charge in this respect is that the defendants, "at the county of Arapahoe aforesaid, feloniously, willfully, and maliciously did conspire, confederate, and agree together to feloniously, burglariously, willfully, maliciously, and forcibly break and enter the dwelling houses, shops, and storehouses there situate, of divers persons to the said Robert W. Steele unknown." Undoubtedly, one conspiracy may be formed to commit a number of offenses. The unlawful combination is the crime charged, and the fact that, should the conspiracy be carried out, it would result in two or more different offenses, does not render the indictment objectionable for duplicity. The sole charge upon which the defendant stands convicted is that of conspiracy. 2 Bish. Cr. Proc. 226. The judgment of the district court must be affirmed. Affirmed.

(24 Colo. 422)

PEOPLE v. AMES, County Assessor, et al. (Supreme Court of Colorado. Dec. 6, 1897.) TAXATION-COUNTY ASSESSORS-DUTY TO LEVY POLL TAX.

1. Though there is no direct statutory provision requiring the county assessor to extend the military poll tax upon the assessment roll, 2 Mills' Ann. St. § 3082, requires the county commissioners to "cause to be levied" the poll tax, and Const. art 14, § 8, provides that a county assessor shall be elected biennially. Held that, in the absence of any constitutional or statutory provision as to his duties, they are such as are usually incumbent upon such officer; and, it having been the uniform practice in the state for many years for the assessors to extend the poll tax, it is their duty to do so.

2. The levy of a poll tax is not a violation of Const. art. 10, § 11, limiting the taxing power of the state to four mills on each dollar of valuation.

3. The order of the governor dispensing with the military enrollment for a certain year has no effect upon the levy of the military poll tax for that year.

4. 2 Mills' Ann. St. § 3082, providing that the county commissioners "shall cause to be levied" an annual poll tax, only contemplates a resolution by the board, the actual clerical work of extending the tax being the duty of the assessor.

5.2 Mills' Ann. St. § 3082, provides that the military poll tax "shall be assessed and collected in the same manner as is now or may be by law provided for the assessment and collection of other state poll taxes," and was passed under the territorial government; the word "state" being substituted for "territory" by Gen. Laws 1877, p. 9, § 1. An examination of the territorial practice shows that for 30 years or more the county assessors extended and the county treasurers collected these taxes. 2 Mills' Ann. St. § 3083, makes it the duty of the county treasurer to collect the tax, and remit it to the state treasurer. Section 3085 provides a punishment for a county treasurer failing to collect the tax. Other sections provide a penalty for a failure to pay, and make it the duty of all residents of the county to return to the assessor a list of property, together with the number of polls. Held, that there is ample provision of law for the assessment and collection of the tax, and it is clearly the duty of the assessor to extend the military poll tax upon the lists the same as other taxes.

6. Where a statute authorizing a tax has been for a long time acquiesced in, and the procedure thereunder has become fixed, it would be dan

gerous to government to allow purely ministerial officers, such as a county assessor and treasurer, to question the constitutionality of the statute, or refuse to extend the tax as required thereby.

7. The military poll tax having been levied by the board of county commissioners, the failure of the county assessor to extend it upon the lists delivered to the treasurer is no excuse for the treasurer's failure to collect it.

Error to district court, Arapahoe county. Action by the people of the state of Colorado, on relation of the attorney general, for a mandamus to compel Willard L. Ames, county assessor, and Frank Hall, county treasurer, of Arapahoe county, to extend and collect the military poll tax. The proceeding was dismissed, and the people bring erReversed.

ror.

This action was instituted by the attorney general, on behalf of the people of the state, to obtain a writ of mandamus to compel the assessor to extend the military poll tax for the year 1896, upon the assessment roll of Arapahoe county, and also against the treasurer, to compel him to collect this tax. An alternative writ of mandamus was issued, to which separate answers were filed by Willard L. Ames, the county assessor, and Frank Hall, the county treasurer. To these answers a demurrer was filed, and overruled. The attorney general electing to stand by the demurrer, the proceeding was dismissed, and the case brought into this court upon error. The case may be fully considered upon the answer of the respondent Ames. In this answer he admits the several allegations of the alternative writ, and alleges, in defense, the following: (1) That it is not his duty to extend the military poll tax upon the assessment roll; (2) that the tax is in excess of the constitutional limitation of four mills on the dollar of valuation, and therefore unconstitutional; (3) an order by the governor dispensing with the military enrollment for the year 1896; (4) the failure of the county commissioners of Arapahoe county to prepare a list for the assessor of persons subject to this military poll tax; (5) that there is no provision of law whatever for assessing and collecting the military poll tax. The following constitutional and statutory provisions are referred to in the opinion: "There shall be elected in each county, on the first Tuesday in October, in the year eighteen hundred and seventy-seven. and every alternate year forever thereafter,

