347 et seq. Thus we have a judicial decìsion of our own state, limiting somewhat the phrase "all elections," as used in article 7

or

In the absence of any specific constitutional provision to the contrary, the legislature may choose any appropriate agency whereby to change, modify, or disincorporate municipal corporations. 1 Dill. Mun. Corp. (4th Ed.) §§ 54, 63, 185; People v. Fleming, 10 Colo. 553, 16 Pac. 298; Cheaney v. Hooser, 9 B. Mon. 330; Marshall v. Donovan, 10 Bush, 681; Buckner v. Gordon, 81 Ky. 665; Blanchard v. Bissell, 11 Ohio St. 96; Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742. Coun sel for plaintiffs in error refers to the constitutional provision that "the general assembly shall provide by general laws for the organization and classification of towns and cities." Const. art. 14, § 13. Such provision does not, however, prohibit the dissolution of towns or cities thus organized by any appropriate exercise of legislative power. We find nowhere in the constitution any provision forbidding the submission of the question of dissolution or annexation to the determination of taxpaying electors. Such electors presumably have greater interest than others in questions affecting public indebtedness rate of taxation in the municipality where their property is, taxable. As we have seen, the qualifications prescribed by the act are analogous to those prescribed in the constitution itself where similar interests are at stake. These views are not in conflict with the opinion in Re Extension of Boundaries of City of Denver, 18 Colo. - 32 Pac. 615. The precise point decided in that case is summed up by the court as follows: "In our opinion, the power of the legislature to annul the corporate existence of the adjoining towns by an amendment to the special charter of the city of Denver, as provided by the bill submitted, must be denied." The court did not hold that the legislature was powerless to disincorporate a town or city existing under general laws, nor that a majority vote of all the qualified electors of such a municipality was essential to its disincorporation. The case at bar is unlike the case of State v. Williams, 5 Wis. 308, where the constitution itself expressly provided who should be entitled to vote at an election for the removal of a county seat. Section 5, art. 11, of our constitution contains a similar provision in relation to voting for the creation of a debt for public buildings. Neither the Wisconsin case nor section 5 militates against the view we have taken. We do not feel justified in declaring the act unconstitutional on the ground that the question of annexation is required to be submitted to the determination of taxpaying electors.

4. It is further contended that the annexation act is local or special legislation, and hence in conflict with section 25, art. 5, of the constitution. The only specially enumerated case forbidden by section 25 to which the present act can be compared is "regulat

ing county or township affairs." The present act affects and regulates the affairs of towns and cities; but not the affairs of townships. The term "township" in the legal nomenclature of this state refers to an involuntary corporation or quasi corporation, as a subdivision of a county, and not to a voluntary municipal corporation, such as an incorporated town. County Court v. Schwarz, 13 Col. 291, 22 Pac. 783; Booth v. County Court, 18 Colo., 33 Pac. 581; 1 Dill. Mun. Corp. # 22, 23; Kelly v. Meeks, 87 Mo. 396. The act is general in form. Of necessity it has some special characteristics. But, considering the subject-matter of the legislation, we are not prepared to say that a more general law could be made applicable; hence, its enactment is not inhibited by the latter clause of section 25. In general, the power of a state legislature to pass an act will be presumed to exist, unless the contrary clearly appears.

5. It is urged that the act is unconstitutional because of certain excise provisions. The objection is that it continues in force the ordinances of an annexed town or city prohibiting or regulating the sale of intoxicating liquors within the original limits of such town or city, and that such ordinances cannot be repealed without the consent of the voters of such annexed territory. This objection is not maintainable. It has never been questioned in this state, so far as we are advised, that the municipal authorities of incorporated towns and cities may be invested with power to license, regulate, prohibit, or suppress the traffic in intoxicating liquors, subject to the general laws of the state. The controversy has been whether the local municipal government might nullify or suspend the general laws of the state relating to tippling houses within the limits of such towns or cities. See Huffsmith's Case, 8 Colo. 175, 6 Pac. 157; also, Heinssen's Case, 14 Colo. 237, 23 Pac. 995. In this state the policy of our legislation has been to invest local municipal governments with large powers in respect to the traffic in intoxicating liquors; and the different towns and cities have resorted to high license, low license, local option, prohibition, or partial prohibition, as the popular will has been manifested through the local municipal officers; and so dramshops have been permitted in one part of a city or town and prohibited in another part. For example, in Denver, sometimes by the charter, sometimes by ordinance, the petition or consent of a majority of the property owners within restricted limits has been made a condition to the licensing of saloons; and again, the sale of intoxicating liquors has been forbidden within a certain distance of public schools and churches. The legality of such conditions and restrictions has never been judicially denied, so far as we are ad vised. The objections to the excise provisions of the act in question do not render the act unconstitutional, nor do they present any insuperable obstacle to annexation. They

