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assigns numerous errors as grounds for reversal. Only two will be considered, as they are decisive of the case.
Teller, Orahood & Morgan, for plaintiff in
structions to the district court to set aside the decree in so far as it seeks to enforce a lien against the property of the defendant railway company, and, as to such defendant, to dismiss the action. Reversed.
CAMPBELL, J. (after stating the facts).
(21 Colo. 46) 1. There was no compliance by the plaintiff
In re HOUSE BILL 168. with that part of section 3, p. 219, Sess. Laws
(Supreme Court of Colorado. March 11, 1895.) 1889, which requires the claimant of a lien
ConstiTUTIONAL LAW-APPROPRIATION BILL-PLUto serve upon the owner of the property, his
RALITY OF SUBJECTS. agent or trustee, a copy of the statement of 1. The bill enacted as Act March 17, 1891, lien at or before the time when he files the sections 1 and 2 of which provide for a permasame with the county clerk and recorder.
nent and continuing levy and appropriation of a
tax for certain state educational institutions, The proof is that the plaintiff went to the and section 3 for the election of a treasurer for office of Mr. Choate, the superintendent of the each institution, and section 4 repealing all indefendant company, to serve such copy upon
consistent acts, contains affirmative legislation
upon matters of such a permanent nature as to him, but the latter was not in his office.
make it a special, and not a general, appropriaThereupon the plaintiff gave said copy to a tion bill. clerk in the office, who promised to deliver it 2. Such bill, in embracing in one act four
irstitutions to which the proceeds of the tax to the superintendent; but there is no evi
are to be exclusively devoted, contains four disdence to show that the promise was kept or tinct subjects or purposes of appropriation, and the notice received by the superintendent. is violative of Const. art. 5, 8°32, which proIf it be assumed that Mr. Choate was the
vides that all other than general appropriations
shall be made by separate bills, each embracing agent or trustee of the company, in respect but one subject. to this work of grading (as to which there is
The opinion of the court, as to the constino evidence at all), under no construction can it be held that this service of a copy of
tutionality of the act whose title is above the lien statement upon the clerk of the
given, is in response to the following pre
amble and resolution: superintendent of the defendant company was such service as the statute prescribes.
"Whereas, there has been introduced into 2. It has been held in other jurisdictions,
the house of representatives of the state of even in the absence of a statute to that effect,
Colorado, and there is now pending in said that in actions to enforce the lien of a sub
body, house bill No. 168, a copy of which
is hereto attached, which bill provides, contractor arising under mechanic's lien laws, the contractor should be made a party de
among other things, for the repeal of sec. fendant. The mere statement of this rule
tions one and three of an act to provide for carries with it its own justification. The gen
the assessment, levy, and collection of a eral scope of our mechanic's lien acts clearly
state tax for the support and maintenance
of certain state educational institutions, etc., contemplates that the contractor and all claimants of liens shall be made parties to
approved March 17, 1891; and whereas, one an action brought to enforce a lien, and that
of the main arguments used in favor of the all shall have their rights adjudicated in one
repeal of said sections is that section one action, and protected and enforced in one
of said act is unconstitutional, in that it conjudgment. Section 8, p. 251, Sess. Laws
flicts with section 32, article 5, of the con1889, declares that “any such claim of any
stitution of the state of Colorado; and sub-contractor that shall be established un
whereas, if said section one should at any der this act by the judgment or decree of
time before the expiration of the fiscal year court, shall, to the full amount thereof, be a
1896 be declared unconstitutional, then the valid set-off in favor of such owner and
state institutions named in said section against the contractor," but not to "any
would be left without their proper support: greater extent than the contract price for the
Therefore be it resolved that the honorable building or other improvement, or total in
supreme court of the state of Colorado be debtedness of the owner to the contractor for
and is hereby requested to render its opinthe whole work." We must not suppose that
ion in writing at the earliest possible date, the legislature by this intended that the
for the use of this house, upon the question
of the constitutionality of said section one owner should be entitled to such set-off against the contractor unless the latter was
of the General Laws. Approved March 17,
1891." a party to the action in which his rights were determined. In this case service upon the T. M. Robinson, J. W. McCreery, and H. original contractor was feasible. He was in Riddell, amicis curiae. the county at the time the suit was instituted, and he could easily have been brought in. PER CURIAM. It has been the establishTo this effect is the case of Davis v. Lumber ed practice of this court not to answer quesCo., 2 Colo. App. 381, 31 Pac. 187.