one county assessor." Const. § S. art. 14. "A poll tax shall be assessed on every able-bodied male inhabitant of the state, over the age of twenty-one and under fifty years, whether a citizen of the United States or an alien." 2 Mills' Ann. St. § 3764. "The county commissioners of each county shall, at the time of levying the tax for county purposes, cause to be levied an annual poll tax of one dollar upon each male inhabitant over the age of twenty-one years, excepting active members of the national guard and such other persons as may be exempt

by law. A failure or neglect on the part of the county commissioners to levy such tax shall subject such county commissioners, and each one of said such commissioners to a fine of not less than one thousand nor more than five thousand dollars, for the benefit of the military fund; and it is hereby made the duty of the adjutant general to institute proceedings against such commissioners to recover such fine. The said poll tax shall be assessed and collected in the same manner as is now or may be by law provided for the assessment and collection of other state poll taxes." Id. § 3082. "The money collected from the above poll tax shall be kept by the county treasurers separate from all other funds, and shall be by them transmitted quarterly to the state treasurer, who shall place it to the credit of the military fund." Id. § 3083. "Every county treasurer who shall refuse or neglect to send to the state treasurer any and all moneys belonging to the military fund, as provided for, shall be deemed guilty of a high misdemeanor, and, upon conviction thereof, shall be fined in a sum not less than fifty dollars nor more than five hundred dollars, and the court may adjudge that said treasurer be removed from his office." Id. § 3085. "Any person subject to military poll tax, and refusing or neglecting to pay the same, on or before the first day of March in each and every year, shall be considered delinquent, and the county treasurer shall, within ten days thereafter, report to the county attorney of his county a list of such delinquents in his county. Every such delinquent shall be subject to a penalty of twenty-five dollars, which penalty, together with the military poll tax added, shall be recoverable in a civil action, in the name of the people of the state of Colorado, in any court of competent jurisdiction, and it shall be the duty of such county attorney to institute and prosecute such suit to final determination, immediately upon such report being made to him by [the] county treasurer. Id. § 3087. "It shall be the duty of every person owning or having charge of property in this state, subject to taxation, to make and deliver to the assessor on or before the twentieth (20) day of June in each year, a correct list of the same, as required by law, whether he shall receive from the assessor a notice to do so or not, and every assessment made against property subject to taxation shall be valid in all respects, whether such notice was received or not. And no failure of the owner to have such property assessed or to have the errors in the assessment corrected, and no irregularity or error or omissions in the assessment of any property, or in the levying of any tax, shall affect in any manner the legality of any taxes levied thereon, nor affect any right or title to such real property which would have accrued to any party claiming or holding the same under or by virtue of a deed executed by the treasurer, as provided by law, had

*

the assessment of such property been in all respects regular." Id. § 3790. "The said list shall contain * * * the number of polls." Id. § 3792. "The rate of taxation on property, for state purposes, shall never exceed four mills on each dollar of valuation." 3 Mills' Ann. St. § 446. "The assessor of each county is directed, between the first (1) day of April and the twentieth (20) day of June, of each year, to leave with each person resident in his county, of full age and sound mind, at the usual place of residence, or at the office or other place of business of such person, a written or printed notice, requiring him to make out and return to the assessor, at a time and place therein specified, a statement or list of his property, which by law is subject to taxation; and to leave a blank form upon which said list may be made; but if the person is prepared to render his list at the time the notice is left, it shall be the duty of the assessor to receive it at that time." Id. § 3813. "On the first day of the meeting of the county commissioners of each county as a board of equalization, the county assessor shall submit to said board the complete assessment of his county, together with the list of property returned to him. He shall also submit to said board, lists of all persons or corporations in his county who have returned insufficient lists of personal property, or have failed to return any list of property, as required by law, and shall report his action in each case." Id. § 3816. "On or before the first (1) day of January, annually, every county assessor shall deliver to the county treasurer the assessment book or roll, with the taxes extended, containing in tabular form, and alphabetical order, the names of the persons and bodies in whose names property has been listed in his county, with the several species of property and the value, as required by section nine (9) of this act, with the columns of numbers and value footed; and in a column to be provided for that purpose, he shall write the words 'by the assessor,' when the list was made by himself; and all real estate not returned to the assessor shall be entered and described at the end of said assessment book or roll, with the taxes extended, under the head of 'Unknown,' provided by law." Id. § 3819.

as

Byron L. Carr, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., and George H. Thorne, Asst. Atty. Gen., for the People. George Q. Richmond (S. D. C. Hays, of counsel), for defendants in error.

