to charge the plaintiff with promiscuous or sailed the character of plaintiff, and pretended illicit intercourse with men for gain. Indeed, to know what her character was, and that according to its natural import, such was whatever words were used by defendant conthe activity and notoriety with which the cerning the character of plaintiff were a repeplaintiff was plying the lewd and indiscrim-tition in substance of what said person had reinate practices of the prostitute that "all lated to defendant concerning the character the neighbors were talking about it. No of plaintiff, and that whatever words were phraseology could have been used which used by defendant concerning the character would have conveyed to the mind more plainly of plaintiff were used upon the condition that or explicitly her want of chastity, and her said person was relating the truth concerning guilt of adultery, if the words used were true, the character of said plaintiff, then there was as before stated. Words are actionable in no slander used by this defendant, and your themselves, either at common law or by the verdict must be for the defendant." statute, where an offense is imputed by them for which the party is liable to indictment and punishment. In this state the breach of chastity, whether by adultery or lewd cohabitation, is punishable by statute, (Code, §§ 1858, 1862;) and as the words used impute a crime, involving moral turpitude, and punishable by the statute, they are actionable per se, and special damage need not be alleged to maintain the action. It may be true, as suggested by counsel, that the case presents some harsh features, | but we must apply the law as we find it, or make a bad precedent, because the case is a hard one. As to the other error alleged upon which the appeal is based, the argument did not indicate much reliance was placed in it. The instructions asked seem inconsistent with the language charged and found to be true. However, if counsel desire it, we will hear further argument upon that point. But as the case now stands we must affirm the judgment. ON REHEARING. It may be doubted whether or not there was any evidence before the jury that would have justified the giving of these instructions under any view of the law. The defendant himself testified that Mr. Dorris did not say they were prostitutes; the word "prostitute" was not used during the entire conversation. It is true that in another part of his evidence the defendant says that all he said on the occasion in question which referred to the plaintiff was only a repetition of what Mr. Dorris had said to him. But waiving this question, and assuming that there was some evidence before the jury which tended to prove that what the defendant said at the time was a repetition of the slanderous language used by Mr. Dorris, and the question is presented whether or not such repetition was justifiable. In other words, does the fact that it was a repetition entirely exempt and excuse the person who repeats it from all personal responsibility? Lord Northampton's Case, 12 Coke 134, (decided in the star chamber in 1613,) seems to give some sanction to the appellant's claim; but that case has not been generally followed, either in England or in this counSTRAHAN, J. A doubt was suggested by try. More than that, the book containing it is the court when this case was first argued one of questionable authority. Odgers, Sland. whether or not the words charged in the com- & Lib. 162. But it is believed that the very plaint were actionable per se, and counsel on decided weight of authority in this country is both sides devoted their time to the consider- that any person who publishes a slander conation of that question. A conclusion was cerning another is responsible for his act, reached adverse to the appellant on that ques notwithstanding the words published may be tion. The opinion failed to notice some in- mere repetitions of what the speaker had structions asked by the appellant upon the heard some other person say. Fowler v. Chitrial in the court below, which were refused, chester, 26 Ohio St. 9; Kenney v. McLaughand exceptions duly taken. On his applica- | lin, 5 Gray, 3; Stevens v. Hartwell, 11 Metc. tion a rehearing was allowed for the purpose 542; Inman v. Foster, 8 Wend. 602; Treat of enabling the court to further examine v. Browning, 4 Conn. 408; Sans v. Joerris, those exceptions. The instructions which 14 Wis. 722; State v. Butman, 15 La. Ann. were refused are as follows: "Fifth. If you find from the evidence that the slanderous words alleged in plaintiff's complaint to have been spoken by defendant were first spoken in substance by witness George A. Dorris to the defendant, and that what Sladden said, if he said anything at all, was said only to Dorris, and in repetition only of what Dorris had said, and that Sladden did not claim to know, and did not know, the character or reputation of plaintiff, but that