tions propounded by the legislature, if such For the foregoing reasons, the judgment questions affect private rights, or if they do should be reversed and remanded, with in- not relate to pending legislation. The ques
tion above submitted relates, strictly, not to as this act carries may be made in a general a bill pending in the house of representa- appropriation bill; third, that this act may tives, though it is asked in connection with, properly be termed one of the general apand as bearing upon, house bill No. 168, propriation bills of the eighth general assembut it relates to the constitutionality of an bly; and, fourth, if either of the foregoing act passed by the general assembly at the propositions is unsound, that this act is a session of 1891. But inasmuch as the rights special appropriation bill,--special, as distinof the public are involved, and the interests guished from general,-and embraces but of the state institutions concerned are so one subject. vitally affected, and the results to them These four institutions are regarded by this would be so disastrous were the answer act as educational. Whether or not they are which we feel constrained to give withheld such, under sections 1 and 5 of article 8 of until after the present session of the legis- our constitution, we need not decide; but, for lature, we have concluded to depart from the purposes of this case, let it be conceded such practice, and answer the question sub- that this act properly classifies them. The mitted. This, however, must not be taken same concession may be made as to the secas a precedent for the right in general of ond assumption above stated, and will be so the legislature to ask for information as to made without any ruling one way or the oththe constitutionality of an existing act.
One of the remaining questions, then, to Section 32 of article 5 of our constitution, be disposed of is, was this measure before its which is the provision referred to, is as fol- enactment a general appropriation bill? The lows: "The general appropriation bill shall general appropriation bill always has been, embrace nothing but appropriations for the and should be, to provide appropriations such ordinary expenses of the executive, legislative and judicial departments of the state
, the period of two years only. It is a teminterest on the public debt, and for public porary measure, and must be renewed at each schools. All other appropriations shall be session of the legislature. Nothing of a permade by separate bills, each embracing but manent nature ought to be, and under the proone subject." The act in question consists visions of section 32 nothing of that kind can of four sections: Section 1 makes provision be, embraced therein. Here we have in this for the levy of a special tax for the support act a provision for a permanent and continuof the agricultural college, the state school of ing levy and appropriation of a tax, and a mines, the state normal school, and the in- section which, in detail, provides for the elecstitute for mute and blind, one-sixth of a tion of a treasurer of each institution, and mill to each. Section 2 sets apart and ap- specially defines his duties. Such affirmapropriates for the exclusive use of each of tive legislation, while it may not make the these so-called "educational institutions” the whole act invalid, cannot be included in a revenues derived from its respective levy, general appropriation bill, nor can such a bill and authorizes the state auditor to draw bis be termed a "general appropriation bill." See warrant therefor on the state treasurer in People v. Spruance, 8 Colo. 307, 6 Pac. 831. favor of the respective treasurers of these True it is that there may be, and frequently four institutions for the amount to which are, passed at each session of the legislature each is entitled. Section 3 provides for the two or more bills carrying general appropriaelection of a treasurer of each of these in- tions; but we find upon examination of the stitutions, and defines his duties. Section 4 session laws from the first session of our legiscontains a repealing clause of all previous | lature until the present time that those bills, and inconsistent acts upon the same subject. which may be denominated “general approIt will be observed that in the title of this priation bills," enacted early in the session, act there is no mention made of an appro- | invariably made appropriations to provide for priation; and under the doctrine of this current or ordinary expenses to cover the pecourt laid down in Re Breene, 14 Colo. 401, riod intervening between the close of the pre24 Pac. 3, it may be questioned if this act vious fiscal year and the time when the gencan be held constitutional under section 21, eral appropriation bill proper may be passed art. 5, of the constitution. But as our at- at the close of the session, at which time, and tention has not been specifically called to not before, the legislature can know with rea that provision, and as we consider the act sonable certainty the probable amount of the invalid for other reasons, we prefer to base revenue which the constitutional rate of taxa. our conclusion upon the construction of the tion will yield. They were intended only as provision to which our attention is called. parts of the general appropriation bill to be
