,499 shares of 
the capital stock of The Mineral Rock Mining Company, which 
stock has no market or salable value at this time, and cannot 
now be sold or disposed of, although your petitioner has used 
every effort to secure a sale thereof. That while the stock has 
now no market or salable value, it has a prospective value by 
reason of the favorable location of the property, and on this 
account something is likely to be realized from it for the 
estate in the future ; that for this reason none of the estate's 
personal property has been sold ; that the amount of claims al- 
lowed against the estate, and the amount still existing and not 
allowed, as near as he is able to estimate the same, is about 
$1,000; but he is unable to state what portion thereof has been 
allowed. 

Decedent died siezed of the following interest in real es- 
sate : 

1/5 interest in the Cristle Lite lode, value $25.00; 

1/4 interest in the Sarah Ann McDonald lode, value 
$25.00; 

1/4 interest in the Flying Cloud lode, value $25.00; 

i/^ interest in the Brind^iaid lode, value $25.00; 

1/2 interest in the Uncle Sam lode, value $50.00; 

1/3 interest in the Little Mary lode, value $25.00; 

1/5 interest in the Mollie Gibson lode, value $25.00; 

1/5 interest in Old Branch lode, value $25.00; 

1/5 interest in Roanna lode, value $150.00; 

In the Cripple Creek mining district. That they all consist of 
mining lode locations only, no patents having been issued for 
any of them. That he believes it will be to the interests of the 
estate to have its interest in the Roanna, Brindsmaid and Uncle 
Sam locations sold by order of court for the payment of debts 

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456 PiNNAcivS Co. V. PopsT. [54 Colo. 

for the following reasons : First, because there is no personal 
property and no funds in the hands of petitioner with which 
to pay or discharge debts. Second, because said lode mining 
claims are unproductive, and no revenue can be received from 
them without much expense, and the assessment work thereon 
for the year 1896, has not been done, and there is great danger 
that the estate's interest in the locations may be lost imless the 
property is sold. That in his judgment, the estate's interest 
in the claims can be sold to better advantage at private sale 
than at public auction. That the heirs of decedent are Honora 
Popst his widow, John F., James, Harry A., Hugh J., Michael, 
William and Mary Popst, his minor children. Prayer for 
summons: that he be directed to sell the locations at private 
sale; that the court aid him in disposing of the property, or 
: otherwise provide for the payment of claims against the estate. 

Decree for Sale of Real Estate. 

(Filed November 14, 1896.) 

State of Colorado, 

ss. 
County of El Paso. 

In the County Court in Probate. 

November Term, A. D. 1896. 

In the matter of John Nolon, admin- 
istrator of the estate of George 
Popst, deceased. 

Petitioner, 

vs. 

Honora Popst, widow, John F., 

George M., James, Harry A., 

Hugh J., Michael, William, and 

Mary Popst, 

Respondents, 

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Jan., '13.] Pinnacle Co. v. Popst. . 457 

Decree for the sale of 
real estate to pay 
debts, filed Novem- 
ber 14, 1896. 

This day comes John Nolon, administrator and petitioner 
herein, and the respondents John F., George M., James, Harry 
A., Hugh J., Michael, William and Mary Popst; also come 
by George W. Musser as their guardian ad litem, and file 
their answer, and the cause coming on to be heard, and it 
satisfactorily appearing to the court from the records and files 
herein, that the respondents have been personally served with 
summons by the sheriff of this county more than ten days be- 
fore the return day thereof (November 2), thereupon it is 
ordered that Honora Popst be called, and she being three times 
solemnly called in open court by the sheriff, comes not, nor 
any one for her, but makes default, whereupon it is ordered 
that the petition be taken as confessed against said adult re- 
spondent. 

And now this cause coming on to be heard lipon the peti- 
tion taken as confessed as aforesaid, the answer of the guar- 
dian ad litem, and the exhibits, proofs and testimony produced 
and taken in open court, aiid it satisfactorily appearing to the 
court that George Popst departed this life May 15, 1895, 
leaving Honora Popst, his widow, and John F., George, 
Harry A., Hugh J., Michael, James, William and Mary 
Popst, his children and only heirs at law ; that petitioner was 
duly appointed administrator of his estate, and that letters 
ivere duly granted to him, bearing date September 30, 1895, 
and that petitioner has made a just and true account of the 
condition of the estate to the court, and that the personal es- 
tate is insufficient to pay the debts of George Popst, deceased, 
and the expenses of administration; and it futher appearing, 
and the court so finding, that the amount of the deficiency 
aforesaid, is the sum of $135.50, besides accrued interest there- 
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4S8 Pinnacle Co. v. Popst. [54 Colo. 

on, and costs; that the petitioner has made and returned to the 
court an inventory of the real estate of the deceased, and 
caused it to be appraised as required by law, the appraised 
value thereof amounting in the aggregate to the sum of 
$250.00; and it further appearing that the said George Popst 
died siezed of the following real estate situated in El Paso 
county, to-wit: 1/2 interest Brindsmaid, 1/2 interest Uncle 
Sam, and 1/5 interest Roanna lode mining locations, and the 
court having ascertained that it will be necessary to sell all the 
interest of the said estate therein to pay the deficiency afore- 
said, with the expenses of administration due and to accrue; 
and petitioner having filed his bond with surety thereon which 
is approved and acceptable to the court ; 

It is therefore ordered that said petitioner sell at private 
sale, 1/2 interest in the Brindsmaid, 1/2 interest in the Uncle 
.Sam, and 1/5 interest in the Roanna mining lode locations to 
pay the debts now due from said estate, and the costs of ad- 
ministration due and to accrue. 

It being the opinion of the court it would benefit the es- 
tate to sell at private sale, it is ordered that said premises be 
sold upon the following terms : for cash upon ten days' notice 
in the Morning Times, a daily newspaper of general circula- 
tion in El Paso county, which terms shall be distinctly set 
forth in all the advertisements of sale. And if sold at private 
sale, the real estate shall not be sold for less than the appraised 
value of each separate parcel ; and in no event shall the peti- 
tioner herein, either directly or indirectly become the pur- 
chaser of any part thereof. And it is further ordered that 
upon making such sale, and payment by the purchaser, that 
petitioner execute and deliver to the purchaser a eertificate of 
sale as in the case of sales of real estate upon execution, and 
report his action to the court ; further that the cause stand con- 
tinued to the next term for the hearing and action upon the 
report. 



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Jan., '13.] Pinnacle Co, v. Popst. 459 

Done in open court the 14th day of November, 1896. On 
November 27, 1896, the administrator at a duly advertised 
public auction, on the street in Cripple Creek, sold the estate's 
interest in the Brindsmaid and Uncle Sam locations to Dodson 
for $200.00. The sale was approved by the court, and January 
4, 1897, the administrator gave Dodson a deed. 

