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J. J. Hendrick and A. F. Hollenbeck, for appellants. A. C. McChesney, for appellee.

STEELE, J. Suit was brought by Annie M. Chaney against Emma Mock and other defendants for the purpose of having partition of certain lands situate in the county of Las Animas of which Henry B. Chaney, late of said county, died seised. Henry Chaney died intestate about the 10th of June, 1900, and the complaint alleges that he left surviving him as his only heirs at law the plaintiff, Annie M. Chaney, and the defendants, Emma Mock and others, as children, The only question raised at the trial was whether the plaintiff was the widow of Henry Chaney, deceased. It appears that Henry Chaney was divorced on the 12th of January, 1899, and was married to the plaintiff, the appellee here, on the 15th of March, 1899, at Raton, N. M. It further appears that both of the parties to the marriage in New Mexico were residents of Colorado, and that, immediately after the ceremony in New Mexico was performed, they returned to Colorado, where they resided until the death of Henry Chaney. It further appears from the statement of facts and from the testimony that, after the marriage in New Mexico, and until the death of Henry Chaney, the plaintiff and said Chaney sustained the relation of husband and wife. It further appears from the testimony that the plaintiff below undertook to procure a divorce. from her husband, Robert Jordan, in the courts of Minnesota; and that, at the time of her marriage to Dr. Chaney, the said Robert Jordan was living. No decree of divorce was entered in the Minnesota courts until the 18th day of September, 1901, at which time a decree of divorce was entered nunc pro tune, as of October 1, 1891. The portion of the decree necessary to be considered at this time is as follows: The title of said cause being, "Annie M. Jordan, Plaintiff. v. Robert C. Jordan, Defendant," "And on motion of Allen & McAdam, attorneys for plaintiff. it is hereby adjudged and decreed, nunc pro tune, as of October 1. 1891, that the bonds of matrimony heretofore existing between said plaintiff and defendant be, and the same are, hereby dissolved, and said parties are absolutely divorced from each other; and that plaintiff have the care and custody of the children of plaintiff and defendant, to wit, Hattie Jordan, Ida Jordan, and Anna Jordan." The defendants contend The defendants contend that the marriage in New Mexico is void for two reasons: Because, under the statutes of this state, Henry Chaney was not permitted to marry within one year from the date of his divorce, which was January 12, 1899; and because the plaintiff, appellee here, at the time of her marriage at Raton, N. M., on March 15, 1899, had a husband living.

We shall not determine the question presented concerning the validity of the mar riage in New Mexico within one year from

the granting of the divorce, for the reason that the question is not necessarily involved in a determination of this case. Very many intricate questions of law and of public policy are involved in a consideration of that question, but we shall base our decision that the marriage between the plaintiff and Henry Chaney was valid in New Mexico, upon the decision of the case of Poole v. People, 24 Colo. 510, 52 Pac. 1025, 65 Am. St. Rep. 245. In that case it is held that where a man and a woman in good faith attempted to get married; but because of a disability of one of the parties the marriage contract is a nullity, and the parties continue to live together as husband and wife after such disability was removed, they were, in law, husband and wife from the time the disability to enter into the marriage contract was removed. So that, even though we were to assume that the marriage in New Mexico was void, still it appears from the testimony that Henry Chaney and the plaintiff herein in good faith entered into the marriage relation at Raton, N. M., in March, 1899; that the obstacle of the statute was removed on the 12th day of January, 1900; that Chaney did not die until June, 1900; and that, from the time of the marriage until the day of his death, Chaney and the plaintiff lived together as husband and wife.

Nor do we think there was any obstacle to Mrs. Chaney's entering into the marriage contract. It appears that, in the year 1891, before a court of competent jurisdiction in the state of Minnesota, the defendant in that suit appearing, the judge made findings of law and fact, and found that the plaintiff in that suit (being the plaintiff in this suit) was entitled to a divorce from her husband, and, in the findings of law and fact, and a conclusion thereto, the clerk of the said court was directed to enter judgment in accordance with the findings and conclusions. A few days after the original findings were made, it was discovered by the judge that an error had been made in the findings, and he amended them. The concluding part of the findings and order at that time is as follows: "And the clerk of said court is hereby directed to cause said conclusion to be so amended and the judgment entered therein to be amended to correspond therewith." The Minnesota statutes are somewhat similar to ours in that the judgments are entered in a judgment book kept by the clerk of the court. And it seems that, although the judge pronounced judgment granting a divorce and the custody of the children, the judgment was never entered of record. In any event, whether a judgment was entered of record at that time or not, it sufficiently appears from the record of the Minnesota court that a decree was entered nunc pro tunc, for and as of October 1, 1891, dissolving the bonds of matrimony between the plaintiff in this case and her then husband. It has been held by this court that this may be done at any time, and that it is

