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Legislative acts in the matter of extending tion, it is evident that it was never contemthe boundaries of municipal corporations are plated by the law that the territorial limits to be interpreted and applied according to of a town or city might include distinct, disthe essential nature as weu as the subject | jointed fragments or parcels of land, situate matter of such legislation. In the nature of miles and miles distant from each other, things, there must be some limit to legisla- and separated from the city proper by intertive power. For example, the legislature can- vening territory. It is not to be understood not extend the municipal boundaries of a city from this that a city may not be formed into another state. Legislative acts upon from territory lying on different sides of a such a subject would have no extraterritorial natural stream. Nor must anything in this force. There are some things that in their opinion be construed as intimating that nonvery nature cannot be accomplished by any contiguous territory may be added to a city human power: A thing cannot be made to by connecting the same by a narrow street or exist as a whole and in broken disjointed alley. Annexation sought to be accomplished fragments at one and the same time. Aby such means might bear upon its face such thing essentially single in its nature cannot earmarks of fraud as would vitiate an orhave a plural existence. Every municipal. | dinary transaction, though we do not intiity must have its territorial corpus, in which mate that judicial inquiry may extend to the to exercise its corporate functions and pow. motives of a co-ordinate department of the
Such corpus may be enlarged or dimin- government. Kountze v. City of Omaha, 5 ished by the action of the legislature. So Dill. 443, Fed. Cas. No. 7,928; Kelly v. Uity the human body may grow or diminish by of Pittsburgh, 85 Pa. St. 170; People v. the acuon or nonaction of its vital forces; Martin, 19 Colo. 565, 36 Pac. 543; Hudson v. but neither the human body nor the munic- City of Denver, 12 Colo. 157, 20 Pac. 329. ipal corpus loses its identity, its individual- In City of Galesburg v. Hawkinson, 75 Ill. ity, or its unity by such growth or enlarge- 158, it is said that the boundaries of municment. It is a misnomer-a solecism-to ipal corporations can be altered and changed speak of a growth of the human body not by the legislature in its discretion, and that connected with the body itself. Such a the authorities are all that way. The opingrowth is, in fact, not of the body. So, ter- ion, however, significantly adds: “Courts ritory not in fact connected with or adjacent may determine what are the corporate limto a city cannot be regarded as a part of the its already established; they may determine municipal corpus, or as an addition thereto, whether what is claimed by the municipal in any true sense of the term. Analogous authority to be the corporate limits is so or questions have been considered by the Wis- not; and they may inquire whether the leg. consin supreme court. Railway Co. v. Town islative authority has exceeded the powers of Oconto, 50 Wis. 189, 6 N. W. 607; Smith with which it is invested. But all this im. v. Sherry, 50 Wis. 210, 6 N. W. 561. In the plies an existing law, applicable to the parlatter case Mr. Justice Taylor said: “We ticular subject, and the inquiry is, what is do not by this decision intend to set bounds the law, and has it been violated or complied to the discretion of the legislature in fixing with?” the boundaries of a village, so long as the Counsel for appellant relies upon the folterritory of which it is composed is adja- lowing from an eminent text writer: "Not cent or contiguous, nor to intimate that the only may the legislature originally fix the legislature may not incorporate as one vil- limits of the corporation, but it may, unless lage two or more assemblages of inhabitants specially restrained in the constitution, subliving at some distance from each other, sequently annex, or authorize the annexawith spaces of uninhabited lands interven- tion of contiguous or other territory; and ing, when such intervening spaces are also this without the consent, and even against included in such village, but that a village the remonstrance, of the majority of the percannot be incorporated containing two or sons residing in the corporation or on the more tracts of territory not contiguous or annexed territory.” 1 Dill. Mun. Corp. (4th adjoining, and separated by some other civil Ed.) § 185. The words “or other,” in the subdivision of the state, and especially that foregoing extract, are not italicised in the an uninhabited and separate tract of country published volume. The leading case cited cannot be annexed to or made a part of an in support of the text is Blanchard v. Bisincorporated village. If, by an act of the sell, 11 Ohio St. 96. That case was one legislature, a tract of country not inhabited, wherein it was sought to annex an unincorand not adjoining a village, can be made a porated village to the city of Toledo. It part of such village, then it would seem to was objected that the territory sought to follow that, by another act of the legisla- be annexed was not in fact contiguous to ture, the inhabited part of such village the city of Toledo. The opinion shows "that might be separated therefrom; and we the center of the Maumee river formed the should have the anomalous thing of a vil- southeastern boundary of the city of Toledo; lage without inhabitants, and composed that the annexed territory [consisting of an simply of a tract of territory, which would unincorporated village called "Yondota") is be an absurdity.”
