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Digitized by VjOOQIC

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

Digitized byCnOOQlC

SEP 26 1913

Digitized by VjOOQIC

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.

Digitized byCnOOQlC

Digitized by VjOOQIC

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

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

Daviaon ats. Nutt

586

Denver ats. Albi Co.

474

Denver Co. v. Gast

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

First District

Sixth District

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

Digitized byLjOOQlC

Table of Cases Reported.

In re Smith

486

Interrogatories of Senate, In

166

Johnson ats. Montezuma Dis-

trict

400

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

McDonough ats. Denver &c. Co.

515

McGovem v. Denver

411

McMurtry Co. ats. Barrows

432

Marks v. Morris

186

Meyer ats. Denver

Mitsunaga v. People

102

Montezuma District v. Johnson

400

Montezuma District v. Longen-

baugh

391

Morris ats. Marks

186

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

Digitized by VjOOQIC

Table of Cases Reported.

Wood ats. Elder

236

Van Gordor y. Van Gtordor

Wunderlich ats. PuUen

349

Victor V. Smilanich

479

Young y. People

293

Walker ats. Ayres

671

York ats. Satisfaction Co.

566

Williflon V. CJooke

320

Wilson ats. Uniyersity of Colo-

rado

510

Zehr ats. Empire Co.

185

Wolfe y. Abbott

531

Zobel ats. People

284

Digitized by VjOOQIC

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

Digitized by VjOOQIC

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
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

Digitized by VjOOQ-IC

TabIvE of Cases Cited.

Dixon V. People ex rel.

Dobscliurtz V. Holllday

528

Donald v. Bradt

351

Donnell v. Hearn

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

162

Edwards v. State

282

Elder v. Denver

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

522

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

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

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

Forsyth v. Mann

France v. Geryot

319

French v. People

260

French v. Woodrutf

Friend v. Rolston

508

Fulgham v. State

345

Funkhouser v. Wagner

G
Gaar v. Fleshman

588

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

Digitized by VjOOQIC

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

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

Digitized by VjOOQIC

Tabub of Cases Cited.

Magee t. Big Bend Co.

46q

N
Nangle v. Mullanny 35, 36, 37

Magnes v. Sioux City Co.

National luel Co. v. Green

319

Mallan v. May

441

Marean v. Stanley

isd

National Co. v. Seidel

586

Marey, Estate of.

National Bank v. Town

536

^.lather v. Mather

i^ational Co. v. Union HospiUl

May V. People

3li

Co.

441

Mead y. Case

Neilson v. Iowa Co.

153

Meagher Co. v. Cowing

Nelson v. Chittenden

350

Meincke v. Falke

New England Trust Co. v.

Menzel v. Tubbs

148

Elaton

Meyer Bros. Co. v. McKinney

Newgass v. Railway Co.

410

Miller V. Fries

508

New Mercer Co. v. Armstrong

232

Miller v. Hallock

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

Northerni Trust v. Sears

260

Mitchell V. LeClalre

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-

Omberry v. Jones

526

son

14g

Opinions of Justices 180,

181

Moore v. Bonnett

444

Orahood v. Denver

Moore v. Camden Works

Oregon Co. v. Winsor

441

Moore V. Neil

460

Outcalt V. Appleby

Moore v. Potter

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

Mott V. Ackerman

Parker v. Schenck

Mott V. Scott

Parker v. Seeley

Mow V. People

110

Parsons v. Winslow

Mullanny v. Nangle

Passaic v. Patterson Co.

329

Mullen y. McKim

108

People V. Butts

424

Mullin V. People

298

People V. Cassiday

Munson v. Marks

186

People V. Cobb

607

Murphy v. Carlin

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

Murray v. Johnson

129

People V. Cornforth

176

Digitized by VjOOQIC

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

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

Rice V. Rhone

164

Rico Co. V. Musgrave

318

583

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

317

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

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

607

Russell V. Stevenson

551

327

Rutherford v. State

198

, 21

Ryan v. People

108

600

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

Bouscher

149

111

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

551

Bank

551

St. Louis V. Hill

330

127

oalter v. Hilgen

460

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.

600

Scott V. Tubbs

382

575

Scott V. West

Secor V. State

424

600

Senate Bill No. 65, In re Con-

stitutionality of, 169,

170

110

Senate Resolution on Irriga-

424

tion, In re

170

Senate Resolution No. 10, In

522

170

102

Shapter's Estate, ^n re

, 63

Shattuck V. Wrought iron Co.

381

180

Shawhan v. Van Nest

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Tabub of Cases Cited.

Shell's Estate, In re

Bhermaa v. Loman

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

Snodsrass v. Snodgrass

607

Soden v. Murphy

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.

State V. Ross

304

SUte y. Sanlee

262

State ex reL v. Street Ry. Co.

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

Sturzebecker v. Inland Co.

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

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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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

Wright y. Whiting

508

521

Wyman y. Felker

483

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

Digitized byLjOOQlC

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

Digitized byLjOOQlC

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 :

Digitized by VjOOQIC

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

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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*^oogle

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-

Digitized by

*^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.

Digitized by VjOOQIC

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.

Digitized by VjOOQIC _^^

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.'

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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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*^oogle —

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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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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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.

Digitized by VjOOQIC

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.

Digitized by

*^oogle

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*

Digitized byLjOOQlC

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-

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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

Digitized byLjOOQlC

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.

Digitized byLjOOQlC

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

Digitized byLjOOQlC

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.

Digitized by VjOOQIC

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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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

Digitized by V^OOQlC

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

Digitized by V^OOQlC

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.

Digitized by VjOOQIC

;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

Digitized by V^OOQlC

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

Digitized by VjOOQIC

^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.

Digitized by VjOOQIC

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

Digitized by VjOOQIC

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 ;

Digitized by VjOOQIC

. 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

" Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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 :

Digitized by VjOOQIC

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

Digitized by VjOOQIC •'

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

Digitized by VjOOQIC

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-

Digitized by CjOOgle ]

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.

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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

Digitized byLjOOQlC

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

Digitized by V^OOQlC

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>

Digitized by LjOOQiC

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.

Digitized by VjOOQIC

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

Digitized byLjOOQlC

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

Digitized by VjOOQIC

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-

Digitized by V^OOQlC ^_^

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

Digitized by VjOOQIC ^_^

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.

Digitized by VjOOQIC

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

Digitized byLjOOQlC

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-
Digitized byLjOOQlC

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.

Digitized by VjOOQIC

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

Digitized byLjOOQlC

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-

Digitized by

*^oogle

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

. Digitized by VjOOQIC

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

Digitized byLjOOQlC

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.

Digitized by VjOOQIC

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.

Digitized by LjOOQIC

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.

Digitized by VjOOQIC

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

Digitized byLjOOQlC

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

Digitized by VjOOQIC

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.

Digitized by VjOOQ IC

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

Digitized by VjOOQIC

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

Digitized by VjOOQIC

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-
Digitized by V^OOQlC

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

Digitized by

*^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

Digitized byLjOOQlC

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,

Digitized byLjOOQlC

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

Digitized by V^OOQlC

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-

Digitized by V^OOQlC

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

Digitized byLjOOQlC

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-

Digitized byLjOOQlC

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-
Digitized byLjOOQlC

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

Digitized byLjOOQlC

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

Digitized by LjOOQIC

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

Digitized by VjOOQ IC

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

Digitized byLjOOQlC

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

Digitized byLjOOQlC

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.

Digitized by VjOOQIC

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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LjOoqIc

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.' "

Digitized by VjOOQIC

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,

Digitized by LjOOQIC

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.

Digitized by VjOOQIC

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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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

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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.

• Digitized by VjOOQ IC

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

Digitized by V^OOQlC

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-

Digitized by

*^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.

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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

Digitized by VjOOQIC

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.

Digitized by VjOOQIC

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

Digitized byLjOOQlC

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 circumstances tending to contradict the positive tes-
timony of the city's employes, for the reason that from the tes-
timony, as a whole, they tend to prove that the caps the boys
found belonged to the city, and that it was not altogether im-
probable they had been left (no doubt, inadvertently,) at the
door of the shed by the employes of the city, as no one else
would have been likely to leave them at that place. When cir-
cumstantial evidence is of a nature from which it can be rea-
sonably inferred that it contradicts the direct and positive tes-
timony of witnesses, it is the province of the jury to deter-
mine the weight to which such evidence is entitled. — United
States V. Pacific Express Co., 15 Fed. 867. In many instances
evidence to establish a fact is circimistantial. If it is of suffi-
cient strcngfth and force, considering the surrounding circum-
stances and conditions, to justify a reasonable and well-
grounded inference, by reasonable men, that the fact in dis-
pute is thus established, the question should be left to the jury
to determine. — C. & P. Lumber Co, v. D. & R. G. R. R. Co,,
17 C6I0. App. 27s ; Colo. Midland Ry. Co, v. Snider, 38 Colo.

351.

Tested by these rules, we think the trial court was right
in submitting the question of the allied negligence of the em-
ployes of the city to the jury to determine; and that their find-
ing- on the subject is justified by sufficient substantial evidence
to sustain it.

The judgment of the district court is affirmed.

Judgment affirmed.

Chief Justice Musser and Mr. Justice Hnx concur.

Digitized by VjOOQIC

486 In Re Smith. [54 Colo.

[No. 7512.]

In Re Smith et als.

Contempt — Application for Change of the Trial Judge— In an ap-
plication for a change of the trial judge the facts upon which the
alleged hias of the judge then presiding is predicated, must be set out
This is not a contempt, unless it is established by evidence that such
statement of facts was made with the reckless disregard of the truth,
or with the intention to reflect upon the honor, integrity, and char-
acter of the judge.

A conviction of contempt in such case, without evidence, where
the language of the application is not contemptuous per se is error.

Error ta Adams District Court, — ^Hon. Charubs Mc-
Call, Judge.

Mr. N. Walter Dixon, attorney for respondents.

The purpose of this proceeding is to review a judgment
of the district court adjudging Smith, Nordloh and Morris
guilty of contempt. The history of the proceedings which
culminated in this judgment, is substantially, as follows :

An action was pending in the district court of x\dams
county against a former judge of that county to recover a
considerable sum which, it was alleged, he had collected and
retained in excess of the fees allowed by law. Smith, as at-
torney for the Board of County Commissioners of Adams
county, who had instituted this action, appeared before the
judge of the district in which that county is located, and
stated that the commissioners thought he was biased ; that they
did not want to file a formal application ; that the friendly re-
lations between the bench and bar required that a matter of
this kind should first be suggested to the court, and the court,
if possible, induced to act without a formal showing; that he.
Smith, as attorney tor the board, hoped he would be relieved
of the necessity of making a formal showing, and that the re-

Digitized by VjOOQIC

Jan., '13.] In Re Smith. 487

quest for another judge to try the case to which reference has
been made would be granted on the oral statement, that the
board felt the judge was biased; that he understood that if the
court required a motion to be filed, it would be necessary to
set forth in detail the matters which gave rise in the minds of
the commissioners to a belief of Was, which they did not want
to do, unless required to make a formal showing. The judge
declined to entertain the matter c«i suggestion, and stated that
a formal showing would have to be made. Thereupon Smith,
as counsel for the Board of County Commissioners, presented
to the judge a motion for a change' of venue in the case, which
was verified by Nbrdloh and Morris, members of the board of
county commissioners of Adams county. Smith had not dis-
closed the contents of this motion, nor the affidavit supporting
it, to the attorneys for the defendant, and stated that if the
judge would read the same, he believed it would recall to his
mind a number of matters that, possibly, he had forgotten, and
the court would grant the application for another judge, with-
out counsel formally filing it. The judge declined to read the
application, and ordered that a copy be served on the attorneys
for defendant in the action mentiowed, and stated that he
would hear the application on a date then fixed. On this date
the judge asked respondent Smith if he had any matters tp
present, when Smith stated he desired to urge the application
for the calling in of another judge to try the case; that he sup-
posed His Honor had read the motion, to which the judge
stated, in substance, that he had not, and that if Smith had
anything to present, he would have to prjesent it in a formal
way. The rei^^^ndent then asked the judge to giye him the
motion, which had been in his possession since iit was first pre-
sented, and thereupon read the aj^ication to the court, in a
respectful manner. When he had ;^ished reading the motion,
the court promptly denied the application, and thereupon ap-
pointed Mr. HilUard, an attorn^, to prepare siad 6}c an affi-
davit, setting out all the facts in relation to the application for

Digitized by VjOOQIC

488 In Re Smith. [54 Colo.

another judge, so that the court might, upon examinatioii,
determine if the apphcation were contemptuous. Mr. Hilliard
did so, and later filed an information and affidavit against the
respondents for contempt. This information and affidavit
contained a copy haec verba of the motion and affidavit, set-
ting out in detail the matters upon which the board relied in
support of its application for some judge other than the judge
of the district to try the case against the county judge. We
do not deem it necessary to set out this motion, and affidavit,
in detail, it being sufficient to say that, in our opinion, it did
not contain any matters, statements or charges which were
contemptuous per se.

The information filed by Mr. Hilliard stated that the affi-
davit of the respondents to which we have referred was de-
signed, intended, and calculated to incite public contempt for
the court, and of the judge thereof, and for the purpose of
leading the people to distrust the fairness and impartiality of
the decisions of the court, and that, save and except certain
matters, it was false, unwarranted, unfounded, and wickedly
and maliciously intended to, and constituted, an attack upcm
the honor, int^rity and purity of the court and judge thereof.
Upon the filing of this information a citation was issued, re-
quiring respondents to show cause why they should not be ad-
judged guilty of contempt.

At the time fixed in the citation the respondents appeared
and filed two motions, one to quash the information and affi-
davit, and the other to quash the citation, both of which were
overruled. Respondents then answered, wherein they set out,
more in detail, the matters relied upon and stated in their
affidavit in support of the application for another judge to
try the case in which it was filed. This answer is quite long,
and contains nothing which, in bur opinion, would constitute
contempt per se. In this answet the following appears:

"Your respondents respectfully show to the court fur-
ther, in answer to the statement contained in the alleged affi-

Digitized by VjOOQIC

Jan., '13.] In Re Smith. 489

davit and information filed by Benjamin C. Hilliard, that said
motion was not filed for any unworthy purpose whatever, nor
for the purpose of intimidating or coercing the court or the
judge thereof, in the decision of the suit wherein said motion
was filed, nor was the same wickedly or maliciously filed, nor
was it made, sworn to, or filed for the purpose of reflecting
upon said court or judge, or bring it or him into contempt or
disrepute, nor for any purpose other than, your respondents
all^e, properly and in accordance with the law and practice of
the court, presenting honestly and in good faith facts neces-
sary to be detailed in order to support their showing that, in
their opinion, the judge of this court was biased in said
cause."

They further stated that they believed the facts stated in
their motion to be true, and believed the conclusion they drew
therefrom, that the court was biased, was true, and justified
by the facts within their knowledge.

It further contained a recitation of the steps taken by Mr.
Smith in applying to the judge for another judge to try the
case, as above set out. This answer was duly verified. There-
upon Mr. Hilliard, on the information filed by him, and the
answer of respondents, moved that they be adjudged guilty
of contempt and punished accordingly. This motion was sus-
tained, and judgment rendered finding respondents guilty of
contempt, and as a punishment, assessed a fine against each of
them, and also that they be confined in the county jail at hard
labor for periods ranging from five to fifteen days.

Mr. Justice GabbERT delivered the opinion of the court :

It will be observed that the judgment of which plaintiflFs
in error complain is based entirely upon the pleadings. To
properly present the application for another judge to try the
case in which the application was filed, it was necessary, in
order to comply with the decisions of this court, for counsel
representing the members of the board of county commission-
ers to set out the facts in detail upon which the alleged prej-

Digitized by VjOOQIC

490 In Re Smith. [54 Colo.

udice and bias of the judge of the district was predicated. —
Thomas v. People, 14 Colo. 254. Doing so did not constitute
a contempt per se when it appears, as we have stated, that the
statements made in the affidavit supporting the application
were not of a character which could be r^arded as con-
temptuous,— Mullin V. People, 15 Colo. 437; so that these
statements would not constitute a contempt imless it was es-
tablished by evidence that they were made with a reddess dis-
regard of the truth, or with the intention to reflect upon the
honor, integrity and character of the judge. It was, there-
fore, necessary to inquire and ascertain the meaning and in-
tention of the respondents in making the statements in the ap-
plication upon which the proceedings were based. — Thomas
V. People, supra; Mullin v. People, stCpra.

As preliminary to this procedure, the affidavit of Mr. Hil-
liard appended to the information charged that these state-
ments in particulars were false, unwarranted and wickedly
and maliciously intended to constitute an attack upon the
honor and integrity of the court. Had evidence been pre-
sented establishing these allegations, the respondents might
properly have been adjudged guilty. This procedure was not
followed, as the judgment was based entirely upon the plead-
ings, consisting of the information, containing a copy of the
statements made in the application, and the answer, the latter
merely stating more in detail the facts related in the applica-
tion filed by the respondents. This answer, in effect, denied
that these statements were false, or wickedly or maliciously
made, or intended as an attack upon the honor and integrity
of the court. It appears, then, that there was no proof of the
charge upon which the proceedings were based. Without such
proof, the pleadings not containing any statements which were
contemptuous per se, the court, in pronouncing judgment,
acted without and beyond its jurisdiction.

The judgment of the district court is reversed and the
cause remanded, with directions to overrule the motion for a

Digitized by VjOOQIC

Jan., '13.] Salzer Co. v. Lindenmeibr. 491

judgment on the pleadings, and for further proceedings ac-
cording to law. Reversed and Remanded.

Chief Justice Musser and Mr. Justice Hiu. concur.

[No. 7516.]

The B. F. SaIvZEr Lumber Company et ajus. v. Linden-

MEIER ET ai^

1. Appeabance — Effect — Objection to the return of process must
be made in limine, by plea in abatement, or motion. An answer to
the merits waiyes it.

2. Mechanic's Lien — Material Furnished But Not Actually Used
— Under sec. 4025 of the lieyised Statutes, one who, acting in good
faith, supplies material for the erection of a building at the instance
of the principal contractor therefor, is entitled to a lien for the value
of such material, even though some of such material went into an-
other structure, and some was sold by the contractor.

3. Material Furnished Without Any Specific AgreeWfent — ^As

to the use to be made thereof, or to what ^uijding it is to be applied,
gives no lien.

Error to Larymer District Court, — Hon. James E. Gar-
MGUES, Judge.

Messrs. I)oud & Fowi^er, for B. F. Salzer Lumber Com-
pany ; Messrs. Benedict & Phelps, for The Hallack & How-
ard Lumber Company; Mr. George S. Redd, for The Hindi-
man-Renton Fire Proofing Company, plaintiffs in error.

Mr. J. F. Farrar, for defendants in error.

Mr. Justice Scott delivered the o^nion of the court :

A number of lien claimants brought suit to foreclose their
respective claims of mechanics' lien upon the premises owned
by defendants in error, for materials alleged to have been fur-

Digitized byLjOOQlC

492 Sajuz^r Co. v. LindenmeiEr. [54 Colo.

nished in the construction of a building thereon, known as the
Opera Hbuse building in the city of Fort Collins. Among
these several claimants were the plaintiffs in error. Each suit
was a separate one and upon the trial all were consolidated
and tried at the one hearing, as provided by statute. The lien
claims in all cases were sustained with the exception of those of
plaintiffs in error, each of which was denied by the trial court.

It appears that the defendants in error, entered into a
contract with the defendant, The Cole-Potter Construction
Company, a corporation, for the construction of such opera
house building. The owners prior to the commencement of
construction, filed for record a certain contract, but it is agreed
that this was insufficient to protect the defendants under the
statute in such case, and is therefore eliminated from consid-
eration. It also appears that the Cole-Potter Construction
Company, some time during the month of October, 1907, and
before the completion of the building, abandoned the contract.
The Cole-Potter Construction Company made no appearance
in any of these cases.

The Hinchman-Renton Fire Proofing Company's claim
was for certain metal lath furnished and used in the construc-
tion of the building, and of the value of $109.35. The only
objection to the allowance of this claim urged and considered
by the trial court, was the claim of the appellees that no serv-
ice of summons in the cause was had upon the contractors.
The Cole-Potter Construction Company. This service was
questioned in the supplemental answer of appellees to the com-
plaint of The Hinchman-Renton Fire Proofing Company, in
which it was alleged that C. S. Potter, upon whom the per-
sonal service had been made as secretary of the Cole-Potter
Construction Company, was not at the time of service of simi-
mons, either an officer, director, stock-holder or employee of
such corporation and that said Potter at the time of the serv-
ice of such summons, so stated to the officer making the serv-
ice.

Digitized by VjOOQIC

Jan., '13.] Salzer Co. v. Lindenmeier. 493

The return of the sheriff is in every respect, regular on
its face, showing personal service upon defendant company
by personally serving C. S. Potter as its secretary.

It is not necessary, however, for us to consider the ques-
tion of the impeachment of the return, for that is not a ques-
tion that can be raised by the defendants in error in this case;
and if it was, the objection was waived by them by first filing
an answer, without objection to the sufficiency of the service
upon The Cole-Potter Construction Company, and thus enter-
ing a general appearance in the cause. The question was at-
tempted to be raised by a supplemental answer filed more than
a year after the general appearance.

An objection to a return, whether made by motion to
quash or by plea in abatement, must be taken in limine, for by
appearing to the action and pleading to the merits, all such
objections are waived. — 18 Enc. P. & P. 975.

This being the sole question in the case, and for this rea-
son, the judgment of the district court as to The Hinchman-
Renton Fire Proofing Company, is reversed.

The claim of the applicant, The B. F. Salzer Lumber
Company, was for two cars of lumber to be used as sheeting,
and of the total value of $1,086.55. This was ordered by the
Cole-Potter Construction Company, contractors, for use in the
opera house building of defendants, and the two cars were de-
livered on July 28thj and August 19th, 1907, respectively.
This material was delivered and placed upon a lot adjoining
the grounds upon which the opera house was being con-
structed, permission to use such lot for the purpose having
been secured for the construction company through one of the
defendant owners.

There can be no question but that this sheeting lumber
was sold by the lumber company to the construction company,
for use specifically in the opera house building then being con-
structed. But it is contended that little or none of this lum-
ber was used in the construction of such building, and that

Digitized by

Ljoogle

494 Salter Co. v. Lindenmeier. [54 Colo.

some of it was used in another building, then being con-
structed by Th/e Cole-Potter Construction Company, and for
other parties, kno^yn as the State Mercantile building, and that
some of the luipber was sold by the construction company to
other partips. It is also urgied that the construction company
ordered for use in the building, from the Salzer Company,
more of this kind of lumber than was necessary for the pur-
pose, and likewise ordered more from the Hallack and How-
• ard Company, of the same kind of lumber than was used in
the building.

These contentions of fact must be admitted, with the ad-
ditional statement' that the Salzer Company did not have
knowledge that lumber for the same purpose was being fur-
nished by thp IJ^llack and Howard Company. It appears also
that tl^jg business office of the Sialzpr Company was at Denver,
and that the lumber was shipped from its yards at Frazer,
Colorado.

It is insisted that under this state of facts, tKe lumber
company was not entitled to Jts d^im of liep. Sec. 4^)25, Rev.
Stat. 1908, prpvides:

"IVtech^inics, piaterial men * * furnishing materials
to J>e jLified in the construction, alteration, addition to or re-
pairs, wh.ether in whole or in p^rt, of any building ♦ * ♦
shall have a lien upon thp property 't' * * f qr which tjicy
hacj furnished niaterials ^ * P whether at the instapxre of
the Qwiver or any other person apting by his authority pr under
hiyn a^ agent, contra,ct<x or otherwise. "

In the cas^ of Small v. Bpley, 8 CqIq. 444, this court in
construing a sipiilar statute, said :

"One of Foley and Leonard's assignors was The Holmes
Hard)yare Company. It appe^f^ that of t^e hardjyjre fur-
nished by them for the Rouses, after it h^d been delivered at
the proper places, $35.00 worth ^as repioyed ))y Mr. Rankin
to another house and was not actually used ip these houses.
So far as appears, this material was removed by Rankin witii-
out the knowledge of the hardware company.

Digitized by VjOOQIC

Jan., '13.] Salzer Co. v. Lindenmeier. 495

Counsel say it was error to include this amount in the
decree. The statute gfives to any person who, by contract with
the owner, shall furnish any material for the construction of
any building, a lien upon the building, and the land it occu-
pies. He is not required to see that it actually goes into the
building. If, by contract, he furnishes it for the building,
whether it is used there or not, he is entitled to the lien. This
is what the statute says, and we cannot by construction dis-
tort his language into something else."

This doctrine was reaffirmed as applicable to the present
statute in Rice v. Cassells, 48 Colo. 73. This was a case
where the contractors had purchased for use in a building cer-
tain, brick, w^hich had been delivered on the ground near and
convenient for such use. The contractors failed before the
completion of the structure, and gave a chattel mortgage on
the unused brick to a third party. In an action of replevin by
the mortgagee against the owners of the building, it was held
that the action could not be maintained. The court said :

"The reason for the rule is, that in such circumstances
the material man is entitled to a lien upon the structure for the
construction of which the materials are sold and delivered;
and for the protection of the owner of the building under
course of construction, a qualified title to such material is
vested in him. Of course, it will be understood that in stat-
ing the above rule it is limited to the facts of this case, Craw-
ford, who sold the brick to Mowrey and Klein, did so in good
faith, and upon the credit of the building, for the reason that
he sold them with the express understanding that they were to
be used in the construction of that part of a building which
the contractors had agreed to construct for the lodge. The
brick were actually placed upon the ground in the immediate
vicinity of the building, and part of them used m its construc-
tion. It would certainly be unjust to compel the lodge to dis-
charge a Hen which Crawford might have asserted for the
brick furnished, of which it never had the benefit, and at the

Digitized by VjOOQ IC

496 Salz^ Co. v. LiNDENMEieR. [54 Colo.

same time it would be equally unjust to defeat the right of the
material man to a lien for the brick furnished by holding that
because they had not been wrought into the structure, no lien
attached."

There is nothing in this case tending to show other than
a good faith sale by The Salzer Company to the contractors,
and that the material so sold was for use in the opera house
building and delivered on the grounds in the city of Fort Col-
lins, used for the storage of materials to be used in such build-
ing.

The claim of lien should have been sustained. The judg-
ment of the lower court as to The Salzer Lumber Company, is
reversed.

In the case of the claim of The Hallack and Howard
Lumber Company, it does not appear that the lumber was sold
and furnished for the particular building, but rather that the
company simply knew that The Cole-Potter Construction
Company was at the time engaged in the construction of both
the opera house, upon which the lien is claimed, and the State
Mercantile building. Neither does it appear that there was an
agreement that the material so furnished was to be used in
either of such buildings.

The Hallack and Howard Lumber Company filed a claim
of lien upon both buildings, but afterwards abandoned the one
on the State Mercantile building. The secretary of the com-
pany testified that he did not know in which of these buildings
the material had been used until his visit to Port Collins, after
the completion of the building. So that from the testimony it
does not appear that there was any contract between The Hal-
lack and Howard Company and the construction company,
that the lumber so sold should be used in the opera house
building, which would seem necessary to sustain a lien upon
that property. Before a lien may attach it must appear that
the materials were expressly furnished and delivered for use
in constructing a specified building. — Rice v. Cossets, supra.

Digitized by VjOOQIC

Jan., '13.] Empire Co. v. Lindenmki^. 497

The judgment of the district court denying the claim of
lien to The Hallack and Howard Lumber Company is af-
firmed.

The case is remanded with direction to the district court
to enter judgment in accordance with the views herein ex-
pressed.

Chief Justice Mussbr and Mr. Justice Bailey concur.

[No. 7664.]

Empire State Surety Company v. Lindenmeier ET al.

1. B\'iDKnGB — Lost Writings — Evidence of Loss — The law does
not require direct and positive proof of the loss or destruction of a
Gocnment, hut only such evidence as will raise a reasonable inference
of such loss or destruction. Action upon a bond to secure perform-
ance of a contract for the construction of a house, according to the
plans and specifications of an architect named. The contract provided
that the specifications were and should remain the property of the
architect. The architect testified that he had made very careful search
for them, entirely without success. Heldt that the loss of the specifica-
tions was satisfactorily excused, and the contract, without the sped-
flcations, was held properly received in evidence.

But the court note that the action was not founded upon any de-
parture from the plans or specifications, and that the cause could as
well be determined without them as if they had never existed.

2. II7TEBX8T — Exceeding lAahility of Buretv — ^The later authori-
ties, and the preponderance of authority, is to the effect that in an
action against the surety for performance of an executory contract.
Interest may be allowed, even though the effect is to exceed the pen-
alty of the bond. The allowance is made, however, not as part of
the debt, but as damages for its detention.

But where the surety has no knowledge of the default a demand
must be made, and interest is allowed only from the time of saoh
demand.

Digitized by VjOOQIC

498 Empire Co. v. LindisnmeieR. [54 Colo.

3. Demand— Institution of Suit, Is a sufllclent demand. Intereat
from that date, only, is allowed where the creditor Is entitled to in-
terest only upon demand, and no demand is shown.

4. Surety Company — Character Of — Contracts How Construedr—
The doctrine that a surety is a favorite of the law, and that a claim
asserted against him is strictissimi juris has no application to a bond,
executed upon consideration, by a corporation organized to execute
such bonds for a profit. Such a corporation is in effect an insurer;
its contracts are, as a rule, in terms prescribed by the corporation
itself, and should be construed most strongly in favor of the obligee.

^5. Contract for Erection of Buildinff — Surety Liable for Liens

— The contractor for the erection of a building agreed to "furnish all
materials and do all the work," etc. Defendant became surety for
such contractor. Held, that defendant was liable for the amount of
a lien established against the building for material furnished the oon.«
tractor, though the owner had not discharged such liens.

Error to Larimer District Court. — Hon. Neii* F. Gra-
ham, Judge.

Messrs. Murray & Ingersoix, for plaintiff in error.

Mr. J. F. Farrar, for defendants in error.

Mr. Justice Scott delivered the opinion of the court :

The defendants in error on the nth day of May, 1907,
and who were at that time the owners of certain lots and
buildings in the city of Fort Collins, entered into a written
contract with The Cole-Potter Construction Company, a cor-
poration, for the construction of a theater building on the
said premises. Under the contract the construction ccwnpany
was to provide all the materials and perform all the work to
be performed under the contract, and specified therein. The
w^ork and material were to be in accord with the plans and
specifications of the architect, E. H. Moorman, named in the
agreement, and which plans and specifications were declared
to be a part of the contract. But it was expressly agreed :

"It is further understood and agreed by the parties hereto,
that any and all drawings and specifications prepared for the
purpose of this contract by the said architect are and remain
his property, and that all charges for the use of the same, and

Digitized byLjOOQlC

Jan., '13.] Empire Co. v. Lind^^mkiEr. 499

for the services of said architect, are to be paid by the said
owner."

The contract price was fixed at the sum of $10,125,009
and the work performed and materials furnished were to be
under the direction of the architect who was to furnish
monthly estimates, and the owners were to deduct and retain
fifteen per cent, of these until the building was completed.

As a condition of the signing of the contract, a bond in
the sum of $5,000.00 was required and such bond was fur-
nished by the construction company, with the plaintiflF in error
as surety. The present suit is based upon such bond, and
judgment was rendered in favor of the defendants in error,
in a sum equal to the penalty of the bond, $5,000.00 with in-
terest in the sum of $703.35, the same being computed from
the date of the foreclosure of certain mechanics' liens upon the
property, which in amounts aggregated a total in excess of the
present judgment.

It appears that the construction company defaulted in its
contract before the completion of the building, and also that
it had not paid for certain materials furnished for use in the
building, resulting in the filing and foreclosure of the liens
above referred to.

The only errors complained of and discussed in the briefs,
and which we are therefore justified in considering, are (a)
the admission of oral testimony upon the hearing concerning
the plans and specifications referred to in the original con-
tract, the original and no copy of which could be produced at
the trial, (b) error of the court in the allowance of the
$703.35, interest, and (c) the rendition of judgment without
proof of the payment of the lien judgments.

In r^ard to the first contention, it will be noticed that
the plans and specifications were under the contract, to be and
remain the property of the architect. It seems also, that no
copy of these were recorded with or as a part of the con-

Digitized by VjOOQIC

500 Empire Co. v. Lindenmexsr. [54 Ccrfo.

tract, and also that the original nor a copy was attached to
the contract. The architect testifies concerning the disposi-
tion and loss of the plans and specifications as follows^:

"I did have the original plans and specifications of that
building, but I can't find them. I made a search for them very
carefully. Q. Who had these plans and specifications? A.
The original drawings are always found on file or supposed to
be on file, in the architect's office. There were several sets of
blue prints made and they were brought to Collins and left on
the work. The Cole-Potter Company had one or two sets^
and both of the owners had a set. Q. You are unable to find
any set of these plans and specifications? A. No copy, not
even a blue print. Q. You can find nothing? A. Not a
thing. No claim was ever made upon me by The Cole-Potter
Construction Company for any extension of time upon the
contract. If I remember correctly, this work should have been
completed by The Cole-Potter Construction Company under
the terms of the contract, September 14, 1907."

W. E. Aiken, one of the plaintiffs, testifies as follows :

"I am one of the plaintiffs on this action. I haven't a
set of the plans and specifications for the erection of the
Orpheum Theatre as prepared by Moorman, architect. I have .
made a search for them. I do not know where there is a set.
I don't know of one being in existence at this time. I had a
set. Mr. Moorman delivered it to me. Q. What did you do
with your set ? Did you give them to anybody? A. No, sir,
I think The Cole-Potter Construction Company had them to
use some of the time. I don't know where it is now. I have
made an examination for the purpose of finding them and
could not'* '

William Lindenmeier, Jr., another of the plaintiffs, testi-
fied concerning the matter in the following language :

"I conducted the business for myself and my father, so
far as we were concerned in this matter. We had a set of
plans and specifications between us. One set between us. I

Digitized by VjOOQIC

Jan., '13.] Empire Co. v. LindbnmeiKR. 501

(Hon't know where that set is now. It is not in my father's
possession.

Q. How do you know it is not in your possession ? A.
At the time this lien case came up we searched every place,
around the store, and around home, and could not find it. I
don't know whether there is a set in existence at this time. I
don't know what became of our set. Q. Did you give them
to anybody ? A. I couldn't say where they are, but the prob-
abilities are that The Cole-Potter Construction Company had
them."

Cole, president of the construction company, conducted
the business for it and he left the country when he abandoned
the contract about October 12th, 1907, and his whereabouts
was unknown.

It is contended that the plans and specifications were by
the terms of the agreement made a part of it, and that the
bond was conditioned upon the performance of the contract as
a whole, and therefore the plans and specifications must be
proved with the same degree of strictness as those parts of
the contract and the bond, which are material to the deter-
mination of the cause.

There does not appear to have ever been any question be-
tween the owners of the property and the construction com-
pany, involving the plans and specifications as such, and
neither is there any dispute or contention between the parties
to this suit in that regard.

In fact, the appellants introduced no testimony upon the
trial of this cause at all except a letter between counsel, but for
what purpose it does not appear, as it seems to be wholly for-
eign to any question involved.

Counsel cite many authorities in support of their conten-
tion, but these are not applicable here. The rule of this court
in this respect seems to be:

"That a particular instrument existed, is the most mate-
rial inquiry ; the fact of its existence and the contents of it are
matters to be tried by the jury ; the loss of it must be made out

Digitized by

*^oogle

502 Empire Co. v. Lindenmeier. [54 Colo.

to the satisfaction of the court. The law exacts nothing un-
reasonable in such a case. If parol proof of the loss estab-
lishes the fact with reasonable certainty, that is sufficient. No
precise rule can be safely laid down upon this subject, further
than this, that diligent search and inquiry should be made of
those places or persons in whose custody the law presumes the
instrument to be." — Hohson v. Porter, 2 Colo. 28; Londoner
V, Steivaart, 3 Colo. 47 ; Hetson v, Davenport, 4 Colo. 169.

The law does not, however, require direct and positive
evidence of the loss or destruction of the document, but re-
quires only such evidence as will raise a reasonable inference
of loss or destruction. — 17 Cyc. 543.

But there is no contention here that loss by reason of the
contractors default, was occasioned by failure in any respect
upon the part of the contractors, to comply with the plans and
specifications, but only because the building was not completed
within the time agreed in the contract otherwise provided, and
because of failure to pay for the materials furnished, as therein
agreed. Beside, in the first paragraph of the contract it is
provided:

"This does not include any work or material in front of
entrance of foyer, as shown on the drawings and described in
the specifications prepared by E. H. Moorman, architect,
which drawings and specifications are identified by the signa-
tures of the parties hereto, and become hereby a part of this
contract."

This identification by the signatures of the parties, when
taken in connection with the testimony of the architect above
recited, would clearly indicate that the plans and specifications
were not to attach to the contract, though to be construed as
a part of it, but were to remain with and as the property of
the architect. Indeed, no copies appear to have been made
except blue prints unidentified, and for use in construction, and
therefore the architect was in fact the only person who ever
had possession or charge of them and his testimony as to loss
of such plans seems to be satisfactory.

