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cense from the county is no defense to this action. If the jurisdiction of the town and county is concurrent, the defendant must produce a license from both before he can legally engage in the traffic. Heinssen v. State, 14 Colo. 228, 23 Pac. 995, and authorities there cited.

Assuming that section 4403, Mills' Ann. St. gives the town exclusive authority, it is said that the location of the defendant's place of business makes Argo and Elyria "adjoining" towns, within the purview of the statute, and so takes this case out of its operation, and revives the jurisdiction of the county of Arapahoe. Without expressing an opinion upon this point, it is sufficient to say that the defendant, having no license from the town of Argo, cannot avail himself of this defense, if any it be, and this case should be decided as though the town of Argo were not in existence.,

The attack upon the validity of the ordinance is not successful. The record of February 17, 1891, is not a model, but it appears therefrom, with reasonable certainty, that all the members of the town board were present at the meeting, and that the entire six voted for the ordinance, upon its passage, and that it was passed unanimously. The clerk, in writing the record, confuses the dates, by making it appear that the ordinance was passed August 28, 1890, instead of February 17, 1891, but a fair construction of the entire record leaves no doubt that the statute in question was complied with. Even if the original record showed that the ordinance was invalid for the reason alleged, the supplemental record shows a literal and exact compliance with the statute. The defendant having acquired no rights between the time when the original record was made up and the time of the supplemental record, the introduction of the latter in evidence was proper. Brophy v. Hyatt, 10 Colo. 226, 15 Pac. 399; Horr & B. Mun. Ord. §§ 58, 59, and authorities there cited; City of Solomon v. Hughes, 24 Kan. 211; Barr v. Village of Auburn, 89 Ill. 361; Dill. Mun. Corp. (4th Ed.) § 297. For the reasons above stated, the judgment should be reversed. Reversed.

(20 Colo. 552)

WETTENGEL v. CITY OF DENVER. (Supreme Court of Colorado. Feb. 8, 1895.) ORDINANCE-DISTRIBUTING HANDBILLS-POLICE

POWER-EVIDENCE-INSTRUCTIONS.

1. An ordinance of a city prohibiting the distribution of such handbills on the streets as those receiving them would naturally throw on the street, and which are calculated to frighten or endanger horses, is a valid exercise of the police power given to a city by its charter (Sess. Laws 1885, p. 85, § 20, subd. 40), providing that the council may prevent any practice having a tendency to frighten horses, and the general welfare clause.

2. One who hands to another a handbill which the latter will naturally throw into the street violates an ordinance prohibiting the distribution of handbills and circulars which the

person taking will naturally throw into the street. 3. Under Code 1887, § 187, subd. 6, requiring instructions to be in writing, the oral instruction of a jury is error, defendant objecting.

4. On a trial for violating an ordinance prohibiting the distribution of handbills in the street which the person receiving would probably throw into the street, the question whether the handbills distributed were within the ordinance is for the jury.

Error to county court, Arapahoe county.

John Wettengel, convicted in a police court of the violation of a city ordinance, upon appeal to the county court was again convicted, and from the judgment therein brings error. Reversed.

He ap

The plaintiff in error was found guilty in the police court of the city of Denver of the violation of an ordinance of said city which prohibited the distributing of handbills and circulars upon the streets. pealed to the county court of Arapahoe county, and upon trial there, before the court and a jury, was also found guilty, and sentenced to pay a fine of three dollars, and costs of the prosecution. From that judgment he brings the case to this court upon writ of error.

Section 2 of the ordinance upon which this prosecution was based is as follows: "No person shall hand to or offer to any traveler or other person traveling along or upon any street, alley, lane, public place or enclosed public grounds in the city of Denver, any handbill, paper, advertisement, circular or other thing of such nature or character that the traveler, person or persons taking the same will naturally or probably throw or deposit the same immediately after so taking the same upon or litter or obstruct any street, alley, lane, public place or enclosed public grounds in said city, or where the same may be or may become calculated to frighten or injure or endanger horses or other animals, provided that this ordinance shall not be construed to interfere with or restrain the selling or distributing of newspapers or periodicals, but such sales may be carried on as now permitted and regulated by law." Section 3 of the ordinance provides the penalty for the violation of the same, which is a fine of not less than $3 nor more than $100 for each offense. The provisions of the city charter which, it is claimed, give to the council power to pass this ordinance, are section 20, subd. 40, of the city charter, on page 85, Sess. Laws 1885, which, in substance, gives the council power to prevent "any practice having a tendency to annoy persons passing on the streets or sidewalks, or to frighten teams or horses," and what is commonly known as the "General Welfare Clause," which gives the city council power "to make all ordinances which it may deem necessary or requisite for the good order, health, good government, and general welfare of the city."

