*

and a condition to do the same thing, inserted in a bond. In the latter case the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. And this distinction, we think, affords a solution to the question involved in this case. * The condition of an official bond is collateral to the obligation or penalty; it is not based on a prior debt, nor is it evidence of a debt; and the duty secured thereby does not become a debt until default be made on the part of the principal Until then, as we have seen, he is a bailee, though a bailee resting under special obligations. The condition of his bond is, not to pay a debt, but to perform a duty about and respecting certain specific property which is not his, and which he cannot use for his own purposes." While the majority opinion distinguished the case under consideration from those preceding it, we think the reasoning of the learned justice who wrote the opinion logically and necessarily overrules the doctrine laid down in the former cases. If, as therein announced, the obligation imposed by the bond is absolute, and the officer was an insurer of the money received by him, how could the manner or cause of its loss affect his liability? Wherein is he more at fault when overpowered by one or two robbers than he is when intimidated by an army? Justice Miller refused to concur in the majority opinion because it did not frankly overrule those cases and abandon the doctrine on which they rested, and in his dissenting opinion stated his personal views upon the question as follows: "When the case of the U. S. v. Dashiel, [4 Wall. 182,] came before the court, I was not satisfied with the doctrine of the former cases. I do not believe now that on sound principle the bond should be construed to extend the obligation of the depositary beyond what the law imposes upon him, though it may contain words of express promise to pay over the money. I think the true construction of such a promise is to pay when the law would require it of the receiver, if no bond had been given; the object of taking the bond being to obtain sureties for the performance of that obligation. Nor do I believe that prior to these decisions there was any principle of public policy recognized by the courts, or imposed by the law, which made a depositary of the public money liable for it when it had been lost or destroyed without any fault of negligence or fraud on his part, and when he had faithfully discharged his duty in regard to its custody and safe-keeping."

We believe the true rule is that a public officer who receives money by virtue of his office is a bailee, and that the extent of his

That,

obligation is that imposed by law. when unaffected by constitutional or legislative provisions, his duty and liability is measured by the law of bailment. If a more stringent obligation is desired, it must be prescribed by statute. That his official bond does not extend such obligation, but its office is to secure the faithful and prompt performance of his legal duties. Instances where the constitution and statutes of this state have increased the common-law liability of certain officers were recognized by this court in two cases, at least. In the case of State v. Walsen, 17 Colo. 170, 28 Pac. 1119. it was held that by constitutional provisions the state treasurer was made absolutely liable for state moneys received by him; and in the case of McClure v. Commissioners, 34 Pac. 763, (recently decided,) it was held that a county treasurer, by virtue of the statute regulating the duties of his office, was a bailee with express and extraordinary liability. No constitutional or statutory provision in this state imposes a more stringent obligation upon a clerk of the district court than that imposed by the common law. This rule of common law, as laid down by Justice Story, is as follows: "In respect to property in the custody of the officers of a court, pending process and proceedings, such officers are undoubtedly responsible for good faith and reasonable diligence. If the property is lost or injured by any negligent or dishonest execution of the trust, they are liable in damages. * The degree of diligence which officers of the court are bound to exert in the custody of the property seems to be such ordinary diligence as belongs to a prudent and honest discharge of their duties, and such as is required of all persons who receive compensation for their services." Story, Bailm. § 620. It is insisted in argument that this doctrine refers only to specific property, and does not apply to money deposited with the clerk, because it is assumed that he holds the relation of debtor to the fund, and therefore may use it as his own. To this we cannot agree. The money received by him is a trust fund, and a conversion of it to his own use would constitute embezzlement, and subject him to a criminal prosecution. The defendant Wilson, as appears from the agreed facts, did not mix the money in question with his own funds, or in any manner treat it as his own. He deposited it in the bank as clerk, and the bank had notice thereby that the money so deposited was held by him in his official capacity. At the time of the deposit the bank was in good standing. We think, under the circumstances, he is not chargeable with any fault that should render him or his sureties liable for the loss. The judgment of the court below will be reversed, with directions to enter judgment for defendants.

(19 Colo. 104) MAYOR, ETC., OF TOWN OF VALVERDE v. SHATTUCK et al.1

(Supreme Court of Colorado. Oct. 30, 1893.) MUNICIPAL CORPORATIONS- ANNEXATION OF TERRITORY-CONSTITUTIONAL LAW-SPECIAL LEGISLATION ELECTIONS"-INTOXICATING LIQUORS

REPRESENTATION-TAXATION.

