March 27, 1883, which letter also contained an offer on the part of Sharp, in pursuance of a previous agreement, to assign, as collateral security to appellant and to the other parties holding the notes of the company, $20,000 worth of his stock in the new company. The only response to this notification appearing in the record is the statement of Sharp in a letter written by him to Le Bert April 18, 1883, to the effect that he had received a letter from Mr. Hale worded as follows: "I suppose nothing will be lost by waiting until I get to Colorado to change our securities. I shall be up the gulch some time the coming spring." Afterwards, and on May 19, 1884, the appellant commenced suit in the district court of Arapahoe county against the Upper Platte Mining & Smelting Company, upon the notes held by him, for the sum of $7,000, and caused a writ of attachment to be issued and levied upon the property in controversy, and also caused garnishee process to issue against Butler & Sharp to subject the Comet Consolidated Mining Company stock received by them in purchase of the property to the payment of his claim. On April 22, 1886, judgment was rendered for $9,162, and the attachment sustained. On November 18, 1886, the Roswell Mining Company was duly incorporated under the laws of this state. On December 20, 1885, Hudson commenced suit by attachment in the county court of Arapahoe county against the Comet Consolidated Mining Company, and recovered judgment, March 22, 1886, for the sum of $633.07, the unpaid balance loaned by him to the company. Execution was issued to the sheriff of Park county, and levied upon the property in controversy, which was sold to the Roswell Mining Company thereunder on December 18, 1886; and in pursuance of said sale, on September 19, 1887, the sheriff conveyed the property to the Roswell Mining Company. In December, 1885, Frost instituted suit and sued out a writ of attachment on his note against the Comet Consolidated Mining Company, and obtained judgment. Execution issued thereon, and the property was sold in pursuance thereof on February 27, 1886, and was bought in by Frost, and conveyed to him by sheriff's deed, dated November 29, 1886. On November 29, 1886, Frost conveyed this title to Roswell P. Brown, who afterwards and on December 6, 1886, conveyed the same to the Roswell Mining Company. On October 28, 1887, the Comet Consolidated Mining Company executed its deed for the property in question to the Roswell Mining Company. On March 29, 1887, the Ashtabula Mining Company was duly organized; and on April 2, 1887, the Roswell Mining Company conveyed its title to the property in question to

company. On June 4, 1884, Richard Le Bert brought a suit against the Upper Platte Mining & Smelting Company upon the notes held by him, caused a writ of attachment to be issued, and on that day, and 13 days prior to the levy of the writ of attachment by appellant, caused a levy to be made upon the property in question; afterwards recovered judgment for the sum of $2,912.82 and costs. This judgment Le Bert assigned to Adler on the 15th of October, 1887, but for the benefit of Brown, who paid the consideration, and to whom it was assigned by Adler on that date. On August 26, 1888, an execution was issued upon this judgment; and on October 2, 1888, the property was sold to Roswell P. Brown, who received sheriff's deed therefor October 2, 1888. On July 8, 1889, Brown conveyed this title to Welch. The appellant alleges that the foregoing transfers were fraudulent, and made in pursuance of a conspiracy to defraud the Upper Platte Mining & Smelting Company and its stockholders of its property, and cloud and incumber its title, so as to prevent legal process from attaching in favor of, and to hinder and delay and defraud, its creditors. The court below found the issues in favor of defendants, and dismissed the action. To reverse this judgment, Vaughn brings the case here on appeal.

Lipscomb & Hodges, for appellant. Teller & Orahood and Norris & Howard, for appellees.

GODDARD, J. (after stating the facts). The finding of the court below that the allegations of fraud were not sustained is simply supported by the testimony. It appears that the sale and transfer of its property by the Upper Platte Mining & Smelting Company to the Comet Consolidated Mining Company was made in good faith, and principally for the purpose of providing for the payment of its indebtedness due the appellant and its other creditors. In and by the agreement entered into with Matthews, Webb, and Dillingham, provision was made for the sale of 36,000 shares of the Comet Consolidated Mining Company's stock for a sum ample not only to meet this indebtedness, but also to provide a capital to carry on the development of the property. The consummation of this purpose was prevented by the failure on the part of Webb, Matthews, and Dillingham to carry out their part of the agree ment. It further appears that the Comet Consolidated Mining Company, in good faith, attempted to carry out the agreement on its part, and, after the default of Matthews, Webb, and Dillingham, continued working the property, and incurred an indebtedness aggregating upward of $7,000, which it was unable to pay, and for which the property was afterwards subjected to sale, under the Hudson and Frost judgments, and through which sales the Roswell Mining Company claimed its title to the property. Appellant

