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the ballots themselves and a canvass of the ROUSE, J. (dissenting.) I cannot concur in ballots made by the election officers, the bal

the opinion in this case. An "unconfirmed lots are controlling." The canvass of the

Mexican land grant" was listed as the property votes by the board of inspectors is prima

of Maish & Driscoll, and assessed. They failed

to pay their taxes, and judgment therefor was facie evidence of the result of the election, rendered against them in the district court, and but the canvass may be corrected by the bal- from that judgment they appealėd. By the lots themselves. People v. Van Cleve, 1 opinion it is declared that, inasmuch as Maish Mich. 362; Cooley, Const. Lim. (6th Ed.) 788.

& Driscoll had not paid the taxes on the prop. We find nothing in the Skerrett Case, 2 Pars.

erty which they owned, and wbicb was proper. Eq. Cas. 509, in the Kneass Case, Id. 561,

ly assessed, even though the said uncontirmed

Mexican land grant was not subject to taxes, in the Carpenter Case, Id. 537, or in Whipley the judgment should be affirmed. The case of v. McKune, 12 Cal. 352, cited in respondent's Railway Co. v. Patterson (Mont.) 24 Pac. 704, is brief, contrary to the rule that the ballots are cited as an authority in support thereof. The primary and controlling evidence. In the case cited was an application for an injunction. Kneass Case the court say: “The court will

It was shown by the bill that the petitioner not, on a general request, order the ballot

owed a part of the taxes; and, further, that he

had not applied to the proper tribunal to have boxes to be recounted, without some specific the errors corrected; hence the bill was discharge or allegation of fraud or mistake." missed. The case at bar is quite different from The questions discussed and decided in these that case.

This judgment should be reduced four cases related to the sufficiency of the by the amount of the taxes assessed on the said allegations of the complaint or petition, and

grant, provided said grant be not subject or lia

ble for taxes. I cannot understand by reason not to the competency or materiality of the ballots as evidence; and respondent's attor

or authority how a judgment for taxis for a cer.

tain amount must be upheld in the full amount neys in fact attempted to justify the ruling because the party against whom the judgment upon the ground of the insufficiency of the was rendered has failed to pay the amount complaint herein. But the only objection to

which he justly owes. I contend that the said which the complaint is possibly open is not

unconfirmed Mexican land grant is the propthat there is an entire absence of necessary

erty of the United States, and that the tax there.

on is void. Colorado Co. v. Commissioners, 95 facts, but rather that they are inartistically U. S. 265; way Co. v. Prescott, 16 Wall. stated in the form of conclusions of law. 603; Railway Co. v. McShane, 22 Wall. 444. Aside from the fact that the ruling exclud- The right of Maish & Driscoll to the so-called ing the ballots was not at all placed upon the grant” or “claim” has not been recognized by insufliciency of the pleading, it appears that

the government in any way. It has not been upon the motion to quash, which amounted

surveye?. It has not been segregated from the

other public lands. No possession or right of to a demurrer, the court had held' the com

possession thereto is in Maish & Driscoll. They plaint sufficient. Having done this, justice have no right or claim thereto that can be en. requires that an appellate court should also forced in the courts. Astiazaran v. Mining Co. treat it as sufficient, as otherwise the plead. (Ariz.) 20 Pac. 189. Certainly Maish & Driscoll er would lose all right of amendment.

have not a right in said land that can be taxed. In the case at bar the court ruled that

Having no title and no possession. I do not un.

derstand what they have in connection with the plaintiff's complaint was sufficient, but

the so-called "grant," separate and distinct that the plaintiff must prove that ballots from the land, that can be taxed. The judg. were called and counted for Bray which ment should be reduced by the amount of the should have been counted for Schneider, and

taxes levied on the said grant. ruled that the ballots were “utterly immate

(21 Colo. 29) rial" as evidence to prove these alleged facts.

In re EIGHT-IIOUR LAW. The ruling that the ballots were immaterial,

(Supreme Court of Colorado. Feb. 21, 1895.) and the ruling excluding them as evidence,

SUPREME COURT - CONSTITUTIONAL QUESTION and the order dismissing the case are error; SUBMISSION BY LEGISLATURE--Eigit-Hour LAW and such rulings and order and the judg. -CLASS LEGISLATION-RIGHT TO CONTRACT. ment of the district court should be reversed.

