the ballots themselves and a canvass of the ballots made by the election officers, the ballots are controlling." The canvass of the votes by the board of inspectors is prima facie evidence of the result of the election, but the canvass may be corrected by the ballots themselves. People v. Van Cleve, 1 Mich. 362; Cooley, Const. Lim. (6th Ed.) 788. We find nothing in the Skerrett Case, 2 Pars. Eq. Cas. 509, in the Kneass Case, Id. 561, in the Carpenter Case, Id. 537, or in Whipley v. McKune, 12 Cal. 352, cited in respondent's brief, contrary to the rule that the ballots are primary and controlling evidence. In the Kneass Case the court say: "The court will not, on a general request, order the ballot boxes to be recounted, without some specific charge or allegation of fraud or mistake." The questions discussed and decided in these four cases related to the sufficiency of the allegations of the complaint or petition, and not to the competency or materiality of the ballots as evidence; and respondent's attorneys in fact attempted to justify the ruling upon the ground of the insufficiency of the complaint herein. But the only objection to which the complaint is possibly open is not that there is an entire absence of necessary facts, but rather that they are inartistically stated in the form of conclusions of law. Aside from the fact that the ruling excluding the ballots was not at all placed upon the insufficiency of the pleading, it appears that upon the motion to quash, which amounted to a demurrer, the court had held the complaint sufficient. Having done this, justice requires that an appellate court should also treat it as sufficient, as otherwise the plead-| er would lose all right of amendment.

In the case at bar the court ruled that the plaintiff's complaint was sufficient, but that the plaintiff must prove that ballots were called and counted for Bray which should have been counted for Schneider, and ruled that the ballots were "utterly immaterial" as evidence to prove these alleged facts. The ruling that the ballots were immaterial, and the ruling excluding them as evidence, and the order dismissing the case are error; and such rulings and order and the judg ment of the district court should be reversed. It is so ordered.

BIGELOW, C. J., and BELKNAP, J., con

cur.

(4 Ariz. 186)

In re DELINQUENT TAX LIST OF PIMA COUNTY.

Appeal of MAISH et al.

(Supreme Court of Arizona. Jan. 17, 1894.) TAXATION OF MEXICAN GRANTS-OBJECTIONSTENDER OF TAX.

A taxpayer may object to a tax on unconfirmed Mexican grants, on the ground that the title thereto is in the public, without first tendering the taxes due on other of his property included in the assessment. Per Rouse, J., dissenting.

Dissenting opinion. For majority opinion, see 37 Pac. 870.

ROUSE, J. (dissenting.) I cannot concur in the opinion in this case. An "unconfirmed Mexican land grant" was listed as the property of Maish & Driscoll, and assessed. They failed to pay their taxes, and judgment therefor was rendered against them in the district court, and from that judgment they appealed. By the opinion it is declared that, inasmuch as Maish & Driscoll had not paid the taxes on the property which they owned, and which was properly assessed. even though the said unconfirmed Mexican land grant was not subject to taxes, the judgment should be affirmed. The case of Railway Co. v. Patterson (Mont.) 24 Pac. 704, is cited as an authority in support thereof. The case cited was an application for an injunction. It was shown by the bill that the petitioner owed a part of the taxes; and, further, that he had not applied to the proper tribunal to have the errors corrected; hence the bill was dismissed. The case at bar is quite different from that case. This judgment should be reduced by the amount of the taxes assessed on the said grant, provided said grant be not subject or liable for taxes. I cannot understand by reason or authority how a judgment for taxes for a certain amount must be upheld in the full amount because the party against whom the judgment was rendered has failed to pay the amount which he justly owes. I contend that the said unconfirmed Mexican land grant is the property of the United States, and that the tax thereon is void. Colorado Co. v. Commissioners, 95 U. S. 265; Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444. The right of Maish & Driscoll to the so-called "grant" or "claim" has not been recognized by the government in any way. It has not been surveyed. It has not been segregated from the other public lands. No possession or right of possession thereto is in Maish & Driscoll. They have no right or claim thereto that can be enforced in the courts. Astiazaran v. Mining Co. (Ariz.) 20 Pac. 189. Certainly Maish & Driscoll have not a right in said land that can be taxed. Having no title and no possession, I do not understand what they have in connection with the so-called "grant," separate and distinct from the land, that can be taxed. The judgment should be reduced by the amount of the taxes levied on the said grant.

