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

error.

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). 1. There was no compliance by the plaintiff with that part of section 3, p. 249, Sess. Laws 1889, which requires the claimant of a lien to serve upon the owner of the property, his agent or trustee, a copy of the statement of lien at or before the time when he files the same with the county clerk and recorder. The proof is that the plaintiff went to the office of Mr. Choate, the superintendent of the defendant company, to serve such copy upon him, but the latter was not in his office. Thereupon the plaintiff gave said copy to a clerk in the office, who promised to deliver it to the superintendent; but there is no evidence to show that the promise was kept or the notice received by the superintendent. If it be assumed that Mr. Choate was the agent or trustee of the company, in respect to this work of grading (as to which there is no evidence at all), under no construction can it be held that this service of a copy of the lien statement upon the clerk of the superintendent of the defendant company was such service as the statute prescribes.

2. It has been held in other jurisdictions, even in the absence of a statute to that effect, that in actions to enforce the lien of a subcontractor arising under mechanic's lien laws, the contractor should be made a party defendant. The mere statement of this rule carries with it its own justification. The general scope of our mechanic's lien acts clearly contemplates that the contractor and all claimants of liens shall be made parties to an action brought to enforce a lien, and that all shall have their rights adjudicated in one action, and protected and enforced in one judgment. Section 8, p. 251, Sess. Laws 1889, declares that "any such claim of any sub-contractor that shall be established under this act by the judgment or decree of court, shall, to the full amount thereof, be a valid set-off in favor of such owner and against the contractor," but not to "any greater extent than the contract price for the building or other improvement, or total indebtedness of the owner to the contractor for the whole work." We must not suppose that the legislature by this intended that the owner should be entitled to such set-off against the contractor unless the latter was a party to the action in which his rights were determined. In this case service upon the original contractor was feasible. He was in the county at the time the suit was instituted, and he could easily have been brought in. To this effect is the case of Davis v. Lumber Co., 2 Colo. App. 381, 31 Pac. 187.

For the foregoing reasons, the judgment should be reversed and remanded, with in

(21 Colo. 46)

In re HOUSE BILL 168. (Supreme Court of Colorado. March 11, 1895.) CONSTITUTIONAL LAW-APPROPRIATION BILL-PLURALITY OF SUBJECTS.

1. The bill enacted as Act March 17, 1891, sections 1 and 2 of which provide for a permanent and continuing levy and appropriation of a tax for certain state educational institutions, and section 3 for the election of a treasurer for each institution, and section 4 repealing all inconsistent acts, contains affirmative legislation upon matters of such a permanent nature as to make it a special, and not a general, appropriation bill.

2. Such bill, in embracing in one act four institutions to which the proceeds of the tax are to be exclusively devoted, contains four distinct subjects or purposes of appropriation, and is violative of Const. art. 5, § 32, which provides that all other than general appropriations shall be made by separate bills, each embracing but one subject.

The opinion of the court, as to the constitutionality of the act whose title is above given, is in response to the following preamble and resolution:

“Whereas, there has been introduced into the house of representatives of the state of Colorado, and there is now pending in said body, house bill No. 168, a copy of which is hereto attached, which bill provides, among other things, for the repeal of sections one and three of an act to provide for the assessment, levy, and collection of a state tax for the support and maintenance of certain state educational institutions, etc., approved March 17, 1891; and whereas, one of the main arguments used in favor of the repeal of said sections is that section one of said act is unconstitutional, in that it conflicts with section 32, article 5, of the constitution of the state of Colorado; and whereas, if said section one should at any time before the expiration of the fiscal year 1896 be declared unconstitutional, then the state institutions named in said section would be left without their proper support: Therefore be it resolved that the honorable supreme court of the state of Colorado be and is hereby requested to render its opinion in writing at the earliest possible date, for the use of this house, upon the question of the constitutionality of said section one of the General Laws. Approved March 17, 1891."