Digitized by VjOOQIC

Jan., '13.] Empire Co. v. Lindenmeier. 503

While it appears that the owners subsequently entered
into another contract for the improvement of certain store
buildings in front of the opera house, yet the testimony is
clear and not disputed that no claim is made in this suit for
loss occurring by reason, or on account of such subsequent
contract, or in the making of such improvements. Indeed the
testimony referred to as being improperly admitted, refers
only in an inferential way to the Tplans and specifications, and
the cause could be as well determined, if there never had been
any specific plans and specifications. There was no error in
the admission of the contract exclusive of the plans and speci-
fications referred to therein.

The next question raised by the appellant is that it was
error to allow interest to the plaintiffs, thereby making the
total amount of recovery in excess of the penalty of the bond
which was $5,000.00. The damage sustained by the plaintiffs
by reason of the default of the contractors, as appears from
the testimony, including the amount of the judgments for ma-
terial furnished by the material men, and after making all
proper deductions, was in excess of the amount of the judg-
ment in this case, including the interest allowed. This judg-
ment was for $5,000.00 so limited by the penal sum of the
bond, and $703.35 additional as interest from the date of the
lien judgments to the time of the rendition of judgment.

The question of interest in such cases, is one concerning
which there has been much confiict of authority. It is a gen-
eral rule, and well settled, that sureties are liable only to the
extent of the penalty of the bond. But the later and appar-
ently preponderance of authority in this country, is to the ef-
fect that interest may be allowed from the time of the default,
even though this may make the judgment in excess of the pen-
alty named in the bond, not, however, as a part of the debt for
which he originally became responsible, but as damages for its
detention.

It was said in Bank of Brighton v. Smith, 90 Am. Dec.
144 (Mass.) : "There is a plain distinction to be observed be-

Digitized by VjOOQIC

504 Empire Co. v. Linden meier. [54 Colo.

tween cases in which interest is given by way of damages, and
those in which it constitutes a part of the debt, as it does in
contracts in which there is a promise to pay interest. As a
general rule, in all cases in which a debtor is in default for not
paying money in pursuance of his contract, he is liable for in-
terest thereon from the day of his default, and when a demand
is necessary to put the debtor in fault, interest is to be given
only from the demand."

In Goif V, United States, 22 App. cases Dist. Columbia
536, the court quoting from a former opinion by that court
said:

"We think it may be stated as the general rule of the com-
mon law of our country, different, it is true, from the former
rule in England prior to the statute of 3 and 4 William IV.,
chap. 42, but perfectly well settled with us, 'that if a debt
ought to be paid at a particular time, and is not then paid,
through the default of the debtor, compensation in damages
equal to the value of the money, which is the legal interest
upon it, shall be paid during such time as the party is in de-
fault,' sec. I, American Leading Cases, 1616, where the cases
upon the subject are collated and discussed. And this rule has
received the approval of the supreme court of the United
States. — Loudon v. Taxing District, 104 U. S. 771, 26 L. Ed.
923; Chicago V. Tebbetts, 104 U. S. 120, 26 L. ed. 655;
Young V. Godbe, 15 Wall. 562, 21 L. Ed. 250; Curtis v. In-
nerarity, 6 How. 146, 12 L. Ed. 380. It is true that in order
to be allowed, it should be claimed in the declaration ; but when
it is so claimed there can be no doubt of the right of a plain-
tiff, upon a proper showing, to recover interest as well as prin-
cipal.''

This doctrine was asserted in the case of Taewell v. Saun-
ders, 13 Grattan (Va.) 354, wherein the court entered upon
an extensive review of the authorities at that time, both Amer-
ican and English. See also 32 Cyc. 122 and authorities cited.

Digitized byLjOOQlC

Jan., '13.] Empire Co. v. LindenmeiER. 505

But it seems from these authorities that interest must be
claimed by the pleadings and that it may be computed only
from the time of the demand in case demand may be necessary,
and not from the time of the default. Demand in this case
would appear to be necessary, for it is not a case where the
surety would be likely to know of the default in the absence
of notice of that fact.

In the complaint in this action, there is an allegation that
demand has been made and refused and which is admitted by
the answer, but the date of such demand is not alleged and
there is no proof upon that point The authorities seem to
agree that the institution of the suit is a sufficient demand,
and interest has accordingly been computed from that date.
Therefore, in the absence of an all^ation or proof of demand
prior to the commencement of the suit in this case, the court
should have allowed interest only from that date, August
23rd, 1910.

It is contended by appellant that no judgment may be
rendered in favor of the plaintiff in this case, other than for a
nominal sum, for the reason that the plaintiff had not at the
time of trial paid the judgments and discharged the liens there-
tofore established. The defendant is a surety company en-
gaged in the business of furnishing surety bonds, and must be
considered in the light of the rule of construction as to strict-
ness in such cases, differing from that of individual sureties.
"Generally speaking, a contract of suretyship by a surety
company is governed by the same rules as the contracts of
other sureties, but some distinctions are made by the courts
in construing such contracts. The doctrine that a surety is a
favorite of the law, and that a claim against his is strictissinU
juris, does not apply where the bond or undertaking is ex-
ecuted upon a consideration, by a corporation organized to
make such bonds or undertakings for profit. While such cor-
porations may call themselves 'surety companies,' their busi-
ness is in all essential particulars that of insurers. Their con-

Digitized by LjOOQIc

So6 Empire Co. v. Lindenmeier. [54 Colo.

tracts are usually in the terms prescribed by themselves, and
should be construed most strongly in favor of the obligee." —
32 Cyc. 306. An investigation of the authorities cited by the
author, will disclose that this text is a fair statement of the
modem rule.

Counsel for appellant cite no case which seems to sustain
their contention except that of Henry v. Hand, 36 Ore. 492,
though there are others sustaining this view. But this ccm-
tention is not sustained by the weight of authority, neither
does it appear to be supported by sound reason or justice.
These authorities were extensively reviewed and the doctrine
rejected in the case of Stoddard v, Hibbler, 156 Mich. 335,
and in which it was well said :

"The reasoning of these cases does not commend itself to
the court. In view of the statute of this state, which entitles
laborers and materialmen to liens, it seems to us a most nar-
row construction to say that, when the contractor agrees to
furnish all labor and material necessary to build and complete
a house, he may comply with this requirement by simply plac-
ing the material on the ground, engaging the labor, and leav-
ing the owner to pay for it, or to permit a lien to stand
against his property. This is not furnishing the material in
any substantial way, and we find that other courts have taken
a very different view from that expressed in the cases re-
ferred to."

That court cited as sustaining the view there held, the
case of Kiewit v. Carter, 25 Neb. 460, wherein it was said:

"The plaintiff in error contends that the bond given by
him and others does not provide for mechanics' liens ; that he
is a mere surety, and is not bound beyond the strict terms of
the bond. The second paragraph of the contract provides that
Kough is 'to furnish all the material, such as lumber, hard-
ware, brick, lime, sand, paint, oils, etc., as may be necessary
to complete said house according to the plans and specifica-
tions.' If Kough failed to pay for such materials therefor,
and the plaintiff below, was required to payp.t|ie^§a(n/^gough

Jan., '13.] Empire Co. v. Lindhnmbier. 507

paid for these articles, no mechanics' lien would have been
filed. The lien is not a cause, but a consequence, flowing from
the non-payment of the materials. In other words, it is merely
a mode of enforcing payment for materials used in the erec-
tion of a building."

Also the case of Closson v. BUlman, 161 Ind. 610, where-
in it was held :

"When we look to the contract, however, it is plainly
provided that he is to furnish the lumber, and the provision
concerning the payment of $250 on presentation of receipted
bills for materials furnished and delivered upon the lot, makes
it clear that it was contemplated that said Worley should pay
for the materials he was to furnish. The bond provides that
W'orley is to build, construct, and complete the residence 'ac-
cording to his contract,' and it was as much his duty to deliver
the house free of liens on account of materials as it was to use
materials which belonged to him. To hold, in the face of the
bond and contract, that the construction and completion of the
building in accordance with the plans and specifications was a
compliance with the bond, although the owner would be com-
pelled to pay out large sums in excess of the amount stipu-
lated in the contract to discharge liens for the purchase price
of materials, would be to keep the word of promise to the ear,
but break it to the hope."

In Hayes v. Lane, 116 Ky. 566, the court took the same
view and it was there declared by the court :

"Under the contract the sureties bound themselves that
Lane would furnish the material and build the church 'in
strict accordance with the terms and conditions of said con-
tract/ ♦ ♦ ♦. The sureties guaranteed that Lane would
furnish the material and erect the building. In the erection -
of the building, Lane had to perform the labor himself, or to
employ some one to do it. It follows that the sureties guar-
anteed that the necessary materials and labor would be fur-
nished to erect the building. But it is urged on behalf of the
sureties that the terms of their bond were complied with when

5o8 Empire Co. v. LindenmeiEr. [54 Colo.

the material and labor were furnished; that their contract did
not require them to protect the church against the cost of the
material and labor. Reduced to the last analysis, their claim
is that Lane complied with his contract by furnishing the ma-
terial and labor, although the church was compelled to pay for
such part for which Lane failed to pay. Lane did not comply
with his ccmtract when he furnished the material and labor,
unless he paid for it, or released the building from liability
therefor."

The conclusion we have reached is quite well stated in
Friend v. Ralston, 35 Wash. 422, where the court said :

"The learned counsel for appellant cites numerous author-
ities with reference to the non-liability of sureties on bonds or
covenants of indemnity *to save and keep harmless the obligee
from certain outstanding debts, or that the party indemnified
shall not sustain damage incurred through the omissions or
acts of the principal, etc., until the obligee shall have. paid or
discharged such debts, or may have otherwise sustained finan-
cial loss. — Miller v. Fries, 66 N. J. L. 377, 49 Atl. 674, But
there is a marked distinction between covenants of that de-
scription and agreements that the obligors shall perform spe-
cific acts. — LitchHeld v. Cowley, 34 Wash. 566, 76 Pac. 81 ;
Wright V. Whiting, 40 Barb. 235. The covenant in the build-
ing contract on the part of the contractors with Mrs. Friend is,
as between them, equivalent to a direct promise to pay for ma-
terials used in the construction of the building, and a breach
of the contract occurred when the contractor suffered the obli-
gation to become a charge on her property ; at least, she was
entitled to treat it as a breach. It may be true that she was
not obligated to do so; that she could have waited until the
lien had become fixed and determined by judgment against her
property, and treated that as the breach of the bond, thus
escaping the onus of establishing, at the trial, the validity of
such lien and the amount of the indebtedness, but she was not
obliged to delay action in that behalf. She could treat the
failure of the contractors to keep her property free from such

Jan., '13.] Empire Co. v. Lindi^meikr. 509

incumbrance as a breach of the contract. Therefore, the posi-
tion of appellant's counsel that this action was prematurely
brought is untenable."

The ccmtract in the case at bar provided that :

"Article I. The contractor shall and will provide all the
materials and perform all the work for the concrete, stone-
work, brick-work, plastering, carpenter work, tin and gal-
vanized iron work, cement work, iron work, roofing and ex-
terior cementing of stage building."

The bond provided that: "The conditions of the above
obligation is such : That whereas The Cole-Potter Construc-
tion Company has this day entered into an agreement with W.
E. Aiken, William Lindenmeier, and William Lindenmeier,
Jr., to furnish the materials and labor and. construct a theater
building on property to be designated in the city of Port Col-
lins, Colorado, in accordance with certain plans and specifi-
cations furnished by F. H. Moorman, architect, for the sum of
ten thousand, one hundred and twenty-five dollars ($10,-
125.00), and whereas the said The Cole-Potter Construction
Company has agreed to furnish all of said materials and to do
all the work in the construction of said building in accordance
with said plans and specifications which are referred to and
made a part hereof, as though fully and at length set out
herein.

Now, therefore, if the said The Cole-Potter Construction
Company shall well and truly keep and perform each and
e\'ery of the covenants and agreements in said contract
contained on its part to be kept and performed, then this obli-
gation to be null and void ; otherwise to remain in full force
and effect."

It was as much the obligation of the contractors and
their surety under this agreement and bond, that the materials
should be paid for as that they should be furnished. In fact
the value of these materials was clearly included within the
consideration named in the contract, the performance of which
the bond was given to secure. The contractors failed to niakc ^^i^

Digitized by VjOOQIc

5IO University of Colorado v. Wii^son. [54 Colo.

these payments, liens were claimed^ established and foreclosed
and the property of the plaintiffs ordered to be sold in pay-
ment of the judgments so rendered.

The bond was security for these payments and it would
be nothing short of manifest injustice to hold that the plain-
tiffs must have paid these judgments before they can maintain
action on the bond. Their property had been decreed to be
sold in payment of the sums so secured by the bond.

The district court is instructed to so modify the judg-
ment as to compute interest on the amount of the penalty on
the bond from the day of the institution of the suit, and as so
modified, the judgment is affirmed.

Modified and affirmed.

Chief Justice Musser and Mr. Justice Garrigues
concur.

[No. 7634.]

University of Coi^orado v. Wii^son et au

1. Wiixs — Construction — Courts are bound to give to a will such
a construction as will carry out the plain Intention of the testator.

2. Construed — The testator bequeathed $60,000 for the erec-
tion and maintenance of a home for poor widows and orphans, but
upon a condition precedent Impossible In law to be performed, follow-
ing this bequest with the direction that ''otherwise the said $50,000
to revert back, and be divided" among certain legatees named. Held,
that the manifest Intention of the testator was that if, for any reason,
the conditions prescribed in the provision made for the home, should
not, or could not, be performed the gift over to the legatees should
immediately take effect. An order making distribution accordingly,
affirmed.

Error to Boulder County Court, — Hon. E. J. Ingram,
Judge.

Hon. Benjamin Griffith, attorney general, Mr.
Charles O'Connor, assistant attorney general, and Mr.
John A. Gordon, of counsel, for plaintiff in error.

Digitized by VjOOQiC

Jan., '13.] University of Cou)Rado v, Wilson. 511

Mr. Hknry O. Andrew and Mr. Frank L. Moorhead,
for defendants in error.

Mr. Justice Bailey delivered the opinion of the court:

The matter to be determined is, what does paragraph
seven of the will of the late Andrew J. Macky mean, and what
is its effect.

After making a number of specific money bequests to
relatives and friends, the testator undertook, in that paragraph,
to make a charitable gift for an hospital building and home
for poor widows and orphans, as follows :

"7th. I further give and bequeath to and for a hospital
building and a home to be built in Boulder, county of Boulder,
and state of Colorado, for the comfort of poor widows and
orphan children, while sick and unable to care for themselves,
the sum of fifty thousand ($50,000) dollars. Providing the
city of Boulder, by its officers, or the county commissioners
and their successors in office, will support and maintain the
same, otherwise the said $50,000 to revert back and the same
to be divided up among the following legatees ; to-wit, Lydia
A. Snow, Jerome Macky, Alonzo Macky, Chauncey Macky,
Celia B. Dickerson, Anna C. Walker, Mary Aldrich and
Kmma Aldrich, Cora Doyle, George Robbins, Elmer Robbins,
Karl Harold Robbins, Lola Robbins and Monabelle Robbins
in proportion as their legacies herein mentioned bears to the
said ($50,000) fifty thousand dollars."

The city of Boulder declined to accept the gift, but the
Board of County Commissioners offered to do so upon the
condition imposed, and asked that the individual members of
the board be appointed trustees of the l^acy for the purpose
set forth in the bequest. In the case of Robbins v. County
Commissioners, 50 Colo. 610, this court held the primary gift
to charity void, for the reason that "its vesting is made to de-
pend upon an impossible, legally unenforceable condition
precedent;" whereupon the executor of the estate, joined by
certain of the legatees named in that paragraph as legatees

Digitized byLjOOQlC

512 University OF Coi*ORADo V. Wii^soN. [54 Colo.

over of said $50,000.00, filed in the county court their peti-
tion asking for an order of distribution according to the terms
of the bequest. To this petition the Board of R^ents of the
Colorado State University, as residuary legatee, interposed ob-
jection and filed a petition asking for a construction of para-
graph seven, claiming the fund of $50,000.00 under the resid-
uary provision of the will. The county court held the gift
over to Lydia A. Snow and others valid, and ordered a dis-
tribution of the $50,000.00 accordingly. The r^ents bring
the case here on error, seeking a reversal of the judgment of
the county court.

The primary gift being out of the way, the question is,
does the gift over take effect and is it to be enforced ? It is a
settled rule that the intention of the testator must govern,
when such intention is made clear by the terms of the will
itself. This has been repeatedly declared by our own and
other courts to be the guide in all matters involving construc-
tion of wills. Courts are bound to give such construction to a
will as will carry out and put into effect the plain intention of
the testator. — Bacon v. Nichols, 47 Colo. 31; 40 Cyc. 1386,
and cases cited.

. The first gift contained in the paragraph of the will under
consideration depended, as has already been determined by
this court, upon a condition precedent, impossible of legal en-
forcement. In deciding the case of Robbins v. County Com-
missioners, supra, this court did not directly pass upon the
question involved in this case, and the statement in that case
as to the nature of the condition upon which the primary gift
depended does not necessarily determine the status of the gift
over. It having been adjudged that the primary gift is void,
it now remains to determine the meaning and effect of the
words in paragraph seven of the will following the attempted
gift to the city of Boulder or to Boulder county. The condi-
tion precedent which was by this court held impossible of en-
forcement reads : "Providing the city of Boulder, by its offi-
cers, or the county commissioners and their successors in of-

Digitized byLjOOQlC

Jan., '13.] University of Cou)rado v. Wiwon. 513

fice, will support and maintain the same" (the hospital build-
ing and home). Following this proviso comes the clause
which is now before the court for consideration, to-wit:
"Otherwise the said $50,000.00 to revert back and the same to
be divided up among the following legatees," Lydia A. Snow
and others. The testator did not say that the gift to the
county should take effect on condition that the county ex-
pressed a willingness to accept the gift, but imposed as a con-
dition precedent to the A^esting of the gift that the county
should permanently support and maintain the hospital and
home. That such was the intention of the testator, and that
such is the meaning of the proviso, is made clear by the lan-
guage of the court, in Robbins v. County Commissioners,
supra, where this is said :

"When Mr. Macky said that the $50,000, which he un-
doubtedly intended should be used in building a hospital and
home, should revert back and be distributed among certain
legatees, if the county commissioners and their successors
would not furnish the necessary support and maintenance, he
undoubtedly meant thereby to postpone the vesting of his gift
until Boulder county, through appropriate action by its board
of commissioners, became l^ally bound to do so. Mr. Mstcky
did not intend to make provision for some mere temporary
thing. His purpose was to provide a hospital and home for
all time to come for those who were entitled to enjoy its privi-
ties. It is not the building, for whose erection the money
was given, but 'the said $50,000' itself, that is to revert and be
so distributed if the required support was not forthcoming."

The clause in the will which provides that the county
commissioners "will support and maintain the same," means
provided they shall, or do, support and maintain it. It in no
sense implies that a mere willingness on the part of the board
to do so is sufficient. It requires that this support be abso-
lutely and unconditionally provided for and furnished, else the
condition is not met. And if for any reason, because the law
interposed an obstacle against providing such support and

Digitized byLjOOQlC

514 Denver Etc. Co. v. McDonough. [54G>1o.

maintenance, or for any other reason, such support was not
forthcoming, then the condition upon which the primary gift
rests was not fulfilled and the gift failed. Attaching this
meaning to the condition precedent then, we look to the pro-
vision of the will itself in this behalf to determine the status
of the gift over. By this paragraph of the will Mr. Macky
said, in effect, if the city of Boulder, or if the Board of County
Commissioners of Boulder county, will not, do not or can not,
furnish maintenance and support for the proposed charitable
institution, then the gift of $50,000.00, primarily intended for
that charity, shall be divided among those certain other
legatees in the will, specifically named in this paragraph. Lan-
guage could scarcely make it plainer that the testator intended
this money to go to erect a charitable home for poor widows
and orphans, who under the terms of the will were entitled to
such privilege, if either Boulder city or the county of Boulder
could and would permanently support and maintain it ; if not,
then to the other legatees named. It is manifest that the plain
intention of the testator was that the gift over should take
eflFect if, for any reason, the city of Boulder, or the Board of
County Commissioners of Boulder county, should fail to pro-
vide for the permanent support and maintenance of the hos-
pital and home, and there being no l^al objection to be urged
against such gift, it ought, upon every consideration, to be
given full eflFect.

Since by the language of the will itself the intention of
the testator respecting this fund is clear, and under well set-
tled principles of law such intention must control in the dis-
position thereof, as the gift over contravenes no established
rule of law or public policy, the various other matters, so ably
presented by opposing counsel, upon the question of condi-
tional limitation and kindred subjects, and the rules of law ap-
plicable thereto, need not be considered. Neither is it neces-
sary to determine what the status of the residuary legatee
would be, had both gifts been held void, as it is clear, under

Digitized byLjOOQlC

Jan., '13.] Denver Etc. Co. v. McDonough. 515

the construction here given to paragraph seven of the will,
that such legatee has no claim upon or interest in the fund in
question. Judgment affirmed.

Chief Justice Musser and Mr. Justice White concur.

[No. 7642.]

Denver, Bouu)Er & Western Rah,road Co. v. McDon-
ough.

Appeals — Verdict on Sufficient^ Though Conflicting Evidence, will
not be disturbed.

Error to Boulder County Court. — Hon. E. J. Ingram,
Judge.

Mr. E. E. Whitted, Mr. R. H. Widdicombe and Mr. J.
M. Cates, for plaintiff in error.

Mr. O. A. Johnson, for defendant in error.

Mr. Justice Scott delivered the opinion of the court :

This is an action to review a judgment of the county
court of Boulder county, wherein the defendant in error re-
covered the sum of $200 for the loss of two colts, by reason
of the alleged negligence of the plaintiff in error. The cause
was first tried before a justice of the peace and afterward and
upon appeal, by the county court. There are no pleadings in
the case and in so far as the abstract discloses, no instruc-
tions, and none are discussed in the brief, although counsel as-
signs as error, that the verdict is contrary to the instructions.

It appears that plaintiff's colts were traveling in an east-
erly direction and on the tracks of defendant, near the village
of Sunset, in Boulder county. Both colts were on a. trestle or
bridge, upon which the tracks were laid. One of the animals
was at the time apparently entangled, by its legs 4iaving
dropped through spaces between the ties on the trestle. It is
not clear whether the other one jumped or was struck by the

Digitized by

*^oogle

Si6 Denver Etc. Co. v. McDonough. [54 Colo.

engine of defendant's train, but it was found on the ground
below the trestle, the tracks upon which were from ten to
twelve feet above the surface. Its back was broken and there
were other injuries so that it became necessary to kill it. The
animal on the trestle was crushed and it would seem, instantly
killed.

The bridge or trestle was sixty-four feet long and
straight, but located in what is termed a left-hand curve, look-
ing toward the west. The creek bank on the right side of the
track looking westward, would appear from the testimony to
be anywhere from ten to thirty feet high.

The record is very hazy as to just where on the trestle the
animals were when the accident occurred. The train was
moving up grade and westward. The engineer was the only
eye witness to the accident and testifies in substance: That
the first intimation he had ithat there was anything ahead of
him on bridge No. 31, was after the engine had rounded the
curve and straightened up so he could see ahead, at which
time his engine was on the east end of the bridge ; that he saw
some object, but could not tell whether it was a dog, man or
what it was, whereupon he set the emergency brake ; the train
was moving at a speed of between 15 and 18 miles per hour.
It took him probably two or three seconds to put the emer-
gency brake in operation. He did not reverse the engine be-
cause he did not have time ; he was looking straight ahead but
was unable to see the bridge until the pilot was on the east end*
of the bridge on account of the sand box and smoke stack
which are in the way; that you have to wait until the engine
straightens around, and that you cannot see all of the bridge
at any time when going west, for the reason that the engine
is in the way, the line of vision being obstructed by the head
of the boiler and steam dome; that he can't see over the top
of the boiler ; that he can only see straight out in front.

The fireman testifies that he was shoveling coal at the
time, and had been so engaged for about two minutes.

Digitized by

*^oogle

Jan., '13.] NoRCROSS v. Cunningham. 517

On the part of the plaintiff, several witnesses testifying
from measurements, say that there is a clear vision from a
point east and on the outer rail for a distance of one hundred
and seventy feet from where the animal, or animals, were said
to have been struck by the engine. This distance, it will be ob-
served, would be much greater on the fireman's side of the
engine. The engineer says that the train was stopped within
from fifty-four to sixty feet after applying the emergency
brakes.

The contention of appellant is that there was no proof
of negligence, and that the court erred in refusing to direct a
verdict for the defendant.

It will be seen that the testimony is conflicting in that the
engineer testifies that he did not and could not see the ani-
mals in time to prevent the accident, while the testimony on
the part of plaintiff tends to show that by the exercise of care
and diligence, he could have seen the animal in time to have
prevented the collision.

This latter contention would appear quite well established
if the fireman is to be considered as the company's representa-
tive in this respect.

The case of R. G. W, R. R, Co, v. Boyd, 44 Colo. 122,
presents a similar case of conflicting testimony, and it was
there held to be a question for the jury.

Upon the authority of that case the judgment is affirmed.

En banc.

Mr. Justice Garrigues dissenting.

[No. 7694.]

NoRCROSS v. Cunningham.

Estoppel — By Record — Action for deceit in the sale and convey-
ance of certain lands, and a water right for the irrigation thereof.
The complaint alleged misrepresentation as to the character and value
cif the water right. In a former action against the defendant plaintiff,
at first, made the same charge of fraud, but afterwards, with full
Knowledge of the facts, abandoned such charge, and so amended his

Digitized byLjOOQlC

5i8 NoRCROSs V. Cunningham. [54C0I0-

complaint as to assert that the conveyance in question was effective,
not only as to the water right therein described, but also conveyea,
as an appurtenance to the land, another water right theretofore vested
In defendant, and in the trial of such former cause, plaintiff had in
open court, declared by his counsel that he made no claim that he had
been defrauded in the transaction which culminated in such convey-
ance. Heldj that he was estopped to renew the charge of fraud.

Error to Larimer District Court. — Hon. Harry P. Gam-
bia, Judge.

Messrs. Rhodes & Farnworth, for plaintiff in error.

Mr. Fred W. Stow and Mr. Homer S. Stephens, for
defendant in error.

Mr. Justice Hiix delivered the opinion of the court*:

Upon motion judgment on the pleadings was granted in
favor of the defendant. The plaintiff's complaint allies in
substance, that in May, 1906, he purchased from the defendant
a farm situate under the Hillsborough canal, from which it
requires water for its irrigation; that he paid $10,000 for the
land and water to be conveyed therewith ; that as a part of the
consideration the defendant represented that there would be
conveyed in the same warranty deed, and in connection with
the land, 125 inches of water in this canal; that this water was
and would be a water right to said land for the entire irriga-
tion season of each year; that it was of the earliest water ap-
propriated from the Big Thompson river, the stream from
which the canal received its supply; that certain crops which
could be raised and which made the farm especially desirable
and very valuable, required late irrigation, and that the water
rights which would be conveyed would furnish water during
the late irrigation season to raise such crops ; that relying upon
defendant's representations with reference to the water to be
conveyed and that was conveyed, he purchased said land and
water, and in May, 1906, received from defendant a warranty
deed, which deed conveyed the land and 125 inches of water in
one instrument ; that upon receipt of the deed he entered into
possession, began, and has ever since continued, to cultivate the

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Jan., '13.] NoRCROSs v. Cunningham. 519

farm; that after plaintiff tcx)k possession, defendant claimed
that the water conveyed in connection with and for the irri-
gation of this land was simply a right to take water from this
canal by reason of a contract entered into between the owner
of the canal and other persons, which contract, through sun-
dry conveyances, had been conveyed to defendant, and that
the defendant had only conveyed by his deed to plaintiff what
was known as this water contract.

The plaintiff further alleges, that the canal company was
under no obligations to furnish water under this contract, ex-
cept when there was water in the canal derived from the Big
Thompson river under an appropriation known as priority
No. 25, being of a late date; that he has been unable, under
and by reason of the water conveyed to him by said deed, to
obtain any water from this canal for the irrigation of this land,
except in the early portion of each irrigation season, up to
about July ist; that after the first of July said water right so
conveyed furnishes no water for said lands; that this condi-
tion has prevailed ever since the purchase, and that it will so
continue hereafter, except an intermittent amount during the
early portion of the irrigation season ; that by reason of these
facts he cannot raise any crops upon the lands, except early
crops; that the land without a water right furnishing water
during the entire irrigation season, but only for the early por-
tion, is of no value in excess of $5,000; that plaintiff has been
injured, damaged and defrauded by the defendant through his
false and fraudulent representations, etc., in the sum of $5,000,
for which amount judgment is prayed.

In his answer the defendant, among other things, alleges,
that subsequent to the sale and in March, 1909, with full
knowledge of all facts, the plaintiff instituted a suit, etc.,
against the defendant by which he sought to have this deed for
the land and the 125 inches of water decreed to convey as an
appurtenance under the deed and to the land and as annexed
to the land, a certain other 1.75 cubic feet of water which was
a part of the canal's Big Thompson priority NJo. i ; that in

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520 NoRCROSS V. Cunningham. [54 Colo.

the same suit the plaintiff also Sought to recover damages al-
leged to have resulted to him by reason of the alleged false
and fraudulent representations made at the time of the sale,
pertaining to the water rights, and upon account of his failure
to procure the same; that, at the time of the commencement
of the other suit, the plaintiff had full knowledge of all facts
relative to his rights, etc; that at the time there were two
remedies open to him for the enforcement of his alleged claims
arising out of the purchase of this land and water, which
were, by claiming that he had received by this deed the 1.75
cubic feet of water above referred to, and having it so de-
creed by the court, or, that he had not received the water
which he should have received by the deed, and recover dam-
ages against the defendant for failure to convey it ; that these
remedies are inconsistent, in that by the first, his claim is
based upon the fact that he had received the water, while the
latter is based upon the fact that he did not receive the water;
that both of said remedies were adopted and sought to be en-
forced by the plaintiff in the former suit, and were so allied
in his complaint; that during the pendency of this suit the
plaintiff elected to base his claim upon the fact that he had
received said water by said deed; that his complaint was
amended accordingly; that he thereafter abandoned his claim
made therein, based upon the fact that he had not received
the water, and made no claim for damages in the action upon
account of such failure on the part of the defendant to convey
the said water, as contained in his original complaint; that the
suit now instituted is upon the same transaction and based
upon the same claim as that portion of plaintiff's former suit,
J, which related to damages ; that the facts and circumstances as
^set forth in plaintiff's former suit in that portion which was by
'him abandoned by his election, as aforesaid, are the same as
here: that by reason of said election he is now barred from
claiming any damages or relief in this suit; that having
claimed in the former suit that he had, by the deed, received
the water, he is now estopped from claiming damages h

Digitized by VjO(

Jan., '13.] NoRCROSS v. Cunningham. 521

son of the failure on the part of the defendant to convey the
same.

As a further defense it is all^;ed that during the progress
of the former trial, the plaintiff's counsel, with his consent,
acquiescence and ratification, and in his presence, and in open
court, stated that the plaintiff did not claim that any fraud had
been committed upon him in the transaction, for which reason
that he is estopped from claiming damages in this suit against
the defendant upon account of any alleged false and fraudu-
lent representation on the part of the defendant

The plaintiff, by replication, sets forth, that in June, 1908,
he brought suit against the ditch company and the defendant
to compel them to recognize him (by virtue of the provisions
of his deed from the defendant) as the owner of the 1.75 cubic
feet of early water theretofore owned by the defendant, he
states that this suit was decided against him. He admits that
in March, 1909, he brought the suit against the defendant as
alleged in the answer, in which he sought to have the deed
conveying the land and 125 inches of water decreed to convey
therewith as an appurtenance under the deed and to the land
the 1.75 cubic feet of water, which was a part of the earlier
priority. He also admits that this suit was decided against
him, but denies that in either there was tried or determined
the question of damages involved in this action.

It will be observed that the plaintiff has not denied, that
in his second suit brought against the defendant he also
sought to recover damages growing out of the same transac-
tion, and that during its pendency he elected to proceed under
that portion of his complaint by which, if he was successful,
it would secure for him the water which he claimed he had
purchased. The great weight of authority in which we con-
cur is to the effect that the two remedies are inconsistent. — 15
Cyc. 257; Bdes v, Williamson, 128 Iowa 127; 7 Bncy. of PL
and Pr. 360; Bracken v. Atlantic Trust Co., 167 N. Y. App,
510; Sickman v. Abemathy, 14 Colo. 174; Wheeler v. Dunn,
13 Colo. 428; Bank of Santa Pe v. Board of ComWs,, 60 Pac.

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522 Horn v. Clark Hardware Co. [54 Colo.

(Kan.) 1062; Jones v, Lcmghome, 19 Colo. 206; Campbell v,
KaufFmann Milling Co., 42 Fla. 328; Carroll v. P ethers et oL.,
102 Wis. 436; McWUliams v. Thomas et al., 74 S. W. (Tex.)
596; Taussig et al. v. Hart, 49 M Y. App. 301 ; Lozvenstein
& Bros, V, Glass et al., 48 La. Ann. 1422 ; Brmeling v. Gibson
Canning Co., 105 111. App. 196; Salyers v. Smith, 67 Ark.
526; Ogden V. Moore, 95 Mich. 290; Remington Paper Co,
V, Hvdson, 67 Pac. (Kan.) 636; James v. Parsons, Rich &
Co,, 78 Pac. (Kan.) 438; Elevator Co. v. U. P. Ry. Co., 97
Iowa 719; Conrow et al. v. Little et al., 115 N. Y. App. 387.

In the former action the defendant (with knowledge of
all the facts) having elected as to which of two inconsistent
remedies he would pursue, we are of opinion that he is bound
by such election. For this reason the motion for judgment
upon the pleadings was properly sustained. See Anthony v.
Slayden et al., 27 Colo. 144, and cases therein cited.

The judgment is affirmed. Affirmed.

Chief Justice Musser and Mr. Justice Gabbert con-
cur.

[No. 7749.]

Horn v. The Clark Hardware Company et al.

1. Mechanic's Lien — Applies to a Leasehold in Land — One fur-
nishing material for the improvement of real property by contract with
one having a mere leasehold, is, under the statute (Rev. Stat., Sec.
4027) entitled to a lien upon such leasehold estate.

2. Right of Tenant to Remove Fixtures — ^An agreement be-
tween the landlord and tenant that the latter may remove the struc-
tures which he erects, or the improvements which he places upon the
demised premises, has no effect to change the character of such struc-
tures, as against third persons.

The tenant had purchased from the lien claimant a boiler, engine,
and other machinery and appliances, and erected the same in a build-
ing situated upon the leasehold. His intention was that the whole
fehould constitute, and be operated as, a mill for the treatment and
reduction of ore. The machinery and appliances were necessary to
accomplish this purpose. Held, that they thereby became part of tbo
leasehold and were not, as against the lien claimant, liable to be sold
as personalty on execution against the tenant.

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Jan., '13.] Horn v. Clark Hardware Co. 523

3. Decree — In Part far Things Not lAenahle — A decree award-
ing a lien, in part for things not the subject of a lien under the statute,
falls only to the extent of ^ those matters as to which the allowance is
improper.

4- Parties — Where the lien is asserted only against the lease-
hold interest of the tenant, his landlord is not, under sec. 4035, Rev.
Stat., a necessary party.

Error to Gilpin District Court, — Hon. Chas. McCaix,
Judge.

Messrs. Gillette & Clark, for plaintiff in error.

Mr. James M. Seright and Mr. Wm. C. Fullerton,
for defendants in error.

Mr. Justice GabbeRT delivered the opinion of the court :

The Pewabic Consolidated Mines Company owned a
stone structure known as the "old freight depot/' located on
mill-site No. 39, adjoining Blackhawk, in Gilpin county. It
was without a floor, ceiling, roof, partitions, doors or win-
dows. This building and the ground upon which it was lo-
cated, was leased to the plaintiff in error for the period of ten
years. By this lease Mr. Horn was granted (quoting from the
lease) "the privilege of fitting up the said old freight depot
with any and all machinery necessary for the concentration of
tailings from North Clear Creek, and for working any and
all ores by the methods usually adopted by plants for the re-
duction of the precious metals ; and further granting unto the
said party of the second part the privilege of diverting and
using all the water from Nbrth Clear Creek necessary to
operate said machinery; and further granting unto the said
party of the second part the right, upon the surrender,
termination, or forfeiture of this lease, to remove all machin-
ery, furniture, and fixtures placed upon said premises by the
said party of the second part."

This lease, with the consent of the lessor, was assigned
to The Denver Mining & Reduction Company, which we shall
refer to in the course of the opinion as the lessee. The latter

Digitized by VjOOQIC

524 Horn v. Ci*ark Hardware Co. [54 Colo.

fitted up the structure so as to afford proper shelter and hous-
ing for the machinery of a mud-mill, by putting on a roof and
equipping it with doors and windows. The company then in-
stalled in the building the necessary tables and other machin-
ery and equipment for a mud-mill. After the mill had been
in operation for a time, the mine upon which it depended for
tailings shut down, and the mill was idle for several months.
A little later the company decided to convert it into a custom
mill by the addition of such other machinery as might be
necessary. Of the new machinery required to make this
change, a portion was supplied by The Denver Mining & Re-
duction Company, purchased in Denver, and a portion by the
defendants in error, Stroehle & Sons. The machinery was
placed in position by the latter, the reduction company fur-
nishing a part of the labor. The engine with which the mud-
mill had been equipped was taken out, and a new one fur-
nished by the company placed in the building on a concrete
foundation sunk in the ground. A new boiler furnished by
Stroehle & Sons was placed in the building, set in its own four
walls of brick, open in front. In addition to the boiler,
Stroehle & Sons furnished other material and equipment in
the way of lumber, screens, jigs, shafting, belting, and other
fittings used in constructing the mill. The company also
owned or furnished, as part equipment of the mill, a number
of appliances used in operating it, and also a number of ap-
pliances necessary to use in connection with operating the ma-
chinery, and a lot of lubricating oil, also used for this purpose.
The only portion of the machinery that came in contact with
the building was the shafting. It was laid upon stringers, or
girders, and extended across the building. The shafting ran
in boxes, or journals, bolted to the stringers. The power gen-
erated in the building was communicated to this shafting,
which, in turn, by belts and pulleys operated the machinery.
There is testimony to the effect that all the machinery could
be removed without materially injuring the building.