1. The legislature cannot single out the mining, manufacturing, and smelting industries of the state, and impose upon them restrictions as to the hours of labor of their employes, from which other employers are exempt.

2. A bill prohibiting mining and manufacturing companies to contract with their em ployes for labor for more than eight hours » day is in violation of the right of parties to make their own contracts, under the constitution of the United States (fourteenth amendment) and the bill of rights of the constitution of Colorado.

Question submitted by the house of representatives to this court, as to the legality of a law providing that eight hours shall constitute a day's labor.

The opinion of the court is in response to the following preamble and resolution:

"Whereas, a bill for an act declaring eight hours labor, a day's work, is now pending in the house of representatives of the Tenth general assembly; and,

"Whereas, there is a difference of opinion among the members of the house as to the legality of such a measure should it provide that it should only apply to laborers employed and working in mines, smelters and factories in this state; "Be it therefore resolved, that the supreme court of the state is requested to give an opinion in writing for the guidance of the house, in answer to the following question: Would a law if enacted, providing that eight hours shall constitute a day's labor in all mines, factories and smelters in this state, be constitutional and legal?"

PER CURIAM. The question in this instance is accompanied by a copy of house bill No. 191. It will therefore be assumed that the house desires advice with reference to this bill. It does not appear, however, either by the question itself, or the preamble, that the inquiry relates in any way to the constitutionality of the bill, as now pending before the house, the first section of which provides: "Section 1. Eight hours shall constitute a legal day's work for all classes of mechanics, workingmen and laborers employed in any occupation in the state of Colorado." We infer from the communication that it is the desire of the house to have the opinion of this court upon some proposed amendment, not as yet offered, but about which there is a difference of opinion among the members of the house. If we are correct in this, the amendment should be first offered, and a copy submitted to the court, as the inquiry must have reference to pending legislation. Moreover, we think the solemn occasion contemplated by the section of the constitution, by virtue of which the question is propounded, cannot be said to have arisen until the bill has progressed sufficiently to show some probability of its passage by at least one house of the general assembly. For the court to investigate the constitutionality of a bill that did not command the support of at least a majority of one house would be a waste of time.

Aside from the foregoing, the question is not sufficiently specific. If there is a doubt as to the constitutionality of proposed legislation suggested by any member, such doubt must be occasioned by some particular provision or provisions of the constitution. This instrument contains hundreds of sections, and, unless the inquiry be specific, the court might spend days and weeks in the investigation of provisions that have occasioned no doubt whatever in the minds of the members of the house. In this connection, the language of the court in response to an interrogatory propounded by the Fifth general assembly is particularly in point: "It could

Nor

not have been the intention to authorize an ex parte adjudication of individual or corporate rights by means of a legislative or executive question. Parties must still adjudicate their rights in the ordinary and regular course of judicial proceeding. could the purpose have been to exact, in response to a legislative inquiry, a wholesale exposition of all constitutional provisions relating to a given general subject, in anticipation of the possible introduction or passage of measures bearing upon particular branches of such subject."

When the question involves a construction of some provision of the state or national constitution, the particular provision should be pointed out, and the number of the section and article wherein it appears, given.

