ministered." The instruction is one on the subject of reasonable doubt, and the language is, in substance, that usually employed in such instructions, and has been upheld in many cases. Instructions to Juries, by Blashfield, § 304. The objection made to instruction 6 is covered by an instruction given at the request of the defendants.

It is urged that the verdict should not have been accepted, because it does not state the offense of which the defendants were found guilty. "Where two counts of varying grades are properly contained in an indictment and are of the same nature, and are connected with and growing out of the same transaction, though the punishment for each grade may be different, the legal intendment of a general verdict is to find the defendant guilty of the highest grade charged." 29 Amer. & Eng. Ency., p. 1024. In this case the offenses are of the same grade, and, under the decision of this court in Bergdahl v. People, 27 Colo. 302, 61 Pac. 228, the verdict undoubtedly finds the defendants guilty of the crime of larceny. It is therefore unnecessary to determine whether it finds them guilty of burglary.

In support of their motion for a new trial, one of the defendants filed an affidavit in which he confessed to the burglary of the store and the larceny of the goods alleged in the information to have been stolen, and that he secreted them; but he alleges also that he did so without the knowledge of his brothers, and that his brothers did not in any way advise or counsel or assist him. The other defendants filed affidavits alleging that they had no knowledge whatever of the commission of the offense, and that they did not know that stolen property had been secreted on or near the premises, and that they did not know until after the trial that the defendant Andrew Perry was guilty of the offense charged. Andrew Perry did not testify at the trial, although the other defendants did. We do not think the court erred in overruling the motion for a new trial. The reason given by the judge was, among others, that the defendant Andrew Perry was not placed upon the stand, and that counsel probably knew that he had committed the offense. We shall assume that counsel did not know that the defendant had burglarized the store, but that he presented the motion for a new trial and the affidavits in support thereof in good faith. We do not think, however, that the defendants were entitled to a new trial, for we cannot say that the proposed evidence, if offered and admitted, ought to produce a different verdict. Piela v. People, 6 Colo. 343.

Upon a review of the whole record, we are satisfied that the defendants have had a fair and impartial trial, and the judgment is affirmed.

GABBERT, C. J., and CAMPBELL, J.,

concur.

(Supreme Court of Colorado. May 5, 1906. Rehearing Denied Dec. 3, 1906.) WATERS AND WATER COURSES-DETERMINATION OF WATER RIGHTS-CHANGE OF POINT OF DIVERSION.

Under Laws 1899, p. 235, c. 105, providing for judicial proceedings on notice to interested parties to authorize a change in the point of diversion by an owner of a water right, the district court has no jurisdiction to require the water commissioner to recognize a change in the point of diversion by an owner who has not complied with the provisions of the statute, though he had made the change before the act took effect.

Appeal from District Court, Larimer County; James E. Garrigues, Judge.

Action by the Arthur Irrigation Company and others against C. C. Hawley, water commissioner, and the New Cache La Poudre Irrigating Company intervenes. From a judgment in favor of plaintiffs, intervener appeals. Reversed and remanded.

James W. McCreery, for appellant. Rhodes & Lee, for appellees.

GABBERT, C. J. By statutory proceedings, priorities to the use of water in water district No. 3, from the Cache la Poudre river, were adjudicated in April, 1882. By these proceedings the Watrous, Whedbee & Secord Ditch, hereafter referred to as the "Watrous Ditch," and the respective ditches of the New Cache la Poudre Irrigating Company and the Fort Collins Irrigating Canal Company, were awarded certain priorities. The Arthur Irrigation Company has succeeded to the rights of the latter company. The Arthur Company is the owner, as the successor by purchase, of a part of the priorities awarded the Watrous Ditch, and claims that the water represented by the rights so purchased has been diverted through the ditch purchased from the Fort Collins Irrigating Canal Company since 1884, until, beginning with the year 1900, and including the two years subsequent, the water commissioner refused at all times, upon demand therefor, to turn into, or allow to be turned into, its ditch the water represented by the rights purchased from the Watrous Ditch. In July, 1902, this action was commenced by the Arthur Company against the water commissioner, C. C. Hawley, one of the appellees, for the purpose of requiring him to permit, allow, and make a change of the point of diversion, and use of the priorities so purchased, or, as counsel for appellees contend, to require the water commissioner to recognize the use of such priorities as used since 1884. The New Cache la Poudre Irrigating Company intervened in this action by way of a motion to dismiss, because of the failure upon the part of the plaintiff to comply with the provisions of the act entitled "An act in relation to irrigation." approved April 6, 1899. Laws 1899, p. 235,