not only proper, but that it is the duty of the court, to make the records speak the truth, and that, whenever a judgment has been pronounced, but has not been entered of record, the court may, upon proper proof, have the judgment entered nunc pro tunc as of the date when it was rendered. This woman was actually divorced from her husband in the year 1891. The court pronounced the judgment at that time, and in the year 1901 he corrected his records so as to have them contain the judgment which he pronounced in the year 1891. The rights of the parties to the Minnesota suit were established at the time the judgment was pronounced. Estate of Cook, 77 Cal. 220, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567, 11 Am. St. Rep. 267.

We are therefore of opinion that Henry Chaney and the plaintiff herein, at the time of Chaney's death, were husband and wife, and that upon his death the plaintiff became the owner of the undivided half of the property of which he died seised. Such was the Such was the finding and judgment of the district court of Las Animas county, from which an appeal was taken to this court, and the judgment, being in accordance with the law, is therefore affirmed.

The CHIEF JUSTICE and CAMPBELL, J., concur.

(36 Colo. 128)

DUNTON et al. v. PEOPLE ex rel. AKIN et al.

(Supreme Court of Colorado. April 2, 1906.) 1. WRIT OF ERROR-EVIDENCE-HARMLESS ERROR.

In a quo warranto proceeding to determine respondents' right to certain offices, respondents were not prejudiced by a ruling imposing the burden on relators of showing that they were entitled to the offices in question, before requiring respondents to show by what warrant they assumed to hold such offices.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4052.]

2. QUO WARRANTO-TITLE TO OFFICE-ESTOP

PEL.

In quo warranto to determine respondents' title to certain elective offices, acts of relators which would estop them will not prevent the court from determining whether respondents were rightfully entitled to exercise the functions. of their offices.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Quo Warranto, § 41.]

3. MUNICIPAL CORPORATIONS ELECTION OF

-

ALDERMEN-STATUTES-REPEAL.

Mills' Ann. St. § 4504, provided that the qualified electors in each ward in cities of the second class should annually on the 1st Tuesday in April, elect an alderman who should be a resident of the ward, a qualified elector, and who should serve for two years. By Sess. Laws 1901, pp. 384, 385, such section was amended so as to provide that the qualified electors of all cities of the second class on the first Tuesday in April of the year 1901 and every two years thereafter, should elect two aldermen from each of the several wards of the cities, who should hold their respective offices for the term of two years, and until their successors were elected

| and qualified, and such act repealed all acts and parts of acts inconsistent therewith. Held, that the amendatory act did not repeal such portion of section 4504 as required aldermen to be elected by the voters of their respective wards, and did not require the election of aldermen in the future by the city at large.

Error to District Court, Clear Creek County; A. H. De France, Judge.

Quo warranto by the people, by John W. B. Smith, District Attorney, on complaint and relation of Albert M. Akin and another. against William Dunton and another. From a judgment in favor of relators, defendants bring error. Affirmed.

E. M. Sabin and F. L. Collom, for plaintiffs in error. Erwin L. Regennitter, for defendants in error.

BAILEY, J. This was an action in the nature of a quo warranto, in which relators contended that respondents were wrongfully usurping the offices of aldermen from the Fifth ward of Idaho Springs, a city of the second class, and to which offices relators contended they were entitled. In the court below relators were given the right to open and close, and this is assigned as error.

