Appeal from district court, Otero county. Action between A. E. Reynolds and Mary B. Campling. From the judgment, Reynolds appeals. Motion to strike out bill of exceptions. Overruled.

The appellee moves to strike the bill of exceptions from the files in this case. It appears that within the time fixed by the court for the filing of the bill of exceptions the appellant tendered to the judge a bill including the transcript of the testimony as prepared by the appellant's private stenographer. At the trial the court stenographer was present, and took down the testimony and the rulings and decisions of the court made during the progress of the trial. The district judge refused to sign and seal the bill of exceptions because the same was not made by, and did not purport to be a transcript of the notes of the official stenographer. Efforts were made by the attorney for the appellant to have the judge settle the bill of exceptions so tendered, and like efforts were made to induce the at torney for the appellee to examine such bill, and indicate any objection that he had there to; but these efforts, through no fault of ap pellant, proved futile. Thereupon the attor ney for the appellant filed with the clerk of the district court said bill of exceptions, sup ported by affidavits. He also duly notified the attorney for appellee of the filing of the same, suggesting that the latter might file counter affidavits, if he saw fit. The attor ney for the appellee filed no such counter affidavits, either in the district court or in the supreme court, nor has he ever taken any steps or made any move looking to a deter mination and settlement of the bill of excep tions in this court. This motion to dismiss the bill of exceptions was interposed after the printed abstract of the record was filed in this court, but before the filing of any briefs. Thereafter the appellant filed in this court his printed argument and brief, the appellee filed her answer thereto, and a brief in reply was filed by the appellant. More than six months after the case was thus submitted in this court the appellee first called up her motion to strike the bill of exceptions from the files.

Tyson S. Dines and Charles J. Hughes, for appellant. A. F. Thompson and L. B. Gibson, for appellee.

PER CURIAM. We think the motion should be denied, for two reasons:

1. It was the duty of the appellee, if the bill of exceptions, as tendered and filed, was not correct, to file counter affidavits thereto in this court, and require this court to settle the same, in accordance with section 385 of the Code of 1887. This was not done. In all respects, the appellant has complied with section 385; and the bill of exceptions as tendered, in the absence of any showing, in the manner pointed out by statute, of its incorrectness, we must hold to be a good and true bill.

2. Even were this not so, the appellee, by her long silence and acquiescence, cannot now insist upon this motion after the case, for months, has been at issue in this court.

There is no requirement of the statute, so far as we are able to ascertain, that the bill of exceptions must be prepared only by the official stenographer of the court, and that none other will be considered. However desirable it may be that the official stenographer shall do this work, there is no imperative requirement that he shali do it; but, on the contrary, section 385 of the Code expressly provides for the filing of a bill of exceptions attested and proved as was the bill to which objection is here urged. For these reasons the motion will be overruled.

In re TYSON.

(21 Colo. 78)

(Supreme Court of Colorado. March 20, 1895.) HABEAS CORPUS-WHEN LIES-ANOTHER ADEQUATE REMEDY.

Under the act of 1893, relating to writs of error in criminal cases, which provides that one under sentence for a capital offense may, for cause shown, have a writ of error to the supreme court, a prisoner convicted of murder, who claims that the judgment of a state court violates his rights under the constitution or laws of the United States, must seek his remedy by writ of error, and not by habeas corpus proceedings.

Henry Tyson, convicted of murder, petitions for a writ of habeas corpus. Denied. N. Q. Tanquary, for petitioner.

At

HAYT, C. J. At the April term, 1889, of the district court of Arapahoe county, petitioner, Henry Tyson, was convicted of murder of the first degree, and sentenced accordingly. In compliance with the terms of that sentence, he was conveyed to the Colorado state penitentiary for execution, but, before the week of execution had arrived, he was granted a reprieve for 60 days by the governor, to the end that the condition of his mind might be inquired into. In the month of October, 1889, he was brought before the court, and a jury impaneled for the purpose of inquiring into his mental condition. the first trial the jury disagreed, but at a subsequent trial the petitioner was adjudged to be insane. From said last-mentioned date, and until the 9th day of March, 1895, he has been confined either in the state penitentiary or in the state insane asylum, as an insane prisoner under conviction; but on the latter date he was again brought before the district court of Arapahoe county, in order that his then mental condition might be inquired of. This last inquisition resulted in his being adjudged sane, upon the 15th day of March, 1895, at which time a sentence of death was pronounced, to be executed during the week commencing April 8, 1895. Petitioner, at the time of making this application, was confined in the common jail

of Arapahoe county, in the custody of the sheriff, awaiting transportation to the state penitentiary at Canon City, the place designated as the place of execution of the death penalty. The crime for which the accused is under sentence was committed before the passage of the act of April 19, 1889, which act made some changes as to the time, place, and other incidents pertaining to the infliction of the death penalty; and the claim is that, as the act in force at the time of the commission of the crime has been repealed, the act of April 19, 1889, is ex post facto as to petitioner, and that, for this reason, he is entitled to his liberty.