situated on the southeastern side of the From careful investigation and considera- | river, in a bend running up near to the beart of the city, and that all of it is nearer to the cept on the west. As to these, the city lim. center of the business and valuable property its must end where the insurmountable obthan many other portions of the original city stacles—that is, the territorial limits of the territory; that the river is navigable, and, intervening municipalities-begin. where it formed said original boundary, is For the reasons stated, we are clearly of of unequal width; but, for half a mile or the opinion that the legislature did not have more, does not exceed one-fourth of a mile the power to extend or enlarge the terri. in width, and has been permanently bridged torial limits of the city of Denver by adding for railroad purposes, and may be bridged thereto the noncontiguous strip of lands for other purposes; that Yondota depended situate in Jefferson county, and that the dismainly upon the influence of business and trict court did not err in restraining the colimprovements in Toledo for its growth and lection of taxes by or for the use of the city importance. The transcript of the annexa. of Denver upon such Jefferson county proption proceedings, and the accompanying erty. This conclusion being decisive of the map, show that the annexation consists in present controversy, other questions sought an extension of the original boundaries, so to be raised upon this appeal need not be as to include the whole of the river and a discussed. The judgment of the district considerable tract of land on its southeast court is accordingly affirmed. Affirmed. side. There is no territory intervening between that which was annexed and the orig
On Rehearing. inal city limits. All the parts of the an
(March 4, 1895.) nexed territory are in immediate contact with each other; and the whole is in direct
PER CURIAM. Counsel for appellants have contact for several miles with the original
presented an elaborate argument in support boundary. Contiguity cannot import more of their petition for a rehearing. Their conthan immediate contact; and we think the tention is that since the constitution allows objection founded on a want of contiguity is legislative amendments to special municipal not well taken.” It is clear that the Toledo charters, and does not expressly forbid the case in no way militates against the views annexation of noncontiguous territory, therewe have expressed, but rather confirms fore, under the power of amendment, the leg. them; none of the other cases cited by coun- islature may annex, to a specially chartered sel sustain the view that noncontiguous ter- town or city, territory located in any part ritory may be added to and made part of a of the state, however disconnected and retown or city; hence we conclude that the mote the same may be from the city to which text of Judge Dillon above quoted cannot it is sought to be annexed. Counsel earnestbe accepted as correct to its full extent and ly contend that any question concerning the import. The dearth of authority upon this legality of such annexation is a matter for point leads to the belief that legislatures legislative, and not for judicial, determinahave seldom, or never before, attempted to tion. This view was thoroughly considered annex to an incorporated town or city ter- when the former opinion was announced. We ritory so clearly noncontiguous as in the pres- were aware of the decisions by this court susent instance.
taining the power of the legislature to amend It was argued orally that, while the legis. special municipal charters. Without discredlature may not have the power to annex dis- iting such decisions as have been made upon tant noncontiguous territory by a direct act this subject, we have felt constrained to say for that purpose, yet in this case the Jeffer- that it was never contemplated to give the son county strip must be regarded as a part legislature the power, under the guise of of the city of Denver, for the reason that amendments, to make such radical and unit is included in the boundary surveys as heard-of changes in specially chartered towns specified in the revised and amended char- or cities as the annexation of territory enter, and that, unless so included, the city tirely disconnected and remote from the orighas no boundary lines, particularly on the inal municipality. Such annexation would west. This argument is without force. be foreign to the subject-matter of the origEquity looks to the substance rather than inal municipality, and hence not a proper the form; it regards the result of an act subject of amendment; and the provisions rather than the mode of accomplishing it.
