Gambar halaman

(41 Colo. 172):

defendant. That the charter of said city of ORAHOOD v. CITY AND COUNTY OF Denver provided that the compensation of DENVER

said city attorney of said city of Denver (Supreme Court of Colorado. Oct. 7, 1907.)

should be the sum of $5,000 per year, and

that the term for which said attorney should 1. OFFICERS-TERMINATION OF TERM-EFFECT

be elected should be the term of two years. ON SALARY. The termination of an officer's term neces

That since the 1st day of December, 1902, sarily implies the cessation of salary.

the defendant failed and refused to pay the 2. MUNICIPAL CORPORATIONS_CITY ATTOR- said plaintiff his salary as said city attorney. NEY-RIGIT TO TERMINATE TERM.

To this complaint a general demurrer was Const. art. 5, § 30, providing that, except as otherwise provided in the Constitution, no

filed by the defendant and sustained by the law shall extend the term of any public officer court, and judgment rendered dismissing the or increase or diminish his salary after his elec- complaint. The action of the court is astion, does not restrict the people's power to amend the Constitution; and hence Const. art.

signed as error by plaintiff in error. 20, $ 3, providing that the terms of all officers

Article 20 of the Constitution is the amendof the city of Denver should terminate on the ment mentioned in plaintiff's complaint. Secconsolidation of the county and city, deprived tion 3 of this article provides: "Immediate the city attorney of his office and right to further salary, though the term for which he

ly upon the canvass of the vote showing the had been elected had not expired.

adoption of this amendment, it shall be the

duty of the Governor of the state to issue his En Banc. Error to District Court, City

proclamation accordingly, and thereupon the and County of Denver; P. L, Palmer, Judge.

city of Denver and all municipal corporaAction by Harper M. Orahood against the

tions and that part of the county of Arapacity and county of Denver. From a judg

hoe within the boundaries of said city shall ment dismissing the complaint, plaintiff

merge into the city and county of Denver, brings error. Affirmed.

and the terms of office of all officers of the T. E. Watters, W. F. Orahood, and E. W. city of Denver and of all included municipalHurlbut, for plaintiff in error. H. A. Linds- ities and of the county of Arapahoe shall ley and Chas. R. Brock, for defendant in er- terminate *

and the district attorror.

ney shall also be ex officio attorney of the

city and county of Denver." Section 30 of BAILEY, J. Plaintiff's complaint is sub- article 5 of the Constitution provides : "Exstantially as follows: That the defendant is cept as otherwise provided in this Constitua municipal corporation. That on the 2d day tion, no law shall extend the term of any of April, A. D. 1901, at the election held in public officer or increase or diminish his salthe city of Denver, county of Arapahoe, plain

ary, or emoluments after his election or aptiff was elected to the office of city attorney pointment.” It is the contention of plaintiff in and for said city. That upon the 14th in error that section 30 or article 5 is conday of April, 1901, he qualified and entered trolling in this matter, and that the amendupon the duties of the office, and continued

ment should not receive such a construction to fulfill and perform such duties for the as would diminish his salary or emoluinents. full term of two years from said 14th day of The plaintiff in error relies somewhat upon April. That on the 1st day of December, the maxim, "The express mention of one 1902, the city of Denver and the county of

thing implies the exclusion of another," and Arapahoe, by and under the provisions of a argues that, notwithstanding section 3 of arconstitutional amendment, were merged in ticle 20 terminated the right to the office, and became the city and county of Denver,

