OF THE ATTORNEY GENERAL OF THE STATE OF COLORADO FOR THE Years 1897 and 1898 BYRON L. CARR, Attorney General. COLORADO SINE DENVER, COLO THE SMITH-BROOKS PRINTING CO., STATE PRINTERS 1898 BIENNIAL REPORT OF THE ATTORNEY GENERAL OF COLORADO. TO HIS EXCELLENCY, ALVA ADAMS, GOVERNOR OF COLORADO: Sir-Two years ago it became my duty to make to the governor my biennial report of the business and affairs of the Attorney General's office for the fiscal years. of 1895 and 1896; it now becomes my duty, as well as pleasure, to present to you my second biennial report, covering the years 1897 and 1898. The business of the office during the past two years has been greater in amount than during the preceeding biennial period, but the intimate acquaintance acquired by two years' experience has made it easier to accomplish, while the genuinely cordial and confidential relations existing between myself and the several heads of the executive department have enabled me in many instances by a few minutes' conversation to accomplish as much as could be done in a much longer time and with much greater labor under different conditons. The questions which arise in any of the departments of state, and with which the heads of the departments are required to grapple, usually turn upon some one point, which, being settled, the way is plain and the path straight. In a majority of the cases arising in the past two years I have been able to elucidate the different points to the apparent satisfaction of the officers making the inquiries and so have avoided in many instances the labor of a lengthy official correspondence. In the appendix to this report will be found such of my official opinions, rendered to state officers, as I have deemed of sufficient importance to justify publication. There are others in which minor points were passed upon which I have deemed it advisable to omit on account of the expense of publication. I have also included in the appendix a small portion of my unofficial correspondence, in which questions of public importance have been considered. In my first report I stated that there had been seventy-seven cases demanding my attention in the appellate courts and eighteen in the districts courts during the two years covered by that report. During the past two years the attention of this office has been demanded to sixty-five cases in the supreme court, eight in the court of appeals, and twenty in the district courts, which, together with · sixteen cases that were undisposed of at the time of making my last biennial report, makes one hundred and nine cases that have demanded the attention of myself or some member of my office force. Of these, seventy-nine have been disposed of, leaving thirty in which final judgment has not been rendered, two of this number being actions that were brought in the district court in 1895, and in which no steps have been taken by the plaintiffs since the complaints were filed. Of the twentyeight remaining and undisposed of in the appellate courts all have been briefed and prepared for submission with the exception of eight which could not be briefed because the plaintiffs in error have not yet filed their abstracts and briefs. Fourteen of these cases have either been submitted or are now ready for submission, and eight are returnable to the January, A. D. 1899, term of the supreme court, two of the latter cases being briefed in advance of the return day. In addition to the above there is one case in the justice court, an action in replevin, brought by the deputy county assessor of Arapahoe county against the county treasurer of Arapahoe county to recover property levied upon for the payment of the military poll tax. At the request of the county treasurer an appearance was entered on his behalf by one of my office force. The following is a syllabus of some of the important legal propositions that have been decided by the appellate courts in the above mentioned cases: PEOPLE EX REL CARR ATTORNEY GENERAL VS. THE DISTRICT COURT OF LAKE COUNTY. In this case the district judge of Lake county declined to grant a motion of the district attorney for a nolle prosequi and directed the prosecution to proceed under an attorney appointed by him for that purpose, the district attorney refusing to prosecute. A writ of prohibition was applied for to prevent the court from continuing the prosecution and the court held that in the absence of a statute changing the rule of the common law the district attorney has power to enter a nolle prosequi in a criminal case without the consent of the court. The writ was allowed. 23 Colorado Reports, 466. IN RE INTERNAL IMPROVEMENT FUND. This was a question presented. by the governor as to whether or not the internal improvement fund could be used for the purpose of erecting public buildings, such as asylums, state houses, universities, etc. Passing upon the question the court said: "The enabling act does not specify what kind of improvements must be considered internal improvements, hence we must consider the sense in which those words are used in American legislation," and the court held, that such buildings as state capitol, state university, peniten |