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CAMPBELL, J. (after stating the facts). There are a number of errors assigned, the principal one of which is the invalidity of the ordinance. There are, however, two other questions which will be considered, the determination of which will work a reversal of this judgment; but, inasmuch as there are a number of cases pending in the court below which depend upon the decision in this, we have concluded to determine the main point involved, and pass upon the constitutionality of the ordinance.

The evidence tends to show that on the night of August 6, 1890, on Larimer street, in the city of Denver, between Eighteenth and Nineteenth streets, the defendant, with others, distributed to travelers on the street, whom he could induce to take the same, 600 or 700 circulars or handbills, about 7 by 10 inches in size, which gave the names of the 6 o'clock and Sunday closing houses in Denver dealing in ready-made clothing and boots and shoes, and urged the public to patronize them. At the same time the receivers of these circulars were requested not to drop them on the streets, and some of those to whom such requests were made complied therewith, but others dropped them on the street. The circulators endeavored to pick up such as were thrown away, but, notwithstanding this, some of these circulars were deposited on the street, and found there and on the sidewalks the following morning.

The validity of this ordinance is assailed on the ground that it is unreasonable. It is contended that it is an "attempt to regulate and restrain the conduct of the citizen in matters of mere indifference, without any good end in view"; that it aims to prohibit the carrying on of a business which in general, and in itself, is lawful. The legislature not having conferred upon the city the express authority to pass an ordinance prohibiting the distributing of circulars on the streets, the power, if it exist at all, must be derived from the general welfare clause, and the power given to prevent "practices having a tendency to frighten teams or horses." The reasonableness of this ordinance, therefore, is a matter for judicial determination. No useful purpose would be subserved by following counsel for plaintiff in error in his discussion of the competitive wage system, of the conflicting views of speculative philosophers on sociology, or of the rights of employers and employés, all of which is not germane to the present discussion. The right of clerks to combine to secure, by all lawful means, shorter hours or higher wages, is unquestioned, and needs no argument to support it. Our hearty concurrence in all that is said by counsel in this part of the argument would not lead us to a decision of the propositions which are necessarily involved in the determination of this case. We proceed at once to a discussion of the main point, viz. the validity of the ordinance:

the distributing to travelers on the street of any circular or handbill, irrespective of its character, it might be held unreasonable, and come within the principle announced in the case of People v. Armstrong, 73 Mich. 288, 41 N. W. 275. The section of the ordinance held unconstitutional in that case is, in substance, as follows: "No person shall himself, or by another, circulate, distribute or give away circulars, handbills or advertising cards of any description in or upon any of the public streets and alleys of said city." As the court in that case said, "the offense is made complete in itself by the mere act of, distributing or giving away these enumerated articles." For that reason, among others, the ordinance was declared invalid. In the ordinance before this court such are not its provisions, but the prohibition applies only to the distributing of handbills or circulars of such a character or nature that the trayeler will naturally or probably throw the same, immediately after so taking them, upon or litter the street, or place the same where they may be or may become calculated to frighten or injure or endanger horses. So that, by the very terms of the ordinance, the offense is made to consist, not in the mere act of distributing handbills or circulars, but in the distributing of such handbills or circulars as will probably or naturally be thrown away, and result in the littering of the street or frightening of horses. In Frazee's Case, 63 Mich. 396, 30 N. W. 72, commonly known as the "Salvation Army Case," it was held that an ordinance which prohibited all persons from parading or riding in the streets of Grand Rapids with musical instruments, etc., without having first obtained the consent of the mayor, was void, because it sought to "suppress what in gen eral is perfectly lawful, and leaves the power of permitting or restraining processions to an unregulated official discretion." These cases can, we think, be distinguished in principle from the one now before us. In the distributing of circulars or handbills which are, in themselves, unobjectionable, or in the parading of the streets with musical instruments, there is nothing unlawful, and an absolute prohibition of the same might be beyond the power of the city council to enforce; but the safety of the people who use the streets and sidewalks does require some restraint upon indiscriminate distributing of handbills and circulars of such a nature as have a tendency to frighten horses, or which will litter the streets. It is a matter of common knowledge that nothing is more likely to frighten horses than pieces of paper carried by the wind through the streets around and about the places where such horses may be. Any practice which naturally tends to cause the littering of the street with loose papers, which, flying about, will cause fright to horses, and so tend to the injury of the public, is not a lawful practice, and the en