No authority directly in point has been passed later, and the amounts carried by all found by either the court or the counsel constituted the general appropriation for the who have so materially assisted us by their
two years. labors. To sustain the constitutionality of But, even if appropriations for these instituthis act, at least four assumptions must be. tions might properly be made by the legislamade: First, that each of the four state ture in a general appropriation bill, this act institutions mentioned in the body of the cannot be considered as having been a general act is a department or branch of the public appropriation bill for the reasons given above; schools; second, that appropriations such and, besides, the title of the act shows that
the general assembly did not so consider it. | that a separate provision was inserted in our The provisions for the levy of the tax and for constitution to protect it from improvident the election of a treasurer are affirmative mat. disbursements. So section 32 regulates the ters, and are not properly embraced within two general classes of appropriation bills, by a general appropriation bill. We hold, then, providing that even the general appropriation that this bill, which merged into this act, was bill shall embrace nothing but appropriations not a general appropriation bill. Therefore for the ordinary expenses of the three great the bill, before its passage, having been a departments of state, interest on the public special appropriation bill, its validity is to be debt, and the public schools, and that all other determined by the proper construction of sec- appropriations shall be made by separate tion 32, Sections 21 and 32 of article 5 of bills, each cmbracing but one subject. Both our constitution, however, are both so inti- sections, therefore, apply to appropriation mately connected with the question before us bills, and these are doubly guarded. Wheththat they should be considered together. Sec- er we construe "each” as qualifying and retion 21 applies to all bills except the general ferring to “bill,” or hold that “each” refers to appropriation bill. It provides that no bill, "appropriation,”-as to which we express no with the exception of the general appropria- opinion,--the same conclusion follows. Section bill, shall be passed containing more than tion 32 was adopted not merely to make emone subject, which shall be clearly expressed phatic the exception found in section 21. Its in its title. It will be observed that not only special office is to guard against improper are all bills of a general character within its appropriations of the public revenue, and to purview, but also all appropriation bills other impose restrictions upon the manner of makthan the general appropriation bill. So that, ing the same not contained in, and in addition so far as the limitations of this section are to those found in, section 21. Whatever may concerned, the general appropriation bill may be the meaning that should be given to the contain as many subjects as are properly word “subject," in section 21, we are satisfied within the power of the general assembly to that it is consonant with, and effectuates, the make provision for. It will also be observed further restrictions sought to be imposed by that as to all other appropriations, by the section 32, to give "subject” as found in this special injunction of the same section, each latter section a meaning substantially equivabill therefor must contain only one subject. lent to “purpose.” Instead of the word “sub
To make clear beyond question the conclu- ject" in section 21 of our constitution, the consion which we have reached, a brief state- stitutions of some of the other states have in ment of the reasons for the incorporation of like provisions the word "object." Some this section will assist us. In language more states, as Texas and New York, give to or less variant, it is said that one of the ob- “subject" a less restrictive meaning than "objects was to prevent the combining of discon- ject.” Others, like Michigan, regard these nected or incongruous subjects into one bill, words as substantially synonymous. The and thereby gaining a support for all as rule that words found in the same constitugrouped together, which, as separate bills, tion are presumed to have been employed in each, alone, could not command. Not con- the same sense is neither invariable nor intent with this safeguard, which applies to ev- flexible. It is purely an arbitrary rule,-one ery kind of a bill except the general appro- that rests upon presumption merely,-and in priation bill, the framers of our organic act its application is of but slight force, and readadopted section 32. It applies only to bills ily yields where a contrary intent is apparwhich carry appropriations, and divides them ent. Cooley, Const. Lim. (5th Ed.) p. 75. into two general