sessments for local improvements is not well taken. Undoubtedly, such rule might be prescribed by the law of the state, and, when so prescribed, must be followed; but if such power be vested in the corporate authorities, and a reasonable rule be prescribed by general ordinance, it is certainly sufficient under a government like ours. It is true that when such public powers have been conferred upon the municipality to be exercised by its council, as by the passage of a general ordinance, such powers can be exercised in no other way, nor can there be any delegation thereof to others; but when exercised in conformity to the constitution and the provision of the municipal charter, they have the force and effect of legislative enactments for all municipal purposes. 1 Dill. Mun. Corp. § 308; 2 Dill. Mun. Corp. § 779; Foss v. Chicago, 56 Ill. 354; Cooley, Tax'n, 449.

would have included the same in the agreed statement.

We are of the opinion that the assessments are valid, and we perceive no reason why the county treasurer should not proceed to collect the same. The judgment of the district court is reversed, and the cause remanded.

(12 Colo. 600)

WILSON et al. v. CHILCOTT et al. (Supreme Court of Colorado. May 24, 1889.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS

-CURB-STONES AND GUTTERS.

The construction of curb-stones and gutters separate from sidewalks is not within the police power of the state of Colorado, as such police power excludes the street, of which the curb-stones and gutters form a part, and a special assessment therefor by a city against abutting lots is unauthorized and invalid, under Const. Colo. art. 10, § 3, requiring uniformity in taxation.

Appeal from district court, Pueblo county. Chas. C. Stein, for appellants. John M. Waldron and John W. Sleeper, for appellees.

ELLIOTT, J. This was a case submitted to the district court upon an agreed statement of facts similar to the case of City of Pueblo v. Robinson, ante, 899, the only substantial difference being that the improvements sought to be charged for in this case by special assessments are curb-stones and gutters instead of sewers. The agreed statement shows that the curbing in controversy consisted of stone slabs set on edge in the ground immediately adjoining the outer edge of a plank sidewalk 12 feet wide, and thus constituted the inner wall of the gutters, and also served as a protection to the outer edge of the plank sidewalk, The sidewalks had been theretofore constructed at the expense of the abutting land-owners, pursuant to an ordinance of the city. The gutters were constructed of substantial cobble-stone. The guttering and curbing were done in a good and workman-like manner, and the cost thereof was assessed against the owners of the abutting lots in proportion to frontage, respectively, under and by virtue of the ordinances of the city. Appellees having refused to pay their respective assessments, the county treasurer threatened to sell the prop erty of appellees as a mode of collecting the assessments. The court granted a perpetual injunction against such sale. The city of Pueblo and the county treasurer bring this appeal.

The mode of apportionment by which local assessments are to be made must have reference to the special benefit accruing to the property by reason of the improvement, that is, benefits in addition to those received by the community in general; and the rule must be such as will secure an assessment in proportion to such benefits as nearly as is reasonably practicable. Rules of apportionment according to value, area, and frontage of the property benefited have in turn been approved and disapproved under varying circumstances. Absolute equality is not to be expected. A reasonable approximation thereto is all that can be required; and, when the proper legislative body prescribes in good faith a rule by which this may be attained with reasonable certainty, it should not be overthrown. When the property consists of lots of substantially equal depth abutting the local improvement, and there is nothing in the nature and circumstances of the particular case showing that an assessment in proportion to the frontage of the lots upon the improvement would work manifest injustice, such a mode of assessment should be upheld. 2 Dill. Mun. Corp. § 761; Cooley, Tax'n, 447; Thomas v. Gain, 35 Mich. 155; Allen v. Drew, 44 Vt. 174. By the agreed statement of facts it does not affirmatively appear that the lots on the east side of Santa Fé avenue were exempted from assessment because the sides of such lots abutted on the sewer without deriving any benefit therefrom, though the argument of counsel for appellees virtually concedes that the exempted lots do abut laterally. Neither does it appear whether the lots assessed were of substantially uni- The views expressed in the case of City of form depth or otherwise. In view of the Pueblo v. Robinson seem to us controlling fact, however, that appellees, in applying for in every respect, except as to the question the injunction, assume substantially the af- whether the constructing of gutters and curbfirmative of the issue, we must, where the stones in the public streets of a city is fairly agreed statement is silent, resolve mere ques- within the domain of police regulations. tions of fact against them. Since there is Considering the reluctance with which spenothing in the mode of assessment which cial assessments for the construction of pubwould necessarily produce inequality, we lic works of any kind have been sustained by must presume there is nothing in the nature this and other courts, we hesitate to extend or circumstances of the particular case that the exceptions to the uniformity rule of taxawill work manifest injustice, else appellees tion required by section 3, art. 10, of our