therefor would not be germane to the There may be a wrong way of doing a right one general subject of the act, or clearthing, but there is no right way of doing a ly expressed in the title, as required by secwrong thing. An act essentially wrong does tion 21 of article 5 of our constitution. There not become right by the manner of doing it. can be no doubt that the term “town" or "city" If the mode of making municipal additions was used in the constitution in its ordinary as argued by counsel were to be upheld, any signification, as denoting a single parcel of noncontiguous territory, however remote, compact or contiguous territory, and not as might be surveyed in, and thus become at- incluuing several distinct parcels of land sittached to and made a part of, the city. The uate at remote distances from each other. conclusion at which we have arrived need The idea of a town or city is that of unity, not disturb the boundary lines of the city not plurality. Hence we have felt constrainas established by the amended charter, ex- ed to say that a thing essentially single cannot, by legislative act, be given a plural exis- Denver as thus extended. In said case we tence, especially where the legislative power held that, by a special act of the legislature, over such subject is the power to amend such as this confessedly is, the boundaries of rather than the power to change its essential the city of Denver could not be so enlarged character. There are several specially char- as to include therein other municipalities intered municipal corporations in this state corporated under the general laws of the whose charters are subject to legislative state; the reason given, inter alia, being amendment; but may the legislature, under that this would by special law disincorporate the guise of amending these charters, add a such existing corporations organized under section of land in Weld county to Central City, the general incorporation laws, and that secanother section in El Paso to Georgetown, tion 13 must be held to extend to the disinanother section in Las Animas to Black corporation, as well as to the incorporation, Hawk, another section in Gunnison valley to of such cities and towns. If it be said that Denver, thus dotting the state over with mu- the objection pointed out in Re Extension of nicipal cases, at the discretion of the legis- | Boundaries of City of Denver, supra, to the leg. lative department? We are of opinion that islation embodied in the question submitted by it is within the province of the judiciary to the house of representatives, does not apply give the power of amendment in such cases to the section now under consideration, our a reasonable construction; and, if the legis- | reply is that, although the two provisions lature does not restrict itself to proper limits are not literally the same, yet the evident obin exercising such power, the courts must ex- ject aimed at by both is the same, and the ercise proper control over the subject. practical effect and operation of both will be In their argument upon the petition for a the same.
It is true that the section under rehearing, counsel for the appellants chal- consideration does not include within the limlenge the court to point out the particular its of the city of Denver these existing muprovision of our constitution which inhibits nicipalities; but the proposed boundaries of the legislation complained of. From what we the city of Denver go beyond these municihave just said it follows that the provision palities, and the city of Denver, as wus confor annexation of noncontiguous territory, | stituted, is made to surround these towns and not being germane to the subject-matter of cities on all sides, and they are thus cut off the original municipality, is obnoxious to sec- from any further growth or territorial extion 21 of article 5. In addition to this, if pansion. The operation of the act, as well the effect of this act in its practical operation as its form and its words, must be looned to be practically, though indirectly, to destroy to determine the constitutionality of a measand annul the corporate existence of these intervening municipalities, then under the de- If the legislature, by a special law, may thus cision of this court in Re Extension of Bound- extend the boundaries of a city so as to inaries of City of Denver, 18 Colo. 288, 32 Pac. clude therein noncontiguous territory, with 615, it can be said that this provision violates a number of existing municipalities incorpo the spirit of section 13 of article 14 of our rated under the general laws of the state lying constitution, which enjoins upon the legisla- | between such noncontiguous territory and the ture the duty to "provide by general laws for previously established limits of the city whose the organization and classification of cities boundaries are thus sought to be extended, and towns." See, on this point, Smith v. such legislation would just as effectually stop Sherry, 50 Wis. 210, 6 N. W. 561. One of the growth and development and curtail the the purposes of this act to revise and amend powers of these intervening corporations, the charter of the city of Denver was to ex- which were granted to them under the general tend the boundaries of the city, and this ex- incorporation laws, and practically and just tension must have been designed either to as effectually disincorporate them as to some provide the necessary territory for the growth of the powers and privileges granted to them and development of an enterprising city, for by general law, as though the special legislalegitimate purposes of revenue, or some other tive act, in so many words, swept them out proper municipal purpose; or else it must of existence. Thus would the special law, in have been to accomplish by indirection what effect, repeal and render nugatory the gen. could not be done directly, viz. to annul these eral incorporation laws of the state. Thus intervening corporations, or to cripple them, would towns and cities incorporated under and deprive them of some of the privileges the general laws be forced by a special law and powers which they possess under the gen. involuntarily to surrender the powers and eral laws, and so force them, unwillingly, privileges acquired under such general laws. into the city of Denver. The section of said To accomplish such results by indirection, act which we held in the above-cited case to when the same could not be done directly, be in conflict with said section 13 of article would nullify the limitations imposed by the 14 expressly provided for the disincorpora- constitutional provision referred to. The petion of these municipalities, and proposed to tition for rehearing should be denied. Re. include them within the limits of the city of | hearing denied.
