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March 27, 1883, which letter also contained company. On June 4, 1884, Richard Le Bert an offer on the part of Sharp, in pursuance brought a suit against the Upper Platte Minof a previous agreement, to assign, as collat- ing & Smelting Company upon the notes held eral security to appellant and to the other by him, caused a writ of attachment to be isparties holding the notes of the company, sued, and on that day, and 13 days prior to $20,000 worth of his stock in the new com- the levy of the writ of attachment by appelpany. The only response to this notification lant, caused a levy to be made upon the appearing in the record is the statement of property in question; afterwards recovered Sharp in a letter written by him to Le Bert judgment for the sum of $2,912.82 and costs. April 18, 1883, to the effect that he had re- This judgment Le Bert assigned to Adler on ceived a letter from Mr. Hale worded as fol- the 15th of October, 1887, but for the benefit lows: "I suppose nothing will be lost by of Brown, who paid the consideration, and to waiting until I get to Colorado to change our whom it was assigned by Adler on that date. securities. I shall be up the gulch some time On August 26, 1888, an execution was issued the coming spring.” Afterwards, and on upon this judgment; and on October 2, 1888, May 19, 1884, the appellant commenced suit the property was sold to Roswell P. Brown, in the district court of Arapahoe county who received sheriff's deed therefor October against the Upper Platte Mining & Smelting 2, 1888. On July 8, 1889, Brown conveyed Company, upon the notes held by him, for the this title to Welch. The appellant alleges sum of $7,000, and caused a writ of attach- that the foregoing transfers were fraudulent, ment to be issued and levied upon the prop- and made in pursuance of a conspiracy to deerty in controversy, and also caused gar- fraud the Upper Platte Mining & Smelting nishee process to issue against Butler & Company and its stockholders of its property, Sharp to subject the Comet Consolidated and cloud and incumber its title, so as to Mining Company stock received by them in prevent legal process from attaching in fapurchase of the property to the payment of vor of, and to hinder and delay and defraud, his claim. On April 22. 1886, judgment was its creditors. The court below found the isrendered for $9,162, and the attachment sus- sues in favor of defendants, and dismissed tained. On November 18, 1886, the Roswell the action. To reverse this judgment, Mining Company was duly incorporated un- Vaughn brings the case here on appeal. der the laws of this state. On December 20, 1883, Hudson commenced suit by attachment

Lipscomb & Hodges, for appellant. Teller

& Orahood and Norris & Howard, for appelin the county court of Arapahoe county

lees. against the Comet Consolidated Mining Company, and recovered judgment, March 22, 1886, for the sum of $633.07, the unpaid bal- GODDARD, J. (after stating the facts). ance loaned by him to the company. Exe- The finding of the court below that the allecution was issued to the sheriff of Park coun- gations of fraud were not sustained is simply ty, and levied upon the property in contro- supported by the testimony. It appears that versy, which was sold to the Roswell Mining the sale and transfer of its property by the Company thereunder on December 18, 1856; Upper Platte Mining & Smelting Company to and in pursuance of said sale, on September