Dorris did claim to know her reputation, then there would be no slander on the part of Sladden. Sixth. If you find from the evidence that the person to whom the words in the complaint are alleged to have been addressed first as 166; Evans v. Smith, 5 T. B. Mon. 364; Fitzgerald v. Stewart, 53 Pa. St. 343; Wolcott v. Hall, 6 Mass. 513; Alderman v. French, 1 Pick. 1; Bodwell v. Swan, 3 Pick. 376; Matson v. Buck, 5 Cow. 499; Root v. King, 7 Cow. 613; Cole v. Perry, 8 Cow. 214; Mapes v. Weeks, 4 Wend. 659; Sheahan v. Collins, 20 Ill. 325; Dame v. Kenney, 25 N. H. 318; Smith v. Buckecker, 4 Rawle, 295; Freeman v. Price, 2 Bailey, 115; Townsh. Sland. & Lib. §§ 114, 210, and note 3. These authorities conclusively show that one who repeats a slander cannot be exonerated on that ground, and therefore it would have been error for the court to have given the instructions asked by the defendant. A ditions somewhat different from those al- number of authorities hold that the fact may | tion, and further alleges that defendant's be shown in mitigation of damages. Hinkle contract was with two only of the plaintiffs v. Davenport,38 Iowa, 355; Fowler v. Gilbert, to sink the shaft 200 feet in depth, with con38 Mich. 292; Hewitt v. Pioneer Press Co., 23 Minn. 178; Parker v. McQueen, 8 B. Mon. 16; Williams v. Green wade, 3 Dana, 432. But the instructions asked did not present that question, and we are therefore precluded from considering it. In reaching this conclusion, the court has been guided solely by the law, and here, properly, our duty ends; but we cannot forbear saying that there were some facts and circumstances connected with the case which ought to have entitled the defendant possibly to a more lenient consideration at the hands of the jury than he appears to have received, prominent among which is the fact that he did not seek the interview in which the slanderous language is alleged to have been used, and the peculiar circumstances under which that interview occurred, and which ought somewhat to have mitigated the damages. But we are powerless to interfere only for error in law occurring at the trial, and the circumstances adverted to, being entirely matters of fact, were exclusively for the jury, and we cannot interfere. The judgment of the court must therefore be affirmed. (12 Colo. 366) PRICE . BUCHANAN et al. (Supreme Court of Colorado. March 15, 1889.) Appeal from district court Clear Creek county. ELLIOTT, J., (after stating the facts as above.) This is an appeal under the act of April 23, 1885. The printed abstract does not show any exceptions to the evidence, or to the instructions of the court. The verdict, the overruling of the motion for a new trial, and the final judgment were excepted to by the defendant. The assignments of error are to the effect that the verdict and judgment are excessive, against the law and the evidence, and that the court erred in not granting a new trial. The complaint stated a good cause of action, and the evidence on the part of plaintiffs tended to support it. The evidence on the part of defendant was somewhat in conflict therewith, but the jury The appellees, as plaintiffs below, brought were the judges of the credibility of the wittheir action against appellant, as defendant, nesses and of the weight of the evidence. alleging in their complaint, in substance, Whether the rules stated in the charge of the that defendant, as owner of a certain lode court as to the measure of damages are cormining claim, employed them to sink a shaft rect we need not determine. Both parties from the third level of said lode to the depth were evidently willing that the jury should of 200 feet, and to timber the same whenever consider and decide the case under such rules, necessary, and to excavate a chamber in said as no other instructions were prayed for by level at the top of said shaft, to make room either party, and no exceptions were reserved for sinking the same, and to place therein a to the charge. The evidence was sufficient tank to hold the water gathering about said to sustain the verdict under the issues as shaft; that defendant was to pay plaintiffs formed by the parties, and according to the $15 per foot for every foot in depth that said instructions as given by the court; and the shaft was sunk, which sum was to include verdict does not appear to have been excesthe excavating of the chamber and the plac-sive. Under such circumstances the district ing of the tank; that defendant was to hoist court should not have granted a new trial; and remove the rock and other debris as the neither should this court disturb the judgsame was broken by plaintiffs in sinking the ment. The judgment is accordingly affirmed. shaft, and keep the shaft sufficiently clear of water to enable plaintiffs to prosecute their work; that they sunk the shaft to the depth of 533 feet, according to the terms of the contract, when they were prevented from the