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Idaho 1887, as amended by Sess. Laws 1899, | The child is a bright girl nearly 12 years of p. 302, that the mother of a minor child being age, and never has known any mother except competent, and not unsuitable, is absolutely her aunt, the defendant. She has grown up entitled to the guardianship of the minor. in the ways and customs of her aunt's houseThat we think is the correct construction of hold. Her friends are there, and her affecthe provisions of that section, but we think it tions are there centered. She is being well is well settled that the right to the guardian- cared for, and, while she is not as far adship of an infant cannot be tried upon habeas vanced in her studies as many children of corpus. Hurd on Habeas Corpus, p. 457. her age, her education is not being neglected,

This is not the case of an adult appealing as she has for the last two years attended the to the aid of habeas corpus to obtain his Grangeville village

Grangeville village schools. On the other freedom from illegal restraint, but the writ hand the conduct of the mother furnishes in this case was granted to inquire whether reason for supposing that she had surrenderthe plaintiff is entitled to the custody of said ed the care :und custody of the child to the minor child. The proceeding is not for the defendant for more than eight years, during purpose of setting the child free, but to de- most of the conscious lifetime of the child, termine whether the petitioner is entitled to with the understanding that she would not its custody, and the correct view or rule is reclaim it. She made no offer to contribute that the jurisdiction of the question of the to its support. By her own acts of omission custody of a child under a writ of habeas she has permitted, allowed, and encouraged corpus is of an equitable nature, and courts the child to fix her affections on her aunt are given large discretion in the matter. As and cousins, among wliom it has resided since stated in Hurd on IIabeas Corpus, p. 528: its infancy, and it is clear to us that the *The welfare of the infant is the polar star condition of things cannot now be changed by which the discretion of the court is to be without endangering the happiness and welguided.” Of course the legal rights of the fare of the child. The welfare of the child parent must be respected, and the law con- is the main consideration for the court untemplates that those rights may have been der the facts of this case, and nothing that abandoned, surrendered, transferrel, or for- would throw any light upon the matter should feited; for it is declared in said section 5774, be overlooked by the court. As the minor is as amended, that either the father or the now a well developed, bright girl nearly mother of the minor child being themselves 12 years of age, the court questioned her in respectively competent to transact their own

reward to her wishes and desires in the business, and not otherwise unsuitable, nust matter. Not that the child's wishes should be entitled to the guardiauship of the minor. control in the matter, but that the court Under the facts presented by the proofs and might more wisely exercise its discretion and record, it is clear to us that the plaintiff sur- might learn its feelings, its attachments, its rendered her legal rights as mother to the reasonable preferences, its probable welfare care and custody of said minor when it was and contentment. The practice of consulting an infant about eight months old, and did the infant's wish is well established in such not see it nor give its care and custody any

IIurd on Ilabeas Corpus, p. 527. In attention for a period of about 11 years ex- this case, the court examined the child prirept an occasional letter, making inquiry in vately and alone and she was also sworn and regard to the whereabouts of the child. It testified in open court. It was stated by is true she sent about $10 to the old folks

counsel for the plaintiff on the oral argument with whom she left the child. But during of this case that the plaintiff desired to give the eight or nine years that the defendant the child better educational advantages than has had charge of the child, the record and she was receiving in the Grangeville public evidence fails to show that the petitioner | schools, and that she would be willing to pay has exhibited any motherly feeling or affec- the expenses of placing and maintaining the tion for the child in any way or manner. It child in some good school. That is a matter is true she wrote perhaps once a year for the

to be presented to the probate court of Idaho purpose of keeping track of the child, but county, and, in case the plaintiff desires to she never sent her so much as a doll or any have the child placed in some good school in present whatever during those eight or nine this state, and will pay the expenses of the

Her original legal right as mother child therein, the probate court must see that was abandoned, forfeited, or surrendered,

forfeited, or surrendered, it is done. It is not intended to deprive the and cannot now be reasserted to the manifest mother from seeing and visiting the child at injury of the child. Her strict legal custody all proper times and places. has ceased to be a rightful custody, and she The application of the petitioner is denied, is equitably estopped from asserting it as and the child remanded to the care and cusa legal right. It is a legal principle that tody of the defendant, Mrs. Sarah E. Yates, when the right of the parent is not clear, until the further order of the court. Costs the best interest of the child will govern the are awarded to the defendant. court. That being true under the facts as they appear from the record, the welfare of STOCKSLAGER, C. J., and AILSHIE, T., the child is the main object to be attained. concur.