c. 105. This motion was overruled. Thereafter the intervener interposed its answer and petition in intervention, whereby issues were tendered which, if established, were intended to defeat the right of the plaintiff to the relief demanded. Plaintiff answered this petition, and the issues made by the respective pleadings of the plaintiff and intervener were found in favor of the former. At the commencement of the trial the intervener objected to any evidence being received, for the reason that the complaint did not state facts sufficient to constitute a cause of action, which motion was also overruled. A decree was rendered in favor of the plaintiff, from which the intervener appeals. Many errors are assigned, but we shall consider only the one which relates to the authority of the court to entertain the action commenced by plaintiff because it was not in conformity with the provisions of the act of 1899, supra.

On this question this case only differs from Irrigation Co. v. Water S. & S. Co., 29 Colo. 469, 68 Pac. 781, in that the claim is made by plaintiff that the charge of the point of diversion was fully consummated before the act of 1899 took effect, while in Irrigation Co. v. Water S. & S. Co., the change was not fully made before that date. The object of the irrigation statutes providing for the adjudication of priorities was to settle such priorities, and secure the orderly distribution of water for irrigation purposes. To further effect this object officials have been designated whose duty it is to distribute the water in accordance with the adjudication. The decree in such proceedings is the guide for such officials from which they must determine, in the discharge of their duties, the relative rights of parties, the volume to which different ditches are entitled, the point of diversion, and all other data necessary to a distribution of water in accordance with its provisions. Supplementing these matters the act of 1899 under consideration was passed. An appropriator of water may change the point of diversion provided the rights of others are not injuriously affected thereby. The fact that the appropriator has made such change does not settle the question of whether or not other appropriators are thereby injuriously affected. That question cannot be said to be authoritatively settled until judicially determined. Perhaps a long-continued use through a new channel of diversion might be a good defense as against other appropriators, but this, as well as other questions which might be proper to consider in determining the right to change the point of diversion can only be settled in some appropriate procceding in which all persons whose rights may be affected by the change, and who, for this reason, would be entitled to be heard, are before the court. To obtain an order allowing a change in the point of diversion is, in effect, a modification or change in

the adjudication decree. In order to protect officials in the discharge of their duties in distributing water, to preserve the peace, to prevent a multiplicity of suits, to relieve the officer from being required to ascertain, at his peril, any of the various questions which he might be required to consider when requested to change the point of diversion, and finally, that there may be a judicial ascertainment of the right to such change, which shall bind all parties, and no leave the place of diversion to the whim of interested parties, the act of 1899 was passed. We are therefore of the opinion that, before an appropriator can obtain a decree permitting a substantial change in the point of diversion, which he can enforce as against other appropriators, or require the officer charged with the duty of distributing water to obey, even though he made such change before the act of 1899 took effect, he must proceed in the manner provided by that act. The fact that appellant's rights may or may not be injuriously affected by the change is immaterial. All persons who may be affected by the desired change must be notified of the proceeding, and given an opportunity to be heard before the court is authorized to enter an order allowing such change. Irrigation Co. v. Water S. & S. Co., supra; Fluke v. Ford (decided at September Term. 1985) 84 Pac. 469.