constitution. The following from the opin- gutters, and as a part thereof; the sidewalk ion of Justice BECK in Palmer v. Way, 6 having been built at a different time, and of Colo. 106, clearly evinces the danger to be different material. If, in providing for the apprehended from this source: "Referring construction of sidewalks, reasonable curbto the constitutional provisions of the state of stones should be required as a part thereof, Colorado, it will be apparent that there is but perhaps a local assessment therefor might be one mode of taxation provided, and that this sustained. But in this case the assessment mode is applicable alike to the levy of taxes is not for the curb-stone as a part of the sidefor state, county, city, and town purposes. walk, nor for the curb-stone separately, but Taxes levied under this mode must be uni- the assessment is for gutters and curb-stones form upon the same class of subjects, within as an entirety. By the agreed statement of the territorial limits of the authority levying facts it appears that the gutters were necessathe tax.' * **The limitation is a very ry to carry off the filth from the street; hence, important one, and must be held, in the ab- it is argued with great force that they are as sence of any other provision qualifying the "conducive to the health, comfort, and prorule, to be applicable to the levy of all taxes tection of society" as sewers, and should authorized by the taxing power. * * *therefore, upon the authority of Keeso v. Street improvements in a city are for the City of Denver, 10 Colo. 112, 15 Pac. Rep. 825, benefit of the public, and may be paid for out be classed among the municipal improveof the city treasury. This has been repeat-ments for the construction of which the police edly decided. * * * If the rule can be power of the state may be invoked. But the ignored as to the streets of a city, no reason same may be said of street pavements, and is perceived why it may not, in like manner, many other public improvements in large be disregarded in the improvement of the cities. Public parks, groves, fountains, stathighways of a county, or in the construc-uary, and the like are a great source of comtion of public improvements by the state. fort, and are indirectly conducive to the * * * Upon a careful examination of au- heaith and protection of society; and so, if thorities, and upon principle, we are satisfied we yield to such arguments, the danger is, that the taxing power does not extend, under we shall be led to make one exception after the constitution of this state, to local or spe- another, until the uniformity rule of taxation cial assessments, except under the constitu- guarantied by the constitution will be entirely tional [uniformity] rule. swept away. Chief Justice AGNEW, in Reed special or local assessments, in the general v. Erie, 79 Pa. St. 346, uses the following sense of the term, cannot be sustained un- pertinent language upon this subject: "The der this power, will hardly admit of discus- doctrine of local taxation for benefits consion. We have seen that there is great una-ferred by public improvements, beginning in nimity of opinion that assessments for the a modest way, for purposes of real utility, grading and paving of streets, for example, was found advancing by stealthy steps, and are a branch of the taxing power. ** * unobserved, until an impression began to Limiting the doctrine to the facts before us, prevail that private property had no protecviz., to the construction of the sidewalk, ex- tion against public needs. This court has clusive of substantial grading, we are dis- been compelled to meet and check this danposed to uphold the ordinance as a police reg-gerous advance. But, notwithulation. We think the authorities may fairly standing this check, this doctrine of local be said to go thus far, in view of the long-es- | taxation for benefits received had reached a tablished custom prevailing here and else- perilous advance, sanctioned by many laws where throughout the territory and state, re-and decisions. We may now travel for miles quiring such walks to be constructed and kept in repair, and free from obstruction, by the owners of property abutting upon the public streets."