Digitized by VjOOQIC

Jan., '13.] Horn v. Ci^ark Hardware Co. 525

In fitting up the mill, the company purchased material
from the defendant in error, The Clark Hardware Company,
consisting of tools, brasses, nails, and other materials which
were used in the construction and operation of the mill. In
July, 191 1, the plaintiff in error recovered a personal judg-
ment against The Denver Mining & Reduction Company. A
few days later the sheriff of Gilpin county, under an execution
issued on this judgment, levied upon and took into his posses-
sion, as the personal property of the judgment debtor, the
tables, engines and other equipment- of the mill, which was a
part and parcel of it, as installed in the building; and also some
tools and supplies, and advertised the same for sale as per-
sonal property. Prior to the date fixed for the sale of this
property under execution, the defendants in error, joining as
plaintiffs, brought suit against The Denver Mining & Reduc-
tion Company, the plaintiff in error, and the sheriff of Gilpin
county, the purpose of which was to foreclose a mechanic's
lien upon the mill, including the structure and the machinery
and equipment therein, which embraces the property levied
upon by the sheriff under the execution issued on the plaintiff
in error's judgment, and to restrain the latter and the sheriff
from selling this property under the execution by virtue of
which it had been levied upon. A temporary injunction was
issued, restraining the execution sale. The trial of the case
resulted in a judgment, making the temporary injunction per-
petual, and adjudging the plaintiff^ entitled to liens upon the
property levied upon by the sheriff, the building in which it
was situated, the land upon which the building stands, and de-
creed that all this property should be sold in satisfaction of the
liens so established. To review this judgment, Horn, the
judgment creditor, has brought the case here on error.

The first point urged by counsel for plaintiff in error to
consider, is, that under the present statute of Colorado a lien
will not lie against a leasehold interest in real estate. Section
4027, R. S. 1908, provides, infer alia, that "Any lien provided

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526 Horn v. Clark Hardware Co. [54 Colo.

for by this act * * * shall extend to any assignable,
transferable or conveyable interest of such owner, or reputed
owner, in the land upon which such building, structure, or
other improvement shall be erected or placed." The act of
1889, Session Laws of that year, 247, provided that "except
when otherwise indicated, any person having an assignable,
transferable, or conveyable interest or daim in or to any land,
building, structure, or other property mentioned in this act,
shall be deemed an owner."

This provision was considered in the case of Carey Heard*
ware Co, v, McCarty, 10 Colo. App. 200, where it was hdd
that by virtue thereof, a mechanic's lien attached to a lease-
hold interest in real estate. The purpose of the provisions of
the act of 1889 and our present act, was and is the same,
namely, to give to those entitled to a lien the right to subject
the owner's interest in real estate to such lien. The lien which
attaches is not limited to an estate in fee, but extends to any
interest of the person that is transferable, assignable, or con-
veyable in the real estate at whose instance and upon which a
l)uilding, structure, or improvement is erected. For the pur-
poses of the act, such person is deemed the owner. If he owns
the fee, the lien is upon the fee. If he owns a lease estate, the
lien attaches to that interest. — Otnbony v. Jones, 19 N. Y.
234; Badger Lumber Co. v. Malone, 54 Pac. (Kan.) 692;
Hcahaway v, Davis, 32 Kan. 693 ; Williams v. VanderbUt, 145
111. 238.

That it was not the purpose of the act of 1899 to limit
the right to a lien to an estate in fee, is manifest from the fact
that it expressly provides a lien shall attach to whatever in-
terest the person has in the land at whose instance the build-
ing, or structure, or other improvement was erected or placed
thereon, for which the lien is claimed; and further provides
that "Any lien provided for by this act shall extend to and
embrace any additional or greater interest in any of such prop-
erty acquired by such owner at any time subsequent to the

Digitized byLjOOQlC

Jan., '13.] ' Horn v. Clark Hardware Co. 527

making of the contract, or the commencement of the work
upon such structure, and before the establishment of such hen
by process of law." Sec. 4027, supra. Qearly, these provi-
sions were wholly unnecessary if, as contended by counsel for
plaintiff in error, a lien could only be asserted against an es-
tate in fee. The evident purpose of these provisions is that a
mechanic's lien shall operate upon the estate, whatever it may
be, which the person employing labor and procuring materials
for the construction of an improvement has in the land upon
which such improvement is placed before the lien is estab-
lished by a decree of court. We think the lease-hold interest
of The Denver Mining & Reduction Company could be sub-
jected to a lien under our present lien act. To hold otherwise,
would be directly contrary to the terms of this act.

The next proposition urged on behalf of plaintiff in error
is, that the plant of machinery in the mill was trade fixtures,
and therefore, personal property against which a mechanic's
lien would not lie, and hence, subject to be levied upon under
the execution issued on the judgment obtained by plaintiff in
error. In support of this proposition, it is contended that Th^
Denver Mining & Reduction Company was merely a tenant,
and had the right to remove the machinery on the expiration
or forfeiture of its lease. This question is not really material
in determining whether or not the lien claimed by the plain-
tiffs attached to the machinery. In other words, what the
rights of the lessee may be, with respect to removing the ma-
chinery, as against the lessor, is of no particular moment in
ascertaining the rights of the Hen claimants. The lessor and
lessee might agree between themselves that the machinery
could be removed by the latter when the lease expired, or was
forfeited, or by reason of the relation between them, it might
be that, independent of any agreement, the machinery could
be removed by the lessee on the happening of either of these
events, and that, as between them, the machinery, in deter-
mining their rights, would not be regarded as a fbrture or part
of the realty, but their private agreement, or their respective

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528 Horn v. CLark Ha&dwakb Co. [54 Colo.

rights in the machinery by operation of law, would not change
the character of this property, so far as the rights of third per-
sons were concerned, who claimed a lien thereon, as realty. —
Mallie Gibson C. M. & M. Co. v. McNichols, 51 Colo. 54;
Dobschuetz v. Holliday, 82 111. 371; Hathaway v. Davis,
supra.

The vital question, then, is whether or not, as between the
lien claimants and the lessee, the machinery in the building
was a part of the lease-hold interest of the latter. In deter-
mining this question the test is whether the lessee placed the
machinery in {he building and attached it either to that struc-
ture, or the ground therein, in whole or in part, with the in-
tention that it should become a part of a plant intended, as a
whole, to constitute a mill or reduction works, the purpose
of which was to extract the values from tailings and crude
ores. If that was the object, and its use was necessary or es-
sential for the successful operation of the mill for the purposes
designed, then the machinery so placed became a part of the
lease-hold interest of the lessee. — MolUe Gibson C M. & M.
Co. V, McNichols, supra; Carey Hardware Co. v. McCarty,
supra.

That such was the purpose of the lessee, that the machin-
ery was necessary and essential to accomplish the object for
which it was installed, and that each article was a component
part of the whole, the evidence establishes beyond question.
The engine and boiler were attached to the ground within the
building. The motive power generated by these fixtures was
communicated to shafting attached to the building, which, in
turn, operated other machinery therein. All these appliances
were reasonably necessary and essential to effect the purpose
for which they were placed in the building, and were, there-
fore, a part of the lease-hold interest of the lessee. Had The
Denver Mining & Machinery Company been the owner of the
fee of mill-site No. 39, and as such owner, had placed the ma-
chinery in the building in the same manner and for the same
purpose it did, as lessee, it would hardly be contended that

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Jan., '13.] Horn v. Ci^ark Hardware Co. 529

such machinery could be levied upon under execution as per-
sonal property, either as affecting its rights or the rights of
others having a prior lien upon the building in which it was
placed. In such -circumstances the machinery would admit-
tedly be a fixture. In the case at bar the situation and rights
of the parties are no different from what they would be in the
supposed /case, for the obvious reason that the question of
whether the machinery was or was not a fixture must be de-
termined by the same rule in each case. We have determined
that a lease-hold estate may be^the subject of a lien, and logi-
cally, it must follow that whatever is a fixture of that estate
canbe subjected to the same lien. That such is the purpose of
the act is made clear by a consideration of another portion of
section 4627, supra^ whereby it is ' provided : "The liens
granted by this act shall extend to and cover so much of the
land whereon such building, structure, or improvement shall
be made as 'shall be necessary for the convenient use and occu-
pation of such building, structure, or improvement, ♦ ♦ *
and shall attach to all machinery and other fixtures used in
connection with any such lands, buildings, mills, structures, or
improvements." Suppose the lessee should sell its lease-hold
interest without any reservation; the machinery with which
the mill is equipped would pass to the purchaser without being
specially mentioned, or if it should sell the mill with 'a clause
conveying its appurtenances and fixtures, such machinery
would have been conveyed to the vendee; or suppose The Den-
ver Mining & Reduction Company had seen fit to raise the
question that its mill could not be dismantled by the execution
creditor levying upon and removing the machinery therein as
personal property, for the reason that such machinery was a
part of its estate in the premises, would it not be held, without
question, that it was not personal property? Counsel for plain-
tiff in error cite cases which, seemingly, sustain his conten-
tion ; but an examination of these cases discloses that they are
distinguishable from the one at bar, either because of the facts
or for the reason that the lien acts are different froni ours, t

Digitized by VjOOQIC

530 Horn v. Clark Hardware Co. [54 Colo.

Counsel concedes that if the machinery had been made a part
of the realty, and our statute provided for a lien against a
lease-hold interest, it might, as a part of the realty, be in-
cluded in a general lien against such realty. We think our
statute, as a whole, beyond question, does provide for a lien
against a lease-hold interest, and in determining to what such
lien attaches, the rule is no different from what it would be if
the lien was asserted against an estate in fee.

It is also contended the evidence discloses that some of
the articles for which liens were claimed and allowed were not
lienable, and that, therefore, the liens must fall. This is not
tenable. To the extent that articles not lienable, if any, were
furnished the lessee, liens should not have been allowed; but
this would not defeat the entire liens of the respective claim-
ants, as in such circumstances they would be entitled to a de-
cree awarding them liens for the value of such articles fur-
nished by them as were lienable. If liens were allowed for the
value of articles not lienable, the judgment (if the record jus-
tified it) might be modified; but no error is assigned which
raises this question, and hence it is not presented for consid-
eration.

The final question urged is, that the liens must fail be-
cause the owner of the property — that is. The Pewabic Con-
solidated Gold Mines Company — was not made a party. This
contention is based upon section 4035, R, S. 1908, which pro-
vides that "The owner or owners of the property to which
such lien shall have attached, and all other parties claiming of
record any right, title, interest or equity therein, whose title
or interests are to be charged with or affected by such lien,
shall be made parties to the action." The owner meant by this
section is the person upon whose interest in the property the
lien is claimed, and sought to be established. No claim was
made by claimants as against the interest of The Pewabic
Company. The liens asserted and sought to be established by
claimants were limited to the interest of the lessee, and it was,

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Jan., '13.] Wolfe v. Abbott. 531

therefore, the owner of the property, as contemplated by the
section of the statute above quoted.

The judgment of the district court is affirmed.

Judgment affirmed.

Chief Justice Musser and Mr. Justice Hijjl, concur.

[No. 7809.]

Wolfe v. Abbott et al.

1. BviDi^CE— Judicial yotice — A municipal ordinance 1b not ju-
dicially noticed but must be established by proof.

2. Municipal Corporations — Power to Abate Nuisances — Para-
graph 46 of sec. 6525 of the Revised Statutes is not self-executing.
The power granted must be exercised through an ordinance. The
power granted by paragraph 53 of the same section, to prohibit "with-
in one mile beyond the outer limits of the town any unwholesome or
offensive business/' has no application to places for the keeping or
sale of intoxicating liquors, but only to such things as are offensive,
or unwholesome within the ordinary use of the term, e. g., slaughter
houses, pig-sties, feeding places, and the like; and even conceding the
application of the provision to places kept for the sale of intoxicating
liquors, it confers no power to declare such establishments beyond the
limits of the town a nuisance.

3. Manner of Exercising the Power — The procedure for en-
forcing an ordinance prohibiting the sale of intoxicating liquors should
be regulated by ordinance. If such establishments are declared a
nuisance one charged with' the offense should be prosecuted and tried
on the specific accusation of maintaining a nuisance. The manner of
effecting the abatement should be prescribed, and the order of abate-
ment should conform to the ordinance, and the manner of proceeding
should not be left to the discretion of the officer.

4. Municipal Ordinance — Prosecution — Conviction of Offense Not
Charged — Charge of "selling and keeping liquor for sale." Conviction
of "maintaining a nuisance," a fine imposed, and abatement of the
nuisance ordered. The conviction is void.

Digitized by VjOOQIC

532 Wou^E V. Abbott. [54 Colo.

5. Publication— The statute (Rev. Stat., sec. 6673), provides

that all by-laws of a town imposing a fine, etc., shall be published in
a manner specified, and "shall not be in force until the expiration of
five days after they nave been so published." An ordinance declaring
the keeping for sale of any intoxicating liquors a nuisance, and that
the same "may be abated as any other nuisance." The provision quoted
was never published. Held^ that such provision never became of
force, and a judgment convicting the accused party of maintaining
a nuisance, and directing the abatement of such nuisance. Is no Jnsti-
flcation for acts done pursuant thereto.

Error to Washmgton District Court. — ^Hon. H. P.
BuRKE^ Judge.

Messrs. Au^en & Webster, for plaintiff in error.

No appearance for defendants in error.

Mr. Justice Garrigues delivered the opinion of the
court:

I. The complaint alleges that June 26, 1908, defendants
unlawfully, wilfully, maliciously and forcibly entered plain-
tiff's residence, about half a mile from the town of Akrcm,
Colorado, when he was away, and his wife and child were at
home, and took therefrom and destroyed eight barrels of beer
and one barrel of whiskey, and greatly frightened and made
ill and sick his wife and child, to his damage, etc.

Defendants pleaded in justification that plaintiff Wolfe
was tried and convicted before the police magistrate for main-
taining a nuisance, by storing and keeping for sale at his resi-
dence, within one mile beyond the outer boundaries of the
town, intoxicating liquors, in violation of a town ordinance,
which nuisance, upon his conviction, the police magistrate or-
dered abated ; that pursuant to the order, defendant Abbott as
marshal, and the other defendants, excepting Mitchell, as act-
ing marshals of the town, abated the nuisance by seizing, re-
moving and destroying the liquor. The district court after
hearing the evidence dismissed plaintiff's suit and he brings
the case here on error.

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Jan., '13.] Woi^E V. Abbcxtt. 533

2. On the afternoon of June 26, 1908, plaintiff Wolfe
was tried and convicted in the police magistrate's court of the
town of Akron. Immediately thereafter defendants, except
Mitchell, went to his residence about half a mile beyond the
town limits, when he was absent, entered the house, and
against the protests of his wife, seized and took from the house
and destroyed four or five barrels of beer ancj a part of a bar-
rel of whiskey. This suit by Wolfe is to recover damages for
the alleged trespass.

3. One person has no right to enter and search an-
other's home, and seize, carry away and destroy his prop-
erty without proceeding according to the law of the land. —
Canon City v. Manning, 43 Colo. 1 44-1 51.

Defendants attempted to justify their conduct under an
ordinance, which they say plaintiff was duly convicted of vio-
lating. The district court could take no judicial notice of the
town ordinances. Defendants were obliged to introduce the
ordinance upon which they relied, in evidence. It was ad-
mitted over plaintiff's objection, and is as follows :

"Ordinance No. 74."
"An ordinance concerning the sale of intoxicating liquors."

"Sec. II. It shall be unlawful for any person to sell,
barter, exchange, offer, keep or store for the purpose of sell-
ing, or to give away, offer to give away, or to keep or store
for the purpose of giving away, in any building within the
corporate limits of the town of Akron or within one mile of
the outer boundaries of said town, any intoxicating, malt,
vinous, mixed or fermented liquors ; and the sale, storing, bar-
tering, exchanging, offering or keeping for sale or keeping or
storing for the purpose of giving away any such liquors with-
in any building as aforesaid, is hereby declared to be a nuis-
ance, and may be abated as any other nuisance, * * * Any
person violating the provisions of this section shall be deemed
guilty of an offense, and upon conviction thereof shall be fined
in a sum not less than $100 nor more than $200 for each of-
fense."

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534 Wolfe v. Abbott. [54 Colo.

"Sec. 14. Whereas in the opinion of the board of trus-
tees, an emergency exists requiring that this ordinance take
effect and go in (force) from and after its passage."

To prove plaintiff was convicted of violating this ordi-
nance, defendants introduced the journal or written docket en-
tries of the trial, kept by the police magistrate, as follows :

"State of Colorado,

ss.
County of Washington,
Town of Akron.

The Town of Akron,

Plaintiff,

Willis Wolfe,

Defendant.
In the police court
within and for the
town aforesaid, be-
fore T. D. Mitchell,
police magistrate.
June 23, 1908. Complaint made and filed by John F.
Dole, charging the violation of ordinance 74. Selling liquor
and keeping liquor for sale, in Akron, Colorado, and within
one mile thereof, and warrant issued for the arrest.
June 25. Case set for June 26, at 9 o'clock A. M.
June 26. Court convened and case continued till i
o'clock P. M. * * * Trial had and defendant found
guilty of maintaining a nuisance in the City Drug Store in
Akron, Colorado, and fine assessed at $200 and costs of suit,
and nuisance ordered abated. Defendant found guilty of
maintaining a nuisance within one mile of city limits, and in
the Yeamans house or ranch. Fine assessed at $200 and costs
of suit and nuisance ordered abated as per order to the town
marshal, and defendant committed to the town jail until fine
and costs are paid."

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Jan., '13.] Woi^FE V. Abbott. 535

4. We do not know whether the complaint upon which
plaintiff was tried and convicted, and the alleged order abat-
ing the nuisance, given by the magistrate upon which it is
claimed defendants acted, were in fact introduced in evidence
or not. They are not in the record, or bill of exceptions,
which recites that it contains all the evidence. The police
magistrate's court was a court of inferior jurisdiction, and its
record had to recite the facts necessary to confer jurisdiction.
There being no copy of the complaint here, we can only deter-
mine the nature of the charge by the docket entries. This
record kept by the magistrate, discloses no lawful authority or
justification for the conduct of the defendants in entering
plaintiff's residence against his will, seizing, removing and de-
stroying his property. The magistrate's docket shows that
Wolfe was charged with, and tried for selling and keeping for
sale in the town, and within one mile beyond the outer boun-
daries thereof, intoxicating liquor in violation of ordinance 74 ;
that he was convicted of maintaining a nuisance at two differ-
ent places, at his city drug store in town, and at his residence
beyond the town limits; that he was fined $200 for each of-
fense, and each nuisance ordered abated. He was not charged
with or tried for maintaining a nuisance, hence there could
be no judgment finding him guilty of that offense. He was
charged with selling and keeping liquor for sale in violation
of the ordinance. There was no complaint or trial for keep-
ing a nuisance, and the order of abatement, if one was given,
was illegitimate. One cannot be convicted, fined under a town
ordinance for maintaining a nuisance, imprisoned to collect the
fine, and his property seized and destroyed to abate the nui-
sance, without due process of law. — Houston v. Walton, 23
Colo. App. 282.

5. Section 6673, Rev. Stats. 1908, provides:

"All ordinances shall, as soon as may be after their pas-
sage, be recorded in a book kept for that purpose, * * *
and all by-laws of a general or permanent nature, and those

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536 Woi^E V. Abbott. [54 Colo.

imposing any fine, penalty or forfeiturie, shall be published in
some newspaper published within the limits of the corpora-
tion, * * * and it shall be deemed a sufficient defense to
any suit or prosecution for such fine, penalty or forfeiture, to
show that no such publication was made ; * * * such by-
laws and ordinances shall not take effect and be in force until
the expiration of five days after they have been so published."
One of the issues in the district court was, that the ordi-
nance had not been published, and it was admitted on the trial
that the italicized portion, "And may be abated as any other
nuisance,'* was not published. This ordinance was in force as
published. The unpublished portion never took effect, hence,
the omitted part could constitute no justification. — Union Pa-
cific Co, V, Montgoviery, 49 Nebr. 429 ; Unimi Pacific Co, v.
McNally, 54 Nebr. 112; O'Hara v. Town of Park River, i N.
D. 279; Kneih v. People, 50 How. Prac. 140; Herman v. City
of Oconto, 100 Wis. 391 ; Carpenter v, Yeaton Borough, 208
Pa. 396; Nat. Bank v. Town, 48 Fed. 278.

6. Section 6525, paragraph 45, R. S., 1908, relating to
the powers of towns, provides, they shall have power "To de-
clare what shall be a nuisance, and to abate the same, and to
impose fines on parties who may create, continue or suffer a
nuisance to exist."

It is claimed this statute gave power to the town to dfr-
clare what should constitute a nuisance, and to abate it with-
out any ordinance; therefore the clause omitted from the
printed ordinance was immaterial because the town had that
power anyway, under the statute, without the ordinance.
This statute is not self-executing. It grants the power; but it
must be exercised through an ordinance.

7. Assuming, under paragraph 45, the town had power
to declare it a nuisance for one to sell or keep for sale intoxi-
cating liquor inside the corporate limits, and, by ordinance
regulating the procedure, to abate the nuisance, this docs not
confer power to declare what shall constitute a nuisance within
a mile beyond the outer boundaries, and abate it. Towns

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Jan., '13.] Wolfe v. Abbott. 537

possess such powers as are granted them. We are not un-
mindful of the fact that paragraph 18 of the section confers
powers upon towns by ordinance to prohibit the seUing or giv-
ing away of intoxicating liquor within one mile beyond the
outer boundaries ; but the manner of enforcing the prohibition
is through an ordinance imposing a fine.

Paragraph 53 provides they shall have power to prohibit
within or within one mile beyond the outer boundaries of the
town, any offensive or unwholesome business or establish-
ment, and to prohibit the carrying on of any business or estab-
lishment in an offensive or unwholesome manner within one
mile beyond the outer boundaries of the town. This statute
does not apply to liquor, and if it did, there is no power given
to declare the enumerated matters a nuisance with power to
abate the same. The town must prohibit the things men-
tioned, and enforce the prohibition by fine and imprisonment.
The power by ordinance to prohibit and abate a nuisance
within a mile beyond the outer boundaries of towns is not con-
ferred by this paragraph. Besides, it must be evident to any
comprehensive mind, that paragraph 53 was intended to apply
to those things which are offensive to the senses, or unwhole-
some in the sense in which the terms are ordinarily used. They
refer to such things as dead carcasses, offensive and unwhole-
some slaughter houses, privy vaults, pig sties, feeding pens
and the like.

8. The mere sale of or keeping for sale, intoxicating
liquors, is not a nuisance per se; but the town council had
power to declare it a nuisance by ordinance. — Houston v. Wal-
ton, 23 Colo. App. 282.

This power did not authorize the police magistrate, when
Wolfe was tried and convicted before him on a charge of sell-
ing liquor contrary to the ordinance, to summarily declare him
guilty of maintaining a nuisance and order the marshal to
abate it. The procedure should be regulated by an ordinance,
and the manner of abatement not left to the discretion of the
officer executing the order. The ordinance provides that this

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538 Woi^E V. Abbott. [54 Colo.

nuisance shall be abated as any other nuisance, which means
in a lawful manner. The ordinance after declaring what
should be a nuisance, should have provided the manner of abat-
ing it, and the defendant should have been tried for maintain-
ing a nuisance, and if convicted, the order of abatement
should have been in conformity with the provisions of tl.r
ordinance. Reversed and Retnanded.

Chief Justice Musser concurs specially.

Mr. Justice Scott concurs.

Chiei^ Justice Musser specially concurring in a re-
versal :

While I concur in a reversal of the judgment, I am un-
able to agree with all that is said in the opinion of Mr. Jus-
tice Garrigues, and am, therefore, impelled to give my reasons
for a reversal.

The eighteenth sub-division of section 6525 of the Re-
vised Statutes of 1908 gives to boards of trustees in towns
such as Akron power over liquors in language as follows:
"To have the right, subject to the laws of the state, to license,
regulate or prohibit the selling or giving away of any intoxi-
cating, malt, vinous, mixed or fermented liquor within the
limits of the * * * town, or within one mile beyond the
outer boundaries thereof, except where the boundaries of the
two * * * towns adjoin; the license not to extend be-
yond the municipal year in which it shall be granted, and to
determine the amount to be paid for such license ;" etc.

This statute gives a town the same power to regulate or
prohibit the sale of intoxicating liquors within one mile be-
yond its boundaries as is given to it with respect to the same
matter within its limits. If the town may prohibit such sale
within its boundaries by the exercise of a power given it, the
sale may be prohibited in the same way within one mile be-
yond its boundaries. Sub-division forty-five of the same scc-

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Jan., '13.] Woi^FE V. Abbott. 539

tion gives to such boards of trustees the power "To declare
what shall be a nuisance and to abate the same, and to impose
fines upon parties who may create, continue or suffer nuisances
to exist/' This sub-division grants the power, (i) to declare
what shall be a nuisance, (2) to abate the same, and (3) to
impose fines upon the partite designated. It appears to me
from this sub-division that the town may abate a nuisance by
proceeding against the thing itself or procure its abatement by
imposing a fine upon the person who may suffer it to continue,
or abate the nuisance in some way and fine the party respon-
sible. This sub-division is not self-executing. It is necessary
for a town to do something to carry the power granted into
effect, and in the sixty-sixth sub-division of the same section a
town is given the power to pass all ordinances and rules and
to make all regulations proper or necessary to carry into effect
the power granted. By virtue of the eighteenth sub-division
aforesaid, a town may, by an ordinance, declare unlawful the
selling of intoxicating liquors within its limits or within one
mile beyond its outer boundaries. There is no doubt, under
the authorities, that when a town has, by ordinance, made it
unlawful to sell or keep for sale intoxicating liquors within its
limits it may denounce such selling or keeping for sale as a
nuisance, and under such circumstances the denunciation is
conclusive. — Lctuzel v. Bushnel, 197 111. 20; Hotiston v. Wal-
ton, 23 Colo. App. 282, 129 Pac. 263, and authorities therein
cited. It may do this with reference to the selling or keeping
for sale of intoxicating liquors within one mile of its limits,
because by sub-division eighteen it is given the same power
with respect to intoxicating liquors within one mile of its
limits as within its limits. After a town has thus declared
such sale or keeping for sale a nuisance, it may provide for the
abatement thereof. Like the power to denounce the nuisance,
the power to abate it can not be effective until the town elects
to exercise the power and declares how it shall be exercised.
This power is not self-executing, but must be carried into ef-

Digitized by

*^oogle

540 Wou^B V. Abbott. [54 Colo.

feet by some affirmative action of the town. This must be
true, for nuisances may be abated in various ways, and it was
surely not intended to leave the manner of their abatement to
the whim of the officers or persons authorized to abate them.
The particular nuisance denounced in this case was not
the liquor itself, but it was the unlawful sale or keeping for
sale that constituted the nuisance, and it was the selling or
keeping for sale that was to be abated. It might have been
abated by destroying the liquor, by removing it more than one
mile beyond the limits of the town, by finding the person sell-
ing it or keeping it for sale for each day of its maintenance,
so that he would be induced to cease selling it or keeping it
for sale, or the town might conclude that its abatement might
be obtained by fining the person a single amount. It seems to
me that it is for the board of trustees, to whom the power to
abate is granted, to determine in some suitable way the lawful
manner in which they will exercise the power, and the man-
ner, if lawful, so determined by the board is the one to be fol-
lowed by the town officers. What did the trustees of the town
of Akroii do in r^^ard to this matter? The record discloses
section 11 of ordinance 74 of the town of Akron, as set out
in the opinion of Mr. Justice Garrigues. It is plain that the
portion of the printed ordinance, which was not published, to-
wit, "and may be abated as any other nuisance," is not a part
of the ordinance. If we assume that the rest of the ordinance
stands, which is the most that can be assumed for the defend-
ants in error, the section provides that the selling or keeping
for sale of intoxicating liquors within the territory mentioned
is unlawful, denounces such selling or keeping for sale as a
nuisance and imposes a fine for any violation of the provisions
of the section. The only penalty prescribed by this ordinance
for the violation of any of its provisions is a fine. The only-
manner declared by the ordinance by which an abatement was
sought or might result was the imposition of a fine. The
trustees, by this ordinance, had not determined to abate the

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Jan., '13.] Woi^E V. Abbott. 541

nuisance therein denounced by a destruction of the liquor. If
the ordinance had provided that, upon conviction before the
magistrate, the liquor should be seized and destroyed, an en-
tirely different question would be presented and one upon
which I express no opinion because it is not in this record.

When the defendant was charged in the magistrate's
court with selling and keeping for sale intoxicating liquors, it
appears to me that he was sufficiently charged with maintaining
a nuisance, for it was the selling or keeping for sale of liquor
that was denounced as a nuisance and the declaration in the
ordinance that it was a nuisance was conclusive on that point,
as is amply sustained by the authorities cited above. The
trial and judgment in the magistrate's court was a judicial de-
termination of the fact that he did maintain a nuisance, and
the magistrate imposed a fine as provided in the ordinance.
That is as far as the magistrate could go under that ordinance.

If the words not published, to-wit, "and may be abated as
any other nuisance," were a part of the ordinance, still the de-
fendants would not be justified so far as this record is con-
cerned, for no ordinance of the town of Akron was introduced
showing that the board of trustees had elected to abate such a
nuisance by the destruction of the property. The court would
not be able, under such circumstances, to say that the nuisance
was abated as any other nuisance.

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542 PEOPI.E V. HoAG. [54 Colo.

[No. 7823.]

The Peopi^ i^or the Use of the Lamar PuBUSHiNa
Company v. Hoag et au

Public Officeb— Tiototion of Public Duty^LiabUity to Private
Action—The statute directing the county clerk to publish, prior to
every election, the list of all nominations (Rev. Stat., Sec. 2159)
prescribes a public duty, for the benefit of the public only. It Imposes
upon the clerk no duty towards the publisher of any newspaper, and
his refusal to make such publication In the only dally newspaper of
the county affords no action to such publisher.

Error to Prowers District Court, — Hon. Henry Hun-
ter, Judge.

Mr. C. C. GooDALE, for plaintiff in error.

Messrs. Merriix & McCarty, for defendants in error.

Chief Justice Musser delivered the opinion of the
court :

The plaintiff in error filed a complaint in the court below,
alleging substantially that Hoag was the county derk of
Prowers county, and the National Surety Company was surety
on his official bond; that the publishing company was the
owner and publisher of the only daily newspaper in that
county ; that it was entitled to have published, and that it was
the duty of the county clerk to publish, therein, for at least six
consecutive days prior to the election day in November, 1910,
the list of all the nominations to office to be voted for at that
election as provided in section 2159, Rev. Stat.; that the pub-
lishing company demanded of the county clerk that he pub-
lish this in the said daily newspaper for six successive days
prior to the election, which the county clerk, in breach of his
duties in that behalf, failed and refused to do, whereby the
publishing company was damaged.

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Jan., '13.] People v. Hoag. 543

To this complaint a demurrer was filed, on the ground
that the complaint did not state facts sufficient to constitute
a cause of action. This demurrer was sustained by the court,
and the plaintiff refused to further plead ; whereupon, the com-
plaint was dismissed and judgment rendered against the plain-
tiff for costs.

It is the contention of the plaintiff in error that it was
the duty of the county clerk to publish the list of nominations
in the daily newspaper, and if the clerk would have performed
his duty in that behalf the paper would have received from the
county, in payment for such publication, the sum of $972.00,
and that because the plaintiff refused to publish it the publish-
ing company was damaged in that sum. The defendants in
error deny that the statute imperatively required the clerk to
publish the list in a daily newspaper. We will not determine
this, but will assume that the statute required that the clerk
should publish the list in a daily newspaper if there was one
published in his county. The plaintiff in error contends that
while the duty of the county clerk to publish the list of nomina-
tions in the daily newspaper was a public duty, yet in this public
duty was involved also a duty to the publishing company, and
that the latter has suffered a special and peculiar injury by rea-
son of the non-performance of the duty by the county clerk on
the principle announced in Cooley on Torts, (3rd Ed.) p. 757,
and 23 Am. and Eng. Ency. of Law, p. 379. Gage v. Springer,
71 N. E. 860, is cited to show the applicability of that principle
to this case. There, however, the individual had paid a special
assessment for a public improvement of a certain quality, and
the public official had corruptly permitted the substitution of
an inferior and cheaper quality. The publishing company, in
this instance, did not part with any special consideration to
obtain the publication, nor is the clerk charged with any cor-
ruption in failing to publish. Nor is the case of Wright v.
Shanahan, 149 N. Y. 495, of assistance. There, it was the
duty of the official to remove flush boards from the crest of a
dam so as to permit the waters of a lake to flow over it until

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544 PeopwS v. Hoag. [54 Cc^o.

the spring freshets had passed. As we understand that case^
the duty imposed, and which had not been performed, was
mainly for the purpose of preventing the impotmded water
from overflowing private lands. Of course under such cir-
cumstances, the injury was peculiarly of a private nature.
Raynsford v. Phelps, 43 Mich. 342, is another case cited by
plaintiff in error. There a statute provided that it was the
duty of a tax collector to make collection from personal prop-
erty upon the land before resort should be had to the land
itself. Instead of performing that duty the collector falsely
made a return of no goods, which made the land liable and it
was sold. There the duty to take the personal property was
more for the individual than for the public. The only interest
the public had was that the tax should be collected, and it
made no special difference to it whether it was collected out of
the personal property or the land.

The statute requiring the clerk to publish the list of
nominations was clearly intended for the benefit of the public,
and not for the benefit of newspapers. The benefit to the lat-
ter was only incidental. Certainly the law was not passed
with the idea of benefiting publishers. So that the duty im-
posed was purely a public one. When the duty imposed upon
an officer is one to the public only, its non-performance must
be a public, and not an individual injury, and must be redressed
in a public prosecution of some kind, if at all. — 2 Cooley on
Torts, (3rd Ed.) 756. Numerous instances are given by the
author. For instance, the duty of a policeman is to watch the
premises of individuals and protect them against burglary and
arson. If he goes to sleep in front of a house, and a burglar
enters it or it bums down, which would have been prevented
had the policeman been awake, the owner can not recover from
the policeman, for the latter owed the former no legal duty.
His duty was to the public. The author says further on :

"An individual can never be suffered to sue for any in-
jury which technically is one to the public only; he must show

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Jan., '13.] Peofus v. Hoag. 545

a wrong which he specially suffers, and damage alone does
not constitute wrong."

In Miller v. Ouray B. L. & P. Co., 18 Colo. App. 131,
the minor son of the plaintiff, while confined in a jail, charged
with a criminal offense, was suffocated by a fire which toc4c
place in the jail. The fire was charged to have been caused by
defective electric wiring of the building. The county commis-
sioners were made defendants with the electric light company.
The plaintiff sought to hold the commissioners liable because
the statute required them to make personal examination of the
jail, of its sufficiency and management, and to correct all ir-
regularities and improprieties found therein, which it was
charged they failed to do. It was held that the duty imposed
by the statute was a public one, and its breach was held not to
constitute a private wrong for which the injured party could
recover in an individual action. Colo. P. Co. v. Murphy, 78
Fed. 28, was a case in which MurjAy, in his complaint, al-
leged that he was the lowest reliable and responsible bidder on
a paving contract in the city of Denver, notwithstanding
which, the board of public works awarded the contract to the
paving company, in violation of a provision of the city charter
that the contract should be awarded to the lowest reliable and
responsible bidder. The court held that it was obvious that
the provision of the charter was not enacted for the benefit of
bidders, and that Murphy had no right of action. The court
quoted from Strong v. Campbell, 11 Barb. 135, 138, wherein
it was said :

"Wherever an action is brought for a breach of duty im-
posed by statute, the party bringing it must show that he had
an interest in the performance of the duty, and that the duty
was imposed for his benefit. But where the duty was created
or imposed for the benefit of another, and the advantage to
be derived to the party prosecuting, by its performance, is
merely incidental, and no part of the design of the statute, no
such right is created as forms the subject of an action."

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546 Beck v. Schooi. District. [54 Colo.

In Talbot P. Co. v. Detroit, 67 N. W. 979 (Mich.), the
substance of the opinion is stated in the syllabus, thus :

^*Though a city charter requires contracts to be let to the
lowest bidder, the lowest bidder under a contract proposed to
be let by it, whose bid has been rejected, has no right of action
at law against the city, to recover the profits which might have
been made had his bid been accepted."

It was so held because the charter provision was not
passed for the benefit of the bidder, but as a protection to the
public. So in the present case, the statute was not passed in
order that newspapers might make money by the publication
of the list of nominations, but in order that the voters should
be advised of the candidates whose names would appear upon
the ticket at the election. The ruling of the district court,
therefore, in sustaining the demurrer to the complaint, was
right, and the judgment, is affirmed. Judgment affirmed,

Mr. Justice Garrigues and Mr. Justice Scott concur.