the right to the salary did not cease, because defendant in this case, which succeeded to it was not expressly mentioned. This maxall the rights, powers, property, and liabil- im is not of universal application, and great ities of the said city of Denver, among which caution is requisite in dealing with it, lest said liabilities was the obligation to pay to we destroy the intention of the people in the the plaintiff the full amount of his salary, as adoption of the amendment, as discoverable said city attorney, for the full term of two from the instrument itself and the cirxumyears. The city of Denver paid plaintiff the stances of the transaction. Broom's Legal amount of salary due up to and including the Maxims, 653. If the amendment had provid30th day of November, 1902, and failed and ed that upon its adoption “the terms of office neglected to pay the amount due from Decem- of all officers of the city of Denver shall terber 1, 1902, to April 14, 1903, to wit, the minate and the right of the officers to the sum of $1.861.13. That the money to pay salary attached to such offices shall ease." the said salary was duly provided for by a the latter clause would add nothing to the tax upon the property of the city of Denver, sentence, because “the expression of what is and that at the time the defendant succeed- tacitly implied is inoperative" (Broom's Leed to the property, rights, and obligations of gal Maxims, 670), and the termination of the the city of Denver the tax had been levied term necessarily implies the cessation of the and the money to pay said salary had been salary. provided for by the said city of Denver, and The case of Marquis v. City of Santa Ana, the same by said consolidation, merger, and 103 Cal. 661, 37 Pac. 650, relied upon hy succession came to and is now held by the plaintiff in error, is not in point. In that case the city relieved the assessor of the per- power of the Legislature to deal with the formance of his duties and then sought to office, but even such restrictions may be reavoid paying his salary. Under a statute moved by constitutional amendment." which provided that the compensation should Plaintiff in error contends that notwithnot be diminished during the official term, it standing the fact that by constitutional amendwas held that the city was bound to pay the ment the people terminated the term of his salary, even though it had made other pro- office, he was still entitled to the salary for visions for the performance of the duties. the full term for which he was elected. In Here, by article 20 of the Constitution, the State v. Frizzell, 31 Minn. 160, 18 N. W. 316, people in their sovereign capacity terminated the court said: “Public offices, in theory at the term of office of plaintiff in error. Uz- least, are held and exercised for the benefit zell v. Anderson, (Colo.) 89 Pac. 785, 1056. of the public, and not of the incumbent. So that plaintiff no longer held the office the Therefore it is in all cases competent for the salary of which he seeks to obtain. In the people, in their sovereign capacity, to abolish case of County of Cook v. Sennott, 136 Ill, an office or shorten a term, or reduce or take 314, 26 N. E. 491, which is relied upon by away entirely the salary attached to it, withplaintiff in error, it appears that the Consti- out regard to the interests of expectations of tution of Illinois (section 11, art. 9) prohibits the incumbent as to the prospective compenthe increase of the compensation of the clerk sation. Cooley, Const. Lim. *276; County of the probate court during his term of of- of Hennepin v. Jones, 18 Minn. 199 (Gil. fice, and it was held that an act of the Legis- 182); Conner v. City of New York, 2 Sandf. lature increasing such salary was void. This (X. Y.) 355. And when an office, or the does not apply here, because the act com- term of an office, ceases, the salary ceases." plained of was by an amendment to the See. also, Jones v. Shaw, 15 Tex. 577; Throop Constitution itself.

on Public Officers, $ 475; Alexander v. McIt cannot be asserted that section 30 of ar-Kenzie, 2 S. C. 81. ticle 5 prohibits the people from amending Inasmuch as the prohibitions contained in their own Constitution. The section of the section 30 of article 5' cannot restrict the Constitution which prohibits the diminution power of the people to amend their Constiof the salary of any public officer also in- | tution, and inasmuch as the right to the salhibits the extending of the term or the in- ary ceases when the right to the office tercreasing of the salary. Yet, in the year minates, it necessarily follows that the de1881, an amendment to the Constitution was murrer to plaintiff's complaint was properly proposed, and afterwards adopted by the peo- sustained. The judgment of the district court ple, which provided for the increase of the will therefore be affirmned. salaries of the Governor, his private secre- Affirmed. tary, the Judges of the Supreme Court and the judges of the district court. Since the

(41 Colo. 158) time of its adoption each of these officers

CAVANAUGH V. PATTERSON et al. has been receiving salaries in accordance

(Supreme Court of Colorado. Oct. 7, 1907.) with that amendment, and those in office at

1. CORPORATIONS-REPORTS-FAILURE TO FILE the time of its adoption immediately began to

-- LIABILITY OF DIRECTORS. receive such increase. By the amendment to 1 Mills' Ann. St. $ 491, provided that certhe Constitution proposed in 1901, and adopt- tain domestic

tain domestic corporations should annually. ed by the people in 1902, the terms of office

within 60 days from the 1st of January, make

and file with the recorder of deeds of the counof the district attorneys, county judges, and

ty where the business was carried on a report the various county officers were extended. stating certain facts, and for a failure so to do By the amendment to the Constitution which the directors should be jointly and severally provides for the consolidation of the Court of

liable for debts created during the year next

preceding when such report should have been Appeals and the Supreme Court, the term of

filed, and until it was filed, unless the capital office of one of the judges was extended for has been fully paid in and a certificate filed. a period of one year, and the term of office