The judgment of the district court is reversed, and the cause remanded for further proceedings not in conflict with the views expressed in this opinion.

Reversed and remanded.

STEELE and CAMPBELL, JJ., concur.

(37 Colo. 534) ASHENFELTER et al. v. CARPENTER et al.

(Supreme Court of Colorado. May 5, 1906. Rehearing Denied Dec. 3, 1906.) CONSTITUTIONAL LAW-Ex POST FACTO LAWS -REMEDIES.

Laws 1899, p. 235, c. 105, and Laws 1903, p. 278. c. 124, fixing the procedure on change of point of diversion by the owner of a water right, are not invalid as ex post facto laws, though they apply where the point of diversion has already been changed, the provisions being remedial in their nature.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 534.1

En Banc. Appeal from District Court, Montrose County; Theron Stevens, Judge.

Action by John Ashenfelter and others against L. C. Carpenter and others. Judgment in favor of defendants, and plaintiffs appeal. Affirmed.

Story & Story, John Gray, Bell & Catlin, and Fred W. Heath, for appellants. Sherman & Griffith, for appellees.

PER CURIAM. Excepting one, the questions presented by this appeal are the same as those disposed of adversely to the conten

tion of appellants in Irrigation Co. v. Water S. & S. Co., 29 Colo. 469, 68 Pac. 781; Fluke | v. Ford (Colo., decided at the last September | term) 84 Pac. 469, and the New Cache la Poudre Irrigating Co. v. The Arthur Irrigation Co. (Colo., decided at the present term) 87 Pac. 799.

Counsel for appellants contend that because a change in the point of diversion of the priorities belonging to them was perfected prior to the date when the act of 1899, and the act of 1903 on the same subject (Laws 1899, p. 235, c. 105, and Laws 1903, p. 273, c. 124), took effect, that appellants are not required to comply with the provisions thereof in order to maintain an action the purpose of which is to compel ae officials charged with the duty of distributing water to recognize their right to divert water represented by these priorities at the respective points to which the same have been changed, because of the constitutional inhibition against ex post facto laws. The fact that a change was made in the point of diversion prior to the date when the acts of 1899 and 1903 took effect did not render the right to such change a vested

one. Prior to those acts there was no statute on the subject; and, while the courts have recognized that the owner of a priority could change the point of diversion, it was always with the limitation that such change did not injuriously affect the rights of others. The acts in question have not changed the law in this respect, but merely require that a party desiring to change the point of diversion must follow a prescribed procedure in order to obtain a decree which will permit him to make such change, and bind others taking water from the same source, and which officials charged with the duty of distributing water can be required to obey. These laws are merely remedial. They only prescribe a procedure to be followed by which the right to make a change in the point of diversion may be judicially settled and determined. They deprive no one of a vested right to such change, because they require a judicial ascertainment of such right, and are no more objectionable upon constitutional grounds than the irrigation statutes which required, when adjudication proceedings were commenced. that all parties should come in and have their rights determined, by which there would be embodied in a permanent form the evidence of rights previously acquired. Until determined in some appropriate proceeding, the question of whether or not a change in the point of diversion injuriously affects others is left open for determination at the instance of any one claiming to be injuriously affected by such change. Lapse of time, and all other questions which a party making such change could rely upon in order to establish his right thereto, could be invoked, but he cannot have these questions determined in the absence of parties whose rights would be affected by such change. The statutes in question are not designed, 87 P.-51

and do not have the effect of divesting any one of a right to such change, whether made before or after the law took effect, but are only intended to have such rights determined in a way which shall bind all parties affected by the change, and thus have evidenced in the form of a decree the right of a claimant to a change in the point of diversion, whether exercised before the law took effect or to be enjoyed in the future.

The judgment of the district court is affirmed, without prejudice to appellants to maintain the statutory proceeding contemplated by the Laws of 1899 and 1903, supra. Judgment affirmed.

