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J. J. Hendrick and A. F. Hollenbeck, for the granting of the divorce, for the reason appellants. A. C. McChesney, for appellee. that the question is not necessarily involved
in a determination of this case. Very many STEELE, J. Suit was brought by Annie
intricate questions of law and of public M. Chaney against Emma Mock and other policy are involved in a consideration of that defendants for the purpose of having parti- question, but we shall base our decision that tion of certain lands situate in the county
the marriage between
between the plaintiff and of Las Animas of which Henry B. Chaney,
Henry Chaney was valid in New Mexico, late of said county, died seised. Henry
upon the decision of the case of Poole v. Chaney died intestate about the 10th of June,
People, 24 Colo. 510, 52 Pac. 1025, 65 Am. 1900, and the complaint alleges that he left
St. Rep. 215. In that case it is held that surviving him as his only heirs at law the where a man and a woman in good faith atplaintiff, Annie M. Chaney, and the defend tempted to get married; but because of a disants, Emma Mock and others, as children,
ability of one of the parties the marriage conThe only question raised at the trial was tract is a nullity, and the parties continue to whether the plaintiff was the widow of live together as husband and wife after such Henry Chaney, deceased. It appears that
disability was removed, they were, in law, Henry Chaney was divorced on the 12th of
husband and wife from the time the disJanuary, 1899, and was married to the plain ability to enter into the marriage contract tiff, the appellee here, on the 13th of March,
was removed. So that, even though we were 1899, at Raton, N. M. It further appears
to assume that the marriage in New Mexico that both of the parties to the marriage in
was void, still it appears from the testimony New Mexico were residents of Colorado, and that Henry Chaney and the plaintiff herein that, immediately after the ceremony in
in good faith entered into the marriage relaVew Mexico was performed, they returned
tion at Raton, X. M., in March, 1899; that to Colorado, where they resided until the
the obstacle of the statute was removed on death of Henry Chaney. It further appears
the 12th day of January, 1900; that Chaney from the statement of facts and from the did not die until June, 1909; and that, from testimony that, after the marriage in New the time of the marriage until the day of his Mexico, and until the death of Henry Chan death, Chaney and the plaintiff lived together ey, the plaintiff and said Chaney sustained as husband and wife. the relation of husband and wife. It further Nor do we think there was any obstacle to appears from the testimony that the plaintiff Mrs. Chaney's entering into the marriage below undertook to procure a divorce from
contract. It appears that, in the year 1891, her husband, Robert Jordan, in the courts
before a court of competent jurisdiction in of Minnesota; and that, at the time of her
the state of Minnesota, the defendant in that marriage to Dr. Chaney, the said Robert suit appearing, the judge made findings of Jorlan was living. No decree of divorce was law and fact, and found that the plaintiff entered in the Minnesota courts until the in that suit (being the plaintiff in this suit) 18th day of September, 1901, at which time was entitled to a divorce from her husband, a decree of divorce was entereil nunc pro and, in the findings of law and fact, and a tunc, as of October 1, 1891. The portion of
The portion of conclusion thereto, the clerk of the said court the decree necessary to be considered at was directed to enter judgment in accordance this time is as follows: The title of said with the findings and conclusions. A few cause being, "Annie M. Jordan, Plaintiff, v. days after the original findings were made, Robert C. Jordan, Defendant," "And on mo it was discovered by the judge that an error tion of Allen & McAdam, attorneys for plain had been made in the findings, and he amendtiff. it is hereby adjudged and decreed, nunc ed them. The concluding part of the findings pro tunc, as of October 1, 1891, that the and order at that time is as follows: "And bonds of matrimony heretofore existing be the clerk of said court is hereby directed to tween said plaintiff and defendant be, and cause said conclusion to be so amended and the same are, hereby dissolved, and said the judgment entered therein to be amended parties are absolutely divorced from each to correspond therewith.” The Minnesota other; and that plaintiff have the care and statutes are somewhat similar to ours in that custody of the children of plaintiff and de- | the judgments are entered in a judgment fendant, to wit, Hattie Jordan, Ida Jordan, book kept by the clerk of the court. And it and Anna Jordan." The defendants contend seems that, although the judge pronounced that the marriage in New Mexico is void for judgment granting a divorce and the custwo reasons: Because, under the statutes of tody of the children, the judgment was never this state, Henry Chaney was not permitted entered of record. In any event, whether a to marry within one year from the date of judgment was entered of record at that time his divorce, which was January 12, 1899; or not, it sufficiently appears from the record and because the plaintiff, appellee here, at of the Minnesota court that a decree was enthe time of her marriage at Raton, N. M., on tered nunc pro tunc, for and as of October 1. March 15, 1899, had a husband living.
