450, 12 Pac. Rep. 843, extends the doctrine of the IIuffsmith Case to the keeping of lewd houses. The plaintiff in error, having been indicted for such offense in the district court of Arapahoe county, sought shelter under the provision of the Denver charter, and the ordinances enacted in pursuance thereof; and they were held available to protect the accused, and to defeat the prosecution, in the court of last resort. The indictments in the IIuffsmith and Rogers Cases were based upon the same statute, (section 151 of the General Criminal Code of the state,) which provides, in substance, that if any person shall be guilty of open lewdness, etc., or shall keep open any tippling or gaming house on the Sabbath day or night, or shall maintain or keep a lewd house, etc., or shall commit certain other offenses therein specified, such person shall, on conviction, be fined not exceeding $100, or imprisoned in the county jail not exceeding six months. This statute was enacted prior to the adoption of the state constitution, was continued in force by that instrument, and has remained a part of the Criminal Code of Colorado ever since the revision of 1868. As the law has existed during all that time, punishment in case of a violation of this statute can only be inflicted upon conviction in a court of record upon an indictment by a grand jury of the proper county. It requires no argument to show that the Denver charter is construed by the decisions in the Huffsmith and Rogers Cases to be a law regulating and restricting the jurisdiction of the district court of Arapahoe county in tippling and lewd house cases, while it does not in any manner affect the jurisdiction of the several district courts in such cases elsewhere in the state. Such construction, therefore, must be erroneous, because it cannot be reconciled with section 28, art. 6, of the constitution, which provides that the jurisdiction "of all the courts of the same class or grade, so far as regulated by law, ** * severally, shall be uni

form."

Neither the Myers Case, in 67 Ill., nor the Hart Case, in 89 Ill., nor any of the numerous cases decided by the Illinois supreme court bearing upon our borrowed provisions of her new constitution, are noticed in the opinion delivered in the Huffsmith Case. As none of these cases appear in the brief of the attorney general filed in that case, I am constrained to conclude that they were overlooked by the court, and yet such conclusion seems strange; for they had been decided and published years before, the Hart Case six years before the Huffsmith decision, and the Myers Case three years before the adoption of our constitution. Besides, they had been frequently cited and always followed in the nisi prius courts of Arapahoe county until the announcement of the Huffsmith decision rendered them unavailing. The Siebold Case was noticed in the Huffsmith opinion, but, as we have seen, it does not bear upon the question of uniform jurisdiction. The

case of Bennett v. People, 30 Ill. 359, was also relied on, but the opinion was rendered therein long before the adoption of the new constitution, so it furnishes no better support than the Hetzer Case in Colorado. The only other authorities cited in the Huffsmith opinion are two cases from Missouri; but, as that state has no such constitutional provision as ours concerning the uniform jurisdiction of courts, her judicial decisions can have no weight, as against the unbroken current of unanimous decisions by the supreme court of Illinois, based squarely upon the constitutional provisions in question.

Turning to the Rogers Case, decided two years after the Huffsmith Case, we find the same dearth of authority in respect to the question under consideration. Not a single authority is noticed or cited in the opinion bearing upon the construction of section 28, art. 6, of our constitution. An able effort, however, is made to combat the construction given by the Illinois courts to that constitutional provision. It is strongly urged by the able jurist delivering the opinion in the Rogers Case, that "the statute conferring upon the city council of Denver exclusive authority to prohibit and suppress the evil mentioned is sanctioned by the constitution itself;" and that the charter "does not deal, nor was it intended to deal, in any manner with courts or their jurisdiction." Notwithstanding all this, the accused having challenged the jurisdiction of the court by pleading the charter and ordinances of the city against the indictment, the opinion concludes with the statement that "the plea to the indictment was good." In other words, the argument is that the granting of exclusive power to the city is equivalent to taking away the jurisdiction of the court, and yet that the charter does not deal with courts nor affect their jurisdiction. I must confess myself incapable of comprehending this logic. It is true the charter does not purport to affect the jurisdiction of courts in general, but it is construed by the opinion to affect the jurisdiction of one court in particular, and therein lies the mischief.