classes: First, the general A definition has already practically been appropriation bill; second, all other bills car- given to this provision in Re Continuing Aprying appropriations, or special appropriation propriations, 18 Colo. 192, 32 Pac. 272, where bills. It is true that the people are affected this court says: “One object of this [section] more or less by any bill which is merged into is evidently to prevent the placing in one bill law, but in a peculiar sense are they interest- of appropriations for several purposes, and ed in measures which disburse the public rev- thereby combining in favor of all the advoenue. The public revenue, whether derived cates of each." The object of this act, of from taxation which falls upon all classes course, was to provide money for the support alike, or whether derived from other sources, of these four institutions. The appropriation belongs equally to the people. Thus, proper- for each certainly constitutes one purpose,ly considering the situation, the wisdom and one subject,-each separate and distinct from foresight of the members of the constitutional each of the other three, and each should be convention have been amply justified by sec- made to depend for passage or defeat solely tion 32. All bills other than appropriation upon its own merits. As there are four insti. bills had been sufficiently guarded by section tutions to which the proceeds of the tax ler21 in the requirement that each general sub- ied are to be applied and exclusively devoted, ject of legislation must have its separate bill, it follows that there are four distinct subjects so that it should stand or fall upon its own or purposes of appropriation contained in one merits. But the evils and dangers of combi- act, which is inhibited by section 32 of article nations and "logrolling” in the matter of the 5 of the constitution. To give to the word appropriation of public revenue were so great “subject" a meaning broader than this would destroy one of the objects of this constitution- for the possession of the land sued for, deal provision. To give it the broad meaning fendants bring error. Affirmed. for which the contention is made would logi- The complaint in this case alleges that cally permit the legislature in one bill, enti- plaintiff, Higbee, is the owner, in fee simple, tled "An act to provide for an appropriation and entitled to the possession, of a certain to defray the expenses of the government," quarter section of land, situate in Bent coun. to make appropriations for every conceivable ty, Colo.; that before the bringing of this acand possible object within the power and con- tion the defendants wrongfully and unlawtemplation of the legislature to provide for, fully and forcibly entered upon and took posand would tolerate the combining into one session of the same, and ousted the plaintiff special bill appropriations for every state in- therefrom, and still continue, unlawfully and stitution and arm of the government, and thus wrongfully, to withhold and retain from make of a special bill a broader and more plaintiff the possession of the same. In the comprehensive measure than the general ap- complaint there is stated a good cause of acpropriation bill itself. Such an interpreta- tion to recover possession of real property, tion would really make, under our constitu- under chapter 23 of our Code. In addition to tion, only two appropriation bills,-one, the the matters that are properly contained in a general appropriation bill, containing the sub-complaint in such an action, there are a numjects which said section 32 of the constitu- ber of other allegations, which, in substance, tion specifies as properly included therein; disclose the following state of facts: At the the other, a special bill to defray the expenses September, 1890, term of the district court of of the state government, and embracing ev. Bent county, Rhoades et al. (who are plainery subject not comprehended in the general tiffs in error here, and were defendants below appropriation bill. It is conceded that, logi- in the case at bar), as plaintiffs, instituted an cally, such would be the result of giving to action in the nature of an action of ejectment the word any broader meaning than we have against William Higbee, who is defendant in given it. But such interpretation is clearly error here, and who was plaintiff in this ac. negatived by that clause of section 32 which tion below. In that original ejectment acdivides into two classes all appropriation bills, tion, Rhoades et al. recovered a judgment for viz. the general appropriation bill, and all the possession of a certain strip of land, about other appropriation bills, which clearly con
72 feet in width by 12 mile in length, and a templates that there shall be, and necessarily
writ of restitution was awarded them to enmust be, as many appropriation bills as there force the judgment. In January, 1891, the are subjects or purposes of appropriation. sheriff, in attempting to execute the foregoFor the reasons given, we hold that the act ing writ, put Rhoades et al. into possession, is unconstitutional.