1891, dissolving the bonds of matrimony beWe shall not determine the question pre tween the piaintiff in this case and her then sented concerning the validity of the mar. | husband. It has been held by this court that riage in New Mexico within one year from this may be done at any time, and that it is
not only proper, but that it is the duty of , and qualified, and such act repealed all acts and the court, to make the recorils speak the parts of acts inconsistent therewith. Held
that the amendatory act did not repeal such truth, and that, whenever a judgment has
portion of section 4504 as required aldermen to been pronounced, but has not been entered be elected by the voters of their respective of record, the court may, upon proper proof, wards, and did not require the election of alhave the judgment entered nunc pro tunc as
dermen in the future by the city at large. of the date when it was rendereil. This
Error to District Court, Clear Creek Counwoman was actually divorced from her hus
ty; A. H. De France, Judge. band in the year 1891. The court pronounced
Quo warranto by the people, by John W. the judgment at that time, and in the year B. Smith, District Attorney, on complaint 1901 he corrected his records so as to have and relation of Albert M. Akin and another. them contain the judgment which he pro against William Dunton and another. Trond nounced in the year 1891. The rights of the
a judgment in favor of relators, defendants parties to the Minnesota suit were establish
bring error. Affirmed. ed at the time the judgment was pronouncel. Estate of Cook, 77 Cal. 220, 17 Pac. 92, 19
E. M. Sabin and F. L. Collon), for plain
tiffs in error. Pac. 431, 1 L. R. A. 567, 11 Am. St. Rej". 207.
Erwin L. Regennitter, for We are therefore of opinion that lIenry
defendants in error. Chaney and the plaintiff herein, at the time of Chaney's death, were husband and wife, BAILEY, J. This was an action in the and that upon his death the plaintiff became nature of a quo warranto, in which relators the owner of the undivided half of the prop-contended that respondents were wrongfully erty of which he died seised. Such was the usurping the offices of aldermen from the finding and judgment of the district court of Fifth ward of Idaho Springs, a city of the Las Animas county, from which an appeal second class, and to which offices relators was taken to this court, and the judgment, contended they were entitled. In the court being in accordance with the law, is there below relators were given the right to open fore afiirmed.
and close, and this is assigned as error.
We hare heretofore held in quo warranto The CIIIEF JUSTICE and CAMPBELL, proceedings that the burden is upon the J., con(ur.
respondent to prove his right to the office by a preponderance of the testimony. Pec
ple v. Owers, 29 Colo. 535, 69 Par, 515; Peer (36 Colo. 128)
ple ex rel. v. Stratton (Colo.) 81 Pac. 245. DUNTON et al. F. PEOPLE ex rel. AKIN
In neither of these cases was the action et al.
brought upon the relation of one who claim(Supreme Court of Colorado. April 2, 1906.) ed that he was entitled to an office, and was 1. WRIT OF ERROR-EVIDENCE-HARMLESS ER
being unlawfully deprived of it by the reROR.
spondent. In People v. Owers, it was contend. In a quo warranto proceeding to determine ed that defendant had lost his right to the respondents' right to certain offices, respondents
office by reason of his nonresidence, and, were not prejudiced by a ruling imposing the
in the Stratton Case, it was contended that burden on relators of showing that they were entitled to the offices in question, before re there was no office to be filled, because the quiring respondents to show by what warrant town of Atwood was not legally incorpthey assumed to hold such offices.
rated. However, respondents were not in[Ed. Note.—For cases in point, see C'ent. Dig. jured by the action of the court in imposing vol. 3, Appeal and Error, $ 4052.]
upon the relators the burden of showing that 2. Quo WARRANTO-TITLE TO OFFICE-ESTOP
they were entitled to the offices before rePEL.