Some reliance is placed upon the fact that the city of Denver has a special charter; and section 13, art. 14, of the constitution, is referred to in the Rogers Case as authorizing the organization and classification of towns and cities, and the granting of different powers and restrictions to the different classes of municipal corporations. The learned justice claims that "there is clear constitutional authority for bestowing upon one class, within certain limits, exclusive legislative control over a given subject pertaining to local selfgovernment, while another class is allowed only concurrent power in connection therewith." But we look in vain for any constitutional provision by which municipal corporations, whether organized under special charter or by general law, may be authorized to interfere with the uniform constitutional jurisdiction of the district courts in the en

forcement of the general laws of the state, civil or criminal. In the case of Darrow v. People, 8 Colo. 417, 8 Pac. Rep. 661, it was held that the charter provision providing that each board of the city council shall be the sole judge of the qualifications, election, and returns of its own members, deprives the court of jurisdiction in determining such matters; but this was a special provision pertaining to the organization of the council itself, and, so far as the election and returns of its own members are concerned, exclusive authority might well be thus vested in pursuance of section 12, art. 7, of the constitution, which authorizes the general assembly to provide for the trial of election contests in certain cases. This view was taken in the case of People v. Londoner, 13 Colo. ——, 22 Pac. Rep. 764, but in the Darrow Case it seems not to have been urged in behalf of the people that the charter provision making each board the sole judge, etc., might, in certain quo warranto proceedings, be in contravention of the constitutional requirement concerning the uniform jurisdiction of the courts; at least, that point is not discussed in the opinion.

I shall not extend this opinion to an examination of further authorities in detail. Judge Dillon, in his standard work on Municipal Corporations, speaking of by-laws or city ordinances, says they must be reasonable and lawful, impartial, fair, and general; must not contravene common right; must be consistent with the public legislative policy; and subordinate to the general laws of the state. Mr. Justice Cooley, in his able treatise on Constitutional Limitations, speaking of the suspension of general laws, says: "The legislature may suspend the operation of the general laws of the state; but when it does so the suspension must be general, and cannot be made for individual cases or for particular localities." Page 484.

So far as we have been advised, no state, other than Illinois, has a provision corresponding to our own requiring uniformity of jurisdiction for courts of the same class or grade. But authorities are not wanting to the effect that city governments, even under most liberal charters granted by states having no such constitutional restrictions, cannot nullify the general laws of the state by the enactment of mere municipal ordinances. Missouri and Texas, and perhaps other states, without constitutional safeguards to control their legislatures and protect the equal rights of all their citizens, may be fairly claimed to allow a discrimination between their cities and rural communities in respect to the observance of some of their general criminal laws. But Indiana, Michigan, West Virginia, Arkansas, New Jersey, Georgia, and North Carolina, and perhaps other states, have recorded opinions of an opposite character and tendency. Sloan v. State, 8 Blackf. 361; Slaughter v. People, 2 Doug. (Mich.) 335; Eckhart v. State, 5 W. Va. 515; Reich v. State, 53 Ga. 73; State v. Moss, 2 Jones, (N. C.) 66; State v. Anderson, 40 N. J. Law, 224; Rector v.

State, 6 Ark. 187; State v. Devers, 34 Ark. 189.

It is not claimed that the rule is absolute that under no circumstances may we borrow a constitutional or statutory provision from another state, and then reject the construction which the courts of the former state have previously given it; but such departure should not be made without the strongest reasons therefor. In this instance, we find the Illinois construction in harmony with our own earlier decisions upon analogous subjects. It was manifestly the intention of our people, in adopting our excellent constitution, containing so many provisions against local and special legislation, and so many in favor of uniformity, to secure equality and impartiality in the administration of the law among all classes and communities throughout the state. The construction contended for in this opinion is one step, and a long one, in the right direction. It is unfortunate that it did not meet with the unanimous approval of this court when the occasion was first presented. as it did in the courts of Illinois. Our court started aright in the Stout Case, recognizing the fact that the provision of section 28 of our judiciary article was borrowed from the constitution of 1870 of the state of Illinois. The same rule was recognized and extended in the Lowrie Case four years later. I am aware it may be said that the Lowrie Case was one of felony, and that the decision turns upon the fact that the word "felony" is used in section 8 of the bill of rights; but the language which we have quoted from that opinion is equally applicable to the case under consideration. A single illustration will suffice: A person charged with an offense under section 151 of the Criminal Code, in the city of Denver, might well claim that he should be "accorded the right and privilege of having the truth of the charge investigated by a grand jury composed of his peers before he could be put to the expense, inconvenience, and disgrace of a public trial." So, too, stating the illustration conversely, a person charged with committing such an offense outside of the limits of the city might well claim that he should not be subject to indictment, conviction, and imprisonment so long as his fellow-citizens night commit such offenses within the limits of the city without subjecting themselves to anything more than a paltry fine, under the city ordinances. Indeed, the offense specified in the indictment in this case cannot be committed at all within the city, under the ordinances as now framed, except between the hours of midnight Saturday night and 5 o'clock Sunday morning. But it is idle to pursue these illustrations. Common fairness, common justice, and common sense revolt at such inequality and such unjust discriminations between individuals and neighboring communities in the same state.

