Idaho 1887, as amended by Sess. Laws 1899, p. 302, that the mother of a minor child being competent, and not unsuitable, is absolutely entitled to the guardianship of the minor. That we think is the correct construction of the provisions of that section, but we think it is well settled that the right to the guardianship of an infant cannot be tried upon habeas corpus. Hurd on Habeas Corpus, p. 457. The child is a bright girl nearly 12 years of age, and never has known any mother except her aunt, the defendant. She has grown up in the ways and customs of her aunt's household. Her friends are there, and her affections are there centered. She is being well cared for, and, while she is not as far advanced in her studies as many children of her age, her education is not being neglected, as she has for the last two years attended the Grangeville village schools. On the other hand the conduct of the mother furnishes reason for supposing that she had surrendered the care and custody of the child to the defendant for more than eight years, during with the understanding that she would not reclaim it. She made no offer to contribute to its support. By her own acts of omission she has permitted, allowed, and encouraged the child to fix her affections on her aunt and cousins, among whom it has resided since its infancy, and it is clear to us that the condition of things cannot now be changed without endangering the happiness and welfare of the child. The welfare of the child is the main consideration for the court under the facts of this case, and nothing that would throw any light upon the matter should be overlooked by the court. As the minor is now a well developed. bright girl nearly 12 years of age, the court questioned her in regard to her wishes and desires in the matter. Not that the child's wishes should control in the matter, but that the court might more wisely exercise its discretion and might learn its feelings, its attachments, its reasonable preferences, its probable welfare and contentment. The practice of consulting the infant's wish is well established in such This is not the case of an adult appealing to the aid of habeas corpus to obtain his freedom from illegal restraint, but the writ in this case was granted to inquire whether the plaintiff is entitled to the custody of said minor child. The proceeding is not for the purpose of setting the child free, but to de-most of the conscious lifetime of the child, termine whether the petitioner is entitled to its custody, and the correct view or rule is that the jurisdiction of the question of the custody of a child under a writ of habeas corpus is of an equitable nature, and courts are given large discretion in the matter. As stated in Hurd on Habeas Corpus, p. 528: "The welfare of the infant is the polar star by which the discretion of the court is to be guided." Of course the legal rights of the parent must be respected, and the law contemplates that those rights may have been abandoned, surrendered, transferred, or forfeited; for it is declared in said section 5774, as amended, that either the father or the mother of the minor child being themselves respectively competent to transact their own business, and not otherwise unsuitable, must be entitled to the guardianship of the minor. Under the facts presented by the proofs and record, it is clear to us that the plaintiff surrendered her legal rights as mother to the care and custody of said minor when it was an infant about eight months old, and did not see it nor give its care and custody any attention for a period of about 11 years exrept an occasional letter, making inquiry in regard to the whereabouts of the child. It is true she sent about $10 to the old folks with whom she left the child. But during the eight or nine years that the defendant has had charge of the child, the record and evidence fails to show that the petitioner has exhibited any motherly feeling or affection for the child in any way or manner. It is true she wrote perhaps once a year for the purpose of keeping track of the child, but she never sent her so much as a doll or any present whatever during those eight or nine years. Her original legal right as mother was abandoned, forfeited, or surrendered, and cannot now be reasserted to the manifest injury of the child. Her strict legal custody has ceased to be a rightful custody, and she is equitably estopped from asserting it as a legal right. It is a legal principle that when the right of the parent is not clear, the best interest of the child will govern the court. That being true under the facts as they appear from the record, the welfare of the child is the main object to be attained. Hurd on Habeas Corpus, p. 527. In this case, the court examined the child privately and alone and she was also sworn and testified in open court. It was stated by counsel for the plaintiff on the oral argument of this case that the plaintiff desired to give the child better educational advantages than she was receiving in the Grangeville public schools, and that she would be willing to pay the expenses of placing and maintaining the child in some good school. That is a matter to be presented to the probate court of Idaho county, and, in case the plaintiff desires to have the child placed in some good school in this state, and will pay the expenses of the child therein. the probate court must see that it is done. It is not intended to deprive the mother from seeing and visiting the child at all proper times and places. The application of the petitioner is denied, and the child remanded to the care and custody of the defendant, Mrs. Sarah E. Yates, until the further order of the court. Costs are awarded to the defendant. STOCKSLAGER, C. J., and AILSHIE, J., concur. (38 Colo. 13) WHITEHEAD et al. v. EMMERICH. (Supreme Court of Colorado. July 2, 1906. Rehearing 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, §§ 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. Affirmed. T. E. McIntyre, for appellants. Edward D. Upham, for appellee. 