(37 Colo. 536)

GUTSHALL v. CARPENTER et al.

(Supreme Court of Colorado. May 5, 1906. Rehearing Denied Dec. 3, 1906.)

En Banc. Appeal from District Court, Montrose County; Theron Stevens, Judge.

Action between S. B. Gutshall and L. C. Carpenter and others. From the judgment, Gutshall appeals. Affirmed.

Millard Fairlamb and Hugo Selig, for appellant. pellant. S. S. Sherman, for appellees.

PER CURIAM. The questions presented by this appeal have been settled by the previous decisions of this court in Irrigation Co. v. Water S. & S. Co., 29 Colo. 469, 68 Pac. 781: Fluke v. Ford (Colo.) 84 Pac. 469, decided at the September term, 1905; New Cache La Poudre Irrigation Co. v. Arthur Irrigation Co. (Colo.) S7 Pac. 799; and Ashenfelter v. Carpenter (Colo., decided at the present term) 87 Pac. 800.

The judgment of the district court is in accordance with the views expressed in these cases, and will therefore be affirmed, without prejudice to appellant to maintain a proceeding in accordance with the act of 1899 (Laws 1899, p. 235, c. 105) and the act of 1903 (Laws 1903, p. 278, c. 124). Judgment affirmed.

(149 Cal. 770) SIERRA COUNTY v. FLANIGAN. (Sac. 1,219.) (Supreme Court of California. Oct. 1, 1906. Rehearing Denied Oct. 31, 1906.) LICENSE ORDINANCE-REPEAL-EFFECT.

Where a license tax accrued after the passage of Pol. Code, § 3366 (St. 1901, p. 635, c. 209) authorizing the imposition of a business license, which operated to repeal the ordinance under which the license was levied, the county had no right to recover the same.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Licenses, § 16.]

In Bank. Appeal from Superior Court, Sierra County; Stanley A. Smith, Judge.

Action by Sierra county against P. L. Flanigan. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

U. S. Webb, Atty. Gen., W. I. Redding, Dist. Atty., and Frank R. Wehe, for appellant. A. E. Cheney and Campbell, Metson & Campbell (Thomas H. Breeze, of counsel), for respondent.

SHAW, J. This is an action to recover of the defendant certain license taxes alleged to have accrued and to be due and owing from him to the county of Sierra, under an ordinance adopted by the board of supervisors of the county on May 31, 1900.

Precisely the same ordinance was under consideration by the Supreme Court of the United States in Flanigan v. County of Sierra, 196 U. S. 557, 25 Sup. Ct. 314, 49 L. Ed. 597. It was held by the Supreme Court of the United States in that case that the ordinance in question was repealed by the act of the Legislature of California of March 23, 1901, adding section 3366 to the Political Code (St. 1901, p. 635, c. 209), and that the repeal operated to prevent further collection of taxes previously accrued under the ordinance. The taxes for which this suit was begun accrued after the passage of the act of 1901, and there can be no doubt but that, under the decision, the right of action for the tax was terminated by the passage of the statute. The Supreme Court of the United States, upon this point, followed the decisions of this court in Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674, and Santa Monica v. Guidinger, 137 Cal. 658. 70 Pac. 732.

Following the decisions in these cases, we hold that the plaintiff had no right of action to collect the tax sued for. The court below took the same view, sustained a demurrer to the complaint without leave to amend, and rendered judgment for the defendant thereon, and this action was correct. The judgment is affirmed.

We concur: MCFARLAND, J.; ANGELLOTTI, J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.

(149 Cal. 782)

WHEELER et al. v. PLUMAS COUNTY. (Sac. 1,341.)

Oct. 2, 1906.)