If the peo

ple desire tippling-houses kept open every day and night in the week, election days as well as Sundays; if they desire to remove all re

strictions against selling liquor to Indians, children, and common drunkards, as well as other people,-let the law upon these subjects be repealed, and let these privileges be extended equally to all classes and communities of our people. I know of nothing in the constitution to forbid such a course. What I am insisting upon is that such laws as we have shall be enforced by the courts throughout the state according to the uniformity rule prescribed by the constitution. Neither the constitution nor the laws of Colorado recognize any particular form of religious faith or practice. In fact, the constitution very properly forbids any such legislation. But the constitution does guaranty the free exercise and enjoyment of religious profession and worship without discrimination, and secures the liberty of conscience to every one so far as the same is consistent with good morals and the peace and welfare of society. Our laws do not recognize Sunday as having any particular sanctity or sacredness above other days; but the law does recognize the fact that large numbers of our people abstain from their usual employments on Sunday, and that many of them devote the day more or less to religious worship and works of charity, while others enjoy it as a day of rest, recreation, or pleasure, according to their several inclinations. Hence the law provides that public offices shall not be kept open, that courts shall not sit, except in cases of necessity, and that commercial paper shall not mature, on Sunday. Provision is also made to secure peace and quiet, and to prevent dissipation and disturbance, to the end that citizens of all classes may enjoy the privileges of the day as they severally please, in an orderly manner, without trespassing upon the privileges of others. These are proper subjects of legislation, of which no one can justly complain, so long as they bear equally upon all classes. The observance of one day in seven as a day of rest is conducive to the sanitary, moral, and physical well-being of the race, as the history of the world and experience of mankind abundantly attest. It is not contended that these considerations have a controlling effect upon the construction of the constitution and laws in question, but they are persuasive in favor of accepting the construction already given by the highest court of a sister state upon the subject. So I conclude that this court should feel itself bound by that construction and interpretation of the constitution which forbids that the city of Denver should be allowed by ordinance to nullify the general laws of the state. For these reasons I concur in the conclusion announced in the opinion of Mr. Justice HAYT, that the judgment of the district court must be aflirmed. (14 Colo. 596)

FINDING . HARTMAN et al. (Supreme Court of Colorado. April 25, 1890.) FRAUDULENT CONVEYANCES-SALE OF GOODSATTACHMENT.

1. A contract under which a firm of merchants are to furnish supplies and money to the owners

of a mine, and in return are to receive ore as mined, is not a present absolute sale of the ore, though it contains the words, "sells, assigns, and transfers;" and it is therefore not within the provision of Gen. St. Colo. c. 43, § 14. declaring that every sale of chattels, unless accompanied by an immediate delivery and a continued change of possession, shall be conclusively presumed fraudulent as against creditors of the vendor.

2. Under such a contract, title to the ore vests in the merchants on its delivery, and a creditor of the mine-owners who thereafter attaches it takes nothing by his levy.

3. The contract having been carried out by the mine-owners jointly, and title to the ore having vested in the merchants on its delivery, the attaching creditor cannot assail the contract because it was executed in the name of only one of the mine-owners.

Appeal from district court, Summit county. Dolman, Staley & Blackman, as lessees, were engaged in extracting and shipping ore from the Cincinnati mine, near Breckenridge. For the purpose of obtaining provisions and materials from time to time as needed to carry on said business, Dolman, in their behalf, entered into a written contract with J. H. Hartman, acting for the firm of J. H. Hartman & Bro., merchants in the town of Breckenridge. The terms of this contract sufficiently appear in the opinion. Dolman et al. became indebted to Hartman & Bro. in the sum of $441, and in pursuance of said contract they undertook to deliver to Hartman & Bro. 13,518 pounds of selected ore. This ore was brought to the town of Breckenridge, and loaded into a railroad car. Thereafter, and before the car was sealed, the deputy-sheriff notified the station agent that he attached it, but made no effort to take possession. On the same day the car was duly sealed ready for shipment, in the name of J. H. Hartman & Bro., to whom the bill of lading was made out. At a later hour the sheriff and deputy returned, broke open the car, levied upon the ore under the writ of attachment, took possession, and removed it to the ground. Prior to this levy, Hartman notified the officer that the ore belonged to J. H. Hartman & Bro. The attachment proceeding mentioned was instituted by appellant, Finding, for a sum due him from Dolman and one Hudson, who had previously acted as copartners, under the firm name of Hudson & Dolman. Plaintiff obtained judgment for the amount of his claim, and the regularity of the issue of his attachment writ was sustained. Hartman & Bro., however, intervened under the statute, and upon the plea of intervention the principal trial took place. The intervenors recovered a judgment for the redelivery of the ore, together with $50 damages. From that judgment the present appeal was taken. Between the dates of levy and trial in the district court the ore lay on the ground, exposed to the weather, driven over and somewhat scattered by wagons, for a period of six months. The two grades into which it had previously been divided were by the sheriff, in unloading, indiscriminately mingled. Testimony was offered by plaintiff showing