* *

*

That

* * *

in the rural districts of large cities, where broad paved and curbed streets of the most costly kinds have been paid for at private expense, under arbitrary exactions. The power The general rule is that the power to pave has become flagrant, often ingulfing the enstreets includes the power to supply gut-tire value of the property of small landters and curb-stones; but it does not follow holders." that the power to construct sidewalks, and Accepting the doctrine of Palmer v. Way compel payment therefor by local assess- as stare decisis, the police power of the state ments, carries with it the power to supply includes the sidewalk and excludes the street. gutters and curb-stones by the same arbi- We must, therefore, as between the street trary means. Under a constitutional provis- proper and the sidewalk, draw the line someion such as ours, we incline to restrict the where; so we draw it at the curb-stone. If power to make local assessments to the nar- the street requires other than sidewalk imrowest reasonable limits. In the case of Pal-provements, either for the convenience of mer v. Way it is declared that the cost of "grading and paving of streets" cannot be collected by local or special assessments; and, surely, gutters are a part of the street rather than of the sidewalk. In this case the curbstones were supplied at the same time as the

travel, the gratification of taste, or as a protection to health, the power of the city to improve the same by general or special taxes is ample, without infringing the uniformity rule of taxation required by the constitution. The judgment of the district court is athrmed.

(13 Colo. 7)

HURD v. MCCLELLAN. (Supreme Court of Colorado. May 24, 1889.)

he had received a similar letter from said Hughes. Also the affidavit of W. T. Hughes was filed and read, stating that he wrote to said Reed and said Playter, and mailed the letters at the same time, and that in each letter the same request was made for the record, and that he desired in both letters the same record for the same purpose. That it was ad

which the court struck the case from the dockets for want of jurisdiction was absence from the record of the order allowing the appeal at pages 47 and 48 aforesaid. This was all the evidence introduced in the case by the parties. That upon said motion and affidavits the cause was submitted, after argument; and the court grants said motion, and orders that a writ of restitution issue, and that said Job C. McClellan be restored to pos