If the object of this ordinance is to prohibit forcement of this ordinance will discourage

and put a stop thereto. In another view of the case, this ordinance is reasonable. The throwing of loose handbills and circulars into the street is certainly reprehensible, and is a matter for police regulation. If one, therefore, hands to another a handbill which the latter naturally will at once throw into the street, the former is a party to the prohibited act. The one who distributes the circular to the one who actually drops it in the street, to the injury of the public, is just as guilty as he who directly drops the paper. Indirectly, he contributes to the wrong, and should be held liable the same as if he himself threw into the street the objectionable article. The evident object of the ordi-· nance in question is to prevent the littering of the street and the frightening of horses. It certainly tends to the accomplishment of one of the purposes for which the city was incorporated, viz. the protection of its inhabitants from danger as they pass along its streets, engaged in their business. Such an object is certainly legitimate, and the means employed are reasonable, and surrounded by sufficient safeguards. The ordinance is free from the objections which seem to prevail with the supreme court of Michigan in the cases cited. With the construction which we have put upon the section under consideration, "the actual operation of the ordinance in all cases which may be brought thereunder" cannot result in the injustice which is urged as likely to follow its enforcement. We hold the ordinance valid, as a reasonable exercise of the police power of the city, delegated to it by the legislature.

There are, however, errors apparent in the record which compel a reversal of this case. Over the objection of defendant's counsel, the court orally instructed the jury. error. Lee v. Stahl, 9 Colo. 208, 11 Pac. 77; Code, 1887, § 187, subd. 6.

This is

Defendant had the right, so far as this ordinance is concerned, to distribute any circulars that were not of the objectionable character enumerated. The evidence, either of the plaintiff or defendant, should show that the circulars or handbills distributed by the defendant came within the enumeration of those whose distribution the ordinance prohibited. Whether or not they were of such a character was a question of fact, for the jury, not a matter of law, for the court. The jury must determine the questions of fact,-not only that the defendant distributed circulars as charged in the complaint, but also that these circulars were of the character specified as coming within the provisions of the ordinance. In the charge to the jury the court below eliminated the latter proposition, and, in effect, directed the jury to find the defendant guilty if they believed from the evidence that the defendant, with others, merely distributed the circulars or handbills which were offered in evidence. It is apparent that the court, as a matter of law, determined that the circulars

which were distributed came within the prohibition of the ordinance, and in so doing it usurped the province of the jury. For these two errors committed by the court below the judgment should be reversed, and the cause remanded for a new trial. Reversed.

(5 Colo. A. 513)

SHAFER v. CHERRY. (Court of Appeals of Colorado. Feb. 11, 1895.) STATUTE OF FRAUDS-PROMISE TO PAY RENT.

The fact that a person rents a house for the use of another does not make his promise to pay the rent an agreement to pay the debt of another.

Appeal from Arapahoe county court.

Action by James A. Cherry against George O. Shafer for rent. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

George J. Humbert, for appellant. Fred L. Shaw, for appellee.

THOMSON, J. This suit was brought by Cherry against Shafer to recover the rent of a house belonging to Cherry, and occupied by Shafer's mother-in-law, Mrs. Straight. She had occupied the house for five months previous to May 1, 1892, but had paid no rent, and the furniture had been attached for the rent due. The suit was settled, and the attachment released, upon the execution to the plaintiff of a note for $200, by defendant's brother-in-law, guarantied to the amount of $150 by the defendant. Plaintiff then demanded possession of the house, declining to lease it longer to Mrs. Straight. Plaintiff's testimony was that he then, by an agreement between himself and the defendant, leased the premises at $40 per month, to the defendant, until the latter could get his furniture and his mother-in-law removed out of the house into one of his own houses; and that the premises were occupied under this arrangement from May 17th until August 23d. Defendant paid one month's rent, and no more. Defendant testified that his agreement was one of guaranty, and embraced only one month's rent, which he paid. The court found the facts to be with the plaintiff, and rendered judgment in his favor for the balance due.

It is contended that the agreement amounted to a promise by the defendant to answer for the default of another, and therefore, not being in writing, was within the statute of frauds. The court evidently accepted the plaintiff's version of the contract as the true one, and it must therefore be so accepted here. The agreement to which he testified involved no promise to answer for the debt or default of another. It was an original contract between the plaintiff and the de fendant. It is immaterial that the property was rented for the use of Mrs. Straight. The defendant was the lessee, and he alone was liable for the rent. The judgment will be affirmed. Affirmed.