was notified in December, 1882, that such a transfer or disposition of its property was contemplated, and that, if consummated, the personal stock received by Sharp in the new company would be held as security for the payment of this indebtedness; and on March 27, 1883, he was notified that the transfer had been made, and that Sharp, in pursuance of his previous agreement, would assign, as collateral security to him and the other parties holding the notes of the Upper Platte Mining & Smelting Company, $20,000 worth of his stock in the new company. He made no objection to the transaction at that time, and afterwards, on May 19, 1884, attempted, in his suit against the Upper Platte Mining & Smelting Company, to subject the stock of the Comet Consolidated Mining' Company, given as a consideration for the purchase of the property, to the payment of his claim, and, aside from his levy of attachment also upon the property, gave no intimation of his intention to question the validity of the transfer until he commenced the present action, June 21, 1886. Under these circum- | stances, can the appellant invoke equitable aid in the enforcement of his legal remedy against the claims of those who in good faith, and relying upon the validity of the title of the Comet Consolidated Mining Company, loaned money to, and performed labor for, that company? We think not. While it may be conceded that the conveyance of the title to the property by the Upper Platte Mining & Smelting Company to the Comet Consolidated Mining Company, upon the terms and under the conditions it was made, although in the utmost good faith, would be inoperative as to a nonconsenting creditor of the former company, and the property transferred would still be subject to the payment of such creditor's claim, and that the Comet Consolidated Mining Company itself might be held liable for the indebtedness of the Upper Platte Mining & Smelting Company to the extent of the assets transferred to it, yet, on the other hand, a creditor, by consenting to the transfer, or by such acquiescence therein as induced others to deal with the Comet Consolidated Mining Company under the belief that he had ratified the transaction and assented to the transfer, will be estopped from afterwards asserting his claim, to their prejudice. We think the appellant, if he did not expressly consent to the transfer of the property in question to the Comet Consolidated Mining Company, by his conduct in standing by and permitting said company to work the property and incumber it with debts for labor and materials for which it has been sold, is estopped from assailing the validity of the original transfer or the title conveyed by the sheriff's deeds in pursuance of such sales.

But for a further reason we are clearly of the opinion that appellant cannot maintain this action. The Le Bert attachment was levied upon the property 13 days prior to his

levy. The judgment Le Bert obtained against the Upper Platte Mining & Smelting Company was assigned to Adler, for the benefit of Brown; and, in pursuance of a sale under execution issued thereon, the property was sold and conveyed by sheriff's deed to Roswell P. Brown, who afterwards conveyed the title so obtained to Welch, the principal stockholder in the Plymouth Rock Mining & Smelting Company. We cannot agree with counsel for appellant that the purchase of the Le Bert judgment by Brown operated as a satisfaction and extinguishment of that judgment. The purchase of a prior charge or incumbrance upon property by one who claims the ownership in fee does not in equity merge such charge or incumbrance. The rule in such cases is well stated by Pomeroy, in his work on Equity Jurisprudence (section 791): "The equitable doctrine concerning the merger, where the owner of the fee becomes entitled to the charge or incumbrance, may be stated as follows, substantially in the language of most eminent judges: Sir William Gran. says: "The question is upon the intention, actual or presumed, of the person in whom the interests are united.' Sir George Jessel says: 'In a court of equity it has always been held that the mere fact of a charge having been paid off does not decide the question whether it is extinguished. * * *If there is no reason for keeping it alive, then equity will, in the absence of any declaration of his intention, destroy it; but if there is any reason for keeping it alive, such as the existence of another incumbrance, equity will not destroy it.' In short, where the legal ownership of the land and the absolute ownership of the incumbrance become vested in the same person, the intention governs the merger in equity. If this intention has been expressed, it controls. In the absence of such an expression, the intention will be presumed from what appear to be the best interests of the party, as shown by all the circumstances. If his interests require the incumbrance to be kept alive, his intention to do so will be inferred." In section 798, in stating the rule particularly applicable to the facts in this case, he says. "When an owner of the premises, who is not personally and primarily liable to pay the debt secured, pays off a mortgage or other charge upon it, he may keep the lien alive as a security for himself against other incumbrances or titles, and thus prevent a merger. Whether he does so is a question of intention, governed by the rules laid down in the previous paragraphs." The intention of the parties purchasing the Le Bert judgment to prevent a merger is clearly evidenced by the terms of the assignment by which it was transferred. It therefore follows that whatever title remained in the Upper Platte Mining & Smelting Company to the property in question was, through these proceedings, subjected to sale under an attachment prior to that of appellant, and

became vested, by the sheriff's deed, in Brown, and through him in Welch or the Plymouth Rock Mining & Smelting Company, which had theretofore been vested with the title conveyed by the sheriff's deeds in pursuance of the sales under the Hudson and Frost judgments.