further prosecution of the work by the accumulation of water in the shaft, which defendant neglected and refused to remove; that 1. Sess. Laws Colo. 1887, § 1, provides that "all they excavated the chamber, and placed the mines and mining property" heretofore exempted tank therein, at an expense of $150. By an "shall hereafter be assessed and taxed, and the amendment to the complaint plaintiffs al- taxes levied enforced by sale of the property taxed, in default of payment, in the same manner leged that they could have completed the as is now or may be provided by law in the case of work for the sum of $1,000, and that only other taxable real estate." Section 3 provides a the sum of $528.75 had been paid to them by method for assessing all mines and mining claims, defendant on said contract. and possessory rights therein, producing an annual output of over $1,000. Section 4 provides that nies every allegation of the first cause of ac-in case the mine or mining claim shall not be pat The answer de (12 Colo. 369) PEOPLE ex rel. IRON SILVER MIN. Co. et al. LAW. ented, or entered for a patent, but shall be assess- in default of payment, in the same manner as able and taxable under this act, on account of pro- is now or may be provided by law in the case ducing gross receipts," then "the possession shall be the subject of the assessment, and, if said prop- of other classes of taxable real estate." "Sec. erty be sold for taxes, the sale shall pass the title 3. All mines and mining claims, and posand right of possession to the purchaser. Held, sessory rights therein, producing mineral that the act subjects all mining property to taxa- during the year, exceeding in value the sum tion, but divides it into two classes,- mines or sessment of other realty. claims producing an annual output exceeding of one thousand dollars, ($1,000,) shall be $1,000, and all other mining property, without refer- assessed by the assessor, for the purposes of ence to value. In the absence of express provis- taxation and revenue, as follows, viz.: The ion, it will be presumed that the latter class is to be assessed in the manner prescribed for the as-assessor shall compute and ascertain the gross proceeds in dollars and cents derived from 2. Const. art. 10, § 3, provides that "all taxes the mine and mining claim, to be valued shall be uniform upon the same class of subjects during the preceding fiscal year. Such mine within the territorial limits of the authority levying the tax, and shall be levied and collected under or mining claim shall be valued for revenue general laws, which shall prescribe such regula- purposes at a sum not exceeding one-fifth of tions as shall secure a just valuation for taxation the sum thus ascertained, and said mine or of all property, real and personal," provided that mining property, except the net proceeds and sur-mining claim shall be assessed and taxed acface improvements, "shall be exempt from taxa-cordingly; and if such gross proceeds are detion for the period of ten years from the date of rived from a group of several mines or minthe adoption of this constitution, and thereafter may be taxed as provided by law." Held, that ing claims contiguous to each other, owned the effect of the proviso was not to give the legis- or held by the same person, company, or corlature absolute power to tax such property after poration, then such ascertained sum shall be the expiration of the 10 years, but the tax must be equally divided among and prorated to each in conformity with the first part of the section. 3. As the constitution provides that the taxes of such claims, and they shall be valued and "shall be uniform upon the same class," it autho- taxed accordingly. Sec. 4. In case the mine rizes the division of property into classes for taxa- or mining claim shall not be patented, or ention, and there is no such unreasonableness in the tered for a patent, but shall be assessable and division made by the act of 1887 as will justify ju- taxable under this act, on account of producing gross proceeds, then, and in that case, the possession shall be the subject of the assessment, and, if said mining property be sold for taxes levied, the sale for such taxes shall pass the title and right of possession to the purchaser under the laws of Colorado." The remaining essential facts sufficiently appear in the opinion. dicial interference. 