Hold, that directors, during the period the corof two of the judges was decreased for the

poration was in default for failing to file such

statutory report, were personally liable for inperiod of three months. So it is seen that debtedness incurred during such period. the people have repeatedly exercised the pow- [Ed. Yote. For cases in point, sep Cent. Dig. er to do those things prohibited by section 30 vol. 12, Corporations, $$ 1460-1407.] of article 5. The inhibitions mentioned in 2. SAME. this section are restrictions upon the legisla

The fact that a director of a domestic cortive branch of government, and not against poration did not become such until after the

expiration of the period when the corporation's the power of the people to amend the Consti- annual report should have been filed, as required tution. In Taylor & Marshall v. Beckham, by 1 Mills' Ann. St. $ 491, did not relieve him 178 U. S., at page 577, 20 Sup. Ct. 901, 44

from liability for indebtedness incurred thereL. Ed. 1187, it is said: "Nor does the fact

after, during his administration while the cor

poration continued in default. that a Constitution may forbid the Legisla- | 3. STATUTES – REPEAL – EFFECT – SAVING ture from abolishing a public office or dimin- CLAUSE. ishing the salary thereof during the term of The general rule that, where a statute imthe incumbent change its character or make

posing a liability is repealed by a subsequent

act containing no saving clause, all rights under it property. True, the restrictions limit the

the repealed statute are lost, was abrogated by Laws 1891, p. 366, § 1, providing that the repeal | next preceding when such report should have of a statute shall not affect any penalty or been filed, and until it is filed, unless the liability incurred thereunder, unless the repealing act shall so expressly provide.

capital stock of the corporation has been [Ed. Xote. For cases in point, see Cent. Dig.

fully paid in, and a certificate to that efvol. 41, Statutes, $ 368.]

fect filed, as provided in section 487, Id. In 4. CORPORATIONS-MAXAGEMENT – REPORTS

1894, the Fish Creek Gold Mining & Land STATUTES-REPEAL.

Company was incorporated under the laws of Law's 1891, p. 366, § 1, provides that the this state, and on the Sth day of March, 1901, repeal of any section of any statute shall not

its certificate of incorporation was amended affect in whole or in part any penalty, forfeiture, or liability which shall have been in

by changing the name to the Freeland Mercurred before the repeal, unless the repealing cantile & Mining Company. Yo (ertificate act shall so expressly provide. Held, that Laws of full paid-up stock was filed, as provided 1901, p. 121, c. 52, § 11, repealing 1 Mills' Ann. St. $ 191, imposing liability on directors of a

by section 487, nor was the annual report, corporation for failing to file annual reports, required by section 191, made and filed. etc., without a saving clause, was not in any March 13, 1901, the corporation created an sense inconsistent with the general saving stat

indebtedness of $1,000. Suit was brought ute of 1891, and therefore did not preclude an enforcement of liabilities incurred under the

thereon by appellant against the appellees. repealed section.

The court found as a fact, in addition to those 5. APPEAL-REVIEW – EXCEPTIONS – NECES- above recited, that appellees were directors SITY.

of the corporation at the time the indebtedIn the absence of an exception taken at the trial, a finding of fact cannot be reviewed

ness sued upon was created, and, specifically, on appeal.

that Mr. Taggart had been such director from [Ed. Note.-For cases in point, see Cent. Dig.

February 5, 1901, and Mr. Patterson from vol. 2, Appeal and Error, $ 1538.]

March 8, 1901, but determined as a conclu6. SAME-CROSS-ERRORS - ASSIGNMENT NE

sion of law that the defendants were not liCESSITY.

able. The plaintiff appeals. An alleged erroneous finding of fact prej. udicial to appellee cannot be reviewed unless a Skelton & Morrow, for appellant. John R. cross-error is assigned thereon.