the Comet Consolidated Mining Company 19, 1887, the sheriff conveyed the property to was made in good faith, and principally for the Roswell Mining Company. In December, the purpose of providing for the payment of 1885, Frost instituted suit and sued out a its indebtedness due the appellant and its writ of attachment on his note against the other creditors. In and by the agreement Comet Consolidated Mining Company, and entered into with Matthews, Webb, and Dilobtained judgment. Execution issued there- lingham, provision was made for the sale of on, and the property was sold in pursuance 36,000 shares of the Comet Consolidated Minthereof on February 27, 1886, and was bought ing Company's stock for a sum ample not in by Frost, and conveyed to him by sheriff's only to meet this indebtedness, but also to deed, dated November 29, 1886. On Novem- provide a capital to carry on the developber 29, 1886, Frost conveyed this title to Ros- ment of the property. The consummation well P. Brown, who afterwards and on De- of this purpose was prevented by the failure cember 6, 1886, conveyed the same to the on the part of Webb, Matthews, and DillingRoswell Mining Company. On October 28, ham to carry out their part of the agree1887, the Comet Consolidated Mining Com- ment. It further appears that the Comet pany executed its deed for the property in Consolidated Mining Company, in good faith, question to the Roswell Mining Company. attempted to carry out the agreement on its On March 29, 1887, the Ashtabula Mining part, and, after the default of Matthews, Company was duly organized; and on April Webb, and Dillingham, continued working 2, 1887, the Roswell Mining Company con- the property, and incurred an indebtedness veyed its title to the property in question to aggregating upward of $7,000, which it was it. On December 14, 1887, the Plymouth unable to pay, and for which the property Rock Mining & Smelting Company was duly was afterwards subjected to sale, under the organized; and on December 15, 1887, the Hudson and Frost judgments, and through Ashtabula Mining Company conveyed its ti- which sales the Roswell Mining Company tle to the property in question to the latter claimed its title to the property. Appellant

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was notified in December, 1882, that such a levy. The judgment Le Bert obtained against transfer or disposition of its property was the Upper Platte Mining & Smelting Comcontemplated, and that, if consummated, the pany was assigned to Adler, for the benefit personal stock received by Sharp in the new of Brown; and, in pursuance of a sale under company would be held as security for the execution issued thereon, the property was payment of this indebtedness; and on March sold and conveyed by sheriff's deed to Ros27, 1883, he was notified that the transfer well P. Brown, who afterwards conveyed the had been made, and that Sharp, in pursu- title so obtained to Welch, the principal ance of his previous agreement, would as- stockholder in the Plymouth Rock Mining & sign, as collateral security to him and the Smelting Company. We cannot agree with other parties holding the notes of the Upper counsel for appellant that the purchase of Platte Mining & Smelting Company, $20,000 the Le Bert judgment by Brown operated as worth of his stock in the new company. He a satisfaction and extinguishment of that made no objection to the transaction at that judgment. The purchase of a prior charge time, and afterwards, on May 19, 1884, at- or incumbrance upon property by one who tempted, in his suit against the Upper Platte claims the ownership in fee does not in Mining & Smelting Company, to subject the equity merge such charge or incumbrance. stock of the Comet Consolidated Mining' Com- The rule in such cases is well stated by pany, given as a consideration for the pur- Pomeroy, in his work on Equity Jurispruchase of the property, to the payment of his dence (section 791): "The equitable doctrine claim, and, aside from his levy of attachment concerning the merger, where the owner of also upon the property, gave no intimation the fee becomes entitled to the charge or inof his intention to question the validity of cumbrance, may be stated as follows, subthe transfer until he commenced the present stantially in the language of most eminent action, June 21, 1886. Under these circum- judges: Sir William Gran, says: "The quesstances, can the appellant invoke equitable tion is upon the intention, actual or preaid in the enforcement of his legal remedy sumed, of the person in whom the interests against the claims of those who in good are united.' Sir George Jessel says: 'In a faith, and relying upon the validity of the court of equity it has always been held that title of the Comet Consolidated Mining Com- the mere fact of a charge having been paid pany, loaned money to, and performed labor off does not decide the question whether it is for, that company? We think not. While it extinguished. * If there is no reason may be conceded that the conveyance of the for keeping it alive, then equity will, in the title to the property by the Upper Platte absence of any declaration of his intention, Mining & Smelting Company to the Comet destroy it; but if there is any reason for Consolidated Mining Company, upon the keeping it alive, such as the existence of terms and under the conditions it was made, another incumbrance, equity will not destroy although in the utmost good faith, would be it.' In short, where the legal ownership of inoperative as to a nonconsenting creditor of the land and the absolute ownership of the the former company, and the property trans- incumbrance become vested in the same perferred would still be subject to the payment son, the intention governs the merger in of such creditor's claim, and that the Comet equity. If this intention has been expressed, Consolidated Mining Company itself might it controls. In the absence of such an expresbe held liable for the indebtedness of the sion, the intention will be presumed from Upper Platte Mining & Smelting Company what appear to be the best interests of the to the extent of the assets transferred to it, party, as shown by all the circumstances. yet, on the other hand, a creditor, by con- If his interests require the incumbrance to senting to the transfer, or by such acqui- be kept alive, his intention to do so will be escence therein as induced others to deal with inferred." In section 798, in stating the rule the Comet Consolidated Mining Company particularly applicable to the facts in this under the belief that he had ratified the case, he says: “When an owner of the premtransaction and assented to the transfer, will ises, who is not personally and primarily be estopped from afterwards asserting his liable to pay the debt secured, pays off a claim, to their prejudice. We think the mortgage or other charge upon it, he may appellant, if he did not expressly consent to keep the lien alive as a security for himself the transfer of the property in question to against other incumbrances or titles, and the Comet Consolidated Mining Company, thus prevent a merger. Whether he does so by his conduct in standing by and permitting is a question of intention, governed by the said company to work the property and in- rules laid down in the previous paragraphs." cumber it with debts for labor and materials The intention of the parties purchasing the for which it has been sold, is estopped from Le Bert judgment to prevent a merger is assailing the validity of the original transfer clearly evidenced by the terms of the assignor the title conveyed by the sheriff's deeds ment by which it was transferred. It there in pursuance of such sales.