We have heretofore held in quo warranto proceedings that the burden is upon the respondent to prove his right to the office by a preponderance of the testimony. People v. Owers, 29 Colo. 535, 69 Pac. 515; People ex rel. v. Stratton (Colo.) 81 Pac. 245. In neither of these cases was the action brought upon the relation of one who claimed that he was entitled to an office, and was being unlawfully deprived of it by the respondent. In People v. Owers, it was contended that defendant had lost his right to the office by reason of his nonresidence, and, in the Stratton Case, it was contended that there was no office to be filled, because the town of Atwood was not legally incorporated. However, respondents were not injured by the action of the court in imposing upon the relators the burden of showing that they were entitled to the offices before requiring respondents to show by what warrant they assumed to hold them, and it is not necessary for us to determine what the true rule is as to the burden of the proof in such cases. Respondents contend that relators were estopped from contesting the right of respondents to hold the offices. It appears that relators were nominated by certain citizens of their ward, and that they accepted the nomination, after which the city officials concluded that the proper practice was for the electors of the entire city to vote for the candidates for aldermen from each ward. Relators knew of this decision and took no steps to prevent the election from being so conducted, but suffered their names to to be voted for by the electors throughout the city. After the election they protested to the city council, which was the 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 protested against the issuance of certificates of election to respondents. This affords but slight ground upon which to base an estoppel. In any event, no acts of relators could compel us to determine that respondents were rightfully entitled to exercise the functions of aldermen, if, under the law, they were not elected. People v. Cornforth (Colo.) 81 Pac. 874: People ex rel. v. Londoner, 13 Colo. 303, 22 Pac. 764, 6 L. R. A. 444.

This brings us to a consideration of the real matter in controversy, viz. Are the aldermen in cities of the second class to be elected by the voters of the ward which they represent, or by the voters of the entire city? The statute of 1897 (Mills' Ann. St. $4504) which, so far as the election of aldermen was concerned, was the law until 1901 and so far as it is material to this controversy, is as follows: "The qualified electors of each ward in cities of the second class, shall, annually, on the first Tuesday in April, elect. by a plurality of votes, one alderman, who shall, at the time, be a resident of the ward, and a qualified elector therein; his term of service shall be two years." In 1901 the following was enacted : "Section 1. The qualified electors of all cities. of the second class shall, on the first Tuesday in April of the year 1901. and every two years thereafter. elect a mayor, city treasurer, city clerk, city attorney, city marshall (marshal). police magistrate. city engineer, city street supervisor, and two aldermen from each of the several wards of such cities, who shall hold their respective officers (offices) for the term of two years, and until their successors are duly elected and qualified. * * Section 3 provides: “That all acts and parts of acts inconsistent herewith are hereby repealed."

Sess. Laws

1901, pp. 384, 385. Was the provision of the old law, providing for the election of aldermen by the electors of the ward, -absolutely repealed, or was the section simply modified so as to change the time of the holding of the election? The question is not free from difficulty. The law of 1901 was not carefully worded. To determine the intention of the Legislature, it is necessary to consider the conditions which demanded the enactment of the law and its consequent purposes. State ex rel. v. Kelly (Kan.) 81 Pac. 450. 70 L. R. A. 450: Sedgwick on Con. of Statutory & Constitutional Law, p. 202 et seq.; 1 Blackstone, 61; Potter's Dwarris on Statutes & Constitutions. p. 144, rule 7. Acting well within the doctrine above stated, this court has said: "The rule is that 'effect shall be given to the intention, whenever such intention can be indubitably ascertained by permitted legal means.' Another statement of the rule is 'so to construe statutes as to meet the mischief, to advance the remedy, and not to violate fundamental principles. Dwar. St. 181, 184. and note.

position of the law which best harmonizes with its design, its objects, and its general structure. Among other well established rules of construction are these: That statutes are to be construed with reference to the objects to be accomplished by them, and with reference to the circumstances existing at the time of their passage, and the necessity for their enactment. Where a statute would operate unjustly or absurd consequences would result from a literal interpretation of the terms and words used, the intention of the framers, if it can fairly be gathered from the whole act, will prevail." Murray v. Hobson, 10 Colo. 73, 13 Pac. 924. The Court of Appeals has said: "It is always true that a thing apparently within the letter of an act is not within the statute unless it be otherwise within the apparent and evident intention of the legislation. * * * The occasion and necessity of the law, and the mischief to be remedied and the object in view, are always to be taken into account in determining the intention." Mouat Lumber Co. v. Gilpin, 4 Colo. App. 537. 36 Pac. 893. And again it is said: "In the interpretation of a statute, it is a fundamental rule. and an indispensable requisite, to first inquire what object was sought to be accomplished by it. The intent of the statute is the law, and general words may be restrained to it and those of narrower import may be expanded to embrace it to effectuate that intent." Arapahoe County v. Hall, 9 Colo. App. 541, 49 Pac. 371.