2. Discussion has arisen at the beginning, whether the 
attack on the county court proceedings, is direct or collateral. 
This kind of a direct attack is usually brought for the purpose 
of establishing by evidence aliunde the record the untruthful- 
ness of its recitals, and to have the voidable judgment resting 
upon the untruthful record declared void. If the county court 
acquired no jurisdiction over the proceedings by petition to 
sell real estate, or even the person by service of summons, and 
an inspection of the record disclosed the want of jurisdiction, 
the judgment was void and could be attacked in any action, 
either directly, or collaterally, whenever and wherever it was 
brought in question. If there was any jurisdictional infirmity 
in the county court proceedings which could only be discovered 
by evidence aliunde the record, then the judgment was not 
void, but voidable, and was good until set aside, reversed or 
declared void in a suit brought to try that very issue. Wh:i^e 
the issue is, that the judgment is void, the trial is by an in- 
spection of the record. Where the issue is, that the judgment 
in voidable, the trial is by matters dehors the record. — Kava- 
nagh V. Hamilton, 53 Colo. 157; Board of Commissioners v. 
Piatt, 70 Fed. 567 ; 52 Cent. Law Jour. 420. 

3. An inspection of the county court record ordering the 
administrator to sell real estate to pay debts does not disclose 
that the order was void on account of the failure of the court 
to acquire jurisdiction over the proceedings. The petition con- 
forms substantially with the statute, and by the great weight 
of authority was sufficient to invoke the jurisdiction of the 
court over the proceedings. — Nichols v, Lee, 16 Colo. 147; 
Bateman v. Reitler, 19 Colo. 547; Mortgage Trust Co. v. 



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460 Pinnacle Co. v. Popst. [54 Colo. 

Redd, 38 Colo. 458; Kavanagh v. Hamilton, 53 Colo. 157; 
Manson v. Duncimsoh, 166 U. S. 533-547; Kretsinger v. 
Brown, 165 Fed. 612; Iverson v. Loberg, 26 111. 180; Stow v. 
Kimball, 28 111. 108; Goudy v. Hall, 36 111. 313; Moore v. 
Neil, 39 111. 256; Bradley v. Dropie, 187 111. 175 ; Salter v. HU- 
gen, 40 Wis. 363 ; Tallnum v. McCarty, 1 1 Wis. 401 ; Black- 
man v. Mulhall, 19 S. D. 534; Magee v. Big Bend Co., 51 
Wash. 406; Burris v. Kennedy, 108 Cal. 331 ; Estate of Devin^ 
cenzi, 119 Cal. 498; Sweet v. Ward, 43 Kas. 695; 18 Cyc. 
771. 

Mistakes, errors or irregularities are not jurisdictional, 
and, though they might reverse a case on review, will not ren- 
der the judgment void. 

In Nichols v, Lee, supra, (on rehearing) 154, no inven- 
tory and appraisement were filed, and it was contended that 
the filing of these documents was a condition precedent to the 
right to sell real estate ; but this court held the statute meant 
that whenever it shall appear after and not by inventory and 
appraisement ; that after was a designation of time, not juris- 
dictional, fixing the order of proceeding; that a failure to file 
any inventory and appraisement might be an irregularity suffi- 
cient to reverse the cas^ on review, but would not prohibit the 
court from acquiring jurisdiction over the proceedings; that 
the petition is in effect a complaint, and is sufficient to confer 
jurisdiction upon the court if it contains enough to call upon 
those heirs who are parties, to respond; because nothing is 
taken as confessed, the court must take the testimony and de- 
cide the case on the evidence. The county court is a court of 
general jurisdiction, and presumably it found from evidence 
produced on the hearing of the petition, that the personality 
was not sufficient to discharge the debts against the estate. 
This finding could not be overthrown or reversed on the trial 
in the district court by evidence showing that the county court 
was mistaken. 



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Jan., '13.] PiNNAcxB Co. V. PoPST. 461 

It is claimed the inventory and appraisement show that 
the Mineral Rock stock owned by the estate was valued at 
$4,000,00. They do; but the petition recites that it was the 
only personal property belonging to the estate, except exempt 
household goods, appraised at $108.00, selected by the widow 
at that valuation, as a part of her allowance; that the value of 
the mining stock was wholly prospective; that it had no mar- 
ket value, and could not be sold at any price. The presump- 
tion is that the court heard evidence on this allegation, and 
found it true, which left the estate with no available assets. 

The district court took evidence upon the value of this 
mining stock to ascertain, as we imderstand, whether there 
was a necessity to sell real estate to pay debts when the peti- 
tion was filed. This it had no right to do, especially in the 
absence of a direct issue that the finding of the county court 
was based upon fraud. But waiving the irregularity of admit- 
ting this evidence, it shows that at the time the petition was 
heard, the stock was only worth about one cent or a cent and 
a half a share. Counsel further claims that the probate files 
introduced in evidence in the district court show that no claim 
had been allowed against the estate when the petition to sell 
was filed. If these files were competent for the purpose of im- 
peaching the findings and judgment of the county court 
(which we do not decide), still counsel is mistaken as to their 
effect. The files show that the widow's allowance was fixed 
at $1,860.00; that the exempt household goods and furniture 
were appraised at $108.00; that on October 25, 1895, she re- 
linquished her claim to the appraisers' estimate of specific 
property allowed her as widow's allowance, and, in lieu thereof 
elected to take the household goods at the appraised value of 
$108.00, and the balance of the allowance, $1,752.00, in 
money. This was a year before the petition to sell real estate 
was filed, and was a daim against the estate, for the payment 
of which, the administrator, in the absence of personal prop- 
erty from which it could be realized, could resort to the real 



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462 Pinnacle Co. v. Popst. [54 Colo. 

estate. The court was not justified in finding the first issue, 
that the judgment of the county court was void, against the 
appellants. 

4. li in truth the children were not served with process, 
though the sheriff's return shows, and the order recites they 
were, then the judgment was voidable as to them, and the 
court could declare it void in this suit brought for that pur- 
pose. — Kavanagh v. Hamilton, 53 Colo. 157. 

But before the officer's return, and the court recitals could 
be overthrown, and the judgment declared void, the proof 
must be clear, unequivocal and convincing; in other words, 
beyond a reasonable doubt. — Kauanagh v, Hamilton, 53 Colo. 
157; Butsch V. Sndth, 40 Colo. 66; Badrd v. Bodrd, 48 Colo. 
509; 32 Cyc. 517. 