4. The uniformity required is a uniformity of taxes, and not a uniformity of rules or regulations governing the levy. 5. Section 3 provides that when the gross proceeds are derived from a group of several mines contiguous to each other, owned or held by the same person, the ascertained sum shall be equally prorated among them, and they shall be taxed accordingly. Held that, as this provision is contained in the section relating to claims producing upwards of $1,000, the contiguous claims must be of such character. Error to district court, Lake county. L. S. Dixon and F. W. Owers, for plaintiffs in error. D. E. Parks, Co. Atty., and H. B. Johnson, for defendant in error. By the constitution of this state, mines and mining claims bearing precious metals, ex- HELM, C. J., (after stating the facts as cept the net proceeds and surface improve- above.) In approaching the consideratior of ments, were exempted from taxation until this case we remember that the act chalthe year 1886. At the session of the legisla-lenged is framed in the interest of the pubture following, viz., in 1887, a law was adopt- lic revenue; that to a limited extent it is an ed providing for the taxation of such mines. exercise of the taxing power; and that, thereIn pursuance of this act, mining property in fore, only upon the most clear and convincLake county, including that belonging to the ing grounds should the court consider favorIron Silver Company, was duly assessed, and ably objections thereto. We also bear in taxes levied thereon. Thereupon an action mind the familiar principles that, except as was brought in the name of the people at the controlled by constitutional limitation, the relation of the said company for the purpose authority of a state legislature in enacting of enjoining the collection of such tax, upon laws is plenary, and that, unless there be a the ground, principally, that the legislative clear and positive repugnancy between a statact mentionéd is unconstitutional. Defend- ute and the constitution, the statute must be ant answered the complaint, and upon the upheld. Section 1 of the act before us concomplaint and answer, and certain evidence tains an express legislative declaration that, offered by the parties, a decree was rendered after the adoption thereof, mines and minin the court below dismissing the action. To ing claims bearing precious metals shall be reverse that decree the present writ of error taxed for revenue. All such property, rewas sued out. The provisions of the statute gardless of its tenure, that is, whether held necessary to a complete understanding of the under patent, application for patent, or minopinion are sections 1, 3, and 4, found on ing location, and regardless of the question pages 340, 341, Sess. Laws 1887, to-wit: as to whether the value thereof be much or "Section 1. All mines and mining property little, is clearly and unequivocally subjectof the class heretofore exempted by the con-ed to taxation. In effect, sections 1 and 3 stitution of the state of Colorado shall here- of the act, taken together, divide this species after be assessed and taxed, and the taxes of property into two classes, viz.: First, levied enforced by sale of the property taxed, the mines or mining claims referred to in v.21p.no.2-10 section 3, i. e., those which during the pre- | bearing gold, silver, and other precious metceding fiscal year have had a gross output als (except the net proceeds and surface imaggregating upwards of $1,000 in value; and, provements thereof) shall be exempt from second, all the remaining or non-producing taxation for the period of ten years from the claims, without reference to value. For rea- date of the adoption of this constitution, and sons satisfactory to the legislative mind, thereafter may be taxed as provided by law." mines yielding something, but less than Giving the foregoing proviso a construction $1,000, are included among the non-pro- in accordance with its clear and reasonable ducers. As to the first class a specific meth- purport, we are of the opinion that the word od for determining valuations in relation to "may" in the latter part thereof does not mines belonging thereto is pointed out, but mean "shall." That is to say, in our judg as to the second class no rule for assessment ment, the proviso operates--First, to exempt is expressly provided. In the absence of such the property mentioned wholly from taxation express provision, however, we must assume for the period of 10 years, beginning with the that the legislature intended to have mines date of the adoption of the constitution; and, and mining claims belonging to this class as- second, to vest in the legislature a discretionsessed in the manner specified by statute for ary power to say whether, after the expirathe assessment of other real estate. The out- tion of this period, it shall be subjected to put of less than $1,000 therefrom, if any such taxation, or whether the exemption shall be there be, may become an element in estimat- continued. This construction is reinforced ing the valuation, and hence it is not cor- by an examination of the circumstances unrect to assume that such output necessarily der which the constitution was adopted, and escapes taxation. The latter part of the first the history of the specific provision while section does not refer to the procedure for as-pending before the constitutional convention, sessing or levying taxes. It simply provides as well as by other considerations, which