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Legislative acts in the matter of extending the boundaries of municipal corporations are to be interpreted and applied according to the essential nature as well as the subject matter of such legislation. In the nature of things, there must be some limit to legislative power. For example, the legislature cannot extend the municipal boundaries of a city into another state. Legislative acts upon such a subject would have no extraterritorial force. There are some things that in their very nature cannot be accomplished by any human power: A thing cannot be made to exist as a whole and in broken disjointed fragments at one and the same time. A thing essentially single in its nature cannot have a plural existence. Every municipality must have its territorial corpus, in which to exercise its corporate functions and powSuch corpus may be enlarged or diminished by the action of the legislature. So the human body may grow or diminish by the acuon or nonaction of its vital forces; but neither the human body nor the municipal corpus loses its identity, its individuality, or its unity by such growth or enlargement. It is a misnomer-a solecism-to speak of a growth of the human body not connected with the body itself. Such a growth is, in fact, not of the body. So, territory not in fact connected with or adjacent to a city cannot be regarded as a part of the municipal corpus, or as an addition thereto, in any true sense of the term. Analogous questions have been considered by the Wisconsin supreme court. Railway Co. v. Town of Oconto, 50 Wis. 189, 6 N. W. 607; Smith v. Sherry, 50 Wis. 210, 6 N. W. 561. In the latter case Mr. Justice Taylor said: "We do not by this decision intend to set bounds to the discretion of the legislature in fixing the boundaries of a village, so long as the territory of which it is composed is adjacent or contiguous, nor to intimate that the legislature may not incorporate as one village two or more assemblages of inhabitants living at some distance from each other, with spaces of uninhabited lands intervening, when such intervening spaces are also included in such village, but that a village cannot be incorporated containing two or more tracts of territory not contiguous or adjoining, and separated by some other civil subdivision of the state, and especially that an uninhabited and separate tract of country cannot be annexed to or made a part of an incorporated village. If, by an act of the legislature, a tract of country not inhabited, and not adjoining a village, can be made a part of such village, then it would seem to follow that, by another act of the legislature, the inhabited part of such village might be separated therefrom; and we should have the anomalous thing of a village without inhabitants, and composed simply of a tract of territory, which would be an absurdity."

From careful investigation and considera

tion, it is evident that it was never contemplated by the law that the territorial limits of a town or city might include distinct, disjointed fragments or parcels of land, situate miles and miles distant from each other, and separated from the city proper by intervening territory. It is not to be understood from this that a city may not be formed from territory lying on different sides of a natural stream. Nor must anything in this opinion be construed as intimating that noncontiguous territory may be added to a city by connecting the same by a narrow street or alley. Annexation sought to be accomplished by such means might bear upon its face such earmarks of fraud as would vitiate an ordinary transaction, though we do not intimate that judicial inquiry may extend to the motives of a co-ordinate department of the government. Kountze v. City of Omaha, 5 Dill. 443, Fed. Cas. No. 7,928; Kelly v. City of Pittsburgh, 85 Pa. St. 170; People v. Martin, 19 Colo. 565, 36 Pac. 543; Hudson v. City of Denver, 12 Colo. 157, 20 Pac. 329. In City of Galesburg v. Hawkinson, 75 Ill. 158, it is said that the boundaries of munic ipal corporations can be altered and changed by the legislature in its discretion, and that the authorities are all that way. The opinion, however, significantly adds: "Courts may determine what are the corporate limits already established; they may determine whether what is claimed by the municipal authority to be the corporate limits is so or not; and they may inquire whether the legislative authority has exceeded the powers with which it is invested. But all this implies an existing law, applicable to the particular subject, and the inquiry is, what is the law, and has it been violated or complied with?"

Counsel for appellant relies upon the following from an eminent text writer: "Not only may the legislature originally fix the limits of the corporation, but it may, unless specially restrained in the constitution, subsequently annex, or authorize the annexation of contiguous or other territory; and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory." 1 Dill. Mun. Corp. (4th Ed.) $ 185. The words "or other," in the foregoing extract, are not italicised in the published volume. The leading case cited in support of the text is Blanchard v. Bissell, 11 Ohio St. 96. That case was one wherein it was sought to annex an unincorporated village to the city of Toledo. It was objected that the territory sought to be annexed was not in fact contiguous to the city of Toledo. The opinion shows "that the center of the Maumee river formed the southeastern boundary of the city of Toledo; that the annexed territory [consisting of an unincorporated village called "Yondota"] is situated on the southeastern side of the river, in a bend running up near to the heart