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 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 statement: "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 paid to the bank, so as to keep the account straight." We do not think the rule announced is inapplicable because it appears that the defendants directed that the amount be credited on account of interest. The act changing the amount of principal was done honestly and with the intention of making the proper credit upon the note, and under many authorities such alteration, not changing the legal effect of the note, did not make it void. Parsons on Notes & Bills, vol. 2, 582, citing Morrill v. Otis, 12 N. H. 466; 2 Daniel on Neg. Instruments, § 1398. very instructive case cited with approval by Daniel is Ryan v. Bank, 148 Ill. 349, 35 N. E. 1120. A The paragraphs of the charge to the jury are not numbered, and we cannot determine from the exceptions noted in the abstract what particular objections the defendants have to the instructions. The court instructed the jury that, to entitle the defendants to recover on their counterclaim, they must find that the services were rendered upon the request of the plaintiff. The defendants, in their brief, say that, if plaintiff acquiesced in the services and accepted them, she was bound to pay for them. This is true, but the defendants should have offered an instruction covering that point, and, having failed to do so, they cannot now object that the court did not fully instruct the jury upon the subject of their counterclaim. The defendants requested the court to instruct the jury that, "if they find from the evidence that the plaintiff altered the note without the consent or knowledge of the defendants that the plaintiff cannot recover," and that, "if they find and believe from the evidence that the plaintiff altered the note without the consent or knowledge of the defendants that unless they find that the defendants 'afterwards adopted the altered note that the plaintiff cannot recover." These instructions were properly refused. The defendants offered to show conversations at the time the note was given altering its effect as a note. This the court refused, and properly. The defendants should not have been permitted to show that at the time the note was given the parties had another contract altering its effect. The jury found against the defendants on their counterclaim, and, there being no prejudicial error disclosed by the record, we shall affirm the judgment. GABBERT, C. J., and CAMPBELL, J., concur. (37 Colo. 317) KEEFE et al. v. PEOPLE. (Supreme Court of Colorado. July 2, 1906.) Rehearing Denied Dec. 3, 1906.) 1. MASTER AND SERVANT - CONSTITUTIONAL LAW-HOURS OF LABOR-RESTRICTION-POLICE POWER. 3 Mills' Ann. St. Rev. Supp. §§ 2801 a, b, c, making it a criminal offense for any officer or agent of the state or its municipalities or any contractor thereof to employ any workingman in the prosecution of public work for more than 8 hours a day, and providing a penalty for violation thereof, was not sustainable as a proper exercise of police power. SAME. 2. b, c, restricting the hours of labor on works 3. Mills' Ann. St. Rev. Supp. §§ 2801 a, of public improvement, was a valid exercise of the state's proprietary power to prescribe for itself and its auxiliary branches of government, the terms and conditions on which work of a public character should be done. 3. MUNICIPAL CORPORATIONS-SPECIAL CHARTERS EFFECT. The fact that the city of Denver was created by a constitutional amendment, adopted by direct vote of the people, with power to frame its own charter, did not change the nature of its relation to the state or exempt it from state control in matters of public as distinguished from local character. 4. SAME DELEGATION OF POWERS OF STATE. The state cannot surrender to a municipality within its boundaries the power to enact laws to punish crimes and misdemeanors, the operation of which shall extend to all the people of the state whether living in municipalities or counties created directly by the Constitution, or organized under general laws. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1308, 1309.] In Banc. Error to District Court, City and County of Denver; Samuel L. Carpenter, Judge. John A. Keefe and others were convicted of employing laborers on public improvements in the city of Denver for a longer period than 8 hours a day, and they bring error. Affirmed. F. A. Williams and G. Q. Richmond, for plaintiffs in error. N. C. Miller, W. R. Ramsey, John H. Murphy, and W. F. Hynes, for the People. GABBERT, C. J. The defendant was con victed under an information based upon the following statute: "In all work hereafter undertaken in behalf of the state or any. county, township, school district, municipality, or incorporated town, it shall be unlawful for any board, officer, agent, or any contractor or subcontractor thereof to employ any mechanic, workingman, or laborer in the prosecution of any such work for more than eight hours a day." The second section of the act permits work in excess of eight hours a day in emergency cases, provided that hours in excess of eight a day shall be treated as constituting a part of a subsequent day's work, and that in no one week of seven days shall there be permitted more than 48 hours of labor. The third section declares a violation of the foregoing provision a misdemeanor, and the penalty imposed thereby is a fine or imprisonment, or both, in the discretion of the court. 