(38 Colo. 13)

WHITEHEAD et al. v. EMMERICH. (Supreme Court of Colorado. July 2, 1906. Re

hearing Denied Dec. 3, 1906.) 1. ALTERATION OF INSTRUMENTS-EFFECT.

Independently of as well as under Mills' Ann. Code of Civ. Proc. $ 357, providing that the party producing a writing altered after its execution in a material part shall account for its alteration, and he may show that the alteration was made with the assent of the parties or was innocently made, and, if he do that he may give it in evidence, a note for $840 is not vitiated by the payee striking out the word "Forty" on the face of the note, and indorsing on the back "this note changed to $800-$40 advanced," though afterwards, on his sending it to the makers for any change they desired to make, they said that the $40 should be indorsed as interest, and it was then so applied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2. Alteration of Instruments, $ 170.] 2 TRIAL - INSTRUCTIONS – NECESSITY OF REQUESTING FURTHER INSTRUCTIONS.

Defendants counterclaiming for services rendered may not complain of the instruction that, to entitle them to recover on their counterclaim, the services must be found to have been rendered at plaintiff's request; they not having offered an instruction that, if plaintiff acquiesced in and accepted the services, he was bound to pay for them.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, 628.] 3. EVIDENCE-VARYING WRITING BY PAROL.

The maker of a note may not show a parol agreement made at the time it was given altering its effect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, 88 1799–1806.)

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Action by Emma Emmerich against Andrew Whitehead and others. Judgment for plaintiff. Defendants appeal. Afirmed.

T. E. McIntyre, for appellants. Edward D. Upham, for appellee.

the note, but alleges that the same was given in pursuance of an agreement that plaintiff was to furnish certain moneys to defendants to be by them loaned or invested for their mutual benefit and profit, and that the so-called "promissory note" was given as an evidence of the amount of money so furnished by plaintiff, and not otherwise. The defendants claim that they performed services for the plaintiff of the reasonable value of $350, and pray for an accounting. A replication was filed denying the allegations of the answer. The jury returned a verdict in favor of the plaintiff in the sum of $926, and from a judgment in that amount the defendants appealed to the Court of Appeals.

The assignments of error mainly relied upon, and that we shall consider, are those that relate to the alleged error of the court in admitting the note in evidence and in giving and refusing instructions. We do not think the court erred in overruling the objection to the note. There are very many authorities which hold that such a change as made by the plaintiff is a material alteration and vitiates the instrument, but we should accept section 357 of our Civil Code (Mills' Ann. Code) as declaratory of the policy of the state with respect to the effect of changed or altered instruments of writing, and although the provision of the Code is a rule of evidence merely, and not substantive law, it would present a novel situation if the court should receive a changed instrument in evidence, when the preliminary proof required by the Code is made, and reject it finally because under the decisions of other states it would be declared void. Indeed, disregarding the Code provision altogether, we are of opinion the court did not err in receiving the note. Although the word "Forty" was canceled, the notation on the back showed clearly that the plaintiff regarded the payment as a reduction of the principal, and, so regarded, the legal effect was not changed, and very many authorities hold that, as between the payee and payor, a change that does not change the legal effect of the note is not to be regarded as an alteration at all. So, when the plaintiff indorsed a payment of $40 on the note and struck out the word "Forty," she did not change the legal effect of the note, but made it state the correct amount of the principal.