T. M. Robinson, J. W. McCreery, and H. Riddell, amicis curiae.

PER CURIAM. It has been the established practice of this court not to answer questions propounded by the legislature, if such questions affect private rights, or if they do not relate to pending legislation. The ques

tion above submitted relates, strictly, not to a bill pending in the house of representatives, though it is asked in connection with, and as bearing upon, house bill No. 168, but it relates to the constitutionality of an act passed by the general assembly at the session of 1891. But inasmuch as the rights of the public are involved, and the interests of the state institutions concerned are so vitally affected, and the results to them would be so disastrous were the answer which we feel constrained to give withheld until after the present session of the legislature, we have concluded to depart from such practice, and answer the question submitted. This, however, must not be taken as a precedent for the right in general of the legislature to ask for information as to the constitutionality of an existing act.

Section 32 of article 5 of our constitution, which is the provision referred to, is as follows: "The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state, interest on the public debt, and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject." The act in question consists of four sections: Section 1 makes provision for the levy of a special tax for the support of the agricultural college, the state school of mines, the state normal school, and the institute for mute and blind, one-sixth of a mill to each. Section 2 sets apart and appropriates for the exclusive use of each of these so-called "educational institutions" the revenues derived from its respective levy, and authorizes the state auditor to draw his warrant therefor on the state treasurer in favor of the respective treasurers of these four institutions for the amount to which each is entitled. Section 3 provides for the election of a treasurer of each of these institutions, and defines his duties. Section 4 contains a repealing clause of all previous and inconsistent acts upon the same subject. It will be observed that in the title of this act there is no mention made of an appropriation; and under the doctrine of this court laid down in Re Breene, 14 Colo. 401, 24 Pac. 3, it may be questioned if this act can be held constitutional under section 21, art. 5, of the constitution. But as our attention has not been specifically called to that provision, and as we consider the act invalid for other reasons, we prefer to base our conclusion upon the construction of the provision to which our attention is called.

No authority directly in point has been found by either the court or the counsel who have so materially assisted us by their labors. To sustain the constitutionality of this act, at least four assumptions must be. made: First, that each of the four state institutions mentioned in the body of the act is a department or branch of the public schools; second, that appropriations such

as this act carries may be made in a general appropriation bill; third, that this act may properly be termed one of the general appropriation bills of the eighth general assembly; and, fourth, if either of the foregoing propositions is unsound, that this act is a special appropriation bill,-special, as distinguished from general,-and embraces but one subject.

er.

These four institutions are regarded by this act as educational. Whether or not they are such, under sections 1 and 5 of article 8 of our constitution, we need not decide; but, for the purposes of this case, let it be conceded that this act properly classifies them. The same concession may be made as to the second assumption above stated, and will be so made without any ruling one way or the othOne of the remaining questions, then, to be disposed of is, was this measure before its enactment a general appropriation bill? The general appropriation bill always has been, and should be, to provide appropriations such as can constitutionally be included therein for the period of two years only. It is a temporary measure, and must be renewed at each session of the legislature. Nothing of a permanent nature ought to be, and under the provisions of section 32 nothing of that kind can be, embraced therein. Here we have in this act a provision for a permanent and continuing levy and appropriation of a tax, and a section which, in detail, provides for the election of a treasurer of each institution, and specially defines his duties. Such affirmative legislation, while it may not make the whole act invalid, cannot be included in a general appropriation bill, nor can such a bill be termed a "general appropriation bill." See People v. Spruance, 8 Colo. 307, 6 Pac. 831. True it is that there may be, and frequently are, passed at each session of the legislature two or more bills carrying general appropriations; but we find upon examination of the session laws from the first session of our legislature until the present time that those bills, which may be denominated "general appropriation bills," enacted early in the session, invariably made appropriations to provide for current or ordinary expenses to cover the period intervening between the close of the previous fiscal year and the time when the general appropriation bill proper may be passed at the close of the session, at which time, and not before, the legislature can know with rea sonable certainty the probable amount of the revenue which the constitutional rate of taxa. tion will yield. They were intended only as parts of the general appropriation bill to be passed later, and the amounts carried by all constituted the general appropriation for the two years.