3 Mills' Ann. St. Rev. Supp. §§ 2801 a, b, c. The case was tried upon a stipulation of facts, from which it appears that the defendants were contractors with the city and county of Denver, by which they undertook, and were engaged in, the construction of a sanitary sewer belonging to the city, and employed Ernest Koenneker to do work on it for more than eight hours in each calendar day, viz., for a period of nine hours a day, and paid him the regular scale of wages; that Koenneker voluntarily entered upon his work, and there was no extraordinary emergency or necessity for his working more than eight hours a day for the protection of property or human life. It was also stipulated that the labor performed by Koenneker was healthy, outdoor work, not dangerous, or in any way injurious to life, limb, or health, and could be performed for a period of nine hours during each working day of the week without injury or harm to him; that such work was in no way more dangerous health or hazardous to life or limb, or the general welfare of Koenneker or any other person engaged therein than the labor performed by persons doing the same kind and character of work as the employés or contractors having contracts to do the same kind of work for private persons or private corporations. It was upon this state of facts that defendants were adjudged guilty and fined. From that judgment they bring the case here for review on error. Counsel are agreed that this statute does not fall within the police power of the state. The Attorney General concedes that it cannot be sustained as a valid exercise of such power, since it is inhibited by the decision of this court in Re Morgan, 26 Colo. 415, 58 Pac. 1071, 47 L. R. A. 52, 77 Am. St. Rep. 269, and as that proposition is within the ban of practically all decisions of federal and state courts in similar cases. If it can be upheld at all, the Attorney General says, it must be solely upon the principle that the state may prescribe for itself and its sub.ordinate political subdivisions, the conditions upon which all public work shall be performed; and as counties, townships, school districts, and municipalities are but mere political subdivisions of the state government, its auxiliary organizations, or agencies, for the purpose of local government, the state, as the principal, may impose upon these agencies precisely the same conditions with respect to the doing of their public work that it can prescribe for itself. We agree with counsel that this statute, if valid, is so upon the ground that the state, in its proprietary capacity, may properly prescribe for itself and its auxiliary arms of government the terms and conditions on which work of a public nature may be done. It cannot be upheld as an exercise of the sovereign police power, as has been decided by the Supreme Court of the United States and every state ccurt of last resort that has had occasion to consider the question. The latest decision of the Supreme Court of the United States on that question is Lochner v. N. Y., 198 U. S. 45, 25 Sup. Ct. 539. 49 L. Ed. 937, in which many of the cases are reviewed, and the distinction between a case like this and the one under consideration was pointed out. Whether the statute can be upheld on the ground relied upon by the Attorney Generai the authorities are not in accord. Probably the leading case against such legislation is Cleveland v. Clements Construction Co. (Ohio) 65 N. E. SS5, 59 L. R. A. 775, 93 Am. St. Rep. 670. Other cases cited by defendants to the same proposition are: Ex parte Kubach (Cal.) 24 Pac. 737, 9 L. R. A. 482, 20 Am. St. Rep. 226; Seattle v. Smyth (Wash.) 60 Pac. 1120, 79 Am. St. Rep. 939; People v. Orange Co. (Co. Ct.) 75 N. Y. Supp. 510; Id. (N. Y.) 67 N. E. 129, 65 L. R. A. 33; People ex rel. Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605. Ex parte Kubach was referred to by this court in Re Morgan, supra, not with the intention of approving its doctrine, but as an illustration of the extent to which some courts go in denying the right of the Legislature to pass laws of this character. The case was cited because it went much further than we did in the case then under consideration, and in that sense was authority for the conclusion there reached. In the Kubach Case, however, the court merely held the ordinance void in so far as it attempted to create a criminal offense. These authorities are based upon the proposition that with respect to the carrying on of works of improvement by municipal corporations, they are as free from legislative restraint by statutes of this character as are private corporations in carrying out the objects of their incorporation; and, since private corporations may not thus be controlled, it follows that municipal corporations cannot be; that a municipal corporation, in exercising that branch of its powers which may properly be designated as "private," concerning its purely private rights, are like private corporations, free from such control of the legislative department of government. On the other side, the leading case, and the one on which the Attorney General mainly relies, is Atkin v. Kansas, 191 U. S. 218, 24 Sup. Ct. 124, 48 L. Ed. 148, which is also reported in 64 Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 343. Other cases which he cites in support of his main contention People v. Beck (Super. Buff.) 30 N. Y. Supp. 473; In re Dalton, 61 Kan. 257, 59 