There is a dispute as to whether the note was changed with, or without, the consent of the maker, but we think that is not important. After the $40 was paid the plaintiff sent the note to defendants for any change they desired to make. The note was returned with a letter containing this state ment: "There is nothing to be done so far as I can see, except for you to indorse the $40 paid as interest. Of course, it was paid before due and in larger amount than required, but it will be all right in the end. Please indorse the $40 as of the date when it was

STEELE, J. Action was brought by Emma Emmerich against the partnership known as Whitehead Bros. upon a promissory note for the sum of $840, dated June 1, 1899. The note as copied in the complaint is as follows: "$840.00 Denver, Colorado, June 1st, 1899. One year after date I promise to pay to the order of Mrs. Emma Emmerich Eight Hundred and Forty 00–100 Dollars, payable at the office of Whitehead Brothers, Denver, Colorado, with interest at the rate of eight per cent per annum after date until paid. Interest payable semi-annually. Value received. Due 6-1, 1900. Whitehead Bros.” Then follows this allegation: "On the face of said note the word 'Forty' has been canceled and stricken out, and on the back of said note there appears the following indorsement: "This note changed to Eight Hundred Dollars-Forty Dollars advanced, Oct. 12th, '99. Emma Emmerich, Nov. 2, '99.'” The complaint further alleges that the payment of $40 was made October 12, 1899, and that afterwards, pursuant to agreement, the sum of $6.40 was returned to defendants and the sum of $33.60 was applied upon the interest. The answer admits the execution of

paid to the bank, so as to keep the account or agent of the state or its municipalities or straight." We do not think the rule an

any contractor thereof to employ any working.

man in the prosecution of public work for more nounced is inapplicable because it appears

than 8 hours a day, and providing a penalty for that the defendants directed that the amount violation thereof, was not sustainable as a propbe credited on account of interest. The act

er exercise of police power. changing the amount of principal was done

2. SAME.

3 Mills' Ann. St. Rev. Supp. $8 2801 a, honestly and with the intention of making

b, c, restricting the hours of labor on works the proper credit upon the note, and under

of public improvement, was a valid exercise of many authorities such alteration, not chan- the state's proprietary power to prescribe for

itself and its auxiliary branches of government, ging the legal effect of the note, did not make

the terms and conditions on which work of a it void. Parsons on Notes & Bills, vol. 2, public character should be done. 592, citing Morrill v. Otis, 12 N. H. 466; 3. MUNICIPAL CORPORATIONS-SPECIAL CHAR2 Daniel on Neg. Instruments, $ 1398. A TERS--EFFECT. very instructive case cited with approval by The fact that the city of Denver was creat

ed by a constitutional amendment, adopted by Daniel is Ryan v. Bank, 148 Ill. 349, 35 N.

direct vote of the people, with power to frame E. 1120.

its own charter, did not change the nature ou The paragraphs of the charge to the jury its relation to the state or exempt it from state are not numbered, and we cannot determine

control in matters of public as distinguished

from local character. from the exceptions noted in the abstract

4. SAME-DELEGATION OF POWERS OF STATE. what particular objections the defendants

The state cannot surrender to a munichave to the instructions. The court instruct- ipality within its boundaries the power to enact ed the jury that, to entitle the defendants to laws to punish crimes and misdemeanors, the

operation of which shall extend to all the people recover on their counterclaim, they must find

of the state whether living in municipalities or that the services were rendered upon the re- counties created directly by the Constitution, quest of the plaintiff. The defendants, in or organized under general laws. their brief, say that, if plaintiff acquiesced [Ed. Note.-For cases in point, see Cent. Dig. in the services and accepted them, she was

vol. 36, Municipal Corporations, SS 1308, 1309.] bound to pay for them. This is true, but In Banc. Error to District Court, City and the defendants should have offered an in- County of Denver; Samuel L. Carpenter, struction covering that point, and, having Judge. failed to do so, they cannot now object that John A. Keefe and others were convicted the court did not fully instruct the jury up- of employing laborers on public improvements on the subject of their counterclaim. The in the city of Denver for a longer period defendants requested the court to instruct than 8 hours a day, and they bring error. the jury that, "if they find from the evidence Affirmed. that the plaintiff altered the note without the