not only of the strip of land theretofore awarded to them by the said judgment, but
also into the possession of an additional strip (21 Colo. 88)
of land, about 99 feet in width and 12 mile
long, lying immediately north of, and adja. RHOADES et al. v. HIGBEE.
cent to, the foregoing strip. In March, 1891, (Supreme Court of Colorado. April 1, 1895.) this action which we are now considering was EJECTMENT-PLEADING-JUDGMENT-APPEAL.
instituted by Higbee, in the same district 1. A complaint alleging that plaintiff is the court, to recover the possession of the aforeowner and entitled to the possession of the lands sued for, and that defendants wrongfully took
said strip of land, 99 feet in width. This comand withhold the possession, states a good cause plaint further charges that the sheriff, in atof action, under Code, c. 23, although it contains tempting to execute the writ of restitution, the additional averments that the sheriff, in at
construed said judgment and the writ of restempting to execute a writ of restitution upon a judgment previously recovered by defendants,
titution as embracing a strip of land aggreput them into possession of the strip in contro- gating in width the two strips hereinbefore versy, which was not embraced by such judg. | described, and put Rhoades et al. into possesment. 2. An answer to such complaint which
sion of both, which they still retain. There merely denies that the sheriff put defendants
are other allegations in the complaint, upon into possession of any part of the lands describ- which was based an application for a tempoed in the complaint, and that they entered into
rary writ of injunction, but they are unnecespossession of any land awarded to plaintiff, without denying plaintiff's ownership, or that
sary to be considered here.
For the purposes they are in possession, is insufficient.
of this decision, the foregoing summary of 3. A judgment which correctly decides that the complaint is all that is necessary. a certain prior judgment in favor of defendants, for the possession of certain lands, did Hedley V. Cooke, for plaintiffs in error. not entitle them to the strip in question in the
Charles M. Rigley, for defendant in error. present suit, and awarding the possession thereof to plaintiff. will not be reversed because it also improperly assumes to correct such prior CAMPBELL, J. (after stating the facts). judgment by clearly excluding the strip in con- A demurrer on the ground that the complaint troversy.
did not state facts sufficient to constitute a Error to district court, Bent county.
cause of action was filed by the defendants to Action by William Higbee against Abram this complaint, and overruled by the court. Rhoades and others to recover possession of This ruling was proper, because, as has been real estate. From a judgment for plaintiffl stated, the allegations of the complaint were
sufficient to constitute the action one for the tiff therefrom, and still wrongfully and unrecovery of the possession of real property. lawfully withhold possession thereof from the Upon the overruling of the demurrer the de plaintiff. In their answer, defendants do not fendants, Rhoades et al., filed an answer in deny the ownership of the plaintiff. They do which they denied that the sheriff wrongfully | not deny that they are in possession of the placed them in the possession of any land to property. By failing to deny the allegations which they were entitled under the judgment of the complaint so charging, they admit that set out in the complaint. They further de- they are in possession, and that plaintiff is the nied that the sheriff placed them in posses
They deny that the sheriff wrongfulsion of any part of the quarter section of land ly put them into possession of any land to described in the complaint, and denied that which they were entitled under the original they had ever entered upon any lands award- judgment, and deny that the sheriff put them ed to the plaintiff. Upon the supposed issues into possession of any portion of the 160-acre thus joined, a trial was had to the court with- tract described in the complaint. They furout a jury, apparently by agreement of the ther deny that they entered into possession of parties. The only evidence offered on the any land awarded to the plaintiff Higbee. As trial was that introduced by the plaintiff, has been said, however, there is no denial in Higbee, and consisted of the instructions of the answer of plai ff's ownership, or that the court, the verdict of the jury, and the the defendants were in actual possession of judgment of the court in the original eject- the property in controversy at the time this ment action. The defendants, Rhoades et al., action was instituted. The denial that the offered no testimony whatever. From this sheriff put them into possession of any part evidence the court made a finding to the ef- of the quarter section in dispute is not at all fect that the intention of the verdict, as re- inconsistent with the fact that they themturned by the jury, and the judgment, as en