When the opinion of the supreme court It is so ordered.

is desired by the general assembly as to the

constitutionality of a bill or other legislation, BIGELOW, C. J., and BELKNAP, J., con- the submission must show that it is pending cur.

legislation, and that it commands the support

of the majority of one house, and it must spe. (4 Ariz. 186)

citically state the particular provisions of the la re DELINQUENT TAX LIST OF PIMA constitution which give rise to the constitutionCOUNTY.

al question. Appeal of MAISH et al.

On Second Application.

1. The legislature cannot single out the (Supreme Court of Arizona. Jan. 17, 1891.)

mining, manufacturing, and smelting industries TAXATION OF MEXICAN GRANTS --OBJECTIONS- of the state, and impose upon them restrictions TENDER OP Tax.

as to the hours of labor of their employes, from A taxpayer may object to a tax on un- which other employers are exempt. confirmed lexican grants, on the ground that 2. A bill prohibiting mining and manufacthe title thereto is in the public, without first

turing companies to contract with their tendering the taxes due on other of his proper- ployes for labor for more than eight hours : ty included in the assessment. Per Rouse, J.,

day is in violation of the right of parties to dissenting.

make their own contracts, under the constitu

tion of the United States (fourteenth amendDissenting opinion. For majority opinion, ment) and the bill of rights of the constitution Bee 37 Pac. 870.

of Colorado.

em.

Question submitted by the house of repre- not have been the intention to authorize an sentatives to this court, as to the legality of ex parte adjudication of individual or cora law providing that eight hours shall con- porate rights by means of a legislative or stitute a day's labor.

executive question. Parties must still adThe opinion of the court is in response to judicate their rights in the ordinary and the following preamble and resolution: regular course of judicial proceeding. Nor

"Whereas, a bill for an act declaring eight could purpose have been to exact, in rehours labor, a day's work, is now pending in sponse to a legislative inquiry, a wholesale the house of representatives of the Tenth general assembly; and,

exposition of all constitutional provisions re"Whereas, there is a difference of opinion lating to a given general subject, in anticipaamong the members of the house as to the legal- tion of the possible introduction or passage ity of such a measure should it provide that it should only apply to laborers employed and work

of measures bearing upon particular branching in mines, smelters and factories in this state;

es of such subject." "Be it therefore resolved, that the supreme When the question involves a construction court of the state is requested to give an opin

of some provision of the state or national ion in writing for the guidance of the house. in answer to the following question: Would a law

constitution, the particular provision should if enacted, providing that eight hours shall consti- be pointed out, and the number of the sectute a day's labor in all mines, factories and smel- tion and article wherein it appears, given. ters in this state, be constitutional and legal ?”

In answer to further interrogatories, the PER CURIAM. The question in this in- following opinion was returned: stance is accompanied by a copy of holise

PER CURIAM. It is not competent for the bill No. 191. It will therefore be assumed

legislature to single out the mining, manufacthat the house desires advice with reference turing, and smelting industries of the state, and to this bill. It does not appear, however,

impose upon them restrictions, with reference to

the hours of their employes, from which other either by the question itself, or the pream

employers of labor are exempt. An act such ble, that the inquiry relates in any way to as proposed would be manifestly in violation of the constitutionality of the bill, as now pend. the constitutional inhibition against class leging before the house, the first section of

islation. The bill submitted also violates the

right of parties to make their own contracts,which provides; “Section 1. Eight hours a right guarantied by our bill of rights, and proshall constitute a legal day's work for all tected by the fourteenth amendment to the conclasses of mechanics, workingmen and labor

stitution of the United States. See opinion re

cently given upon In re House Bill No. 203, ers employed in any occupation in the state

39 Pac. 431. For an able and comprehensive of Colorado." We infer from the communi- exposition of the constitutional provisions apcation that it is the desire of the house to plicable to the subject, your attention is inhave the opinion of this court upon some

vited to the recent case of Low v. Printing Co.,

41 Neb. 59 N. W. 362. proposed amendment, not as yet offered, but about which there is a difference of

(21 Colo. 14) opinion among the members of the house.