of the city, and that all of it is nearer to the center of the business and valuable property than many other portions of the original city territory; that the river is navigable, and, where it formed said original boundary, is of unequal width; but, for half a mile or more, does not exceed one-fourth of a mile in width, and has been permanently bridged for railroad purposes, and may be bridged for other purposes; that Yondota depended mainly upon the influence of business and improvements in Toledo for its growth and importance. The transcript of the annexation proceedings, and the accompanying map, show that the annexation consists in an extension of the original boundaries, so as to include the whole of the river and a considerable tract of land on its southeast side. There is no territory intervening between that which was annexed and the original city limits. All the parts of the annexed territory are in immediate contact with each other; and the whole is in direct contact for several miles with the original boundary. Contiguity cannot import more than immediate contact; and we think the objection founded on a want of contiguity is not well taken." It is clear that the Toledo case in no way militates against the views we have expressed, but rather confirms them; none of the other cases cited by counsel sustain the view that noncontiguous territory may be added to and made part of a town or city; hence we conclude that the text of Judge Dillon above quoted cannot be accepted as correct to its full extent and import. The dearth of authority upon this point leads to the belief that legislatures have seldom, or never before, attempted to annex to an incorporated town or city territory so clearly noncontiguous as in the present instance.

It was argued orally that, while the legis lature may not have the power to annex distant noncontiguous territory by a direct act for that purpose, yet in this case the Jefferson county strip must be regarded as a part of the city of Denver, for the reason that it is included in the boundary surveys as specified in the revised and amended charter, and that, unless so included, the city has no boundary lines, particularly on the west. This argument is without force. Equity looks to the substance rather than the form; it regards the result of an act rather than the mode of accomplishing it. There may be a wrong way of doing a right thing, but there is no right way of doing a wrong thing. An act essentially wrong does not become right by the manner of doing it. If the mode of making municipal additions as argued by counsel were to be upheld, any noncontiguous territory, however remote, might be surveyed in, and thus become attached to and made a part of, the city. The conclusion at which we have arrived need not disturb the boundary lines of the city as established by the amended charter, ex

cept on the west. As to these, the city limits must end where the insurmountable obstacles-that is, the territorial limits of the intervening municipalities-begin.

For the reasons stated, we are clearly of the opinion that the legislature did not have the power to extend or enlarge the territorial limits of the city of Denver by adding thereto the noncontiguous strip of lands situate in Jefferson county, and that the district court did not err in restraining the collection of taxes by or for the use of the city of Denver upon such Jefferson county property. This conclusion being decisive of the present controversy, other questions sought to be raised upon this appeal need not be discussed. The judgment of the district court is accordingly affirmed. Affirmed.

On Rehearing. (March 4, 1895.)

PER CURIAM. Counsel for appellants have presented an elaborate argument in support of their petition for a rehearing. Their contention is that since the constitution allows legislative amendments to special municipal charters, and does not expressly forbid the annexation of noncontiguous territory, therefore, under the power of amendment, the legislature may annex, to a specially chartered town or city, territory located in any part of the state, however disconnected and remote the same may be from the city to which it is sought to be annexed. Counsel earnestly contend that any question concerning the legality of such annexation is a matter for legislative, and not for judicial, determination. This view was thoroughly considered when the former opinion was announced. We were aware of the decisions by this court sustaining the power of the legislature to amend special municipal charters. Without discrediting such decisions as have been made upon this subject, we have felt constrained to say that it was never contemplated to give the legislature the power, under the guise of amendments, to make such radical and unheard-of changes in specially chartered towns or cities as the annexation of territory entirely disconnected and remote from the original municipality. Such annexation would be foreign to the subject-matter of the original municipality, and hence not a proper subject of amendment; and the provisions therefor would not be germane to the one general subject of the act, or clearly expressed in the title, as required by section 21 of article 5 of our constitution. There can be no doubt that the term "town" or "city" was used in the constitution in its ordinary signification, as denoting a single parcel of compact or contiguous territory, and not as including several distinct parcels of land situate at remote distances from each other. The idea of a town or city is that of unity, not plurality. Hence we have felt constrained to say that a thing essentially single can

not, by legislative act, be given a plural existence, especially where the legislative power over such subject is the power to amend rather than the power to change its essential character. There are several specially chartered municipal corporations in this state whose charters are subject to legislative amendment; but may the legislature, under the guise of amending these charters, add a section of land in Weld county to Central City, another section in El Paso to Georgetown, another section in Las Animas to Black Hawk, another section in Gunnison valley to Denver, thus dotting the state over with municipal cases, at the discretion of the legislative department? We are of opinion that it is within the province of the judiciary to give the power of amendment in such cases a reasonable construction; and, if the legislature does not restrict itself to proper limits in exercising such power, the courts must exercise proper control over the subject.