But, even if appropriations for these institutions might properly be made by the legislature in a general appropriation bill, this act cannot be considered as having been a general appropriation bill for the reasons given above; and, besides, the title of the act shows that

the general assembly did not so consider it. The provisions for the levy of the tax and for the election of a treasurer are affirmative matters, and are not properly embraced within a general appropriation bill. We hold, then, that this bill, which merged into this act, was not a general appropriation bill. Therefore the bill, before its passage, having been a special appropriation bill, its validity is to be determined by the proper construction of section 32. Sections 21 and 32 of article 5 of our constitution, however, are both so intimately connected with the question before us that they should be considered together. Section 21 applies to all bills except the general appropriation bill. It provides that no bill, with the exception of the general appropriation bill, shall be passed containing more than one subject, which shall be clearly expressed in its title. It will be observed that not only are all bills of a general character within its purview, but also all appropriation bills other than the general appropriation bill. So that, so far as the limitations of this section are concerned, the general appropriation bill may contain as many subjects as are properly within the power of the general assembly to make provision for. It will also be observed that as to all other appropriations, by the special injunction of the same section, each bill therefor must contain only one subject.

To make clear beyond question the conclusion which we have reached, a brief statement of the reasons for the incorporation of this section will assist us. In language more or less variant, it is said that one of the objects was to prevent the combining of disconnected or incongruous subjects into one bill, and thereby gaining a support for all as grouped together, which, as separate bills, each, alone, could not command. Not content with this safeguard, which applies to every kind of a bill except the general appropriation bill, the framers of our organic act adopted section 32. It applies only to bills which carry appropriations, and divides them into two general classes: First, the general appropriation bill; second, all other bills carrying appropriations, or special appropriation bills. It is true that the people are affected more or less by any bill which is merged into law, but in a peculiar sense are they interested in measures which disburse the public revenue. The public revenue, whether derived from taxation which falls upon all classes alike, or whether derived from other sources, belongs equally to the people. Thus, properly considering the situation, the wisdom and foresight of the members of the constitutional convention have been amply justified by section 32. All bills other than appropriation bills had been sufficiently guarded by section 21 in the requirement that each general subject of legislation must have its separate bill, so that it should stand or fall upon its own merits. But the evils and dangers of combinations and "logrolling" in the matter of the appropriation of public revenue were so great

that a separate provision was inserted in our constitution to protect it from improvident disbursements. So section 32 regulates the two general classes of appropriation bills, by providing that even the general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the three great departments of state, interest on the public debt, and the public schools, and that all other appropriations shall be made by separate bills, each embracing but one subject. Both sections, therefore, apply to appropriation bills, and these are doubly guarded. Whether we construe "each" as qualifying and referring to "bill," or hold that "each" refers to “appropriation,”—as to which we express no opinion,-the same conclusion follows. Section 32 was adopted not merely to make emphatic the exception found in section 21. Its special office is to guard against improper appropriations of the public revenue, and to impose restrictions upon the manner of making the same not contained in, and in addition to those found in, section 21. Whatever may be the meaning that should be given to the word "subject," in section 21, we are satisfied that it is consonant with, and effectuates, the further restrictions sought to be imposed by section 32, to give "subject" as found in this latter section a meaning substantially equivalent to "purpose." Instead of the word "subject" in section 21 of our constitution, the constitutions of some of the other states have in like provisions the word "object." Some states, as Texas and New York, give to "subject" a less restrictive meaning than “object." Others, like Michigan, regard these words as substantially synonymous. The rule that words found in the same constitution are presumed to have been employed in the same sense is neither invariable nor inflexible. It is purely an arbitrary rule,-one that rests upon presumption merely,—and in its application is of but slight force, and readily yields where a contrary intent is apparent. Cooley, Const. Lim. (5th Ed.) p. 75.

A definition has already practically been given to this provision in Re Continuing Appropriations, 18 Colo. 192, 32 Pac. 272, where this court says: "One object of this [section] is evidently to prevent the placing in one bill of appropriations for several purposes, and thereby combining in favor of all the advocates of each." The object of this act, of course, was to provide money for the support of these four institutions. The appropriation for each certainly constitutes one purpose,one subject,-each separate and distinct from each of the other three, and each should be made to depend for passage or defeat solely upon its own merits. As there are four institutions to which the proceeds of the tax levied are to be applied and exclusively devoted, it follows that there are four distinct subjects or purposes of appropriation contained in one act, which is inhibited by section 32 of article 5 of the constitution. To give to the word "subject" a meaning broader than this would

