Section 3 of the act of 1897, above referred to, provides that it shall be the duty of the water commissioner of the water district in which the water is used to keep a record of the amount of water so turned into his district from any other dis trict, and section 3 of the act of 1901, supra, provides that the State Engineer, or Superintendent of Irrigation, shall rate the measuring flumes and weirs and supply the water commissioner of the district in which the same are located with a rating table which shall be used by him in measuring water flowing to and from such public stream. Section 2466 of Mills' Annotated Statutes makes a similar provision to the one under discussion applicable to all owners of ditches, canals or reservoirs in irrigation districts where priorities exist, and it has never been the rule, so far as I am advised, to compel such owner to bear the expense of keeping a person, appointed by you, in charge of such measuring device. It is very plain that these later acts require that such measuring devices shall be under the immediate control and direction of the water commissioner; that he shall make the same use of them as he does of other measuring flumes and weirs in his district; and that whenever the duties thus imposed upon him become too great, he shall appoint a deputy, or deputies, as in other cases, and the expense incident thereto shall be paid by the boards of county commissioners of the respective counties comprising such district. It is claimed by the prior appropriators along this stream that they should not be burdened by the additional expense imposed on account of this water being brought from another watershed and distributed in connection with the water of the Cache la Poudre, for the reason that they are in no wise responsi ble for such action, it being the voluntary act of such companies for their respective benefits. It appears to me that if there is any merit in this contention, it should be addressed to the Legislature, rather than to your department, for if such contention should be sustained then all the early appropriators from a stream before the supply became insufficient for all users-thus necessitating the services of a water commissioner to divide the same-would be in position to demand that they also should be exempt from the taxes necessary to meet the expenses incident to the employment of water commissioners, for the reason that such services became necessary only on account of such subsequent appropriators. I am of the opinion, therefore, that the irrigation companies diverting water from one public stream into another, for the purpose of irrigating lands within the drainage basin of the latter stream, should be required to construct and maintain, at their own expense, suitable self-registering measuring devices. at the points of "intake" and "diversion," and that such measur ing devices should be under the control and direction of your department and the respective water commissioners, the same as all other measuring devices in irrigation districts; but that the services of such water commissioners and their deputies— when necessary to employ deputies should be paid by the boards of county commissioners of the respective counties comprising such irrigation districts. Respectfully submitted, N. C. MILLER, By I. B. MELVILLE, JURY IN DIVORCE CASES. A jury of three persons is illegal in divorce cases. May 18, 1906. HON. H. A. WILDHACK, Meeker, Colorado. Dear Sir—I have your letter asking my opinion concerning the right of plaintiff to go to trial in the County Court with a jury of three persons, in the absence of the defendant who has been duly served with summons, the court having previous to trial appointed an attorney, under the statute, to represent the défendant. First. In relation to the appointment of the attorney: This attorney is not the choice of the defendant and can not waive any of the personal rights of the defendant. The appointment of an attorney by the court is in obedience to a statute adopted by the State of Colorado to prevent frauds by the plaintiff and defendant. In divorce matters no attorney can possibly represent a defendant unless employed and retained by the defendant. Second. Section 1093, M. A. S., authorizes a jury of not less than three nor more than twelve, as the parties demanding a jury trial may direct. The statutes of the State of Colorado concerning divorce require the cause to be tried by a jury. The Code of Colorado says that the jury in a civil cause shall be six. The Legislature is authorized by the Constitution to fix the number of jurors, but the verdict must be unanimous. City of Denver vs. Hyatt, 28 Colo., 141. The laws of 1891, section 9, page 252, provide for the selection of a jury in one manner in County Courts of counties of the second, third and fourth classes, and in a different manner in counties of the first class. This act has been held to be unconstitutional. Board of County Commr's vs. First Nat'l Bank, 6 Colo. Pitkin Co. vs. Bank, 24 Colo., 124, 126. This statute has been declared to be in violation of the provision of the Constitution requiring uniformity of