Smith, for appellees. [Ed. Note.-For cases in point, see Ceut. Dig. vol. 3, Appeal and Error, 83053.] 7. SAME-DISPOSITION OF CAL'SE.

GABBERT, J. (after stating the facts as Where, in a suit to charge directors of a above). The report for 1901 was due 60 days corporation for debts because of the failure from the 1st day of January of that year. Dito file annual reports, there appeared to be merit

rectors of a domestic corporation during the in the contention of one of them that he did not become a director until after the indebted

period it is in default, in failing to file the ness was incurred, the court, on appeal, on re- annual report required by the statute, become versing a judgment in favor of both, would not

personally liable for the indebtedness incurdirect judgment against them, but would demand

red by such corporation during that period. the cause for a new trial. [Ed. Note.-For cases in point, see Cent. Dig.

The statute in question has been so construeil vol. 3, Appeal and Error, $ 4599.]

in numerous decisions of the Court of Ap

peals and this court, among which we cite Appeal from District Court, City and Coun

Colo. Fuel & Iron Co. v. Lenhart, 6 Colo. App. ty of Denver; Frank W. Owens, Judge.

511, 41 Pac. 834, and Austin V. Berlin, 13 Action by Edward J. Cavanaugh against

Colo. 198, 22 Pac. 433. New York has a Frank G. Patterson and other. From a judg- similar statute, and the courts of that state ment for defendants, plaintiff appeals. Re

have given it a similar construction. Boughversed and remanded.

ton v. Otis, 21 N. Y. 261; Shaler & Hall

The question presented by this appeal is Quarry Co. v. Bliss

, 27 N. Y. 297.

the liability of directors of a corporation for From our conclusion under the facts we indebtedness incurred thereby after the lapse are considering, both defendants were liable. of the period when, in accordance with the and the district court erred in holding to provisions of section 491, 1 Mills' Ann. St., the contrary. No certificate of paid-up stock such corporation should have filed its annual was filed. The annual report required by the report. This section, as it existed at the statute had not been filed when the indebtedtime when such indebtedness was created, pro- ness sued upon was created, and both defendvided, in substance, that every such corpora- ants were directors of the debtor corporation shall annually, within 60 days from the tion at this time. The fact that Mr. Pat1st day of January, make and file with the terson was not a director until after the exrecorder of deeds of the county where its piration of the period when the annual rebusiness is carried on a report, stating the port for 1901 should have been filed did not amount of its capital and the proportion relieve him from the liability imposed by the thereof actually paid in, together with a

in, together with a statute, for indebtedness incurred thereafter statement of its existing indebtedness. The under his administration while the corporasection further provides that the failure to tion was in default. The duty devolved upfile such report within the time specified ren- on him, when he became a director, to see der's the directors of the defaulting corpora- that the law with respect to the filing of the tion jointly and sererally liable for the debts annual report was obeyed, and, having neyof such corporation created during the year lected this duty, he became liable for the


penalties imposed by the statute for this neg. On behalf of Mr. Patterson, it is contended lect.

that he did not becanie a director until May April 6, 1901, the General Assembly passed 1, 1901. Of course, if that is true, under

, an act providing for a different kind of re- our construction of the statute he would not port than that mentioned in section 491, and be liable, because the indebtedness sued upon by this act repealed that section, without any was incurred before that date (Austin v. Bersaving clause as to penalties which had at- lin. supra): but we are precluded from intached thereunder. Laws 1901, p. 121, c. vestigating the question of the date when, ac72. 11. Counsel for defendant urges that, cording to the evidence, he became a director, because there was no saving clause to the re- because no exception was taken to the findpeal of section 191, therefore all rights under | ing of the trial court on this issue, nor crossthis statute fell with its repeal. This is the error assigned thereon. It appears, however, general rule, but it Iras been abrogated by that there may be some merit in the claim, statute passed in 1891 (Law's 1991, p. 366), on behalf of Mr. Patterson, that he did not which provides that: “The repeal, revision, become a dirertor until May 1, 1.901, and we amendment or consolidation *