(Supreme Court of California. 1. LICENSES-REVENUE-STATUTES-REPEAL. County Government Act 1897, p. 465, c. 277, § 25, subd. 25, conferred on boards of supervisors power to license, for the purpose of regulation and revenue, every kind of business not prohibited by law, transacted and carried on within the county. Under such authority the supervisors of P. county passed an ordinance. entitled "An ordinance levying a license tax on persons, firms, copartnerships and corporations, carrying on the business of grazing, herding or pasturing sheep or lambs within the county," which provided that all persons so engaged in such business should pay an annual license equal to $10 for every 100 sheep and lambs owned and controlled by them, etc. Held, that such ordinance was a measure passed for the purpose of revenue, and not for the regulation of sheep raising, and was, therefore, repealed by Pol. Code, § 3366, amending the county

government act and restricting the power of counties to license to matters of regulation only. 2. SAME-EFFECT OF REPEAL-PRIOR TAXES. The repeal of a county's power to levy a license tax for revenue by Pol. Code, § 3366, was to destroy all the county's right to collect a license tax under an existing revenue ordinance, though the tax was due before the repeal took effect.

3. SAME-RECOVERY OF PAYMENT-DURESS

PROTEST.

After a statute granting counties the right to levy license taxes for revenue purposes had been repealed, the county claimed the right to collect a license tax from plaintiffs under an ordinance taxing sheep raisers, and procured the arrest of R., one of the plaintiffs, for engaging in such business without procuring a license. While R. was in the custody of the sheriff, and in order to procure his release from custody, he was required to, and did, deposit the alleged amount of the license tax with C., who thereafter paid over the money to the county under protest in order to prevent R.'s rearrest. Held, that neither the payment made to C. nor to the county were voluntary, but under duress, and, the county not being entitled to collect such tax, plaintiffs were entitled to recover the same.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Licenses, § 68.]

Department 2. Appeal from Superior Court, Plumas County; C. E. McLaughlin, Judge.

Action by D. C. Wheeler and another against Plumas county. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Campbell, Metson & Campbell and Cheney, Massay & Smith, for appellants. U. S. Webb, Atty. Gen., and L. N. Peter, Dist. Atty., for respondent.

LORIGAN, J. This is an appeal from a judgment in favor of defendant entered against plaintiffs after they had declined to amend upon demurrer sustained to their first amended complaint, and the only question presented is as to the validity of the order sustaining such demurrer.

The facts as gathered from the amended complaint are as follows: The board of supervisors of Plumas county on the 9th of January, 1900, enacted an ordinance entitled "An ordinance levying a license tax on persons, firms, copartnerships and corporations carrying on the business of raising, grazing, herding or pasturing sheep or lambs within the county of Plumas, * * *99 wherein it was provided that all persons engaged in such business within the county of Plumas must annually procure a license therefor from the license collector of the county, and pay therefor $10 for each 100 sheep and lambs owned by and under the control of such perIt further provided that the license collector should have the collection of the license tax provided for by the ordinance, and should direct the district attorney to bring suit in the name of the county to recover such license where any person required by the ordinance to take out a license failed to do so. The ordinance made the license a debt due the county, and provided that the money collected for the license should be paid

sons.