At the time of the death of Popst in May, 1895, *^ chil- 
dren were of the following ages : Mary 3, William 4, Michael 
6, Hugh 8, Harry 10, James 11, George 12 and John 16 years. 
This trial w^as in April, 1907, twelve years afterward. The 
sheriff's return shows the summons from the county court was 
served in October, 1896, almost eleven years before this trial. 
All the children except the two eldest, George and John, testi- 
fied and their evidence was intended to show that none of them 
had been served with summons. In fact James and some of 
the others stated positively they were not served, and he being 
the oldest, we will analyze his testimony. He was a mere boy 
at that time, and it was a long period in a boy's life before this 
trial occurred. It is unbelievable that at the time he testified, 
he could by his unaided memory recollect that no summons 
was served upon him almost eleven years before. When ques- 
tioned as to how he knew he was not served, he said because 
on the date of the alleged service, he had taken dinner with 
Mrs. Derrity, which, with nothing to aid his memory, was 
even more astonishing. The most charitable view to be taken 
of such evidence is that he had no recollection of being served, 
which in fact is the effect of his testimony. After so long a 

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Jan,, '13.] PiNNAci^ Co. V. Popst. 463 

time it would be extremely dangerous to accept the unaided 
recollection of any person, to overthrow the findings of a court 
and the return of a sworn officer, and more especially is this 
true of the statements of children, who have no conception of 
court procedure. 

The return of the officer showed personal service upon 
these children; the decree recites they were personally served; 
the attorney who conducted the proceedings for the adminis- 
trator, testified that he made previous arrangements with Mrs. 
Popst, who at that time was friendly to and aiding in the 
proceedings, to have all the children at home so they could be 
ser\'^ed ; and the officer who made the service testified that he 
went to their home, found the children there according to ar- 
rangements of which he had been told, and served them all 
personally in the manner designated in the return. The evi- 
dence on the trial that the children were not served, was nega- 
tive in character and was not of that clear and convincing na- 
ture required to overcome the positive evidence, taken in con- 
nection with the official return and court recitals in the judg- 
ment. The district court was not warranted in finding the 
second issue against appellants. 

5. The third issue tried was that the summons was 
serv^ed on the 29th instead of the 22nd of October as shown 
by the return. The summons was prepared and signed Octo- 
ber 20f by the attorneys Seeds & Parker, and October 21, was 
issued by the clerk of the court. The final clause signed by the 
attorneys, save their signatures, was typewritten, as follows: 
"Witness our hands on this 20th day of October, 1896. (Sig- 
natures)." The clerk issuing the summons, wrote the follow- 
ing : "Given under my hand and the seal of said court this 
.:21st day of October, 1896. (Signatures and court seal)." 
The return, excepting the day of the month, is typewritten as 
follows: "State of Colorado, County of EI Paso, ss. I here- 
by certify that I have duly served the within summons on this 
.22nd day of October, A. D. 1896, upon the within named de- 
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464 Pinnacle Co. v. Popst. [54 Colo. 

fendants, Honora Popst, John F. Popst, George M. P<^t, 
James Popst, Harry A. Popst, Hugh J. Popst, Michael Popst, 
William Popst and Mary A. Popst, and each of them, by read- 
ing the same to them and each of them personally, in the 
county of El Paso and state of Colorado. W. S. Boynton, 
sheriff, by J. W. Lupton, deputy." Mrs. Popst testified Lup- 
ton came to her home in October, 1896, and served some 
process, and, while she did not fix the date, an attempt was 
made to show that it was on the 29th. As the court found 
against her, and she has assigned no cross errors, we would 
not consider this question, were it not that all the issues were 
found in favor of the children, from which it is argued the 
service on them was on the '29th, notwithstanding the incon- 
sistent position is taken that they were not served at all. The 
possibility that the court may have declared the judgment void 
for this reason, compels us to review this matter. The county 
court was without jurisdiction, under our statute, to try the 
case on the first day of the term imless respondents were served 
at least ten days prior thereto. If the service was in fact on 
the 29th, then the officer's return and the recitals in the order 
are untrue, the judgment was voidable, and the district court 
on direct attack could declare it void. It could, however, do 
this only upon evidence clearly establishing the untruthfulness 
of the record. No one testified that the service was on the 
29th. Plaintiffs' attempted proof consisted of, ( i ) A certified 
copy of a record kept in the sheriff's office at Colorado 
Springs, showing the summons was received and served on 
the 29th. (2) Records of a livery stable, kept in Cripple 
Creek, showing that officer Lupton, who made the service, had 
out a double team on that day from 10 o'clock A. M. to 3 -.20 
P. M. (3) Statements made by Lupton, that whatever the 
record in the sheriff's office recited, was correct. Under some 
circumstances, evidence of this character might be admissible 
for impeachment; but in the first instance an official cannot 
impeach the return he has made on a writ, by a record kept in 

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Jan., '13.] PiNNACi^ Co. V. PopsT. 465 

his office. This court has held that the return is controling, 
even over the recitals in the judgment, and if defective or 
erroneous, must be amended. It would be useless to require a 
return if it could be impeached in another trial by a record 
kept in the sheriff's office. Conceding the admissibility of a 
certified copy of such a record, it could have no greater weight 
than the original, which, while in a proper case it might be 
admissible for some purposes, could not be used primarily to 
impeach the return. There was no evidence that Lupton used 
the rig he obtained on the 29th to make this service. A sher- 
iff's return into court cannot be impeached by his oral state- 
ments afterwards any more than can the verdict of ^a jury by 
the talk of a gossiping juryman. To uphold such methods 
would open the door to fraud, and render insecure all legal 
procedure. When an officer testifies orally in support of his 
return, which has been attacked, then, upon laying a proper 
foundation, will be the time to introduce any contradictory 
records, or prove statements made by him out of court, for the 
purpose of impeaching his testimony in court. The summons 
was prepared and issued by Seeds & Parker, attorneys, Orto- 
ber 20. The return was typewritten at the same time with the 
exception and intention that the service would be made on that 
day. Judge Seeds, a witness for the plaintiffs, testified that 
the return as originally prepared in his office read: "I hereby, 
certify that I have duly served the within summons on this 
20th day of October." That as attorneys they became doubt- 
ful of their authority to issue the writ, and to be on the safe 
side, he went to Colorado Springs the night of the 20th, ar- 
riving there the morning of the 21st; had the summons issued 
by the clerk and returned to Cripple Creek that night, reaching 
there on the morning of the 22nd, when he gave it to the offi- 
cer for service. He also testified they had made arrangements 
with Mrs. Popst to have the children all at home on the 22nd, 
so they could be served. The original typewritten figures in 
the return, whatever they had been, were erased with a pen 

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466 Pinnacle Co. v. Popst. [54 Colo. 

and ink, and immediately above was written in ink, "22nd." 
It is claimed that thfe erased portion was originally "29" and 
not "20," and that the erasure arid iirterlineation of "22nd" in 
ink, constitutes an alteration or forgery made after the en- 
dorsement of the return. This is a mere conjecture, wholly 
unsupported by any evidence. The plaintiffs' own witness, 
who prepared it, testified that it was originally typewritten 
"20," exactly as in the summons, and explained the necessity 
for the change. The officer who made the service testified that 
he received the summons on the 22nd; that he went on that 
day to Mrs. Popst's home, where he found all the children and 
served them; that in making the return he erased the type- 
written figures 20 or 29, whichever they were, with a pen, and 
made the interlineation himself by writing the figures "22" 
above the erased figures, and that it was in this condition when 
he returned the writ into court. The attorneys knew that the 
service had to be made at least ten days before the 2nd day of 
November, and made a special trip from Cripple Creek to 
Colorado Springs, consuming two days and nights, for the 
very purpose of having the summons issued by the clerk 
within time, and it is unreasonable to believe that after going 
to this trouble and expense, they kept it until the 29th before 
giving it to the officer. The children were represented on the 
2nd of November by an attorney appointed by the court., and 
if the return then disclosed that the service was on the 29th, 
it is most singular that it escaped the attention of the court 
and all counsel. The district court was not justified in find- 
ing the third issue against the appellants. 