1. Where part only of a legislative act is void, the residue may sometimes be upheld; but judicial authority cannot substitute anything in place of the void part. If the residue of the act cannot stand with the void part cast out, then the whole act must fall; and where a statute has but a single object, if the provisions for the accomplishment of that object be void, the whole act fails.

2. In general, the legislature has plenary power in respect to municipal corporations, and a legislative act relating thereto will be upheld, unless its unconstitutionality is clearly and palpably apparent. As a town or city increases in population, territorial enlargement, public improvements, and modifications of its local government become necessary to the enjoyment of life, the protection of health, and the security of property.

3. The word "elections," in section 1, art. 7, of the constitution, is not used in its general or comprehensive sense, but in its restricted political sense, meaning public elections for the choice of public officers. A statute requiring the question of the annexation of a town or city to be submitted to the determination of such qualified electors of the municipality as have in the year next preceding paid a property tax therein, is not unconstitutional.

4. The term "township" in the legal nomenclature of this state refers to an involuntary corporation, or quasi corporation, and not to a voluntary municipal corporation, such as an incorporated town. Special legislation is not forbidden in respect to incorporated towns or cities, except in cases where a general law can be made applicable.

5. The municipal authorities of incorporated towns and cities may be invested with power to license, regulate, prohibit, or suppress the traffic in intoxicating liquors, subject to the general laws of the state; and such traffic may be prohibited in one part of a town or city and licensed in another part, as the pubic welfare may require.

6. The constitution of this state does not make it imperative that there shall be local aldermanic representation in towns or cities.

7. Section 10 of the act of 1893, relating to the annexation of contiguous towns and cities, is not obnoxious to certain constitutional provisions relating to taxation and public indebtedness. Article 10, §§ 3, 7; article 11, §§ 1, 8; article 15, § 12,-considered.

(Syllabus by the Court.)

Error to Arapahoe county court. Petition by N. B. Shattuck and others, citizens of the town of Valverde, for the dissolution of that town, and for its annexation to the city of Denver. From the order entered, requiring an election on question presented, the mayor and trustees of the town bring error. Reversed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Special proceeding in the county court under the act of April 11, 1893, providing for the annexation of contiguous towns and cities. See Session Laws of that year, page 451. Upon petition by citizens of the town 'Rehearing denied.

of Valverde for the dissolution of said town, and for its annexation to the city of Denver, the court made an order requiring the mayor and trustees of said town to call an election for the purpose of determining the question of dissolution and annexation. The original order required the question to be submitted "to a vote of the qualified electors of the town of Valverde entitled to vote at said election." Subsequently the mayor and three of the trustees of said town appeared, and by a counter petition prayed that the order requiring the election might be vacated, on the ground, as they alleged, that the legislative act under which the order was obtained is unconstitutional and void. Upon further consideration it was adjudged by the court that said act, "in so far as it prescribes a property qualification for voters, is unconstitutional and void; but that the remainder of said act is, nevertheless, valid and sufficient;" and thereupon the original order was by the courts so modified as to require the mayor and trustees of said town to call an election for the submission of the question by ordinance to a vote of the qualified electors of said town, "without regard to the payment of a property tax therein." To reverse the judgment of the county court, the mayor and trustees bring the record of the proceedings to this court by writ of error.

The following provisions of the constitution of Colorado are referred to, but not quoted at length, in the opinion: Article 10: "Sec. 7. The general assembly shall not impose taxes for the purposes of any county, city, town, or other municipal corporation. but may by law vest in the corporate authorities thereof respectively the power to assess and collect taxes for all purposes of such corporation." Article 11:

*

*

"Sec. 1. Nei

ther the state nor any county, city, town, township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to or in aid of any person, company or corporation, public or private, for any amount or for any purpose whatever, or become responsible for any debt, contract or liability of any person, company or corporation, public or private, in or out of the state. Sec. 8. No city or town shall contract any debt by loan in any form, except by means of an ordinance. which shall be irrepealable, until the indebtedness therein provided for shall have been fully paid or discharged; spec.fying the purposes to which the funds to be raised shall be applied, and providing for the levy of a tax, not exceeding twelve (12) mills on each dollar of valuation of taxable property within such city or town, sufficient to pay the annual interest, and extinguish the principal of such debt within fifteen, but not less than ten years from the creation thereof; and such tax when collected shall be applied only to the purposes in such ordinance specified, until the indebtedness shall be paid or discharged. But no such debt shall be created