This is the second application that has been made in this case for the discharge of the prisoner under the habeas corpus act. The first application was made at the September term, 1889. Upon that application the writ was granted, and the petitioner brought before the court; but, after a full hearing, it was adjudged that the changes made by the act of 1889 were referable to prison discipline, and, as such, were within the power of the legislature to enact, and that the changes were not sufficient to render the act ex post facto. The prayer of the petition was, for this reason, denied, and the prisoner remanded. In re Tyson, 13 Colo. 482, 22 Pac. 810. After that decision was announced, the statute under consideration was passed upon by the supreme court of the United States in two cases, in which Medley and Savage were respectively petitioners. 134 U. S. 160, 10 Sup. Ct. 384, and 134 U. S. 176, 10 Sup. Ct. 389. In these cases it was held by the court (Justices Brewer and Bradley dissenting) that the law was ex post facto as to those offenses committed before the passage of the act, and the petitioners were accordingly discharged, as the result of the habeas corpus proceedings. The facts stated in the present petition are the same as those presented in the former, with a history of the case since the former application was determined. The decision of the United States supreme court in the Medley and Savage Cases is relied upon for the purpose of procuring the discharge of the petitioner. We, of course, recognize as binding upon all courts, national and state, the decision in the Medley and Savage Cases; that decision having been based upon the provision of the United States constitution prohibiting ex post facto laws, and emanating from the court of last resort upon questions of this character. It is claimed, however, that the doctrine announced in the Medley and Savage Cases has been modified as the result of several decisions rendered by the same tribunal since the announcement of the opinion in the Medley and Savage Cases, but while it is true that similar questions with reference to the statutes of other states have been passed upon by that court, and although in some of these cases some portions of the argument resorted to by the

court in support of the conclusion reached in the Medley and Savage Cases have been to some extent modified, the decision, in so far as the ex post facto character of our statute is concerned, has not been departed from by the national tribunal, but, on the contrary, it has been expressly recognized in subsequent cases. Holden v. Minnesota, 137 U. S. 483, 11 Sup. Ct. 143; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156. And in the recent case of Kelly v. People, 17 Colo. 130, 29 Pac. 805, the ex post facto character of the statute, as the same was interpreted by the supreme court of the United States. was expressly recognized by this court. Kelly was convicted of murder of the second degree in the district court of El Paso county, and sentenced to imprisonment for 26 years; the judge presiding at the trial expressly instructing the jury that he could not be convicted of murder of the first degree, by reason of the former decisions upon the statute. In commenting upon this action of the district judge, Mr. Justice Elliott, in delivering the opinion of the court, said: "In view of these decisions of the highest judicial tribunal of our country, the district court of El Paso county acted wisely in charging the jury not to convict Kelly of a crime so heinous that he would escape punishment altogether." In the Medley and Savage Cases the prisoners were set at liberty without punishment of any kind or character; whereas, if the cases had been heard upon writ of error under the United States statute, the supreme court might have corrected the errors committed by the trial court, or have reversed the judgment, and remanded the cases for a new trial. The court's attention does not, however, seem to have been called to the strong reasons that existed for requiring the review to be upon error, instead of by the summary proceeding upon a writ of habeas corpus. If the court's attention had been called to the form of proceeding and the advisability of requiring the prisoners to have made their application by writ of error, the subsequent decisions of the court, we think, leave no doubt that the writ of habeas corpus would have been denied, and the prisoner required to resort to his writ of error. This conclusion is, we think, fully authorized by the opinion of that court in Re Frederich, 149 U. S. 70, 13 Sup. Ct. 793, in which it is said: "It is certainly the better practice, in cases of this kind, to put the prisoner to his remedy by writ of error from this court, under section 709 of the Revised Statutes, than to award him a writ of habeas corpus; for, under proceedings by writ of error, the validity of the judgment against him can be called in question, and the federal court left in a position to correct the wrong, if any, done the petitioner, and at the same time leave the state authorities in a position to deal with him thereafter, within the limits of proper authority, instead of discharging him