In quo warranto to determine respondents' quiring respondents to show by what wartitle to certain elective offices, acts of relators rant they assumed to hold them, and it is which would estop them will not prevent the
not necessary for us to determine what the from determining whether respondents were rightfully entitled to exercise the functions
true rule is as to the burden of the proof in of their offices.
such cases. Respondents contend that re[Ed. Note.-For cases in point, see Cent. Dig. lators were estopped from contesting the vol. 41, Quo Warranto, § 41.]
right of respondents to hold the offices. It 3. MUNICIPAL CORPORATIONS - ELECTION OF appears that relators were nominated by ALDERMEN-STATUTES-REPEAL.
certain citizens of their ward, and that they Mills' Ann. St. $ 4504, provided that the
accepted the nomination, after which the city qualified electors in each ward in cities of the second class should annually on the 1st Tues
officials concluded that the proper practice day in April, elect an alderman who should be was for the electors of the entire city to a resident of the ward, a qualified elector, and vote for the candidates for aldermen froin who should serve for two years. By Sess. Laws
each ward. Relators knew of this decision 1901, pp. 384, 387, such section was amended so as to provide that the qualified electors of all and took no steps to prevent the election cities of the second class on the first Tuesday in from being so conducted, but suffered their April of the year 1901 and every two years
names to be voted for by the electors thereafter, should elect two aldermen from each
throughout the city. After the election they of the several wards of the cities, who should hold their respective offices for the term of two protested to the city council, which was the years, and until their successors were elected canvassing board, against the vote of the
entire city being canvassed in determining | Vattel says: "That must be the truest exthe result of the election of aldermen, and position of the law which best harmonizes protested against the issuance of certificates with its design, its objects, and its general of election to respondents. This afforiis but ' structure.' Among other well established slight ground upon which to base an estoppel. rules of construction are these: That statIn any event, no acts of relators could com- i utes are to be construed with reference to pel us to determine that respondents were tlie objects to be accomplished by them, and rightfully entitled to exercise the functions with reference to the circumstances existing of aldermen, if, under the law, they were i at the time of their passage, and the necesnot elected. People v. Cornforth (Colo.) 81 sity for their enactment. Where it statute Pac. 87-4; People ex rel. v. Londoner, 13 would operate unjustly or absurd consequenColo. 303, 22 Pac. 764, 6 L. R. A. 111.
(es would result from a literal interpretation This brings us to a consideration of the of the terms and words used, the intention real matter in controversy. viz: Are the ! of the framers, if it can fairly be gathered aldermen in cities of the second class to be
from the whole act, will prevail." Murray elected by the voters of the ward which they
V. Hobson, 10 Colo. 73, 13 Pac. 924. The represent, or by the voters of the entire
Court of Appeals has said: "It is always city? The statute of 1897 (Mills' Ann. St.