6. In the fourth issue it is contended that Dods(Mi pur- 
chased the Brindsmaid and Uncle Sam locations at the sale for 
the administrator, of which appellants had knowledge. When 
a judgment is declared void on account of the fraud of a party, 
in a suit brought for that purpose, the power of the court in 
granting relief is exerted against the wrongdoer by enjoining- 
him from collecting the judgment, or if he holds property 

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Jan., '13.] PiNNAci^ Co. V. Popst. 467 

which he has obtained uudier it, by compelliog a reconveyance. 
It acts upon his conscience. In this case that could not be 
(lone, becausje the judgment of the county court had been fully 
executed and the property had passed to third parties who had 
no part in the original transaction. The court attempted to 
afford relief to appdlejes by setting aside all the county court 
prQceedings, all the conveyances thereunder, and the United 
States patient. This was not proper. We have held many 
timps that the district court is not a court of review. The 
county court is a court of general jurisdiction, and the district 
court has ao power to review and set aside its judgment. 
Neither do we think in this case it could or should have can- 
celled the United States patient to Famsworth. If it found 
the county court proceedings were void on account of the ad- 
ministrator's fraud, of which appellants had knowledge when 
they acquired the Brindspiaid, it could have granted relief by 
ded^riog them trustees of a constructive trust, and cpnjpeUiad 
thiem to rctcoftvey the legal title to the bendiciaries. If they 
purchased the prc^rjty with knowledge of the alleged fraud, 
then they held the legal title ip trust for the equit?J)le owners. 

There has been some discussion as to whether this attack 
upon the county court proceedings on the ground of fraud of 
the adtpinistrator is direct or collateral as to aj^iellaiits. As 
to the parties to thfi county court proceedings, the attack is 
direct; but appellants' claim as to them, it is ccJli^teral. In 
support of their contention they cite Moore v. Neil, 39 111. 
256, where it is said : 

'Whpre a bill in chancery is filed to set aside an admin- 
istrator's sale, the proceedings should not, perhaps, be re- 
garded as collateral to the former $mt so far as it relates to 
the parties to that suit, but ^ to the purchasers, whose title 
derived from the sale is sought to be divested, it is as purely 
collateral as an action of ejectment" 

Also Kerr on Frauds and Mistakes, page 48, where it is 
said: 



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468 PiNNACi^ Co. V. PopsT. [54 Colo. 

"The transaction being valid until it is avoided, third par- 
ties without notice of the fraud may in the meantime acquire 
rights and interests in the matter which they may enforce 
against the party defrauded." 

And at pages 312 and 313, as follows: 

"The right to impeach a transaction on the ground of 
fraud, has no place as against third parties, who have paid 
money and acquired a legal right to property, without notice 
of the fraud. As against a purchaser for valuable considera- 
tion without notice, having the legal title, no relief can be had 
in equity. If a man has paid his money in ignorance of the 
fact that another party has an equitable claim to the pr(^)erty, 
a court of equity will not deprive him of the benefit of his legal 
title, even although his equitable claim be of later date than 
that of the other party. The rule that a man who advances 
money bona fide, and without notice of the infirmity of the 
title of the seller, will be protected in equity applies equally 
to real estate, chattels, and personal estate. The rule is sub- 
ject to no exception, even in favor of charities." 

Also sections 2 and 3 of Van Fleet on Collateral Attack, 
where it is said : A bill in equity to set aside a judgment for 
fraud, becomes a collateral attack when it sedcs to affect a 
bona fide purchaser under the judgment, that it is direct CMily 
when pursued in the time and manner provided by law 
against one who is not a bona fide purchaser. 

We do not think it makes any difference in this case be- 
cause appellees admit appellants were purchasers for value, 
and that the court could grant them no relief against appel- 
lants, unless it found they had knowledge of the fraud. The 
power to grant relief against appellants turns upon their 
knowledge of the fraud. This issue then embraces : ( i ) Proof 
of the fraud, and (2) Proof of appellants' knowledge thereof. 

Appellees admit appellants bought and paid for the prop- 
erty in good fiaith without actual knowledge of any infirmity 
in the title; but it is claimed they had constructive knowledge 

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Jan., '13.] PiNNAct,B Co. V. Popst. 469 

of the administrator's alleged fraud. Disregarding mere gen- 
eralities, the specific matters, which it is contended constitute 
constructive knowledge, are: i. Deeding the Brindsmaid 
and Uncle Sam locations to the Shurtloff Company by Ved- 
der, in which Nolon, the administrator, held stock. 2. Deed- 
ing an undivided half interest in the Uncle Sam to Nolon by 
Mrs. Vedder. 3. The relationship and association existing 
between Dodson, Nolon, Vedder, Becker and Cree. To intel- 
ligently understand this claim, one must be familiar with the 
circumstances connected with the conveyances. Prior to 
Popst's death, he and Allen each owned an undivided half in- 
terest in the locations. Dodson's title originates from two 
sources. The first is the Allen-Popst deed, in 1895, purport- 
ing to convey to him all the title in the Brindsmaid and Unde 
Sam. This chain of title runs from Dodson to N. W. Vedder, 
December 14, 1895; N. W. Vedder to King, trustee, Decem- 
ber 14, 189s ; King, trustee, to Shurtloff Company, March 3, 
1896. 

It subsequently developed that this deed in fact only con- 
veyed the Allen interest, although Vedder supposed at the 
time, that he bought all the title. He learned afterwards that 
Mrs. Popst had no authority to convey the undivided 1/4 in- 
terest belonging to the children, and that there might be a de- 
feasance of the interest of the heirs in the Popst title by an ad- 
ministrator's sale to pay debts. The title to these two loca- 
tions from this source after passing to the Shurtloff Company, 
separates, the Brindsmaid going to the appellants and the 
Uncle Sam to the Blanche Company. The second source of 
Dodson's title begins January 4, 1897, in an administrator's 
deed to the Popst undivided half interest in both locations 
which was the interest he failed to get by the Allen-Popst 
deed. From this source of title Dodson conveyed the Brinds- 
maid to the Shurtloff Company February i, 1897. This con- 
verged the chain of title to the Brindsmaid from each source, 
into the Shurtloff Company, from which it runs: Shurtloff 



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1 



470 Pinnacle Co. v. Popst. [54 Colo. 

Company to Carnduff, Feb. i, 1897; Carnduff to Famsworth, 
February 24, 1897; U. S. patent to Famsworth, June 3, 1899; 
Famsworth to Pinnack, March i, 1901 ; Pinnacle to Flying 
Cloud (a part), March 9, 1901. 