We think, therefore, upon either of the foregoing propositions, the court below properly dismissed the action at plaintiff's costs. The judgment is therefore affirmed. Affirmed.

(20 Colo. 471)

CITY OF DENVER et al. v. COULEHAN. (Supreme Court of Colorado. Dec. 22, 1894.) MUNICIPAL BOUNDARIES-LEGISLATIVE AND JUDICIAL POWER.

The legislature of this state does not have the power to extend or enlarge the territorial limits of a specially chartered town or city by adding thereto noncontiguous lands,that is, lands entirely separated from the municipality by intervening territory; and the courts may declare the annexation of such noncontiguous territory invalid, and enjoin the collection of municipal taxes upon the property thus sought to be annexed.

(Syllabus by the Court.)

Appeal from district court, Jefferson county.

Action by Jeremiah Coulehan, suing for himself and others, against the city of Denver and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Action to enjoin the assessment, levy, and collection of taxes upon certain property in Jefferson county by or for the use of the city of Denver. Trial, and judgment in favor of plaintiff, granting the perpetual injunction as prayed for. Defendants appeal. The complaint is very lengthy. The following extracts will be sufficient for an understanding of the opinion: "The plaintiff, suing as well for the behalf of all other owners of taxable property situate within the district of lands aforesaid, similarly situated, as for himself, complaining, saith that plaintiff is, and for twenty years and more last past hath been, the owner of those certain premises described as the northeast quarter of section twenty-three (23), township three (3) south, of range sixty-nine (69) west; that by a certain act of the general assembly of the state of Colorado approved on the third day of April, A. D. 1893, entitled 'An act to revise and amend the charter of the city of Denver,' it was and is provided, among other things, that the corporate limits of the said city of Denver should begin, etc. [description, including lands of plaintiff), 'excepting, however, out of the said city, as so established, all towns and cities incorporated and then existing under the general laws of the state, situate within said last mentioned boundaries.' Plaintiff

* *

further avers that the plaintiff's land hereinbefore described, and all of the lands hereinbefore mentioned, situate in the said town

ship three (3) south, of range sixty-nine (69) west, and township four (4) south, of range sixty-nine (69) west, are, and always have been, included within the limits of the said county of Jefferson; that the said lands of the plaintiff are agricultural lands, and now are, and for many years last past have been, by plaintiff planted and cultivated for the rearing of grasses, small grains, and small fruits; that the said lands are valuable only as agricultural lands; that the same are not and never have been divided into streets, alleys, lots, blocks, or outlots, nor doth plaintiff propose or intend, nor hath plaintiff ever proposed, intended, or desired, to so subdivide the same into parcels, or sell or expose the same to sale as urban or suburban property, nor are the same valuable for such purpose; that no public buildings or other improvements have ever been erected or made by the said city of Denver upon or within three miles of said lands of plaintiff or said district of lands afore described, situate in said county of Jefferson; that none of the public streets or alleys of the city of Denver extend into or near to the same, or any part thereof, or into or within two miles of any part of the said district of lands aforedescribed; and that neither light, heat, police protection, water, nor other convenience or public service furnished by or under authority of the city of Denver for the benefit of the inhabitants thereof hath ever been extended or afforded to plaintiff or any of the people residing within the said district; nor doth or can plaintiff or the other owners of lands situate within the said district have any benefit, advantage, or convenience whatsoever of the government of the said city of Denver, or any department thereof; nor are the said lands of plaintiff, nor any of the lands situate within the district aforesaid, in range sixty-nine (69) aforesaid, necessary to be added to the city of Denver for opening streets or ways between other parts of the said city of Denver, or for any other municipal purpose whatsoever; and that the whole purpose of the city of Denver and those active in and about procuring such enlargement of the bounds of said city was and is to enable the authorities of the said city of Denver to levy taxes upon the lands and other taxable property within the said district for raising moneys for discharging the current expenses of the said city, and for discharging the principal and interest of the bonded indebtedness of the said city hereinafter mentioned. * * Plaintiff further avers that the said district of lands in every part thereof was at the date of the passage of the said act, and still is, separated from the bounds of the said city of Denver, as established prior to the passage of the said act, by a distance of two (2) miles or more, and by certain municipal corporations theretofore and now still existing, to wit, the town of North Denver, the town of Highlands, the town of Colfax, and the town of