by habeas corpus proceedings, and thereby depriving the state of the opportunity of asserting further jurisdiction over his person in respect to the crime with which he is charged. In some instances, as in Medley, Petitioner, 134 U. S. 160, 10 Sup. Ct. 384, the proceeding by habeas corpus has been entertained, although a writ of error could be prosecuted; but the general rule and better practice, in the absence of special facts and circumstances, is to require a prisoner who claims that the judgment of a state court violates his rights under the constitution or laws of the United States to seek a review thereof by writ of error, instead of resorting to the writ of habeas corpus." See, also, In re Wood, 140 U. S. 278, 11 Sup. Ct. 738.

The petitioner, Tyson, stands convicted of murder of the first degree. No error is claimed in the proceedings prior to judgment. We must therefore assume, for the purposes of this case, that his conviction was in all respects regular and proper. Should this court, therefore, or any other court having jurisdiction, entertain a proceeding by habeas corpus, and discharge the prisoner, he would stand in the anomalous position of having a verdict against him for murder of the first degree, upon which verdict no sentence could be imposed; and, so long as the verdict stood, he probably could not be tried for any of the lesser offenses included in the graver offense charged in the indictment. If, however, the prisoner is relegated to his remedy by writ of error, the judgment of the lower court may be reversed; and, if the facts warrant it, he may be remanded for a new trial for some lower grade of homicide. We note the manifest reluc tance with which the supreme court of the United States discharged Medley and Savage as the result of the habeas corpus proceedings. This is apparent from the qualified terms of the order requiring 10 days' notice to the attorney general of Colorado before the final discharge. This notice could have been only for the purpose of giving the state an opportunity to proceed against the prisoners for some lower grade of homicide, although it was correctly assumed by the dissenting judges that the conclusion of the majority would result in giving the prisoners their full liberty. If the decision in the Kelly Case, supra, is sound, we have no doubt of the duty of this court to refuse to entertain the present application by habeas corpus, and relegate the prisoner to his remedy by writ of error. This is in accordance with our statutes with reference to the writ of habeas corpus and writs of error in capital cases. Gen. St. 1883, c. 49; Sess. Laws 1893, p. 128. In the former act certain restrictions are placed upon the issuance of a second writ of habeas corpus, which, we think, prevent this court from discharging the prisoner. Moreover, the case seems to be fully provided for by the act of 1893,

entitled "An act in relation to writs of error in criminal cases." Section 1 of this act reads: "Any defendant under sentence for a capital offense may have a writ of error to the supreme court upon filing in such court, on or before the commencement of the week of execution, a transcript of the record in the court below, duly certified, with an assignment of errors. In cases wherein a bill of exceptions is necessary to a full understanding of the errors assigned, such bill of exceptions shall also be filed with such transcript. Thereupon the clerk of the supreme court shall issue a writ of error to the trial court and a supersedeas to stay the execution of the sentence of death provided the supreme court may, for cause shown, extend the time in which any act herein required is to be performed." By this act the petitioner is given a remedy by writ of error, with an absolute right to have the judgment suspended, pending a hearing and determination; but, in so far as the method of procedure is concerned, we are clearly of the opinion that the petitioner has no right to have the former decision of this court reviewed upon this application. Writ denied.

1. Under Sess. Laws 1889, p. 249, § 3, requiring the claimant of a lien for railway construction to serve a statement on the owner of the property, his agent or trustee, service by delivery to the clerk of the superintendent of the owner is insufficient, in the absence of evidence that the statement was delivered by him to the superintendent.

2. In an action by a laborer employed by a subcontractor to enforce a mechanic's lien, the contractor, if service can be had on him, is a necessary party.

Error to district court, Arapahoe county. Action by Jasper Davidson against the Union Pacific Railway Company and another to enforce a mechanic's lien. There was a judgment for plaintiff, and the railway company brings error. Reversed.