unless the question of incurring the same shall at a regular election for councilmen, aldermen or officers of such city or town, be submitted to a vote of such qualified electors thereof as shall, in the year next preceding, have paid a property tax therein, and a majority of those voting on the question, by ballot deposited in a separate ballot box, shall vote in favor of creating such debt; but the aggregate amount of debt so created, together with the debt existing at the time of such election, shall not at any time exceed three per cent. of the valuation last aforesaid. Debts contracted for supplying water to such city or town are excepted from the operation of this section. The valuation in this section mentioned shall be in all cases that of the assessment next preceding the last assessment before the adoption of such ordinance." Article 15: "Sec. 12. The .general assembly shall pass no law for the benefit of a railroad or other corporation, or any individual or association of individuals, retrospective in its operations, or which imposes on the people of any county or municipal subdivision of the state, a new liability in respect to transactions or considerations already past."

J. W. Helbig, for plaintiffs in error. F. A. Williams, Helm & Goudy, and Platt Rogers, for defendants in error.

ELLIOTT, J., (after stating the facts.) The assignments of error are to the effect,First, that the final judgment, or modified order, of the county court is contrary to the terms of the annexation act under which this proceeding was instituted; and, second, that the act itself is unconstitutional and void.

1. That the modified order does not follow the terms of the act is apparent from the language of sections 2 and 5, hereinafter quoted. See Sess. Laws 1893, p. 451 et seq. The county court evidently concluded that the objection to the statute on the ground of its supposed unconstitutionality might be obviated by rejecting that part prescribing a taxpaying qualification for voters, and that the residue of the statute might be upheld. A brief examination of the object and purpose of the act will show whether such couclusion is correct or otherwise. The object of the act in question is to provide for the annexation of contiguous towns and cities. Section 2 requires that the question of dissolution and annexation be submitted "to a vote of such of the qualified electors of such town or city [to be annexed] as have in the year next preceding paid a property tax therein." Section 5 further provides that "no ballot on the question submitted shall be received by the judges of election unless the person offering the same shall be a duly-qualified voter in the election precinct in which he offers to vote, and entitled to vote in such precinct at said election,

and, in addition thereto, shall have in the year next preceding said election paid a property tax in said town or city." Section 8 provides that if a majority of the votes so cast shall be "for annexation," a report showing the result of the election shall be duly prepared, certified, and filed in the office of the clerk of the county court; that the court shall examine the same, and, if satisfied that the proceedings have been regular, shall approve the report; and that from and after such approval such town or city shall be dissolved, and the territory then included within the boundaries thereof shall be and become annexed to, and part of, the city existing under special charter. Those provisions which require the submission of the question of dissolution and annexation to the determination of taxpaying electors lie at the very foundation of the act itself. If a majority of the votes be "for annexation," and the proceedings be found regular, annexation is accomplished; otherwise, nothing is accomplished. It follows that, if the provision prescribing the qualifications of voters be unconstitutional, then the whole act is unconstitutional. The legislature has not, by the terms of the act, consented that a town or city may be dissolved or become annexed to another, except by a majority vote of electors having the qualifications prescribed by the act itself. The reception of ballots from persons not having such qualifications is strictly forbidden. A majority vote by electors thus qualified is, therefore, the essential condition to the accomplishment of annexation. The courts will go far in giving a legislative act a particular construction, rather than declare it unconstitutional. But the act in this instance is so clear and specific in respect to the qualifications of voters that there is no room for Judicial construction. It is true that, where part only of a legislative act is void, the residue may sometimes be upheld; but judicial authority cannot substitute anything in place of the void part. If the residue of the act cannot stand with the void part cast out, then the whole act must fall. The statute under consideration in this case has, as we have seen, a single object,—the dissolution of incorporated towns and cities for the purpose of annexing their territory to another city; in a word, the object is annexation. The dissolution is preliminary to, and inseparable from, annexation; and those provi sions which prescribe the means and procedure to be pursued are incidental or aux iliary to the same end. So, also, the remaining provisions are dependent upon and follow the accomplishment of the single object,-annexation. If those provisions of the

v. Railroad Co., 33 Cal. 212; Com. v. Potts, 79 Pa. St. 164; St. Joseph & D. R. Co. v. Buchanan County Court, 39 Mo. 485. The order of the court requiring the submission of the question to voters other than those prescribed by the statute was erroneous, whatever view may be taken of the statute itself. If the act be found valid, the question must be submitted to such electors as the act specifies; if the act be found unconstitutional, the proceeding must be dismissed.