* Plaintiff is advised by counsel, and therefore avers, that the attempt made by the said enactment to include the said district of lands within the limits of the city of Denver solely for subjecting the same to taxation for the purposes of the said city of Denver, and the attempt by the said enactment to subject the said lands to the burden of the indebtedness heretofore contracted by the said city of Denver for loans as hereinbefore mentioned and the other indebtedness of the said city of Denver, was beyond the authority of the general assembly, and wholly without effect. Nevertheless, plaintiff saith the city council of the said city of Denver threaten to and will levy upon the lands situate in said district, including the lands of plaintiff, herein before described, taxes for city purposes to an amount not exceeding the limit in the said act provided, to wit, ten mills on the dollar upon the assessed value of said property, and cause the said levy to be certified to the county clerk of the said county of Jefferson; and the said John Vivian, who is the county clerk and recorder of the said county of Jefferson, threatens to and will, unless restrained by the writ of injunction hereinafter prayed, extend the same upon the tax lists of the said county of Jefferson for the now current year and every year hereafter, in the manner directed in the said act, and include the said city taxes in his warrant to the county treasurer of the said county of Jefferson; and the said Robert E. Jones, who is the county treasurer of the said county of Jefferson, will, unless restrained as aforesaid, proceed to levy and collect the said taxes, either by sale of plaintiff's lands aforedescribed or by distraint and sale of plaintiff's personal property. And plaintiff avers that the taxes so levied and assessed as aforesaid will be a cloud on the lands of plaintiff and all other lands situated within the district aforesaid, whereupon such taxes shall be levied and assessed as aforesaid, and the levy and assessment of such taxes from year to year in every year hereafter, as the said city of Denver proposes and threatens to do, will be a continuous and constantly recurring injury, irreparable by any action at law. Plaintiff, therefore, as well for and on behalf of the owners of other taxable property within the said district similarly situated as for himself, prays judgment that the said city of Denver, and the said city council thereof, and all and singular the officers, agents, and servants thereof, be strictly restrained and prohibited from levying upon the lands aforedescribed or the other taxable property within the said district, or other lands or taxable property similarly situated to the lands and taxable

the said district, any assessment or tax whatsoever to meet the expenses of said city of Denver, or for other purpose whatsoever, and from causing any such levy to be certified to the county clerk and recorder of said county of Jefferson; that the said county clerk and J. A. Ferris, assessor, as well as their successors in office, be likewise restrained and enjoined from levying or extending any such tax upon the tax list of the said county of Jefferson in any year, and from including any such taxes in any warrant to the county treasurer of said county; and that the said county treasurer and all and singular his successors in office be in like manner strictly restrained and enjoined from collecting, or assuming to collect, any such city taxes of the city of Denver at any time levied or assessed upon or against any such lands or other taxable property within the said district; and that plaintiff may have such other and further relief or such different relief as to the court shall seem meet, and his costs."

A. B. Seaman, City Atty., and Louis K. Pratt, for appellants. Wells, Taylor & Taylor, for appellee.

ELLIOTT, J. (after stating the facts). The city of Denver was organized and existing under and by virtue of a special charter long before and at the time of the adoption of our state constitution. The constitution did not abrogate such charters, nor does it exempt them from legislative amendments. Const. art. 14, § 14; also, Id. art. 15, § 2. Brown v. City of Denver, 7 Colo. 305, 3 Pac. 455; Carpenter v. People, 8 Colo. 116, 5 Pac. 828. On April 3, 1893, the general assembly of Colorado passed "An act to revise and amend the charter of the city of Denver." See Sess. Laws 1893, p. 131. Prior to the passage of that act, the territorial limits of the city were wholly within the county of Arapahoe. Jefferson county bounds Arapahoe on the west, but between Jefferson and the western limits of the city of Denver there were at the time of the passage of the act above mentioned several municipal corporations, viz. the town of North Denver, the town of Highlands, the town of Colfax, and the town of Barnum. The territorial boundaries of these municipalities for the most part extended to the Jefferson county line, and so separated the city of Denver from that county. In fact, at the time of the passage of the act to revise and amend the Denver charter, no part of the territorial limits of the city of Denver was contiguous to any part of Jefferson county. Nevertheless, by the terms of said act, it was attempted to enlarge or extend the limits of the city of Denver by adding thereto a strip of land, 5% miles long by 1 miles wide, lying along the eastern border and wholly within the county of Jefferson.