This is an action to enforce a mechanic's lien, which, if it accrued at all, arose after the amendments of the mechanic's lien act of 1889 went into effect. Davidson, the plaintiff, was employed by one Sipole, a subcontractor, to do work upon a railroad grade of which the defendant railway company was the owner. D. D. Streeter was the original contractor, but was not made a party defendant to this action. Upon trial by the court, a personal judgment for the amount of the claim was given in favor of the plaintiff against Sipole, and a lien therefor adjudged against that portion of the railway company's grade upon which the plaintiff labored. From the decree enforcing this lien, the railway company comes here by writ of error, and

assigns numerous errors as grounds for reversal. Only two will be considered, as they are decisive of the case.

Teller, Orahood & Morgan, for plaintiff in

error.

structions to the district court to set aside the decree in so far as it seeks to enforce a lien against the property of the defendant railway company, and, as to such defendant, to dismiss the action. Reversed.

CAMPBELL, J. (after stating the facts). 1. There was no compliance by the plaintiff with that part of section 3, p. 249, Sess. Laws 1889, which requires the claimant of a lien to serve upon the owner of the property, his agent or trustee, a copy of the statement of lien at or before the time when he files the same with the county clerk and recorder. The proof is that the plaintiff went to the office of Mr. Choate, the superintendent of the defendant company, to serve such copy upon him, but the latter was not in his office. Thereupon the plaintiff gave said copy to a clerk in the office, who promised to deliver it to the superintendent; but there is no evidence to show that the promise was kept or the notice received by the superintendent. If it be assumed that Mr. Choate was the agent or trustee of the company, in respect to this work of grading (as to which there is no evidence at all), under no construction can it be held that this service of a copy of the lien statement upon the clerk of the superintendent of the defendant company was such service as the statute prescribes.

2. It has been held in other jurisdictions, even in the absence of a statute to that effect, that in actions to enforce the lien of a subcontractor arising under mechanic's lien laws, the contractor should be made a party defendant. The mere statement of this rule carries with it its own justification. The general scope of our mechanic's lien acts clearly contemplates that the contractor and all claimants of liens shall be made parties to an action brought to enforce a lien, and that all shall have their rights adjudicated in one action, and protected and enforced in one judgment. Section 8, p. 251, Sess. Laws 1889, declares that "any such claim of any sub-contractor that shall be established under this act by the judgment or decree of court, shall, to the full amount thereof, be a valid set-off in favor of such owner and against the contractor," but not to "any greater extent than the contract price for the building or other improvement, or total indebtedness of the owner to the contractor for the whole work." We must not suppose that the legislature by this intended that the owner should be entitled to such set-off against the contractor unless the latter was a party to the action in which his rights were determined. In this case service upon the original contractor was feasible. He was in the county at the time the suit was instituted, and he could easily have been brought in. To this effect is the case of Davis v. Lumber Co., 2 Colo. App. 381, 31 Pac. 187.

For the foregoing reasons, the judgment should be reversed and remanded, with in

(21 Colo. 46)

In re HOUSE BILL 168. (Supreme Court of Colorado. March 11, 1895.) CONSTITUTIONAL LAW-APPROPRIATION BILL-PLURALITY OF SUBJECTS.

1. The bill enacted as Act March 17, 1891, sections 1 and 2 of which provide for a permanent and continuing levy and appropriation of a tax for certain state educational institutions, and section 3 for the election of a treasurer for each institution, and section 4 repealing all inconsistent acts, contains affirmative legislation upon matters of such a permanent nature as to make it a special, and not a general, appropriation bill.

2. Such bill, in embracing in one act four institutions to which the proceeds of the tax are to be exclusively devoted, contains four distinct subjects or purposes of appropriation, and is violative of Const. art. 5, § 32, which provides that all other than general appropriations shall be made by separate bills, each embracing but one subject.

The opinion of the court, as to the constitutionality of the act whose title is above given, is in response to the following preamble and resolution:

"Whereas, there has been introduced into the house of representatives of the state of Colorado, and there is now pending in said body, house bill No. 168, a copy of which is hereto attached, which bill provides, among other things, for the repeal of sections one and three of an act to provide for the assessment, levy, and collection of a state tax for the support and maintenance of certain state educational institutions, etc., approved March 17, 1891; and whereas, one of the main arguments used in favor of the repeal of said sections is that section one of said act is unconstitutional, in that it conflicts with section 32, article 5, of the constitution of the state of Colorado; and whereas, if said section one should at any time before the expiration of the fiscal year 1896 be declared unconstitutional, then the state institutions named in said section would be left without their proper support: Therefore be it resolved that the honorable supreme court of the state of Colorado be and is hereby requested to render its opinion in writing at the earliest possible date, for the use of this house, upon the question of the constitutionality of said section one of the General Laws. Approved March 17, 1891."