With this in mind, let us consider for a moment the condition of the law at the time of the passage of this act. Previous to 1901, an election was held in November of the oddnumbered years for county officials; in November of the even-numbered years for state officials; in cities of the second class in April of each year elections were held for the purpose of electing city officials; and in May of each year, elections were held in school districts for district officials. The people were in constant travail over politics. They scarcely recovered from the after pains of one election before they were in the throes of another. To meet this condition, the same session of the Legislature which passed this act providing for the biennial city elections submitted to the people for their ratification constitutional amendments providing for the biennial election of state and county officers. It is therefore apparent that the law of 1901 was enacted for a special purpose, and that purpose was to provide for biennial elections in cities of the second class. It is an established rule that all acts in pari materia are to be taken together as if they were one law. and they are directed to be compared in the consideration of statutes, because they are considered as framed upon one system and having one object in view. Potter's Dwarris on Statutes & Constitutions, 189; Sedgwick

on Statutory & Constitutional Law, 209. Mr. Justice Belford, in People ex rel. v. Hallett, 1 Colo. 358, said: "Another well-established and fundamental rule of construction is that all acts and provisions of the law in pari materia are to be taken and considered together. It follows therefore that, in construing the act under examination, we must look to the object and purpose of the Legislature, as gathered from the light of surrounding circumstances, and as illustrated and explained by previous legislation." In Commonwealth v. Griffin, 105 Mass. 185, it appeared that the punishment prescribed by the old law for keeping a place deemed a common nuisance was by fine, not exceeding $1,000, "or" imprisonment in jail not exceeding one year. The new law gave jurisdiction of such offenses to police courts and concurrently with the superior court, and provided that whenever a police court should exercise final jurisdiction therein, the punishment should be limited to a fine not exceeding $100 "and" imprisonment not exceeding one year in the jail or house of correction. And the court held. in speaking of the new law: "Taken by itself, it would seem to authorize both fine and imprisonment; the language being conjunctive. But, taken in connection with the prior statutes, it is a limiting and restrictive statute, and its intention appears to be to prescribe the limit of the fine as well as the imprisonment and not to authorize an increased penalty by inflicting both." So, the former statute was deemed as modified and not repealed, and that, too, at the expense of the plain reading of the later act. Repeals by implication are not looked upon with favor. Rathvon et al. v. White. 16 Colo. 41, 26 Pac. 323: Denver v. Hart, 10 Colo. App. 452, 51 Pac. 533. It is doubtful whether the clause of the act of 1901, repealing all inconsistent acts or parts of such acts, adds any force to the repealing properties of the other provisions of the law. District of Columbia v. Sisters of Visitation, 15 App. D. C. 308; The Hickory Tree Road, 43 Pa. 139.

Under the rules of construction, if a former act or part of an act is inconsistent with the provisions of a later one, the former must give way, under the repealing clause; it is only such acts or parts of acts as are inconsistent with the later that are repealed. If the provisions of the two statutes can be so construed as to stand together, that construction must be given them, and the former is not repealed because they are consistent, and the repealing clause only purports to repeal the inconsistent parts of the act. If they cannot be so construed as to stand together, they are inconsistent and the former must fall because of the inconsistency, and its overthrow is not rendered more forcible or complete by reason of the repealing clause. The repealing clause does not make that consistent which is inconsistent, nor render that inconsistent which is consistent. It is

contended: "That the act of 1901 bears within itself in at least two places internal evidence that the Legislature intended the absolute repeal of all portions of section 4504, which had not been repealed by previous enactment." This cannot be true, because the later act does not determine the qualifications required of aldermen. If the contention of plaintiffs in error is correct, one not a citizen or an elector or a resident of the ward or of the city might be elected as alderman, or all of the aldermen of the city might reside in one ward. The entire section cannot have been repealed. It is also contended that the words: "The qualified electors of all cities of the second class shall *** elect a mayor *** and two aldermen from each of the several wards," must be given a literal interpretation, notwithstanding the provisions of the former law, for the reason that the words are plain and unambiguous, and that there is no room for construction. Section 4504, Mills' Ann. St., contains a similar provision which is equally plain and unambiguous, namely: "The qualified electors of each ward annually * elect

man.