HAYT, C. J. (after stating the facts). We will consider the objections urged in the order in which they are presented. It is true that there is no direct statutory provision requir ing the assessor to extend the military poll tax upon the assessment roll; but the law does require the commissioners to cause to be levied "an annual poll tax of one dollar

upon each male inhabitant over the age of twenty-one years, except members of the national guard and such other persons as may be exempt by law"; and it provides a penalty for failure on the part of the commissioners to levy such tax. The constitution provides that there shall be elected biennially, in each county, one county assessor; and, in the absence of any constitutional or statutory provision as to the duties of such assessor, his duties will be held to be such as are usually incumbent upon such an officer. The statute requires the assessor to leave with all owners of property residing in his county a tax schedule, upon which the number of polls, among other things, is to be entered. When this schedule is completed, it is to be returned to the assessor; and it is made his duty to deliver to the county treasurer the assessment book or roll, with the taxes extended. The statute requires the number of polls to be included in the schedules returned to the assessor, and it would be doing violence to the intelligence of the legislature to hold that this is a mere useless formality, and that the assessor has no duty to perform in the premises. Why require the number of polls to be returned to such officer, except for the purpose of having the same extended in order that the poll tax may be collected as other taxes are collected? We think it is clearly his duty to extend the military poll tax with the other taxes upon this assessment list. This is in accordance with the uniform practice that has prevailed in this state for many years. Poll taxes have been levied and assessed from the earliest formation of the territorial government, without question; and, while it is true that this does not make such levy and assessment right, a precedent so long followed is entitled to great weight. The levy of this tax is not in violation of section 11 of article 10 of the state constitution, as this section only fixes a limitation upon the rate of taxation for state purposes on property, and a poll tax is not a tax upon property. It is a capitation tax; that is, a specific sum levied upon each person. It is a fundamental principle that the taxing power of the state is unlimited, except as the same is restricted by the constitution; and there is no constitutional limitation with reference to a capitation tax. In the case of Railroad Co. v. Peniston, 18 Wall. 5, Mr. Justice Strong says: "No one ever doubted that, before the adoption of the constitution of the United States, each of the states possessed unlimited power to tax, either directly or indirectly, all persons and property within their jurisdiction, alike by taxes on polls, or duties on internal production, manufacture, or use, except so far as such taxation was inconsistent with certain treaties which had been made. *** The extent to which it shall be exercised, the subjects upon which it shall be exercised, and the mode in which it shall be exercised, are all equally within

is a proceeding to compel the extension of the military poll tax for the year 1896, the order relating to 1897 will not be considered. An examination of the statutes discloses that the military enrollment and the assessment of a military poll tax are two separate and distinct things. The military enrollment is made for the purpose of ascertaining the number, names, etc., of all persons subject to military duty. The governor is given the power to dispense with this enrollment whenever he sees fit, or he may order such enrollment at any time whenever, in his opinion, there is a necessity therefor. Such enrollment has nothing to do with the levy of the military poll tax. It is contended that it is the duty of the commissioners to furnish the assessor with a list of the male inhabitants of the state subject to the payment of this tax, and that no duty devolves upon the assessor until such list is furnished. The statute (2 Mills' Ann. St. § 3082) provides that the commissioners shall cause to be levied an annual poll tax. There is nothing in the statute which requires the commissioners to designate by name the persons subject to such tax. This is properly left with the assessor, with his better facilities for ascertaining the facts requisite for such action. There are several other statutes of the state whereby it is made the duty of the county commissioners to cause to be levied certain other taxes, etc. We think such statutes are complied with by the passage of a resolution, as in this case, providing for the levy of such taxes, the mere clerical work of extending the tax devolving upon the county assessor. This has been the uniform practice in the past, and we see no reason to depart from it at this time. Section 3082, 2 Mills' Ann. St., provides that the military poll tax "shall be assessed and collected in the same manner as is now or may be by law provided for the assessment and collection of other state poll taxes." It is contended that there is no provision for either the assessment or collection of other state poll taxes, and hence it is argued that the military poll tax can neither be extended by the assessor nor collected by the treasurer. Literally speaking, at the time of the passage of the act there was no other state poll tax, but we must ascertain the intent of the legislature at the time the original act was