fore follows that whatever title remained in But for a further reason we are clearly of the Upper Platte Mining & Smelting Comthe opinion that appellant cannot maintain pany to the property in question was, through this action. The Le Bert attachment was these proceedings, subjected to sale under levied upon the property 13 days prior to his an attachment prior to that of appellant, and

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became vested, by the sheriff's deed, in ship three (3) south, of range sixty-nine (69) Brown, and through him in Welch or the west, and township four (4) south, of range Plymouth Rock Mining & Smelting Company, sixty-nine (69) west, are, and always have which had theretofore been vested with been, included within the limits of the said the title conveyed by the sheriff's deeds in county of Jefferson; that the said lands of pursuance of the sales under the Hudson and the plaintiff are agricultural lands, and now Frost judgments.

are, and for many years last past have been, We think, therefore, upon either of the fore- by plaintiff planted and cultivated for the going propositions, the court below properly / rearing of grasses, small grains, and small dismissed the action at plaintiff's costs. The fruits; that the said lands are valuable only judgment is therefore affirmed. Affirmed. as agricultural lands; that the same are not

and never have been divided into streets, al

leys, lots, blocks, or outlots, nor doth plain(20 Colo. 471)

tiff propose or intend, nor hath plaintiff ever CITY OF DENVER et al. v. COULEHAN. proposed, intended, or desired, to so subdi

vide the same into parcels, or sell or expose (Supreme Court of Colorado. Dec. 22, 1894.)

the same to sale as urban or suburban propMUNICIPAL BOUNDARIES-LEGISLATIVE AND JUDI

erty, nor are the same valuable for such purCIAL POWER. The legislature of this state does not

pose; that no public buildings or other imhave the power to extend or enlarge the terri- provements have ever been erected or made torial limits of a specially chartered town or by the said city of Denver upon or within city by adding thereto noncontiguous lands,that is, lands entirely separated from the mu

three miles of said lands of plaintiff or said nicipality by intervening territory; and the

district of lands afore described, situate in courts may declare the annexation of such non- said county of Jefferson; that none of the contiguous territory invalid, and enjoin the col- public streets or alleys of the city of Denver lection of municipal taxes upon the property thus sought to be annexed.

extend into or near to the same, or any part (Syllabus by the Court.)

thereof, or into or within two miles of any

part of the said district of lands aforedeAppeal from district court, Jefferson coun

scribed; and that neither light, heat, police ty.

protection, water, nor other convenience or Action by Jeremiah Coulehan, suing_for public service furnished by or under authorhimself and others, against the city of Den- ity of the city of Denver for the benefit of the ver and others. From a judgment for plain- inhabitants thereof hath ever been extended tiff, defendants appeal. Affirmed.