F. A. Williams and G. Q. Richmond, for consent or knowledge of the defendants that

plaintiffs in error. N. C. Miller, W. R. Ramthe plaintiff cannot recover," and that, “if

sey, John H. Murphy, and W. F. Hynes, for they find and believe from the evidence that

the People. the plaintiff altered the note without the consent or knowledge of the defendants that GABBERT, C. J. The defendant was con unless they find that the defendants 'after- victed under an information based upon the wards adopted the altered note that the following statute: “In all work hereafter plaintiff cannot recover.” These instruc- undertaken in behalf of the state or any tions were properly refused.

county, township, school district, municipaliThe defendants offered to show conversa- ty, or incorporated town, it shall be unlawful tions at the time the note was given altering for any board, officer, agent, or any contractor its effect as a note. This the court refused, or subcontractor thereof to employ any meand properly. The defendants should not chanic, workingman, or laborer in the prosehave been permitted to show that at the cution of any such work for more than eight time the note was given the parties had hours a day.” The second section of the act another contract altering its effect.

permits work in excess of eight hours a day The jury found against the defendants on in emergency cases, provided that hours in their counterclaim, and, there being no prej- excess of eight a day shall be treated as conudicial error disclosed by the record, we stituting a part of a subsequent day's work, shall affirm the judgment.

and that in no one week of seven days shall

there be permitted more than 48 hours of GABBERT, , ,

C. J., and CAMPBELL, J., labor. The third section declares a violation concur.

of the foregoing provision a misdemeanor,

and the penalty imposed thereby is a fine or (37 Colo. 317)

imprisonment, or both, in the discretion of KEEFE et al. v. PEOPLE.

the court. 3 Mills' Ann. St. Rev. Supp. $$ (Supreme Court of Colorado. July 2, 1906.) 2801 a, b, c. The case was tried upon a stipRehearing Denied Dec. 3, 1906.)

ulation of facts, from which it appears that 1. MASTER AND SERVANT CONSTITUTIONAL the defendants were contractors with the city


and county of Denver, by which they under3 Mills' Ann. St. Rev. Supp. $$ 2801 a, took, and were engaged in, the construction b, c, making it a criminal offense for any officer of a sanitary sewer belonging to the city, and employed Ernest Koenneker to do work on it | Whether the statute can be upheld on the for more than eight hours in each calendar ground relied upon by the Attorney Generai day, viz., for a period of nine hours a day, the authorities are not in accord. Probably and paid him the regular scale of wages; the leading case against such legislation is that Koenneker voluntarily entered upon his Cleveland v. Clements Construction Co. (Ohio) work, and there was no extraordinary emer- 05 N. E. 885, 59 L. R. A. 7755, 93 Am. St. Rep. gency or necessity for his working more than 670. Other cases cited by defendants to the eight hours a day for the protection of prop- same proposition are: Es parte Kubach erty or human life. It was also stipulated (Cal.) 24 Pac. 737, 9 L. R. A. 482, 20 Am. St. that the labor performed by Koenneker was Rep. 226; Seattle v. Smyth (Wash.) 60 Pac. healthy, outdoor work, not dangerous, or in 1120, 79 Am. St. Rep. 939; People v. Orange any way injurious to life, limb, or health, Co. (Co. Ct.) 75 N. Y. Supp. 510; Id. (N. Y.) and could be performed for a period of nine 67 N. E. 129, 65 L. R. A. 33; People ex rel. hours during each working day of the week :rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 without injury or harm to him; that such L. R. A. 814, 82 Am. St. Rep. 605. Ex parte work was in no way more dangerous to Kubach was referred to by this court in Re health or hazardous to life or limb, or the Morgan, supra, not with the intention of apgeneral welfare of Koenneker or any other proving its doctrine, but as an illustration person engaged therein than the labor per- of the extent to which some courts go in formed by persons doing the same kind and denying the right of the Legislature to pass character of work as the employés or con- laws of this character. The case was cited tractors having contracts to do the same because it went much further than we did kind of work for private persons or private in the case then under consideration, and in corporations. It was upon this state of facts that sense was authority for the concluthat defendants were adjudged guilty and sion there reached. In the Kubach Case, howfined. From that judgment they bring the ever, the court merely held the ordinance case here for review on error.