***

**

shall

one alder

Such electors shall also elect one city treasurer." Can it be said that because the act provided that the electors of each ward should elect a city treasurer, that that treasurer should not be elected by the electors of the entire city, or that there should be one city treasurer for each ward? The language pertaining to the election of treasurer is equally plain and unambiguous as the language of the law of 1901 relating to the election of aldermen, yet there would be no difficulty in saying that this language, no matter how plain and unambiguous, should be construed as providing for the election of the city treasurer by the electors of the entire city. It is further contended that: "If the Legislature intending to change the system of electing aldermen in cities of the second class had devoted itself to devising a formula for the purpose, it could not have found terms more precise, certain and clear than those actually employed."

The answer to this is, that the same Legislature, in providing for the election of county commissioners, did find words "more precise, certain, and clear" than those used in the act now before us. It said: "One commissioner shall be elected from each of such districts by the voters of the whole county." It is fair to presume that if the Legislature, which made use of the above expression, had desired to make such a radical change in the manner of electing aldermen, they would have said "and two aldermen from each ward, who shall be elected by the voters of the whole city," and thus put the matter beyond question, and leave "no room for construction." The fact that it did not do so goes far in demonstrating that it did not intend to do so. The general purpose of the

act being to provide for the holding of biennial instead of annual elections, it should not be so construed as to give it a wider scope and deprive the people of the several wards of the right to choose their own aldermen unless such construction is unavoidable, and such construction is not only unavoidable, but appears to be contrary to the legis lative intent.

The judgment will therefore be affirmed. Affirmed.

GABBERT, C. J., and GODDARD, J.,

concur.

(36 Colo. 442)

PEOPLE ex rel. STOOP et al. v. LAWSON 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 Frank D. Stoop and another, against J. E. Lawson and another. From an order sustaining a demurrer to the complaints, plaintiffs bring error. Reversed.

W. B. Gobin and E. C. Glenn, for plaintiffs in error. R. S. Beall, F. A. Sabin, and S. H. White, for defendants in error.

BAILEY, J. The complaint in this action alleged that Rocky Ford was a city of the second class, and that in the election held therein on the 4th day of April, 1905, for the purpose of electing aldermen from the First Ward, plaintiffs in error received the greatest number of votes cast for such offices in such ward; that, notwithstanding this, defendants in error have usurped and intruded into such offices, and are exercising the duties thereof, and praying for judgment of ouster against respondents, and that relators be placed in possession of such offices. To this complaint a demurrer was filed, and the contention was and is that the complaint is defective, in that it fails to show that relators received a majority of all of the votes cast in the entire city. The trial court sustained the demurrer, and the matter comes here on error.

The question involved herein was disposed of in Dunton v. People of State of Colorado ex rel. Akin et al. (just decided) 87 Pac. 540. The judgment will be reversed, and the cause remanded, with instructions to overrule the demurrer, and, if the matter is further litigated, it will be for the sole purpose of determining as to who, according to the official canvass, received the greatest number of votes cast in the First Ward for aldermen.

Reversed.

GABBERT, C. J., and GODDARD, J., con

cur.

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BAILEY, J. The complaint in this action alleged that Rocky Ford was a city of the second class, and that in the election held therein on the 4th day of April, 1905, for the purpose of electing aldermen from the Second Ward, plaintiffs in error received the greatest number of votes cast for such offices in such ward; that, notwithstanding this, defendants in error have usurped and intruded into such offices, and are exercising the duties thereof, and praying for judgment of ouster against respondents, and that relators be placed in possession of such offices. To this complaint a demurrer was filed, and the contention was and is that the complaint is defective, in that it fails to show that relators received a majority of all of the votes cast in the entire city. The trial court sustained the demurrer, and the matter comes here on

error.

The question involved herein was disposed of in Dunton et al. v. People of the State of Colorado ex rel. Akin et al. (just decided) 87 Pac. 540. The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer, and, if the matter is further litigated, it will be for the sole purpose of determining as to who, according to the official canvass, received the greatest number of votes cast in the Second Ward for aldermen.

Reversed.

GABBERT, C. J., and GODDARD, J., con

cur.

(36 Colo. 430)

VIGIL v. GARCIA. (Supreme Court of Colorado. Feb. 5, 1906.) 1. ELECTIONS-CONTEST-FILING-TIME.

Where for any reason one or more election precincts are not canvassed at the time of the first sitting of the board of convassers, the statute, requiring that contests must be filed within 10 days after the date when the votes are canvassed, does not begin to run until such precincts are canvassed, though the returns from the uncanvassed precincts will not affect the result as between the candidates for the office in contest.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Elections, §§ 258-262.]

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