or afforded to plaintiff or any of the people Action to enjoin the assessment, levy, and residing within the said district; nor doth collection of taxes upon certain property in or can plaintiff or the other owners of lands Jefferson county by or for the use of the

situate within the said district have any city of Denver. Trial, and judgment in fa- benefit, advantage, or convenience whatsovor of plaintiff, granting the perpetual in- ever of the government of the said city of junction as prayed for. Defendants appeal. Denver, or any department thereof; nor are The complaint is very lengthy. The follow the said lands of plaintiff, nor any of the ing extracts will be sufficient for an under- lands situate within the district aforesaid, standing of the opinion: “The plaintiff, su- in range sixty-nine (69) aforesaid, necessary ing as well for the behalf of all other owners to be added to the city of Denver for openof taxable property situate within the dis- | ing streets or ways between other parts of trict of lands aforesaid, similarly situated, as the said city of Denver, or for any other for himself, complaining, saith that plaintiff municipal purpose whatsoever; and that the is, and for twenty years and more last past whole purpose of the city of Denver and hath been, the owner of those certain prem- those active in and about procuring such enises described as the northeast quarter of largement of the bounds of said city was section twenty-three (23), township three (3) and is to enable the authorities of the said south, of range sixty-nine (69) west;

city of Denver to levy taxes upon the lands that by a certain act of the general assembly and other taxable property within the said of the state of Colorado approved on the district for raising moneys for discharging third day of April, A. D. 1893, entitled 'An the current expenses of the said city, and for act to revise and amend the charter of the discharging the principal and interest of the city of Denver, it was and is provided, bonded indebtedness of the said city hereinamong other things, that the corporate limits after mentioned. * Plaintiff further of the said city of Denver should begin, etc. avers that the said district of lands in every [description, including lands of plaintiff], part thereof was at the date of the passage 'excepting, however, out of the said city, as of the said act, and still is, separated from so established, all towns and cities incorpo- the bounds of the said city of Denver, as esrated and then existing under the general tablished prior to the passage of the said laws of the state, situate within said last act, by a distance of two (2) miles or more, mentioned boundaries.'

Plaintiff and by certain municipal corporations therefurther avers that the plaintiff's land here- tofore and now still existing, to wit, the inbefore described, and all of the lands here. town of North Denver, the town of Highinbefore mentioned, situate in the said town- | lands, the town of Colfax, and the town of

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Barnum, all which, as plaintiff on informa- , property of plaintiff aforedescribed within tion and belief avers, at the date of the pas- the said district, any assessment or tax whatsage of the said act, and for many years soever to meet the expenses of said city of before that, were, and still are, municipal | Denver, or for other purpose whatsoever, corporations, lawfully organized and exist and from causing any such levy to be cering under the laws of the state of Colorado. tified to the county clerk and recorder of said

Plaintiff is advised by counsel, and county of Jefferson; that the said county therefore avers, that the attempt made by clerk and J. A. Ferris, assessor, as well as the said enactment to include the said dis- their successors in office, be likewise restraintrict of lands within the limits of the city of ed and enjoined from levying or extending Denver solely for subjecting the same to tax- any such tax upon the tax list of the said ation for the purposes of the said city of county of Jefferson in any year, and from inDenver, and the attempt by the said enact- cluding any such taxes in any warrant to ment to subject the said lands to the burden the county treasurer of said county; and of the indebtedness heretofore contracted by that the said county treasurer and all and the said city of Denver for loans as herein. | singular his successors in office be in like before mentioned and the other indebtedness manner strictly restrained and enjoined from of the said city of Denver, was beyond the collecting, or assuming to collect, any such authority of the general assembly, and whol- city taxes of the city of Denver at any time ly without effect. Nevertheless, plaintiff levied or assessed upon or against any such saith the city council of the said city of Den- lands or other taxable property within the ver threaten to and will levy upon the lands said district; and that plaintiff may have situate in said district, including the lands such other and further relief or such differof plaintiff, hereinbefore described, taxes for ent relief as to the court shall seem meet, city purposes to an amount not exceeding the and his costs." limit in the said act provided, to wit, ten