Pac. 336, 47 L. R. A. 380; People v. Warren, 77 Hun, 120, 28 N. Y. Supp. 303. The case is one of first impression in this state. Defendants are mistaken in their supposition that In re Morgan, supra, is conclusive in their favor. The principle underlying the statute there construed is entirely different from that upon which the act under consideration rests. In the conflict of authority on the subject, the Supreme Court of the United States having decided the precise question in upholding the Kansas law in the Atkin Case, supra, we shall conform to our usual custom by following the lead of that august tribunal in determining the case at are: bar. Mr. Justice Harlan, in the course of his opinion in that case so concisely and lucidly states the principle upon which legislation of this character is upheld, that, without further comment, we cite the following excerpts, as constituting the reasons for sustaining our act: "These question-indeed, the entire argument of defendant's counselseem to attach too little consequence to the relation existing between a state and its municipal corporations. Such corporations are the creatures, mere political subdivisions, of the state for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the state. They are, in every essential sense, only auxiliaries of the state for the purposes of local government. If it cannot be deemed a part of the liberty of any contractor that he be allowed to do publie work in any mode he may choose to adopt, without regard to the wishes of the state. On the contrary, it belongs to the state, as the guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities. No court has authority to review its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern. If it be contended to be the right of every one to dispose of his labor upon such terms as he deems best-as undoubtedly it is-and that to make it a criminal offense for a contractor for public work to permit or require his employé to perform labor upon that work in excess of eight hours each day is in derogation of the liberty both of employés and employer. It is sufficient to answer that no employé is entitled, of absolute right, and as a part of his liberty, to perform labor for the state and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do." And, in referring to the fact which was stipulated by the parties in that case, as here, that the work performed by the employé of defendants was not dangerous to life, limb, or health, and labor for more than 10 hours was not injurious to him in any way, the court said that such considerations were not controlling, because the decision was based upon the broad ground that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done, and the legislation in question did not infringe upon the personal rights of others. But defendants say, if such be the rule that is applicable to municipalities in this state organized under our general laws, it is not pertinent to the city and county of Denver, which was created by article 20 of the Constitution. The present city and county of Denver was created by this constitutional amendment as the result of the direct vote of the people of the entire state. Territorially it is composed of the former city of Denver, a portion of the former county of Arapahoe, and of several independent municipalities therein. In People v. Sours, 31 Celo. 387, 74 Pac. 167, 102 Am. St. Rep. 34 (speaking of this amendment) it was said: "The amendment is to be considered as a whole, in view of its express purpose of securing to the people of Denver absolute freedom from legislative interference in matters of local concern." Subsequent decisions of this court have confirmed that declaration. But the municipality of Denver, though created by a constitutional amendment by a direct vote of the people, and having the power to frame its own charter, is just as much an agency of the state for the purpose of government as if it was organized under a general law passed by the General Assembly. The mode of its creation does not change the nature of its relation to the state. Like cities and towns organized under the General Statutes. it is still a part of the state government. It is as much amenable to state control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities. The state still has the supreme power to enact general laws, declaring what shall be its public policy, and it can make them applicable to the city of Denver, as well as to all other cities of the state. This act in effect declares that it is the public policy of the state not to permit any officer or agent of the state, or its municipalities, or any contractor thereof, to employ any working man in the proescution of public work for more than eight hours a day: and, for a violation of the statute, a penalty is provided. What the public policy of the state is rests with its legislative department. The work of building a sanitary sewer by a city. in a sense, is local in that it affects, primarily, its own citizens; but it is directly connected with the public health, and is a matter of concern and great importance to the people of the entire state. The state has never relinquished to the new city and county of Denver, and never can surrender to it, the power to enact laws to punish crimes and misdemeanors, and the operation of such laws embraces all of the people of the state, whether living in municipalities or counties created directly by the Constitution, or organized under general laws. Such legislation would not be valid if it expressly exempted the city and county of Denver from its operation. Some other questions have been discussed by counsel, |