void in so far as it attempted to create a Counsel are agreed that this statute does criminal offense. not fall within the police power of the state. These authorities are based upon the propThe Attorney General concedes that it cannot osition that with respect to the carrying on be sustained as a valid exercise of such

of works of improvement by municipal corpower, since it is inhibited by the decision of

porations, they are as free from legislative this court in Re Morgan, 26 Colo. 415, 58

restraint by statutes of this character as Pac. 1071, 47 L. R. A. 52, 77 Am. St. Rep.

are private corporations in carrying out the 269, and as that proposition is within the

objects of their incorporation; and, since ban of practically all decisions of federal

private corporations may not thus be conand state courts in similar cases. If it can

trolled, it follows that municipal corporabe upheld at all, the Attorney General says,

tions cannot be; that a municipal corporait must be solely upon the principle that the

tion, in exercising that branch of its powers state may prescribe for itself and its sub

which may properly be designated as "privordinate political subdivisions, the conditions

ate," concerning its purely private rights, are upon which all public work shall be per

like private corporations, free from such formed; and as counties, townships, school districts, and municipalities are but mere

control of the legislative department of political subdivisions of the state govern

government. On the other side, the leading ment, its auxiliary organizations, or agencies,

case, and the one on which the Attorney for the purpose of local government, the state,

General mainly relies, is Atkin v. Kansas, as the principal, may impose upon these

191 U. S. 218, 24 Sup. Ct. 124, 48 L. Ed. 148, agencies precisely the same conditions with

which is also reported in 64 Kan. 174, 67 Pac. respect to the doing of their public work

519, 97 Am. St. Rep. 313. Other cases which that it can prescribe for itself. We agree

he cites in support of his main contention with counsel that this statute, if valid, is so

are: People v. Beck (Super. Buff.) 30 N. upon the ground that the state, in its pro

Y. Supp. 473; In re Dalton, 61 Kan. 257, 59 prietary capacity, may properly prescribe for

Pac. 336, 47 L. R. A, 380; People v. Waritself and its auxiliary arms of government

ren, 77 Hun, 120, 28 N. Y. Supp. 303. The the terms and conditions on which work of a