the injury thus occasioned. Proof was also admitted to the effect that Hartman & Bro. paid $75 attorney's fee at the first trial, which took place in the county court.

M. B. Carpenter, for appellant. Montgomery & Frost, for appellees.

10 Pac. Rep. 809; Sweeney v. Coe, 12 Colo. 485, 21 Pac. Rep. 705.

The statute in question reads: "Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and this presumption shall be conclusive." Gen. St. c. 43, § 14. Obviously, this provision deals with sales or assignments of personal property capable of immediate delivery, when the present trans

The jury must, under the instructions, have found that the ore in question was delivered to Hartman & Bro. before the levy of the attachment, and there is no doubt but the evidence amply sustains this finding. The attempt of the deputy-sheriff to levy his writ in the morning was ineffectual, because he took no possession. It is insisted, however, as a matter of law, that, under section 14 of the statute of frauds, the failure to make an immediate delivery of the ore, upon execution of the alleged bill of sale or assignment, rendered the entire transaction void as to creditors of the vendor. If this position be correct, it is decisive; for, as a matter of fact, 26 days intervened between the execution of the instrument and delivery of ore thereunder. Assuming, for present purposes, that Finding was a creditor of Dolman, Staley & Blackman, we shall proceed to consider this objection.

At the common law, and under statutes in affirmance of the common law, the absolute sale of personal property, unaccompanied by immediate delivery and continued change of possession, was regarded as fraudulent. But as to whether such transactions should be treated as frauds per se and void, or simply as indications of fraud, in fact subject to contradiction by proof of good faith, and hence merely voidable, there was great contrariety of judicial opinion. In some instances the same tribunal has at different periods favored both doctrines; this is true of the supreme court of the United States. See Hamilton v. Russell, 1 Cranch, 310; Warner v. Norton, 20 How. 448. To put the matter entirely at rest, the specific provision under consideration was wisely enacted. Its conclusiveness in fixing upon such transactions the character of fraud in law, incapable of explanation, has been frequently recognized by this court. Cook v. Mann, 6 Colo. 21; Wilcox v. Jackson, 7 Colo. 521, 4 Pac. Rep. 966; Ray v. Raymond, 8 Colo. 467, 9 Pac. Rep. 15; Bassinger v. Spangler, 9 Colo. 175,

prevent fraud upon creditors and purchasers through retention of possession and continued apparent ownership after an asserted sale or assignment, complete in all other respects. The object of its framers was, so far as possible, to remove temptation for the commission of fraud in transferring the ownership of chattels. The alleged bill of sale or assignment upon which reliance is placed in the case at bar does not belong to such a transaction. It is inartificially drawn, and the words, "sells, assigns, and transfers," are employed; but several elements usually characterizing an actual sale are absent. No present payment, either in money or goods, is recited, nor is a present delivery of ore pretended. No definite quantity of orê is mentioned, and no purchase price is specified. The ore itself had not been mined, and could hardly be said to have had more than a potential existence. It was not only incapable of immediate delivery, but, owing to the uncertainties of mining, serious doubt existed if delivery would ever be possible. Hartman & Bro. were only to receive enough of the ore as extracted to satisfy the amounts due from time to time, upon orders previously paid, either in goods or money. This might require the total output, or it might take but a small fraction thereof. If, perchance, more than a sufficient quantity of ore for this purpose were delivered, they would doubtless have to account to Dolman & Co. for the surplus of proceeds. The idea of security is conspicuous in the writing, and the agreement is executory, having reference entirely to future transactions. It is intended to secure future advantages to one party, and give protection in connection therewith to the other. Hartman & Bro. are to furnish supplies and money, and in return are to receive ore as mined. This agreement is binding between the parties, but it does not constitute a present absolute sale as to creditors. Hartman & Bro. have a right to require compliance so long as it is within the power of Dolman & Co. to render the same. But, if a creditor attaches before delivery under the contract, such creditor takes precedence in payment, and a title acquired through his