destroy one of the objects of this constitutional provision. To give it the broad meaning for which the contention is made would logically permit the legislature in one bill, entitled "An act to provide for an appropriation to defray the expenses of the government," to make appropriations for every conceivable and possible object within the power and contemplation of the legislature to provide for, and would tolerate the combining into one special bill appropriations for every state institution and arm of the government, and thus make of a special bill a broader and more comprehensive measure than the general appropriation bill itself. Such an interpretation would really make, under our constitution, only two appropriation bills,-one, the general appropriation bill, containing the subjects which said section 32 of the constitution specifies as properly included therein; the other, a special bill to defray the expenses of the state government, and embracing every subject not comprehended in the general appropriation bill. It is conceded that, logically, such would be the result of giving to the word any broader meaning than we have given it. But such interpretation is clearly negatived by that clause of section 32 which divides into two classes all appropriation bills, viz. the general appropriation bill, and all other appropriation bills, which clearly contemplates that there shall be, and necessarily must be, as many appropriation bills as there are subjects or purposes of appropriation. For the reasons given, we hold that the act is unconstitutional.

2. An answer to such complaint which merely denies that the sheriff put defendants into possession of any part of the lands described in the complaint, and that they entered into possession of any land awarded to plaintiff, without denying plaintiff's ownership, or that they are in possession, is insufficient.

3. A judgment which correctly decides that a certain prior judgment in favor of defendants, for the possession of certain lands, did not entitle them to the strip in question in the present suit, and awarding the possession thereof to plaintiff, will not be reversed because it also improperly assumes to correct such prior judgment by clearly excluding the strip in controversy.

Error to district court, Bent county.

Action by William Higbee against Abram Rhoades and others to recover possession of real estate. From a judgment for plaintiff

for the possession of the land sued for, defendants bring error. Affirmed.

The complaint in this case alleges that plaintiff, Higbee, is the owner, in fee simple, and entitled to the possession, of a certain quarter section of land, situate in Bent county, Colo.; that before the bringing of this action the defendants wrongfully and unlawfully and forcibly entered upon and took possession of the same, and ousted the plaintiff therefrom, and still continue, unlawfully and wrongfully, to withhold and retain from plaintiff the possession of the same. In the complaint there is stated a good cause of action to recover possession of real property, under chapter 23 of our Code. In addition to the matters that are properly contained in a complaint in such an action, there are a number of other allegations, which, in substance, disclose the following state of facts: At the September, 1890, term of the district court of Bent county, Rhoades et al. (who are plaintiffs in error here, and were defendants below in the case at bar), as plaintiffs, instituted an action in the nature of an action of ejectment against William Higbee, who is defendant in error here, and who was plaintiff in this action below. In that original ejectment action, Rhoades et al. recovered a judgment for the possession of a certain strip of land, about 72 feet in width by 1⁄2 mile in length, and a writ of restitution was awarded them to enforce the judgment. In January, 1891, the sheriff, in attempting to execute the foregoing writ, put Rhoades et al. into possession, not only of the strip of land theretofore awarded to them by the said judgment, but also into the possession of an additional strip of land, about 99 feet in width and 1⁄2 mile long, lying immediately north of, and adjacent to, the foregoing strip. In March, 1891, this action which we are now considering was instituted by Higbee, in the same district court, to recover the possession of the aforesaid strip of land, 99 feet in width. This complaint further charges that the sheriff, in attempting to execute the writ of restitution, construed said judgment and the writ of restitution as embracing a strip of land aggregating in width the two strips herein before described, and put Rhoades et al. into possession of both, which they still retain. are other allegations in the complaint, upon which was based an application for a temporary writ of injunction, but they are unnecessary to be considered here. For the purposes of this decision, the foregoing summary of the complaint is all that is necessary.

There

Hedley V. Cooke, for plaintiffs in error. Charles M. Rigley, for defendant in error.