2. Is the act in question constitutional? This question has been ably argued by counsel pro and con. It must now be determined, in order that the county court may properly dispose of the proceeding. In general, the legislature has plenary power in respect to municipal corporations; but in this state legislative power has been so hedged about by constitutional restrictions that we are confronted with many difficulties in this as in other cases. We are not, however, unmindful of the oft-repeated rule that the courts will not declare a legislative act unconstitutional, unless its unconstitutionality is clearly and palpably apparent. See People v. Wright, 6 Colo. 96, wherein it is said: "The powers of the general assembly are plenary, subject only to constitutional restraints, expressed or implied. To authorize an implied restraint, the implication must be a necessary one." See, also, Wadsworth v. Railway Co., 18 Colo. - 33 Pac. 520, wherein it is said: "So long as a legislative act is within the sphere of legislative power, -that is, so long as it is not an encroachment upon the province of some other department of the government,-it will be upheld, unless clearly in conflict with some provision of the constitution of the state or nation, or in violation of some private right thereby secured. The conflict between the legislative act and some specific provision of the fundamental law must, in general, be clearly apparent, or the act will not be deemed unconstitutional." Municipal corporations are organized to promote the prosperity and secure the happiness of people living in compact communities. Police and sanitary regulations different from the general laws of the state are conducive, and, in many instances, essential, to the welfare of the inhabitants of cities and towns. As such municipalities increase in population, territorial enlargement and public improvements of different kinds, as well as modifications of the local government, become necessary to the enjoyment of life, the protection of health, and the security of property, public and private.

3. It is contended that the act under consideration is unconstitutional, because a property qualification is required to entitle an elector to vote upon the question of dissolution and annexation. In support of this contention, section 1, art. 7, of the constitution is relied on. It reads as follows: "Section

1. Every male person over the age of twentyone years, possessing the following qualifications, shall be entitled to vote at all elections: First. He shall be a citizen of the United States, or, not being a citizen of the United States, he shall have declared his intention, according to law, to become such citizen, not less than four months before he offers to vote. Second. He shall have resided in the state six months immediately preceding the election at which he offers to vote, and in the county, city, town, ward or precinct, such time as may be prescribed by law; provided, that no person shall be denied the right to vote at any school district election, nor to hold any school district office, on account of sex." It will be observed that no property qualification is specified in the foregoing section; hence, if an elector has the qualifications therein specified, he is entitled to vote at all elections contemplated by said section. If the term "elections," as therein used, be held to include such an election as is provided for in the act now under consideration, then the act cannot be upheld. That the word is not used in such a comprehensive sense may be inferred from the fact that elsewhere in the constitution, wherein the creation of public indebtedness is provided for, the right to vote is restricted to such qualified electors as shall, in the year next preceding, have paid a property tax. See article 11, §§ 6-8. These provisions of article 11 were framed at the same time as article 7, and, if they had been considered exceptions, they would doubtless have been noted as such in article 7 by the usual phrase, "except as in this constitution otherwise provided," as was done in other parts of the original constitution. See article 5, § 30; article 6, §§ 1, 2. It is manifest that some restriction must be placed upon the phrase "all elections," as used in section 1, art. 7. else every person having the qualifications therein prescribed might insist upon voting at every election, private as well as public, and thus interfere with affairs of others in which he has no interest or concern. In our opinion, the word "elections," thus used, does not have its general or comprehensive signification, including all acts of voting, choice, or selection, without limitation, but is used in a more restricted political sense, as elections of public officers. This view is consistent with the title of article 7, "Suffrage and Elections," and is also in harmony with the residue of the article. See Cent. Dict.; also, Webster and Bouvier; Amer. & Eng. Enc. Law, tit. "Elections." In Re Nominations to Public Officers, 9 Colo. 631, 21 Pac. 474, a bill relating to primary elec tions was held to be "a proper subject of legislation, entirely within the legislative power;" and the bill as passed excludes voters from voting who in good faith belong to another political party than the one holding the primary election. Sess. Laws 1887, p.