over to the county treasurer and placed to the credit of the general fund of the county. In August, 1901, plaintiffs, as copartners, were engaged in the business of raising and grazing sheep, and had in their possession and were grazing within the county of Plumas 13,000 sheep and lambs, and had failed to take out a license for such business. During that month the plaintiff D. W. Ridenour was arrested, taken many miles to Quincy, the county seat of Plumas county, and was there held in the custody of the sheriff under a warrant of arrest issued by the justice of the peace of Plumas township in Plumas county, based upon a complaint of the license collector, which charged said Ridenour with the commission of a misdemeanor in the carrying on of a business for which a license was required without first procuring a license. While said Ridenour was in the custody of said sheriff, in order to procure, and as a condition for, his release from custody, he was required to, and did, deposit with one C. C. Clough $1,301, which was the amount claimed by the license collector as the amount of the license under the ordinance. The money so deposited was the money of the plaintiffs, and, as alleged in the complaint, it was agreed between the plaintiffs and defendant that the money was deposited and paid under protest, and that it should be held by the said Clough until the protest was prepared. Upon deposit of this money, the said Ridenour was released from custody, and the case against him in the justice court continued. On April 3, 1902, while the criminal case against said Ridenour was still pending, the plaintiffs prepared and served on the license collector of the county their protest in writing against the payment of the license tax. Thereafter, upon the demand of the defendant, in order to prevent said Ridenour from being again taken into custody under said warrant of arrest and prosecuted for carrying on said business without a li cense, said $1,301 was paid and delivered to said defendant under protest by said C. C. Clough. The plaintiffs then presented their claim in writing to the board of supervisors of the county, praying for the repayment of the said money, which claim was rejected. Upon the rejection of said claim, the plaintiffs commenced this action, resulting in the judgment appealed from. Upon this appeal, the argument in the briefs upon both sides is devoted principally to questions as to the validity of such ordinance, and whether, at the time of the arrest of Ridenour, and the payment under protest of the license demanded of him, said ordinance and license tax imposed thereby had not been repealed, and the right of the county to collect any tax under the ordinance extinguished and gone.

It will be unnecessary to consider the constitutional objections urged by appellant against the validity of the ordinance, because it is settled by the authorities, not only that, by legislation of the state subsequent to the

enactment of the ordinance, it was repealed, but also that the effect of such repeal was to extinguish any right to collect a license tax previous to such appeal. It will be observed that the ordinance in question was passed by the board of supervisors of Plumas county in 1900, at a time when, by subdivision 25 of section 25 of the county government act (St. 1897, p. 465, c. 277) power was conferred upon boards of supervisors of the several counties "to license for purposes of regulation and revenue of every kind of business not prohibited by law and transacted and carried on in such county." When the ordinance in question was passed this law was in force, but before the arrest of the appellant Ridenour or any proceedings taken to enforce the collection of the license tax imposed by defendant, the Legislature, by the act of March 23, 1901 (St. 1901, p. 635, c. 209; section 3366, Pol. Code), repealed by implication said subdivision 25 of section 25 of the county government act, as far as it conferred power to license for purposes of revenue, and restricted the power to matters of regulation alone. Ex parte Pfirmann, 134 Cal. 148, 66 Pac. 205; City of Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674; Town of Santa Monica v. Guidinger, 137 Cal. 658, 70 Pac. 732; Ex parte Braun, 141 Cal. 204, 74 Pac. 780. The effect of the act of March 23, 1901, was to repeal the ordinance of 1900 if the ordinance was a measure passed for the purpose of revenue and not for regulation, and that it is of the former character alone is not, we think, open to question. It is apparent from the title of the act itself, and the entire absence of any regulatory provisions, that it was intended as a revenue measure, and comes within the scope of the rulings in City of Sonora v. Curtin and Town of Santa Monica v. Guidinger, supra, and the cases of Flanigan v. County of Sierra, 196 U. S. 553, 25 Sup. Ct. 314, 49 L. Ed. 597; Wheeler & Ridenour v. County of Plumas, 196 U. S. 562, 25 Sup. Ct. 316, 49 L. Ed. 599. See, also, County of Sierra v. Flanigan (Sac. No. 1,219) 87 Pac. 801, written and decided by this court since this portion of this opinion was prepared.

The cases in the Supreme Court of the United States were decided since the appeal in this case was taken, and involved the construction of ordinances practically identical with the one here in question, one of which was a controversy between these same parties. It was there held, following the California cases immediately above cited, that the ordinances there in question were enacted for the purpose of revenue and not for regulation. Equally so is the one under consideration here a revenue measure only, and, under the act of March 23, 1901, adopted after its passage was repealed, and the effect of the repeal of the power to levy the license tax for revenue was to destroy all right to collect a license tax under the ordinance, even though due before the repeal took effect. The repeal of the power repealed the ordi