In answer to further interrogatories, the following opinion was returned:

PER CURIAM. It is not competent for the legislature to single out the mining, manufacturing, and smelting industries of the state, and impose upon them restrictions, with reference to the hours of their employes, from which other employers of labor are exempt. An act such as proposed would be manifestly in violation of the constitutional inhibition against class legislation. The bill submitted also violates the right of parties to make their own contracts,a right guarantied by our bill of rights, and protected by the fourteenth amendment to the constitution of the United States. See opinion recently given upon In re House Bill No. 203, 39 Pac. 431. For an able and comprehensive exposition of the constitutional provisions applicable to the subject, your attention is invited to the recent case of Low v. Printing Co., 41 Neb. 59 N. W. 362.

(21 Colo. 14) In re FIRE, POLICE & EXCISE COM'RS OF CITY OF DENVER. (Supreme Court of Colorado. Feb. 18, 1895.) SUPREME COURT-REVIEW OF QUESTION SUB

MITTED.

In an ex parte proceeding, the supreme court will not pass upon the title to an office, the right to property, or the construction of an existing statute, in answer to either an executive or legislative question.

In re appointments by the governor of fire, police, and excise commissioners of the city of Denver. The resolution and question submitted by the senate are as follows:

"Whereas, à question has arisen involving the duty of the senate, in the matter of its action upon certain nominations which have been presented by the governor for the action of the senate: Therefore be it resolved, that the following question be submitted to the supreme court by the senate, with a request for an opinion thereon: The governor having, under section 45 of the charter of the city of Denver of 1893, during a recess of the senate, appointed the fire and police and excise commissioners mentioned in said section, by reason of a vacancy occurring therein, do such appointees continue in office until the end of such term, or until the convening of the senate, as provided in section 6 of article 4 of the constitution?"

PER CURIAM. The question propounded calls for an opinion upon the duration of the term of office of the present fire, police, and excise commissioners of the city of Denver.

It involves a construction of certain provisions of the charter of the city of Denver, as well as of section 6, art. 4, of the constitution. It therefore belongs to a class of questions which we do not feel at liberty to answer, nor could we do so without overruling a long line of carefully considered decisions upon the subject. Commencing with the opinion in Re Irrigation, 9 Colo. 620, 21 Pac. 470, down to and including the case of In re Fire, etc., Com'rs, 19 Colo. 482, 36 Pac. 234, this court, in obedience to its constitutional duty, has uniformly declined to pass upon the title to an office, or the right to property, in an ex parte proceeding, in answer to an executive or legislative question. While we will be found at all times ready to furnish such assistance to the legislature as may be in our power, the rule requiring the title to an office to be adjudicated in accordance with the ordinary and usual course of procedure provided by statute is deemed absolutely essential to the preservation of public and private rights. It is not believed that the people, in adopting the amendment by virtue of which the executive and either house of the general assembly may submit to the court important questions upon solemn occasions, intended to sanction a practice whereby the rights of property, or the title to an office, or the construction of an existing statute, should be determined in an ex parte proceeding, in answer to either an executive or legislative question. For these reasons, we respectfully request the senate to withdraw the question submitted.

HIGHWAY-DEDICATION-ACCEPTANCE.

To constitute a valid common-law dedication of land for a highway, there must be an acceptance by the public authorities.

Appeal from district court, Pueblo county. Action by Z. V. Trine against the city of Pueblo to restrain defendant from converting land in possession of plaintiff to a public street without making compensation therefor. From a judgment for defendant, plaintiff appeals. Reversed.

The appellant, as the owner in fee of the following land, situate in the city and county of Pueblo, and described as follows: "Beginning at a point on the east line of Santa Fé avenue two hundred and fifty-six (256) feet north of the north line of Ninth street, in the city of Pueblo, in said county; thence north, along the east line of said Santa Fé avenue, eighty (80) feet; thence east three hundred and fifty-two (352) feet; thence south eighty (80) feet; thence west three hundred and fifty-two (352) feet to the place of beginning,"-brought this action to enjoin the appellee from tearing down and destroying

