the taxes due the city; and the money thus realized, even though collected without warrant of law, should have been paid to the city, for whose benefit it was received. The treasurer could not refuse to pay this money over to the city because he was not authorized to collect it. Having paid it to the county, the latter is responsible to the city, for the reasons already indicated, because, in the absence of a statute directing what disposition shall be made of the penalty and interest collected on delinquent taxes, they follow the principal. Board of Com'rs of Prowers Co. v. People (Colo. App.) 69 Pac. 73; School Dist. v. Hedges, 13 Wash. 69, 42 Pac. 522; State v. Mish, 13 Wash. 302, 43 Pac. 40; Board of Com'rs of Hancock Co. v. State, 119 Ind. 473, 22 N. E. 10.

The judgment of the district court is reversed, and the cause remanded for a new trial in harmony with the views herein expressed. Reversed and remanded.

1. Where, in an action against a gas company for injuries sustained from the explosion of a gas stove, owing to the alleged negligence of defendant in connecting the stove with the pipes, the complaint did not charge that defendant failed to make a test of the pipes, but did charge that the representative of the company failed to make a test, it was not error to permit evidence that the representative made no test, since the company was chargeable with whatever negligence the representative was guilty of.

2. In an action against a gas company for injuries sustained from the explosion of a gas stove, owing to the alleged negligence of defendant in connecting the stove with the pipes, a witness for plaintiff was asked, as an expert, whether, when a house is fitted with gas pipes for heating purposes, it is necessary to make an inspection of the pipes before turning on the gas. Defendant objected to the form of the question. Held, that the objection did not raise the question that expert testimony was inadmissible.

3. Where in an action against a gas company for injuries from an explosion of a gas stove, owing to the alleged negligence of defendant in not inspecting the pipes before lighting the gas, the evidence showed negligence on the part of defendant, the admission of opinion evidence as to whether an inspection should have been made was not prejudicial error.

4. The court charged that the defendant, if it put in the pipes and left them in proper condition, was entitled to presume that they remained in that condition when it was asked to turn the gas on and connect the stove, in the absence of notice that changes had been made in the meantime, and refused to charge that defendant was not responsible for the condition of the pipes, if, after its servants put them in, changes were made without its knowledge. Held, that it was not error to refuse the requested instruction; the one given being as favorable as defendant was entitled to.

5. Plaintiff employed a gas company to connect his gas stove with pipes in the house through which defendant's gas was to be supplied. An employé connected the stove and lit the gas, and left it. It burned with a feeble

flame, and, on notification, defendant sent another employé to investigate. The latter found the gas flowing at low pressure, and turned it off, but not so that it would not relight itself, and, on going into the cellar, discovered a leak. While stopping the leak, an explosion occurred. Held, that defendant was liable because of the negligence of the first employé in not examining the pipes and in not turning off the gas when he left the premises, and because of the negligence of the second employé in not turning off the gas and in not giving warning of the danger of an explosion.

Appeal from district court, Fremont county.

Action by Benjamin S. Roseberry against the United Oil Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry F. May, for appellant. J. G. Waters and Lee Champion, for appellee.

STEELE, J. During the month of March, 1898, an explosion of natural gas demolished a dwelling house in which the appellee and his family were residing. The appellee, his wife, and daughter sustained serious personal injuries; and suit was brought by them in the district court of Fremont county against the United Oil Company, the appellant, to recover damages. The amended complaint alleges that the United Oil Company is a corporation organized under the laws of the state for the purpose, among other things, of engaging in and transacting the business of supplying the public generally with gas for heating purposes; that the explosion was occasioned by the negligence and carelessness of the said corporation. Then follows a de tailed account of the events leading up to and following the explosion. The following allegation is contained in the amended complaint: "That said injuries of plaintiff were so received and said explosion was occasioned, directly and proximately, by the negligence and carelessness of the defendant and its officers, agents, and employés, and in this: that the defendant, having been employed by the plaintiff to furnish gas from its pipes for heating a stove in the kitchen of said dwelling, sent one Taylor, then in its employment, to make connection from defendant's pipes to and with said stove; that the said Taylor negligently and carelessly turned the gas from defendant's pipes into the pipes fitted into said house, leading to said stove and running through the cellar under the kitchen, without making any examination or test to ascertain or know whether there was any obstruction of said pipes or not." In the answer it is alleged that the injury and damage, if any, were caused by the negligence and carelessness of the plaintiff; that the premises mentioned in the complaint were the property of John T. Miller, and that said Miller was in possession and control thereof; that, after the construction and fitting and connection of said pipes in said dwelling, the said compary caused them to be examined and inspected,

5. See Gas, vol. 24, Cent. Dig. § 13.

and found that they were in good and safe condition, so that gas could not escape therefrom; that thereafter, without the defendant's knowledge, said Miller changed the connections, fittings, and condition of said pipes, so that after said change the gas could and did escape therefrom; that in making the said change a cap was negligently left off or taken from a tap of the house pipes in the cellar of said dwelling, of which the defendant company was not notified.