In re FIRE, POLICE & EXCISE COM’RS If we are correct in this, the amendment

OF CITY OF DENVER. should be first offered, and a copy submitted

(Supreme Court of Colorado. Feb. 18, 1895.) to the court, as the inquiry must have ref.

SUPREME COURT-Review OF QUESTION SUBerence to pending legislation. Moreover, we

MITTED. think the solemn occasion contemplated by

In an ex parte proceeding, the supreme the section of the constitution, by virtue of court will not pass upon the title to an office, which the question is propounded, cannot the right to property, or the construction of be said to have arisen until the bill has pro

an existing statute, in answer to either an ex

ecutive or legislative question. gressed sufficiently to show some probability of its passage by at least one house of the In re appointments by the governor of fire, general assembly. For the court to investi

police, and excise commissioners of the city gate the constitutionality of a bill that did

of Denver. The resolution and question sub. not command the support of at least a ma

mitted by the senate are as follows: jority of one house would be a waste of

“Whereas, á question has arisen involving the

duty of the senate, in the matter of its action time.

upon certain nominations which have been preAside from the foregoing, the question is sented by the governor for the action of the not sufficiently specific. If there is a doubt

senate: Therefore be it resolved, that the folas to the constitutionality of proposed legis

lowing question be submitted to the supreme

court by the senate, with a request for an opinlation suggested by any member, such doubt

ion thereon: The governor having, under secmust be occasioned by some particular pro- tion 45 of the charter of the city of Denver of vision or provisions of the constitution. This

1893, during a recess of the senate, appointed

the fire and police and excise commissioners instrument contains hundreds of sections,

mentioned in said section, by reason of a vacanand, unless the inquiry be specific, the court cy occurring therein, do such appointees continmight spend days and weeks in the investi- ue in office until the end of such term, or until

the convening of the senate, as provided in secgation of provisions that have occasioned

tion 6 of article 4 of the constitution?” no doubt whatever in the minds of the members of the house. In this connection, the

PER CURIAM. The question propounded language of the court in response to an in- calls for an opinion upon the duration of the terrogatory propounded by the Fifth general term of office of the present fire, police, and assembly is particularly in point: It could excise commissioners of the city of Denver.

It involves a construction of certain provi- certain fences and structures thereon, and sions of the charter of the city of Denver, as converting the same into a public street, well as of section 6, art. 4, of the constitu- without making compensation therefor. Aption. It therefore belongs to a class of ques- pellee denies the right of appellant to the retions which we do not feel at liberty to an- lief sought, upon the ground that appellant's swer, nor could we do so without overruling grantor dedicated said premises to the town a long line of carefully considered decisions of Pueblo, as a public street, in 1873, and inupon the subject. Commencing with the sists that by virtue of said dedication it has opinion in Re Irrigation, 9 Colo. 620, 21 Pac. the lawful right, as successor to the town of 470, down to and including the case of In Pueblo, to enter upon and use the same as a re Fire, etc., Com’rs, 19 Colo. 482, 36 Pac. public street. Upon the testimony intro234, this court, in obedience to its constitu- duced, the court below made findings of fact, tional duty, has uniformly declined to pass and rendered judgment thereon, as follows: upon the title to an office, or the right to (1) That prior and up to the year 1870 one property, in an ex parte proceeding, in an- Josiah F. Smith was the owner of the quarswer to an executive or legislative question. ter section of land out of which this tract While we will be found at all times ready was carved, deriving his title from the Unit. to furnish such assistance to the legislature ed States government. (2) That on the 22d as may be in our power, the rule requiring day of March, A. D. 1870, the town of Pueblo the title to an office to be adjudicated in ac- was organized as a municipal corporation uncordance with the ordinary and usual course der the laws of the territory of Colorado. of procedure provided by statute is deemed (3) That the land in controversy was in the absolutely. essential to the preservation of corporate limits of the said town of Pueblo public and private rights. It is not believed during all the times and dates of the rethat the people, in adopting the amendment spective deeds under which the defendant by virtue of which the executive and either claims. (4) That all the land lying east of house of the general assembly may submit to Santa Fé avenue, in said city, and north of the court important questions upon solemn Ninth street and west of Summit street, for occa ons, intended to sanction a practice a distance of about sixteen hundred feet, has whereby the rights of property, or the title never been platted into lots and blocks or to an office, or the construction of an existing streets by any recorded plat executed by the statute, should be determined in an ex parte owner or owners of such land. (5) That, at proceeding, in answer to either an executive the date of the execution of the deeds relied or legislative question. For these reasons, upon by the defendant to prove dedication, we respectfully request the senate to with all the land lying east of Santa Fé avenue draw the question submitted.