1 Rehearing denied February 18, 1895.

certain fences and structures thereon, and converting the same into a public street, without making compensation therefor. Appellee denies the right of appellant to the relief sought, upon the ground that appellant's grantor dedicated said premises to the town of Pueblo, as a public street, in 1873, and insists that by virtue of said dedication it has the lawful right, as successor to the town of Pueblo, to enter upon and use the same as a public street. Upon the testimony introduced, the court below made findings of fact, and rendered judgment thereon, as follows:

"(1) That prior and up to the year 1870 one Josiah F. Smith was the owner of the quar ter section of land out of which this tract was carved, deriving his title from the United States government. (2) That on the 22d day of March, A. D. 1870, the town of Pueblo was organized as a municipal corporation under the laws of the territory of Colorado. (3) That the land in controversy was in the corporate limits of the said town of Pueblo during all the times and dates of the respective deeds under which the defendant claims. (4) That all the land lying east of Santa Fé avenue, in said city, and north of Ninth street and west of Summit street, for a distance of about sixteen hundred feet, has never been platted into lots and blocks or streets by any recorded plat executed by the owner or owners of such land. (5) That, at the date of the execution of the deeds relied upon by the defendant to prove dedication, all the land lying east of Santa Fé avenue and north of Ninth street, to the Fountain, was vacant and unplatted ground, until the date of the recording of the plat of Fountain addition. (6) That, until the commencement of this suit, there were no streets graded upon any of the land lying east of Santa Fé avenue and north of Ninth street, and bounded upon the east by the Fountain, but that since the commencement of this suit said Summit street has been made passable from Eighth street to a point about fifty feet beyond the land in question. (7) That the character of the ground as it at present exists, for the entire length of Tenth street extended east from Santa Fé avenue and across the Fountain, is such that it could not be traveled upon safely as a street, and that it is scarcely passable. (8) That the land in controversy was practically a cul-de-sac; that the same was never surveyed or staked off as a street, that is, was never graded or worked in any manner by the city or town of Pueblo,-and from the evidence, and the natural growth of sage brush from a personal view of the same by the court, it is evident that the same was never traveled its entire

length, from east to west, by anybody, with a vehicle of any kind. (9) That the public has never traveled upon the land in controversy as a street, but that different roads have been made across the same by persons who evidently were traveling in the direction which said street would run, and that the

travel across the same was of the same kind that the adjacent and other vacant lands of the city are frequently crossed by the public. (10) That Lewis Conley, grantor of the plaintiff, never made a plat of the land in controversy, nor did he in any deed refer to any plat, of any kind or description, made by any other person. (11) That the city of Pueblo, or the former town of Pueblo, has never, by any formal or informal act, accepted the land in controversy as a street. (12) That Lewis Conley did not return the land in controversy for taxes, nor, it is shown by the evidence, did he ever know that the public had in any manner used or driven across the same, even to the extent as indicated in the above findings. (13) That the first deed which forms a part of the chain of title under which the defendant claims is from Josiah F. Smith and wife to O. H. P. Baxter, of date November 9, 1871, which, by its recital, calls for the north line of Tenth street from where it had theretofore been platted, a distance of fifty-nine (59) feet west from Santa Fé avenue; that said deed, together with the plat of Smith's addition, filed for record July 17, 1871, would make Tenth street a public street extending east to its intersection with Santa Fé avenue. (14) A deed (No. 2) from Josiah F. Smith to Lewis Conley, dated November 9, 1872, describes the tract of land lying east of Santa Fé avenue, and bounded thereon north of Ninth street, 352 feet wide and 566 feet long, and contains this additional recital: 'Being a piece of land comprising about two blocks, of the size of blocks in the town of Pueblo, with the width of a street eighty feet wide, to wit, Tenth street, lying between said blocks.' (15) That conveyance No. 3 is a trust deed from Lewis Conley to Henry C. Thatcher, trustee, of date December 3, 1872, which describes the land as follows, to wit: 'Commencing at the point of intersection of the east boundary line of Santa Fé avenue and the north boundary line of Ninth street, in the town of Pueblo; running thence north, along the east boundary line of Santa Fé avenue, 256 feet; thence east 352 feet; thence south 256 feet; thence west 352 feet, to the place of beginning,'-given to secure the First National Bank, etc. The next.conveyance of said chain of title made by Lewis Conley and wife to John V. Farwell, of Chicago, as trustee, of date February 15th, 1873, to secure a note for $2,000. The description of the property therein is as follows: 'All of the certain lot, piece, or parcel of land situate, lying, and being in Pueblo, county of Pueblo, territory of Colorado, known and described as follows, to wit: Commencing at the northeast corner of Santa Fé avenue and Tenth streets, in the said town of Pueblo, and running north, along the east line of Santa Fé avenue, 229 feet, to a point; thence east 352 feet, to the west line of Summit street; thence south, along said line, to Tenth street; thence west, along the north line of Tenth street, to the place