(21 Colo. 32)
tution. This instrument contains hundreds In re HOUSE BILL NO. 107.
of sections, and, unless the inquiry be spe(Supreme Court of Colorado. March 1, 1895.)
cific, the court might spend days and weeks
in investigation of provisions that have occa. GENERAL ASSEMBLY-ADVICE OF SUPREME COURT -SUFFICIENCY OF INQUIRY.
sioned no doubt whatever in the minds of
the members of the house." We take this The supreme court will not give the general assembly, or either branch of it, its opinion
opportunity to restate what was said in the as to the constitutionality of a particular bill opinion rendered in Re District Attorneys, where the inquiry is “as to the constitutionality 12 Colo. 466, 21 Pac. 478. “We feel conof said" bill, and recites that, “if said bill is not constitutional, it is the desire of this house that
strained to repeat and emphasize the the court state in writing wherein the said thought, heretofore expressed, that the utbill is not constitutional"; since the inquiry most vigilance and caution be exercised by must point out the particular provision of the constitution that, in the judgment of such
both the general assembly and the court in house, the proposed legislation contravenes.
acting under this novel constitutional au
thority. There cannot well be too much Question submitted to the supreme court
moderation in the premises. We note that, by the house of representatives of the state of Colorado as to the constitutionality of
in those states which permit consultation
with the justices, the privilege seems to be house bill No. 107, to provide for the monthly
less often invoked than it has been here. payment of wages.
The attorney general is the natural as well "Whereas, the question has been raised by
as the statutory legal adviser of the execucertain members of the house of representa
tive and legislative departments. His countives of the state of Colorado as to the con
sel should be solicited; and only as a dernier stitutionality of house bill No. 107: There
ressort, upon the most important questions fore, resolved that it is the desire of the
and the most solemn occasions, should the house of representatives of the tenth gen
court be requested to act." It will readily eral assembly of the state of Colorado that
be seen that the question submitted is not they have the opinion in writing of the honorable supreme court of the state of Colorado
in conformity with these requirements, and
we are precluded by the well-settled pracas to the constitutionality of said house bill
tice from giving an opinion thereon. No. 107, and, if said bill is not constitutional, it is the desire of this house that the court state in writing wherein said bill is
(21 Colo. 27) not constitutional."
In re HOUSE BILL NO. 203. PER CURIAM. We are again compelled
(Supreme Court of Colorado, March 1, 1895.) to call attention to the oft-repeated an
ConstituTIONAL LAW-Right To ContraCT. nouncement of this court that, as a neces
House bill No. 203, dated February 20, sary condition precedent to the exercise of
1895, and entitled “A bill for an act to regulate
the weighing of coal at mines,” etc., in so far our extraordinary jurisdiction, under sec
as it attempts to deprive persons of the right tion 3, art. 6, of the constitution, the ques- to fix by contract the manner of ascertaining tion submitted must be specific, and must compensation for mining coal, is in violation
of Const. U. S. Amend. 14, and of article 2, $ point out the particular provision of the con
25, of the Colorado bill of rights, which prostitution that, in the judgment of the honor- vides that "no person shall be deprived of life, able house, the proposed legislation contra- liberty, or property, without due process of venes.
law.' In re Irrigation, 9 Colo. 620, 21 Pac. 470; In re House Bill No. 165, 15 Colo. 593, Question submitted to the supremc court 26 Pac. 141; In re Loan of School Fund, 18 by the house of representatives of the state Colo. 195, 32 Pac. 273. In Re House Bill No. of Colorado as to the constitutionality of 165, we said: “Should we attempt to give house bill No. 203, to regulate the weighing our views upon the constitutionality of the of coal at the mines, under the following bill submitted without more specific inquiry, resolution: we might devote a great deal of time and “Whereas, the revision and constitution space to matters about which the honorable committee, in their report on house bill No. members of the house have no doubts, and 203, Feb. 20, 1895, a bill for an act to regustill omit to consider the very question or late the weighing of coal at mines, etc., have questions upon which our opinion is desired. had the same under consideration, and beg When the constitutionality of a statutory leave to recommend that in the opinion of enactment is challenged in this court in or- this committee the bill is unconstitutional, dinary litigation, our attention is uniformly for the reason that the privilege of all Ameridirected to some specific constitutional pro- can citizens under our constitution is abridgvision, and our opinion is limited according- ed, inasmuch as the right to contract is ly.” In response, in Re Eight-Hour Law, taken away; but your committee recom39 Pac. 328, we recently said: "If there is mend that the bill be referred to the supreme a doubt as to the constitutionality of pro- court for an opinion from them on the quesposed legislation suggested by any member, tion: Therefore, be it resolved, that H. B. such doubt must be occasioned by some par- No. 203 be, and the same is hereby, referred ticular provision or provisions of the consti- to the supreme court for an opinion: Providing said H. B. No. 203 be enacted into law, would it be constitutional ?"
POLLARDr. MCCLOSKEY et al.