need not, therefore, be further reviewed in the present proceeding. People v. Cregier, 138 Ill. 401, 28 N. E. 812.

6. It is objected that people living in the original territorial limits of an annexed town or city can have no representation in the board of aldermen of the city to which such town or city becomes annexed. This objection is not well founded. Provision is made for such representation, though a case may occur in which such representation may be suspended for a brief time. Compare section 18 of the act under consideration with section 2 of the Denver Charter of 1893, (Sess. Laws, p. 135.) The objection cannot be considered serious; it does not affect the constitutionality of the act. No constitutional provision has been cited making it imperative that there shall be local aldermanic representation in towns or cities in this state. The cases cited by counsel for plaintiff in error on this point bear little analogy to the present case. Warren v. Mayor, 2 Gray, 84; People v. Maynard, 15 Mich. 463; Lanning v. Carpenter, 20 N. Y. 447.

7. It is contended that section 10 of the annexation act violates certain constitutional provisions relating to taxation and municipal indebtedness. The section reads as follows: "Sec. 10. Whenever in pursuance of this act any town or city existing under general laws shall be annexed to any city existing under a special charter, all rights, causes of action, records, uncollected revenues and other property of the town or city so annexed shall accrue to and become the property of the city so enlarged; and all valid indebtedness of any town or city so annexed, and of the city existing under a special charter, shall be paid by general taxation upon all the taxable property within the city existing under a special charter, including the territory formerly included in the town or city so annexed. At least a proportionate share of the moneys of the city so enlarged, available for water service, lights and other public improvements, shall be expended each year within the territory formerly included within the town or city so annexed, based upon the assessed valuation thereof; and the water and light service of any town or city so annexed shall not be curtailed after such annexation." Sess. Laws 1893, p. 455. Unless the foregoing section conflicts with some express provision of the constitution, there can be no doubt of its wisdom and propriety. Speaking upon this subject, Mr. Justice Dillon says: "It is usual, however, for the legislature, on the change or division of municipal and public corporations, to make provision concerning existing indebtedness; and its power to do so, unless restrained by special constitutional provision, is clear and ample." 1 Dill. Mun. Corp. § 173.

The constitutional provisions which section 10 of the annexation act is supposed to violate will be briefly noticed.

Of article 10, § 7. It is a sufficient answer to the objection based on this section to re mark that the general assembly has not by section 10 of the annexation act undertaken to "impose taxes for the purposes of any county, city, town, or other municipal corporation." On the contrary, it has by said section vested in the corporate authorities of the surviving city the power to assess and collect taxes throughout its entire extent, including its enlarged boundaries, for all the purposes of such enlarged corporation.

Of article 11, § 1. This section is to be construed as prohibiting a town or city by its own voluntary corporate act from pledging its credit to, or becoming responsible for, any debt, contract, or liability in aid of a third party. Certainly, in the case at bar, the town of Valverde is not called upon to pledge its credit to, or become responsible for, any person, company, or corporation. If annexation takes place, the town of Valverde ceases to exist as a municipal corporation. It is true that by annexation the city of Denver becomes responsible for the municipal indebtedness of Valverde, if any there be existing when annexation takes place; but by annexation the territory of Valverde is added to the city of Denver, and becomes, ipso facto, an integral part of its new and enlarged boundaries, and so the indebtedness for which the enlarged city becomes responsible is its own indebtedness for and on its own account, and is no longer a debt or obligation of a third party. It may be observed also in this connection that the corporate property of Valverde in case of annexation becomes the property of the enlarged city the moment annexation takes place.