[No. 7825.]

Beck v. ScHooi^ District No. 2, in the County of Bent.

1. Equity — Reformation of Writings — The general rule Is that a
contract entered into under mistake as to some essential element may
be avoided In a proper action.

The defendant was indebted> to plaintiff in |3,500, the balance of
the contract price for the erection of a school-house. Through mis-
take as to the amount which he had received he stated the balance
due him at |2,285.00, and claimed the further sum of |200.00 on ac-
count of extras, and damages by reason of ^delays of the district A
compromise was finally effected by which he accepted |2,385.00 in
full settlement of his demand, each party believing at the time that
this was the true balance of the contract price. Plaintiff was entitled
to vacate the settlement, and have a new settlement made based upon
tre true facts.*

2. Mistake of One Party Only — In the same case it was said

that If defendant, being conscious of plaintiff's mistake, took advan-
tage of it, he would still be enlltled to relief.

*8yUal>us by Musser, C. J.

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Jan., '13.] Beck v. School District. 547

Error to Bent District Court. — Hon. Henry Hunter, .
Judge.

Mr. H. L. LuBERS, for plaintiff in error.

Mr. Au^N M. Lambright, for defendant in error.

Chie^ Justice Musser delivered the opinion of the
court :

The object of this proceeding is to review the action of
the district court in sustaining a general demurrer to a com-
plaint filed by the plaintiff in error, and a judgment against
him for costs, he having elected to stand on the complaint.
The complaint alleged that the plaintiff had entered into a
contract with the school district to erect a school-house for
$5,785.00, setting out the contract; that the plaintiff erected
the school-house, and thereafter on the 26th day of May, 1910,
sent to the directors a statement of the amount due him,
wherein he stated that the balance unpaid on the contract price
was $2,285.00, and there was due him for extras $100.00,
and for damages for delay of removal of the old building and
material $100.00, making a total of $2,485.00; that on May
27th, believing the statement rendered and sent by him to be
true, he wrote a letter to the school-board offering to accept
$2,300.00 in full, providing settlement was made at once.
Then comes the following allegation :

"That on the 4th day. of June, A. D. 1910, the plaintiff
and defeildant came to an accounting and settlement, they
mutually believing the statement made by the plaintiff to the
defendant, dated the 26th day of May, 1910, wherein a bal-
ance of $2,285.00 was shown in favor of the plaintiff on the
contract price for the said building, to be a correct statement
of the balance due, and both parties, acting in that belief;
thereupon entered into a written settlement, which is in words
and figures as follows :

Then follows the contract of settlement, wherein it was
recited that the plaintiff and the school-district through its

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548 Beck v. School District. [54 Colo.

board of directors, entered into a written agreement for the
erection of the school building ; that divers sums of money had
been paid to the plaintiff on account of the contract; that
divers disputes existed between the parties, the board claiming
that the contract had not been kept by the plaintiff, and that
they had been delayed in the use of the building and thereby
greatly damaged, and that they became liable for architect's
charges, time and expense, and had been otherwise damaged,
and that the plaintiff also claimed that he had been
delayed with his work by the failure of the board to remove
the old school-house and furnish cement on demand ; that the
plaintiff had offered to compromise the differences and to take
and accept the sum of $2,385 in full payment, satisfaction and
discharge of all the balance due on account of the amounts to
be paid under the said contract, and all extras and damages
of whatever nature, and in full for all sums due him, and the
district had accepted the compromise offered. After the re-
cital of these matters, the contract stated that in consideration
of the premises, and of one dollar to each party in hand paid
by the other, and in consideration of the payment of $2,385
to the plaintiff, the receipt of which he acknowledged, each
party acknowledged that settlement in full had been made of
all amounts due or to become due under the building contract,
or any extras or damages, in whatever manner, arising out of
said contract and of all damages or claims held by said district
against the plaintiff, on account of any delays, damages, or de-
fault in any manner, and the parties released and discharged
each other from all claims, debts or liabilities which esdsted
between them. The complaint then alleged that since the set-
tlement, the plaintiff had discovered error and false credit
given the district, of which he was ignorant at the time, and
that the statement of account rendered by him, showing a bal-
ance of $2,285 unpaid him on the contract price, was error and
wrong ; that the balance due was $3,285, and set forth the pay-
ments made; that the error arose on the part of the plaintiff,
through the fact that he was erecting another school-house for

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Jan.,'i3-] Bbck v. School Distmct. 549

district No. 7, and had received a payment from that district
of $3,500, and, through inadvertence, error and mistake,
mixed the accounts of the two districts, and had given the de-
fendant district a credit of $3,500, which was $1,000 more
than he had received from it, and then alleges :

"That, on June 4th, 1910, the plaintiff, believmg that he
had received from the defendant the sum of $3,500.00 on such
contract, and the board of directors of the defendant believ-
ing that they had paid such sum unto the plaintiff, they and
each of them, in that belief, entered into said final written set-
tlement of said date; and that said settlement is incorrect in
that the balance therein should have been $3,300.00 in favor
of the plaintiff instead of $2,300.00."

The complaint then goes on and alleges that as soon as
the plaintiff discovered the error, about one week after the set-
tlement, he notified one of the directors of the mistake and
asked that it be corrected, and that the defendant pay him the
further sum of $1,000; that from time to time thereafter he
had demanded of the several directors the payment of said
sum, and that the directors refused to correct the settlement of
June 4th. Plaintiff prayed to be let in to prove the error in
stating the account and in the settlement of June 4th, and that
the same be corrected, and that there be judgment against the
defendant for $1,000 with interest.

There is no doubt that the complaint alleges that the set-
tlement of June 4th, evidenced by the written contract, was ^
made upon the understanding by each of the parties that the
balance due on the contract price was $2,285, ^^d that it al-
leges that both parties were mistaken about this and that the
true amount unpaid on the contract price was $3,285 instead
of $2,285. So that it appears from the complaint that the
compromise offer made by the plaintiff, and its acceptance by
the defendant, and the written agreement of settlement of June
4th, occurred without consideration by either of the parties of
this difference of $1,000, and was based upon mutual error
and mistake. There can be no question that the amount un-

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550 Beck v. School District. [54 Colo.

paid from the district to the plaintiff on the contract price was
an essential element to be considered in the settlement of the
controversy existing between them, and that the complaint al-
leges that there was a mistake made as to this element. In i
Page on Contracts, sec. 71, it is said that it is substantially un-
questioned that the general rule is that a contract entered into
because of mistake as to an essential element is void. Perhaps
it is better to say that the general rule is that a contract en-
tered into because of a mistake as to some essential element
may be avoided in a proper action. If the plaintiff made his
offer of compromise under the mistaken idea that he had re-
ceived $3,500 from the district when he had received but $2,-
500, and the directors, falling into the same error, or knowing
that the plaintiff was in error, took advantage of it, accepted
the compromise offer, whereupon the contract of full settle-
ment was made, it certainly seems that in equity and good
conscience the plaintiff ought to be relieved from such a con-
tract, induced by such an error, and an examination of the
authorities show that they are practically unanimous in saying
that such a mistake will vitiate such a contract. In i Page on
Contracts, sec. 72, it is said :

"So if A gives his note to B, thinking that there is a bal-
ance due from him to B for which such note is given, when in
fact nothing is due, such note may be avoided as to B or an
indorsee with notice. Thus if A is mistaken as to the amount
of his indebtedness and under such mistake gives a note for
too large an amount, equity will give recission and cancel the
note on payment of the amount due, and if he has overpaid
his debt will decree repayment of such excess. A similar rule
exists where one by mistake assumes a debt due him to be
smaller that it is. * * * So if under a mistaken belief
that no credit had been given for a payment which had been
made, and in fact credited, the creditor gives a receipt in full
on payment of less than the real amount due in pursuance of
a contract settling the account, he may recover such difference.
Any other contract entered into under mistake as to the

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Jan., '13.] Castner v. Gray. 551

amount due on a pre-existing liability and based thereon, may
be avoided for such mistake."

In St L. L. B. B. Co. v. Colo. Nca. Bank, 8 Colo. 70, it
is said that an account stated or settled is open to impeachment
for mistakes or errors. The following authorities, wherein
settlements induced by or made through mistakes as to essen-
tial elements occurring in various ways and wherein such set-
tlements were set aside or the injured party permitted to re-
cover the amount lost by the mistake, support the conclusion
that if the allegations of the complaint in this case are true
the plaintiff is entitled to relief: Lowler v. Jennings, 55 Pac.
60; Russell & Co. V. Stevenson, 75 Pac. 627; Gould v. Emer-
son, 160 Mass. 438; Carpenter v. Kent, 5 N. E. 787; Conville
V. Shook, 39 N. E. 405 ; Aultmmi Co. v. Graham, 29 111. App.
77; Powell V. Plant, 23 So. 399; Pink v. Smith, 170 Po. 124.

The complaint sets out the contract of settlement and the
plaintiff prays to be let in to prove the error in the settlement
and that it be corrected. This shows sufficiently that the plain-
tiff desires that the contract of settlement of June 4th be set
aside and a new settlement be made, based upon the true facts,
and undoubtedly, if the allegations of the complaint are true,
the plaintiff is entitled to such relief, and the court erred in
sustaining the demurrer. The judgment is, therefore, re-
versed and the cause remanded for further proceedings in ac-
cordance with the views herein expressed.

Reversed and Remanded.

Mr. Justice White and Mr. Justice Bailey concur.

[No. 7831.]

Castner v. Gray.

1. DnroRCE — Appearance of Defendant — Effect — ^Action by husband
for a divorce. The wife's voluntary appearance dispenses with the
service of process, and confers Jurisdiction upon the court.

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552 Castner v. Gray. [54 Colo.

2. PLEADiNGS-Vud^men^ on the Pleadinga— Where the reply ad-
mits the substantial averments of a sufficient answer defendant is en-
titled to a judgment on the pleadings; and a judgment accordingly,
is not erroneous even though a demurrer pending to the replication
remains undisposed of.

3. Judgment— i?ecord Construed— The record declaring that
plaintifT .elected to "stand upon his replication" held to show that a
demurrer thereto was sustained.

Error to Montrose District Court. — Hon. Sprigg Shack-
LEFORD, Judge.

Mr. Dexter T. Sapp and Mr. James B. Nash, for plain-
tiff in error.

Mr. Hugo Seug and Mr. T. J. Bi^ck, for defendant in
error.

Mr. Justice Garrigues delivered the opinion of the
court :

I. Plaintiff Castner alleges that he employed and paid
the defendant Gray as an attorney at law, to bring a divorce
action in the county court of Montrose county against his wife
Nellie Castner; that the defendant did not use ordinary care
and diligence in bringing, conducting and prosecuting the
case for plaintiff in this: that he filed the complaint May 10,
1907, but neglected to issue any summons, and without caus-
ing such a writ to be is3ued or served on the defendant, in-
duced the court to try the case the next day, and render judg-
ment granting plaintiff a divorce; that his wife did not ap-
pear in the action, or at the trial, and the court acquired no
jurisdiction over her person, so that on the 25th day of June,
1909, upon her motion the decree was vacated and set aside,
thereby causing him large additional expense in re-trying the
case, to his damage, etc.

Defendant in his answer admits that the case was tried,
and a divorce decree entered May 11, 1907, against Nellie
Castner without a summons being issued or served upon her;

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Jan., '13.] Castner v. Gray. 553

but alleges that prior to the hearing she voluntarily entered
her written appearance and consent to a trial at the conven-
ience of the court, as follows :
"State of Colorado,

ss. County Court.

County of Montrose.

Quincey O. Castner,

Plaintiff,
vs.
Nellie Castner,

Defendant.
Action for Divorce.

Now comes defendant appearing in this action for di-
vorce, and enters her appearance herein, and announces that
the case may be called for hearing in its regular course and at
the convenience of the court.

(Signed) Neu^ie Castner, Defendant."

Plaintiff in his replication admits that his wife entered
her written appearance in the action in the manner and form
as alleged in the answer; but denies that it was sufficient in
law.

There were other matters pleaded; but this, we think,
states the material issue in the case.

The record recites that a demurrer was filed to the repli-
cation, and the cause coming on to be heard, plaintiff elected
to stand by his replication. Whereupon defendant moved for
judgment on the pleadings, which was granted, and a judg-
ment for costs entered against the plaintiff, who brings the
case here on error.

2. The record does not affirmatively say that the court
passed on the demurrer, and it is urged that it was reversible
error to entertain defendant's motion for a judgment on the
pleadings without disposing of the demurrer. Plaintiff can-
not complain here because the court did not dispose of the de-
murrer before rendering judgment on the pleadings. If, as a j

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554 Curtis v. Nunns. [54 Colo.

matter of law, defendant was entitled to such a judgment, it
could make no difference to plaintiff what became of that de-
murrer. Aside from this, the fact that the record recites that
plaintiff elected to stand upon his replication, shows that the
demurrer was sustained.

3. Mrs. Castner, knowing that her husband had filed an
action for divorce, voluntarily entered her written appearance
in the case, which, irrespective of what may be said regard-
ing the regularity of the subsequent proceedings, was sufficient
to confer jurisdiction over her person, and there was no neces-
sity of serving her with summons. This issue being a matter
of law, there was nothing to submit to the jury. The action
of the court in entering a judgment for defendant on the plead-
ings was proper, and the judgment will be affirmed.

Affirmed.

Chief^ JasTicE MussER and Mr. Justice Scott concur.

[No. 7840.]

Curtis v. Nunns.

1. Mechanic's Lien— Dote of Completion of Building, settled by
the opinion In Curtis v, McCarty, 63 Colo. 284.

2. Acceptance of Building hy Owner from Contractor, does

not set in course the statute prescribing the time in which a sub-con-
tractor must proceed to enforce his lien.

3. Failure to Record Contract — Effect — Where the sum to be

paid by the owner for the erection of the building exceeds $500.00,
and he fails to cause such contract to be recorded as required by sec.
4025, Rev. Stat., every sub-contractor, material man, etc., Is placed In
the position of principal contractor, so far as relates to his claim of
lien, and no notice of his lien Is required to be served on the owner,
under Rev. Stat., sec. 4033.

Error to Garfield District Court. — Hon. John T. Shu-
mate^ Judge.

Digitized by VjOOQIC

Jan., 13.] Curtis v. NIunns. 555

Mr. James R. Moore, for plaintiff in error.
Messrs. Darrow & RowE, for defendant in error.
Mr. Justice Scott delivered the opinion of the court :

This action was to establish and foreclose a mechanic's
lien. The plaintiff claimed a lien in the sum of $413.70 for
work and labor performed in the construction of defendant's
dwelling. This included the assigned claim of $34.50 of an-
other laborer upon the same building, but the same state of
facts exists as to both. The court sustained the claim of lien
and ordered foreclosure. The errors alleged are:

"(a) Plaintiff's action was not commenced within six
months after the completion of the building ;

(b) Plaintiff's lien claim statement was not filed in the
office of the county clerk and recorder of Garfield county with-
in one month next after the completion of the building;

(c) The owner of the property was not served with a
copy of the lien claim statement at or before the time same was
filed in the office of the county clerk and recorder."

Much of this contention hinges on the date of the comple-
tion of the building. This question was determined by this
court as to the same building in the case of Curtis v. McCarthy,
53 Colo. 284, 125 Pac. 109.

Under the state of facts in that case presented, and not
materially different in this case, it was there held that the
building was completed on the 15th day of October, 1910.
The trial court so found in this case, and for the reasons, given
in Curtis v, McCarthy, supra, the finding will not be dis-
turbed. This suit was filed on the 7th day of April, 1911, and
therefore within six months from the completion of the build-
ing, October 15th, 1910, as required by the statute. Sec. 4034,
Rev. Stat. 1908.

But Curtis testifies that he accepted the building on Sep-
tember 7th, 1910, from Lukenbill, his principal contractor, and
at that time specifically waived all objections to it, and it is

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5s6 Curtis v. Nunns. [54 Colo.

argued that this fixes the time of completion as of that date,
regardless of what may be foimd to be the fact as to the time
of actual completion.

This testimony is from its very nature self serving, and
is strangely in contradiction of the conduct of Lukenbill, who
refused to pay plaintiff, or accept his work until he had per-
formed the labor demanded of him by Lukenbill, and which
was performed by plaintiff on October 15th, 1910. But, as
will appear hereafter, the plaintiff in so far as his claim of lien
is concerned, was to that extent a principal contractor and as
such may have filed his statement of lien at any time within
three months from the completion of the building. But it has
been held by this court that the fact that the owner accepted
the building from the principal contractor, who had completed
his contract, did not start the statute running as against a per-
son who had furnished material to such contractor, and where
after such acceptance, there was put into the building by others,
material or labor not trivial in character. — Lichty v. Houston
Lumber Co., 39 Colo. 53.

It would be a singular state of the law if Curtis, the
owner, could by words of acceptance addressed to his princi-
pal contractor, with no recorded contract to guide sub-con-
tractors, thus change the actual time of completion, and in this
way defeat the honest claim of a sub-contractor.

The last work and labor was performed on the 9th day of
September, 19 10. The statement of lien was filed on the 8th
day of October, 1910, and after the last labor for which the
lien is claimed, was performed, and within one month after
the completion of the building. Sec. 4033, Rev. State. 1908.

But service of a copy of the lien statement was not served
upon the owner or reputed owner, at or before the time of
filing with the county clerk and recorder, as provided by said
Sec. 4033- It is contended that such service is jurisdictional,
and hence in this case the claim of Hen may not be sustained.

The plaintiff in error, owner of the building, entered into
a contract with one Lukenbill as principal contractor for the

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Jan., 13.] Curtis v. NIunns. 557

construction of the building. The defendant in error and his
assignor, were employed by Lukenbill. It is admitted that the
contract price exceeded the sum of $500.00 and that the con-
tract was not filed for record as provided by the statute, sec
4025, Rev. Stat. 1908. But this statute also provided :

"And in case such contract is not filed as above provided,
the labor done and materials furnished by all persons afore-
said (mechanics, material men, contractors, sub-contractors,
builders and all persons of every class perforimng labor upon
* * * any building) before said contract or memorandum
is filed, shall be deemed to have been done and furnished at
the personal instance of the owner, and they shall have a lien
for the value thereof."

Therefore, in case of failure to file the contract for record
under this proviso, the labor performed by a sub-contractor,
shall be deemed to have been done at the personal instance of
the owner, and such claimant is to that extent placed in the
position of the principal contractor in so far as it relates to his
claim of lien.

But no copy of the contract between Curtis, the owner,
and Lukenbill, the contractor, was filed with the clerk and re-
corder as provided in sec. 4025, Rev. Stat,, and therefore un-
der that section, the work and labor performed by the plain-
tiff is deemed to have been done at the personal instance of the
owner, and he is entitled to a lien for the value thereof.

Under this state of the law and the facts presented here,
the plaintiff stands in the light of an original contractor in so
far as it relates to the matter of the establishment and enforce-
ment of his lien. Therefore the notice is not required to be
served in such case. — Kellogg v. How^s, 81 Cal. 170.

The Judgment is affirmed.

Chief Justice Musser and Mr. Justice Garrigues
concur.

Digitized by VjOOQIC

55^ Powers v. Bouij>er. [54 Colo.

[No. 7848.]

Powers V. City 01? Bouu>er.

1. Municipal Corporations — Action for Personal Injury — tfotice^
Where in an action against a municipal corporation for a personal
injury attributed to its negligence, it appears that notice in writing,
in all respects sufficient, was served upon the mayor in due time, that
he accepted it and waived the service of further notice, and that the
council within the statutory period considered such notice and acted
thereon in their official capacity, the purpose of the statute (Rev.
Stat., sec. 6661) is accomplished, and the plaintiff's failure to serve
notice upon the clerk does not defeat the action.

2. Notice to the Olerk, affects the city, though the clerk fall

to communicate it to the council.

3. Pleading — Ambiguity, not complained of by special demurrer
or motion is waived.

Error to Boulder District Court. — Hon. Harry P. Gam-
bia, Judge.

Mr. F. T. Johnson and Mr. J. M. Essington, for plain-
tiff in error.

Mr. J. T. Atvvood^ for defendant in error.

Mr. Justice ScotT delivered the opinion of the court :

This is an action upon the part of the plaintiff on account
of personal injuries alleged to have been sustained by him by
reason of certain acts of negligence upon the part of the de-
fendant city. A general demurrer to the amended complaint
was sustained by the trial court. The. plaintiff elected to stand
upon his amended complaint, and the ruling of the court sus-
taining the demurrer is the only question presented, and this
is confined to the allegations as to service of notice of the in-
jury, required by the statute.

The allegation of the amended complaint in this particu-
lar, is as follows :

"That on or about August 24th, 191 1, plaintiff caused a
written notice of said accident to be served upon the defendant
by serving the same upon its mayor, respectively setting forth

Digitized by VjOOQIC

Jan., '13.] Powers v. Bouij>er. 559

the time, place, and cause of said injuries, and plaintiff further
allies that at the time of said service plaintiff was informed
by said mayor that he the said mayor, would accept service of
said notice for and in behalf of said defendant, and that plain-
tiff need not serve any other or further notice upon any other
officer of said city, all of which plaintiff relied upon as being
sufficient and valid in every way so far as serving any other
or further notice was concerned, and plaintiff alleges upon in-
formation and belief that as a matter of fact the said city and
its duly constituted authorities consisting of its mayor, board
of council and clerk thereof, had full notice of said accident
and plaintiff's injuries arising therefrom in their official ca-
pacity, within ninety days from the happening thereof, and
duly acted thereon in their official capacity." Revised Stat-
utes of 1908, sec. 6661, provides:

*'No action for the recovery of compensation for personal
injury or death against any city of the first or second class, or
any town, on account of its negligence, shall be maintained un-
less written notice of the time and place and cause of injury
is given to the clerk of the city or recorder of the town by the
person injured, his agent or attorney, within ninety days, and
the action is commenced within two years from the occurrence
of the accident causing the injury or death. But the notice
given under the provision of this act shall not be deemed in-
valid or insufficient solely by reason of any inaccuracy in stat-
ing the time, place, or cause of injury; provided, it is shown
that there was no intention to mislead and that the city council
or board of trustees was in fact not misled thereby."

There is no objection that the notice was not in writing,
nor that it was not in all respects sufficient, nor that it was
not served within the time provided, but only that it was served
on the mayor of the city rather than the city clerk, as provided
by the statute.

Did such allegation of service upon the mayor, when con-
sidered with the additional allegation as to official considera-
tion by the constituted authorities, meet the substantial re-
Digitized by V^OOQlC

560 Powers v. Boulder. [54 Colo.

quirement of the statute? The complaint in addition to serv-
ice of the notice upon the mayor, allied "that the mayor,
clerk and board of aldermen all had full notice of the accident
and plaintiff's injuries in their official capacity within ninety
days thereafter, and that the mayor declared at the time of the
service on him, that no further notice would be required."

There is no claim that the city council did not have full
or sufficient notice, or that they did not act on it. The defend-
ant rests solely upon the technical contention that the service
was not made upon the city clerk, as designated by the statute,
but who by the very nature of things, could perform no other
duty in the matter than to present it to the mayor and council,
who were vested with authority to act in the premises.

It may be conceded, that the part of the complaint where-
in it is said, that the mayor, board of council and clerk, all
"had full notice of said accident and plaintiff's injuries aris-
ing therefrom, in their official capacity, within ninety days
from the happening thereof, and duly acted thereon in their
official capacity," was ambiguous, and that the court may have
well sustained a motion to make the complaint more specific,
definite and certain in that particular, or have sustained a de-
murrer upon such specific ground ; but no such motion or de-
murrer was presented, and therefore the right to attack the
complaint on the ground of such ambiguity was waived. The
complaint was not for this reason alone subject to general de-
murrer. Under these circumstances the complaint may be con-
strued to charge that the mayor, clerk and council were in fact
presented with the notice so served on the mayor, and that they
acted officially thereon, and within the time required by law.
If so, then every purpose of the notice was accomplished.

It is true that service of a sufficient notice on the clerk
would have bound the city in that respect, even though he may
not have presented it to the mayor and council at all. But the
sole purpose of the statute is to give the mayor and council no-
tice of the claim of damage for the specific injury, within the
designated time, so that they may have opportunity to take of-

Digitized byCjOOQlC

Jan., '13.] Powers v. Bouu>er. S^i

ficial action thereon, and to properly protect the interests of the
city.

In the case of City of Grand Forks, 153 Fed. 532, it was
held, by the United States circuit court of appeals, where such
notice was required by the statute to be presented to the mayor
and city council, that the presentation of such notice to the
city auditor was a sufficient compliance with the statute, and
the court there said :

"A brief reference to the statutes and decisions of North
Dakota will serve to show that the filing of the claim with the
auditor was a presentation of it to the mayor and council
within the meaning of the law. The mayor and common
council of each city is constituted a board of audit of such
city. Sec. 2 171, Rev. Code, 1899. The city council consists
of the mayor and aldermen. Sec. 2172, Rev. Code, 1899.
Only the writing signed by the plaintiff and properly verified
is contemplated by section 2172, supra. When so executed
and verified, it is to be presented to the mayor and council 'for
audit and allowance,' sec. 2174. Giving due consideration to
these provisions of the statutes considered collectively, we can-
not agree with counsel for the city that the claim should have
been presented to the mayor separately from the council. The
claim manifestly should be so presented to the body author-
ized to audit it as to secure the attention of that body, and,
when it is done, it would seem that the requirement of the
statute has been complied with."

To the same effect is Pyke v. City of Jamestown^ by the
supreme court of North Dakota, 107 N. W. 359, construing
the same statute. The facts in that case were as follows :

"He presented one copy to the mayor and one copy to
the city auditor. The copy presented to the mayor was deliv-
ered at his office. The copy delivered to the auditor was de-
livered upon the street. Accosting that officer, he inquired
whether he was the city auditor, and, receiving an affirmative
answer, he gave him the copy, informed him what it was, and
stated that he desired to have it presented at the next meeting

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562 Powers v. Bouu>er. [54 Colo.

of the city council. The claim was addressed: *To the city
council of the city of Jamestown, N. D.' The mayor testified
that he submitted the copy he received to Mr. Thorp, the city
attorney. He also testified that *the notice was not discussed
or presented to the council at any time.' Two aldermen testi-
fied to the same effect. The present city auditor testified that
he could find no copy of the claim among the records, and no
entry in reference thereto. The auditor to whom the claim
was presented died in the following December." Commenting
upon this the court said :

"We are of the opinion that the presentation was suffi-
cient. The manifest purpose of the statute is to protect cities
from the unnecessary expense and the annoyance of legal pro-
ceedings until claims against them can be investigated. The
person injured must present his claim within 60 days from the
date of the injury, during which period the facts are fresh
and ascertainable. The city is given 60 days thereafter in
which to inform itself as to the merits of the claim and deter-
mine whether it will audit and allow it. If not allowed at the
end of that period, the party injured may pursue his remedy
by action."

The Minnesota statute requires such notice to be given
to the city council or other governing body. In Lyons v. City
of Red Wing, 76 Minn. 20, the notice was left with the clerk
who read it to the council. This was held to be a sufficient
compliance with the statute.

In Wormwood v. City of Waltham, 144 Mass. 184, the
law required the notice to be given to the mayor, clerk or treas-
urer. The notice was given to an alderman and was aften^'ard
read to the board of aldermen. This was held sufficient.

In James v. City of Boston, 201 Mass. 348, construing
the same statute, it appears that one acting for the plaintiff,
handed the notice to a person in the clerk's office and asked
that it be handed to the clerk, the person saying "all right."
This was held to be good. So in this case, if the notice was
handed to the mayor, and if such notice was officially consid-

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Jan., '13.] . Powers v. Bouu>er. 5^3

ered by the mayor, clerk and council, what important differ-
ence can it make to the defendant? Every purpose of the
law was thus accomplished and to hold that the plaintiff must
hand the notice to the clerk personally in order to substan-
tially comply with the statute, is to demand form and ignore
substance.

If the allegations in the amended complaint as herein con-
strued, are sustained by the proof, then the notice in this case
was sufficient.

The demurrer should have been overruled.

The judgment is reversed and the case remanded for fur-
ther proceedings, in accord with this opinion.

Bn banc.

Justice Hiix, Justice Garrigues and Justice White
dissenting.

Mr. Justice Garrigues dissenting :

I cannot agree with the majority opinion. I think service
of the notice required by statute to be made upon the clerk be-
fore bringing suit, is a condition precedent to the right to bring
the action. The legislature having the power to deny the right
to bring the suit, could prescribe the conditions under which it
could be brought. In my opinion Denver v. Satdcey, 5 Colo.
App. 420, is decisive of this case. It is there said on page 422 :

"The charters of nearly all cities contain a provision like
that found in the charter of this city. In providing satisfac-
tory plans for municipal government, it seems to have been
found expedient to attach this requirement as a condition
precedent to the general right which the injured person is
given to recover damages for such alleged wrongs. Since
the right to sue the city is a matter of statute, lawmakers have
the undoubted right to require the observance of these reason-
able conditions. Wherever similar provisions have come be-
fore the courts for construction, it has been almost if not quite

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*^oogle

564 Powers v. Bouu>b». [54 Colo.

universally held that the giving of the notice in the fonn and
in the manner prescribed is a condition precedent, v^rithout
which the plaintiff may not maintain his action."

I am authorized to state that Mr. Justice Hill and Mr.
Justice White concur in this dissenting opinion.

Mr. Justice White dissenting :

I think the giving of the notice of injury in the form
and in the manner prescribed by statute, and upon the person
designated, is a condition precedent to the right of plaintiff to
maintain his action; and that the complaint, having failed to
allege such facts, the demurrer thereto was properly sustained.
In City of Denver v. Saidcey, 5 Colo. App. 420, 422, it is said :
"The notice must not only contain all the things the statute
requires, but it must be served pn the persons which the law
designates, and in the way specified, if the statute be specific
in this particular. * * * The importance of making the
service on the proper person has been a matter of judicial con-
sideration, and it has accordingly been adjudged that where
the service must be upon a trustee or upon a mayor or upon a
council, service upon the clerk, even though he be one of the
principal officers of the corporation, is not such a compliance
with the provision as to permit the maintenance of the suit."
Citing Nichols v. The City of Boston, 98 Mass. 39; Uftderhill
V, The Town of Washington, 46 Vt. 767 ; Wade on the Law
of Notices, sees. 131 2, 1313.

And in 28 Cyc, p. 1459, it is said that : "Service of no-
tice or presentation of the claim must be made in the manner
prescribed by the statute; or, if not prescribed, then as pro-
vided by general law for the service of notice, and within the
time prescribed. The notice or statement must be served upon
or presented to the board or officers designated in the statute
to be notified, such as the corporation counsel, or city coun-
cil."

It may be that if the city clerk and council were, in fact,
presented with the notice within the time limited by the stat-

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Jan., *i3.] Powers v. Boui^der. 565

ute, it would be a sufficient, service upon the clerk, though it
had actually been brought before him by the mayor. But I
am unable to find in the complaint any fact allied that would
warrant the conclusion, or even inference, that these things
occurred. How it can be said that the allegation "that the
mayor, clerk and board of aldermen all had full notice of the
accident and plaintiff's injuries in their official capacity within
ninety days thereafter," "may be construed to charge that the
mayor, clerk and council were in fact presented with the no-
tice so served on the mayor" is beyond my comprehension.
Neither can I conceive that there is anything ambiguous in the
language quoted from the complaint. How can it be said that
an allegation that certain persons "had full notice of the acci-
dent and plaintiff's injuries in their official capacity" is in any
wise ambiguous ? There is not the slightest intimation in such
allegation that the notice of the injury required by the statute,
as a condition precedent to plaintiff's right to maintain the ac-
tion, had ever been brought before the clerk or the council, or
that they had knowledge of its existence. It is said in the
opinion that "there is no claim that the city council did not
have full or sufficient notice, or that they did not act
on it." The very fact that a demurrer was filed to the
complaint upon the ground that it failed to state facts suffi-
cient to constitute a cause of action in respect to the service of
the notice, is essentially a claim that the city did not have full
and sufficient notice to make it liable under the statute. More-
over, that which the statute required the plaintiff should do,
as a condition precedent to maintain his cause of action, can
not be l^ally excused by the courts, even though the latter
should think the requirement harsh or unwise. To do so is to
annul legislation and determine the rights of litigants, not in
accordance with the law of the land, but as the court thinks
the law should be.

I am authorized to state that Mr. Justice Hill and Mr.
Justice Garrigues concur in the views I have herein expressed.

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S66 Satisfaction Co. v. York. [54 Colo.

Gabbert^ J. ^

There is an additional reason why the judgment should
be reversed. The plaintiff's cause of action is the alleged
negligence of the city. In order to maintain his action, unless
legally excused, he is required to give the statutory notice.
The purpose of this notice is to afford the municipal authori-
ties opportunity to investigate his claim, and take steps to pro-
tect the city. It is, therefore, solely for the benefit of the city,
and service upon the official designated in the statute may be
waived. In my opinion, the complaint alleges facts from
which it appears that service of notice upon the clerk was
waived.

[No. 7855.]

Satisfaction Title and Investment Company v. York

ET AI*

1. Pbincipal and Agent — When the Relation ExUts — ^Defendants
had employed one P. to find a purchaser for certain lands. After
nearly two years had elapsed, no sale having been effected, a corpora-
tion was organized, and P. having become its manager, and having
applied to defendants on behalf of the corporation to know if the price
previously specified still controlled, defendants listed with him the
same, and other lands. Defendants had no knowledge upon this occa-
sion, of the organization of the corporation, nor that P. was acting on
its behalf. Heldj that defendant's ignorance in no manner affected
the right of the corporation to recover commissions upon a sale sub-
sequently made, and of which it was the efficient cause.

2. Trial — Questions for Jury — ^Where in an action by a land
broker for commissions upon a sale alleged to have been induced by
him, his employment, as well as whether he was the producing cause
of the sale are in issue, such questions are for the Jury.

3. Broker — Right to Commissions — ^A broker who is the efficient
cause of a sale may recover his commissions though he had no per-
sonal acquaintance with the purchaser and did not present him to his
principal.

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Jan., '13.] Satisi^action Co. v. York. 567

Error to Montrose District Court, — 'Hon. Sprigg
Shackleford, Judge.

Messrs. Catun & Blake, for plaintiff in error.

Mr. C. J. MoYNiHAN and Messrs. Sherman & Sher-
man, for defendants in error.

Mr. Justice Scott delivered the opinion of the court : »

This is an action by the plaintiff in error, plaintiff below,
to recover from the defendants in error, defendants below, a
commission as broker for the sale of certain of defendants'
lands. The defendants were the owners of several tracts of
lands including the premises in question.* They had, about
two years prior to the occurrences upon which the suit was
based, listed certain of their lands for sale with one Lincoln
Pysher.

Afterward, and on the 24th day of February, 191 1, the
plaintiff was organized as a corporation and the said Pysher
became its general manager. Afterward and about the ist of
March, 191 1, Pysher drove out to the house of the defendants
and what occurred at that time is better stated in his own lan-
guage :

"I went out to the York place to revise the list that I al-
ready had, and asked her if the old prices she had formerly
given me would still be effective, if it would still be all right,
and we talked the matter over, I and Mrs. York, and she con-
cluded that instead of just simply listing some of tbe property,
that she had formerly required me to sell, she would add some
more to it, and consequently she listed all of her property, at
that time for sale with the exception of a small tract between
the railroad and the north forty, about fifteen acres. All of
her land laying south of the railroad was afterwards sold.
$14,000 was the price placed on the land that was sold that
lays south of the railroad. She was to pay a commission of 5
per cent. The property south of the railroad was listed with
me at that time at $14,000 without the crop. If the crop went

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S68 Satisfaction Co. v. York. [54 Colo.

with the south forty, I was to sell it for an additional
$500.00."

Mrs. York was acting for herself and as guardian for her
two children. Pysher testifies that afterward and at the earn-
est request of Mrs. York he made a special effort to sell the
property, that he showed the property to numerous prospective
purchasers. That among these was a Mr. Nelson, introduced
to the plaintiff by his neighbor Julius Krogh, and at that time
the plaintiff drove Nelson and Krogh over the premises, and
priced the particular lands in question to Nelson, in Krogh's
presence. Nelson did not buy, but afterward Krogh advised
Pysher that other friends of his were coming to look for lands,
and that later a cousin, Peter Krogh, did come. That Pysher
asked Julius Krogh if this was one of the persons he had re-
ferred to as desiring to purchase lands. That Krogh replied
that he was, but that he did not know that he would purchase
at that time, but said, "You might show us around, he might
buy something if he could find a bargain." Pysher reminded
Krogh of the York land which they had examined together
with Nelson, and asked him to speak to his cousin about it,
and arranged to take the two Kroghs to see it the following
morning. Pysher accordingly went to the residence of Krogh
the following morning and was advised that the Kroghs had
gone to see another tract of land. But was told by Krogh that
evening when he again called, that the cousin Peter Krogh
had contracted to purchase the York land. Pysher then called
up Mrs. York and told her that he claimed his commission
and wanted her to so understand before she consummated the
sale. Mrs. York declined to discuss the matter with him.

