they should disregard such statement. Thereupon said attorney further stated that he had further expected to prove, as stated in his opening, that the defendant had murdered Mollie Gorman; to which statement, so made by said attorney, the defendant then and there duly excepted. Said attorney further stated, in his closing address to the jury, that 'the defendant forgot to explain to the jury that the reason she gave Casserleigh the sum of $25 was that she expected the enraged miners to blow up her house on account of the murder of Bulkley,' to which statement, so made by the said attorney, the defendant then and there duly excepted."

The action of the prosecuting official, as above set forth in the record, constitutes gross misconduct on his part, and a total disregard of the legal rights of the prisoner. It manifests a disposition to ignore the plainest principles of law in relation to the trial of criminal offenses, and exhibits contempt for the authority and dignity of the court, of which he was then an officer. Such statements, coming from the acting district attorney at the time and in the manner made, must have been highly prejudicial to the cause of the defendant. They were not only made by an officer of the court, but they were made in the closing or last speech to the jury, when there was no opportunity for defendant's counsel to criticise or answer them. No such facts had been received in evidence, and they were not only wholly outside the evidence, but totally irrelevant to the subject-matter of the trial. The officer could have had but one motive in view in the course pursued by him, viz., to prejudice the jury against the prisoner by charging her with the commission of graver crimes than the offense for which she was being tried. Failing to get before the jury such irrelevant testimony, he determined, if possible, to poison the minds of the jury against the prisoner by openly charging her, upon his own authority, with the murder of the two persons named. In so doing, he defied the authority of the court, violated the law, and abused his privilege as a public prosecutor. The law of the land guaranties to every one accused of crime, whether of high or low degree, whether rich or poor, a fair and impartial trial. Certainly it cannot be said, in view of the facts and circumstances above set out, that the defendant in this case received a fair and impartial trial within the letter and spirit of the constitution and the laws of this state, unless it can be said that the errors appearing in the record were cured, so that the defendant was not prejudiced thereby. Scripps v. Reilly, 35 Mich. 371; Tucker v. Henniker, 41 N. H. 317.

The judge seems to have anticipated the conduct of this officer, and the means to which he would resort to secure a conviction, as he appears to have instructed the jury before the oral arguments to the effect that if said officer should make statements charging that the prisoner was of bad reputation, it would be highly improper and wrong for the jury to give them any weight whatever. This instruction, however creditable to the court, did not cure the error, since it was given

before the arguments, and when the officer commenced his attack upon the character of the defendant the judge failed to suppress the The attorney appears to have continued after the court's effort to restrain him, and to complete all the charges he desired to make without further opposition, save by the objections of the defendant. The criticism on the action of the court is that the judge failed to assert and maintain the authority and dignity of the court, by reason whereof a prisoner upon trial was prejudiced. The law places at the command of all judicial tribunals ample power and means to enforce obedience to their lawful orders in such cases, by the way of fines, and, if necessary, imprisonment. It is the duty of courts to require their proceedings to be conducted according to the rules of law, and to protect the rights of litigants. That the proceedings in this instance were defective in the essentials mentioned, is fully shown by the record. We are further of opinion that the errors complained of were not cured; for which reasons the judgment must be reversed, and the cause remanded.

Atty. Gen. Theodore H. Thomas, being of opinion from an inspection of the record that the prisoner was not awarded a fair and impartial trial, declined to prosecute the case.

(8 Colo. 438)


Filed December 4, 1885.

1. PLEADING-GENERAL DEMURRER WHEN ONE COUNT PRESENTS ISSUE. A general demurrer to an answer cannot be sustained when there is one count that presents an issue for trial.


Upon a demurrer being filed to the answer, it is, upon request, to be carried back to the first defective pleading.

3. CLERK OF COURT-JUROR-CERTIFICATE OF SERVICE-FEE FOR FURNISHING. Section 1922 of the General Statutes does not warrant the clerk of the district court to demand a fee of a juror for furnishing him with a certificate of service.

Error to district court, Ouray county.

Enos Miles and William Story, for plaintiffs in error.

HELM, J. Defendant in error, being clerk of the district court of Ouray county, brought this action against the county commissioners in the court below to recover fees from the county for taking and filing affidavits of jurors concerning their attendance upon court, and issuing certificates to them according to law. To the complaint plaintiffs in error filed an answer, and defendant in error attacked the same by general demurrer. This demurrer the court sustained, and the commissioners electing to stand by their answer, judgment was rendered for the full amount claimed.

This judgment must be reversed. The first count of the answer sufficiently denies the matters averred in the complaint. It makes a full and complete issue of fact for trial by the court. Even if the

second count were bad, plaintiff's general demurrer should have been overruled. The issue of fact ought to have been tried by the introduction and consideration of evidence before a judgment was rendered thereon.

But a reversal must be allowed in this case for another reason. Plaintiff's general demurrer, though challenging the sufficiency of the answer, is upon request to be carried back to the first defective pleading; and in accordance with the demand of counsel for defendants below, we are bound upon this demurrer to test the sufficiency of the complaint. The second question presented, therefore, is, did the complaint in this case itself state a cause of action? The theory upon which the complaint was framed is, first, that the clerk is entitled to his regular fees for taking the affidavits of jurors concerning their attendance upon court, and also for issuing certificates to them stating the time of such attendance and the amount due therefor; second, that the county is liable for the payment to him of such fees.

But section 1922 of the General Statutes reads as follows: "The clerk shall, without fee, furnish to each juror who shall attend at any term of court a certificate showing the number of days that such juror shall have attended at such term; and, upon presentation thereof to the county commissioners, they shall issue to such juror their warrant upon the county treasury for the payment of the per diem and mileage of such juror."