W. E. Hugo that he is in the employ of Clinton Reed, and that about the middle of December, 1885, there came a letter addressed APPEAL RECORD-DISMISSAL. to Clinton Reed from W. T. Hughes, and Act Colo. April 23, 1885, provides that the cause shall be submitted to the supreme court on printed among other things, it requested said Reed abstracts of the record setting forth so much there to go to said Playter, and get from him a of as may be necessary to a full understanding of transcript of the judgment, the order allowthe question presented, and no more. The abing the appeal, (notice of appeal,) and appealstract filed showed the dismissal, in the supreme bond to dismiss the appeal in the supreme court, of a case between parties of the same surname as the parties to this appeal; a remittitur court for the reason said McClellan had failed from the supreme court filed in the district court; to file any papers in the supreme court; that the issuance and service of a writ of possession in this letter bears date of December 15, 1885; favor of H.; an order, on motion of M., for the recall of the writ of possession, and for the issuance and that, for Clinton Reed, afliant took this of a writ of restoration in favor of M., and an ap-letter to said Playter, and either showed him peal from the latter order by H. The bill of ex- the letter or told him what was wanted, and ceptions, apparently between different parties, "D. v. H.," showed that the order appealed from that said Playter said that was all right, that was based on certain proceedings remaining of record in the district court, and also on the supreme court remittitur aforesaid; but neither the contents, substance, nor subject-matter of such district court proceedings or supreme court remittitur were disclosed. Held, that there was not sufficient in the record by which the supreme court could determine whether the order appealed from was erroneous; and the appeal was dismissed. Appeal from district court, Lake county.mitted in the cause that the grounds upon The following is the entire abstract, bill of exceptions, and assignment of error in this case, viz: "December 24, 1885, case of McClellan v. Hurd dismissed in supreme court. January 18, 1886, remittitur issued by supreme court. January 20, 1886, remittitur filed in district court, and writ of possession issued. January 21, 1886, writ served, and Hurd placed in possession of the property. January 22, 1886, McClellan files motion to recall writ, and for writ of restoration. Jan-session; to which ruling of the court said uary 23, 1886, motion argued, and court or ders the writ of possession recalled, and a writ of restoration to issue. Hurd appeals from this order. January 26, 1886, bill of exceptions filed as follows, to-wit: In the District Court. De La Mar v. Hurd et al. And now, on January 23, 1886, the same being one of the regular judicial days of this court, came Job C. McClellan, by his attorneys, Rucker & Ewing and Charles C. Post, and moved the court to recall the writ of restitution or possession issued by the clerk of this court on the 20th instant, directed to the sheriff of the county of Clear Creek, and bases this motion upon the judgment of this court in this case, found at pages 627, 628, ELLIOTT, J., (after stating the facts as of Journal 6, of this court, and also order of above.) This is an appeal from an order unthe court in this case found at pages 47 and der the act of April 23, 1885. The act pro48, of Journal 7 of such proceedings, and vides that the cause shall be submitted to the also upon the remittitur issued to this court supreme court upon printed abstracts of the in this case from the supreme court, and record, setting forth so much thereof as may filed in this district court on January 20, be necessary to a full understanding of the 1886, and also for a writ restoring said Mc- question presented for decision, and no more. Clellan to the possession of said premises. The act further provides for additional and That, to support this motion, the affidavit of amended abstracts in case the parties differ Joseph Playter was filed and read, it stating as to the correctness or sufficiency of those that, about the middle of December, he re- already supplied. In this case only one abceived by mail a letter from W. T. Hughes, stract has been filed, and no exceptions thereasking for a transcript, as near as he can to have been taken. We do not deem it inrecollect, of the judgment and the appeal-cumbent upon this court to look beyond the bond, and for nothing else. That, against abstract of the record filed herein for the the motion appeared Clinton Reed and W. T. purpose of determining this controversy; nor Hughes, and filed and read an affidavit of do we feel at liberty so to do. The statute

Hurd then and there duly excepted; and forasmuch as none of these matters appear of record, this statement is tendered, asking that the same be signed, sealed, and become part of the record, and the same is accordingly done this January 25, 1885. L. M. GODDARD, Judge. [Seal.] And now comes Nathan S. Hurd, and says in the foregoing record is manifest error in this, to-wit: The court erred in making the order recalling the writ of possession, and ordering a writ of restitution to issue."

W. T. Hughes and Clinton Reed, for appellant.

judgment were given for plaintiff in the sum of $35. To reverse this judgment the present appeal was taken.

Chase Withrow and J. McD. Livesay, for appellant.

requires the cause to be submitted upon the printed abstract. Giving this abstract a reasonable construction, what does it show? It shows the dismissal in the supreme court of a case between parties of the same surname as the parties to this appeal; a remittitur from the supreme court filed in the dis- HELM, C. J., (after stating the facts as trict court; the issuance and service of a writ above.) Counsel's first objection must be of possession in favor of Hurd; an order on overruled. It is based upon the proposition motion of McClellan for the recall of the that section 28, Code 1883, relating to the writ of possession, and for the issuance of a subject of venue, requires that such actions writ of restoration in favor of McClellan; as the one at bar shall be brought in the and an appeal from the latter order by Hurd. county where the alleged tort was committed. The bill of exceptions, apparently between To support their position, counsel argue that different parties, De La Mar v. Hurd et al., the word “may,” found in the last sentence shows that the order appealed from was based of the section mentioned, must be construed upon certain proceedings remaining of rec- as meaning "shall.” We are not called upord in the district court of Lake county, and on to discuss this objection, for the reason also upon the supreme court remittitur afore- that the question is practically stare decisis said; but neither the contents, substance, nor in this state. Bean v. Gregg, 7 Colo. 499, subject-matter of such district court proceed- 4 Pac. Rep. 903; Law v. Brinker, 6 Colo. ings or supreme court remittitur are disclosed 555. These two cases were suits upon conby this appeal. So far as appears, the remittitur was regularly issued and filed in the district court, and thus the jurisdiction of the supreme court over the case ceased, and the jurisdiction of the district court reattached. Legg v. Overbagh, 4 Wend. 188; Blanc v. Bowman, 22 Cal. 24. Even if we were at liberty to take notice of the "Case of Hurd v. McClellan, dismissed in supreme court," no number or definite title thereof is given by which we might identify the same with certainty. There is not sufficient in this record by which we can determine whether or not the order appealed from was in any manner erroneous. The appeal is therefore dismissed without any express affirmance of the order, and the cause remanded. Remanded.