T. M. Robinson, J. W. McCreery, and H. Riddell, amicis curiae.

PER CURIAM. It has been the established practice of this court not to answer questions propounded by the legislature, if such questions affect private rights, or if they do not relate to pending legislation. The ques

tion above submitted relates, strictly, not to a bill pending in the house of representatives, though it is asked in connection with, and as bearing upon, house bill No. 168, but it relates to the constitutionality of an act passed by the general assembly at the session of 1891. But inasmuch as the rights of the public are involved, and the interests of the state institutions concerned are so vitally affected, and the results to them would be so disastrous were the answer which we feel constrained to give withheld until after the present session of the legislature, we have concluded to depart from such practice, and answer the question submitted. This, however, must not be taken as a precedent for the right in general of the legislature to ask for information as to the constitutionality of an existing act.

Section 32 of article 5 of our constitution, which is the provision referred to, is as follows: "The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state, interest on the public debt, and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject." The act in question consists of four sections: Section 1 makes provision for the levy of a special tax for the support of the agricultural college, the state school of mines, the state normal school, and the institute for mute and blind, one-sixth of a mill to each. Section 2 sets apart and appropriates for the exclusive use of each of these so-called "educational institutions" the revenues derived from its respective levy, and authorizes the state auditor to draw his warrant therefor on the state treasurer in favor of the respective treasurers of these four institutions for the amount to which each is entitled. Section 3 provides for the election of a treasurer of each of these institutions, and defines his duties. Section 4 contains a repealing clause of all previous and inconsistent acts upon the same subject. It will be observed that in the title of this act there is no mention made of an appropriation; and under the doctrine of this court laid down in Re Breene, 14 Colo. 401, 24 Pac. 3, it may be questioned if this act can be held constitutional under section 21, art. 5, of the constitution. But as our attention has not been specifically called to that provision, and as we consider the act invalid for other reasons, we prefer to base our conclusion upon the construction of the provision to which our attention is called.

No authority directly in point has been found by either the court or the counsel who have so materially assisted us by their labors. To sustain the constitutionality of this act, at least four assumptions must be. made: First, that each of the four state institutions mentioned in the body of the act is a department or branch of the public schools; second, that appropriations such

as this act carries may be made in a general appropriation bill; third, that this act may properly be termed one of the general appropriation bills of the eighth general assembly; and, fourth, if either of the foregoing propositions is unsound, that this act is a special appropriation bill,-special, as distinguished from general,-and embraces but one subject.

er.

These four institutions are regarded by this act as educational. Whether or not they are such, under sections 1 and 5 of article 8 of our constitution, we need not decide; but, for the purposes of this case, let it be conceded that this act properly classifies them. The same concession may be made as to the second assumption above stated, and will be so made without any ruling one way or the othOne of the remaining questions, then, to be disposed of is, was this measure before its enactment a general appropriation bill? The general appropriation bill always has been, and should be, to provide appropriations such as can constitutionally be included therein for the period of two years only. It is a temporary measure, and must be renewed at each session of the legislature. Nothing of a permanent nature ought to be, and under the provisions of section 32 nothing of that kind can be, embraced therein. Here we have in this act a provision for a permanent and continuing levy and appropriation of a tax, and a section which, in detail, provides for the election of a treasurer of each institution, and specially defines his duties. Such affirmative legislation, while it may not make the whole act invalid, cannot be included in a general appropriation bill, nor can such a bill be termed a "general appropriation bill." See People v. Spruance, 8 Colo. 307, 6 Pac. 831. True it is that there may be, and frequently are, passed at each session of the legislature two or more bills carrying general appropriations; but we find upon examination of the session laws from the first session of our legislature until the present time that those bills, which may be denominated "general appropriation bills," enacted early in the session, invariably made appropriations to provide for current or ordinary expenses to cover the period intervening between the close of the previous fiscal year and the time when the general appropriation bill proper may be passed at the close of the session, at which time, and not before, the legislature can know with rea sonable certainty the probable amount of the revenue which the constitutional rate of taxation will yield. They were intended only as parts of the general appropriation bill to be passed later, and the amounts carried by all constituted the general appropriation for the two years.

But, even if appropriations for these institutions might properly be made by the legislature in a general appropriation bill, this act cannot be considered as having been a general appropriation bill for the reasons given above; and, besides, the title of the act shows that