(16)

of beginning.' at the time of the execution of this trust deed to said Farwell, trustee, the grantor, Lewis Conley, was not then and there the owner of any estate or interest whatsoever in or to any part or portion of what is de: nominated in said deed, by way of description, as 'Summit Street,' nor did said Conley then and there claim any ownership therein, nor was said Conley the owner of any part or portion of the premises so designated as 'Summit Street' at any time prior thereto. The court further finds that, as a matter of fact, there was no public street in existence, known as 'Summit Street,' and extending northward beyond the premises in controversy, so as to abut upon any part or portion of the premises described in and conveyed by the last above mentioned trust deed; nor, as a matter of fact, had said alleged Summit street been dedicated in any way as a street, upon any part or portion thereof which would abut upon any part or portion of the premises so described in and conveyed by said last above mentioned trust deed, nor any part or portion of the premises so described as 'Summit Street' in said trust deed ever used, laid out, or in any manner in existence, as a street, prior to or at the time of the execution of said last-mentioned trust deed. (17) The court further finds that said Lewis Conley never made any conveyance of or concerning the property in controversy to any person or persons until he executed the deed to the plaintiff in this action, of and to the same; nor did he exercise any act of control or ownership over the same from 1873 to the date of the execution of the conveyance to said plaintiff. (18) That the two trust deeds above named, to property lying on the north and south side of the premises in controversy, were foreclosed, and deeds executed to the purchaser at foreclosure sale, and duly recorded, in the year 1877. (19) That the plaintiff owns the fee in the premises in controversy. (20) The court further finds that on June 8, 1872, the said Lewis Conley filed a plat designated 'Conley's Addition to East Pueblo,'-an addition to the town of Pueblo to the east of the land in controversy,-showing a street thereon corresponding with the lines of Tenth street, if extended due east. (21) That the court further finds that by the said trust deed heretofore referred to, made by Lewis Conley and wife to John V. Farwell, of Chicago, as trustee, of date February 15, 1875, that said Lewis Conley thereby manifested by the recitals in said deed a present intent then and there to make an irrevocable dedication of the land in controversy to the public, as a street; to which finding of fact counsel for plaintiff then and there excepted.

The court further finds that

"Wherefore, it is adjudged and decreed by the court, upon the findings of fact above stated, that, under the law applicable to such facts, the grantor of the plaintiff herein, long prior to the time when plaintiff acquired title

to the land in controversy from said grantor, had irrevocably dedicated said parcel of land to public use as a street, which dedication is binding upon said plaintiff; that the claim of said defendant to the said parcel of land, as a street, by virtue of a common-law dedication, is valid; that the said defendant has right and authority, in law, to enter upon said parcel of land, and tear down and remove therefrom any and all structures which said plaintiff has erected thereon, and convert the said parcel of land into a public street, without making any compensation therefor to the plaintiff, and without being guilty of trespass or any wrong whatsoever. It is further ordered, adjudged, and decreed by the court that the injunction heretofore granted in this action be, and the same is hereby, dissolved, and it is further ordered, adjudged, and decreed that the said defendant recover against the said plaintiff its costs in and about its suit in this behalf expended, and judgment is entered accordingly; to which findings of fact and conclusions of law thereon, as well as the final judgment rendered herein, the plaintiff did then and there except."