(13 Colo. 16)

NEWELL v. GIGGEY. (Supreme Court of Colorado. May 24, 1889.) VENUE-DRIVING ANIMALS FROM RANGE.

tracts, and hence fall within a different clause of the statutory provision referred to; but this fact in no wise alters the conclusion reached, or affects the reasons upon which it is founded. It is not perceived how a distinction could be made between torts and contracts, whereby the word "may" shall be construed as merely permissive in one case and as mandatory in the other. This objection must therefore be overruled. The action might have been brought in Gilpin county, but there was also statutory authority to bring it in Boulder.

Upon the other branch of the case, as presented, we are reluctantly compelled to sustain one of the positions taken by appellant. Under the complaint, as well as the charge, it was necessary that the driving away of plaintiff's bull from his accustomed range by defendant should be found willful. The burden of establishing this fact was upon plaintiff. Yet from a careful examination of the abstract, upon which alone we are compelled to rely, it appears not only that he failed to sustain such burden, but also that none of his proofs can be fairly said to bear

1. Under Code Colo. 1883, § 28, providing that actions for torts "may be tried in the county where the tort was committed, an action for willfully driving away plaintiff's bull from its usual range need not necessarily be brought in the county on the question. The evidence pertinent where the injury was committed. Following Law v. Brinker, 6 Colo. 555; Bean v. Gregg, 4 Pac. Rep.

903.

2. In such an action it is necessary to prove that the driving away was willful, and the burden thereof is on plaintiff. When the plaintiff fails to prove such fact, and the only evidence bearing on the point comes from defendant, from which it appears it is doubtful whether the animal actually left his range, and that defendant made strenuous efforts to cut him out of the herd and leave him where he was found, but he persistently returned, a verdict for plaintiff will be set aside.

to this branch of the issue tried comes from the defendant. According to his (defendant's) proofs, it is doubtful if the animal actually left the range on which he belonged, and it is shown that defendant made repeated and strenuous efforts to cut him out of the herd, and leave him where he was found, but he persistently returned, and, owing to cir

cumstances detailed, which defendant could not control, these efforts proved unavailing. There is nothing in the record that fairly conAppeal from Boulder county court. tradicts this testimony. The case at bar, This action was brought in the court below therefore, is not one of conflicting evidence, by Giggey against Newell, to recover dam- where the credibility of witnesses and the ages arising from an alleged tort committed value of testimony are to be carefully weighed by Newell. This tort consisted in the will- by a jury. On the contrary, in this vital ful driving away of plaintiff's bull from its particular the evidence, as submitted to us, usual range, resulting, as is alleged, in dam- is all one way, and it would seem that the ages to plaintiff amounting to $670. The jury must have misapprehended its force or cause was tried to a jury, and verdict and effect. Objections to rulings upon the trial,

versed.

(12 Colo. 591)

RULE . GUMAER. (Supreme Court of Colorado. May 24, 1889.) APPEALABLE ORDERS.

to the measure of damages adopted, and to was instituted under chapter 19 of the old certain instructions given or refused, are as- Code, relating to proceedings subsequent to signed for error, but, as the foregoing dis-execution. The only question presented by cussion is decisive of the appeal, they will the record which need be considered by this not be considered. The judgment is re- court is whether the order appealed from was an appealable order under the act of 1885, relating to appeals to this court, which was then in force. It is not necessary to determine whether or not there was any authority for the preliminary restraining order. Section 2 of that act defined the orders from which an appeal might be taken. It is manifest at a glance that the order appealed from in this case does not come within its provisions. It is neither a final order, nor an order refusing to dissolve an injunction, within the meaning of the section. Green v. Bullard, 8 How. Pr. 313; 4 Wait, Pr. 141. The appeal should be stricken.