we that when the taxes assessed and levied upon shall not pause to mention. this kind of property shall not be paid, the The effect of a proviso is to withdraw the payment or collection thereof shall be enforced subject-matter thereof from the purview of by sale in the same manner as the payment the section containing it. And it is asserted of delinquent taxes upon other kinds of realty. by counsel, with some plausibility, that since Therefore, by the act in question, we are ad- this kind of property, if taxed at all after the vised - First, that all mines and mining expiration of the 10 years specified, is to be claims containing precious metals are sub- "taxed as provided by law," the intention was jected to taxation; second, that this species to leave the legislature wholly untrammeled of property is divided into two classes, viz., by the preceding requirements of section 3 those mines producing upwards of $1,000 relating to uniformity and just valuations; during the fiscal year preceding, and those but, in our judgment, the expression "as producing less than that sum or nothing at provided by law" was simply intended to exall; and, third, that a specific method is pro- pressly authorize regulations for valuation vided for the valuation of mines belonging to and assessment peculiar to mining property. the first class, while all mines and claims in- As we have seen, the imperative operation cluded in the second class are to be assessed in of the proviso is only temporary. And when the manner indicated by law for the assess the legislature in its wisdom elects to tax ment of other taxable real estate. Section 4 this species of property we think the first is somewhat ambiguous, but its evident pur- clause of the section should become operative. pose is to pass the title where possessory min- So far as possible there should then be just ing interests are sold for taxes, and, consid- valuations and a reasonable uniformity in disered in connection with the remaining sec-tributing the burden of taxation, as between tions, we do not think it seriously affects either of the foregoing conclusions. different mines and mining claims belonging to the same class. The principal design of Counsel for plaintiff in error strenuously this constitutional provision is to subject all contend that this statute is obnoxious to cer- taxable property to the payment of its fair tain provisions contained in article 10 of the and equitable proportion of the revenue necconstitution, and especially to section 3 there- essary for governmental purposes; and, if of. Section 6 of said article reads: "All laws there were doubt as to the meaning of a parexempting from taxation property other than ticular word or phrase made use of therein, that herein before mentioned shall be void." such doubt should be so resolved as to most The only exemption of mines and mining effectively accomplish this beneficent purproperty allowed by the constitution is con- pose. From the language employed the foltained in said section 3. This section first de-lowing further conclusions may be fairly declares that "all taxes shall be uniform upon duced, viz: First, that the division of propthe same class of subjects within the terri- erty into separate and distinct classes of torial limits of the authority levying the tax, subjects is authorized. The phrase used, and shall be levied and collected under gen- "the same class of subjects," puts this beeral laws which shall prescribe such regula-yond question. The necessity for such a ditions as shall secure a just valuation for tax- vision is obvious, and the great purpose of ation of all property, real and personal." It the provision could hardly be accomplished then proceeds with the following proviso: without it. Coal Co. v. Com., 79 Pa. St. 100; "Provided, that mines and mining claims Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct. Rep. 57; State Board v. Railroad formity of taxation as regards individuals or Co., 48 N. J. Law, 146, 4 Atl. Rep. 578. To corporations, or the different classes of propjustify judicial interference, the classifierty subject to taxation, is a dream unrealcation adopted must be based upon an invid-ized." And if the constitutional requireious and unreasonable distinction or differ- ment as to equality and uniformity of taxation ence with reference to similar kinds of prop-imperatively commanded absolute exactness, erty. Manufacturing Co. v. Wright, 33 Fed. in the language of Judge Cooley, "the operRep. 