adopted, of which the above section is a part. This was under the territorial government; and the word "territory" was originally used instead of the word "state," so that the statute read "as other territorial taxes"; and the word "state" was subsequently substituted for "territory," in compliance with the general law passed upon the organization of the state, for the purpose of making the statutes conform to the changed condition incident to a state government. See Gen. Laws 1877, p. 9, § 1. Under the territorial government, poll taxes in various amounts were from time to time levied by the several boards of county commissioners in their respective counties. It is shown by the brief of the attorney general that these taxes were extended by the county assessors, and collected by the county treasurers. Such practice having been followed for 30 years or more, it should not now be set aside for any but the weightiest reasons. An examination of the statute shows that it is made the duty of the county commissioners to levy this military poll tax in their respective counties, and the statutes provide severe penalties for their failure or neglect so to do. It is also provided that the county treasurer shall keep the money collected from the military poll tax separate from other funds, and, at stated intervals transmit the same to the state treasurer. 2 Mills' Ann. St. § 3083. It is provided that every county treasurer who shall neglect to send this money to the state treasurer shall be guilty of a high misdemeanor, and severely punished. Id. § 3085. By another section a penalty is imposed for failure or refusal to pay these taxes; and by still another it is made the duty of all residents of the county to return to the assessor a list of property, together with the number of polls. An examination of these sections shows conclusively that it was the intention of the legislature that this tax should be levied and collected the same as other taxes, and the assessor should consequently have extended the same upon his lists, and the treasurer, upon being furnished with the proper data, should proceed to collect such a tax as other taxes are collected. That the general revenue laws of the state may be invoked for the collection of this tax is apparent from the very title of the act, which is, "An act concerning the enrollment and organization of the militia of the state; prescribing the districts, number and rank of the officers thereof, and defining the duties of such officers; to provide for the more efficient collection of the military polltax, and to repeal," etc.

Aside from what has already been said, we think it would be dangerous to government to allow purely ministerial officers, such as respondents, to question the constitutionality of these various acts, or to refuse to extend any tax when required so to do. If the county assessor of Arapahoe county may refuse to extend the military poll tax, the county assessor of Pueblo county may refuse to

extend the tax for the state university, while the county assessor of some other county may refuse to extend the tax for the state school of mines, or for general purposes. To permit this would result in seriously crippling the state government, and compel state institutions, which derive their support from the state, to close their doors at the will or caprice of county assessors or county treasurers. It is always better for ministerial officers to obey the law, particularly where a violation of its provisions may lead to such disastrous consequences. This has special force where a statute has been for a long time acquiesced in, and the procedure thereunder has become fixed, as in this instance. People v. Salomon, 54 Ill. 40.

For the reasons given, the demurrer to the answer of Assessor Ames should have been sustained, and the peremptory writ of mandamus ordered. As a matter of precaution, the treasurer has been made a party to this action, as it is alleged that it is his duty to collect this tax. In his answer, this officer has expressed a willingness to collect the same when furnished with the proper authority for that purpose, or with a list of persons liable to the payment of the tax, but says that he is without authority to collect the tax unless he finds it extended upon the assessment roll. As we have already determined that it is the duty of the assessor to extend the military poll tax upon the assessment roll, it is unnecessary further to consider the answer of the treasurer. We may say, however, in conclusion, that, this tax having been levied in pursuance of law, it was the duty of the proper officer to collect the same; and, had we reached a different conclusion with reference to the duties of the assessor, we should, nevertheless, hold that it was the duty of the treasurer to collect the tax. Iowa R. Land Co. v. Sac Co., 39 Iowa, 124; Iowa R. Land Co. v. Carroll Co., Id. 151; Parker v. Sexton, 29 Iowa, 421. The judgment of the district court will be reversed, with directions to enter the peremptory writ of mandamus. Reversed.

(24 Colo. 432)

TELLER v. FERGUSON. (Supreme Court of Colorado. June 22, 1897.) PLEADING-BURDEN OF PROOF-EVIDENCE-OBJECTIONS WAIVED.

1. Where plaintiff avers that he performed services for defendant under a contract, and that an account was stated between them showing a balance due from defendant to plaintiff, and defendant admits the contract and the amount due, but alleges that he owes it, not to plaintiff, but to some one else, the burden is on plaintiff, and he is entitled to open and close the

case.