Upon the trial the following question was asked of the plaintiff, Roseberry: "Q. During the time you were there when Taylor was there, did Taylor make an examination or test, or look out for a leak?" This question was objected to as not being covered by the pleadings. The objection was overruled, and the witness permitted to answer. "A. I didn't see him do anything, sir." The following question was asked the witness Dolan: "Q. I will ask you this question, as an expert: When a house is fitted with gas pipes for heating purposes, is there any examination or inspection of those pipes necessary to be made before you turn on the gas? The following objection was made: "I object to that as not covered by the pleadings. The only allegation in the pleadings is that Mr. Taylor failed to make any test or examination. There is no allegation that the defendant failed to make a test or examination otherwise than that." And also: "Because it cannot be relevant. As to whether it is necessary or not cannot be competent in this case. This is not based upon the pleadings. This is based upon the form of the question." The objections were overruled. The witness answered: "A. It is necessary." The witness Julian, an architect, was asked substantially the same questions, similar objections were made, the objections were overruled, and the witness was permitted to answer.

In instructions 2, 6, and 7, the court, in substance, charged the jury that it was the company's duty, before it connected its appliances for conveying gas to the house of plaintiff for burning there, to exercise reasonable and ordinary care in ascertaining, by inspection or otherwise, whether such pipes were in a reasonably safe condition for conveying gas for the purposes intended, and that if the company made such connection, and turned on and lighted the gas, and permitted the same to remain burning, when the plug or tap was off the end of the service pipe in the cellar, without then making, or having at any time theretofore made, an inspection of the system of pipes, then such conduct was negligent and careless. The company offered the following instruction: "The defendant is not responsible for the condition of the pipes in the cellar, if, after its servants put them in, changes were made without its knowledge.". This was refused. The court gave, as instruction No. 9, the following: "The defendant, if it put in the pipes and left them in proper condition, was

entitled to presume that they remained in that condition when it was asked to turn the gas on and connect the range, in the absence of notice that changes had been made in the meantime."

The undisputed facts disclosed by the testimony are that the premises in question were rented by Roseberry from Miller; that Roseberry was required by the rules of the company to employ the company to make the connection, and that he did employ the company to connect the range and to turn on the gas; that the connection was made and the gas turned on and lighted by a man named Taylor,-an employé of the company; that the gas, when lighted, was found to burn with an insufficient flame, indicating, as witness Taylor said, a very low pressure, or an obstruction in the pipes; that Taylor left the premises without turning off the gas or making an inspection of the pipes; that Taylor reported the facts to the foreman for the company, a man named Preston; that, about two hours after the gas was turned on by Taylor, Preston came to the house "to see the condition of the gas and fire at that time, -nre in the stove." Preston then states: "I found the fire in the stove burning a little below, or somewhat below, its normal condition, that it usually is burning. I turned out the fire in the stove, opened it again, and listened to it,-listened to the pressure of the gas coming through,-lifted the lid off the stove and looked into it, and again closed the lid, opened the cellar door (trapdoor), and went down cellar. I didn't turn it out so but what it would relight itself. I left the lids on the stove when I went into the cellar. When I went down cellar I found escaping gas from an aperture at the end of the lower service pipe leading to the house. I put my hand over the aperture to check the flow of gas. I looked around in my pocket to find a piece of waste, which I usually carry, and I couldn't find any. Then I looked for a piece of paper or cloth or something, on the floor, to stop it with, and I couldn't find anything there. I went to ask them to hand me a cloth from overhead. I think I spoke once or twice,-I think I spoke the second time; and as I was speaking the second time, before I could finish my sentence, the explosion took place."

Three cases were consolidated for trial. The jury rendered a verdict for the sum of $3,013 in favor of the plaintiff Benjamin S. Roseberry. No question is raised as to the amount of the verdict.