In their argument upon the petition for a rehearing, counsel for the appellants challenge the court to point out the particular provision of our constitution which inhibits the legislation complained of. From what we have just said it follows that the provision for annexation of noncontiguous territory, not being germane to the subject-matter of the original municipality, is obnoxious to section 21 of article 5. In addition to this, if the effect of this act in its practical operation be practically, though indirectly, to destroy and annul the corporate existence of these intervening municipalities, then under the decision of this court in Re Extension of Boundaries of City of Denver, 18 Colo. 288, 32 Pac. 615, it can be said that this provision violates the spirit of section 13 of article 14 of our constitution, which enjoins upon the legislature the duty to "provide by general laws for the organization and classification of cities and towns." See, on this point, Smith v. Sherry, 50 Wis. 210, 6 N. W. 561. One of the purposes of this act to revise and amend the charter of the city of Denver was to extend the boundaries of the city, and this extension must have been designed either to provide the necessary territory for the growth and development of an enterprising city, for legitimate purposes of revenue, or some other proper municipal purpose; or else it must have been to accomplish by indirection what could not be done directly, viz. to annul these intervening corporations, or to cripple them, and deprive them of some of the privileges and powers which they possess under the general laws, and so force them, unwillingly, into the city of Denver. The section of said act which we held in the above-cited case to be in conflict with said section 13 of article 14 expressly provided for the disincorporation of these municipalities, and proposed to include them within the limits of the city of

Denver as thus extended. In said case we held that, by a special act of the legislature, such as this confessedly is, the boundaries of the city of Denver could not be so enlarged as to include therein other municipalities incorporated under the general laws of the state; the reason given, inter alia, being that this would by special law disincorporate such existing corporations organized under the general incorporation laws, and that section 13 must be held to extend to the disincorporation, as well as to the incorporation, of such cities and towns. If it be said that the objection pointed out in Re Extension of | Boundaries of City of Denver, supra, to the legislation embodied in the question submitted by the house of representatives, does not apply to the section now under consideration, our reply is that, although the two provisions are not literally the same, yet the evident object aimed at by both is the same, and the practical effect and operation of both will be the same. It is true that the section under consideration does not include within the limits of the city of Denver these existing municipalities; but the proposed boundaries of the city of Denver go beyond these municipalities, and the city of Denver, as unus constituted, is made to surround these towns and cities on all sides, and they are thus eut off from any further growth or territorial expansion. The operation of the act, as well as its form and its words, must be looked to to determine the constitutionality of a meas

ure.

If the legislature, by a special law, may thus extend the boundaries of a city so as to include therein noncontiguous territory, with a number of existing municipalities incorporated under the general laws of the state lying between such noncontiguous territory and the previously established limits of the city whose boundaries are thus sought to be extended, such legislation would just as effectually stop the growth and development and curtail the powers of these intervening corporations, which were granted to them under the general incorporation laws, and practically and just as effectually disincorporate them as to some of the powers and privileges granted to them by general law, as though the special legislative act, in so many words, swept them out of existence. Thus would the special law, in effect, repeal and render nugatory the general incorporation laws of the state. Thus would towns and cities incorporated under the general laws be forced by a special law involuntarily to surrender the powers and privileges acquired under such general laws. To accomplish such results by indirection, when the same could not be done directly, would nullify the limitations imposed by the constitutional provision referred to. The pe tition for rehearing should be denied. Rehearing denied.

(21 Colo. 32)

In re HOUSE BILL NO. 107.

tution. This instrument contains hundreds of sections, and, unless the inquiry be spe

(Supreme Court of Colorado. March 1, 1895.) cific, the court might spend days and weeks

GENERAL ASSEMBLY-ADVICE OF SUPREME COURT -SUFFICIENCY OF INQUIRY.