The agreed commission was five per cent, of the pur-
chase price and the land was sold for the listed price of $14,-
000. The defendant offered no testimony, but at the close of
plaintiff's testimony moved for a non-suit, which motion was
sustained by the court, and the jury discharged, upon which
ruling the case is before us for review. Defendants in error

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Jan., '13.] Satisfaction Co. v. York. 569

have filed no brief, and the reasons for the courts action must
be gathered from the language of his ruling as follows :

"The evidence in this case discloses the fact that this man,
Lincoln Pysher, had an agreement with the defendant, Lillie
T. York, to take her property and attempt to sell it, and that
listing, as it is denominated by the witness for the plaintiff in
this case, occurred a couple of years ago, or at any rate a long
time before the plaintiff in this case, which is a corporation,
had any existence under the law. The witness testifies that
last spring he had a talk with Lillie T. York, and that he had
gone out there and revised his lists, and to ascertain if there
were any changes. The conversation with Mrs. York was
such that it could not have been anything else than a per-
petuation of the old contract, and that any agreement that he
made with her was simply an agreement as to his own agency
for her; it affirmatively appears that this is the case. Now,
the doctrine as to the undisclosed principal as attempted to be
applied to this case by the plaintiff, is certainly not applicable;
he could not have been an agent for a non-existing company.
I hold then that there is no contract existing between the plain-
tiff corporation and the defendant.

As to the further proposition involved in this case, as to
whether the company or Pysher was the procuring cause of
this sale, I am constrained to hold that it affirmatively appears
from the testimony of Pysher himself, that he was not the
-procuring cause; he did talk to a cousin of the purchaser,
Julius Krogh; he never, according to his own testimony,
asked Krogh to do anything; Julius Krogh did go out there
and have this talk and made a contract with the defendant in
this case, and she sold the property to him, but neither Pysher
or the company had ever seen the purchaser, or had any talk
with him, and there is no evidence to show that he had even
induced this Julius Krogh to influence his cousin to buy it; the
evidence shows affirmatively that he intended, himself, to have
the interview with him, and to take him out to the ranch and

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570 Satisfaction Co. v. York. [54 Colo.

show it to him ; so the motion for a non-suit will be sustained,
and the jury will be discharged from the further consideration
of the case; there is no directed verdict."

It appears from this that the court held: i. That the
arrangement between Mrs. York and Pysher on February
24th, 19 II, was a continuation of the agreement of two years
before, and therefore with Pysher personally, hence the cor-
poration cannot recover; 2. That Pysher did not ask Peter
Krogh to purchase the land and did not induce Julius Krc^h
to influence the purchaser in the matter.

As to the first finding, it clearly appears from the evi-
dence of Pysher, that the listing on February 24th, was a new
arrangement, for it contained the inclusion of other lands, and
for a fixed price for the tract, with the additional lands, so to
be offered. There can be no doubt from the testimony that
Pysher was acting at that time for the plaintiff corporation,
though there was no mention of this fact to Mrs. Yoric.
Neither does it appear that Mrs. York knew of the existence
of the corporation. But this could in no sense affect her in-
terests or her rights in such case. Neither can it affect the
right of the real party in interest to recover. — Park^ v. Coch-
ran, II Colo. 367, 31 Cyc. 1599.

As to the second reason given by the court for his action
in sustaining the motion for a non-suit, it is well settled that
as to whether or not the plaintiff was the efficient means of
bringing the seller and the purchaser together, was for the
jury and not for the court. 19 Cyc. 286, 287.

In fact, both questions upon which the court determined
this case should have been submitted to the jury under proper
instructions, for they clearly involve findings of fact and not
conclusions of law. It is the rule of law in this jurisdiction:
That is to say he must have found and produced a person who
was ready, willing and able to purchase the property which
he was engaged to sell, at the price and upon the terms and
conditions fixed by his employer, and must make it appear

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Jan., '13.] Ayres v. Wai^ker. 571

that he was the efficient agent, or procuring cause of the sale,
and that the means employed by him and his efforts resulted
in this sale." — Chaffee v. Widman, 48 Colo. 34.

In order to entitle the plaintiff to recover it is not neces-
sary that the broker should know the purchaser, or that the
latter should be introduced by the broker to the owner. The
fact of employment being conceded and with no dispute as to
the price of the lands or the amount of the commission, it is
sufficient if the broker shows that he was the moving cause of
sale. — L^nard v, Roberts, 20 Colo. 88; Leach v. Clemens, 14
Colo. App. 45 ; Williams v. Bishop, 1 1 Colo. App. 378.

The judgment is reversed and the case remanded.

Reversed and Remanded,

Chief Justice Musser and Mr. Justice Garrigues,
concur.

[No. 7866.]

Ayres et al. v. Walker.

Alteration of Writing — Filling Blanks — Effect — A promissory
note» blank as to the rate of interest and the time from which in-
terest is to be computed, is subscribed by the principal maker, and
the sureties, and deliyered by the principal to the payee named there-
in. The payee, without authority of the sureties, fills the blanks and
advances money thereon to the principal. The alteration is a material
one, and the instrument is thereby avoided.

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

Mr. W. S. Palmer and Mr. Lyman I. Henry, for plain-
tiffs in error.

Mr. W. O. Peterson, for defendant in error.

Mr. Justice Scott delivered the opinion of the court :

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572 Ayers v. Waucer. [54 Colo.

In this case suit was instituted by the defendant in error
as plaintiff below, on a promissory note in words and figures
as follows:

"$300.00 Pueblo, Colo., Nov. 4, 1910.

On or before one year after date for value recdved, I, we
or either of us, promise to pay to the order of C. C. Walker,
Pueblo, Colorado, three hundred no- 100 dollars. To bear in-
terest at the rate of two and one-half per cent, per month
from date until paid. And further hereby agree that if this
note is not paid when due to pay all costs necessary for collec-
tion, including ten per cent, for attorney's fees.

Interest payable monthly.

No. I due

Wiu. W. Walter,
Chas. W. Ayres,

C. W. WAI.TER.''

The defendants admitted the execution of the note in the
amount named, but alleged that when the note was signed by
the defendants, Chas. W. Ayres and C. W. Walter, the rate
of interest, term of interest payment and time from which the
interest should date, were in blank, in other words, that when
these defendants signed the note it read as follows :

"$300.00 Pueblo, Colo., Nov. 4, 1910.
On or before one year after date for value received, I, we
or either of us, promise to pay to the order of C. C. Walker,
Pueblo, Colorado, three hundred no- 100 dollars. To bear in-
terest at the rate of per cent, per

from — until paid and further hereby

agree that if this note is not paid when due to pay all costs,
necessary for collection, including ten per cent, for attorney's

fees. Interest payable

Wiix W. Walter,
Chas. W. Ayres,
C. W. Walter/'

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Jan., '13.] Ayres v. Wai^ker. 573

The three defendants testified in substantial conformity
with the allegations of the answer, including want of knowl-
edge upon the part of the plaintiffs in error, of the change, or
consent to the change, made by the filling in of the blanks as
appears by the form of note sued on. The plaintiff testified
that the note was as appears in the complaint, when presented
for signatures.

The defendant Will W. Walter, principal obligor, took
the note to the sureties Chas. W. Ayres and C. W. Walter,
and after procuring their signatures, presented it to the plain-
tiff and received the money represented by its face. The de-
fendant. Will W. Walter, testifies that the rate of interest and
other matters represented by the blank spaces were filled in by
the plaintiff after it was returned with the signatures of the
other defendants. The plaintiff denies this statement. The
defendant Will W. Walter pleaded a discharge in bankruptcy
and was dismissed as a defendant.

Over the objection of the defendants the court instructed
the jury in substance as follows:

Instruction 5 instructs the jury that if they find from the
evidence that at the time Ayres and C. W. Walter signed the
note there were no unfilled spaces and that the same was filled
in and complete at that time, then the jury should find in favor
of the plaintiff and against Ayres and C. W. Walter, *for the
face of the note; that is, $300 plus interest at two and one-
half per cent per month from Sept. 15, 191 1, including an at-
torney's fee of ten per cent. ; that is a verdict for the sum of
$396.25.

Instruction 6 was to the effect that if the jury find from
the evidence in this case that there were in the note in ques-
tion at the time same was signed by Chas. W. Ayres and C. W.
Walter, the unfilled blank spaces as alleged, then the presump-
tion of law is that the note drew interest at eijght per cent, per
annum from maturity ; and if you so find your verdict will be
in favor of the plaintiff and against defendants, Chas. W.
Ayres and C. W. Walter, for the face of the note; that is $300

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574 Ayres V. Walker. [54 Colo.

plus interest at eight per cent, per annum from Nov. 4th,
191 1, including an attorney's fee of ten per cent.; that is a
verdict for the sum of $344.40.

The jury returned a verdict in the sum of $344.40, thus
in effect under these instructions, finding for the defendants
in their contention, that the note as signed by them did not
contain the rate of interest, date from which it should run, nor
the period of interest payments. This is conceded by counsel
for defendant in error, who says in his brief, "under the ver-
dict and judgment below, the plaintiffs in error were held lia-
ble on the note in the form they claim it was when they
signed it."

The contention of plaintiffs in error, is that the altera-
tion of the note by the plaintiff, in the manner suggested, in-
validated the whole contract as to the defendants Chas. Ayres
and C. W. Walter. Our statute provides that :

"Where a negotiable instrument is materially altered
without the assent of all parties liable thereon, it is avoided,
except as against a party who has himself made, authorized or
assented to the alteration and subsequent indorsers. But
when an instrument has been materially altered arid is in the
hands of a holder in due course, not a party to the alteration,
he may enforce payment thereof according to its origfinal
tenor." Sec. 4587, Rev. Stat., 1908.

The statute likewise provides that any alteration as to
date, rate of interest or time or place of payment is such a ma-
terial alteration. Sec. 4588, Rev. Stat., 1908.

It will be seen that this note was not in the hands of a
holder in due course, but was in the hands of the original
payee, who brought the suit, hence, under the statute, if the
note was altered after being signed and after coming into his
hands, without the consent or notice of the appealing defend-
ants, it was as to them void, and the jury should have been so
instructed.

This is an old and wise provision of the law, and the rea-
son for it is apparent when we consider the absoluteness of

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Jan., '13.] Ayres v. Walker. 575

custody and control by the payee or holder, and the utter help-
lessness to prevent an alteration in the case of the maker in
that respect. And so the law has provided as a penalty, not
only of criminal liability, but a forfeiture and cancellation of
the obligation in its entirety.

This question was determined in the case of H 00 pes v.
Collingwood, 10 Colo. 107, wherein the facts were almost
identical with those presented here, except that the alteration
was made by the endorsee of the note. In that case the court
said:

"i. Does such a note, with such blanks, thereby carry
authority to the purchaser thereof to fill the blanks in the man-
ner here shown, whereby the rate of interest is changed from
the legal rate, viz., ten per cent, per annum, to twenty-four per
cent, per annum ? We answer not. — Rainbolt v, Eddy, 34 la.
440; Bcmk V. Stowell, 123 Mass. 196; Holmes v. Trumper, 22
Mich. 427.

2. Is the note vitiated and avoided by such change in its
terms by the purchaser, without the knowledge or consent of
the makers ? We answer that it is, for thereby it ceases to be
the promise they made, and the effect is the extinguishment of
the promise. — i Greenl. Ev. sec. 565 ; McGrath v. Clark, 56
N. Y. 35 ; Inglish v, Brenenum, 5 Ark. 377; Cobum v, Webb,
56 Ind." See also 2 Cyc. 154 and authorities cited.

The instructions of the court complained of an hereinbe-
fore referred to, were erroneous. The judgment is reversed
and the case remanded for further proceedings in accord with
this opinion. Reversed and Remanded,

Chief Justice Musser and Mr. Justice Garrigues
concur.

Digitized by VjOOQIC

576 Peopi^E V, District Court. [54 Colo.

[No. 7950.]

The PEOPI.E Ex Reu v. The District Court of the
Sixth Judiciai, District et al.

1. Pbohibition— ^ot a Writ of Right— Whether It shall be
granted rests in the sound discretion of the court

2. —'—Diligence Required — One who acquiesces in a Judgment or
order will not afterwards be allowed a writ of prohibition to restrain
action thereunder.

On the 7th of February, A. D. 1911, in the district court, receivers
were appointed for a corporation alleged to be possessed of valuable
properties, but largely indebted and without ready means to discharge
pressing debts, or accumulating taxes, or to operate its property. The
bill upon which the appointment was made alleged not only these mat-
ters, but that if creditors were allowed to proceed with their actions,
dissipation and waste of the corporate assets would result, to the in-
jury of both creditors and stockholders. On the first of March suc-
ceeding, other creditors and stockholders applied for leave to inter-
vene in the cause, alleging that the receivers were appointed without
notice, that the attorney who assumed to appear for the corporation
and consent to the appointment, acted without authority, and that
the bill was without equity. This application was denied on March
11, A. D. 1911. No exception was taken to the ruling, and no further
action had until January 6th, A. D. 1912, when the same creditors
and stockholders presented a second petition for leave to intervene,
setting forth their first petition and the action taken thereon, reiterat-
ing its statements, and alleging that in denying such original applica-
tion the court was influenced by representations made at the time of
the receiver's appointment, that a person named would shortly raise
the means necessary to pay the pressing liabilities of the company,
and enable it to operate its properties, and become a going concern;
that none of these assurances had been carried out; that the person
making them was without means of his own, and unable to raise
money from other sources, and that the appointment of the receivers
was procured merely to harass the creditors and stockholders of the
company, and constrain them to part with their demands, and their
shares at a great sacrifice. Delay in the presentation of the second
petition was excused by the suggestion that the petitioners had been
advised that it would be improper and unavailing for them to renew
their application until a reasonable time had elapse^ for the fulfill-
ment of the promises and assurances made to the court as above
stated. This petition was denied on January 6th, A. D. 1912. On the
22nd of January, 1913, application was made in this court, for a writ
of prohibition, restraining the district court from farther proceeding

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Jan., '13.] Peopi^ v. District Court. 577

under the order appointing the receivers, and for other relief. Held,
that the delay intervening between the denial of the first petition and
the presentation of the second was an acquiescence in the appoint-
ment of the receivers, and that such acquiescence, and the long delay
succeeding, before the application of this court, were sufficient to war-
rant the court in refusing to enter into the merits of the contro-
versy, by the writ of prohibition.

3. Intebvention — Petition Denied — Writ of Error — The denial of
a petition for leave to intervene in a pending cause is a final judg-
ment to which error lies.

Original application for writ of prohibition.

Mr. A. M. Stevenson and Mr. L. M. Goddard, for
petitioners.

Mr. Chari.es W. Waterman and Mr. Cau>well Mar-
tin, for respondents.

Mr. Justice Hiu, delivered the opinion of the court :

This is an original application for a writ of prohibition to
restrain the district court of San Juan county and the Honor-
able Charles A. Pike, judge thereof, from proceeding further
in a certain cause pending in said court, and to compel the
court to quash, set aside and annul certain orders appointing
receivers therein, and authorizing receivers* certificates of in-
debtedness. The order and rule to show cause were issued,
and return made thereto wherein the respondents challenge
the sufficiency of the petition, etc. ; it also, raises the question
of acquiescence and laches upon behalf of the petitioners.

Upon February 7th, 191 1, E. E. Dick, as plaintiff, filed
in the district court of La Plata county his complaint against
The Green Mountain, Mining and Milling Company, as de-
fendant. Among other things this complaint states, that the
defendant is the owner and in possession of sundry mining
properties, etc., in San Juan county of a value in excess of $1,-
000,000.00; that it has heretofore been engaged in operating
these properties, etc.; that it has issued $600,000.00 of inter-
est-bearing bonds, secured by mortgage upon its property; of

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578 People v. District Court. [54 Colo.

these $160,000.00 is an outstanding indebtedness; that $440,-
000.00 of the bonds are held as collateral security for the pay-
ment of $290,000.00 of other indebtedness of the defendant;
that it has a floating indebtedness of $460,000.00 now due and
payable; that six months' interest on the $160,000.00 bonds
aforesaid is past due and unpaid ; that the plaintiff is the owner
of 120 shares of the capital stock of the defendant; that the
defendant is indebted to him in the sum of $560.00 for salary
as secretary and treasurer; that in addition thereto he holds
two notes of the defendant for $2,000.00 which are long past
due; that defendant is wholly unable to pay the principal or in-
terest on its bonds or any of its indebtedness as the same
matures or has matured; that its property is subject to judg-
ments, executions and attachments at the hands of its numer-
ous creditors; that suits have been brought against it by its
creditors in Pennsylvania and Colorado; that if receivers are
not appointed, the defendant will be subject to a multiplicity
of suits and litigation of various sorts in Pennsylvania, Colo-
rado and elsewhere ; that its assets will be dissipated and sacri-
ficed; that certain creditors will secure a preference over
others ; that its property will be taken upon execution and sold
piecemeal; that its property will be greatly dissipated, dimin-
ished, impaired and wasted ; that if the interest on its bonds be
not paid the holders will declare default, and proceed to fore-
close their mortgage; as a result the bondholders will secure
a preference over the unsecured creditors and all the property
will be consumed in the satisfaction of the indebtedness se-
cured by the bonds; that if the assets of defendant are not
sacrificed by forced sales in the threatened litigation, they are
far in excess of the liabilities of the defendant, and if properly
administered will pay all its debts, and leave a substantial
residue for its stockholders ; that the procuring of a compara-
tively small amount of money will permit the operation of the
mines and plant of the defendant; that if defendant is enabled
to again resume operation of its property, it can eventually

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Jan., '13.] Peopi^e v. District Court. 579

discharge and pay its indebtedness without sacrifice of its
property. This is followed with detailed statements how this
can be accomplished. It is alleged that the taxes for 19 10 are
unpaid, and the result which will follow if not arranged for.
It states that the plaintiff is informed and believes that the de-
fendant will be able to procure funds sufficient to accomplish
the results above indicated, if given a reasonable period to do
so before there is foreclosure and forced sales of its property.
This is followed with detailed information as to how this is
to be done, with the further allegations that unless the court
assumes jurisdiction and appoints receivers the claims of all
unsecured creditors will be ultimately lost, as well as great
damage to the secured creditors and stockholders. It is also
alleged, that in a United States court in Pennsylvania receiv-
ers have been appointed and have proceeded to take charge of
the assets of the company in that state ; that in that action the
company by answer admitted the allegations of the bill which
were, to a certain extent, the same as those contained in this
complaint. The prayer is for judgment against the defendant
for $2,512.00 and interest, for the appointment of receivers
with detailed authority, and that the officers and agents of the
company be compelled to turn the property over to them, and
that all creditors be enjoined from instituting suits or attempt-
ing to enforce collections, other than through the receivership,
etc., and for general relief.

Upon the same day the defendant company purported to
file its answer in which it admitsi the truth of the all^^tions
contained in the complaint, and consents to the appointment
of receivers. Three receivers were appointed upon the day
the complaint and answer were filed; they therafter qualified
and took possession of the property and it appears have thus
continued under the orders of the court.

Upon February 8th, 191 1, the court, upon its own mo-
tion, transferred the cause to San Juan county, it appearing
that it was one affecting both real and personal property sit-
uate in that county.

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580 Peopi^ v. District Court. [54 Colo.

On March ist, 191 1, these petitioners, Joseph G. Butler,
Jr., and C. A. Ferguson, tendered for filing in the action above
referred to their verified petition for intervention wherein they
allege, among other things, that they were not served with
notice, and had no knowledge of the appointment of the re-
ceivers until February, 191 1 ; that the Pennsylvania court was
without jurisdiction in the premises, and that the appointment
of receivers there, as well as here, was without notice, except
to one DeArmit, who claimed to be the president of the de-
fendant company, and one Ralph Hartzell, attorn^, who as-
sumed to file an answer for the defendant; that the company
is indebted to Butler in the sum of $23,625.65 with interest
upon certain notes, describing them, also, an additional $5,-
000.00 furnished as a loan which is long past due; that he is a
large stockholder, owning 204,000 shares; that Ferguson is a
creditor and upon January 21st, 191 1, obtained a judgment
for $3,500.00 with interest, against the defendant in the courts
of Pennsylvania; that Ferguson is a stockholder owning
135,420 shares; that a large majority of the stockholders and
creditors are opposed to the appointment of receivers either in
Pennsylvania or Colorado; that it appears on the face of the
bill in this suit that this court was without jurisdiction to ap-
point receivers; that there is no equity in the bill (this is fol-
lowed with detailed reasons attempting to thus show) ; that
Ralph Hartzell purporting to answer for the defendant had no
authority to represent it ; that there was no proper notice given
to the company nor any notice given to the stockholders, cred-
itors or bondholders ; that the complaint fails to state a cause
of action; that the appointment of receivers is not in the in-
terest of the stockholders, etc.

The prayer is for permission to intervene and become de-
fendants, to include such other stockholders and creditors as
d6sire to join them, that they may be permitted to file a mo-
tion to vacate the order appointing the receivers, to demur to
the bill, or otherwise plead.

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Jan., '13.] People v. District Court. 581

This petition was duly considered by the court and after
arguments ,on March nth, 191 1, the court declined to allow
the petitioners to intervene. No exceptions appear to have
been taken to this ruling, and nothing further appears to have
been attempted by these petitioners until January 6th, 1912,
when they presented to said court another petition for inter-
vention in said action. This petition sets forth a copy of the
former one with a statement of the disposition thereof. In
addition to the allegations contained in the first petition,
which are reiterated in the second, other matters are allied,
some of which are, that the decision of the judge in refusing to
allow the petitioners to intervene upon their former petition
was largely based upon the fact that at the time of the ap-
pointment of receivers it was represented to the judge if he
appointed the receivers that one William P. DeArmit and his
associates would, within a very short time, raise the necessary
funds to pay the pressing debts of the defendant company,
and also sufficient other money to develop and improve its
properties, and to enable it to work and operate them and
make it a going concern ; that upon account of these promises
the judge appointed the receivers; that more than ten months
have elapsed since the appointments, but that no part of the
pressing, or any debts of the company have been paid ; that no
improvements have been made upon the property since that
time, and in fact nothing has been done to relieve the company
from its financial embarrassment, or to put its property in a
condition to work and operate, but, on the contrary, a large
amount of additional indebtedness has been incurred since the
appointments; that the petitioners have used every diligence to
intervene; that after the decision refusing to permit the peti-
tioners to intervene, they were advised and verily believe that
it would not be proper, and in fact would be unavailing, for
them to attempt to intervene until a reasonable time has
elapsed for the fulfillment of the promises said to have been
made on behalf of DeArmit as hereinbefore stated ; that when

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582 Peopi^E v. District Court. [54 Colo.

the representations were made to the judge, as aforesaid, that
the indebtedness of the defendant company would be paid or
substantially reduced, and provisions made for working the
properties, etc., the said DeArmit was then and has ever since
been insolvent, and was and is entirely without means of his
own, and without ability to raise money from other sources,
for the use of the defendant, or in fact to do anything of a
substantial character to relieve the defendant company of its
financial embarrassment; that Dick was an employee of De-
Armit, and sustained the closest confidential relation to him;
that Dick was and is one of the smallest creditors ; that Dick,
DeArmit and others conspired and confederated together for
the purpose of obtaining the appointment of receivers, in order
to prevent the creditors from collecting their just claims, so
that Dick, DeArmit and others might, through said receivers,
obtain more complete control of the property of the defendant,
for the purpose of harrassing and annoying the creditors, and
the majority of the stockholders, to the end that the creditors
would compromise their indebtedness against the defendant
company for a small per cent. ; and that the stockholders would
part with their stock for a trifling amount, and thus enable the
said DeArmit, Dick and others in such conspiracy to obtain
ownership of the property without paying any substantial
amount therefor; that Dick, DeArmit and others, claiming to
be the directors of the company, prior to the appointment of
receivers, attempted to reduce the capital stock from $3,000,-
000.00 to $1,250,000.00. Then follows a history of this
transaction whereby it appears all the stock of the corporation
was turned over to certain trustees, in which manner it is al-
leged that DeArmit and his associates had controlled the af-
fairs of the company against the interest of its creditors and
those owning a majority of its stock.

Other all^ations are set forth i>ertaining to the history
of the defendant company and the alleged fraudulent acts of
Dick, DeArmit and others in connection with its manage-
ment. The prayer is the same as in the former petition. The

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Jan., '13.] Peopi^e v. District Court. 583

court, upon January 6th, 191 2, after considering the applica-
tion and hearing the arguments of counsel, ordered that the
application and petition be denied. Thereupon, the petitioners
offered for filing a motion to vacate and set aside the order
made January 7th, 191 1, appointing receivers. The court re-
fused to allow this motion to be filed. Mr. Ferguson then
presented for filing a demurrer to the complaint. This was
likewise refused. The petition praying for the writ of pro-
hibition was filed in this court upon November 22nd, 191 2.

The contentions of the petitioners are that while the court
had jurisdiction to entertain the action proper, which they
claim is a suit upon notes, and for services rendered, it was
without jurisdiction over the property of the corporation at-
tempted to be covered in that portion of the petition setting
forth alleged reasons for the appointment of receivers ; that if
this position is wrong and the court had jurisdiction to pass
upon the question, that when the allegations of the petition
are considered, it fails to disclose facts sufficient to justify the
court in its appointment of receivers and in so doing it ex-
ceeded its legitimate powers; that by presenting their petition
for intervention with these reasons therein stated they gave to
the trial court an opportunity to correct its erroneous ruling
in this respect, which it declined to do, and that this is suffi-
cient to give them the right to petition this court for the writ
of prohibition therein, although they have not yet become par-
ties to the action, and that they have no plain, speedy and ade-
quate remedy at law to protect their rights in the premises.

This court has universally held that a writ of prohibition
is not a writ of right, but rests in the sound discretion of the
court-— Leonard v. Battels, 4 Colo. 95 ; People ex rd, v. Dis-
trict Court, 6 Colo. 534; Mclnemey v. City of Denver, 17
Colo. 302; People ex rel. v. District Court, 19 Colo. 343;
People ex rel v. District Court, 21 Colo. 251 ; People ex rel.
V. District Court of Lake Co., 26 Colo. 386.

For the reasons hereinafter stated, we are of opinion that
upon account of the acquiescence and laches of the petitioners.

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584 People v. District Court. [54 Colo.

this court ought not to entertain this application. This makes
unnecessary any consideration of the many intricate questions
presented.

It will be observed, that the receivers were appointed Feb-
ruary 7th, 191 1 ; that upon March ist, same year, the petition-
ers tendered for filing their first petition of intervention. This
was denied upon March nth, following. Nothing further
was done by them until January 6th, 1912, a period of ap-
proximately ten months, when they filed another petition to
intervene, wherein they set forth, in substance, as excuses for
delay in its presentation that they have abandoned any right
to stand upon their former petition, and acquiesced in the ap-
pointment of the receivers for the reason, as they allege, that
it was represented to the court at the time of the appointments
that within a very short time funds would be raised by those
who desired the appointment of receivers sufficient to pay the
pressing debts of the defendant company, and also to develop
and improve its properties and to enable it to work and operate
them and make its plant a going concern, and that the court's
•decision in refusing to allow them to intervene was largely
based upon these promises, but that during these ten months
nothing had been done in this respect to relieve the company
from its financial embarrassment, or to put its property in a
condition to work and operate, but; on the contrary, a large
amount of additional indebtedness had beSen incurred, etc. In
other words, they said to the court that while we did not ap-
prove of the appointment of receivers and thought you were
without jurisdiction in so doing, and we thus stated in our
first petition for intervention, yet upon account of the prc«n-
ises made to you that the emergency debts of the corporation
would be paid, and sufficient other funds arranged for to
make the defendant's business a going concern, we acquiesced
therein, and said nothing further for a period of ten months in
order to see if such arrangements' would be carried out by that
faction of the stockholders of the defendant who desired and
secured the appointment of the receivers. To put it in another

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Jan., '13.] Peopi^ v. District Court. 585

way, it was to say tha^ if things work out all right, and to our
advantage, we acquiesce in the appointment of receivers; but
if they go wrong (although we have not said so, and will not
until it is necessary to act), it is our intention when it is thus
ascertained, to again object to the appointments, and challenge
the jurisdiction of the court to make them. Such action upon
behalf of the petitioners was unquestionably an acquiescence in
the appointment of the receivers and in their handling of the
property during the ten months following their appointment.

The second petition for intervention was presented Jan-
uary 6th, 191 2, and by the court acted upon and refused the
same day. The petition for the writ of prohibition was filed
in this court November 22nd, 1912. It fails to give any ex-
cuse or reason why it was not applied for until over ten
months after the district court for the second time had refused
to grant the relief prayed for.

Regardless of whether the case is of such importance as
the petitioners claim, we are of opinion that their actions as
above stated, during the ten months after these appointments
were made, present a case of acquiescence during that period
and that their delay for the ten and a half months thereafter,
before making application here for the writ of prohibition, pre-
sents a case of laches and when both are considered they are
sufficient to justify this court in refusing to consider the ques-
tions raised pertaining to the merits of the controversy under
its extraordinary jurisdiction by writ of prohibition.

While it is claimed that the petitioners (by presenting
their petition of intervention) gave to the trial court an op-
portunity to pass upon the question of its jurisdiction to ap-
point receivers in an action to which the petitioners were not
then parties (a question unnecessary to determine) ; it is con-
ceded the only thing that the court did pass upon was their
right to intervene. Its refusal was such a final judgment
against them to which a writ of error will lie. — Henry v.
Travelers' Insurance Co., 16 Colo. 179; Curtis v. Lathrop, 12
Colo. 169; Limber g v, Higginbotham, 11 Colo. 316; Harmon

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S86 NuTT V. Davison. [54 Colo.

V. Barhydt, 20 Nebr. 625 ; First Nat'l Bgnk v. Gill & Co.,^ 50
Iowa 425 ; Nat'l Distilling Co. v. Seidel, 103 Wis. 489.

Had a writ of error been promptly sued out upon the
court's first refusal to allow the petitioners to intervene, the
matter could probably have been reached and disposed of in
the regular manner by this time. Whether the petitioners had
the right to present a second petition to the court, raising the
same contention, with the further statements that the appoint-
ment of the receivers had not proven successful or accom-
plished what was promised, is unnecessary to determine. They
elected, as they say, after the first refusal, to take their chances,
and had the appointments brought the results alleged to have
been promised, it appears they would have been satisfied and
continued to acquiesce in the jurisdiction of the court, but in-
asmuch as they did not work out as they alleged was prom-
ised, they now desire to have the question determined in this
extraordinary manner. Under such circumstances the appli-
cation ought not to be entertained.

For reasons stated the alternative order and rule will
be quashed and the writ denied.

Application denied.

Decision eti banc.

[No. 6551.1

NuTT v. Davison.

1. Bailment — Negligence of Bailee Presumed — Where goods are
delivered to bailee in good condition, and are returned injured or in
defective condition, or not at all, a presumption of negligence on the
part of the bailee at once arises, and the burden is upon him, if he
would exonerate himself, to show due care.

2. Directions of Bailor — The bailee of live stock complies

with the instructions of the bailor, as to the place of their keep;
but these instructions are given upon the representations of the
bailee, the bailor having no acquaintance with the locality. Loss en-
sues by reason of the unsuitableness of the place. The bailee is liable.

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Jan., '13.] NuTT V. Davison. 587

If in such case the pasture where the animals are at first kept,
by direction or consent of the bailor, becomes unsuitable by reason of
a change of condition, it is the duty of the bcdlee to either take such
action as a reasonably prudent person would to preserve the animals
in unimpaired condition, or to promptly inform the bailor of such
change of conditions.

3. Instructions — Conficting — Not Warranted "by Evidence—
Shifting Burden of Proof — Instructions which are directly in conflict,
upon a material question, constitute fatal error.

So instructions which are directed to a supposed state of facts
not established by the evidence.

Or an instruction which devolves upon one party the burden of
proof which the law imposes on the other

Error to Montrose District Court. — Hon. Sprigg Shack-
LEFORD, Judge.

Mr. S. S. Sherman^ for plaintiff in error.

Messrs. Beix, Catun & Blake and Mr. P. W. Moth-
ERSiLL, for defendant in error.

Mr. Justice White delivered the opinion of the court :

This is an action brought by a bailor against a bailee in
whose exclusive and immediate possession the property bailed,
or a portion thereof, suffered injury and was destroyed. The
judgment was in favor of the bailee and the bailor brings the
cause here for review. The subject of bailment was approxi-
mately four hundred head of cattle, entrusted to the bailee for
a fee, to be cared for during a specified time, upon a designated
cattle range, and at the expiration of the term returned to the
bailor. The greater portion of the cattle were received by the
bailee April ist, and the remainder May 20th. Between these
dates at least ten of the first herd had died, of which fact the
bailee had knowledge, but did not apprise the bailor thereof
when he received the second herd, though at that time he asked
of the bailor, and received of him personally, a check in part
payment for his services under the contract of bailment. Dur-
ing the first sixty days of the term ninety-seven head of the

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S88 NuTT V. Davison. [54 Colo.

cattle died. It was the contention of the bailor that the cattle
died from starvation and exposure by reason of confinement in
a pasture, at a high altitude, not sufficiently supplied with food
and shelter, while the defendant claimed they were placed and
kept therein temporarily by direction of the plaintiff.

Over the objection and exception of plaintiff the court in-
structed the jury, in effect, that before the plaintiff could main-
tain his cause of action and recover against the defendant, he
must show the cause of the death of the cattle and that they
died only by reason of the negligence of the bailee, and of what
that negligence consisted. We think the court erred in so in-
structing the jury. While the authorities are in conflict, the
greater weight thereof and the better reason place the duty
upon the bailee to satisfactorily explain the non-delivery of the
thing bailed, or its delivery in an injured condition such as
only culpable carelessness would probably have caused.

The general rule is, that in cases where the evidence
shows that the property was delivered to the bailee in good
condition and returned damaged, or not at all, the presumption
of negligence on the part of the bailee instantly arises, making
a prima facie case in favor of the bailor, and thereupon the
bailee is under the necessity, if he would escape liability, of
showing that the damage or loss was not due to his negligence.
This may be done, inter alia, by showing that he exercised a
degree of care, under all the facts and circumstances, sufficient
to overcome the presumption of n^ligence. — Union Pacific
R. R. Co, V, Stupeck, 50 Colo. 151 ; Schouler's Bailments and
Carriers, (3d Ed.), sec. 23; 5 Cyc, p. 217; 3 Am. & Eng.
Ency. of Law, (2d Ed.), p. 750; Funkhotises v. Wagner, 62
111. 59; Higman v, Caonody, 112 Ala. 267.

The rule rests upon the consideration that where the
bailee has exclusive possession, the facts attending loss or in-
jury must be peculiarly within his own knowledge. Besides,
the failure to return .the property, or its return in an injured
condition, constitutes the violation of a contract, and it de-

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Jan., '13.] NuTT V. Davison. 589

volves upon the bailee to excuse or justify the breach. A clear
summary of the law, as to the liability of the bailee for loss or
injury to the thing bailed, is found in a note to section 23 of
Schouler's Bailments and Carriers, supra, where it is said :

"Admitting the danger of wide generalizations on this
subject, and granting the force of special circumstances in each
case, we may perhaps fairly reach these conclusions: (i)
That the bailor who charges his bailee with losing or injuring
the thing bailed to him, must make out his prima facie case;
that is, he must show the creation of the particular bailment in
fact, and the delivery on his own part of the specified thing in
due condition, with corresponding acceptance by the bailee;
also, the bailee's default of final delivery over, or else the final
delivery of the thing in unsuitable condition, as the case may
be. And whatever might obstruct a prima facie showing to
this point, and justify an inference that the thing was injured
by himself or his agents, or by his or their participation in the
mischief, or that its inherent qualities would naturally have de-
veloped the mischief, — all this the plaintiff must overcome to
make out his case. (2) The prima facie case being thus
made out as claimed, showing (a) that the property bailed for
a certain purpose was not delivered back or over at all by the
bailee as contemplated, or (b) that when delivered over it was
found so damaged that probably the bailee or his agent caused
the injury, the inference is deducible that the bailee is to blame
and must answer. And now it rests upon the defendant bailee
to explain the loss and exonerate himself ; which he may do by
showing (a) that the loss or damage was due to some special
cause which ought specially to excuse him; or (b), more gen-
erally, that he, the bailee, was not culpably negligent. * * *
(3) But if the bailee, under such circumstances, shows some
cause of loss or damage to the thing, such as ought legally to
excuse him, he need not go further and prove affirmatively
that no negligence on his part operated in producing that
cause; but may rest upon a showing which, on the face of it.

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S90 NuTT V. Davison. [54 Colo.

leaves him sufficiently exonerated. The burden now shifts
back to the plaintiff bailor, who is to overcome, if he can, the
bailee's prima facie exoneration."

Moreover, the instruction under consideration is in con-
flict with Instruction No. 3, wherein the duty of overcoming
the presumption of negligence, arising from the failure to re-
turn the property, was properly placed upon the bailee. Those
instructions wefe upon a material point in the case. The lat-
ter stated a correct principle of law applicable to the facts of
the case. The former misdirected the jury in that respect.
This constitutes reversible error, as it is impossible to deter-
mine by which instruction the jury were guided in arriving at
their verdict. When we bear in mind that the bailee, accord-
ing to his own contention, had the immediate possession and
control of the cattle, in a particular and limited space, and the
great number that died within so short a period after the bailee
received them, it is evident that the duty devolved upon the
bailee to come forward and show that the death of the cattle
arose from no fault of his. Under such circumstances the fact
of death alone would hardly be a satisfactory explanation of
the non-delivery. It might be otherwise if the number of
deaths was not excessive.