We will consider the questions presented by the assignments of error in the order they are presented in the brief of counsel:

It is first contended by counsel for the company that the court erred in not permitting the plaintiff to go into the question whether or not examinations or tests of the pipes in the dwelling were or ought to have been made, because the pleadings do not allege that the defendant made no examination or test.

The complaint does not charge that the defendant failed to make a test of the pipes, but it does charge that Taylor, the representative of the company, failed to make a test or examination; and this is sufficient to charge the company with whatever negligence Taylor was guilty of.

The court did not err in permitting witnesses to testify that Taylor made no test of the pipes before or after he turned on the gas, nor in permitting witnesses to testify that he lighted the gas and left it burning in the stove.

It is next urged that the court erred in permitting the witness Dolan, a master plumber, steam and gas fitter, and Julian, an architect, to testify that, to ascertain whether leaks exist, it is necessary to make a test or examination of the pipe. We are of opinion that the objection to the form of the question did not present to the court the objection that expert testimony was inadmissible, and we think it not necessary to determine whether, in a case such as this, testimony of this character may be received over objection. And we shall presently decide that, assuming a proper objection to have been made, and that opinion testimony in a case of this character should not be received over such objection, the reception of such testimony was not prejudicial to the defendant, because the verdict should be sustained upon the testimony of the defendant alone. As the rules of the company required Roseberry to have the connection made by an employé of the company, he had a right to expect that the company's employés would make the connection in a safe and skillful manner.

The instruction given by the court concerning the presumption that the pipes remained in proper condition, in the absence of notice that a change had been made, is as favorable to the company as should have been given; and the court did not err in refusing the instruction offered. Indeed, we doubt very much if the instruction given by the court is not more favorable to the company than the law authorizes. It seems to us that in dealing with Roseberry the company was bound to see that its pipes were in proper condition, and this without regard to their condition at some other time. We quote with approval the following language from Koelsch v. Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 18 L. R. A. 759, 34 Am. St. Rep. 653: "The definitions of 'negligence' which have been attempted imply that a higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life or business, which involve little or no risk of injury to person or property. While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. This would require in the case of a gas company not only that its pipes and fittings

should be of such material and workmanship, and laid in the ground with such skill and care, as to provide against the escape of gas therefrom when new, but that such system of inspection should be maintained as would insure reasonable promptness in the detection of leaks that might occur from the deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in business." Although the witnesses of the defendant say that the cap or plug in question was in place when the employés of the company finished their work upon the building, there is no testimony which shows that any inspection or test of the pipes after they were put in place was ever made. But we do not base our opinion upon the fact that no test was made by the company after it put the pipes in place, and before Taylor was called upon to make the connection. are of the opinion that the testimony of the defendant shows that Taylor was negligent in failing to make an examination of the pipes upon discovering that the gas burned with an unusually feeble flame, and that he was negligent in not turning off the gas when he left the premises; that Preston was negligent in not turning off the gas when he commenced his search for a leak, and negligent in not warning the plaintiff and his family of the danger of an explosion; and that for all of these acts the company is responsible. These acts of negligence having been shown by the testimony of the defendant, if the court had taken from the consideration of the jury all questions save that of the amount of damages to be awarded, we should have affirmed the judgment.

We

For the reasons given, the judgment is affirmed. Affirmed.

(29 Colo. 488)

ADAMS et al. v. CRONIN. (Supreme Court of Colorado. May 5, 1902.) INTOXICATING LIQUORS-SALE-REGULATION—

STATUTES-CONSTITUTIONALITY.

1. Denver City Charter, § 20, subd. 12, providing that no saloon shall keep in connection therewith any wine room into which any female shall be permitted to enter and be supplied with liquor, is not unreasonable, as a discrimination against women on account of sex. 2. The section is not unconstitutional as de

priving a liquor dealer of his right to pursue a lawful calling and denying him the equal rights and privileges to which citizens are entitled.

3. Denver City Charter, § 20, subd. 12, provides that no saloon shall keep in connection therewith any wine room into which any female shall be permitted to enter and be supplied with liquor. Mills' Ann. St. § 423, preserves to all citizens equal enjoyment and privileges of inns, restaurants, etc. Held, that the charter is not invalid as violative of section 423, since, if the statute gave to women the right, equally with men, to frequent saloons, the right was withdrawn by the charter.

Appeal from district court, Arapahoe county.

Suit by Daniel Cronin against Frank Adams and others as the fire and police

board of the city of Denver. From a decree for plaintiff, defendants appeal. Reversed.