2. In a suit on a contract, admissions of defendant are admissible in evidence, without fixing time and place.

3. Objections to depositions, which are waived at the trial, are not available on appeal.

4. In a suit on a contract, where the defendant testified that part of the money was to be paid

answer

to

to a third party, and that said party was aware of the arrangement, testimony of such party that he was not aware of such arrangement, and an question a on cross-examination whether such party had ever, demanded the money, are admissible, where the jury are instructed that the consent of the third party to the agreement was not necessary to make it binding.

5. Plaintiff cannot be questioned, on cross-examination, about statements he is alleged to have made in complaints filed in other suits, where such complaints are not exhibited to him before the question is asked.

6. Where evidence is conflicting, the verdict of a jury will not be disturbed.

Appeal from district court, Arapahoe county.

Action by John A. Ferguson against John C. Teller. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff in his complaint alleges that in the month of August, 1892, and for some years prior thereto, the defendant was engaged in the business of furnishing ties to the Union Pacific Railway Company under a five-years contract; that the defendant employed plaintiff in August, 1892, to assist him in carrying out the contract; and that by the terms of such employment the plaintiff agreed to keep an account of all ties inspected at various points along the line of the Union Pacific Railway, and that his compensation therefor should be one-sixth of the net profits which should thereafter accrue to the defendant under said contract with the railway company. It is further alleged that the plaintiff entered into and continued in the employment of the defendant, under said contract, from the 12th day of September, 1892, to and including the 31st day of May, 1894. The plaintiff avers that the net profits derived by the defendant from his contract as aforesaid, during the dates last mentioned, amounted to the sum of $82,976.46. It is further alleged that an account was stated between the plaintiff and defendant on the 1st day of June, 1894; and it was then found that after allowing the plaintiff credit for one-sixth of the net profits, and deducting therefrom all advances made to plaintiff, there was due from the defendant to the plaintiff a balance of $7,173.55. It is alleged that the defendant has not paid the plaintiff such balance, nor any part thereof; wherefore plaintiff prays judgment for the balance so remaining unpaid. To this complaint an answer was filed in which the defendant admits the employment of plaintiff as stated in the complaint; admits the compensation agreed upon to be as stated in the complaint; but denies that the defendant ever agreed to pay plaintiff such compensation. Further answering, the defendant alleges that, at the time of making the contract, the plaintiff was related to the defendant, in this: the wife of the defendant was a half-sister of plaintiff; that the father of the plaintiff, James F. Ferguson, was a man without means, having a family of three daughters in addition to said son,

John A. Ferguson; that the father and daughter were without any means of support except as received from said John A. Ferguson, or from contributions received before that time, and then being made, to their support by the defendant; and that it was specially agreed in the contract that onehalf of the one-sixth of the net proceeds which was to constitute plaintiff's compensation was to be paid to the said James F. Ferguson for his use and benefit and that of his daughters. Defendant alleges that his contract with the plaintiff was for the purpose of giving plaintiff an opportunity to get a start in money matters, and, further, to relieve the defendant from any obligation, either moral or legal, to provide for the maintenance of James F. Ferguson and his family. The defendant, further answering, says that the plaintiff has received out of the net proceeds derived from the contract the sum of $7,980.09, which is an amount greater than that due him under said agreement. The defendant avers that he is not now in any manner indebted to the plaintiff. The defendant, further answering, says that he had paid out, at the instance and request of plaintiff and for his use and benefit, various amounts, aggregating about $400. The plaintiff filed a demurrer to this answer, but afterwards withdrew the same, substituting a replication therefor. The replication admits that plaintiff owes for the items specified in the answer, at the rates charged. All other matters in the answer are denied. Upon these issues the cause was tried to the court and jury. The trial resulted in a verdict and judgment for the plaintiff for the sum of $7,335.18. To reverse this judgment the defendant brings the case here by appeal.

Teller, Orahood & Morgan, for appellant. Thomas Ward. Jr., and Thomas Mitchell, for appellee.

HAYT, C. J. (after stating the facts). In the arguments before this court, both oral and written, the decision of the trial court that the burden of proof was upon the plaintiff, and that he was for this reason entitled to open and close the introduction of evidence and the arguments to the jury, is the question to which counsel have given their principal attention. The record shows that before the introduction of any testimony the defendant moved the court to be allowed "the opening and closing arguments," which motion was denied, and the ruling of the court duly excepted to. It does not appear that defendant thereafter renewed such application until after the verdict of the jury was returned, but in his motion for a new trial the refusal of the court to allow him "the opening and closing in this case" is given as a ground of error. Plaintiff contends that the ruling of the court in this regard is free from error-First, for the reason that the defendant, in the first instance,