The supreme court will not give the general assembly, or either branch of it, its opinion as to the constitutionality of a particular bill where the inquiry is "as to the constitutionality of said" bill, and recites that, "if said bill is not constitutional, it is the desire of this house that the court state in writing wherein the said bill is not constitutional"; since the inquiry must point out the particular provision of the constitution that, in the judgment of such house, the proposed legislation contravenes.

Question submitted to the supreme court by the house of representatives of the state of Colorado as to the constitutionality of house bill No. 107, to provide for the monthly payment of wages.

"Whereas, the question has been raised by certain members of the house of representatives of the state of Colorado as to the constitutionality of house bill No. 107: Therefore, resolved that it is the desire of the house of representatives of the tenth general assembly of the state of Colorado that they have the opinion in writing of the honorable supreme court of the state of Colorado as to the constitutionality of said house bill 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 not constitutional."

PER CURIAM. We are again compelled to call attention to the oft-repeated announcement of this court that, as a necessary condition precedent to the exercise of our extraordinary jurisdiction, under section 3, art. 6, of the constitution, the question submitted must be specific, and must point out the particular provision of the constitution that, in the judgment of the honorable house, the proposed legislation contravenes. In re Irrigation, 9 Colo. 620, 21 Pac. 470; In re House Bill No. 165, 15 Colo. 593, 26 Pac. 141; In re Loan of School Fund, 18 Colo. 195, 32 Pac. 273. In Re House Bill No. 165, we said: "Should we attempt to give our views upon the constitutionality of the bill submitted without more specific inquiry, we might devote a great deal of time and space to matters about which the honorable members of the house have no doubts, and still omit to consider the very question or questions upon which our opinion is desired. When the constitutionality of a statutory enactment is challenged in this court in ordinary litigation, our attention is uniformly directed to some specific constitutional provision, and our opinion is limited accordingly." In response, in Re Eight-Hour Law, 39 Pac. 328, we recently said: "If there is a doubt as to the constitutionality of proposed legislation suggested by any member, such doubt must be occasioned by some particular provision or provisions of the consti

in investigation of provisions that have occasioned no doubt whatever in the minds of the members of the house." We take this opportunity to restate what was said in the opinion rendered in Re District Attorneys, 12 Colo. 466, 21 Pac. 478. "We feel constrained to repeat and emphasize the thought, heretofore expressed, that the utmost vigilance and caution be exercised by both the general assembly and the court in acting under this novel constitutional authority. There cannot well be too much moderation in the premises. We note that, in those states which permit consultation with the justices, the privilege seems to be less often invoked than it has been here. The attorney general is the natural as well as the statutory legal adviser of the executive and legislative departments. His counsel should be solicited; and only as a dernier ressort, upon the most important questions and the most solemn occasions, should the court be requested to act." It will readily be seen that the question submitted is not in conformity with these requirements, and we are precluded by the well-settled practice from giving an opinion thereon.

(21 Colo. 27)

In re HOUSE BILL NO. 203. (Supreme Court of Colorado. March 1, 1895.) CONSTITUTIONAL LAW-RIGHT TO CONTRACT.

House bill No. 203, dated February 20, 1895, and entitled "A bill for an act to regulate the weighing of coal at mines," etc., in so far as it attempts to deprive persons of the right to fix by contract the manner of ascertaining compensation for mining coal, is in violation of Const. U. S. Amend. 14, and of article 2, § 25, of the Colorado bill of rights, which provides that "no person shall be deprived of life, liberty, or property, without due process of law."

Question submitted to the supreme court by the house of representatives of the state of Colorado as to the constitutionality of house bill No. 203, to regulate the weighing of coal at the mines, under the following resolution:

"Whereas, the revision and constitution committee, in their report on house bill No. 203, Feb. 20, 1895, a bill for an act to regulate the weighing of coal at mines, etc., have had the same under consideration, and beg leave to recommend that in the opinion of this committee the bill is unconstitutional, for the reason that the privilege of all American citizens under our constitution is abridged, inasmuch as the right to contract is taken away; but your committee recommend that the bill be referred to the supreme court for an opinion from them on the question: Therefore, be it resolved, that H. B. No. 203 be, and the same is hereby, referred to the supreme court for an opinion: Pro

viding said H. B. No. 203 be enacted into law, would it be constitutional?"