H. M. Orahood, City Atty., and H. L. Ritter, Asst. City Atty., for appellants. Milton Smith, for appellee.

CAMPBELL, C. J. The district court issued a permanent writ of injunction restraining the defendants below, appellants here, from enforcing the provisions of sections 745 and 746 of article 15 of the General Ordinances of the City of Denver, upon the ground that they are unconstitutional, and that plaintiff had no adequate remedy at law. They read:

"Sec. 745. Each and every liquor saloon, dram shop, or tippling house keeper,

who shall have or keep, in connection with or as part of such liquor saloon, dram shop or tippling house, any wine room or other place, either with or without door or doors, curtain or curtains, or screen of any kind, into which any female person shall be permitted to enter from the outside, or from such liquor saloon, dram shop, or tippling house, and there be supplied with any kind of liquor whatsoever, shall, upon conviction, be fined as hereinafter provided.

"Sec. 746. No person

having

charge or control of any liquor saloon, or place where intoxicating or malt liquors are sold or given away, or any place adjacent thereto, or connected therewith in any manner whatsoever, either by doors or otherwise, shall suffer or permit any female person to be or remain in such liquor saloon, dram shop, tippling house, or other place where intoxicating or malt liquors are sold or given away, for the purpose of there being supplied with any kind of liquor whatsoever. No person owning or having charge or control of any liquor saloon, dram shop, or tippling house shall employ or procure, or cause to be employed or procured, any female person to wait or in any manner attend on any person in any dram shop, tippling house or liquor saloon, or in any place adjacent thereto or connected therewith, where intoxicating or malt liquors are sold or given away, nor shall any female person be or remain in any dram shop, tippling house, liquor saloon or place adjacent thereto or connected therewith, and wait or attend on any person, or solicit drinks in any such place."

This ordinance was before our court of appeals in Walker v. People, 5 Colo. App. 38, 37 Pac. 29, and in City of Denver v. Domedian, 1 Colo. Dec. 441, 15 Colo. App. —, 60 Pac. 1107. In the former case, under the evidence, and in the latter, upon the stipulated facts, it was held that the cases as made did not come within the prohibition. In speaking of these regulations, however, Mr. Justice Wilson, in the latter case, said: "We agree that the ordinance is a good one, that its objects are most praiseworthy, and that its rigid enforcement would meet with

The

the approval of every good citizen." question of its constitutionality was not there mooted, but this expression of Judge Wilson, if only dictum, is an indication of what his view would be had its validity been assailed. The chief object of the ordinance was there said to be to suppress the evils incident to the "frequenting of saloons by females, and the attendant results so offensive to decency and the moral sense of the public." The power to make these particular regulations was expressly conferred by the general assembly upon the city council of the city of Denver by the fifth clause of subdivision 12 of section 20 of the charter, which provides "that no liquor saloon, dram shop or tippling house shall have or keep in connection with or as part of such saloon, tippling house or dram shop, any wine room or other place, either with or without doors, curtain or curtains, or screen of any kind, into which any female person shall be permitted to enter from the outside, or from such tippling house or dram shop, and there be supplied with any kind of liquor whatsoever." Plaintiff does not deny that he has kept a wine room into which he permits women to enter and there be supplied with liquor, and suffers them to remain therein for that purpose, contrary to the specific provisions of these sections. Indeed he admits that he has violated the ordinance in both particulars, and proposes, unless prevented by the municipal authorities, to continue to do so. So that the principal question in the case is as to the constitutionality of the charter, rather than of the ordinance, for the latter confessedly is authorized by the charter. The ordinance is good if the charter provision is constitutional. Two questions are pressed by plaintiff for determination: First, was the case as made by the complaint one calling for the interposition of a court of equity? Second, is the charter provision constitutional?

1. The plaintiff does not contend that he is entitled to equitable relief by injunction unless the charter is void. Since, as appears later in the opinion, we hold it valid, it is not absolutely necessary to decide whether the admitted facts of the complaint warrant the granting of an injunction. This court does not look with favor upon the practice of restraining municipal authorities from executing municipal ordinances which so vitally concern the tranquility of the community and good order of society. While it is true, as said in the case of City of Denver v. Beede, 25 Colo. 172, 54 Pac. 624, that in exceptional cases a court of equity will restrain a prosecution at law when the legal question involved is the same at law as in equity, such is not the general rule; and a clear case should be made out before such extraordinary relief is awarded. It is not necessary here to indicate in what cases such relief will, and in what it will not, be given. But it is doubtful if this complaint is so essentially different from that in the Beede

Case as to render inapplicable the rule there announced. We mention this point for the purpose of again emphasizing our view that only in extreme and exceptional cases should a court of equity interfere with municipal authorities in the enforcement of such ordinances.