(Court of Appeals of Colorado. Feb. 11, PER CURIAM. While the foregoing ques
1895.) tion does not specifically point out the par- CONTRACT-MERGER OF NEGOTIATIONS-PRINCIPAL ticular provisions of the federal or state con
AND AGENT--FRAUD. stitution that, in the judgment of the hon- 1. Where no fraud was used by defendant orable house, prohibits this class of legisla
in obtaining from plaintiff a writing authoriztion we infer from the report of the honor
ing him to sell property at a certain price, and
plaintiff knew the terms of the writing, eriable committee on revision and constitution dence as to the value of the property, and of that in its opinion the pending bill is ob
defendant's statements in regard thereto, made
previous to the execution of the writing, is not noxious to section 1 of the fourteenth amend
admissible to show a right of recovery by plain. ment to the constitution of the United States, tiff. which declares, "No state shall make or 2. An agent who sells property for his prin. enforce any law which shall abridge the
cipal at a price named by the latter is not lia
ble to him, in the absence of fraud or violation privileges or immunities of citizens of the
of instructions, for the difference between what United States," and also to section 25 of the goods actually sold for and what they were article 2 of our bill of rights, which provides
worth. "that no person shall be deprived of life, Appeal from district court, Pueblo county. liberty or property, without due process of Action by H. Pollard against Lyda Mclaw." In so far as the bill attempts to Closkey and others. From a judgment for abridge the right of contract between par- defendant McCloskey, plaintiff appeals. Reties in regard to matters personal to them- versed. selves, and to deprive them of the power to Appellant brought suit against Lyda Mcfix the mode in which compensation for min- Closkey and John Norris on a promissory ing coal shall be ascertained, it is clearly an note made by them jointly for $150, payable infringement of these constitutional guaran- six months after date, with interest at 10 ties. State v. Goodwill, 33 W. Va. 179, 10 per cent., dated March 4, 1891, upon which S. E. 285; Millett v. People, 117 Ill. 294, 7
a payment of $42.09 had been indorsed. DeN. E. 631; Wally's Heirs v. Ke edy 2
fendants answered, admitting the making Yerg. 554; Godcharles v. Wigeman, 113 Pa. of the note and alleging payment, etc. As. St. 431, 6 Atl. 354; State v. Loomis, 115 Mo. a special defense and cross complaint, al307, 22 S. W. 330; Low v. Printing Co. (Neb.) leged that one Cronyn had a photographic 59 N. W. 362; Ramsey v. People, 142 Ill. gallery, on which he had given plaintiff a 380, 32 N. E. 364; Frorer v. People, 141 Ill. chattel mortgage for $350. The plaintiff 171, 31 N. E. 395. In Frorer v. People it is represented to McCloskey that the photosaid: “The privilege of contracting is both graphic gallery was for sale, was an excela liberty and a property right, and if A. is lent investment, was worth $2,000; that she denied the right to contract and acquire could buy one-half for $800,-425 cash and property in a manner which he has hitherto $375 in notes; that, relying upon the repreenjoyed under the law, and which B., C., and sentations, she bought the one-half for $800, D. are still allowed by the law to enjoy, it is and became a partner of Cronyn; that plainclear that he is deprived of both liberty and tiff subsequently informed her that Cronyn's property, to the extent that he is thus denied
half interest could be bought for $150 (subthe right to contract.” And in the case of ject to the chattel mortgage); that she Ramsey v. People the court, in discussing a bought the interest, and gave the note sued statute similar to the present bill, used this upon; that, after this, plaintiff represented language: “The statute makes it imperative, that he was going to foreclose the chattel where the miner is paid on the basis of mortgage, which would be a great expense the amount of coal mined, whatever may be to her; that he had a purchaser for the propthe wishes or interests of the parties, that erty, and, if she would give him authority the,coal shall be weighed on the pit cars be- to sell it, he could get enough to pay all fore being screened, and that the compen- debts against it, including the note sued on sation shall be computed upon the weight and $65 to $100 besides; that appellant, to of the unscreened coal. In all other kinds induce her to buy the property in the first of business involving the employment of instance, fraudulently represented it to be labor, the employer and employé are left worth $2,000, when he knew it to be only free to fix by contract the amount of wages worth $1,000; that, after buying, she bought to be paid, and the mode in which such and put in $271 in stock, which was turned wages shall be ascertained and computed. over to the plaintiff'; and asking judgment This is justly regarded as a very important for $523. In the replication filed, plaintiff right, vitally affecting the interests of both alleged that the property was attached; that parties. To the extent to which it is abridg- McCloskey could not satisfy the attachment, ed, a property right is taken away." Our and plaintiff was about to foreclose his mortopinion is that the bill, in its present form, gage to protect himself; that he told Meis inhibited by the foregoing constitutional Closkey he could sell the gallery for enough provisions, and, if enacted into law, would to pay the mortgage and attachment and be unconstitutional,
costs, if she would give him authority to do