PER CURIAM. While the foregoing question does not specifically point out the particular provisions of the federal or state constitution that, in the judgment of the honorable house, prohibits this class of legislation we infer from the report of the honorable committee on revision and constitution that in its opinion the pending bill is obnoxious to section 1 of the fourteenth amendment to the constitution of the United States, which declares, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," and also to section 25 of article 2 of our bill of rights, which provides "that no person shall be deprived of life, liberty or property, without due process of law." In so far as the bill attempts to abridge the right of contract between parties in regard to matters personal to themselves, and to deprive them of the power to fix the mode in which compensation for mining coal shall be ascertained, it is clearly an infringement of these constitutional guaranties. State v. Goodwill, 33 W. Va. 179, 10 S. E. 285; Millett v. People, 117 Ill. 294, 7 N. E. 631; Wally's Heirs v. Kennedy, 2 Yerg. 554; Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354; State v. Loomis, 115 Mo. 307, 22 S. W. 350; Low v. Printing Co. (Neb.) 59 N. W. 362; Ramsey v. People, 142 Ill. 380, 32 N. E. 364; Frorer v. People, 141 Ill. 171, 31 N. E. 395. In Frorer v. People it is said: "The privilege of contracting is both a liberty and a property right, and if A. is denied the right to contract and acquire property in a manner which he has hitherto enjoyed under the law, and which B., C., and D. are still allowed by the law to enjoy, it is clear that he is deprived of both liberty and property, to the extent that he is thus denied the right to contract." And in the case of Ramsey v. People the court, in discussing a statute similar to the present bill, used this language: "The statute makes it imperative, where the miner is paid on the basis of the amount of coal mined, whatever may be the wishes or interests of the parties, that the,coal shall be weighed on the pit cars before being screened, and that the compensation shall be computed upon the weight of the unscreened coal. In all other kinds of business involving the employment of labor, the employer and employé are left free to fix by contract the amount of wages to be paid, and the mode in which such wages shall be ascertained and computed. This is justly regarded as a very important right, vitally affecting the interests of both parties. To the extent to which it is abridged, a property right is taken away." Our opinion is that the bill, in its present form, is inhibited by the foregoing constitutional provisions, and, if enacted into law, would be unconstitutional.

POLLARD v. McCLOSKEY et al. (Court of Appeals of Colorado. Feb. 11, 1895.)

CONTRACT-MERGER OF NEGOTIATIONS-PRINCIPAL

AND AGENT--FRAUD.

1. Where no fraud was used by defendant in obtaining from plaintiff a writing authorizing him to sell property at a certain price, and plaintiff knew the terms of the writing, evidence as to the value of the property, and of defendant's statements in regard thereto, made previous to the execution of the writing, is not admissible to show a right of recovery by plaintiff.

2. An agent who sells property for his principal at a price named by the latter is not liable to him, in the absence of fraud or violation of instructions, for the difference between what the goods actually sold for and what they were worth.

Appeal from district court, Pueblo county. Action by H. Pollard against Lyda McCloskey and others. From a judgment for defendant McCloskey, plaintiff appeals. Reversed.

Appellant brought suit against Lyda McCloskey and John Norris on a promissory note made by them jointly for $150, payable six months after date, with interest at 10 per cent., dated March 4, 1891, upon which a payment of $42.09 had been indorsed. Defendants answered, admitting the making of the note and alleging payment, etc. As a special defense and cross complaint, alleged that one Cronyn had a photographic gallery, on which he had given plaintiff a chattel mortgage for $350. The plaintiff represented to McCloskey that the photographic gallery was for sale, was an excellent investment, was worth $2,000; that she could buy one-half for $800,-425 cash and $375 in notes; that, relying upon the representations, she bought the one-half for $800, and became a partner of Cronyn; that plaintiff subsequently informed her that Cronyn's half interest could be bought for $150 (subject to the chattel mortgage); that she bought the interest, and gave the note sued upon; that, after this, plaintiff represented that he was going to foreclose the chattel mortgage, which would be a great expense to her; that he had a purchaser for the property, and, if she would give him authority to sell it, he could get enough to pay all debts against it, including the note sued on and $65 to $100 besides; that appellant, to induce her to buy the property in the first instance, fraudulently represented it to be worth $2,000, when he knew it to be only worth $1,000; that, after buying, she bought and put in $271 in stock, which was turned over to the plaintiff; and asking judgment for $523. In the replication filed, plaintiff alleged that the property was attached; that McCloskey could not satisfy the attachment, and plaintiff was about to foreclose his mortgage to protect himself; that he told McCloskey he could sell the gallery for enough to pay the mortgage and attachment and costs, if she would give him authority to do

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