121; People v. McCreery, 34 Cal. 432. ations of the government must come to a Second. That the uniformity required is a stop." Cooley, Tax'n, 124. For an able uniformity of taxes, not a uniformity of pro- collection and review of cases more or less cedure, or of rules or regulations to govern pertinent to the foregoing inquiry, see Railthe levy thereof. To demand absolute uni- road Co. v. Taylor Co., 52 Wis. 37, 8 N. W. formity in the latter regard would tend Rep. 833. But by this citation we must not strongly to defeat the prior and supreme re- be understood as indorsing, to its fullest exquirement. The constitution leaves this tent, the broad conclusion reached in the matter with the legislature, simply directing principal opinion. We do not discover in the that the regulations shall be made by general act before us any such objection, either to the law, and shall secure just valuations. It is classification adopted or to the rules and hardly necessary to dwell upon the vital im-regulations made applicable, as would justiportance of having different rules for the as- fy judicial interference. Difficulty will sessment of railroad rolling stock, or the net output of mines and other kinds of personalty, or of producing mines and other realty, The legality as well as the advantage of different modes of assessing different kinds of property have already been recognized by this court. Stanley v. Little Pittsburg Co., 6 Colo. 415; Carlisle v. Car Co., 8 Colo. 320, 7 Pac. Rep. 164. etc. sometimes be encountered in determining the value of non-producing mines, but no convincing reason is given, showing that such mines may not, with reasonable fairness and equity, be assessed for taxation in the manner provided for the assessment of other real estate. The procedure adopted for reaching proper valuations of producing mines is not perfect, and in time experience may suggest It is important to bear in mind the dis- something better, but it is not at present aptinctions just mentioned, because confusion parent that oppressive unfairness or inequalin examining authorities may thus be avoided. ity will result. In connection with the asThe constitutional mandates or inhibitions sessment of this kind of property, peculiar on the subject are not all alike. In fact, the difficulties must always exist. The mining language now under consideration is not a and reduction of ores are usually attended literal transcript of any other single exist- with great expense and trouble. In some ining constitutional provision. If the rules stances one-fifth of the gross output will or regulations provided by statute are not represent more, and in other instances less, clearly calculated to produce gross inequality than the real net profit. But this is not inand injustice in the assessment of different tended to be a tax upon the net profit. It is parcels of property belonging to the same a tax upon the supposed value of the property class, the courts will not interfere. City v. itself; the proportion of the gross output Mining Co., 2 Nev. 86. Railroad Co. v. Mc-selected being simply a basis or guide proCarty, 25 Ind. 180; People v. McCreery, supra. And if the same method is applied without discrimination, throughout the state, to the valuation of all property included in a particular class, the requirement of the constitution is sufficiently complied with. Upon It is true, as counsel assert, that parties this subject Mr. Justice MATTHEWS, deliver- who have large bodies of valuable ore in sight ing the opinion in the Kentucky Railroad may evade the statute by taking out only Tax Cases, supra, says: "The rule of equality enough to secure a valuation based upon in respect to the subject only requires the $1,000 worth of mineral, rather than subsame means and methods to be applied im- mit to an assessment resting upon the estipartially to all the constituents of each class, mated value of the property with ore disso that the law shall operate equally and uni- closed; but, as is suggested in response by formly upon all persons in similar circum- counsel on the other side, similar evasions stances." Of course, instances of injustice are possible under all rules for assessment and hardship will sometimes result under the and taxation. Besides, objections based upstatute before us; but this is necessarily on the supposition that mine-owners will act true of all statutes providing methods for contrary to their own interest obviously have the assessment and taxation of property. but little force. If the ore in sight be not Exact uniformity and mathematical accuracy taken out one year, it remains to be extracted in valuations are absolutely impossible. Noth- and become the basis of valuation the next; ing that can be devised by human reason and the mine-owner will not keep his propwill secure such exactness or accuracy. To use the expressive words of Mr. Justice MILLER in State Railroad Tax Cases, 92 U. S. 575: "Perfect equality and perfect uni vided by the legislature in approximating such value. These suggestions only serve to illustrate the propriety of classifying producing mines by themselves, and applying thereto special rules for ascertaining values. erty idie simply in order to escape taxation, when the annual interest on his output would pay the taxes several times over. The objection that the provision relating |