A. B. Seaman, City Atty., and Louis K. mills on the dollar upon the assessed value

Pratt, for appellants. Wells, Taylor & Tayof said property, and cause the said levy to

lor, for appellee. be certified to the county clerk of the said county of Jefferson; and the said John Viv- ELLIOTT, J. (after stating the facts). ian, who is the county clerk and recorder of The city of Denver was organized and exthe said county of Jefferson, threatens to and

isting under and by virtue of a special will, unless restrained by the writ of injunc. charter long before and at the time of the tion hereinafter prayed, extend the same up- adoption of our state constitution. The conon the tax lists of the said county of Jeffer- stitution did not abrogate such charters, nor son for the now current year and every does it exempt them from legislative amendyear hereafter, in the manner directed in the ments. Const. art. 14, § 14; also, Id. art. 15, $ said act, and include the said city taxes in 2. Brown v. City of Denver, 7 Colo. 305, his warrant to the county treasurer of the 3 Pac. 455; Carpenter v. People, 8 Colo. 116, said county of Jefferson; and the said Rob- 5 Pac. 828. On April 3, 1893, the general ert E. Jones, who is the county treasurer of assembly of Colorado passed “An act to rethe said county of Jefferson, will, unless re- vise and amend the charter of the city of strained as aforesaid, proceed to levy and Denver." See Sess. Laws 1893, p. 131. collect the said taxes, either by sale of plain- Prior to the passage of that act, the tertiff's lands aforedescribed or by distraint | ritorial limits of the city were wholly within and sale of plaintiff's personal property. the county of Arapahoe. Jefferson county And plaintiff avers that the taxes so levied bounds Arapahoe on the west, but between and assessed as aforesaid will be a cloud | Jefferson and the western limits of the city on the lands of plaintiff and all other lands of Denver there were at the time of the situated within the district aforesaid where- passage of the aot above mentioned several upon such taxes shall be levied and assessed municipal corporations, viz. the town of as aforesaid, and the levy and assessment of North Denver, the town of Highlands, the such taxes from year to year in every year town of Colfax, and the town of Barnum. hereafter, as the said city of Denver pro- The territorial boundaries of these municposes and threatens to do, will be a continu- ipalities for the most part extended to the ous and constantly recurring injury, irrepar- Jefferson county line, and so separated the able by any action at law. Plaintiff, there city of Denver from that county.

In fact, fore, as well for and on behalf of the owners at the time of the passage of the act to reof other taxable property within the said dis- vise and amend the Denver charter, no part trict similarly situated as for himself, prays of the territorial limits of the city of Denver judgment that the said city of Denver, and was contiguous to any part of Jefferson the said city council thereof, and all and county. Nevertheless, by the terms of said singular the officers, agents, and servants act, it was attempted to enlarge or extend thereof, be strictly restrained and prohibited the limits of the city of Denver by adding from levying upon the lands aforedescribed thereto a strip of land, 512 miles long by 196 or the other taxable property within the said miles wide, lying along the eastern border district, or other lands or taxable property and wholly within the county of Jefferson. similarly situated to the lands and taxable If the act adding the Jefferson county strip to the city of Denver be upheld as such case we can only suffer and wait while valid, there might, perhaps, be no escape we strive for improvement. Martin v. Dix, from the taxation complained of in the pres- 52 Miss. 53; Turner v. Althaus, 6 Neb. 54. ent action. The decisions exempting cer- Is there, then, in the present case, no check tain property within the territorial limits that can curb the vaulting ambition of a of a town or city from municipal taxation, great city in its efforts to enlarge its coron the ground that the property is so situated porate boundaries and increase its corpothat it cannot receive its due proportion of rate revenues? Has the legislature such municipal benefits, are strongly combated, transcendent power in respect to territorial on the ground that the doctrine they assert additions to specially chartered towns and is illogical as well as impracticable, in that cities that the courts can give no relief? Is it amounts to a substitution of judicial opin- | there nothing left but an appeal to the people ion for legislative judgment in matters pe- as the dernier resort? The answer to these culiarly within the province of the law mak- questions must depend upon the nature and ing power. See, upon this subject, Cooley, scope, as well as the subject-matter, of the Const. Lim. (6th Ed.) p. 616, note 3, and legislative act in question. As we have cases there cited; also, 2 Dill. Mun. Corp. seen, the general rule is that the legislature (4th Ed.) 88 794, 795, and notes. But it is has the power to extend the boundaries, unnecessary to decide this point.