The Uncle Sam not being involved in this appeal, we 
would say nothing further about it, were it not that the con- 
tention is made that its conveyance throws light upon the 
transaction. We have already seen that the Allen title to the 
Uncle Sam, acquired by Dodson by the AUen-Popst deed, 
reached the Shurtloff Company through a conveyance irom 
N. W. Vedder. After Dodson received the administrator's 
deed conveying the Popst undivided half of the Uncle Sam, 
he conveyed this title to it, acquired through the administra- 
tor's sale, to Mrs. J. E. Vedder, wife of N. W. Vedder, April 

28, 1897, and she on the same date, deeded it to Nolon. The 
title to this Popst half interest then runs : Nolon to Creigh- 
ton, December 17, 1897; Creighton to Carltcm, October 31, 
1897; Carlton to Blanche Company, November 6, 1899. "^^ 
title to the Uncle Sam derived from the administrator's deed 
never was conveyed to the Shurtloff Company. The title 
through the Allen-Popst deed to the Allen undivided half of 
the Uncle Sam we trace to the Shurtloff Company. It then 
continues: Shurtloff Company to Mrs. J. E. Vedder, April 

29, 1899; Mrs. J. E. Vedder to Carlton, April 23. 1899; Carl- 
ton to the Blanche Company, Nbvember 6, 1899. In Septem- 
ber, 1895, Allen and Mrs. Popst deeded the Brindsmaid and 
Uncle Sam to Dodson. The evidence shows that N. W. Ved- 
der bought these locations from Dodson for $800.00, which 
he paid in currency, and that Vedder thought he owned all the 
title. Nolon, Becker and Cree owned a patented lode called 
the Shurtloff. They all entered into a mutual agreement to 
deed these claims to a corporation in which each would receive 
stock representing his interest. The Shurtloff Company was 
formed sometime in the winter of 1895-6, to which V«eddcr 
deeded the Brindsmaid and Uncle Sam, and under the agree- 

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Jan., '13.] PiNNAcus Co. v. Popst. 471 

ment received 250,000 shares of stock. Nolon, Becker and 
Cree deeded the Shurtloff lode to the Shurtloff Company un- 
der agreement, and took stock. The Shurtloff claim was a 
patented lode, beyond any annoyances of conflicts and ad- 
verses, and Vedder agreed to put his locations on an equal 
footing by patenting them and giving a clear title. If he did 
not, or if anyone became dissatisfied with his title, it was a 
part of the agreement that all the claims should be deeded back 
to the original owners. Becker, hearing of the defects in Ved- 
der's title, and rumors of adverses, became dissatisfied, and 
asked that the properties be reconveyed, which was done in 
the following manner : The Shurtloff Company deeded back 
to Nblon, Becker and Cree each an undivided 1/3 in the 
Shurtloff lode. The mere l^al title to the Brindsmaid and Un- 
cle Sam stood in the Shurtloff Company, it did not own them. 
These locations, after the agreement was rescinded, belonged 
to Vedder, and he could cause them to be deeded to whom- 
ever he pleased. He sold the Brindsmaid to the Pinnacle 
Company for $2,000.00 and caused the Shurtloff Company to 
make the deed to the purchaser. This $2,000.00 belonged to 
Vedder, and he received the money. The Shurtloff Company, 
Nolon, Becker or Cree received no part of it. Vedder then 
gave the Uncle Sam to his wife, and had the deed made to 
her. In this way all the parties to the agreement received 
their original properties. When Vedder learned the Popst 
interest in these locations was to be sold at an administrator's 
sale, he knew it would perfect his title to have Dodson pur- 
chase it, and while therfe is no evidence showing it, it is only 
natural thjlt he should want him to do so. Dodson bought 
them at a public, not a private sale, as argued, in which all 
persons had an equal opportunity to participate, and paid the 
administrator $200.00 in cash for them. Of course the pur- 
chase was intended to perfect Vedder's title. Dodson's intent 
in bidding in the property, d6es not make the sale fraudulent, 
and is immaterial. The intent with which one bids at a pub- 



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472 Pinnacle Co. v. Popst. [54 Colo. 

lie sale, ordinarily at least, cannot invalidate the sale. After 
Dodson received the administrator's deed, Vedder had him 
convey the title from this source to his wife, to perfect the title 
he had given her. Vedder owed Nolon $1,700.00, and Nolon 
agreed to cancel the debt for an undivided half interest in the 
Uncle Sam, and this was the consideration for which Vedder 
had his wife deed a half interest to Nolon. Nolon sold this 
half interest to Carlton for $2,500.00, got $500.00 in cash, 
and a note for $2,000.00, payable in one. year. Carlton pro- 
moted the Blanche Company, to which he deeded the Uncle 
Sam, and succeeded in paying his $2,000.00 note to Nolon 
with Blanche Company stock. The other undivided half in- 
terest in the Uncle Sam, Vedder sold to Carlton, to whom his 
wife deeded, and Carlton conveyed the property to the Blanche 
Company. 

The evidence only raises a suspicion that Dodson, in bid- 
ding at the administrator's sale, was purchasing for Nolon. 
The inference is drawn from the subsequent conveyance to 
Nolon and to the Shurtloff Company, in which he had stock. 
The undisputed evidence shows that Nolon was a bona fide 
purchaser of the half interest in the Uncle Sam which he 
bought from Vedder; and though he was a stockholder in the 
Shurtloff Company, he received no interest in the Brindsmaid, 
and no part of the consideration for which it was sold. When 
these matters of suspicion and inference are explained by the 
undisputed evidence, any presumption of knowledge arising 
from the conveyances, vanishes. If the Shurtloff Company in 
fact owned the Brindsmaid and sold it to the Pinnacle Com- 
pany for $2,000.00, which was paid to the Shurtloff, it seems 
as though it would have been impossible to so cover up the 
transaction, that no evidence of it could have been discovered. 
Appellees produced no other evidence; but rested this issue 
solely upon the inference arising from the conveyances, and 
then themselves destroyed the inference by oral testimony. It 
is claimed in argument that these parties were all partners in 