No construction of this statute is needed to show that the clerk is not entitled to compensation for making and delivering the certificates in question, as it is therein expressly declared that he shall do this act without fee. If he could demand a fee for taking a juror's affidavit concerning his attendance, there is nothing in the law rendering the county liable therefor, and he would be compelled to collect the same from the juror himself. But we think the clear intent of the statute is that no compensation shall be charged for this service. The sole purpose of taking the affidavit in question is to inform the clerk as to the number of days' pay for attendance the juror is entitled to demand from the county. This is simply a prerequisite to the issuing of the certificate mentioned, being deemed an essential part of the proceeding in connection therewith; and we think the words "without fee" apply also thereto. The judgment is reversed.

(8 Colo. 426)


Filed December 4, 1885.


Section 3 of article 2 of the charter of the city of Denver, which deprives the courts of their jurisdiction to inquire into the qualifications for membership in the city council, is not in conflict with section 12 of article 7 of the constitution of the state of Colorado.

Appeal from superior court of Denver.

Chas. W. McCore, for appellant, George G. Darrow.

F. W. Hanley, for the People.

On petition for rehearing. See S. C. 8 Pac. Rep. 661.

HELM, J. In passing upon this application, we deem it necessary to say a few words with reference to one of the questions argued by counsel. Our attention is invited to section 12 of article 7 of the constitution, which provides that "the general assembly shall, by general law, designate the courts and judges by whom the several classes of election contests not herein provided for shall be tried, and regulate the manner of trial, and all matters incident thereto; but no such law shall apply to any contest arising out of an election held before its passage."

It is now claimed that section 3 of article 2 of the charter of the city of Denver, which we have regarded as depriving the courts of their jurisdiction to inquire into qualifications for membership in the city council, being a local law, is in conflict with the constitutional provision above cited, and therefore void. By examining the cases of Brown v. City, 7 Colo. 305, S. C. 3 Pac. Rep. 455, and Carpenter v. Tilford, 5 Pac. Rep. 828, counsel will see that this court has twice expressly declared that the law specifically relating to the city of Den-ver is not obnoxious to constitutional inhibitions against local or special legislation; that inasmuch as prior to and at the time of the adoption of the state constitution the entire city government was regulated by special charter, and inasmuch as its citizens have not elected to abandon such charter and incorporate under the general law, the charter remains in force, and a legislative revision or amendment thereof will not be reviewed by this court for the purpose of determining whether or not the changes incorporated could be made by general law. The amended charter of Denver, adopted by the legislature in 1874, contains the following provision: "The city council shall judge of the qualifications, elections, and returns of their own members, and shall determine all contested elections under this act." Section 5, p. 268, Sess. Laws 1874. This provision was retained verbatim in the revision of the charter by the legislature of 1881. It was re-enacted, and is contained in the Revision made in 1883. The legislature of 1885, at the regular biennial revision of the charter, saw fit to incorporate this provision substantially as theretofore written, except as modified by the insertion of the word "sole.

Thus, it appears that the legislature simply amended a section of the charter which existed prior to the adoption of the constitution, and had been repeatedly readopted since that instrument became the supreme law of the state. Under the view taken by this court in the cases above cited, such amendment was a subject concerning which the courts will not inquire into the legislative conduct. The suggestion is not out of place that we have here additional corroboration of the position taken in our prior opinion on the subject of legislative intent; for as the provision stood previous to 1885, while the power

of the city council existed to investigate the questions named, yet the power was not exclusive. It was simply concurrent with the jurisdiction of the courts over the subject of prior disqualification by quo warranto. The fact that the last legislature saw fit to incorporate the word "sole" into the act is, under an established principle of statutory construction, to be taken as evidence that a change was intended; but the only change which reasonably suggests itself to a rational mind is that they thereby expressly declared their will to render the jurisdiction of the council, theretofore concurrent, thereafter exclusive.

In the constitutional provision now relied on we discover no reason for changing the views already expressed. The legislature retains the privilege of enacting such local or special laws with reference to the city of Denver as shall be deemed, in their judgment, advisable; provided, of course, the same may be fairly considered as revisory or amendatory of the charter existing prior to the adoption of the constitution. Counsel very clearly and cogently urge the dangers arising from lodging the power in question exclusively with the city council of Denver, or the separate branches of that body. They suppose the perpetration of a number of high-handed outrages upon the people by the council through this extraordinary jurisdiction, and urge with great force the necessity that the courts should come to the rescue. Their appeal must be addressed to the legislature. But it may be remarked that, in the first place, the law does not presume that persons elected to public office will betray the trust imposed and prove recreant to the oath taken; and, secondly, that if they do, in cases like the one at bar, the people have two methods of redress,-they may rectify the evil at the succeeding election for councilmen by selecting good and true men to fill the office, and they may also invoke legislative aid in the premises.

A municipal corporation is the creature of the legislative will. Legislatures possess, and continually exercise, the right of conferring upon such corporations all privileges, powers, and duties essential to the efficient accomplishment of the purposes for which they are called into being; and unless the statutory expression in this respect can be clearly construed as inconsistent with some constitutional inhibition or requirement, it will not be questioned. But, in the case at bar, it is apparent that the legislative action cannot be challenged upon this ground under any of the constitutional provisions cited. And if we were to disregard the legislative intent as unequivocally declared in the statute, we would be guilty of establishing a precedent more dangerous than are the possible evils that might be averted. The rehearing is denied.

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