(5 Colo. A. 511)

ROBERTS v. MORE. (Court of Appeals of Colorado. Feb. 11, 1895.) APPEAL-STRANGER TO JUDGMENT - JURISDICTION -EXCEPTIONS.

1. Where, on the petition of the husband of a decedent for the removal of the administrator of her estate on the ground that he procured his appointment by falsely representing himself as one of her creditors, the court hears evidence as to the indebtedness, and allows the claim, and takes no further action on the petition, the husband is not a party to the judgment, and cannot appeal.

2. The ground of an appeal being that the lower court had no jurisdiction of the action, it is unnecessary to preserve exceptions either to its rulings or judgment.

Error to district court, Lake county. J. W. More, husband of M. A. More, deceased, petitioned the county court for the removal of J. C. Roberts as administrator of his wife's estate, on the ground that he was not a creditor of her estate. After a hearing, the administrator's claim against the estate was allowed. J. W. More appealed to the district court, which reversed the judgment of the county court, and J. C. Roberts brings error. Reversed.

A. J. Sterling and A. S. Blake, for plaintiff in error. Geo. S. Phelps and N. Rollins, for defendant in error.

THOMSON, J. J. W. More, as husband of M. A. More, deceased, petitioned the county court of Lake county for the removal of J. C. Roberts, as administrator of her estate, and the revocation of his letters of administration, for the reason that he had obtained his appointment as administrator by falsely representing that he was a creditor of the estate, whereas he was not such creditor. The court thereupon ordered a hearing upon the demand filed by Roberts against the estate, appointing George S. Phelps to represent it and manage its defense, and upon the hearing found that the estate was indebted to the administrator in the sum of $101.88, and allowed his claim for that amount. No action was taken upon the petition for removal. From the judgment of allowance More prayed an appeal to the district court, which was allowed upon the filing of an appeal bond in the sum and within the time fixed by the court. More filed his bond accordingly, and afterwards, by leave of court, filed an amended bond. Roberts moved the court to dismiss the appeal on the ground that it was unauthorized by law. The court denied the motion, and proceeded to an adjudication of the demand of Roberts against the estate, rendering judgment against him upon the claim, and in favor of More for costs, from which judgment Roberts has prosecuted error to this court. We cannot conceive upon what theory this appeal was entertained. The judgment of the county court was against the estate. Roberts was plaintiff, and the estate defendant. More was not

a party to the proceeding in which the claim was adjudicated. The estate took no appeal, and was not before the district court. The district court could acquire no jurisdiction of the cause except upon appeal by the party aggrieved by the judgment. There is no provision for an appeal by a stranger to the record. It follows that the appeal was a nullity. The district court acquired no jurisdiction of the estate, or of the subject-matter of the controversy, and all its proceedings in the case were void. It was unnecessary to preserve exceptions to the rulings made by the district court or to its final judgment. The want of jurisdiction appears upon the face of the record, and the objection was not waived by failure to save exceptions. The judgment will be reversed, with direction to the court below to dismiss the appeal. Reversed.

(5 Colo. A. 521)

DEANE v. ROARING FORK ELECTRIC LIGHT & POWER CO. (Court of Appeals of Colorado. Feb. 11, 1895.)

INJURIES TO EMPLOYE-DEFECTIVE APPLIANCESKNOWLEDGE OF EMPLOYER-NOTICE TO AGENT.

1. In an action by a servant against the master for injuries received through the bursting of a water valve, the evidence was that the appearance of the valve did not indicate to one without special knowledge that the valve was defective, and there was no evidence that defendant possessed that special knowledge, nor any evidence inconsistent with the supposition that the valve had been properly tested before defendant accepted it. Held, that the burden being on plaintiff to show that defendant knew, or by proper care might have known, that the valve was unsafe, a nonsuit was proper.

2. Notice to an employé having charge of the woodwork and the construction of a pow er house that a water valve in such house is de fective is not such notice to the power company as will render it liable for an injury sustained by an employé through a defect in the valve.

Appeal from district court, Pitkin county. Action by L. S. Deane against the Roaring Fork Electric Light & Power Company. Judgment for defendant, and plaintiff ap peals.

Affirmed.

Richard B. Shepard, H. O. Shepard, A. N. Cherry, and Wm. O'Brien, for appellant. Downing, Stimson & McNair and Thomas M. Patterson, for appellee.

THOMSON, J. This is an action for personal injuries. The complaint charges that the plaintiff, Deane, was employed by the defendant, the Roaring Fork Electric Light & Power Company, to work at and near its machinery, pipes, and valves, etc., through which the water of the company was transmitted; that the plaintiff, in the usual course of his employment, was engaged by the direction of the defendant in trying the works to ascertain whether the joints and connections were sufficient, and was working at or near the hydraulic valve which was part of

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could be seen by a man who was familiar with making valves and seeing valves made. He further stated that such a valve might withstand a proper test, and upon a subsequent test, or upon actual use, its insufficiency might become apparent for the first time.