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Jan., '13.] -PiNNACi^ Co. V. Popst. 473 

the Nolon club room, which circumstances makes the transac- 
tion look suspicious. The evidence shows that Nolon was the 
owner of the club room ; that Vedder worked for him on a per- 
centage, and that none of the others had any interest in it. 
Dodson, when he first bought the locations, was not working 
for Nolon as claimed, and scarcely knew him. Nolon, Becker 
and Cree were not partners in any business. They owned the 
Shurtloff lode together, but that could not be called a partner- 
ship. Appellants were purchasers for value, and while the law 
is, if the administrator's fraud, of which they had knowledge 
when they bought the property, vitiated the sale, equity will 
bind their consciences and declare them trustees of a construc- 
tive trust, and compel them to re-convey, appellees failed to 
sustain this issue. Appellants paid $2,000.00 for the property 
in good faith, after diligently investigating the title. They 
had no actual knowledge of the alleged fraud from any source. 
If we concede the administrator's alleged fraud, appellees are 
without relief against appellants, unless the evidence satisfac- 
torily shows they had constructive knowledge; that is, infor- 
mation which if pursued vith reasonable diligence would have 
led to actual knowledge. It will not be presumed that any rea- 
sonable investigation appellants mjght have made would have 
led them to the discovery of any more or different knowledge 
than appellees proved on the trial in attempting to establish 
constructive notice. If the court found the fourth contention 
in favor of appellees, it was not warranted by the evidence. 
The judgment will be reversed and the cause remanded. 

R^ersed, 

Mr. Justice Gabbert and Mr. Justice White concur. 



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474 -A.I3I Co. V. Denver. ' [54 Colo. 

[No. 7105.] 

Albi Mercantile Comfany v. The City and County of 
Denver et al. 

1. Denveb — Vacating Street for Viaduct — Effect — ^Under sec. 297 
of the charter of Denver the fee in a street vacated for the construc- 
tion of a viaduct remains in the city. It does not revert to the owner 
of the putting property. 

2. Injunction — To Restrain Fu&Kc Work — The city of Denver 
has the unquestionable right to construct or cause to be constructed 
In the public streets, viaducts and approaches thereto. That a stmc- 
ture» erected under proper legislative and municipal authority may so 
interfere with the access to private property as to entitle the owner 
to compensation dO|^s not afford him an injunction to restrain the 
erection of it until compensation is made. 

Error to Denver District Coi^rt, — Hon. George W. Al- 
len, Judge. 

Messrs. Stark & Martin, for plaintiffs in error. 

Messrs. Hughes & Dcmissy and Mr. E. I. Thayer, for 
Union Pacific Railroad Company and The Denver, North- 
western & Pacific Railway Company. 

Mr. E. E. Whitted and Mr. Robert H. Wii>DicoMBfi» 
for Chicago, Burlington & Quincy Railroad Company and 
The Colorado & Southern Railway Company. 

The city and county of Denver entered into a contract 
with its co-defendants in error to construct what is commonly 
known as the Twentieth street viaduct, with an approach on 
Delgany street, which runs at right angles to Twentieth street. 
Plaintiff in error owns a lot abutting on Delgany street in 
front of which the approach on the latter street is constructed. 
On this lot a two-story building was located, in which plaintiff 
in error conducted a wholesale and retail mercantile business. 



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Jan., '13.] Albi Co. v. Denver. 475 

Prior to the construction of the approach the plaintiff in error 
brought suit the purpose of which was to enjoin the defend- 
ants from constructing it. To the complaint the defendants 
demurred, on the ground that it did not state facts sufficient to 
constitute a cause of action, or to entitle the plaintiff to equit- 
able relief, or to any such relief as was sought and prayed for. 
This demurrer was sustained and plaintiff having elected to 
abide by its complaint, its action was dismissed. To review 
the ruling on the demurrer and the judgment rendered, plain- 
tiff has brought the case here on error. 

The complaint, so far as material to consider, in addition 
to the facts above narrated, alleges that the charter of the city 
and county of Denver provides that a viaduct shall not be 
constructed unless the council shall have first provided for the 
vacation of such portion of the street upon the completion of 
the viaduct over and along which the viaduct is proposed to 
be constructed. The charter provisions upon which this alle- 
gation is based is section 297 of the charter, which is set out 
haec verba in the complaint, and provides that the article of 
which it is a part shall not affect the power of the council to 
require railroad companies to construct viaducts and ap- 
proaches over their tracks at their expense, and may direct 
such construction by ordinance. It also contains the follow- 
ing: "Provided, that no viaduct, bridge or tunnel shall be 
constructed under this section, unless the council shall have 
provided for the vacation of the street upon the completion of 
such viaduct, bridge or tunnel, throughout that portion thereof 
over, along or under which said public improvement is pro- 
posed to be constructed, the fee of the street to remain, never- 
theless, in the city and county." The complaint then alleges 
that the city and county of Denver entered into the contract 
mentioned without having first provided for the vacation of 
Delgany street; that since entering into this contract wkh its 
co-defendants it has vacated that portion of Delgany street in 
front of plaintiff's premises by placing a fence across the street 

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476 Ai^i Co. V. Denver. [54 Colo. 

at Twentieth, and also at Twenty-first street, wherd)y the pub- 
lic and plaintiff are prevented frcxn the use of that portion of 
Delgany street between such fences. Facts are then alleged 
from which it appears that the portion of Delgany street in- 
volved had been dedicated for use as a public street about 
1873. It is then charged that by reason of the acts of the 
city and county of Denver, in fencing the portion of Delgany 
street mentioned, it has vacated that portion thereof, and that 
the title to that portion of the street, to its centre, in front of 
plaintiff's premises has reverted to it, and that it now owns the 
fee thereof. It is alleged that defendants are engaged in con- 
structing the approach on Delgany street; that thereby they 
have unlawfully entered upon the property of plaintiff; that 
if the construction of the approach is permitted, it will be im- 
possible for any one to reach and enter plaintiff's place of busi- 
ness; that the light for its building will thus be obstructed; 
and (quoting from the complaint) "That the acts and con- 
templated acts on the part of the defendants and each of them 
constitutes a taking and damaging of private property for 
public and private use without just compensation, and with- 
out any attempt upon the part of the defendants, or any of 
them, to make any compensation whatever therefor; that no 
condemnation proceeding has been instituted, nor any steps 
taken for the purpose of ascertaining and paying to plaintiff 
the damages which it will sustain ; that unless defendants are 
restrained from this unlawful taking and damaging of plain- 
tiff's property and business, in violation of its rights under the 
constitution of this state, this plaintiff will suffer great and 
irreparable loss, damage and injury; and that it has no ade- 
quate and complete remedy at law." 

The complaint concludes with a prayer that a temporary 
writ of injunction issue, restraining defendants from taking 
possession of plaintiff's property, or in any wise interfering 
with the possession thereof; "and from building or construct- 
ing or attempting to construct and build said viaduct and ap- 



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*^oogle 



Jan., '13.] A131 Co. V. DiSNV^. 477 

proach over and upon plaintiff's property, and that upon final 
hearing, such injunction be made permanent; and for such 
other and further orders and relief as plaintiff may show itself 
entitled to, and for costs of suit." 