CAMPBELL, J. (after stating the facts). A demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action was filed by the defendants to this complaint, and overruled by the court. This ruling was proper, because, as has been stated, the allegations of the complaint were

sufficient to constitute the action one for the recovery of the possession of real property. Upon the overruling of the demurrer the defendants, Rhoades et al., filed an answer in which they denied that the sheriff wrongfully placed them in the possession of any land to which they were entitled under the judgment set out in the complaint. They further denied that the sheriff placed them in possession of any part of the quarter section of land described in the complaint, and denied that they had ever entered upon any lands awarded to the plaintiff. Upon the supposed issues thus joined, a trial was had to the court without a jury, apparently by agreement of the parties. The only evidence offered on the trial was that introduced by the plaintiff, Higbee, and consisted of the instructions of the court, the verdict of the jury, and the judgment of the court in the original ejectment action. The defendants, Rhoades et al., offered no testimony whatever. From this evidence the court made a finding to the effect that the intention of the verdict, as returned by the jury, and the judgment, as entered of record by the clerk, was to award to Rhoades et al., plaintiffs in the original case, only the land described as the strip 72 feet in width by 1⁄2 mile in length. Upon such finding the court made an order directing the clerk of the court to correct the records by entering therein a reformed judgment, which the court prepared, and which is set out in the bill of exceptions in this case, which correctly, according to this finding, expressed the judgment which, as a matter of fact, was rendered and pronounced by the court at the September, 1890, term in the ejectment action, and which, as thus corrected, more clearly described the strip of land, 72 feet wide, which the court and jury evidently intended to award to Rhoades et al. in that action. In addition to such decree and order making the foregoing correction, the court below adjudged that the plaintiff, Higbee, recover from the defendants, Rhoades et al., possession of that strip of land, 99 feet wide by 2 mile long, lying immediately north of and adjoining the strip of land, 72 feet wide, described above.

Exactly upon what theory, under the complaint in this case, and in this character of an action, the district court corrected the original judgment pronounced in the first action, we are at a loss to know; but the decision of this case does not call for any determination by us of the correctness or incorrectness of such ruling. Under our construction of the pleadings in this case, the court was fully justified in finding, as a matter of law, upon the complaint and answer, that the plaintiff, Higbee, was entitled to recover the possession of the strip of land in controversy in this action, viz. the strip 99 feet wide by 1⁄2 of a mile in length. It will be observed that the complaint alleges that the plaintiff, Higbee, was seised in fee of the premises in controversy, and entitled to its possession; that the defendants wrongfully ousted plain

tiff therefrom, and still wrongfully and unlawfully withhold possession thereof from the plaintiff. In their answer, defendants do not deny the ownership of the plaintiff. They do not deny that they are in possession of the property. By failing to deny the allegations of the complaint so charging, they admit that they are in possession, and that plaintiff is the owner. They deny that the sheriff wrongfully put them into possession of any land to which they were entitled under the original judgment, and deny that the sheriff put them into possession of any portion of the 160-acre tract described in the complaint. They further deny that they entered into possession of any land awarded to the plaintiff Higbee. As has been said, however, there is no denial in the answer of plaintiff's ownership, or that the defendants were in actual possession of the property in controversy at the time this action was instituted. The denial that the sheriff put them into possession of any part of the quarter section in dispute is not at all inconsistent with the fact that they themselves entered into and took possession thereof, and still retain the same, and the complaint so charges. We see no pertinency in the denial that defendants entered upon any lands awarded to the plaintiff, Higbee, as there is nothing either in the complaint or the answer to show that any award of land had ever been made to Higbee. The denials of this answer do not in any way put in issue the material allegations of the complaint. The most that can be contended is that the defendants merely deny that their possession of the property was wrongful. This is only a conclusion of law, and does not negative any material allegation of the complaint. It appearing from the pleadings that the undisputed facts are that the defendants wrongfully took possession of, and wrongfully withheld from the plaintiff, this strip of land 99 feet wide and 1⁄2 mile long, of which the plaintiff was at the time seised, and of which he was entitled to the possession, the action of the court in giving judgment for the plaintiff for the recovery of the possession of the property was right. It is immaterial that the decree of the court also provided for the correction of the judgment in the ejectment action, and this is so even though such ruling was wrong. Payne v. Treadwell, 16 Cal. 220; F. A. Hihn Co. v. Fleckner (Cal.) 39 Pac. 214. It follows that the judgment should be affirmed. Affirmed.