Denver Circle R. Co. v. Nestor

Decision Date15 November 1887
Citation10 Colo. 403,15 P. 714
PartiesDENVER CIRCLE R. CO. v. NESTOR.
CourtColorado Supreme Court

Appeal from superior court of Denver.

The complaint alleges damages done to appellee's property consisting of two lots with dwelling-house and other improvements thereon, abutting on a street called 'Willow Lane,' in Witter's first addition to the city of Denver, by the construction of appellant's railroad track, and the running thereon in said street of their trains of cars propelled by steam-engines. The injuries and annoyances complained of are the excavation and obstruction of the street in front of appellee's property, so as to prevent ingress and egress to and from the same, casting upon the invading the premises with dirty steam, live cinders dust, and smoke disturbing appellee and his family day and night by the noise of the cars, and the whistles and bells of the engines, by reason whereof the safety of his property was put in danger, its convenient and comfortable enjoyment interrupted and impaired, and its value greatly diminished. A question of jurisdiction is raised here, it being claimed that the superior court was wholly without jurisdiction under the law and the constitution, to entertain the cause. The main ground of defense relied upon aside from the question of jurisdiction, is that said Witter's addition was dedicated to the city of Denver before the state constitution went into effect, and under the statutes then in force the title to the streets was thereby vested in the city in fee-simple; that the city charter, granted prior to the adoption of the constitution, empowered the city to authorize and license the construction of steam railroads in all the streets of the city, and that the city did license the defendant, by an ordinance duly enacted, to grade said street, and to lay down its track, and operate its railroad therein. It was also alleged in this connection that the established grade of the street was not altered; that appellant operated its road with care, and that the license of the city afforded it complete immunity from liability for damages on account of the construction and operation of its road. These matters were set up in the third defense, and no reply was filed thereto. The appellant not appearing at the trial, the case was tried by the court without a jury, and the judgment rendered in favor of the appellee.

J. P. Brockway, E. L. Johnson, and C. E. Gast, for appellant.

Brown & Putnam, for appellee.

BECK C.J.

The first and fifth assignments of error attack the jurisdiction and practice of the superior court. The first alleges that the court did not have jurisdiction of the subject-matter of the action; the fifth is to the effect that no term of said court existed at the time of the trial below, in October, 1884, the September term having lapsed for failure of the judge to appear on the first day of the term. That the practice provided by law for the district courts, in such cases, not being applicable to said superior courts, the clerk thereof was without any authority to adjourn the court from time to time as he did until the appearance of the judge. In the discussion of these assignments, appellant's counsel take the position that the superior court was never constitutionally clothed with any jurisdictional practice whatever. In support of this proposition it is argued that the act creating superior courts, and prescribing their powers, proceedings, and practice, is in direct conflict with the provisions of section 23, art. 5, of the state constitution, and therefore null and void. The legislative act in question is entitled 'An act to provide for the creation and organization of superior courts in cities, and incorporated towns; to prescribe the jurisdiction, powers, proceedings, and practice of such courts, and to define the duties and qualification of the judges and other officers connected therewith.' This act is composed of 20 sections, the jurisdiction and practice of said superior courts being defined in section 3, which reads as follows: 'Section 3. Such superior courts shall have original and concurrent jurisdiction within the limits of the several cities and incorporated towns for which they are created, with the district courts of the states in all civil causes, both at law and in equity, and such appellate jurisdiction in such causes as is provided by law for the district courts, and shall be governed in all proceedings, with reference to practice and pleadings by the laws now or hereafter to be enacted for the district courts. All process issued out of the superior court shall be issued and served in like manner as similar process is issued and served from the district courts of the state.' Additional appellate jurisdiction and power to regulate the practice and proceedings in other respects, not provided by law, is given in other sections. The provisions of the constitution with which the section quoted is supposed to conflict, being section 23, art. 5, are: 'No law shall be revived or amended, or the provisions thereof extended or conferred by reference to the title only, but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.' The first proposition is, the act violates the clause of the preceding section which prohibits the amending of laws without publishing at length the portion amended. A single reading of these provisions of the statute, and of the constitution, might seem, at first view, to sustain the proposition of counsel, but a careful examination of the subject, with a view to ascertain the object of the requirements, and a consideration of the consequences which would result from adopting the interpretation contended for, will show that the views of counsel cannot be sustained. Counsel is mistaken in saying that the act of the legislature in question is a direct attempt to amend all the laws relating to the district courts. It does not in terms assume to amend, or change in any particular, any law whatever. The declaration that the superior courts shall have original and concurrent jurisdiction in civil cases with the district courts of the state, within their territorial limits, is a reference to the constitution for such jurisdiction. Article 6 of that instrument confers this jurisdiction on district courts, and it is to be found nowhere else. It would seem to be an irrational construction of a constitutional provision to require the legislature, whenever it becomes necessary, in the passage of laws, to refer to that instrument for powers or procedure to execute a law, to go through the idle and senseless form of re-enacting and publishing at length the constitutional provision referred to. The appellate jurisdiction of the district courts, and the provisions concerning the practice and pleadings of said courts, are to be found in the General Statutes. And while no direct attempt was made to amend these statutory provisions by the passage of the act in question, the legal effect is an amendment thereof by implication. Amendments of this character are not within the constitutional provision which requires so much of the act as is amended to be re-enacted and published at length. Cooley, Const. Lim. 181.