Mr. Justice Gabbert delivered the opinion of the court : 
The complaint appears to be framed entirely upon the 
theory that the portion of the street in front of plaintiff's 
premises was vacated or abandoned; that for this reason the 
fee of the ground in front of its premises to the centre of the 
street reverted to it, and the approach is, therefore, being con- 
structed upon its land, without provision having been made 
for compensating it for the value of the land taken, and re- 
sulting damages. This theory is not tenable. If the street 
was vacated as claimed, the purpose of so doing was to comply 
with the charter provision requiring the city authorities to 
provide for the vacation of the portion of the street over and 
along which the approach would be constructed. This, how- 
ever, did not vest plaintiff with the fee of the street, as 
claimed, for the reason that, according to the express provi- 
sion of the charter the fee of the street, nevertheless, remained 
in the city ; so that it is evident property belonging to the plain- 
tiff would not be taken by the construction of the approach. 
The erection of this structure may have so impaired its ingress 
and egress as to entitle it to compen^tion for the injuries thus 
occasioned, but this right does not entitle it to an injunction 
under the averments of its complaint restraining the construc- 
tion of the approach until such compensation has been paid. 
This proposition is so well settled in this jurisdiction that fur- 
ther discussion of it is unnecessary. In brief, where the fee 
of an abutting lot owner is not sought to be taken, he cannot. 

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478 Ai^Bi Co. V. Denver. [54 Colo. 

Under the constitution or under the statute of eminent domain, 
enjoin the construction of a viaduct or its approach on a street 
in front of his lot merely because the damages to his premises 
thus occasioned are not compensated in advance, provided the 
structure is being erected under proper legislative and munici- 
pal authority. — Denver & S. F. R, Co. v. Domke, 11 Colo. 
247; Denver, U. & P. Ry. Co. v. Bcarsloux, 15 Colo. 290; 
Haskell V. Denver Tramway Co., 23 Colo. 60. 

As was said in the case last cited, the plaintiff has mis- 
taken its remedy. The above cases, it is true, relate to the 
construction of railroad and street-car tracks, but the principal 
upon which they were decided is identical with the one appli- 
cable to the case at bar. The city has the unquestioned right 
to construct viaducts, or provide for their construction and 
approaches thereto. This is a lawful exercise of its authority 
which will not be interfered with by injtmction, although prop- 
erty owners abutting a street upon which a viaduct or ap- 
proach is constructed may have a right of action for damages. 

The judgment of the district court is affirmed. 

Judgment affirmed. . . 

Chief Justice Musser and Mr. Justice Hiuu concur. 



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Jan., '13.] Victor v. Smilanich. 479 

[No. 7406.] 

City of Victor v. Si^iianich. 

1. Witness — Competency — Infant — Under Rev. Stat., Sec. 7273, 
not all children under ten years of age are made incompetent as wit- 
nesses, but only such as "appear incapable of receiving just impres- 
sions of the facts respecting which they are examined, or of relating 
them truly." The question of the competency of the child is addressed 
to the sound discretion of the trial court, and its determination will 
not be disturbed unless it appears from the examination of the child 
on the voir dire, or from his testimony, that the court clearly abused 
its discretion. Where it appeared that a boy of six and a half years 
understood that he was required to tell the truth, and could be pun- 
ished if he did not, that he had a fair understanding of the obligation 
of an oath, and of the facts which he detailed, heldy that no abuse 
of discretion was committed in receiving his testimony. 

2. Evidence — Te9tiinony of Witness Indirectly Contradicted — The 
positive testimony of a witness is not necessarily accepted as true, 
merely because not directly contradicted. The contradiction may be 
by circumstances, or by the testimony of another witness, inconsistent 
-with that of the first. In such case the court or jury may exercise a 
judgment as to the probative effect of the evidence. Where such con- 
flicting testimony appears upon the whole record to justify a well 
grounded inference by reasonable men, the question in dispute should 
be left to the jury. 



Appeal from Teller District Court. — Hon. John W. 
Sheafor, Judge. 

Mr. Edward J. Boughton and Mr. W. Nl. Avt^&, for 
appellant. 

Mr. J. E. F^GUSON and Mr. Wm. Metjjn^ for appellee. 

Appellee, as plaintiff, by his next friend brought suit 
against the city of Victor to recover damages sustained by the 
alleged negligence of the latter. The trial resulted in a ver- 
dict and judgment in favor of plaintiff, in the sum of $7,500^ 
from which the defendant has appealed. 

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480 Victor v. Smii^nich. [54 Colo. 

The complaint alleged, in substance, that plaintiff, at the 
time the injury was sustained, was about four and a half years 
of age; that at this time the city was engaged in extending its 
municipal water system by constructing a ditch through the 
residence district adjacent to the city, employing laborers for 
that purpose, who, with tools and explosives, were removing 
rock and soil from the ditch; that plaintiff resided with his 
parents in the vicinity of the ditch; that many other small 
children resided in the same neighborhood; that defendant's 
employes engaged in excavating the ditch, carelessly and n^li- 
gently permitted a box of explosive caps, intended to explode 
with great force when struck with a hard instrument, to re- 
main where the children of the neighborhood, including plain- 
tiff, could gather them up ; that these caps were of an attrac- 
tive appearance, and enticing to plaintiff as play-things; that 
plaintiff and one of his play-mates, by the name of Willie 
Vranesich, not knowing the dangerous character of the caps, 
and having access thereto, took a number of the caps; that 
plaintiff held one of them in his hand, and Willie, not know- 
ing the danger to which he and the plaintiff were exposed, 
struck the cap with a rock, causing it to explode, whereby 
plaintiff was grievously injured, in particulars specified. 

For answer the defendant, so far as material to consider, 
denied the n^ligence charged; that is, denied that its em- 
ployes negligently and carelessly left explosive caps where 
plaintiff and other children would have access to them. 

The evidence established that plaintiff, at the time of his 
injury, was of the age charged in the complaint, and that his 
play-mate, Willie, was about six years of age ; that Peter was 
injured by the explosion of a cap commonly used to explode 
giant powder, and. that thereby his right hand was torn from 
his wrist, the bone in the thigh of his right leg broken, and his 
flesh and muscles badly lacerated. The evidence further es- 
tablishes that defendant was engaged in excavating the trench 
for Its water works system, and that m prosecuting this woric. 

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Jan., '13.] Victor v. Smii^nich. 481 

its employes used explosives, including caps of the character 
in question, for the purpose of exploding giant powder, and 
that such caps will explode when struck by. a hard substance. 
It also appears that part of this work was being done by con- 
tractors, who had contracts from the city, and gratuitously by 
owners of property in the vicinity, all of whom used explo- 
sives, for whose conduct, however, the defendant was not re- 
sponsible. The tools and explosives iised by the employes of 
the city were kept in a shed near the residence of the parents 
of Peter, which was kept locked, the key being carried by one 
of them. Peter's mother testified that on the day her boy was 
injured, and shortly before the injury, she heard shooting in 
the trench. The employes of the city were engaged in work- 
ing in the ditch at this time. These parties admitted that they 
kept explosives in the shed mentioned, which were used in ex- 
cavating the ditch; that a few days prior to the time Peter was 
injured, they had brought to their work a roimd tin box about 
two-thirds full of caps. A fiillbox contains 100 caps. There 
was testimony to the effect that other parties who had been 
engaged on the ditch, either 3S contractors or on their own ac- 
count, had completed their work nearly a month previous to 
the injury, and that they had not left any capfe on the work. 