and north of Ninth street, to the Fountain, was vacant and unplatted ground, until the

date of the recording of the plat of Fountain (21 Colo. 102)

addition, (6) That, until the commence TRINE V. CITY OF PUEBLO.1

ment of this suit, there were no streets grad(Supreme Court of Colorado. Jan. 21, 1895.) ed upon any of the land lying east of Santa HigawAY-DEDICATION-ACCEPTANCE.

Fé avenue and north of Ninth street, and To constitute a valid common-law dedi

bounded upon the east by the Fountain, but cation of land for a highway, there must be an that since the commencement of this suit acceptance by the public authorities.

said Summit street has been made passable Appeal from district court, Pueblo county.

from Eighth street to a point about fifty feet Action by Z. V. Trine against the city of

beyond the land in question. (7) That the Pueblo to restrain defendant from converting

character of the ground as it at present exland in possession of plaintiff to a public

ists, for the entire length of Tenth street exstreet without making compensation there

tended east from Santa Fé avenue and across for. From a judgment for defendant, plain

the Fountain, is such that it could not be tiff appeals. Reversed.

traveled upon safely as a street, and that it The appellant, as the owner in fee of the

is scarcely passable. (8) That the land in following land, situate in the city and coun

controversy was practically a cul-de-sac; ty of Pueblo, and described as follows: "Be

that the same was never surveyed or staked ginning at a point on the east line of Santa

off as a street,-that is, was never graded or Fé avenue two hundred and fifty-six (236)

worked in any manner by the city or town of feet north of the north line of Ninth street,

Pueblo,-and from the evidence, and the nat. in the city of Pueblo, in said county; thence

ural growth of sage brush from a personal north, along the east line of said Santa Fé

view of the same by the court, it is evident avenue, eighty (80) feet; thence east three

that the same was never traveled its entire hundred and fifty-two (352) feet; thence

length, from east to west, by anybody, with south eighty (80) feet; thence west three hun

a vehicle of any kind. (9) That the public dred and fifty-two (352) feet to the place of

has never traveled upon the land in controbeginning,"-brought this action to enjoin the

versy as a street, but that different roads appellee from tearing down and destroying

have been made across the same by persons

who evidently were traveling in the direction 1 Rehearing denied February 18, 1895.