2. So far as the question at issue is concerned, these sections of the ordinance practically prevent a saloon keeper from permitting women to frequent what are called wine rooms, there to be supplied with liquor; and it is only with respect to that feature of the ordinance that we are at present concerned, although it may be that the principles which govern this particular clause of the enactment equally apply to the others. As we understand the argument of his counsel, plaintiff's position is that these sections are unreasonable because they discriminate against women solely on account of their sex; that they are unconstitutional, in that they deprive defendant of his property without due process of law, destroy his right to pursue a lawful calling, and deny to him the equal rights and privileges which every citizen has, both under the federal and our state constitutions; that they violate section 423, Mills' Ann. St., which preserves to all the citizens of the state equal enjoyment of accommodations, advantages, facilities, and privileges of inns, restaurants, churches, barber shops, public conveyances, theaters, and other places of public resort or amusement. With respect to the latter contention, it is sufficient merely to say that if this section, when enacted, gave to women the right equally with men to frequent saloons, and if such right depended solely upon statute, it was taken away by the general assembly when, at a later date, it adopted a charter for the city of Denver, whereby authority was conferred upon the city to deprive women of the enjoyment of the so-called right.

Probably plaintiff's theory may be made still more clear by a summary of the argument of his counsel. He argues that the saloon keeper has as much right to sell liquor to women and to allow them within his place of business, whether in the saloon proper or in a room adjacent thereto, as he has to sell to men and to permit them within such places; that a woman has as much right to buy and drink liquor as men, and, if so, the keeper of a saloon has the correlative right to sell to her with as much freedom as to men; that since women have been given the right of suffrage in this state, and in all respects stand upon a legal equality with men, they have the same right as men to the pursuit of happiness and to avail themselves of all the rational enjoyments that are open to their brothers, among which is the right to enter saloons and there buy liquor. Otherwise expressed, counsel says, if a woman has a right to go into a saloon and get a drink, the same as a man, which he insists is true, the saloon keeper has a right to sell her that drink, and

any ordinance which prevents him from doing so is an invasion of his civil and property rights. If she, equally with a man, has the right to buy and the saloon keeper may not sell to her, he is deprived of a property right without due process of law; i. e., the right to carry on a lawful business with customers entitled to patronize him. If this ordinance was passed under cover of the incidental powers of the city, and if it also appeared to the court to be unreasonable, unfair, partial, arbitrary, or oppressive, it might be nullified. But if it is subject to such objections only, which does not seem to us to be true, still it could not be set aside upon any of those grounds, for the general assembly has expressly given to the city council authority to pass it in the form in which it is expressed, and if constitutional it must stand. Phillips v. City of Denver, 19 Colo. 183, 34 Pac. 902, 41 Am. St. Rep. 230. The charter provision comes clearly within the general police power, which every sovereign state, through its legislative department, possesses; and while, as counsel for plaintiff contends, under the guise or pretense of passing laws for the protection of the public morals and the general welfare and safety of the people the legislature may not contravene constitutional provisions, yet where the legislation is a proper exercise of the police power, and the courts can see that it is reasonably adapted to the permissible end in view, it may not be declared unconstitutional merely because it places some restrictions upon individuals generally, or certain classes, with respect to certain callings. Under the license laws of this state no one may engage in the business of selling liquor without a license. He has no absolute right to sell at all. It is only a privilege he gets when a license is granted. The city of Denver, under its charter, has the exclusive power to prohibit, restrain, tax, and regulate the sale of intoxicating liquors. It may exercise that power to prohibit the sale altogether, or, if it see fit, it may regulate the sale and impose such conditions as it deems necessary. Under these license laws, one may not engage in the liquor traffic as of common right, but may do so only upon compliance with prescribed regulations; and if he applies for a license under which only he may lawfully sell, he is held to take that license with whatever restrictions or limitations are imposed by the authority which, and which only, can give him the coveted privilege. One of the conditions which the charter of Denver requires to be inserted in every liquor license is the one of which plaintiff complains. He vigorously contends that the question is not one of morality at all, but merely whether or not, in the pursuit of a lawful calling, one may be deprived of the right of selling his property to whomsoever he pleases, and whether he may permit to enter his place of business all persons, both female and male, who wish to buy. It is to be observed that no woman is here to assert her constitutional