If the act adding the Jefferson county

strip to the city of Denver be upheld as valid, there might, perhaps, be no escape from the taxation complained of in the present action. The decisions exempting certain property within the territorial limits of a town or city from municipal taxation, on the ground that the property is so situated that it cannot receive its due proportion of municipal benefits, are strongly combated, on the ground that the doctrine they assert is illogical as well as impracticable, in that it amounts to a substitution of judicial opinion for legislative judgment in matters peculiarly within the province of the law making power. See, upon this subject, Cooley, Const. Lim. (6th Ed.) p. 616, note 3, and cases there cited; also, 2 Dill. Mun. Corp. (4th Ed.) §§ 794, 795, and notes. But it is unnecessary to decide this point.

In determining the present controversy, we shall endeavor to reach a proper solution of the following question: Has the legislature the power to extend or enlarge the territorial limits of a specially chartered town or city by adding thereto noncontiguous lands, that is, lands entirely separated from such town or city by intervening territory? It is customary to speak of the power of the legislature over municipal corporations as "plenary." But this, like most attempts at epigrammatic statements of the law, must be taken cum grano salis. Certain it is that constitutional limitations must always be observed in respect to such legislation. Besides, insurmountable obstacles may arise out of the nature and subject-matter of the legislation to render the same ineffectual. In general, the boundaries of a specially chartered town or city may, by act of the legislature, be extended and enlarged so as to include additional lands, the property thus added becoming subject to municipal taxation, and entitled to municipal benefits. It is urged that power thus vested in the legislature is subject to abuse or improvident use. This may be true, and yet it does not necessarily follow that the courts can restrain the enforcement of a legislative act merely because the legislature acted improvidently in passing it. Before the courts will restrain the enforcement of a legislative act, it must appear beyond reasonable doubt that the legislature in passing the act exceeded its power, or attempted to exercise a power it did not possess. Wadsworth v. Railway Co., 18 Colo. 612, 33 Pac. 515. The improvident use of power by the legislative department of the government does not justify usurpation by the judicial department. The remedy for the improvident use of official power is by appeal to the people, whose will, when legally expressed under the constitution, is sovereign over all departments. It is true that all remedies for maladministration in civil government may fail, because all governmental agencies must be intrusted to minds subject to human infirmities. In

such case we can only suffer and wait while we strive for improvement. Martin v. Dix, 52 Miss. 53; Turner v. Althaus, 6 Neb. 54.

Is there, then, in the present case, no check that can curb the vaulting ambition of a great city in its efforts to enlarge its corporate boundaries and increase its corporate revenues? Has the legislature such transcendent power in respect to territorial additions to specially chartered towns and cities that the courts can give no relief? Is there nothing left but an appeal to the people as the dernier resort? The answer to these questions must depend upon the nature and scope, as well as the subject-matter, of the legislative act in question. As we have seen, the general rule is that the legislature has the power to extend the boundaries, and thus enlarge the territorial limits, of a town or city existing under special charter. But may the legislative arm be extended as a great pothook into any and all the counties of the state, there to encircle, as in this case, many square miles of the territory of such outside counties, and make the same part and parcel of the city of Denver? May the legislature do this, without annexing any intervening territory, and without providing even a street or an alley to connect such outlying municipal additions to the city proper? It may be said that this is an extreme illustration; but, as was once said by Chief Justice Shaw, "it is necessary to put extreme cases to test a principle."

What is a city? With much research into the historical derivation of the word, Webster, pre-eminently the lexicographer of the law as well as of the common people, defines a "city" in substance as follows: (1) A large town; (2) a corporate town; in the United States, a town or collective body of inhabitants, incorporated and governed by a mayor and aldermen; (3) the collective body of citizens or inhabitants of a city. Since a city is a large town, we look for the meaning of the word "town." Again, we find from Webster that the primitive idea of a town was an inclosure. The popular use and meaning of the word is a large, closely populated place, whether incorporated or not, as distinguished from the country or from rural communities. These definitions are sustained and amplified by the Century Dictionary. The legal as well as the popular idea of a town or city in this country, both by name and use, is that of oneness, community, locality, vicinity; a collective body, not several bodies; collective body of inhabitants,-that is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places; hence, locality, not localities; vicinity; vicinage; near, adjacent, not remote. So, as to territorial extent, the idea of a city is one. of unity, not of plurality; of compactness or contiguity, not separation or segregation.