Under Act Colo. 1885, § 2, defining the orders from which an appeal might be taken, an appeal does not lie from an order issued in supplementary proceedings forbidding the transfer or payment by the execution defendants "of any property or indebtedness whereby said plaintiff may be hindered or prevented from obtaining so much thereof as will satisfy his judgment," etc. Such order is neither a final order, nor an order refusing to dissolve an injunction, within the meaning of the section.

Commissioner's decision. Fremont county court.

Appeal from

RICHMOND and REED, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion the appeal is stricken from the docket.

COON v. DUCKETT.

(13 Colo. 14)

(Supreme Court of Colorado. May 24, 1889.) APPEAL-REVIEW.

It appears from the record in this case that October 15, A. D. 1885, appellee recovered judgment against appellant and one Thomas M. Richards, as copartners for the sum of $644.95; that execution was issued the same day, and delivered to the sheriff of that county, and on November 20, 1885, was wholly unsatisfied. On the day last named notice was given to appellant and his co-defendant, The verdict of a jury will not be disturbed, on that upon November 23d application would appeal, where the evidence is conflicting, unless be made to the county judge for an order re-so unreasonable as to warrant the presumption that it is the result of malice, prejudice, or misquiring them to appear and make answer conception. concerning their property. This application was based upon an affidavit filed by appellee setting forth the recovery of the judgment, the issuance of the execution, that it remained unsatisfied, and that the appellant had certain property, which he refused to apply to the satisfaction of the judgment. On November 23, 1885, an order was issued upon the application, requiring defendants to appear and answer, etc., on the 7th day of December, 1885, at the hour of 10 o'clock in the forenoon. The order contained the following provision: "And in the mean time, and until further order of said court or judge thereof, said Gabriel R. Rule and said Stephen J. Tanner are hereby ordered not to make any transfer or payment of any property or indebtedness whereby said plaintiff may be hindered, delayed, or prevented from obtaining so much thereof as will satisfy his judgment, with interest and costs." After the service of the said order, and on December 9, 1885, appellant filed a motion to vacate so much of the order as is above quoted, upon the ground that the court was without jurisdiction or authority to make it. The motion was overruled by the court, and thereupon an appeal was taken from the order overruling the motion to this court.

A. Macon, for appellant. Waldo & Baker, for appellee.

PATTISON, C., (after stating the facts as above.) The proceeding in which the order was made, which appellant sought to vacate,

Appeal from district court, Chaffee county. Duckett, who was plaintiff below, indorsed three certain promissory notes, of which his son and two other men were co-makers. As frequently happens in such cases, he signed the instruments as a fourth co-maker. These notes were due in 9, 12, and 15 months, respectively. The first was paid at or about maturity; the second was canceled, and delivered to one of the makers soon after it became due. About two and a half months after maturity of the third note, demand was made upon plaintiff for a balance of $182.20, claimed as remaining due thereon, which, relying upon the representations of defendant's agent in connection therewith, plaintiff paid. Plaintiff brought the present action to recover back the sum of $125.05, alleging that, to this extent, the foregoing payment was excessive, the amount, in fact, remaining due at the time of the payment being but $57.15, instead of $182.20. In support of his position, plaintiff produced a receipt given to his son for $125.05, which was not reported to him or accounted for when he made the payment. Defendant contends that this receipt represented a balance unpaid upon the second or "middle note," though at the date of the receipt that note had been delivered up and canceled. Plaintiff, on the other hand, insists that the middle note was fully paid when canceled, and that this receipt represented a payment upon the last note; the receipt bearing date 12 days subsequent to the