practice in all courts. I see no difference in the principle involved in the statute allowing a jury of three in County Courts, but not authorizing a jury of three in District Courts. I believe the statute is unconstitutional in this particular. And this appears to have been the opinion of the members of the Fifteenth General Assembly, as they passed an act relating to decrees of divorce, curing and healing all verdicts heretofore rendered by a jury of less than six. The divorce law requires plaintiff and defendant to try their cause before a jury. I am under some doubt as to whether plaintiff and defendant have the right of trial by a jury of less than six, where both are present. I would not answer your letter in regard to a matter in court except that divorce matters partake largely of a public nature, and the injury apt to be done by an illegal trial is so great, that I feel, in view of the importance of the question asked and its public nature, that I would be justified in replying to your letter. I presume, however, that in any case pending in court, the judge has a right to permit a brief to be filed amicus curiæ. This right is well established, where attorneys have an interest in the decision to be rendered and where it is likely to affect some matter in which they are concerned. Hoping that this covers your inquiry, I am, Yours very truly, N. C. MILLER, LEASE HOLDING OVER. The State having leased certain premises for the period of one year, held over with the consent of the lessors, paying rent according to the terms of the original lease. Held that the State is responsible for the rent until the expiration of the second year. August 31, 1905. HON. BULKELEY WELLS, Adjutant General, State of Colorado, Dear Sir-I have examined the lease made on the 18th day of January, A. D. 1904, by the State of Colorado with Messrs. Stubbs & Jakway, of the second floor of the Opera House Building, situated in Telluride, Colorado, and also certain correspondence relating thereto, submitted to this office for an opinion concerning the same. It appears that the lease was made for a period of one year, namely, from the 18th day of January, A. D. 1904, until the 18th day of January, A. D. 1905. By the terms of said lease, the State was given the privilege of renewing the lease for a period of one year from the 18th day of January, A. D. 1905. The lease was not renewed, but the State held over, with the consent of the lessors, until the 17th day of April, A. D. 1905, paying the rent according to the terms of the original lease. The lessors claim that the State is responsible for the rent until the expiration of the second year, namely, January 17, 1906. This is the question involved, as I understand it, and upon which you desire advice. It is a well established principle of the law relating to landlord and tenant that, after the expiration of a lease for a year, if the tenant holds over, with the consent of the landlord, the law treats him as responsible to him upon a hiring for another year, upon the same terms and conditions as those which controlled the antecedent tenancy. Woods Landlord and Tenant, volume 1, section 13, page 28. Schuyler vs. Smith, 51 N. Y., 309. Wolffe vs. Wolff & Bro., 69 Ala., 549. This doctrine is settled and declared in Colorado in the following terms: "If a tenant, under a lease for a year, holds over after the expiration of his term, in the absence of a new agreement, he holds the premises subject to the covenants and conditions contained in the original lease. The holding over rests not upon the former lease, but upon a new contract, which the law implies to be for the same time and upon the same terms with the lease under which the premises were held the preceding year." See Sears vs. Smith, 3 Colo., 288. Reithman vs. Brandenburg, 7 Colo., 481. Burkhard vs. Mitchell, 16 Colo., 376, 380. Therefore I am of the opinion that the State is legally bound for the rent of said premises until the expiration of the second year; however, as the State no longer occupies the premises, and can not now make use of the same, I would suggest that a settlement of this matter be effected by compromise, if possible. I respectfully return herewith said lease and correspondence. Respectfully yours, N. C. MILLER, Attorney General. By W. R. RAMSEY, Assistant Attorney General. LIQUOR LICENSE. A club organized for social purposes, which dispenses intoxicating liquors to its members without profit, but for which payment is made, comes within the provisions of 3 Mills (Rev.), 3810, requiring a State liquor license. December 28, 1905. HON. JOHN A. HOLMBERG, State Treasurer, Denver, Colo. Dear Sir-In reply to your request for an opinion from this office as to whether The Delta Athletic Club, of Delta, Colo., is violating the law by dispensing intoxicating liquors to its members without first having obtained a State liquor license, in accordance with 3 Mills' (Rev.), 3810, I beg to advise you as follows: It appears from the letter of Hugo Selig, Esq., district attorney for the judicial district in which Delta is situated, and from the letter of Milton R. Welch, Esq., attorney for the club, |