true that a thing apparently within the letter $ 45504) which, so far as the election of alder
of an act is not within the statute unless it men was concerned, was the law until 1901
be otherwise within the apparent and eviand so far as it is material to this con
dent intention of the legislation. troversy, is as follows: "The qualified elec
The occasion and necessity of the law, and tors of each ward in cities of the second
the mischief to be remedied and the object class, shall, annually, on the first Tuesday
in view, iłre always to be taken into il('dount in April, elect, by a plurality of votes. one
in determining the intention." Vouat Lumalderman, who shall, at the time, be it resi
ber Co. v. Gilpin, 4 Colo. App. -37. 36 Pac. dent of the ward, and a qualified elector
893. And again it is said: "In the interpretherein; his term of service shall be two
tation of a statute, it is a fundamental rule. years." In 1901 the following was enacted :
and an indispensable requisite, to first inquire “Section 1. The qualified electors of all cities of the second class shall, on the first Tuesday
what object was sought to be accomplished
by it. The intent of the statute is the law, in April of the year 1901, and every two
and general words may be restrained to it years thereafter, elect a mayor, city treas
and those of narrower import may be exurer, city clerk, city attorney, city marshall
panded to embrace it to effectuate that in(marshal), police magistrate city engineer,
tent." Arapahoe County v. Hall, 9 Colo. city street supervisor, and two aldermen
App. 511, 49 Pac. 371. from each of the several wards of such cities, who shall hold their respective offi
With this in mind, let us consider for a
moment the condition of the law at the time cers (offices) for the term of two years, and until their successors
of the passage of this act. Previous to 1901,
are duly elected and qualified. *
Section 3 provides :
an election was held in November of the odd“That all acts and parts of acts inconsistent numbered years for county officials; in Noherewith are hereby repealed.” Sess. Laws vember of the even-numbered years for state 1.901, pp. 381, 3877 Was the provision of
officials; in cities of the second class in April the old law, providing for the election of
of each year elections were held for the puraldermen by the electors of the ward, -ab
pose of electing city officials; and in May of solutely repealed, or was the section simply
each year, elections were held in school dismodified so as to change the time of the
tricts for district officials. The people were holding of the election? The question is
in constant travail over politics. They scarcenot free from difficulty. The law of 19901
ly recovered from the after pains of one was not carefully worded. To determine election before they were in the throes of the intention of the Legislature, it is neces
another. To meat this condition, the same sary to consider the conditions which de session of the Legislature which passed this manded the enactment of the law and its act providing for the biennial city elections (onsequent purposes. State ex rel. v. Kelly submitted to the people for their ratification (Kan.) 81 Pac. 1:50. 70 L. R. A. 450: Sedg constitutional amendments providing for the wick on Con. of Statutory & Constitutional biennial election of state and county officers. Law, p. 202 et seq.; 1 Blackstone, 61; Potter's It is therefore apparent that the law of 1901 Dwarris on Statutes & Constitutions, p. 141, was enacted for a special purpose, and that rule 7. Acting well within the doctrine above purpose was to provide for biennial elections stated, this court has said: “The rule is in cities of the second class. It is an estal)that effect shall be given to the intention, lished rule that all acts in pari materia are whenever such intention can be indubitably to be taken together as if they were one law, ascertained by permitted legal means.' An and they are directed to be compared in the other statement of the rule is 'so to construe consideration of statutes, because they are statutes as to meet the mischief, to advance considered as framed upon one system and the remedy, and not to violate fundamental having one object in view. Potter's Dwarris principles. Dwar. St. 181, 184, and note. on Statutes & Constitutions, 189; Sedgwick
on Statutory & Constitutional Law, 209. Mr. contended: "That the act of 1901 bears withJustice Belford, in People ex rel. v. Hallett, in itself in at least two places internal evi1 Colo. 358, said: "Another well-established dence that the Legislature intended the absoand fundamental rule of construction is that lute repeal of all portions of section 4504, all acts and provisions of the law in pari which had not been repealed by previous enmateria are to be taken and considered to actment." This cannot be true, because the gether. It follows therefore that, in constru later act does not determine the qualificaing the act under examination, we must look tions required of aldermen. If the contento the object and purpose of the Legislature, tion of plaintiffs in error is correct, one not as gathered from the light of surrounding a citizen or an elector or a resident of the circumstances, and as illustrated and ex ward or of the city might be elected as alderplained by previous legislation.” In Com man, or all of the aldermen of the city might monwealth v. Griffin, 105 Mass. 185, it ap reside in one ward. The entire section canpeared that the punishment prescribed by not have been repealed. It is also contended the old law for keeping a place deemed a that the words: "The qualified electors of common nuisance was by fine, not exceeding all cities of the second class shall * * * $1,000, “or” imprisonment in jail not exceed
elect a mayor
and two aldermen ing one year. The new law gave jurisdiction from each of the several wards," must be of such offenses to police courts and concur given a literal interpretation, notwithstandrently with the superior court, and provided ing the provisions of the former law, for the that whenever a police court should exercise reason that the words are plain and unamfinal jurisdiction therein, the punishment biguous, and that there is no room for conshould be limited to a fine not exceeding $100 struction. Section 4504, Mills' Ann, St., con"and" imprisonment not exceeding one year tains a similar provision which is equally in the jail or house of correction. And the
plain and unambiguous, namely: "The qualicourt held, in speaking of the new law: fied electors of each ward * *
shall "Taken hy itself, it would seem to authorize annually
elect * *
one alderboth fine and imprisonment; the language man.