which said street would run, and that the travel across the same was of the same kind of beginning. The court further finds that that the adjacent and other vacant lands of at the time of the execution of this trust the city are frequently crossed by the public. deed to said Farwell, trustee, the grantor, (10) That Lewis Conley, grantor of the plain- Lewis Conley, was not then and there the tiff, never made a plat of the land in con- owner of any estate or interest whatsoever troversy, nor did he in any deed refer to any in or to any part or portion of what is de: plat, of any kind or description, made by nominated in said deed, by way of descripany other person. (11) That the city of Pueb- tion, as 'Summit Street,' nor did said Conley lo, or the former town of Pueblo, has never, then and there claim any ownership therein, by any formal or informal act, accepted the nor was said Conley the owner of any part land in controversy as a street. (12) That or portion of the premises so designated as Lewis Conley did not return the land in con- ‘Summit Street at any time prior thereto. troversy for taxes, nor, it is shown by the The court further finds that, as a matter of evidence, did he ever know that the public | fact, there was no public street in existence, had in any manner used or driven across the known as 'Summit Street,' and extending same, even to the extent as indicated in the northward beyond the premises in controabove findings. (13) That the first deed versy, so as to abut upon any part or portion which forms a part of the chain of title un- of the premises described in and conveyed by der which the defendant claims is from Jo- the last above mentioned trust deed; nor, as siah F. Smith and wife to 0. H. P. Baxter, of a matter of fact, had said alleged Summit date November 9, 1871, which, by its recital, street been dedicated in any way as a street, calls for the north line of Tenth street from upon any part or portion thereof which would where it had theretofore been platted, a dis- abut upon any part or portion of the premises tance of fifty-nine (59) feet west from Santa so described in and conveyed by said last Fé avenue; that said deed, together with the above mentioned trust deed, nor any part or plat of Smith's addition, filed for record July portion of the premises so described as 'Sum17, 1871, would make Tenth street a public mit Street' in said trust deed ever used, laid street extending east to its intersection with out, or in any manner in existence, as a Santa Fé avenue. (14) A deed (No. 2) from street, prior to or at the time of the execution Josiah F. Smith to Lewis Conley, dated No- of said last-mentioned trust deed. (17) The vember 9, 1872, describes the tract of land court further finds that said Lewis Conley lying east of Santa Fé avenue, and bounded never made any conveyance of or concerning thereon north of Ninth street, 352 feet wide the property in controversy to any person or and 566 feet long, and contains this addition- persons until he executed the deed to the al recital: 'Being a piece of land comprising plaintiff in this action, of and to the same; nor about two blocks, of the size of blocks in the did he exercise any act of control or ownertown of Pueblo, with the width of a street ship over the same from 1873 to the date of eighty feet wide, to wit, Tenth street, lying the execution of the conveyance to said plainbetween said blocks.' (15) That conveyance tiff. (18) That the two trust deeds above No. 3 is a trust deed from Lewis Conley to named, to property lying on the north and Henry C. Thatcher, trustee, of date December south side of the premises in controversy, 3, 1872, which describes the land as follows, were foreclosed, and deeds executed to the to wit: 'Commencing at the point of inter- purchaser at foreclosure sale, and duly resection of the east boundary line of Santa corded, in the year 1877. (19) That the Fé avenue and the north boundary line of plaintiff owns the fee in the premises in conNinth street, in the town of Pueblo; running troversy. (20) The court further finds that thence north, along the east boundary line on June 8, 1872, the said Lewis Conley filed of Santa Fé avenue, 256 feet; thence east a plat designated 'Conley's Addition to East 332 feet; thence south 256 feet; thence west Pueblo,'—an addition to the town of Pueblo 332 feet, to the place of beginning,'-given to the east of the land in controversy,---showto secure the First National Bank, etc. (16) ing a street thereon corresponding with the The next .conveyance of said chain of title lines of Tenth street, if extended due east. made by Lewis Conley and wife to John V. (21) That the court further finds that by the Farwell, of Chicago, as trustee, of date Feb- said trust deed heretofore referred to, made ruary 15th, 1873, to secure a note for $2,000. by Lewis Conley and wife to John V. FarThe description of the property therein is as well, of Chicago, as trustee, of date Februfollows: "All of the certain lot, piece, or par- ary 15, 1875, that said Lewis Conley thereby cel of land situate, lying, and being in Pueb- manifested by the recitals in said deed a lo, county of Pueblo, territory of Colorado, present intent then and there to make an known and described as follows, to wit: irrevocable dedication of the land in controCommencing at the northeast corner of Santa versy to the public, as a street; to which findFé avenue and Tenth streets, in the said ing of fact counsel for plaintiff then and town of Pueblo, and running north, along there excepted. the east line of Santa Fé avenue, 229 feet, “Wherefore, it is adjudged and decreed by to a point; thence east 352 feet, to the west the court, upon the findings of fact above line of Summit street; thence south, along stated, that, under the law applicable to such said line, to Tenth street; thence west, along facts, the grantor of the plaintiff herein, long the north line of Tenth street, to the place | prior to the time when plaintiff acquired title to the land in controversy from said grantor, lo, or the former town of Pueblo, has never, had irrevocably dedicated said parcel of land by any formal or informal act, accepted the to public use as a street, which dedication land in controversy as a street." It is clear, is binding upon said plaintiff; that the claim therefore, that the subsequent conveyance of said defendant to the said parcel of land, of the land by Conley to plaintiff was a revoas a street, by virtue of a common-law dedi. cation of the offer to dedicate the same as a cation, is valid; that the said defendant has street, if such an offer on his part may be inright and authority, in law, to enter upon ferred from the description in the trust deed, said parcel of land, and tear down and re- in the absence of a plat showing a street covmove therefrom any and all structures which ering the premises in dispute, there having said plaintiff has erected thereon, and con- been no acceptance by the appellee at the vert the said parcel of land into a públic time of such conveyance, City of Eureka v. street, without making any compensation Crohgan, 81 Cal. 524, 22 Pac. 693; People therefor to the plaintiff, and without being v. Reed, 81 Cal. 70, 22 Pac. 474. We think the guilty of trespass or any wrong whatsoever. doctrine announced in City of Denver v. It is further ordered, adjudged, and decreed Denver & S. F. Ry. Co., supra, is decisive of by the court that the injunction heretofore this case; and, upon the facts found, appelgranted in this action be, and the same is lee has no right to use the land in controversy hereby, dissolved, and it is further ordered, as a public street without making compen. adjudged, and decreed that the said defend- sation to appellant therefor. For the foreant recover against the said plaintiff its costs going reasons, the judgment of the court beîn and about its suit in this behalf expended, low will be reversed, and the cause remandand judgment is entered accordingly; to ed, with instructions to enter judgment in which findings of fact and conclusions of law accordance with this opinion. Reversed. thereon, as well as the final judgment rendered herein, the plaintiff did then and there except."