case is one of first impression in this state. public nature may be done. It cannot be Defendants are mistaken in their supposiupheld as an exercise of the sovereign police tion that In re Morgan, supra, is conclusive power, as has been decided by the Supreme in their favor. The principle underlying the Court of the United States and every state statute there construed is entirely different ccurt of last resort that has had occasion to from that upon which the act under conconsider the question. The latest decision sideration rests. In the conflict of authority of the Supreme Court of the United States on the subject, the Supreme Court of the on that question is Lochner v. N. Y., 198 U. United States having decided the precise S. 45, 25 Sup. Ct. 539. 49 L. Ed. 937, in question in upholding the Kansas law in the which many of the cases are reviewed, and Atkin Case, supra, we shall conform to our the distinction between a case like this and usual custom by following the lead of that the one under consideration was pointed out. august tribunal in determining the case at bar. Mr. Justice Harlan, in the course of his , such be the rule that is applicable to muopinion in that case so concisely and lucidlynicipalitiės in this state organized under our states the principle upon which legislation general law's, it is not pertinent to the city of this character is upheld, that, without and county of Denver, which was created by further comment, we cite the following ex- article 20 of the Constitution. The present cerpts, as constituting the reasons for sus- city and county of Denver was created by taining our act: "These question-indeed, this constitutional amendment as the result che entire argument of defendant's counsel- of the direct vote of the people of the entire seem to attach too little consequence to the state. Territorially it is composed of the relation existing between a state and its former city of Denver, a portion of the formmunicipal corporations. Such corporations er county of Arapahoe, and of several indeare the creatures, mere political subdivisions, pendent municipalities therein. In People v. of the state for the purpose of exercising a Sours, 31 (elo, 357, 74 Par. 167, 102 Am. St. part of its powers. They may exert only Rep. 34 (speaking of this amendment) it was such powers as are expressly granted to said: "The amendment is to be considered as ihem, or such as may be necessarily implied a whole, in view of its express purpose of from those granted. What they lawfully do securing to the people of Denver absolute of a public character is done under the freedom from legislative interference in matsanction of the state. They are, in every ter's of local concern." essential sense, only auxiliaries of the state Subsequent decisions of this court have for tlie purposes of local government. If it confirmed that declaration. But the municicannot be deemed a part of the liberty of pality of Denver, though created by a coniny contractor that he be allowed to do pub- stitutional amendment by a direct vote of lic work in any mode he may choose to adopt, the people, and having the power to frame without regard to the wishes of the state. its own charter, is just as much an agency On the contrary, it belongs to the state, as of the state for the purpose of government the gurdian and trustee for its people, and as if it was organized under a general law having control of its affairs, to prescribe the passed by the General Assembly. The mode conditions upon which it will permit public of its creation does not change the nature work to be done on its behalf, or on behalf of its relation to the state. Like cities and of its municipalities. No court has author- towns organized under the General Statutes. ity to review its action in that respect. Reg- it is still a part of the state government. It ulations on this subject suggest only con- is as much amenable to state control in all siderations of public policy. And with such matters of a public, as distinguished from considerations the courts have no concern. matters of a local, character, as are other If it be contended to be the right of every municipalities. The state still has the suone to dispose of his labor upon such terms preme power to enact general laws, declaras he deems bestas undoubtedly it is—and ing what shall be its public policy, and it that to make it a criminal offense for a con- can make them applicable to the city of tractor for public work to permit or require Denver, as well as to all other cities of his employé to perform labor upon that work the state. This act in effect declares that in excess of eight hours each day is in dero- it is the public policy of the state not to pergation of the liberty both of employés and mit any offi: er or agent of the state, or its employer. It is sufficient to answer that municipalities, or any contractor thereof, to no employé is entitled, of absolute right, and employ any working man in the proescution as a part of his liherty, to perform labor for of public work for more than eight hours a the state; and no contractor for public day: and, for a violation of the statute, a work can excuse a violation of his agreement penalty is provided. What the public policy with the state by doing that which the stat- of the state is rests with its legislative deute under which he proceeds distinctly and partment. The work of building a sanitary lawfully forbids him to do." And, in refer- sewer by a city, in a sense, is local in that ring to the fact which was stipulated by the it affects, primarily, its own citizens; but parties in that case, as here, that the work it is directly connected with the public performed by the employé of defendants was health, and is a matter of concern and great not dangerous to life, limb, or health, and la- importance to the people of the entire state. bor for more than 10 hours was not injurious The state has never relinquished to the new to him in any way, the court said that such city and county cf Denver, and never can considerations were not controlling, because surrender to it, the power to enact laws to the decision was based upon the broad punish crimes and misdemeanors, and the ground that the work being of a public operation of such laws embraces all of the character, absolutely under the control of the people of the state, whether living in mustate and its municipal agents acting by its nicipalities or counties created directly by authority, it is for the state to prescribe the the Constitution, or organized under general conditions under which it will permit work laws. Such legislation would not be valid of that kind to be done, and the legislation if it expressly exempted the city and county In question did not infringe upon the person- of Denver from its operation. Some other al rights of others. But defendants say, if questions have been discussed by counsel,

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