Such electors shall also elect being conjunctive. But, taken in connection *
one city treasurer.” Can it he said with the prior statutes, it is a limiting and that because the act provided that the elecrestrictive statute, and its intention appears tors of each ward should elect a city treasurto be to prescribe the limit of the fine as well er, that that treasurer should not be elected as the imprisonment and not to authorize
by the electors of the entire city, or that an increased penalty by inflicting both.” So, there should be one city treasurer for each the former statute was deemed as modified ward? The language pertaining to the elecand not repealed, and that, too, at the ex tion of treasurer is equally plain and unampense of the plain reading of the later act. biguous as the language of the law of 1901 Repeals by implication are not looked upon relating to the election of aldermen, yet there with favor. Rathyon et al. v. White, 16 Colo. would he no difficulty in saying that this 11, 26 Pac. 323; Denver v. Hart, 10 Colo. language, no matter how plain and unamApp. 452, 51 Par. 533. It is doubtful whether biguous, should he construed as providing for the clause of the act of 1901, repealing all the election of the city treasurer hy the elecinconsistent acts or parts of such acts, adds tors of the entire city. It is further contendany force to the repealing properties of the ed that: “If the Legislature intending to other provisions of the law. District of Co change the system of electing aldermen in lumbia v. Sisters of Visitation, 15 App. D. C. cities of the second class had devoted itself 308; The Hickory Tree Road, 43 Pa. 139. to devising a formula for the purpose, it
Under the rules of construction, if a form could not have found terms more precise, cerer act or part of an act is inconsistent with tain and clear than those actually employed.” the provisions of a later one, the former must The answer to this is, that the same Leggive way, under the repealing clause; it is islature, in providing for the election of counonly such acts or parts of acts as are incon ty commissioners, did find words "more presistent with the later that are repealed. If cise, certain, and clear” than those used in the provisions of the two statutes can be so the act now before us. It said: “One comconstrued as to stand together, that construc missioner shall be elected from each of such tion must be given them, and the former is districts by the voters of the whole county." not repealed because they are consistent, It is fair to presume that if the Legislature, and the repealing clause only purports to which made use of the above expression, had repeal the inconsistent parts of the act. If desired to make such a radical change in the they cannot be so construed as to stand to
manner of electing aldermen, they would gether, they are inconsistent and the former have said "and two aldermen from each must fall because of the inconsistency, and ward, who shall be elected by the voters of its overthrow is not rendered more forcible the whole city," and thus put the matter beor complete by reason of the repealing clause. yond question, and leave “no room for conThe repealing clause does not make that struction." The fact that it did not do so consistent which is inconsistent, nor render goes far in demonstrating that it did not inthat inconsistent which is consistent. It is tend to do so. The general purpose of the
act being to provide for the holding of bien-
The judgment will therefore be affirmed.