The jury were likewise instructed that the bailee would
not be responsible for the place where he kept, or the manner
in which he handled the cattle, if he obeyed the directions of
the bailor in that respect. The facts of the case did not war-
rant the instruction. The bailor claimed that the cattle were
to be kept upon a particular range, and the bailee, while ad-
mitting that to be the contract generally, claimed that by ex-
press direction of the bailor the cattle were to be kept in a pas-
ture until they became accustomed to the locality. The bailor
had no knowledge of the pasture or the food supply therein,
while these matters were all within the knowledge of the bailee.
Moreover, according to the bailee, the bailor had given such
directions upon the representation by the bailee that the pas-
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Jan., '13.] NuTT V. Davison. 591

ture was a suitable place, supplied with sufficient food in which
to properly keep the cattle. Under these circumstances, the
law imposed upon the bailee the duty of exercising that degree
of care in respect to the property which a man of average
prudence and diligence would bestow on his own property un-
der like conditions and circumstances, and which the law de-
nominates "ordinary care." The care thus required is illus-
trated in Schouler's Bailments and Carriers, section 137, as
follows :

"Let us take, for example, a case by far the most familiar
under this head to English and American courts, namely, that
of a horse hired for use. Now, unless the bailee took the ani-
mal for too short a time, or under a special arrangement
whereby the bailor was to look after his own property, he
ought to provide the creature regularly with proper food and
drink, afford due shelter and repose, and, in general, take rea-
sonable heed that the animal, while resting, is so fastened up
that it may not readily run away or be stolen. While putting
the horse to active use he should not harness carelessly, over-
load, overdrive, be heedless of what he perceives to be the
creature's frailties, nor fail to supply, prudently, wants essen-
tial to its health and good condition. If disease or bruise be
discovered during the bailee's term, he should be discreet in its
treatment, and in extremity call in some farrier or expert; or
else informing his bailor promptly, throw the responsibility, as
he may generally do, upon the owner. He should not take
dangerous risks of travel. During his whole term of the use
the bailee ought to act honorably, humanely, and with such
reasonable regard for preserving the animal's value unimpaired
as from prudent men might be expected."

Were we to assume that the pasture, when the cattle were
first placed therein by directions from the bailor, was supplied
with sufficient food and was a proper place in which to keep
them until they had been accustomed to the range, neverthe-
less, if it became apparent to a reasonably prudent person that

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592 Harrison v. Denver Tramway Co. [54 Colo.

the subsequent condition of the pasture, by reason of snow,
the lack of food or other causes, rendered it an unfit and im-
proper place in which to keep the cattle, it thereupon became
the duty of the bailee to take proper action and precaution,
such as a reasonably prudent person would taken under like
circumstances, to preserve the cattle unimpaired, or inform
the bailor promptly of the changed conditions and thereby
place the responsibility upon the latter.

We can not commend the complaint as a model plead-
ing. It contains much surplusage, and many all^ations are
found therein that should properly be embodied in a replica-
tion. However, this does not remove the prejudice arising
from the giving of erroneous, inconsistent and conflicting in-
structions. If all the facts of the case and the presumptions
arising therefrom, show that the loss* of the cattle was due to
some special cause which ought specially to excuse the bailee,
or that the latter was not culpably n^ligent, the alleged cause
of action fails and the plaintiff can not recover; otherwise, he
can, the bailment and loss being admitted. Under such cir-
cumstances it would be wholly immaterial as to which of the
parties furnished the proof. But that is a different matter from
telling the jury that the proof of certain facts devolve upon
the plaintiff when the law presumes their existence without
proof, unless the contrary is shown. The plaintiff was un-
doubtedly under the necessity of establishing his case by a fair
preponderance of the evidence, but he was not called upon, un-
der the facts and circumstances of this case, to assume the bur-
den placed upon him by the instructions. The judgment is re-
versed.

Decision en banc.

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Jan., '13.] Harrison v. Denver Tramway Co. 593

[No. 6764.]

Harrison, Administrator, v. Denver City Tramway

Company.

1. Stbeet Railway — Damage to Private Property— Under sec. 11
of art. XV of the constitution, and sec. 5420 of the Revised Statutes,
those who by license of a city, construct a railroad upon the streets
thereof, stand, as to any liability to make compensation for privaro
property taken or damaged, in the place of the city.

2. CJoNSTiTUTiONAL Law — Privotc Property Taken for Public Use
— ^A physical taking of private property for public use need not be
shown in order to entitle the owner to compensation; but it must ap-
pear that some right, or interest pertaining to the property has been
destroyed or impaired, before an action can be maintained. The
right disturbed may be public or private, but it must be a right en-
joyed in connection with the property, not shared with the public
generally, a right which gives it an additional value and by the dis-
turbance of which the property itself is damaged.

A municipality may devote its streets to all those ordinary and
necessary uses to which streets are usually subjected, and to such
local uses and means of conveyance as the law-making power may
authorize, for the thoroughfares of the entire city. Incidental in-
juries occasioned by the careful exercise of such rights granted pur-
suant to this power are damnum absque injuria.

As to extraordinary or unusual uses, or unreasonable changes, or
injuries to abutting property through faulty or improper construc-
tion, the rule is otherwise.

But the proper construction of a street railway, with due regard
to existing local conditions, does not so augment the servitude upon
the street as to entitle the owner of property abutting thereon, to
compensation.

Nor does the mere fact that the tracks of a railway are laid so
close to abutting property that vehicles may not stand between them
and the sidewalk.

The annoyances, discomfort, and injury, suffered by the abutter
from the ringing of bells, and loud and discordant noises produced
by the cars in passing over ^e tracks aad around curves, are, ex-
cepting as to degree, suffered b^Mhe public generally so far as such
noises and vibrations are heard and felt, and give no action.

The abutter is, however, entitled to receive at, or remove from
his premises, persons or goods, and to have vehicles stand in front
thereof upon the street, for the time reasonably necessary for this
purpose, even though this may temporarily interfere with the pass-
age of others; and if this right is interfered with he may have re-
dress therefor in a proper action.

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594 Harrison v. Denver Tramway Co. [54 Colo.

Error to Denver District Court. — Hon. Hubert L.
Shattuck, Judge.

Mr. R. T. McNeal, for plaintiflf in error.

Mr. Gerau> Hughes and Mr. Howard S. Robertson,
for defendant in error.

Mr. Justice White delivered the opinion of the court :

December 9, 1907, Mary V. Macon brought suit against
The Denver City Tramway Company for damages claimed to
have been sustained as a result of injury to her residence prop-
erty. The complaint, as amended, alleges, in substance, that
since November, 1890, the plaintiff has owned and been in
possession of two described lots at the corner of Qgden street
and nth avenue, in the city and county of Denver, together
with a two and one-half story brick dwelling house of four-
teen rooms, situate thereon, and occupied by her as a residence ;
that prior to certain acts of defendant, hereinafter set forth,
the plaintiff's property was of great value as a dwelling, and
the location thereof one of the most desirable in the city ; that
Ogden street extends in a northerly and southerly direction
and is thirty feet wide between the curbs in front of plaintiff's
residence; that nth avenue extends in an easterly and westerly
direction; that for ten years prior to 1907 the defendant, un-
der a franchise from the city, operated a double track electric
street car line from the business section of the city on nth
avenue to its intersection with Ogden street ; thence on Ogden
street north by curves to 12th avenue; thence east to Fillmore
street; that in the summer of 1907 the defendant, under its
franchise, extended its nth avenue car line from Fillmore
street, fifteen blocks eastward, and connected the same with
Its Fairmount line, and, over the protest of plaintiff, likewise
constructed an additional line from its southerly track on nth
avenue, by a sharp curve, into and upon Ogden street to 9th
avenue; thence easterly and then northerly through Downing
street to nth avenue, and thence west to an intersection with

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Jan., '13.] Harrison v. Denver Tramway Co. 595

its tracks at nth avenue and Ogden street; that in front of
plaintiff's residence the west rail of defendant's tracks on Og-
den street is thirteen feet, at its most remote point, from the
curb, and at its least remote point three feet therefrom; that
the cars upon said track pass within about thirty-five feet of
the front of plaintiff's residence, while the cars on nth ave-
nue pass within about forty feet of the north line thereof ; that
since the construction of the extended and additional lines de-
fendant has run, and continues to run, its electric cars past
plaintiff's house over such tracks at the rate of forty cars per
hour; that prior to the construction of such additional lines
south through Ogden street, visitors and others wishing to ap-
proach plaintiff's residence, by carriage, automobile, or other
vehicles, were accustomed to alight and leave their vehicles in
safety in front of her residence; that subsequently thereto they
have been deprived of such privilege by the frequency with
which cars are operated upon said tracks, and are compelled to
alight at the rear entrance on nth avenue, or elsewhere than
at the side-walk in front of her residence; that the frequent
passage of cars over the curves of the tracks makes a loud,
grinding, shrill and nerve-racking noise, and jars the building,
and creates almost a constant rumbling, disturbing sound, ac-
companied by the ringing and clanging of alarm bells and dan-
ger signals ; that it is thereby made impossible, the greater por-
tion of the time, for inmates of her home, or visitors therein,
to conduct, on the veranda or in the front rooms, conversation
in an ordinary tone of voice, or enjoy any form of social in-
tercourse or entertainment during the day or evening, or enjoy
undistrubed sleep at night, or occupy the house with any de-
gree of comfort or quietude ; that by reason of such things, the
rental and selling value of her. property has been greatly de-
preciated to the plaintiff's damage, etc.

A demurrer to the amended complaint was sustained and
the plaintiff brings the cause here for review. The demurrer,
inter alia, challenged the sufficiency of the facts stated to con-
stitute a cause of action.

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596 Harrison v. Denver Tramway Co. [54 Colo.

Section 1 1 of article XV of the constitution inhibits the
construction of a street railroad in any city without the con-
sent of the local authorities having control of its streets. Sec-
tion 5420, R. S. 1908, re-enacts, in effect, the constitutional
provision, and further declares, substantially, that the consent
upon the part of a city to the construction of a street railroad
therein shall not operate to relieve or protect those construct-
ing the road, etc., "against any claim for damages to private
property, which otherwise, without such consent, might be
lawfully miantained against" the persons constructing the
road. Section 15 of article II of the constitution declares "that
private property shall not be taken or damaged, for public or
private use, without just compensation."

Under these provisions of the law, damages to private
property, by whomsoever caused and for whatsoever purpose,
must be paid ; and the defendant, though armed and protected
by the power of eminent domain, must respond to plaintiff, if
in the construction of its road it has taken or damaged her
property.

However, neither the constitutional inhibition against the
construction of a street railroad in a city, without the consent
of the local authorities, nor the consent of the municipality to
the construction of defendant's road, enlarged or lessened the
rights of plaintiff. Her rights depend solely upon whether her
property has been taken or damaged. The constitutional in-
hibition recognizes the right of cities to control their streets,
while the statutory provision makes it certain, as between mu-
nicipalities and those constructing street railroads therein, that
the latter shall make compensation for private property taken
or damaged in the construction of such public works. In other
words, as to the liability for compensation for private property
taken or damaged, those constructing the road stand in the
place of the city. So in the case at bar. If the city of Denver
had constructed and operated the road in question, in the same
place and manner as has the defendant, and no cause of action

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Jan., '13.] Harrison v. Denver Tramway Co. 597

arose thereby against the municipality and in favor of plaintiff,
none has arisen in her favor by reason of the construction and
operation of the road by defendant.

A physical taking of plaintiff's property was not essential
to a cause of action in her favor, but physical damage thereto,
as contradistinguished from personal annoyance or inconven-
ience, was. It must appear that plaintiff had some right in,
user of, or interest pertaining to the property which has been
wholly or partially destroyed before she can maintain a cause
of action for damages to her property. The right disturbed
may be either public or private, but it must be a right which
she enjoyed in connection with her property, and which gave
to it an additional value, and without which, or as affected "by
the disturbance, the property itself is damaged. The disturb-
ance of the right or easement may be at a distance from the
property injured, but the interference must be with some right
held with regard to that property.

As said in Gilbert v. Greeley S. L. & P. Ry. Co., 13 Colo.
501, 506: "Private property must be taken, or private prop-
erty must be damaged, before a cause of action arises. The
damage must be to the property, or its appurtenances, or it
must affect some right or interest which the owner enjoys in
connection with the property, and which is not shared with or
enjoyed by the public generally."

The injury sustained must be damages to her property,
not incidental injuries arising from a careful exercise of legal
rights by defendant in a manner that do not invade the legal
rights of plaintiff. The principle expressed in the phrase
damnum absque injuria has not been repealed. — City of Den-
ver V. Bayer, 7 Colo. 113; Denver Cir. R. Co. v. Nestor, 10
Colo. 403.

For annoyance and inconvenience to owners of private
property, arising from the lawful and reasonable acts of an-
other, or the lawful and reasonable use by another, without
negligence and without malice, of that which is his, no matter
how seriously such acts may depreciate the market price of ad-

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598 Harrison v. Denver Tramway Co. [54 Colo.

joining property, the owner thereof is without remedy. The
fundamental law gives a remedy for private property taken or
damaged by requiring payment therefor, but does not extend
that remedy to include compensation for personal annoyance
and inconvenience suffered by reason of the proper and reason-
able operation of either public works or private enterprises.

Moreover, it is certain from our decisions that a munici-
pality in this state may use or authorize its streets to be used
for all ordinary and necessary uses to which city streets are
usually subjected, and to such further local uses and means of
conveyance as the law-making power may have authorized for
the streets and thoroughfares of the entire city, and that inci-
dental injuries arising from a careful exercise of those rights
are damnum absque injuria, but as to extraordinary or un-
usual uses or unreasonable changes in the street, no such im-
munity exists. — City of Denver v. Bayer, supra; City of Den-
ver V. Vernia, 8 Colo. 399; Denver Cir. R. Co. v. Nestor,
supra; D. & S. F. R. Co. v. Domke, 1 1 Colo. 247 ; Gilbert v.
G. 5*. & P. L. R. Co., supra; Pueblo v. Strait, 20 Colo. 13:
City of Denver v. Bonesteel, 30 Colo. 107; Leiper v. Denver,
36 Colo. no.

As said by Mr. Justice Helm, in his concurring opinion,
in Denver Cir. R. Co. v. Nestor, supra; "The framers of the
constitution, and the people who voted for its adoption, under-
stood that, with this instrument in force, certain injuries suf-
fered by the proprietor of land, through the legitimate and
careful improvement of adjoining ground would continue to be
wrongs for which the law provides no remedy. So, also, did
the convention and the people understand that the abutting lot
owner would anticipate, in making his purchase, that the street
would necessarily be occupied by the local public for all the
usual and ordinary uses of a highway; that the city would,
from time to time, under the statutory powers conferred, so
change and improve the street as to render it more convenient
and useful for such purposes; and that incidental injuries in-
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Jan., '13.] Harrison v. Denver Tramway Co. 599

directly resulting to him from such improvements would still
be, as they were before the constitution, wrongs without a
legal remedy."

And in speaking of the power of the city over its streets,
in City of Denver v. Bayer, supra, we said : "In determining
what changes and improvements are most conducive to (the
greater convenience of the public), the council exercises a large
discretion. And unless unreasonable changes are made, or
injury results to the adjoining premises through the unskill-
fulness or negligence of those employed, the owner thereof
will not be heard to complain, though, in fact, the real value
and convenience of his property are diminished thereby ; for in
purchasing his lot, or in relinquishing the public easement, he
is conclusively presumed to have contemplated this power and
authority of the municipal government, and is held to have an-
ticipated any injury to his abutting land resulting from a rea-
sonable and proper exercise thereof."

And in Leiper v, Denver, supra, many cases are reviewed,
and it is held that an "abutting lot owner was bound to antici-
pate, in making his purchase, that the street would necessarily
be occupied by the local public for all the usual and ordinary
purposes of a highway, and that the cfty would, from time to
time, so change and improve the street as to render it more
convenient for such purposes, and that indirect injuries result-
ing to him therefrom remain now, as they existed before the
constitutional provision was adopted, wrongs without a legal
remedy."

When lands are taken or dedicated for a town or city
street, the nature and extent of the public right therein are
well defined. Such lands are acquired for the purpose of pro-
viding a means of free passage common to all the people.
When a street is laid out it may be rightfully used throughout
its entire extent in such manner as will render it most useful
for a highway. And unless unreasonable changes are made
therein, or it is subjected to an extraordinary or unusual use.

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6oo Harrison v. Denver Tramway Co. [54 Colo.

or injury results to the adjoining premises through faulty or
improper construction, the owner of such premises has no
cause of action, though, in fact, the real value and convenience
of his property are diminished thereby. — City of Denver v,
Bayer, supra; Pueblo v. Strait, supra; Leiper v. Denver, supra.

Such changes and uses, if properly made and controlled,
do not in any substantial respect destroy the street as a means
of free passage common to all the people, nor ordinarily im-
pose thereon an additional servitude. By the reasonable, ordi-
nary, usual and lawful use of a right already fully vested in
the public, abutting property is not thereby damaged in a man-
ner that can be made the basis of additional compensation un-
der the constitutional provision.

It is equally well settled that the use of the streets in mu-
nicipalities for a street railway is one of the ordinary and
usual purposes for which such streets and highways may be
used, and does not, when properly constructed with due regard
to existing, local conditions, augment the burden or servitude
upon the street so as to entitle the owner of abutting property
to 'additional compensation. — Cooley on Const. Lim., p. 683 ;
Dillon on Munic. Cor.j (4th Ed.), sec. 723; Elliott on Roads
and Streets, sees. 698,' 699 ; Bopth on Street Railways, sees.
82, 83; Joyce on Electric Laws, sees. 336, 339, 341 ; San An-
tonio, etc,, Ry, Co. v. Limburger, 88 Tex. 79 ; Rafferty v. Cen.
Trac. Co., 147 Pa. 579; Wagner v. Bristol B. L. Ry. Co., 108
Va. 594; Placke v. Un. Depot R. Co., 140 Mo. 634.

On this point, in Ransom v. Citizens' Railway Co., 104
Mo. 375, it is said: "Such a street railway as this, so laid and
operated as not to materially impair access to, or the enjoy-
ment of, the adjacent property may lawfully be placed in the
public highways of the city, if expressly sanctioned by proper
authority. Such a use does not impose any additional burden
entitling the owner of adjoining land to compensation; nor
can it be justly regarded, at the present day, as any substantial
impairment of the public easement or of the private rights of
proprietors of land abutting on the street."

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Jan., '13.] Harrison v. Denver Tramway Co. 601

And in Placke v. Union Dtpot R. Co., supra, it is said :
"We think it must now be regarded as settled law that an elec-
tric street railway laid to grade is not an additional servitude,
and does not infringe upon the property rights of those whosfe
lots abut on the street."

Testing the complaint before us by the rules announced,
it is clear that no cause of action is stated therein. It contains
no allegation that the railway track is above or below the sur-
face of the street, or was in any wise improperly or negligently
constructed, or that the road, as a structure, i;i any way ham-
pers ingress or egress. The gravamen of the complaint is the
additional number of cars operated on the line, with the conse-
quent increase in vibration and noise by reason thereof. While
it is alleged that at one point in front of plaintiff's residence
the west rail of defendant's road is but three feet from the
curb, it is not claimed that thereby ingress and egress to plain-
tiff's property is affected. The inconvenience alleged in that
respect arises from "the frequency with which cars are oper-
ated upon said tracks," and in no sense from the structure
itself. The defendant is not liable for inconvenience of either
character, because they are merely incident to the use of the
highway for public travel. — Denver & S. F. Ry. Co. et al. v,
Hann^gan, 43 Colo. 122.

The mere fact that street car tracks are laid so close to an
abutting owner's property as not to permit vehicles to stand
between the tracks and the sidewalk, does not constitute a
cause of action in favor of the abutting property owner under
the damage clause of the constitution. Wagner v. Bristol Belt
Line Ry Co., supra. The right to the use of the street is the
same after the tracks are laid and the cars running thereon, as
it was before. Both he and the defendant cnmpany, and like-
wise the public generally, are entitled to its reasonable use
with due regard to the rights of each and all. — Denver City
Tram. Co. v. Wright, 47 Colo. 366; Carson v. Central R. Co.,
35 Calif 325, 327.

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6o2 Harrison v. Denver Tramway Co. [54 Colo.

As said in San Antonio Rap. Tran. Ry. Co. v. Limburger,
supra, p. 86; *'In regard to the matter of access to the prop-
erty, the question is not whether the construction and main-
tenance of the railway interferes with the ingress and egress
to and from the storehouses, but it is whether such construc-
tion and maintenance infringe upon the right of access. It is
possible that the operation of a line of omnibuses or drays, or
the frequent passage of all kinds of vehicles for the convey-
ance of persons or property, may seriously interfere with and
obstruct the occupants of the buildings in the receipt and deliv-
ery of goods; and yet it could not be held that such interfer-
ence was unlawful. Everyone has the right to the use of the
street for the purpose for which it was dedicated, and still in
any crowded thoroughfare the driver of any one vehicle al-
most necessarily interferes with the passage of some other.
One can not, however, unreasonably delay to the obstruction
of another. So with the case of a street railway. Its passage
may be lawfully interfered with by persons lawfully using the
thoroughfare for pleasure or for business. It may obstruct the
passage of other vehicles ; but it can not l^ally do so, except
upon reasonable necessity. The right of the company to move
its cars over its track is not superior to the right of another
person in the use of the street."

And in Rafferty v. Central Traction Co., supra, it is said
that if at any time the abutting owner has occasion for the
presence of vehicles on the street in front of his property to
take away or deliver persons or goods, he may exercise that
right for such reasonable time as is necessary for his purpose ;
and if, in such exercise of the right the passage of street cars
is impeded, they must wait.

Moreover, the well recognized rule is, that in order for a
plaintiff to state a cause of action under the damage clause of
the constitution, he must allege facts showing that the injury
to him is not only greater in degree but different in kind from
that suffered by the public at large. The complaint contains

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Apr., '13.] Harrison v. Denver Tramway Co. 603

no such allegations. The annoyance, discomfort and injury
suffered by the plaintiff from the loud and disagreeable noises
and vibrations produced by the cars passing over the tracks
and around the curves, and the ringing of alarm bells at the
place and times in question, are the same, except in degree, as
are suffered by the public generally as far as such sounds and
vibrations are heard and felt. And as to injury to the ingress
and egress to and from the premises, it is not different in kind
from that suffered by every other owner of property along the
street. The use of the street by any one, in the most careful
matter, whether by operating street cars theron, driving teams
or automobiles or other vehicles over the same, or traveling
upon foot, does to some extent obstruct ingress and egress to
and from the property abutting upon the street. But these are
temporary and passing inconveniences and affect the general
public in the same manner as they affect the abutting property
owner, differing only in degree. — Romer v, St Paul, etc., Co.,
75 Minn. 211.

Whether street car tracks are at .the side or in the center
of the street, if they damage, in the constitutional sense, an
abutting property owner's ingress and egress to and from the
street, he has a cause of action. But, as said in the syllabus of
Wagner v. Bristol Belt Line Ry. Co., supra: "An abutting
owner is not entitled to damages merely because his property
is made less desirable and less comfortable as a residence by
reason of the fact that a street car track is laid on the side of
the street next to his residence instead of in the center of th^
street. When the acts complained of amount simply to an in-
convenience or discomfort of the occupants of the property,
but the property itself does not suffer any diminution in sub-
stance, and is not rendered intrinsically less valuable by reason
of the public use there can be no recovery. The property is
not damaged within the meaning of the constitution."

The conclusions we have reached herein are in accord
with the principles this court has heretofore announced, and

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6o4 People v. Parker. [54 Colo.

likewise consistent with the best-reasoned cases in other juris-
dictions. So it is unnecessary to continue the discussion fur-
ther. The judgment is affirmed.

Judgment affirmed.

Decision en banc.

Chief Justice Musser and Mr. Justice Scott disseot-
infif.

Chief Justice Musser dissenting:

Each case is governed by its own peculiar facts. As I
read the complaint, it appears to me that it allies facts,
which, if not denied or if not explained, are sufficient to show
that the property in question has suffered such special damage
as to call for compensation within the true intent and mean-
ing of the provision of our constitution, which says, "That
private property shall not be taken or damaged for public or
private use without just compensation*' (Const., art. II, sec.
15), as that provision has been heretofore construed by this
court. The demurrer should have been overruled.

Mr. Justice Scott joins with me in this dissent.

[No. 7688.]

The People v. Parker et al.

1. Executors and Administratobs — Sale of Decendenfs Lands in
Another State — The county court has no Jurisdiction to order a sale
by an administrator of lands of the decedent, situated in another
state. Such order is void.

2. Special Bond of Administrator Selling Lands — Liability of

Sureties — ^The bond required by statute (Rev. Stat, and Colo. Stat
Ann.» sec. 7178) of an administrator directed to sell lands for the
payment of the debts of the Intestate, is for the protection of those
interested in the estate, not the purchaser.

Void order for the sale of lands situated In another state, and
sale accordingly; the sureties in the bond are not responsible to the
purchaser.

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Apr., '13.] People v. Parker. 605

Error to Sedgwick District Court. — Hon. H. P. Burke,
Judge.

On Petition for Rehearing.

Messrs. Aijubn & Webster^ for plaintiff in error.

Messrs. Rolfson & Hendricks, for defendants in error.

Mr. Justice Garrigues delivered the opinion of the
court :

Action in the district court against the sureties on an ad-
ministrator's special bond given as required by statute upon the
sale of real estate to pay debts of the decedent.

I. This action is brought against the administrator
Burke, as principal, and defendants in error, as sureties on an
administrator's bond given upon the sale of real estate by the
administrator to pay debts.

The complaint alleges in substance that Patrick W. Mc-
Namara died owning real estate situated in both Colorado and
Nebraska; that Burke as his administrator filed a petition in
the county court of Sedgwick county, Colorado, to sell real
estate to pay debts of the estate; that the court entered an
order for the sale, among other lands, of 84.12 acres in Deuel
county, Nebraska; that the bond was conditioned as follows:
"* * * said Mark Burke, as such administrator of
said estate as aforesaid, shall well and faithfully report any
and all sales so by him made in accordance with the said above
mentioned order to the said county court of Sedgwick county,
and shall well and faithfully pay over and account for under
the order and direction of the court to the persons entitled *
thereto any and all monies received as payment for the pur-
chase of said real estate, and shall in general do and perform
all such other acts, matters and things as shall at any time be
required of him in the premises by law;" that Burke there-
after sold the land in Nebraska, and reported the sale to ^he
court; that the court had no jurisdiction to make the order,

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6o6 People v. Parker. [54 Colo.

and Burke no jurisdiction to sell the Nebraska land; that while
the sale was in conformity with the statutes of Colorado, yet
as to the Nebraska land, the court and administrator each ex-
ceeded their jurisdiction, although all interested parties at the
time, supposed the proceedings to be legal and r^^lar; that
Burke deeded plaintiff the Nebraska premises, but the heirs of
the decedent repudiated the sale, and Burke retains possession
of, and refuses to return the proceeds thereof to plaintiff ; that
the county court upon plaintiff's petition, ordered Burke as ad-
ministrator, to refund the purchase price to the plaintiff,
which he neglected, failed and refused to do, whereby the
terms of the bond were broken to the damage of plaintiff.

To this complaint the sureties, Parker and Loveland, filed
general demurrers which were sustained, and plaintiff electing
to stand upon his complaint, final judgment was entered in
favor of these defendants dismissing the complaint as to them,
and the case is here on error.

2. The county court was without jurisdiction over the
real estate in Nebraska. Its order of sale as to this land was
not voidable, but void, and gave Burke no jurisdiction in his
representative capacity to sell the land, of which everyone was
bound to take notice. There was no sale by Burke as admin-
istrator, of the Nebraska land, because the order of sale was
void, and both the administrator and the court acted without
jurisdiction.

The special bond required by statute, upon which defend-
ants were sureties, was given to protect assets of the estate,
and for the benefit of those entitled to the proceeds of the sale,
not the purchaser. To the extent that the administrator rep-
resented the estate's interest in the funds derived from the sale
of land, the sureties were liable for an accounting; but they
could not be held for his individual acts. The statute requir-
ing the bond, and the instrument itself show that it was a spe-
cial bond given to secure an accounting by the administrator
for funds coming into his hands as such, from a sale of land

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Apr., '13.] People v. Parker. 607

belonging to the decedent ,and for nothing else. The authori-
ties mentioned below, show so conclusively that Burke in sell-
ing the Nebraska land acted in his individual and not in his
representative capacity, and that the sureties on the bond are
not liable, that we deem it unnecessary to do more than cite
them. — People v. Cobb, 10 Colo. App. 478; Campbell v, Amer-
ican Bonding Co., 172 Ala. 458; Jackson v. Wilson, 117 Ala.
432; Pettifs Admr. v. Pettit's Distributees, 32 Ala. 288;
Schlicker v, Hemenway, no Cal. 579; Cabanne v, Skinker, 56
Mo. 357; State V, Osbom, 71 Mo. 86; Emmrons v. Gordon,
140 Mo. 490; Young V. People, 35 111. App. 363; Johnson v.
Hall, loi Ga. 687; Snodgrass v, Snodgrass, 60 Tenn. 157;
Miller t/. Meservey, 107 Me. 158; Given' s case, 34 N. J. Eq.
191.

The former opinion is withdrawn, the motion for a re-
hearing denied, and the judgment affirnried.

Affirmed,

Chief Justice Musser and Mr. Justice Scott concur.

Decided March 3, A. D. 1913. Rehearing denied May.
A. D. 1913.

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INDEX

ABANDONMENT, See WATER RIGHTS.

ALTERATION OF WRITINGS.

Filling Blanks — Effect — ^A promissory note, blank as to the rate of
Interest and the time from which Interest Is to be computed. Is sub-
scribed by the principal maker, and the sureties, and delivered by the
principal to the payee named therein. The payee, without authority of
the sureties, fills the blanks and advances money thereon to the prin-
cipal. The alteration Is a material one, and the Instrument Is thereby
avoided. — Ayres et al, v. Walker, 571.

APPEALS. See PRACTICE IN SUPREME COURT.

BAILMENT,

Negligence of Bailee Presumed — ^Where goods are delivered to
bailee In good condition, and are returned Injured or In defective con-
dition, or not at all, a presumption of negligence on the part of the
bailee at once arises, and the burden is upon him. If he would exon«
erate himself, to show due care. — Nutt v. Davison, 586.

Directions of Bailor^— The bailee of live stock complies with the In-
structions of the bailor, as to the place of their keep; but these In-
structions are given upon the representations of the bailee, the ballot
having no acquaintance with the locality. Loss ensues by reason of
the unsultableness of the place. The bailee Is liable. If In such case
the pasture where the animals are at first kept, by direction or consent
of the bailor, becomes unsuitable by reason of a change of condition, it
is the duty of the bailee to either take such action as a reasonably
prudent person would to preserve the animals In unimpaired condition,
or to promptly inform the bailor of such change of conditions. — Id,, 586.

BILL OF EXCEPTIONS.

Not Required of Defeated Party — 'So law makes it Incumbent upon
the defeated party, to bring the evidence into the record. — King v. Peo-
ple, 111,

BILL OF PARTICULARS, See PRACTICE.

BODY JUDGMENT,

Where Allowed — Fraud — One who by fraudulent misrepresentation
has been Induced to enter Into a contract may either have his action
for the deceit, or rescind the contract 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 stat-
ute (Rev. Stat, Sec. 3024), have execution against the body. The
rescission of the contract is no waiver of the fraud. — Springhetti v.
Hahnetoald, 383.

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6io Index.

BONA FIDE PURCHASER, See EQUITY.

BROKER.

Right to Commissions — ^A broker who is the efBclent cause of a
sale may recover his commissions though he had no personal acquaint-
ance with the purchaser and did not present him to his principal. —
Satisfaction Co. v. York, 566.

CASES OVERRULED— DIBTINGV18H:BB OR EXPLAINED.

Oray v. District Court, 42 Colo. 298 distinguished. People v. Dis-
trict Court, 237.

Ellis V. Denver Co., 7 Colo. App. 352 distinguished, Bond v. Bourk,
51.

France v. Ooryot, 30 Colo. 227, and National Fuel Co. v. Green, 50
Colo. 307 distinguished, Antlers Co. v. Burchmore, 314.

CONSTITUTIONAL LAW.

When the Constitution Is Self-Executin^g — Constitutional provi-
sions are self-executing when it appears from the context that they are
intended to operate at once, without the aid of legislation to give efitect
to the right conferred, or enforce the duty prescribed.

Construction of the Constitution — The purpose of a constitutional
provision is to be ascertained from the words thereof. The title or
caption of the article in which it is found is not controlling.

Section 7 of art. XVI, confers on all persons and corporations the
right of way across any lands, public or private, for conveying water
for domestic purposes. The character of the conduit is unimportant
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 inhabi-
tants.

The latter municipality still retains authority to prescribe neces-
sary reasonable regulations which must be observed by the former in
maintaining and operating such pipe-line. — Lyons v. Longmont, 112.

Legislative Power — Under the provision of the constitution
, (seel, art. V, Laws 1910, c. 3), that "This section shall not be con-
strued to deprive the general assembly of the right to enact any meas-
^nre," the legislature may repeal even an initiated act, approved by the
people. And may by declaring that a measure is "necessary for the
immediate preservation of th^ public peace, health and safety," pre-
vent the reference thereof to the people. Such a declaration concludes

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Index. 6ii

CONSTITUTIONAL LAW— Continued.

all departments and all parties, in so far as it abridges the right to
invoke the referendum. — In re Senate Resolution No, 4, 262.

Legislative or Executive Questions — Doctrine of the Court — It is
the settled doctrine of the court that where a question is propounded
by either the legislative or executive department, under sec. 3, art. VI
of the constitution, the court will decide for itself whether the occa-
sion is one demanding a response. — In Re Interrogatories of the Sen-
ate, 166.

Where Private Rights Are Involved, the court will not give an ex
parte opinion in response to such interrogatories. — In Re Senate Reso-
lution No, 4, 262.

Before the canvass of the vote, the person chosen to the office 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 previous
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 tem. 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. — Id., 166.

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 in-
quiry. It is not within the province of the court to advise the general
assembly as to whether existing legislation upon any subject satisfies
the requirements of the constitution. All departments of government
are of equal dignity. Neither can declare that another has not pen
formed a duty imposed by the constitution. — In Re Senate Resolution
No. 4, 262.

Pending Legislation — There were upon the statute books two acts
relating to the hours of service of men employed in mines, smelting
furnaces, and other like placeei, one adopted by the general assembly
(Laws 1911, c. 149), and which being referred to the people, had re-
ceived their approval. The other, initiated pursuant to section 1 of
article V of the constitution, (Laws 19^10, c. 3) assuming to repeal the
former. This act also received the popular sanction. A bill was pend-
ing in the general assembly upon the same subject, substantially iden-
tical with the earlier act, repealing both the former acts and declar-
ing that the enactment therein proposed was "necessary for the imme-
diate preservation of the public health and safety." Upon an inter-
rogatory from the senate as to its duty in the premised, it being fairly
inferable from the communication that it was a desire of that body

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6i2 Index.

CONSTITUTIONAL LAW— Continued.

to pass an act which should remove the embarrassments attending the
situation so presented, held, that the question was within the proTt-
sions of section 3 of article VI of the constitution. — Id,

Private Property Taken tor Public Use— A, physical taking of pri-
vate property for public use need not be shown in order to entitle the
owner to compensation; but it must appear that some right, or inter-
est pertaining to the property has been destroyed or impaired, before
an action can be maintained. The right disturbed may be public or
private, but it must be a right enjoyed in connection with the prop-
erty, not shared with the public generally, a right which gives It an
additional value and by the disturbance of which the property itself
is damaged.

A municipality may devote its streets to all those ordinary and
necessary uses to which streets are usually subjected, and to such
local uses and means of conveyance as the laVr-making power may
authorize, for the thoroughfares of the entire city. Incidental injuries
occasioned by the careful exercise of such rights granted pursuant to
this power are damnum absque injuria.

As to extraordinary or unusual uses, or unreasonable changes, or
injuries to abutting property through faulty or improper construc-
tion, the rule is otherwise.

Nor does the mere fact that the tracks of a railway are laid so
close to abutting property that vehicles may not stand between them
and the sidewalk.

The annoyances, discomfort, and injury, suffered by the abutter
from the ringing of bells, and loud and discordant noises produced
by the cars in passing over the tracks and around curves, are, ex-
cepting as to degree, suffered by the public generally so far as such
noises and vibrations are heard and felt, and give no action.

Damage to Private Property — ^Under sec. 11 of art. XV of the con-
stitution, and sec. 5420 of the Revised Statutes, those who by license
of a city, construct a railroad upon the streets thereof, stand, as to any
liability to make compensation for private property taken or damaged,
in the place of the city. — Id.

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Index. 613

CONSTITUTIONAL LAW— Continued.

Police Power — Restrictions Upon Building— One of the essential
elements of property is the right to its unrestricted use and enjoy-
ment. Restrictions upon the use of private 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 can-
not be prohibited under the police powers of a municipality.

Revenue Bills — A bill designed to accomplish 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 enforcement of which may produce
revenue. An act, the primary purpose of which is to regulate insur-
ance companies (Laws 1907, c. 193, Rev. Stat., c. 70) is not to be re-
garded as within the constitutional provision 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. — Colorado
Life Co. V. Clayton, 256.