Willie was called as a witness for the plaintiff, and over 
the objection of the defendant, was permitted to testify. The 
objection urged was his iage, which, at the time of the trial, 
was about six and a half years. On his voir dire he was ex- 
amined by counsel for both sides, and by the court, by a line 
of questions intended to elicit his understanding of the obliga- 
tions of an oath, and also his ititelligence, after which the ob- 
jection was overruled. From thi3 examination it appears he 
had some idea of the obligation of an oath; that he under- 
stood he could be punished if he did not tell the truth; and 
that he was fairly intelligent for a boy of his age. He testi- 
fied that he and Peter found the caps in a tin box just outside 
the door of the shed, where the tools and explosives were kept 

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4&2 Victor V. Smii^nich. [54 Colo. 

by the city's employes engaged on the ditch, and just prior to 
the time Peter was injured, and that Peter held one of the 
caps in his hand, which the witness struck with a rock. 
Shortly after the explosion about thirty-five caps were taken 
from Willie's pocket, which he said he found in the box at the 
door of the shed, and quite a number were found on the 
ground in the immediate vicinity of where the injury occurred. 
This witness further testified that he never got caps out of an 
empty house, nor from under the sidewalk, and that all the caps 
he ever got, he took from the box by the door of the shed. 
There was also testimony tending to prove that Willie could 
not have secured the caps about the residence of his parents, 
as explosives were not kept there. It appears that the em- 
ployes of the city could not have used, in the prosecution of 
their work, but a few caps each day. One of the employes of 
the city testified that there were no caps in the shed on the day 
Peter was injured; that neither he nor his co-employe used 
any explosives on that day ; and that he did not leave any caps 
lying around, or the box containing the caps, at the door of 
the shed ; and that three days before he had taken the unused 
caps to his house The testimony of the other employe was 
to the same effect. 

At the conclusion of the testimony on the part of plain- 
tiff, a motion for a directed verdict was inteiposed by the de- 
fendant, which was overruled. A similar motion was inter- 
posed by defendant at the time the testimony on both sides 
was concluded, which was, also, denied. After the verdict the 
defendant made a motion for a new trial, and also for a judg- 
ment fion obskmte verdicio, both of which were overruled. 

Mr. Justice Gajbbert delivered the opinion of the court : 

The contention of counsel for the city is ( i ) that Willie 
should not have been permitted to testify; and (2) that the 
evidence is insufficient to sustain the verdict, because it fails 
to establish negligence: of the city. 

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Jan., '13.] Victor v. Smiuanich. 483 

Our statute, section 7273, R. S. 1908, provides that 
"children under ten years of age who appear incapable of re- 
ceiving just impressions of the facts respecting which they are 
examined, or of relating them truly/' shall not be witnesses. 
This provision does not apply to all children under ten years 
of age, but only to those under that age who "appear incapable 
of receiving just impressions of the facts respecting which 
they are examined, or of relating them truly." This language 
clearly implies that the competency of a child as a witness 
under the prescribed age, is a question addressed to the sound 
discretion of the trial court to determine. When, therefore, 
the trial court has determined this question, it will not be dis- 
turbed on review, unless it appears from the examination of 
the child on its voir dire, or its testimony, that the trial court 
clearly abused its discretion. — State v. Blythe, 58 Pac. (Utah) 
1 108; People V. Sivisty 69 Pac. (Cal.) 223; Wheeler v. United 
States, 16 Sup. Ct. Rep. 93 ; State v. Junecni, 59 N. W. (Wis.) 
580; People V. Walker, 71 N. W. (Mich.) 641. 

From the record before us, it appears the boy understood 
that as a witness he was required to tell the truth; that he 
could be punished if he did not, and that he had a fair under- 
standing of the obligation of an oath, and the facts, which he 
detailed ; and hence, it does not appear the trial judge abused 
his discretion in permitting him to testify. The credibility of 
the boy as a witness and the weight to be given his testimony, 
considering his age, was for the jury to consider and deter- 
mine. 

The vital question of fact in the case was, whether the 
caps which the boys secured were left by the employes of the 
city at the door of the shed. Counsel for defendant insist this 
must be resolved in favor of the city, for the reason that the 
testimony of its employes, to the effect that they did not leave 
them there or at any place where the boys could have access 
to them, was not contradicted or impeached. The sufficiency 
of the evidence to justify the submission of the case to the 

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484 Victor v. Smii^nich. [54 Colo. 

jury was determined by the trial court contrary to the con- 
tention here, by overruling a motion of defendant for a di- 
rected verdict at the conclusion of the plaintiff's testimony, 
and by also overruling a similar motion when all the testimony 
was in. The jury resolved the fact in dispute in favor of the 
plaintiff, and the trial judge refused to disturb this finding by 
overruling a motion for a new trial, and a motion for a judg- 
ment non obstante verdicto. 

There is testimony that the caps were found by the boys 
at the door of the shed in which the city's employes stored ex- 
plosives used in excavating the ditch, and the jury must have 
found this to be the fact. The employes say they did not leave 
them there; and although this testimony is not directly con- 
troverted, the jury must have determined they did, and the 
trial judge has ruled that the evidence was sufficient to not only 
submit this question to the jury, but also sufficient to justify 
this finding of fact by them. It does not always follow that be- 
cause positive testimony of a witness is not directly contro- 
verted that a jury must treat such evidence as true. A witness 
rriay be contradicted by circumstances, as well as by statements 
of others contrary to his own. In such cases neither courts 
nor juries are bound to refrain from exercising their own 
judgment as to the probative value of his testimony. — 30 
Ency. 1068. There is testimony that the caps were found by 
the boys in a box corresponding with the one which the em- 
ployes admitted they purchased containing caps. The number 
of caps in this box, bearing in mind that thirty-five were found 
in Willie's pocket which he says he took out of the box, with 
the number found on the ground immediately after the explo- 
sion, tallies approximately with the number not used. There is 
testimony that the employes were using explosives the morn- 
ing of the injury, although they deny it. The caps were found 
where they might have been placed, and inadvertently left, in 
unlocking and locking the door of the shed. There is evidence 
that all the explosives used by others in excavating the ditch 
had been removed about one month previous to Peter's injury. 

Digitized byLjOOQlC 



Jan., '13.] Victor v. Smii^nich. 485 

These are circumstanc