(36 Colo. 444) PEOPLE ex rel. AMOS et al. v. BURRELL
et al. (Supreme Court of Colorado. April 2, 1906.)
Error to District Court, Otero County; N.. Walter Dixon, Judge.
Action by the people, on relation of Ilorace Amos and another, against D. V. Burrell and another. From a judgment sustaining a demurer to the complaints, plaintiffs bring error. Reversed.
W. B. Gobin and E. C. Glenn, for plaintiffs in error. S. H. White, R. S. Beall, and F. A. Sabin, for defendants in error.
GABBERT, C. J., and GODDARD, J., concur.
(36 Colo. 442)
BAILEY, J. The complaint in this action et al.
alleged that Rocky Ford was a city of the
second class, and that in the election held (Supreme Court of Colorado. April 2, 1906.)
therein on the 4th day of April, 1905, for Error to District Court, Otero County; the purpose of electing aldermen from the N. Walter Dixon, Judge.
Second Ward, plaintiffs in error received the Action by the people, on relation of Frank greatest number of votes cast for such offices D. Stoop and another, against J. E. Lawson in such ward; that, notwithstanding this, deand another. From an order sustaining a fendants in error have usurped and intruded demurrer to the complaints, plaintiffs bring | into such offices, and are exercising the duties error. Reversed.
thereof, and praying for judgment of ouster
against respondents, and that relators be W. B. Gobin and E. C. Glenn, for plain- placed in possession of such offices. To this tiffs in error. R. S. Beall, F. A. Sabin, and
complaint a demurrer was filed, and the conS. H. White, for defendants in error.
tention was and is that the complaint is de
fective, in that it fails to show that relators BAILEY, J. The complaint in this action received a majority of all of the votes cast alleged that Rocky Ford was a city of the in the entire city. The trial court sustained second class, and that in the election held the demurrer, and the matter comes here on therein on the 4th day of April, 1905, for error. the purpose of electing aldermen from the The question involved herein was disposed First Ward, plaintiffs in error received the of in Dunton et al. v. People of the State of greatest number of votes cast for such offices Colorado ex rel. Akin et al. (just decided) in such ward; that, notwithstanding this, 87 Pac. 540. The judgment is reversed, and defendants in error have usurped and in the cause remanded, with instructions to overtruded into such offices, and are exercising rule the demurrer, and, if the matter is furthe duties thereof, and praying for judg ther litigated, it will be for the sole purment of ouster against respondents, and that pose of determining as to who, according to relators be placed in possession of such offi the official canvass, received the greatest ces. To this complaint a demurrer was filed, number of votes cast in the Second Ward for and the contention was and is that the com aldermen. plaint is defective, in that it fails to show Reversed. that relators received a majority of all of the votes cast in the entire city. The trial
GABBERT, C. J., and GODDARD, J., concourt sustained the demurrer, and the matter
cur. comes here on error.
The question involved herein was disposed of in Dunton v. People of State of Colora
(36 Colo. 430) do ex rel. Akin et al. (just decided) 87
VĪGIL V. GARCIA. Pac. 540. The judgment will be reversed, and the cause remanded, with instructions to
(Supreme Court of Colorado. Feb. 5, 1906.) overrule the demurrer, and, if the matter is
1. ELECTIONS-CONTEST-FILING-TIME. further litigated, it will be for the sole pur
Where for any reason one or more election
precincts are not canvassed at the time of the pose of determining as to who, according first sitting of the board of convassers, the statto the official canvass, received the greatest ute, requiring that contests must be filed within number of votes cast in the First Ward for 10 days after the date when the votes are canaldermen.
vassed, does not begin to run until such pre
cincts are canvassed, though the returns from Reversed.
the uncanvassed precincts will not affect the result as between the candidates for the office
in contest. GABBERT, C. J., and GODDARD, J., con
[Ed. Note.For cases in point, see Cent. Dig. cur.
vol. 18, Elections, 88 258-262.]