Waldron & Devine, for appellant. Dixon & Dixon, for appellee.

GODDARD, J. (after stating the facts). The sole question presented is whether plaintiff's grantor, by adopting the north line of Tenth street as a boundary of the land conveyed to J. V. Farwell in the trust deed executed February 15, 1873, made an irrevocable dedication of the strip of land in controversy as a public street. We are relieved from determining what effect should be given to such a description as evidencing the intention of Conley to make a dedication, or whether the court below was correct in its conclusion that "Conley manifested by the recitals in said deed a present intent, then and there, to make an irrevocable dedication of the land in controversy to the public, as a street," since, under the rule announced in City of Denver v. Denver & S. F. Ry. Co., 17 Colo. 583, 31 Pac. 338, to constitute a valid common law dedication there must be an acceptance, either express or implied. Justice Elliott, speaking for the court in that case, said: "To constitute a road a public highway at com mon law, there must be both a dedication and an acceptance, either express or implied. Unless otherwise provided by statute, a dedication without acceptance is, in law, merely an offer to dedicate; and such offer does not impose any burden nor confer any right upon the public authorities, unless the road is accepted by them as a highway." Until acceptance, therefore, the description of the land by Conley in the trust deed to Farwell, if deemed sufficient to show the animus dedicandi, was a mere offer, and did not constitute an effectual dedication. The court below found expressly "that the city of Pueb

lo, or the former town of Pueblo, has never, by any formal or informal act, accepted the land in controversy as a street." It is clear, therefore, that the subsequent conveyance of the land by Conley to plaintiff was a revocation of the offer to dedicate the same as a street, if such an offer on his part may be inferred from the description in the trust deed, in the absence of a plat showing a street covering the premises in dispute, there having been no acceptance by the appellee at the time of such conveyance. City of Eureka v. Crohgan, 81 Cal. 524, 22 Pac. 693; People v. Reed, 81 Cal. 70, 22 Pac. 474. We think the doctrine announced in City of Denver v. Denver & S. F. Ry. Co., supra, is decisive of this case; and, upon the facts found, appellee has no right to use the land in controversy as a public street without making compensation to appellant therefor. For the foregoing reasons, the judgment of the court below will be reversed, and the cause remanded, with instructions to enter judgment in accordance with this opinion. Reversed.

(20 Colo. 522) OTERO CANAL CO. v. FOSDICK. SAME v. HUNGERFORD. (Supreme Court of Colorado. Feb. 8, 1895.) CHANGE OF VENUE-WAIVER OF ERROR-EMINENT

DOMAIN-REPORT OF COMMISSIONERS.

1. An error of the county court in transferring an action from it to the district court is waived by entering a general appearance and proceeding to trial without objecting in the latter court. if it has jurisdiction of the action.

2. Where commissioners appointed to compute the damage to land show by their report that they understood that the fee of the land to be taken was not in the defendant, it will be assumed that the award of damages was not for a greater interest than that actually held by defendant, though their report gives "the value of the land or property actually taken"; this statement being required by Mills' Ann. St. § 1732.

Appeal from district court, Otero county.

Action by the Otero Canal Company against Henry M. Fosdick is consolidated with an action by the same plaintiff against C. H. Hungerford to secure a right of way through defendant's land under the eminent domain statute. From an order of the district court overruling motions and exceptions of plaintiff to report of commissioners appointed, and a rule denying a motion for an amended report of the commissioners, plaintiff in each action appeals. Affirmed.

B. L. Carr, for appellant. M. B. Gerry, for appellees.

HAYT, C. J. This action was instituted by appellant under the eminent domain statute, for the purpose of securing a right of way for a ditch about to be constructed through the appellees' lands. At the inception of the proceedings, there were two cases commenced in the county court of Otero county, and afterwards taken to the district