and thus enlarge the territorial limits, of a In determining the present controversy, town or city existing under special charter. we shall endeavor to reach a proper solution | But may the legislative arm be extended as a of the following question: Has the legis- great pothook into any and all the counties lature the power to extend or enlarge the of the state, there to encircle, as in this territorial limits of a specially chartered case, many square miles of the territory of town or city by adding thereto noncontig- such outside counties, and make the same uous lands,—that is, lands entirely sepa- part and parcel of the city of Denver? May rated from such town or city by interven- the legislature do this, without annexing ing territory? It is customary to speak of any intervening territory, and without prothe power of the legislature over munic- viding even a street or an alley to connect ipal corporations as "plenary." But this, such outlying municipal additions to the like most attempts at epigrammatic state-city proper? It may be said that this is ments of the law, must be taken cum grano an extreme illustration; but, as was once salis. Certain it is that constitutional lim- said by Chief Justice Shaw, “it is necessary itations must always be observed in respect to put extreme cases to test a principle." to such legislation. Besides, insurmounta- What is a city? With much research into ble obstacles may arise out of the nature and the historical derivation of the word, Webster, subject-matter of the legislation to render pre-eminently the lexicographer of the law the same ineffectual. In general, the bound- as well as of the common people, defines a aries of a specially chartered town or city "city" in substance as follows: (1) A large may, by act of the legislature, be extended town; (2) a corporate town; in the United and enlarged so as to include additional States, a town or collective body of inhablands, the property thus added becoming itants, incorporated and governed by a subject to municipal taxation, and entitled mayor and aldermen; (3) the collective body to municipal benefits. · It is urged that pow- of citizens or inhabitants of a city. Since er thus vested in the legislature is subject to a city is a large town, we look for the abuse or improvident use. This may be meaning of the word “town." Again, we true, and yet it does not necessarily follow find from Webster that the primitive idea of that the courts can restrain the enforcement a town was an inclosure. The popular use of a legislative act merely because the leg- and meaning of the word is a large, closely islature acted improvidently in passing it. populated place, whether incorporated or Before the courts will restrain the enforce- not, as distinguished from the country or ment of a legislative act, it must appear be- from rural communities. These definitions yond reasonable doubt that the legislature are sustained and amplified by the Century in passing the act exceeded its power, or Dictionary. The legal as well as the popattempted to exercise a power it did not ular idea of a town or city in this country, possess. Wadsworth V. Railway Co., 18 both by name and use, is that of oneness, Colo. 612, 33 Pac. 515. The improvident use community, locality, vicinity; a collective of power by the legislative department of body, not several bodies; collective body of the government does not justify usurpation inhabitants,-that is, a body of people colby the judicial department. The remedy lected or gathered together in one mass, for the improvident use of official power is not separated into distinct masses, aud Lavby appeal to the people, whose will, when le- ing a community of interest because resi. gally expressed under the constitution, is dents of the same place, not different places; sovereign over all departments. It is true hence, locality, not localities; vicinity; vicithat all remedies for maladministration in nage; near, adjacent, not remote. So, as to civil government may fail, because all gov- territorial extent, the idea of a city is one. ernmental agencies must be intrusted to of unity, not of plurality; of compactness minds subject to human intirmities. In or contiguity, not separation or segregation.

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