The question of contributory negligence is not in the case. The only question which we are called upon to determine is whether there was sufficient evidence of negligence on the part of the defendant to demand the submission of the case to the jury. The duty which a master owes to his servant requires the exercise by him of reasonable care and caution in the selection of machinery and appliances to be used in carrying on the business in which the servant is

the machinery; that this valve was guaran- | strong enough, but said that its insufficiency tied by the defendant to the plaintiff to be capable of a cold-water pressure of 500 pounds to the square inch; that the valve was unsafe, defective, and insufficient, as the defendant at the time knew or ought to have known; that the defects in the valve were hidden from view, so that the plaintiff did not and could not know its unsafe condition, but relied wholly upon its external appearance and the guaranty of the defendant; that while plaintiff was working near the valve, and while it was sustaining a pressure of only 326 pounds to the square inch, it burst with great violence, causing severe and permanent injury to the plaintiff; that the defendant was negligent in providing and using, and suffering to be used, the unsafe and imperfect valve; and that the injuries suffered by the plaintiff | employed. The amount of care required dewere the result of its negligence. The answer denies negligence and the insufficiency of the valve; avers care in its selection, a want of knowledge or the ability to obtain knowledge that it was defective, and contributory negligence on the part of the plaintiff. When the evidence in behalf of plaintiff was introduced, a motion for a nonsuit was made and allowed. The following is all the evidence bearing upon the solitary question in the case: The plaintiff was a carpenter, contractor, and builder. Prior to the accident, he had been working for the company about five months. He was first employed to construct its dam, and afterwards he took a contract to make window frames for its power house. At the time of the accident, he was assisting in making a test of the valve, by order of Mr. William G. Coffin, who had charge of the construction of the pipe line, and was the company's superintendent and hydraulic engineer. Joseph Mueller, who was operating a foundry in Aspen, and had experience in the manufacture of valves, saw the valve in question after it was put in place, and stated, in the hearing of the plaintiff, that the iron in the valve was too light. The plaintiff reported what Mueller had said to Mr. Doolittle, who was superintendent of the construction of the woodwork, and under whose direction the plaintiff worked upon the power house. Mr. Doolittle replied that the valve had been made specially for that work, had been tested to 500 pounds, and would stand that pressure with safety. Mr. Mueller, on the witness stand, stated that, in his judgment, the valve was not sufficient for the pressure it was designed to stand. He also stated that no flaw or defect in the workmanship of the valve could be seen; that, so far as visible signs were concerned, it was a perfect piece of work; that, to a person who had no special technical knowledge upon the subject, there was nothing in the appearance of the valve to cause any alarm or uneasiness. He made no calculation for the purpose of determining whether it was

pends in a considerable degree upon the character of the machinery selected, and the danger attendant upon its use; and if, through the master's failure in the exercise of such precautions as the circumstances of the particular case demand, unsafe machinery is procured, and, as a consequence, the servant, without fault of his own, suffers injury, the master is liable. In an action for the injury the burden is upon the servant to establish such negligence of the master as would authorize a recovery. Negligence is not presumed. On the contrary, the presumption is that the master exercised the care which the circumstances required, and did whatever was reasonably necessary to secure the safety of the servant. It is not sufficient to prove that the injury resulted from defective or insufficient machinery; it must also appear that the master knew, or by the exercise of proper care might have known, that the machinery, by reason of its construction or its condition, was unsafe. In an action by the servant for a resulting injury, the master goes into the trial with the advantage of this presumption in his favor; and, unless evidence is introduced which has a tendency to overthrow it, there is nothing for the jury to pass upon. The foregoing is a statement of some general and well-established principles. Wells v. Coe, 9 Colo. 159, 11 Pac. 50; Murray v. Railroad Co., 11 Colo. 124, 17 Pac. 484; Wood, Mast. & Serv. § 382.

It remains to us to apply these principles to the evidence before us. The injury to the plaintiff was occasioned by the bursting of the valve, and the evidence tends to prove that the reason why it burst was that the iron of which it was cast was not sufficiently thick to withstand the pressure which was applied to it. The only negligence charged, or endeavored to be shown, consisted in the providing and attempted use by the defendant of a valve which was not equal to the work which was to be exacted of it: and, if the defendant is liable in this action, it is either because it had actual knowledge

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