Increase in Judicial Districts — Change of Boundaries — ^The In-
crease, diminution, or change of boundaries in the judicial districts
or in the number of judges in any district, referred to in section 14,
of art. VI of the constitution is such as is brought about by the forma-
tion of a new district or the abolition of an existing one. The section
has no relation to legislation changing a county from one district
to another, so as not to abolish any district. — In Re Senate Resolution
No. 9, 429.

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 oflice. — 7d., 429.

Delegation of Legislative Power — The constitution prohibits the
delegation of the powers of the legislature. A statute (Laws 1910, c.
5) required every railway company to furnish cars to shippers; to

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6i4 Index.

CONSTITUTIONAL LAW— Continued,

prescribe reasonable time schedules for the operation of trains; pro-
hibited undue advantages to particular localities; and required the
utmost diligence in the carriage of goods committed to them for trans-
portation. 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 Impliedly
imposed upon common carriers should be exacted of them. Held, not
a delegation of legislative power. — Colorado and Southern Co. v. State
Railroad Commission, 64.

Statute Unconstitutional in Part — If a statute contains an uncon-
stitutional 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. — Colorado
Life Co. V. Clayton, 256.

Article XX — Immediately upon the taking effect of article XX of
the constitution, the official term of the superintendent of schools next
theretofore elected for the old county 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, but only that fixed by the charter. — Denver v. Meyer,
96.

Particular Statutes — The act for the appointment of a railroad
commission (Laws 1907, 531, Rev. Stat. c. 121, art. VII,) is a constitu-
tional enactment. Consumers League v. Colorado do. Co., 53 Colo. 54
followed. — The Colorado Etc. Co. v. Railroad Commission, 64.

CONTEMPT.

Application for Change of the Trial Judge — ^In an application for
a change of the trial judge the facts upon which the alleged bias of
the judge then presiding is predicated, must be set out. This is not a
contempt, unless it is established by evidence that such statement of
facts was made with a reckless disregard of the truth, or with the
intention to refiect upon the honor, Integrity, and character of the
judge. — In Re Smith, 486.

A conviction of contempt in such case, without evidence, where
the language of the application is not contemptuous per se is error. —
Jd.

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Index. 615

CONTRACTS.

Vtiliditu — Restraint of Trade — One purchasing the business of a
competitor with the good will thereof may lawfully exact 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. The mere fact that such restraint extends to the limit of
the state, or even to a wider territory, is not of itself sufficient to con-
demn it. The public welfare is the first consideration, and if this is
not adversely affected, and the contract imposes upon the seller no
greater restraint than is necessary for the protection of the buyer, it
is sustained. — Barrows v. McMurtry Co., 432.

Voluntary Bond, upon consideration, and not prohibited by law,
binds the surety, though not in statutory form. — National Surety Co,
V. People, 365.

Inviolahiiity of— Public Policy— To a bill to restrain the defend-
ant's violation of a covenant not to engage in a certain 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 plaintiff, 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 en-
tered into in good faith, and upon fair consideration; that it Is quite
as important to the public welfare that evil minded persons be not al-
lowed to transgress with impunity their solemn undertakings, as that
the public should have protection in other respects. — Barrows v, Mc-
Murtry Co,, 432.

Construed — A memorandum was signed by both parties as fol-
lows: "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

"$1,890"^
"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. — Steinhauer v. Benson, 426.
The doctrine that a surety is a favorite of the law, and that a
claim asserted against him is strictissimi juris has no application ta
a bond, executed upon consideration, by a corporation organized to
execute such bonds for a profit. Such a corporation is in effect ian in-
surer; its contracts are, as a rule, in terms prescribed by the corpora-
tion itself, and should be construed most strongly in favor of the
obligee. — Empire Co. v. Lindenmeier, 497.

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6i6 Index.

CONTRACTS— Continued.

The contractor for the erection of a building agreed to "furnish
all materials and do all the work," etc. Defendant became surety for
such contractor. Held, that defendant was liable for the amount of
a lien established against the building for material furnished the con-
tractor, though the owner had not discharged such lien. — Id.

Alteration of. See ALTERATION OF WRITINGS.

CORONER.

No Fee Allowed for Mere Investigations — Under Rev. Stat., sec.
2677, the coroner is not allowed compensation for the Investigation of
cases of violent or sudden death, when he holds no inquest; and sec-
tion 1219 of the Revised Statutes does not have the eftect of allowing
such compensation.— IfcGcwem v. Denver, 411.

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. — Liutz v. Denver Co,,
371.

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 circum-
stances are to be considered. One who, without fault on his part. Is
presented with the sudden appearance of instant and awful 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. — Liutz v. Denver Co., 371.

CRIMINAL LAW.

Accessoru — Principal — ^An accessory may, under Rev. Stat. 1620,
be indicted and punished as a principal. The dismissal of an infor-
mation as to a principal, and his discharge, does not justify the dis-
charge of the accessory by the court of its own motion, against the
protests of the district attorney. At that stage of the proceedings
only the district attorney may order a discontinuance. — People v.
Zobel, 284. '

Murder — Death of One J>y a Blow Intended for Another — One en-
gaged in an affray with a particular person kills both that person and
an innocent bystander. If guilty of murder in the case of his ad-
versary, he is guilty of murder in that of the bystander. — Henufood v.
The People, 188.

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Index. 617

CRIMINAL LAW— Continued.

Homicide — Self-Defense — Right to Act on Appearances — ^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 be-
lieve that 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).— BaiZey v. People, 337.

Right of Householder to Defend His Dwelling — ^A householder may
repel by force one who seeks to forcibly enter his dwelling; and if the
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, even to the taking
of life. — Bailey v. People, 337.

Manslaughter — Involuntary — One who, exercising the right of self-
defense, discharges a pistol at his adversary, but acts without due re-
gard to the presence of others, and unintentionally kills a bystander,
may be declared guilty of involuntary manslaughter. — Hentoood v.
People, 188.

Bribery of Officers — The county commissioners of a county are
ministerial officers 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. — Sheely v. People, 136.

Emhezzlement of Corporate Funds — Consent of Officers — Where
the officers of a corporation fraudulently consent to the appropriation
of its funds by one of their number, on pretense of satisfying a fac-
titious and groundless claim which he asserts against the corporation
such consent is no defense to the charge of embezzlement. — LeMaster
V, The People, 415.

Gambling — Statute Construed — Under .sections 1791, 1792 of the
Revised Statutes neither the keeping of gambling devices nor playing
a game is prohibited, but only gaming for money or property, or bet-
ting upon the result of a game. — Everhart v. People, 272.

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." — Id,

The statute prohibits gambling, the keeping of a place where
gambling is commonly carried on, the keeping at such place, and ex-

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6i8 Index.

CRIMINAL LAW— Continued.

hlbiting of gambling devices, and the betting of money or other prop-
erty upon the result of any game. — Id,

Gambling devices as used in the statute include any device or
apparatus kept or used for gambling. — Id,

The territorial act of Jan. 7, 1867, (Laws 1867, 114) is not a leg-
islative construction of the statute against gambling. It simply sus-
pended for one day in each year, at a certain place, the operation of
the statutes against gambling, as to certain specified acts thereby pro-
hibited.—Zd.

Indictment or Information, for Murder^ includes all the lower
grades of homicide. — Henwood v. People, 188.

Evidence — Depositions — In order to enable certain non-resident
witnesses for the people to return to their homes their depositions 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 deposi-
tions, in behalf of the people though no affirmative proof is given that
the personal attendance of the witnesses might not be procured. — Le-
Master v. The People, 415.

Letters of Corporation Admissible Against the Managing Officer —
Information! against the managing officer of a corporation for embez-
zling the corporate funds. Letters purporting to come from the cor-
poration, 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. — Id., 415,

Copies of Letters — In the same case copies of letters written or
dictated by the accused, in reply to those received from the corpora-
tion, were held admissible against him, the originals not being pro-
duced nor accessible. — Id,, 415.

Copies of Letters of the Corporation, found in its Impression 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.— Id., 415.

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Index. 619

CRIMINAL LAW— Continued,

Annual Report of the Corporation, filed in the secretary's office
and certified therefrom, and tending to show criminal intent, held ad-
missible for the people. — Id,, 415.

Account Books of the Corporation — Information against the man-
aging 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 account books of the
company were held admissible to show what had in fact been paid him
on account of salary. — Id., 415.

The evidence held sufficient to identify the books produced, as
those of the corporation. — Id., 415.

Expert* 8 Examination of Account Books — Voluminous books of ac-
count of such character as to render it difficult for a jury to arrive at
correct conclusions therefrom, may be explained by an expert account-
ant, and the true state thereof shown by his testimony*— the books be-
ing produced in court. — Id., 415.

Relevancu — 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. — Id., 415.

Deceased was the husband of a sister of the prisoner. The homi-
cide was committed while deceased was attempting to forcibly enter
the house of the prisoner where the wife had taken refuge, and was
refusing to return to him. Evidence 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 pro-
tection, 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 reasonably entertain as to the designs of the deceased. — Bailey
V. People, 337.

Insufficient Evidence — Power of the Court. Semhle — That if upon
the trial of an information the evidence is insufficient to warrant a con-
viction the court may order the discharge of the accused. — People v,
Zohel, 284.

Confessions — Privileged-^A statement made by an accused person
to an officer, in the presence and through the aid of a clergyman, is
not tQ be excluded on suggestion of the ecclesiastical character of such
clergyman, where it does not appear that the clergyman was the spirit-
ual adviser of the accused, or even that they were of the same sect,
or denomination. — Mitsunaga v. People, 102.

Prosecution Not Bound hv — The prosecution are not bound by the
statements made by the prisoner, even though produced in chief

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620 Index.

CRIMINAL LAW— Continued.

against him, and though they are not contradicted. It is for the Jury
to say how far the statement is to be accepted. — Id,

Former Jeopardy — Conviction of murder in the second degree.
Judgment reversed for error in law. Under the constitutional provi-
sion (sec. 18, art. II J the accused stands in- the same position as if
the first trial had never been had. He may be put upon trial for the
highest degree of the crime. — Young v. People^ 293.

Change of Venue — Application — An application for a change of
venue under Mills' Stat., sec. 4613 (Rev. Stat., sec. 6963), must be veri-
fied by the defendant in person. An application not so verified is
properly denied. — Young v. People, 293.

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 ahovm is of the same effect as the earlier statute
by which the facts were expressly required to be stated. — Id.^ 293.

Appointment of Special Prosecutor — ^Upon affidavit filed charging
the district attorney, his deputy, and others with an assault upon the
affiant, the district court appointed an attorney to prosecute the of-
fense charged. The attorney so appointed filed an information 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 nolle, and later, by leave of the court, withdrew
from the prosecution. The same affiant thereupon filed a second affi-
davit 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 information was therefore a
nullity.

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 first.— Gfray v. District
Court, 42 Colo. 298, distinguished. — The People ex -rel. v. District
Court, 233.

Hill, J., dissented.

Duti/ of Prosecutor — Information for wilful murder. Deceased
was the husband of sister of nrisoner. 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

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Index. 621

CRIMINAL LAW^Continued.

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 no evidence Justifying these insinuations. The conduct of the
prosecutor was declared reprehensible. ''It is the duty of all counsel
to repudiate all appeals to unworthy prejudice, and this is eminently
80 in the case of one who prosecutes for the people. — Bailey 17. People,
337.

The prosecutor is bound to see to it that no unworthy advantage
is taken of the accused, and this is especially so where accused is a
poor person, and defends by appointed counsel. — Id., 337.

Practice — Opening Statement of Prosecutor — A narration by the
prosecutor, in his opening statement, of the details of an alleged con-
fession of the prisoner is harmless, where the confession is afterwards
held competent and admitted. But it seems the better practice merely
to refer to the confession, without going into details. — Mitsunaga v.
People, 102.

Questions for Jury — ^Where upon the trial of an information for
murder there is evidence sufficient to go to the Jury of circumstances
tending to excite in the accused a sudden heat of passion, the question
whether they amount to the statutory provocation, so as to reduce the
ofitense to the grade of manslaughter (Rev. Stat., sec. 1625,) is for the
jury. — Henwood v. People, 188.

Instructions — ^Where upon the trial of an information for a mur-
der there is evidence sufficient to go to the jury tending to show that
the prisomer delivered the fatal shot under the Influence of a 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 flnd guilty
of manslaughter, even though the prisoner, testifying in his own be-
half, asserts that he acted only in self-defense. — Henwood v. People,
188.

Must Be Based Upon the Evidence — In the trial of one accused
of wilful murder an instruction upon the law of manslaughter Is prop-
erly refused where there is no evidence upon which a conviction of
that degree of homicide can be rested. — Mitsunaga v. People, 102.

Construedn-iAn instruction declared that "deliberately" does
not mean brooded 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 deflnite article in referring to the accused was held not to
be taken as the court's expression of a belief In his guilt.— JTitit^ v.
People, 122.

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.

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622 Index.

CRIMINAL LAW^Continued,

The Jury were told by one instruction that to warrant a verdict 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. — Id.

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, premeditatedly,
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 efitect of the In-
struction first quoted was not to take away from the jury the degree
of the homicide. — Id.

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. — Id.

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-
vided they should further find, etc., that the homicide was not com-
mitted in an attempt to rob. Held, that thereby the jury were in ef-
fect instructed that though the homicide was without premeditation,
it 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
prisomer could be convicted only of murder in the second idegree. 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 waa there-
fore reversed. — Id.

' Where in the trial of an indictment the jury are told, by an In-
struction applying to all the witnesses, that in determining the weight
to be given to their testimony they should take into consideration the
motive any witness may have to testify falsely, it is not error to say
to the jury, in another part of the charge, that the accused is subject

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Index. 623

I CRIMINAL LAW— Continued.

to the same tesf as other witnesses, and that they should take into
consideration his interest in the result of the trial. — Mitsunaga v.
People, 102.

On the trial of an information for wilful myrder 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 legitimate; 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.— Young v. People, 293.

Writ of Error by the People — Three were made defendants in a
civil action for the value of ores alleged to have been stolen. Judg-
ment was recovered against all. An information then pending against
the same persons, for the larceny of the ores, was discontinued by
the district attorney, as to two of the defendants, upon their promise
to give testimony against the third, one Z. The presiding judge
thereupon announced that the evidence heard in the trial of the civil
action satisfied him that those as to whom the information had been
dismissed were the real principals, and Z only an accessory, and that
as the principals had been discharged the accessory could not be
prosecuted; and, over the objections of the district 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). — People v. Zobel,
284.

Judgment — ^The order of the district court discharging an accused
person being reversed, the cause was remanded for further proceed-
ings according to law. — Id.

DAMAGES.

Measure of Damages— Purchaser Refusing to Accept an Article
Manufactured for Him According to His P/atw— The rule is practi-

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624 Index.

DAMAGES— Continued.

cally 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. — Bond
V Bourk, 51.

And the purchaser is not allowed advantage of the non-perform-
ance by the vendor of conditions, the performance of which he hlmr
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. — Id.

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. — Id.

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.
—Id.

DEMAND.

The institution of a suit is a sufficient demand. — Empire Co. v.
Lindenmeier, 497.

DENVER.

Charter Construed — The charter of Denver (sec. 17) authorised
the city council to enact and enforce ordinances necessary to protect
life, health, and property; to declare, prevent, and summarily abate
nuisances; and preserve and enforce good government, the general
welfare, order, and security of the municipality, and the InhabitantB
thereof. Held, not to confer power to prohibit the erection of a store
building upon lots fronting upon an ordinary street, without first ob-
taining the consent of the owners of the property in the same block,
on each side of the street, and submitting to other burdensome re-
strictions.— Willison V. Cooke, 320.

Vacating Street for Viaduct— Effect— Under sec. 297 of the charter
of Denver the fee in a street vacated for the construction of a via-
duct remains in the city. It does not revert to th^ owner of the abut-
ting property. — Albi Co. v. Denver, 474.

DISTRICT COURT.

Jurisdiction — ^The district court has no jurisdiction to review the
Judgments of the county court and vacate them for error. — Pinnacle
Co. V. Popst, 451.

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Index. 625

DIVORCE AND ALIMONY,

Appearance of Defendant — Effect — Action by husband for a di-
vorce. The wife's voluntary appearance dispenses with the service of
process, and confers jurisdiction upon the court. — Caatner v. Oray,
551.

Alimony — Amount — Discretion of the Court — Where 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. — Van Oordor v. Van Oordor, 57.

DURE88.

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 conten-
tion.— Barrows v. McMurtry Co., 432.

DWELLING.

Right of Householder to Defend. See CRIMINAL LAW.

EMINENT DOMAIN.

Damages to Land Not Taken — In proceedings under the statute of
eminent domain the jury should allow all damages, present and pros-
pective, which are the natural and necessary or reasonable incident of
the taking. — Farmers' Co. v. Cooper, 401.

Negligent or Wrongful Construction — ^Anticipated damages, by rea-
son of the negligent or unlawful construction of the Improvement, by
the petitioner, are not to be allowed. But where, before the hearing
the petitioner had assumed possession, and constructed an Irrigating
canal across a gulch or ravine, by means of an embankment, with-
out any opening, and had thus prevented the land owner from receiv-
ing the waters of a spring which rose above the embankment, and
seepage waters which before that had, with the waters 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, depreciating the value. of the
land not taken, and for which, though resulting from the manner in
which the work was constructea was properly considered, in the esti-
mate of damages. — Id., 401.

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626 Index.

EMINENT DOMAIN^ConUnued,

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 injuries, as
such. They are to be considered solely as bearing upon the deprecia-
tion in value of the land not taken. — Id., 401.

Evidence — Rental Value, of the land, within a time reasonably
proximate to the time of the assessment, may be shown to aid In esti-
mating the depreciation in value of the land not taken. The assess-
ment being had in March, 1910, held, that the rate at which the land
rented prior to 1908, was properly rejected, as too remote. — Id^ 401.

Petition — Effect As An Admission — The petitioner in proceedings
in the eminent domain act impliedly admits that those named as re-
spondents are the owners of the land, and of all appurten-
ances 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. — Farmers* Co, v. Cooper, 406.

EQUITY,

Reformation of Writings — ^The general rule is that a contract en-
tered into under mistake as to some essential element may be avoided
in a proper action.

The defendant was indebted to plaintiff in $3,500, the balance of
the contract price for the erection of a school-house. Through mis^
take as to the amount which he had received he stated the balance
due him at $2,285.00, and claimed the further sum of $200.00 on ac-
count of extras, and damages by reason of delays of the district. A
compromise was finally effected by which he accepted $2,285.00 in
full settlement of his demand, each party believing at the time that
this was the true balance of the contract price. Plaintiff was entitled
to vacate the settlement, and have a new settlement made based upon
the true facts. — Beck v. School District, 646.

Mistake of One Party Only — In the same case it was said that
if defendant, being conscious of plaintiff's mistake, took advantage of
it, he would still be entitled to relief.— Jd.

PurcTiase Bona Fide — Notice — Presumptions — Where it is sought
to set aside the title of one who ip admitted to have purchased for
value, without actual notice of an alleged fraud invalidating his title,
upon evidence of matters putting him upon inquiry, it will not be pre
Bumed that inquiry on his part, diligently pursued, would have re-
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Index. 627

EQUITY— Continued,

suited 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 — Pinnacle Co. v. Popat, 451.

ESTOPPEL.

By Record — ^Action for deceit in the sale and conveyance of cer-
tain lands, and a water right for the irrigation thereof. The complaint
alleged misrepresentation as to the character and value of the water
right In a former action against the defendant plaintiff, at first,
made the same charge of fraud, but afterwards, with full knowledge
of the facts, abandoned such charge, and so amended his complaint as
to assert that the conveyance in question was effective, not only as to
the water right therein described, but also conveyed, as an appurtenance
to the land, another water right theretofore vested in defendant, and
in the trial of such former cause, plaintiff had. In open court, declared
by his counsel that he made no claim that he had been defrauded in
the transaction which culminated In such conveyance. Held, that he
was estopped to renew the charge of fraud. — Nor cross v. Cunningham^
617.

By Conduct — Plaintiff sued to restrain the collection 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 district, and ever
since, he was the owner of water rights sufficient for the Irrigation of
his lands, and which he had always 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 of 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 thB 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 court
were of the opinion that if plaintiff's lands had not been 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

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628 Index.

ESTOPPEL — Continued.

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 taken 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. —
Montezuma District v. Longenbaugh, 391.

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. Held, 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. — Id.

EVIDENCE.

Judicial N\)tice — A municipal ordinance Is not Judicially noticed
but must be established by proof. — Wolfe v. Abbott, 531.

Burden of Proof — Where goods are delivered to bailee in good con-
dition, and are returned injured or in defective condition, or not at all,
a presumption of negligence on the part of the bailee at once arises,
and the burden is upon him, if he would exonerate himself, to show
due care. — Nutt v. Davison, 586.

Competency — Action Against a Carrier for the Loss of a Trunk —
The evidence tended to show the delivery of the trunk by plaintiff to
the porter of a certain hotel. Held, that defendant was at liberty to
show that this porter had no authority to accept baggage for it.

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. — Denver Co. v. Chut, 16.

Relevancu — Action for an injury occasioned by the collapsing of a
chair provided for plaintiff in the dining-room of defendant's hotel,
where plaintiff was a guest. There were many chairs in the same
room, some like that offered to plaintiff, others of different style, struc-
ture, and fashion. The particular defects in the chair provided for
plaintiff were not shown. Testimony as to the alleged defective oon-
ditlon of other chairs In the dining-room, and other accidents occur*

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Indjsx. 629

EVJDENCE'-Oontinued,

ring there prior to plaintiff's injury, were held irrelevant to the issue.
^—Burchmore v. Antlers Co., 814.

AdmUaibilitff-^Frautlr— The defendants induced plaintiff to pur-
chase an interest in a worthless mine by falsely representing, among
other 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
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. — Springhetti v. Hahne-
wald, 383.

AdmUsiona — In Pleading — The petitioner in proceedings under
Eminent Domain Act. impliedly admits that those named as respond-
ents are the owners of the land, and of all appurtenances thereof, in-
cluding 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. — Farmers' Reservoir
Co, V. Cooper, 401.

Admissions — By Conduct — Delivery of an appeal bond by the
surety therein, with, a signature affixed purporting to be that of the
principal, and the filing thereof by the principal, is sufficient evidence
of the verity of such signature. — National Surety Co, v. People, 365.

Cross-Examination — It is not admissible to interrogate a witness
on cross-examination as to matters not germane to his testimony in
chief, and having no reference to statements attributed to him at vari-
ance with his testimony. — Mitsunaga v. People^ 102.

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 conver-
sations had with him during such imprisonment. This witness had
been in jail on several occasions. Held, not an abuse of discretion to
exclude a question propounded on cross-examination, as to the charge
upon which he had first been arrested. — LeMaster v. People, 415.

Discrediting Witness — Prior statements, of a witness about mat-
ters upon which he has not given testimony are not to be shown; nor
statements touching collateral irrelevant, or immaterial matters,
which have no tendency to affect his credibility or test his recollec-
tion.— Mitsunaga v. People, 102.

Lost Writings — Evidence of Loss — ^The law does not require direct
and positive proof of the loss or destruction of a document, but only
such evidence as will raise a reasonable inference of such loss or de-
struction. Action upon a bond to secure performance of a contract for

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630 Index.

EVIDENCE--Continued,

the construction of a house, according to the plans and speciflcationa
of an architect named. The contract provided that the flpeciflcatlonB
were and should remain the property of the architect. The architect
testified that he had made very careful search for them, entirely with-
out success. Held, that the loss of the specifications was satiafactorlly
excused, and the contract, without the specifications, was held prop-
erly received in evidence.

But the court note that the action was not founded upon any de*
parture from the plans or specifications, and that the cause could as
well be determined without them as if they had never exlsted.^^m-
pire State Co. v. Lindenmeier, 497.

Testimony of Witness Indirectly Contradicted — ^The positive testi-
mony 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 conflicting 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.*-
Victor V. Smilanich, 479.

Deceased or Absent Witness — Testimony on Former Trial — ^Upon
the second trial of an indictment for murder, it being shown that one
witness examined for the people at the first trial, had left the state,
and that two others were dead, their testimony (as found In the
prisoner's bill of exceptions taken at the first trial), was held admissi-
ble for the prosecution. — Young v. People, 312.

The Bulficlency of the preliminary proof of the death or absence
of the witness is for the trial court. The finding of that court if fairly
supported by the evidence will not be disturbed. — Id.

View by the Jury — That the jury viewed the premises in condem-
nation proceedings was taken into consideration in determining an
appeal by the petitioner. — Farmers* Go. v. Cooper, 406.

Judgment — Evidence Against Third Parties — In an action to estab-
lish a mechanic's lien, the lien claimant must establish as against a
mortgagee of the lands not only the Indebtedness of the owner, bat
that his claim is of a character entitling him to a lien. Therefore a
judgment recovered by the lien claimant against the owner is admis-
sible against the mortgagee, and conclusive that the claim has been
adjudicated against the owner. But, as against the mortgagee it is
not conclusive as to 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 claimcmt. In taking Jadff-
ment. — State Bank v. Plummer, 144.

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Index. 631

EVIDENCE— Continued.

Measure of Proof Required — To contradict the sheriff's return of
the service of mesne process, and the recitals of the record declaring
service, the evidence must be clear, unequivocal, and sufficient to ex*
elude all reasonable doubt. — Pinnacle Co, v. Popst, 451.

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 circumstances being shown to
fix the occasion in his mind, is not sufficient. — Id.

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 statement 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.— /d.

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. — Id.

EXECUTION.

Against the Body — Rescission of Contract for Fraud — One
who by fraudulent misrepresentation has been induced to enter
into a contract may either have his action for the deceit, or rescind
the contract 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. — Springhetti v. Hahnetoald, 383.

EXECUTORS AND ADMINISTRATORS.

Sale of Decedent's Lands — Petition — ^The petition of an adminis-
trator for leave to sell the lands of his intestate for the payment of
debts, which conforms substantially to the requirements of the statute
is sufficient. — Pinnacle Co. v. Popst, 451.

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 personalty ^as not
sufficient to discharge the decedent's debts, and this finding is not to
be overthrown by evidence that the court was mistaken. — Id., 451.

The personal estate of the decedent was shown by the inventory

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632 Index.

EXECUTORS AND ADMINISTRATORS— Continued,

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. — Id., 451.

Relief in Equitu — Evidence — 'In the same case, there being no evi-
dence that the action of the county court was found 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 de-
cedent's debts. — Id., 451.

Widow's Allotoance 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. — Id., 451.

Lands in Another State — ^The county court has no jurisdiction to
order a sale by an administrator of lands of the decedent, situated in
another state. Such order is void. — People v. Parker, 604.

Sale — Not Conforming to Decree — ^The order directing a private
sale, sale at public auction was approved. — Pinnacle Co. v. Popat, 451.

Special Bond of Administrator Selling Lands — IMbUitv of Sure-
ties— The bond required by statute (Rev. Stat, and Colo. Stat. Ann.,
sec. 7178) of an administrator directed to sell lands for the payment
of the debts of the intestate, is for the protection of those interested in
the estate, not the purchaser.

Void order for the sale of lands situated in another state, and sale
accordingly; the sureties in the bond are not responsible to the pur-
chaser.— People V. Parker, 604.

Allowances — Executors lawfully appointed and whose title, author-
ity, and official conduct, is assailed by the beneficiaries under the will
are justified in incurring any necessary legitimate expense in sustain-
ing 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 ot the estate for the amounts so necessarily and rea-
sonably expended. — Tuckerman v. Currier, 25.

Removal of Executor — Effect Upon His Character as Testamentary
Trustee — Wihere one is named as executor, and by the same will as
trustee, the revocation of his appointment as executor will not neces-
sarily 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 executor, the
duties and powers conferred upon him, in that character terminate. —
Tuckerman v. Currier, 25.

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Index. 633

HOUSEHOLDER.

Right to Defend Hie Dwelling. See CRIMINAL LAW.

HUSBAND AND WIFE.

Right of Husband to Control Wife's 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. — Bailey v. People, 337.

INJUNCTIONS.

Against Public Officer — If a public officer is transcending' his au-
thority, and the resulting injury is not susceptible of reparation by
proceedings at law, he may be restrained by injunction. — Colorado Tasp
Commission v. Pitcher, 203.

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. — Id.

A public officer may be enjoined from doing what is expressly pro-
hibited, even though no resulting injury is shown.— ^/d.

To Restrain Public Work — The city of Denver has the unquestion-
able right to construct or cause to be constructed in the public streets,
viaducts and approaches thereto. That a structure, erected under
proper legislative and municipal authority may so interfere with the
access to private property as to entitle the owner to compensation, does
not afford him an injunction to restrain the erection of it until com-
pensation is made. — Albi Co. v. Denver, 474.

INKEEPER.

tAability to Quest. See NEGLIGENCE.

INSTRUCTIONS.

Objections and Exceptions To — ^The rule prescribed in Hasse v.
Herring, 86 Colo. 383, has no application to an instruction which con-
tains 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 ani action for an injury at-
tributed to the negligence of defendant an inn-keeper, in providing for
plaintiff a defective chair, an instruction which imposed upon plain-
tiff 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

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*^oogle

634 Index.

INSTRUCTIONS— Continued.

"the natural and probable result of such negligent act of defendant'*
was held to present only a single proposition, to which a general ob-
jection was sufficient.— France v. Goryot, 80 Colo. 227, and National
Fuel Co. V. Oreen, 50 Colo. 307, distinguished. — Burchmore v. Antlert
€o^ 814.

Assuming a Fact in Issue, e. g., in an, action for an injury at-
tributed to a defective chair negligently provided for plaintiff, a guest
in defendant's hotel, an instruction was permitted the jury to find for
the plaintiff, if the chair was defective, and defendant "had it used
reasonable care" would have known of the defect, even though it had
no actual notice thereof, is properly refused, because assuming a want
of reasonable care on the part of the defendant. — Burchmore v. An-
tlers Co., 314.

Conflicting — Not Warranted by Evidence — Shifting Burden of
Proof — Instructions which are directly in conflict, upon a material
question, constitute fatal error. — Nutt v. Davison, 586.

So instructions which are directed to a supposed state of facts not
established by the evidence.^-/d.

Or an instruction which devolves upon one party the burden of
proof which the law imposes on the other. — Id.

Repetition — ^Unnecessary repetition in the charge to the jury,
though reprehensible, Is not necessarily, error; e. g., the frequent repe-
tition of the phrase "verdict for the defendant" is not prejudicial,
where the facts warranting such a verdict are clearly defined. — Liutz
V. Denver Co., 371.

To Be Construed As a Whole — ^Where the law of the case Is clearly
and explicitly set forth in one point of the charge the effect of equivo-
cal language elsewhere therein is eliminated. — LeMaster v. People, 415.

In Criminal Cases. See CRIMINAL LAW.
INTEREST.

Liability of Surety For — The later authorities, and the preponder-
ance of authority, is to the effect that in an action against the surety
for performance of an executory contract, interest may be allowed,
even though the effect is to' exceed the penalty of the bond. The al-
lowance is made, however, not as part of the debt, but as damages for
its detention. — Empire Co. v. Lindenmeier, 497.

But where the surety has no knowledge of the default a demand
must be made, and interest is allowed only from the time of such de-
mand.— Id.

JUDGMENT.

Void or Voidable — Collateral Attack — ^A decree rendered by a court
which has not acquired jurisdiction, and where this absence of juris-

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Index. 635

JUDGMENT— Continued.

diction appears by the record, is void, and may be assailed directly or
collaterally.

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. — Pinnacle Co. v, Popst, 461.

A bill to impeach a decree directing the sale of an intestate's lands,
for the payment of his debts, is, as to third persons who have subse-
quently acquired such real estate, a collateral attack. — Id.

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 gen-
eral 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 re-
ceived under the charter provision. Held, that the former judgment
was not res judicata of the questions presented in her new action, as
an entirely different state of facts was involved, presenting different
parties, different subject matter and new issues. — Denver v. Meyer, 96.

Eftect as Against Those Not Parttes— In a proceeding to establish
a mechanic's lien, against both the owner of the lands and a mort-
gagee, the lien claimant must establish as against the mortgagee, not
only the indebtedness of the owner, but that his claim is of a char-
acter 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 to 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
Hen claimant, in taking judgment. — State Bank v. Plummer, 144.

Vacating — Summons not PersonMy Served — iWlhether upon appli-
cation under section 81 of the code a judgment rendered vdthout per-
sonal service shall be vacated, is in the discretion 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.

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636 Index.

JUDGMENT— Continued,

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
summona 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. — Fullen v. Wunderlich, 349.

Record Construed — ^The record declaring that plaintiff elected to
"stand upon his replication" held to show that a demurrer thereto was
sustained. — Castner v. Oray, 551.

JUDICIAL SALE,

Purchaser's Intent^ immaterial. — Pinnacle Co. v. Popst, 451.

JURY.

Summoning — 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
Isiw. —Mitsunaga v. The People, 102.

LIBEL,

Charge of Bribery — To falsely publish of another anything tend-
ing to bring him into odium is libelous per se, e. g., that the person
mentioned haa been guilty of corrupting a jury, in a cause pending
in another state, and this, whether the act was or was not a criminal
offense, by the law of such other state. — Burns v. Republican Co., 100.

LIMITATIONS.

Color of Title — Good Faith — ^A deed void upon its face Is sufficient
color of title to set in motion the seven-year limitation act (Rev.
Stat., sec. 4087). But it is not conclusive of the good faith of the
party claiming thereunder. Affirmative evidence may be produced that
the party claiming under such a conveyance, and asserting 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 con-
veyances not recorded, to prevent the paramount owner from effect-
ually assailing It. One so conducting himself will be denied the benefit
of the statute.— fifiZ^ord v. Stratton, 248.

Payment of Ta^es — ^A treasurer's deed is not color of title until
recorded. One who, claiming under a void tax deed, would avail of
the seve|p-year limitation prescribed by Rev. Stat., sec. 4090, must
show the lapse of the statutory period, not only between the first pay-
ment of taxes and the institution of the action of the paramount owner,
but between the record of his deed and the institution of this action. —
Marks v. Morris, 186.

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Index. 637

LIMIT A TIONB— Continued.

Cloud Upon Title— Qection 4073 of the Revised Statutes, applies
to personal actions only and Is no bar to a bill to remove a specific
cloud upon the title to land. — Empire Co. v. Zehr, 185.

MECHANICS' LIENB.

For What Demands a Lien la Alloujed— 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 ex-
penses as are Incurred In the work for which he was employed are al-
lowed to him. — State Bank v. Plummer, 144.

Material Furnished But Not Actually Used — Under sec. 4025 of the
Revised Statutes, one who, acting in good faith, supplies material for
the erection of a building at the Instance of the principal contractor
therefor, is entitled to a Hen for the value of such material, even
though some of such material went into another structure, and some
was sold by the contractor. — Salzer Co. v. Lindenmeier, 491.

MateriaJ Furnished Without Any Specific Agreement, as to the
use to be made thereof; or to what building it is to be applied, gives
no lien. — Id.

Applies to a Leasehold in Land — One furnishing material for the
improvement of real property by contract with one having a mere
leasehold, Is, under the statute (Rev. Stat., sec. 4027) entitled to a
lien upon such leasehold estate. — Horn v. Clark Co., 522.

An agreement between the landlord and tenant that the latter may
remove the structures which he erects, or the Improvements which he
places upon the demised premises, has no effect to change the charac-
ter of such structures, as against third persons.

The tenant had purchased from the Hen claimant a boiler, engine,
and other machinery and applianoes, and erected the same in a build-
ing situated upon the leasehold. His intention was that the whole
should constitute, and be operated as, a mill for the treatment and
reduction of ore. The machinery and appliances were necessary to
accomplish this purpose. Held, that they thereby became part of the
leasehold and were not, as against the Hen claimant, liable to be sold
as personalty on execution against the tenant. — Id.

Time of Filing Statement of Lien — Single or Several Contracts —
.The defendants, a railway company, and a tunnel company projected a
railway, one terminus of which was In the mountains, 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 superintend-
ence at a monthly salary, and other portions of it for the construction
of particular parts of the tunnel, and laterals thereto, under separate

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638 Index.

MECHANICS' LIEN 8— Continued,

contracts, and materials furnished in and for such construction. An-
other claimant had furnished material during different stages of the
work, some to the defendant companies, directly, and some to the en-
gineer while performing his contracts. The third claimant had sold
and delivered ore cars to the railway company while work was pro-
ceeding in the tunnel. The last delivery made by this company was
in 1903. There was no cessation of work upon the railroad and tun-
nel, for the period of thirty days, from a date prior to December 1st,
1902, to July 1st, 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 per-
formed and all the material furnished in furtherance of this general
design, what was done under these several contracts was not to be re-
garded as a separate structure or thing, nor were the several con-
tracts to be regarded as distinct, for the purposes of the Hen; 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. — State Bank v. Plummer, 144.

Date of Completion of Building, settled by the opinion in Curtis v.
McCarty, 63 Ck)lo. 284. — Curtis v. Nunns, 554.

Acceptance of Buildinff by Owner from Contractor, does not set in
course the statute prescribing the time in which a sub-contractor must
proceed to enforce his lien. — Id., 554.

Relation of Claim to the Beginning of the Work — ^Under Rev. Stat.,
sec. 4030, the lien relates to the beginning of the work and is pre-
ferred to a mortgage subsequently recorded. — State Bank v. Plummer,
144.