But our attention is directed to another provision of said section 24, viz.: 'No law shall be * * * extended or conferred by reference to its title only, but so much thereof as is * * * extended or conferred shall be re-enacted and published at length.' This is a provision not usually found in constitutions. Considered and construed in connection with the rest of the section in which it appears, and with reference to other portions of the constitution relating to the same subject-matter, it is a wholesome provision. It is well understood by the profession that certain constitutional provisions, and especially those of sections 24 and 25 of the legislative article, and section 28 of the judiciary article were designed to remedy and prevent well-known abuses of legislation existing at the time of the framing of this instrument. These were the evils of special legislation, and the vicious practice of amending statutes by referring to the title, and then declaring that certain words and phrases appearing in certain lines and sections be stricken out, and certain other words and phrases inserted therein. The clause of section 24, last quoted, goes further than the clause previously considered, and extends to cases of amendments by implication. They were not intended, however, to apply alike to all legislative enactments, including those wherein a reference to the general laws becomes necessary for the means of enforcing and carrying their provisions into effect. Such an unrestricted interpretation is not admissible, because it would be an unreasonable construction, and one that would impose upon the people more serious evils than those sought to be cured or avoided by the several sections and clauses of the constitution referred to. We recognize the force of the maxim that if the natural signification of the words employed in volves no absurdity, the meaning apparent upon the face of the constitution is the only one intended to be conveyed, and that it is not lightly to be inferred that any portion is so ambiguous as to require extrinsic construction. We also indorse the salutary rule that the argument ab inconvenienti is not to be permitted to influence the courts to defeat by construction a constitutional mandate. It is not our purpose to defeat but to enforce the mandate in question, and to enforce it according to its reason and spirit, and the causes which led to its enactment. We agree with Judge Story that no construction of a constitutional provision is to be allowed which plainly...

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    • U.S. Court of Appeals — Eighth Circuit
    • 27 Noviembre 1907
    ... ... Article ... 20 of the Constitution of Colorado prohibited the city of ... Denver from granting any franchise relating to any street, ... alley, or public place, without an ... foreclosure sale of all the rights and privileges of the ... Denver Circle Railroad Company. The latter company was ... organized as a corporation under the laws of ... [158 F. 15] ... enter and pass through the city. Railroad Co. v. Nestor, ... supra; Railroad Co. v. Mollandin, 4 Colo ... 154.' * * * The ordinance before us granting ... ...
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    • United States
    • New Mexico Supreme Court
    • 31 Diciembre 1924
    ...not apply to statutes which are in themselves complete, though they refer to and adopt pre-existing statutes.” In Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714, is is held: “The Act of February 10, 1883, § 3, providing that in all civil cases, both at law and in equity, the superi......
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    • United States
    • North Dakota Supreme Court
    • 10 Febrero 1933
    ...41;$! $@Poch v. Taylor, Ark. , 54 S.W.2d 994;$! $@Hellman v. Shoulters, 114 Cal. 136, 44 P. 915, 45 P. 1057;$! $@Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714;$! $@Lake v. State, 18 Fla. 501;$! $@State ex rel. Turner v. Hocker, 36 Fla. 358, 18 So. 767;$! $@People ex rel. Klokke v.......
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    • United States
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    • 10 Febrero 1933
    ...311, 22 S.W.(2d) 41;Poch v. Taylor (Ark.) 54 S.W.(2d) 994;Hellman v. Shoulters, 114 Cal. 136, 44 P. 915, 45 P. 1057;Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714;Lake et al. v. State, 18 Fla. 501;State ex rel. v. Hocker, 36 Fla. 358, 18 So. 767;People ex rel. v. Wright, 70 Ill. 38......
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