(20 Colo. 522)

OTERO CANAL CO. v. FOSDICK. Waldron & Devine, for appellant. Dixon &

SAME v. HUNGERFORD. Dixon, for appellee.

(Supreme Court of Colorado. Feb. 8, 1895.)

CHANGE OF VENUE-WAIVER OF ERROR-EMINENT GODDARD,J. (after stating the facts). The

DOMAIN-REPORT OF COMMISSIONERS. sole question presented is whether plaintiff's

1. An error of the county court in transfergrantor, by adopting the north line of Tenth ring an action from it to the district court is street as a boundary of the land conveyed to waived by entering a general appearance and J. V. Farwell in the trust deed executed Feb

proceeding to trial without objecting in the lat

ter court, if it has jurisdiction of the action. ruary 15, 1873, made an irrevocable dedica

2. Where commissioners appointed to comtion of the strip of land in controversy as a pute the damage to land show by their report public street. We are relieved from deter

that they understood that the fee of the land

to be taken was not in the defendant, it will be mining what effect should be given to such a

assumed that the award of damages was not description as evidencing the intention of for a greater interest than that actually held Conley to make a dedication, or whether the by defendant, though their report gives “the court below was correct in its conclusion that

value of the land or property actually taken";

this statement being required by Mills' Ann. "Conley manifested by the recitals in said

St. § 1732. deed a present intent, then and there, to

Appeal from district court, Otero county. make an irrevocable dedication of the land in

Action by the Otero Canal Company controversy to the public, as a street," since,

against Henry M. Fosdick is consolidated under the rule announced in City of Denver

with an action by the same plaintiff against v. Denver & S. F. Ry. Co., 17 Colo. 583, 31

C. H. Hungerford to secure a right of way Pac. 338, to constitute a valid common law

through defendant's land under the eminent dedication there must be an acceptance,

domain statute. From an order of the diseither express or implied. Justice Elliott,

trict court overruling motions and exceptions speaking for the court in that case, said: “To constitute a road a public highway at coli

of plaintiff to report of commissioners apmon law, there must be both a dedication and

pointed, and a rule denying a motion for an

amended report of the commissioners, plainan acceptance, either express or implied. Un

tiff in each action appeals. Affirmed. less otherwise provided by statute, a dedication without acceptance is, in law, merely an B. L. Carr, for appellant. M. B. Gerry, offer to dedicate; and such offer does not im- for appellees. pose any burden nor confer any right upon the public authorities, unless the road is HAYT, C. J. This action was instituted accepted by them as a highway." Until ac- by appellant under the eminent domain statceptance, therefore, the description of the ute, for the purpose of securing a right of land by Conley in the trust deed to Farwell, way for a ditch about to be constructed if deemed suficient to show the animus de- through the appellees' lands. At the incepdicandi, was a mere offer, and did not con- tion of the proceedings, there were two cases stitute an effectual dedication. The court commenced in the county court of Otero below found expressly "that the city of Pueb- county, and afterwards taken to the district

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