Failure to Record Contract — Effect — ^Where the sum to be paid by
the owner for the erection of the building exceeds $500.00, and he fails
to cause such contract to be recorded as required by sec. 4025, Rev.
Stat., every sub-contractor, material man, etc., is placed In the posi-
tion of principal contractor, so far as relates to his claim of Hen, and
no notice of his lien Is required to be served on the owner, under Rev.
Stat., sec. 4033. — Curtis v, Nunns, 554.

Parties — In an action by a material man or sub-contractor the
original contractor must be made party; and if a mortgagee Is Joined
the owner must also be made party. — State Bank v, Plummer, 144.

Where the lien is asserted only against the leasehold interest of
the tenant, his landlord is not, under sec. 4U35, Rev. Stat., a necessary
party. — Horn v. Clark Co,, 522.

Decree— 7w Part for Things Not Lienahle--A decree awarding a
lien, in part for things not the subject of a Hen under the statute, fails
only to the extent of those matters as to which the allowance is Im-
proper.— Horn V. Clark Co,, 522.

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Index. 639

MECHANICSr LIENS— ConHni^ed.

Judgment Against Owner— Evidence Against Mortgagee — The lien
claimant must establlBh as against the mortgagee, not only the indebt-
edness of the owner, but that his claim is of a character entitling him to
a lien, llierefore a Judgment recovered t>y 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 to 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 tak^
ing Judgment. — State Bank v. Plummer, 144.

MONOPOLIES,

Discountenanced — The law regaras with nigh disfavor any condi-
tion that tends to stifle competition in tne necessities of life, or in
those things which contribute to the general comfort and welfare, and
where such condition is asserted the court win make most careful and
diligent inquiry to ascertain the very trutn or the matter. — Barrotos v.
McMurtry Co., 432.

Evidence — That a dealer, after purchasing the stock and good will
of the competitor, advances the price ot the commodity which is the
subject of his business, is not sumcient ot itself to establish an im-
proper motive as animating his purpose, rne question is best deter-
mined by the prices demanded by other dealers in the same commodity
within the same territory, and the ettect ot the new quotations upon
the general market.

Where atter the purchase there still remained in the same field
many competitors, and the defendant nimseit, 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. — Id., 432.

MUNICIPAL CORPORATIONS.

Ordinances — Publication — The statute (Kev. Stat., sec. 6673) pro-
vides that all by-laws of a town imposing a nne, etc., shall be pub-
lished in a manner specified, and **snaii not De in force until the ex-
piration of five days after they nave oeen so published." An ordi-
nance declared the keeping for sale of any intoxicating liquors a
nuisance, and that the same "may De abated as any other nuisance."
The provision quoted was never puDiisned. HeJdf that such provision
never became of force, and a Judgment convicting the accused party
of maintaining a nuisance, and directing tne abatement of such nuis-
ance, is no justification for acts done pursuant thereto. — Wtolfe v. AJh
hot, 531.

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640 Index.

MUNICIPAL CORPORATION S'-Continued.

ProsecuHon— Conviction of Offense Not Cftar(yed— Charge of "aeU-
ing and keeping liquor for sale." Conviction of "maintaining a nuis^
ance/' a fine imposed, and abatement of the nuisance ordered. The
conviction is void. — Wolfe v, Abbott, 531.

Potoer to Abate Nuisances — ^Paragraph 45 of sec. 6525 of the Re-
vised Statutes Is not self-executing. The power granted must be ex-
ercised through an ordinance. The power granted by paragraph 63
of the same section, to prohibit "within one mile beyond the outer lim-
its of the town any unwholesome or offensive business," has no appli-
cation to places for the keeping or sale of Intoxicating liquors, but
only to such things as are offensive, or unwholesome within the ordi-
nary use of the term, e. g., slaughter houses, pig-sties, feeding places,
and the like; and even conceding the application of the provision to
places kept for the sale of intoxicating liquors, it confers no power to
declare such establishments beyond the limits of the town a nuisance. —
Wolfe v. Abbott, 531.

Manner of Exercising the Power — ^The procedure for enforcing an
ordinance prohibiting the sale of intoxicating liquors should be regu-
lated by ordinance. If such establishments are declared a nuisance
one charged with the offense should be prosecuted and tried on the
specific accusation of maintaining a nuisance. The manner of effect-
ing the abatement should be prescribed, and the order of abatement
should conform to the ordinance, and the manner of proceeding
should not be left to the discretion of the officer. — Id^ 581.

Action for Personal Injurf^ — N[otice — ^Where in an action against
a municipal corporation for a personal injury attributed to its negli-
gence, it appears that notice in writing, in all respects sufficient, was
served upon the mayor in due time, that he accepted it and waived
the service of further notice, and that the council within the statutory
period considered such notice and acted thereon in their official ear
pacity, the purpose of the statute (Rev. Stat., sec. 6661) is aocom-
plished, and the plaintiff's failure to serve notice upon the clerk does
not defeat the action.

Notice to the Clerk^ affects the city, though th^ clerk fall to com-
municate it to the council.^Jd.

NEGLIGENCE.

Reasonable Care — ^An inn-keeper invites his guest to occjipy a
chair, which by reason of its defective condition collapses^ precipitat-
ing the guest to the floor. The inn-keeper is liable if by reasonaUe
care he would have known of the defect, even though he had no actual
knowledge thereof. — Burchmore v. Antlers Co., 314.

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Index. 641

negotiable instruments.

Alteration of — Filling Blanks — Effect — A promissory note, blank
as to the rate of interest and the time from which interest is to be
computed, is subscribed by the principal maker, and the sureties, and
delivered by the principal to the payee named therein. The payee,
without authority of the aureties, fills the blanks and advances money
thereon to the principal. The alteration is a material one, and the in-
strument is thereby avoided. — Ayres v. Walker, 371.

NEW TRIAL,

Verdict Not Conforming to the Evidence — A verdict must be sup-
ported 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. — Oalligan v. LtUher, 118.

Improper Remarks to Jurors, which manifestly had no effect upon
their deliberations is not ground for a new trial. — Liutz v. Denver,
Co,, 371.

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 ethical
grounds the act of the attorney was indiscreet. — Id.

Affidavits of Jurors, as to the ground upon which the verdict was
reached, will not, as a general rule, be received to impeach it. — Id.,
371.

OFFICER. See PUBLIC OFFICER.

PARTIES,

Necessary — Defendants — In an action by a material man or sub-
contractor to enforce a mechanic's lien the original contractor must be
made party; and if a mortgagee is Joined the owner must also be made
party. — State Bank v. Plummer, 144.

Joint Tort Charged Against Several — Recovery Against One — On
complaint charging a Joint tort against several, and evidence convict-
ing one or part of the defendants, plaintiff 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. — Denver v. Oast, 16.

Misjoinder — How Availed of — A demurrer for a misjoinder 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). — Springhetti v,
Hahnewald, 383.

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642 Index.

Construction — The reply may be referred to to determine plain-
tiff's then understanding of the averments of the answer.

Plaintiff sought to charge a carrier with the loss of a trunk. The
answer admitted that at the day and place mentioned in the com-
plaint 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 sufficient information, etc." Held^ the bur-
den was upon the plaintiff to show that he was the owner of the
trunk, and that an instruction to the effect that defendant admitted
by its answer that he had received plaintiff's trunk, was error. — Den-
ver Co, V. CHut, 16.

Construed — Complaint for an injury attributed to the negligence
of defendant, an inn-keeper, in providing for plaintiff, a guest at his
hotel, a defective chair, alleged that the defect was "known to defend-
ant," before and at the time, etc. Held, to admit evidence that the de-
fendant would have known of the defect, if reasonably diligent. —
Burchmore v. Antlers Co., 314.

A complaint upon a bond given in certain appeals from a magis-
trate'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 construed to mean "appeals." — National
Surety Co. v. People, 365.

The bond provided that the principal should pay any judgments
that might be rendered upon dismissal or trial of the appeals, "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 sufficient. The
surrender of the principal would have satisfied the judgments, and
they would not have remained "due and unpaid," as the complaint
alleged. — Id.

Prayer — Relief is to be confined to what, upon the facts stated,
the party is entitled to. — Tuckerman v. Currier, 25.

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. — C^alligan v.
Luther, 118.

Action against a carrier for the loss of baggage, the complaint
alleging a contract to transport to a particular city, an amendment
alleging an agreement to carry to a different city does not state a new
cause of action. — Denver Co. v. Gast, 20.

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Index. 643

PLEADING— Continued,

Answer — General Denial — The general denial casts upon the plain-
tiff the burden of establishing all the material allegations of the com-
plaint, regardless of the other defenses in the answer. — Denver Co. v.
Gcst, 16.

Inconsistent Defenses, may be presented in the same answer. — Id.

What Must Be Specially Pleaded — In a proceeding to enforce a
mechanic's lien the owner of the premises and a mortgagee thereof
were made defendants. Judgments recovered by the lien claimants
against the owner, were, though not pleaded, admitted in evidence as
against. the mortgagee. Held, that if excessive in amount they were
to this extent a fraud upon the mortgagee, and the mortgagee having
bad no opportunity to plead this defense it was not to be excluded for
the failure to plead it. — State Bank v. Plummer, 144.

"Waiver — ^Uncertainty or ambiguity In a pleading if not assailed
by demurrer or motion is waived. — National Surety Co, v. The People,
365. — Powers v. Boulder, 558.

A demurrer for a misjoinder of plaintiffs is overruled. Defend-
ants answer and proceed to trial. The misjoinder is waived. — Sprin-
ghetti V. Hahnewald, 383.

Misjoinder of plaintiff's, 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). — Id., 383.

Judgment on the Pleadings — Where the reply admits the substan-
tial averments of a sufficient answer defendant is entitled to judg-
ment on the pleadings; and a judgment accordingly, is not erron-
eous even though a demurrer pending to the replication remains un-
disposed of. — Castner v. Gray, 551.

PRACTICE.

Appearance — Effect — Objection to the return of process must be
made in limine, by plea in abatement, or motion. An answer to the
merits waives it. — Salzer Co. v. Lindenmeier, 491.

Bill of Particulars — It seems to be the general rule that in pro-
ceedings 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 infor-
mation, concerning such, expenses. So where the demand is for "ma-
terial furnished."— iSftate Bank v. Plummer, 144.

Judgment^Joint Tort Charged Against Several— Recovery Against
Qne — On complaint charging a joint tort against several, and evidence
convicting one or part of the defendants, plaintiff 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.— Denver v. Gast, 16.

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644 Index.

practice in supreme court.

Presumptions — UnleBs the contrary appears it will be presumed
that the inferior court was acting within its Jurisdiction. — Larimer
County V. Annis, 331.

What May be Assigned for Error— ^A county having refused to pay
the allowances made by the district court to the referee In a proceed-
ing 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. — Larimer County v. Annis, 331.

Questions not Presented Below, will not be considered in the court
of review. And the court will refer to the opinion of tne court below,
when found in the record, to determine what questions were there agi-
tated.—Wi»ison V. Cooke, 320.

Questions not presented below will not be considered in this
court, even though upon application to vacate a Judgment, and the ob-
jection goes to the Jurisdiction of the court. — Fullen v. Wunderlich,
349.

Harmless Error — To admit evidence of a confession or statement
of the accused Is not injurious, where testifying on his own behalf, he
makes substantially the same statement. — Mitsuna^a v. People, 102.

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 blood-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. — Id., 102.

Plaintiffs, by false representations of defendants, had been in-
duced 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 al-
lowed 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 be-
ing contended that plaintiffs should have been required to restore to
the defendant 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. — Springhetti v. Bahne-
wald^ 383.

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Index. . 645

PRACTICE IN SUPREME COURT— Continued.

The admlBsion of eyldenoe cures any error in its previous exclu-
sion.

The admission of evidence having no bearing upon the matter in
issue is harmless.— Leifa^ter v. People, 415,

Verdict on Conflicting Evidence, will not be disturbed. — Denver
Co. 17. McDonough, 515.

Mandate — Must he Obeyed — ^An appeal from a Judgment pursuing
a mandate of this court awarded upon the Judgment in a former appeal
will be dismissed. — Elder v. Wood, 236.

New Pleadings in Supreme Court — Bill for an injunction, dis-
missed in the district court. A petition filed in the supreme court pray-
ing a temporary injunction or restraining order was disregarded. —
Denver v. Pitcher, 208.

Original Investigation of Confession of Error Filed — ^Upon confes-
sion of errors filed, the court of its own motion appointed a commis-
sioner to investigate the circumstances attending the filing of this
plea, and report thereon. — Coryell v, Fawcett, 353.

Writ of Error Sued Out Collusively, and under a precedent agree-
ment that the defendant in error shall confess errors, the controversy
of the parties being adjusted, and the real purpose being to vacate an
allowance to the attorneys for their fees, will be dismissed. Such pro-
ceeding is a fraud upon the attorneys and an imposition upon the
court. — Coryell v. Fawcett, 353.

PRECEDENTS.

Effect — i£bcpressions of the court upon a question incidentally pre-
sented are without authority. — Young v. People, 293.

PRINCIPAL AND AGENT.

When the Relation Exists — Defendants had employed one P. to
find a purchaser for certain lands. After nearly two years had elapsed,
no Sale having been effected, a corporation was organized, and P. hav-
ing become its manager, and having applied to defendants on behalf
of the corporation to know if the price previously specified still con-
trolled, defendants listed with him the same, and other lands. De-
fendants had no knowledge upon this occasion, of the organization of
the corporation, nor that P. was acting on its behalf. Held, that de-
fendant's ignorance In nO manner affected the right of the corporation
to recover commissions upon a sale subsequently made, and of which
it was the effloient cause. — Satisfaction Co. v. York, 5%^. '

Agents Authority — PresumptioAs — There is a presumption that a
known agent acts within his authority. Defendant, a surety company,
by its local agent' delivered to a magistrate an appeal bond. The mag-
istrate rejected it as not in form, requiring certain changes. The agent

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646 • Index.

PRINCIPAL AND AGENT— Continued,

returned the bond, with modiflcationB which changed the character of
the obligation, writing to the magistrate that he "had corrected the
bond/' and that It would be delivered by the appellant's attorney. It
was so delivered and accepted by the magistrate. The local agent was
employed for the purpose of obtaining such business. It was his duty
to furnish similar bonds whenever 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. — National Surety Co. v. The People, 365.

PRINCIPAL AND SURETY.

Surety Company — Character Of— Contracts How Construed — The
doctrine that a surety is a favorite of the law, and that a claim asserted
against him is strictissimi juris has no application to a bond, executed
upon consideration, by a corporation organized to execute such bonds
for a profit. Such a corporation is in effect an insurer; its contracts
are, as a rule, in terms prescribed by the corporation itself, and should
be construed most strongly in favor of the obligee. — Empire Co. v.
Lindenmeier, 497.

Contract for Erection of Building — Surety Liable for Liens — The
contractor for the erection of a building agreed to "furniah all mate-
rials and do all the work," etc. Defendant became surety for such
contractor. Held, that defendant was liable for the amount of a lien
established against the building for material furnished the contractor,
though the owner had not discharged such lien. — Id.

Interest — Exceeding Liability of Surety — ^The later authorities,
and the preponderance of authority, is to the effect that in an action
against the surety for performance of an executory contract, interest
may be allowed, even though the effect is to exceed the penalty of the
bond. The allowance is made, however, not as part of the debt, bat
as damages for its detention.

But where the surety has no knowledge of the default a demand
must be made, and interest is allowed only from the time of such
demand. — Empire Co. v. Lindenmeier^ 497.

Institution of Suit, is a sufficient demand. Interest from that date,
only, is allowed where the creditor is entitled to interest only upon
demand, and no demand is shown. — Id.

PROCESS.

Return — Evidence to Contradict — ^To contradict the sherifTs return
of the service of mesne process, and the recitals of the record declar-

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Index, 647

PROCESS — Continued.

ing service, the evidence must be clear, unequivocal, and sufficient 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. — Pinnacle Co. v. Popsi,
451.

The officer's return is not to be impeached by a record kept In hiB
office; nor by his statements orally made at a later date. — Id., 451.

PROHIBITION.

Not a Writ of Right — Whether it shall be granted rests in the
sound discretion of the court.

Diligence Required— One who acquiesces in a Judgment or order
will not afterwards be allowed a writ of prohibition to restrain action
thereunder.

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PROHIBITION— Continued,

setting forth their first petition and the action taken thereon, reiterat-
ing its statements, and alleging that, in denying such original applica-
tion the court was influenced by representations made at the time of
the receiver's appointment, that a person named would shortly raise
the means necessary to pay the pressing liabilities of the company,
and enable it to operate its properties, and become a going concern;
that none of these assurances had been carried out; that the person
making them was without means of his own, and unable to raise
money from other sources, and that the appointment of the receivers
was procured merely to harass the creditors and stockholders of the
company, and constrain them to part with their demands, and their
shares at a great sacriflce. Delay in the presentation of the second
petition was excused by the suggestion that the petitioners had been
advised that it would be improper and unavailing for them to renew
their application until a reasonable time had elapsed for the fulfill-
ment of the promises and assurances made to the court as above
stated. This petition was denied on January 6th, A. D. 1912. On the
22nd of January, 1913, application was made in this court, for a writ
of prohibition, restraining the district court from further proceeding
under the order appointing the receivers, and for other relief. Held,
that the delay intervening between the denial of the first petition and
the presentation of the second was an aquiescence in the appoint-
ment of the receivers, and that such acquiescence, and the long delay
succeeding, before the application of this court, were suflicient to war-
rant the court in refusing to enter into the merits of the controversy,
by th€i writ of prohibition.— FeopJe v. District Court of Sixth District,
576.

Not a Writ of Error — ^Whether the superior court exercised its
authority correctly or erroneously is not to be inquired into. — People
V, District Court, 240.

PROMISSORY NOTES. See NBGOTIABLB INSTRUMENTS.

PUBLIC OFFICER.

Violation of Public Duty — Li(ibilitv to Private Action — The statute
directing the county clerk to publish, prior to every election, the list
of all nominations (Rev. Stat., sec. 2159) prescribes a public duty, for
the benefit of the public only. It imposes upon the clerk no duty
towards the publisher of any newspaper, and his refusal to make such
publication in the only daily newspaper of the county atCords no action
to such publisher. — The People v. Hoag^ 542.

Fees — ^Where fees are the only compensation allowed by law to a
public oflicer for the discbarge of his ofllcial duties, he is not entitled
to compensation for the discharge of duties for which no fee is pre-

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Index. 649

PUBLIC OFFICER— Contimed.

scribed. The performance of such duties without compensation is a
burden which the officer assumes when he accepts the place. — ifo-
Oovem v. Denver, 411.

RAILROAD COMMISSION.

Powers — ^An order of the railroad commission 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, approved, and the decree of the district
court enforcing the order affirmed. — Colorado cCc. Co. v. Railroad Com-
misaion, 64.

RAILROAD COMPANIES,

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.

Liability for Fire Negligently Bet Out— Limitation — Section 5512
of the Revised Statutes does not create or include a liability 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. — Smith v. Denver d Rio Orande
Co., 288.

SALE.

Option to Return — Effect — ^Where goods are purchased with an
option to return them, the title passes, subject to the right to rescind
and return. — SteinTiauer v. Benson, 426.

Option to Purchase — In the case of a mere option to purchase the
title remains in the one granting such option: the delivery of the

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650 Index.

SALE— Continued.

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. — Id., 426.

Duty of Seller — One who has granted to another an option to pur-
chase an article, no time being appointed for its return, or for the ex-
ercise 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 optionee to return the
article, nor will the option be converted into a purchase by such fail-
ure.— Id., 426.

Whether the optionee was under duty to take affirmative action,
and return the goods, quaere. — Id., 426.

Purchaser Refusing to Accept an Article Manufactured for Him
According to His Plans — Damages — ^The rule is practically universal
in this country that where a purchaser refuses, without legal Justifi-
cation, to accept an article manufactured to his order, after special
design, the vendor may, at his election, hold the article for the pur-
chaser and recover the contract price with interest. — Bond v, Bourk,
51.

And the purchaser is not allowed advantage of the non-perform-
ance 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. — Id.

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. — Id.

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.
—Id.

STATUTES.

Construction — ^A statute which is essentially remedial, e. (7., 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.— Co /orado dc. Co. v. Railroad Commission, 64.

Where identical words occur in different parts of a statute the
same meaning is to be ascribed to them in each case, unless it clearly
appears that a different meaning was intended, e. g., "game," "gam-
ing," and other like words in the different sections of the criminal
code against gambling are to be received in the same sense. Corwan v.
Neatheny, 9 Colo. 212, approved and followed. — Everhart v. People,
272.

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Index. 651

8TA TVTEB — Continued.

In the construction of a statute all 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 of
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.— Montezuma District v, Longenhaugh, 391.

A statute defining and denouncing a crime is to be strictly con-
strued as against the state, but is not to be confined within narrower
limits than the legislative intent. The legislative purpose is not to be
destroyed by construction. — Sheely v. People, 136.

Maxims — of Construction — e. g., "Ejusden generis," "Noscitur
m sociis,*' **Expresio 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
assembly, or other officer, ministerial or judicial" in Rev. Stat., sec.
1720, it is not apparent that the legislature had in mind any particu-
lar class of officers, and that therefore these maxims afford no aid in
the interpretation of the statute. — 8heely v. People, 136.

Construed — ^A statute (Mills' Stat., sec. 4720) provided that when
the letters of one of several administrators are revoked, etc., 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 revoked, or all * * *
shall depart this life before final settlement, etc., administration with
the will annexed, or as the case may require, shall be granted to the
person next entitled thereto." Heldy that where the will so provided,
executors might be appointed by the county 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 original executors. — Tuckerman v.
Currier, 25.

The defendant railway company had abandoned the operation of
that part of its railway between Breckenridge and Como, twenty-one
miles in length, and operated only a combination train between Den-
ver and Como. The effect was that all the freight between Denver, the
commercial and political center of the state, and Breckenridge, a min-

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6s2 Index.

STATUTES— Continued.

Ing village of 800 soula, was required to pass by another railroad, a
distance of 317 miles, breaking bulk on two occaalons, and consuming
aeveral days; whereas if trains were regularly operated upon defend-
ant's railway, the distance was only 110 miles, and the freight was re-
ceived upon the day of its shipment. Passengers, too, were required
to go by the same circuitous route, and one desiring to travel from
Breckenridge to Gomo, only 21 miles by defendant's railroad, was re-
quired to travel nearly 400 miles. Moreover the freight charge, and
the passenger rate, were greatly increased. Held, that under the act
creating the railroad commission (Laws 1910, c. 5) the commission was
authorized to require the defendant to resume the operation of its line
between Como and Breckenridge, and to operate a passenger train,
daily except Sundays, between Denver and Leadville by the way of
Como and Breckenridge, 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 speci-
fied. Held, that the effect of the statute was not to create an ofllce,
and at the same time designate thie persons who should fill it, but
to retain tlie commissioners then in office by election of the people,
excepting them from the operation of the power of appointment con-
ferred 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 citizens 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 trans-
ported, and the compensation to be paid therefor." Held, that the
rights thus granted were not unlimited, 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 com-
panies is not to be inferred in the absence of positive words to that

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Index. 653

8 TA TUTEB— Continued.

effect, and no such words are found either in the constitution or
statute.

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 injustice 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 additional
burdens to the public. — Colorado Etc. Co, v. Railroad Commission, 64.

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 certain fees, an annual tax upon
the gross amount of the annual premiums collected by the insurance
companies, and exempted such corporations from all, other taxes ex-
cept those assessed upon real property. This exemption was void un-
der sec. 6 of art. X of the constitution. Considering that since 1883,
in all legislation upon the subject, insurance companies had been re-
quired 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. — Colorado Life Co. v. Clayton, 256.

A statute allowed the coroner a specified fee for each day em-
ployed in holding an Inquest. Another statute prescribed the manner
in which accounts against the county should be made, requiring that
each Item should be separately stated, and adding "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 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. — McGovern v. Denver, 411.

Dormant Statute — Things clearly prohibited do not become lawful
by the failure, for many years, to enforce the legislative will. — Ever-
hart V. People, 272.

STATUTES CONSTRUED, CITED OR REFERRED TO.

Revised Statutes, c. 70 — Colorado Co. v. Clayton, 256.
Revised Statutes, c. 121, art. VII — Colorado Co. v. Railroad Comr
mission, 64.

Revised Statutes, Sec. 1215 — Denver v. Pitcher, 203.
Revised Statutes, Sec. 1219 — McGovern v. Denver, 411.
Revised Statutes, Sec. 1472— King v. People, 122.
Revised Statutes, Sec. 1620 — People v. Zobel, 284.
Revised Statutes, Sec. 1^22— King v. People, 122.
Revised Statutes, Sec. 1624 — Id.
Revised Statutes, Sees. 1625-1628 — Henwood v. People, 188.

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654 Index.

STATUTES CONSTRUED, CITED OR REFERRED TO— Oo»ttiM*«l.

RevlBed Statutes, Sec. 1632— Batley v. People, 837.

Revised Statutes, Sec. 1720— Sheely v. People, 136.

Revised Statutes, Sec. lldl—Everhart v. People, 272.

Revised Statutes, Sec. 1792— J<f.

Revised Statutes, Sec. 1796— /<f.

Revised Statutes, Sec. 1997— People t?. Zobel, 284.

Revised Statutes, Sec. 2109— People v. DUtrict Court, 237.

Revised Statutes, Sec. 2122— Loth v. LoWs Estate, 200.

Revised Statutes, Sec. 2159— People t;. Hoag, 542.

Revised Statutes, Sec. 2415 — Lvons v.Longmont, 112.

Revised Statutes, Sec. 2416— /d.

Revised Statutes, Sec. 2458— e* seq,, Id.

Revised Statutes, Sec. 2577— IfcGovern v. Denver, 411.

Revised Statutes, Sec. 3024 — Springhetti v. Hahnewald, 383.

Revised Statutes, Sec. 3102— Colorado Co. v. Clayton, 256.

Revised Statutes, Sec. 3300 — Larimer County v. Annis, 331.

Revised Statutes, Sec. 4025 — Salzer Co. v. Lindenmeier, 491; Curtis
V. Nunns, 554.

Revised Statutes, Sec. i021— State Bank v. Plummer, 144; Horn v.
Clark Co., 522.

Revised Statutes, Sec. 4029— /d.

Revised Statutes, Sec. 4030— /d.

Revised Statutes, Sec. 4033— /d .

Revised Statutes, Sec. 4073— JBmptre Co. v. Zehr, 186.

Revised Statutes, Sec. 4087— Silford v. Stratton, 248.

Revised Statutes, Sec. 4090— ilfarfc« v. Morris, 186.

Revised Statutes, Sec. 4165— Lofft v. Loth's Estate, 200.

Revised SUtutes, Sees. 4587, 4588— Ayre« v. Walker, 571.

Revised Statutes, Sees. 5410, 5411 — Colorado Co. v. Railroad Com-
mission, 64.

Revised Statutes, Sec. 5420 — Harrison v. Denver Co., 593.

Revised Statutes, Sees. 5428, 5429 — Colorado Co. v. Railroad Comr
mission, 64.

Revised Statutes, Sec. bhl2— Smith v. Denver Co., 288.

Revised Statutes, Sec. 5628— Denver v. Pitcher, 203.

Revised Statutes, Sec. 5633— /d.

Revised Statutes, Sec. 5636— Jd.

Revised Statutes, Sec. 5638— /d.

Revised Statutes, Sec. 5639— /d.

Revised Statutes, Sec. 5659— /d.

Revised Statutes, Sec. 5662— /d.

Revised Statutes, Sec. 5664— /d.

Revised Statutes, Sec. 5666— Jd.

Revised Statutes, Sec. 5722— fd

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STATUTES C0NJ3TRUED, CITED OR REFERRED TO—ContifVued.

Revised Statutes, Sec. 5760 — Id,
Revised Statutes, Sec. 576V— /d.

Revised Statutes, Sec. 6519 — Lyons v. Longmont, 112.
Revised Statutes, Sec. 6525 — Id,, Wolfe v, Abbott^ 531.
Revised Statutes, Sec. 6588 — Lyons v, Longmont, 112.
Revised Statutes, Sec. 6661 — Powers v. Boulder, 558.
Revised Statutes, Sec. 6676 — Lyons v. Longmont, 112.
Revised Statutes, Sec. 6815— Id.
Revised Statutes, Sec. %^^Z— Young v. People, 293.
Revised Statutes, Sec. 7121 — Tuckerman v. Currier, 25.
Revised Statutes, Sec. inS-^People v, Parker, 604.
Revised Statutes, Sec. 7273 — Victor v, Smilanich, 479.
Revised Statutes, Sees. 7277-7279 — LeMaster v. People, 416.
Mills Statute, Sec. 599 — Colorado Co. v. Railroad Commission, 64.
Mills Statute, Sec. 602— Id.
Mills Statute, Sec. 614— Id.
Mills Statute, Sec. 3703— Id.

Mills Statute, Sec. 4720 — Tuckerman v. Currier, 25.
Laws, 1867 (private), 114 — Evarhart v. People, 272.
Laws, 1901, c. 87, Sees. 1, 2 — Montezuma District v. Longenbaugh,
391.

Laws, 1910, c. 3 — In re Senate Resolution, 262.

Laws, 1910, c. 5 — Colorado Co. v. Railroad Commission, 64.

Laws, 1911, c. 149— Id.

Laws, 1911, c. 26 — Denver v. Pitcher,

Revised Code, Sec. 61 — Springhetti v. Hahnetoald, 383.

Revised Code, Sec. 66 — State Bank v. Plummer, 144.

Revised Code, Sec. 69 — Id,

Revised Code, Sec. 81— Ftt«en v, Wunderlich, 349.

Revised Code, Sec. 84 — Springhetti v, Hahnewald, 390.

Revised Code, Sec. 236 — Liutz v, Denver Co., 380.

STATUTE OF FRAUDS.

Sale of Goods — ^An agreement by one person to construct an article
for, and according to the plans of another, at an agreed price, is a con-
tract for work and labor and not within the statute of frauds. Ellis
V, D. L, d G. R. R. Co., 7 Colo. App. 352, distinguished. — Bond v. Bourk,
61.

SURETY COMPANY,

Contracts — Hoto Construed. See CONTRACTS.

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656 Index.

taxation.

Assessment — The Purpose of the Provisions of the ConstitvtiOH
and Btatute Regulating the Assessment of Property, is to secure uni-
formity 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 ensuins
fiscal year. The provisions of the charter of the city and county of
Denver, regulating the same matters, were enacted with a like por-
pose.^-CoZorodo T<ix Commission v. Pitcher, 203.

Pou)ers of Assessor — Assessment Roll — When Complete — The as-
sessor may, at any time before the meeting of the county board of
equalization, correct the assessment of any exempt property, the dou-
ble 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 return of the roll to the treasurer, supply clerical omissions
and correct clerical errors in the roll, where it can be ascertained
therefrom what was intended. He may supply such omissions as oome
to the notice of the county commissioners of his county, or, in Denver,
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
auditor of state the abstract of the assessment roll required by Rev.
Stat., sec. 5659, 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. — Colorado Tax Commission v. Pitcher, 208.

TAX TITLES.

Void Deed — A treasurer's deed appearing upon its face to be based
on a sale to the county, and an assignment of the certificate by the
county clerk more than three years after its issuance, is void. — Silford
V. Btratton, 248.

TRIALS.

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 thereto,
mingle with those summoned as jurors, converse with them touching
causes in which the suitor is concerned, and by fiattery, ridicule, and
like insidious means, endeavor to improperly infiuence them, the court
has power to punish and suppress the practice, and should not hesitate
to employ drastic measures to that end.

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Index. 657

TRIALS^<Jontinued.

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 00-operate in suppressing the evil.

A verdict shown to have been influenced by such practices should
be unhesitatingly vacated. — lAutz v. Denver Co,, 371.

Questions for Juru — ^Where in an action by a land broker for com-
missions upon a sale alleged to have been induced by him, his employ-
ment, as well as whether he was the producing cause of the sale are in
issue, such questions are for the jury. — Satisfaction Co. v. York, 566.

WRIT OF ERROR.

Where the Writ Lies— Final Judgment— An order removing execu-
tors, acting as testamentary trustees, and appointing a receiver for the
estate is a flnal judgment, and the executors may have a writ of error
to review such order. — Tuckerman v. Currier, 24.

The denial of a petition for leave to intervene in a pending cause
is a flnal judgment to which error lies. — People v. District Court Sixth
District, 576.

VOLUNTARY BOND.

Validity — A. voluntary bond, given upon consideration, not pro-
hibited by law, binds the surety, though not in statutory form. — Na-
tional Surety Co. v. People, 365.

WATER RIGHTS.

Adjudication of Priorities — It seems that after the proceeding un-
der the statute for the adjudication of priorities has gone to flnal de-
cree, the same court may, in the same proceeding, entertain a supple-
mental petition, and adjust the priorities of consumers whose rights
were initiated subsequent to such flnal decree, readjusting and renum-
bering all priorities from the beginning. — Larimer County v. Annis,
331.

Liability of County for Fees of Referee—^Under section 3300 of the
Revised Statutes the counties embraced within a water district are lia-
ble for the fees of the referee, not only in the initial proceedings for
adjusting priorities, but in a supplemental proceeding had under r.bc
original petition, on application of consumers whose rights wero not
determined by the flrst decree, but had their inception subsequent
thereto. — Larimer County v. Annis, 331.

Abandonment — Failure for the period of eighteen years to apply to
beneflcial use or in any manner control, water to which one is entitled,
must be regarded as an abandonment of the right, unless some pecu-
liar condition excusing the delinquency is shown. Merely asserting a
claim to the right through a continuous chain of paper title, ev^n

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658 Index.

WATER RIOHTS—Continued.

though coupled with an oral assertion of the right upon a single ooea-
sion, will not suffice.—- Oreen Valley Co, v, Frantz^ 226.

The evidence examined and held to lead to the irresistible con-
clusion that those under whom plaintiffs claimed had abandoned the
right.— /(f.

WILLS.

Construction — The intention of the testator is to be derived pri-
marily from the language of the will itself; and it is to receive effect
as written, if not opposed to some positive rule of law, or against pub-
lic policy.

And it Is to be presumed that the testator knew the law govern-
ing the subject matter of his directions. — Tuckerman v. Currier, 25.

Courts are bound to give to a will such a construction as will
carry out the plain intention of the testator. — University of Colorado
V. Wilson, 610.

Construed — The testator, a man learned in the law, after certain
specific bequests, devised all the rest of his estate "to my said execu-
tors ♦ ♦ ♦ and to the survivor of them, and their successors, to
hold, manage and dispose of, in trust for the uses and purposes fol-
lowing;" And after providing for the payment of an annuity 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 es-
tate; the re-investment by them of the proceeds of sales; directed
that upon the death of both of his sons, "said executors, and the sur-
vivor of them, and their successors" should convey all the estate re-
maining, to the heirs at law of said sons; and finally declared his de-
sire that "said board of executors shall be continued until the pur-
poses of this will are fully accomplished, and the trusts herein created
are fully executed; and that any vacancy in said board should on ap-
plication of any beneficiary herein named, be filled by the appoint-
ment 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 persons holding the office of executor,
and their successors, in perpetual succession, and to annex 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 appoint-
ment of successors, not only the powers, but the trust estate before
that vested in the original executors, devolved by operation of law,
upon the successors, without the formality of a conveyance.

The will enjoined upon the executors to "distribute fully the total
net annual income and increment of my estate to the persons and In

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Index. 659

WILLS — Continued.

the time and manner herein provided, and so as to avoid the accumu-
lation in their hands 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 tne increase in the value of one piece of property was
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. — TucTcerman v. Cur-
rier, 25.

The testator bequeathed $50,000 for the erection and maintenance
of a home for poor widows and orphans, but upon a condition prece-
dent impossible in law to be performed, following this bequest with
the direction that "otherwise the said $50,000 to revert back, and be
divided" among certain legatees named. Held, that the manifest in-
tention of the testator was that if, for any reason, the conditions pre-
scribed in the provision made for the home, should not, or could not,
be performed the gift over to the legatees should immediately take ef-
fect. An order making distribution accordingly, affirmed. — University
of Colorado v. Wilson, 510.

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 substitu-
tion, and not a mere administrator de bonis non. No rule of law pre-
vents a testator from providing a system for the selection of a suc-
cessor to the executor named in his will. He may provide conditional,
limited, or substituted executors, in case of vacancy, conferring upon
them the same powers as conferred upon those first designated. —
Tuckerman v. Currier, 25.

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. — Id.

WITNESSES.

Competency — One K, while in the employ of the corporation whose
moneys the prisoner was alleged to have embezzled had been giving in-
formation to the attorneys of certain parties with whom the company
was dealing. Being discharged he was at once taken into the care of,
and supported by, one of these parties, a creditor of the company, and
the same by whom the present accusation was instigated and prose-
cuted. The same witness had made oath to the information against the
prisoner. Held, that he was nevertheless a competent witness for the
people. — LeMaster v. The People^ 415.

Under Rev. Stat., sec. 7273, not all children under ten years of age
are made incompetent as witnesses, but only such as "appear incapable

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66o Index.

WITNESSES'— Continued.

of receiving just ImpreBsiozis 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 ex-
amination 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 punished if he did not, that he had a fair understanding
of the obligation of an oath, and of the facts which he detailed, held,
that no abuse of discretion was committed in receiving his testimony.
—City of Victor v, Smxlanich, 479,

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