* of any

therefore decline to direct the trial court to * * * section * * * of any statute enter judgment against the defendants, as shall not have the effect to release, extin- requested by counsel for plaintiff, but shall guish, alter, modify, or change, in whole remand the cause for a new trial as to both or in part, any penalty, forfeiture, or liabil. defendants. ity, either civil or criminal, which shall have The judgment of the district court is rebeen incurred under such statute, unless the versed, and the cause remanded for a new repealing, revising. amending or consolidat- trial. ing act shall so expressly provide. * * * "

Reversed and remanded. This act does not attempt to interfere in any manner with future legislation, but provides STEELE, C. J., and CAMPBELL, J., conthat the repeal of a statute prescribing a cur. penalty shall not prevent a recovery of such penalty unless the repealing statute so pro

(19 Okl. 21) vides. Its purpose was to save the right to

GUTHRIE & W. R. CO. V. RIIODES. penalties incurred when the repealing statute was silent on that question, and hence, by

Supreme Court of Oklahoma. June 25, 1907. virtue of its provisions, the repeal of a stat

Rehearing Denied Oct. 12, 1907.) ute imposing penalties under certain condi



COXTRACT. tions, without any saving clause, does not I'nder the laws of this territory, the execuprevent the recovery of such penalties when tion of a contract in writing supersedes all the it appears that the repeal and subsequent oral negotiations or stipulations concerning its statute are not inconsistent with its purpose.

terms and subject-matter which preceded or ac

companied the execution of the instrument; Wilson v. People (Colo.) 85 Pac. 187: State hence, where a note is given as subscription to V. K. C., Ft. S. & G. R. Co. (C. C.) 32 Fed. a railroad corporation to aid in the construction 722. The new act providing for reports of

and building of said road, any representations

made prior to or contemporaneous with the excorporations merely goes more into detail as

ecution of the note are inadmissible to contrato what corporations shall file such reports, dict, change, vary. or add to the conditions plainand what they shall contain. It is entirely ly incorporated into and made a part of said

note. silent with respect to the effect of repealing

2. BILLS AND Votes_ACTIOX-DEFEXSES. section 491 on penalties incurred thereunder,

In the absence of any proof that the signer but relates to the same general subject which of a note or written instrument is unable to that section covers, provides penalties for read. an answer which admits the execution of failure to file the reports thereby prescribed,

a subscription note sued upon, but alleges that

the person procuring the note had misrepresentis no sense inconsistent with the general sar

er the conditions of the same and the extent of ing statute of 1891. and indicates no intent the liability that the defendant would incur in on the part of the Legislature to interfere signing the same, where the note is in plain lanwith any rights which attached under sec

guage and unambiguous in its terms, such an

swer will be insufficient to constitute a defense. tion 191 prior to its repeal and the enactment

(Syllabus by the Court.) of a substitute. We are therefore of the

Error from District ('ourt, Logan County; opinion that the right to recover the penalties incurred by the defendants from their

before Justice John II. Burforel. failure to file the annual report of the cor

Action by the Guthrie & Western Railroad poration of which they were directors Wils

Company against W. L. Rhodes. Judgment saved by that statute.

for defendant, and plaintiff brings error. ReCounsel for appellees challenges the find