selves entered into and took possession theretered of record by the clerk, was to award to of, and still retain the same, and the comRhoades et al., plaintiffs in the original case, plaint so charges. We see no pertinency in only the land described as the strip 72 feet | the denial that defendants entered upon any in width by 12 mile in length. Upon such
lands awarded to the plaintiff, Higbee, as finding the court made an order directing the there is nothing either in the complaint or the clerk of the court to correct the records by en- answer to show that any award of land had tering therein a reformed judgment, which ever been made to Higbee. The denials of the court prepared, and which is set out in this answer do not in any way put in issue the bill of exceptions in this case, which cor- the material allegations of the complaint. rectly, according to this finding, expressed the The most that can be contended is that the judgment which, as a matter of fact, was ren
defendants merely deny that their possession dered and pronounced by the court at the of the property was wrongful. This is only a September, 1890, term in the ejectment ac- conclusion of law, and does not negative any tion, and which, as thus corrected, more clear- material allegation of the complaint. It aply described the strip of land, 72 feet wide, pearing from the pleadings that the undiswhich the court and jury evidently intended puted facts are that the defendants wrong. to award to Rhoades et al. in that action. In fully took possession of, and wrongfully withaddition to such decree and order making the held from the plaintiff, this strip of land 99 foregoing correction, the court below adjudged feet wide and 12 mile long, of which the that the plaintiff, Higbee, recover from the plaintiff was at the time seised, and of which defendants, Rhoades et al., possession of that he was entitled to the possession, the action strip of land, 99 feet wide by 12 mile long, of the court in giving judgment for the plainlying immediately north of and adjoining the tiff for the recovery of the possession of the strip of land, 72 feet wide, described above. property was right. It is immaterial that the
Exactly upon what theory, under the com- decree of the court also provided for the corplaint in this case, and in this character of rection of the judgment in the ejectment acan action, the district court corrected the tion, and this is so even though such ruling original judgment pronounced in the first ac- was wrong. Payne v. Treadwell, 16 Cal. 220; tion, we are at a loss to know; but the deci- F. A. Hihn Co. v. Fleckner (Cal.) 39 Pac. 214. sion of this case does not call for any deter- It follows that the judgment should be af. mination by us of the correctness or incorrect
firmed. Affirmed. ness of such ruling. Under our construction of the pleadings in this case, the court was
(27 Or. 175) fully justified in finding, as a matter of law,
LATTIE-MORRISON v. HOLLADAY et al. upon the complaint and answer, that the plaintiff, Higbee, was entitled to recover the
(Supreme Court of Oregon. April 1, 1895.) possession of the strip of land in controversy
ADVERSE PossessION -EVIDENCE - JUDGMENT IN
ANOTHER Sort. in this action, viz. the strip 99 feet wide by
1. On an issue as to adverse possession, a 12 of a mile in length. It will be observed decision, in an action against the same defendthat the complaint alleges that the plaintiff, ant by another plaintiff, that defendant held as Higbee, was seised in fee of the premises in
mortgagee of the latter, to which action plaintiff
was not a party, and which was brought long controversy, and entitled to its possession;
after plaintiff acquired title, is not admissible to that the defendants wrongfully ousted plain- show the character of defendant's possession.