Versed and remnandecl. ing of the trial court as to the dates when This was a civil action, tried in the dis they became directors. It appears to be con- trict court of Logan (uunty, to collect a (eded that Mr. Taggart became a director on promissory note executed by the defendant March 5, 1901, and therefore, for reasons al- in error to the plaintiff in error, of which ready stated, it is immaterial whether he be- the following is a (W: "$300.00, Guthrie. came a director on that date, instead of Fel- Okli. January 9, 1:200. On completion of the ruary 5th preceding, as found by the court. railroads of the Guthrie & Western Railway Company and the Kingfisher & Guthrie Rail- Rock Island Railroad to build into Guthrie; way Company from Kingfisher, Oklahoma, that it was stated by Henry E. Asp and sevfrom a point on the Chicago, Rock Island & eral others, afterwards incorporated under Pacific Railway at or near Kingfisher, to a the name of the Guthrie & Western Railroad point on the main line of the Atchison, To- Company, that if the citizens of Guthrie peka & Santa Fé Railway Company .at or would donate the sum of $15,000 raised by between the stations of Seward and Guthrie, subscription, the Rock Island would build for value received, in consideration of the and operate a line of railway from Kingconstruction of said railroads, I promise to fisher to Guthrie; that the advantages of pay to the order of the Guthrie & Western such a connection to the city of Guthrie were Railway Company five hundred dollars ($500.- set forth in those speeches for the purpose 00) at the Guthrie National Bank, Guthrie, of inducing those present and other citizens Oklahoma, with interest at 10 per cent. per to subscribe for said bonus; that the speakannum from completion of said railroad. I ers claimed to have information that, if the hereby waive presentment for payment, no- subscription was raised, the Rock Island tice of nonpayment, protest, and notice of would build from Kingfisher to Guthrie; protest. If suit be instituted, I agree to pay that subscriptions were then called for, and 10 per cent. additional as attorney's fee, and various persons subscribed, and that the in case of judgment said attorney's fee to name of this defendant was called, and he be included in said judgment. [10 cent Int. was requested to subscribe $500, when he Rev. Stamp.] W. L. Rhodes.” The petition said that he would subscribe $500 if one J. is in the usual form, declaring on the note, M. Brooks would do the same; that Brooks and alleging specifically that the plaintiff refused, but that several people at the ineethad fully complied with all the terms and ing cried out that Brooks would subscribe conditions of the contract.

the $500, although Brooks continued to reTo this petition an answer was filed. The fuse; that defendant does not know whether answer pleads, first, a general denial. For Brooks subscribed $500 or not, but that he a second defense the answer admits the ex- made his subscription on the condition that ecution of the note, but alleges that the ex- Brooks did so subscribe, and that he had the ecution was procured by misrepresentation impression that Brooks had subscribed the and fraud, and pleads as the facts constitut- $500; that the defendant signed the note ing the fraud that the plaintiff resides in set out in the petition in haste, and did not the city of Guthrie, and is a property holder read it, except he saw it was for the sum of and interested in the growth and develop- $500, and defendant supposed that the note ment of the city; that at the time the note conformed to the statement which had been was given the Atchison, Topeka & Santa Fé made by Mr. Asp and others at the meeting; Railroad was the only railroad running in that it was stated at the meeting that the or out of said city; that for commercial road might be built under another naine, but purposes it would tend to enhance the value it really was the Rock Island road; that at of property in the city to get new lines of the time he signed said note he believed that railroads constructed into it; that at the his subscription was for the purpose of intime the said note was given the Chicago, ducing the Rock Island road to build into Rock Island & Pacific Railway Company was Guthrie, and that he formed this opinion operating a line of railway about 35 miles from what was said at the meeting, and that west of Guthrie, and that said railroad had nothing was said at said meeting which extensive lines of railway, and was of great would intimate that the Santa Fé Railway benefit to cities into which it ran its road; had anything to do with the project, but it that at the said time property owners in the was stated that it was not a Santa Fé projcity of Guthrie were anxious to secure other ect, but a Rock Island enterprise; that de lines of railroads in addition to the Santa fendant had no information on the subject, Fé for said city, and were willing to pay except what he got at the meeting; and that money in order to get such lines into the he believed and relied on these representacity; that a short time prior to January 9, tions, and, if the representations had not 1900, public notice was given in Guthrie that been made, he would not have signed the there would be a mass meeting for the pur- note. Defendant further alleges, in this parpose of hearing a proposition submitted by agraph of his answer, that the Rock Island the Rock Island Railroad to build its line road has never built into Guthrie, and that into Guthrie; that said notice was circulat- in fact the Guthrie & Western Railway is ed by Henry Asp and J. B. Beadles, and oth- not part of the Rock Island system, but is a er persons, who acted for the subsequently branch of the Santa Fé road; that it was incorporated plaintiff ; that on the evening well known to the persons who presented the announced for the meeting the defendant and proposition to the people of Guthrie and to a large number of citizens assembled, and the defendant to raise said bonus that the persons there present, representing the inter- Rock Island road had no intention of buildest afterwards incorporated into the plain- ing into Guthrie, and that the road intended tiff, made speeches concerning the purpose to be built would be a part of the Santa Fé of the meeting and laying before the people system, and not of the Rock Island system; a proposition to raise money to induce the that the person making these representa.

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