Of article 11, § 8. It is contended that section 10 of the annexation act contains a threefold violation of this section. The argument is that it affects, or may affect, the rights of the town of Valverde, of the city of Denver, and of the creditors of both municipalities. It is true, taxation of property situate in the territory formerly embraced within the corporate limits of Valverde or of the city of Denver may be increased or decreased by annexation, though it is not made to appear that there will be any change. In any event, section 8 does not contain any guaranty that there shall be no increase of tax. ation in case of the enlargement of municipal boundaries, nor has our attention been called to any other constitutional provision to that effect. By annexation no debt is contracted by loan, either by the town of Valverde or by the city of Denver; nor is any debt contracted at all by the town of Valverde as a municipal corporation, since the town, as such, ceases to exist as soon as dissolution and annexation take place. The annexation of Valverde may increase or it may decrease the taxes of those owning property situate within the original limits of Valverde or of Denver. It may or may not subject property within such limits to pre

existing municipal indebtedness. In any event, these circumstances constitute no legal or constitutional objection to annexation. Objections to as well as arguments for annexation based upon such supposed increase or decrease of taxation rest wholly upon grounds of expediency, and do not affect the legal or constitutional rights of either municipality or of the residents thereof. Upon this subject Judge Dillon speaks with his usual clearness as follows: "Not only may the legislature originally fix the limits of the corporation, but it may, unless specially restrained by the constitution, subsequently annex, or authorize the annexation of, contiguous or other territory; and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory. And it is no constitutional objection to the exercise of this power of compulsory annexation that the property thus brought within the corporate limits will be subject to taxation to discharge a preexisting municipal indebtedness, since this is a matter which, in the absence of special constitutional restriction, belongs wholly to the legislature to determine." 1 Dill. Mun. Corp. (4th Ed.) § 185. The rights of creditors are amply protected by the annexation act. They have the joint resources of the two municipalities as security for the municipal indebtedness of each. They have a responsible municipal government upon which every kind of legal process may be had for the collection and enforcement of their respective claims. In case of antecedent indebtedness contracted by loan in pursuance of an ordinance of any town or city, such ordinance, by virtue of the constitution, survives all changes of organization, government, or boundaries which may befall the municipality, until such indebtedness shall have been fully paid and discharged. In case such town or city be dissolved by annexation to another, the municipal officers of the surviving corporation may be compelled by mandamus to levy and collect taxes for the payment of such indebtedness, the same as if they were officers of the original corporation; and for the purpose of more completely protecting, paying, and discharging such indebtedness such officers may, if necessary to the security of creditors, be required to levy, collect, and keep separate the taxes collected from the property situate within the limits of the original municipalities, respectively, any law of the state to the contrary notwithstanding. The constitution of the United States provides that no state shall pass any law impairing the obligation of contracts. This applies to the constitutions of the several states as well as to statutes enacted by state legislatures. The constitution of this state contains a similar provision. It is true, section 3, art. 10, of our constitution provides that all taxes shall be uniform upon the same

class of subjects within the territorial limits of the authority levying the tax." [ view of this provision, it is urged with much force that the annexation act cannot be upheld, since the contingency may occur in which the municipal authorities of the enlarged city may have to depart from the uniformity rule in levying taxes. For example, original Valverde property may have to be subjected to a certain rate of taxation to meet original Valverde indebtedness, while original Denver property may have to be subjected to a different rate of taxation to meet original Denver indebtedness. Re mote and improbable as such a contingency may be, nevertheless, if it should occur, all state laws, constitutional as well as statutory, would have to give way to the paramount rule that no state law can be suffered to impair the obligation of contracts; and thus the uniformity rule of taxation might be partially suspended in order to maintain contract obligations. But we need not, for this reason, hold section 10 of the annexation act void. The rule prescribed in that section may be followed, unless some creditor, for the purpose of enforcing the payment of his loan, contracted in pursuance of an irrepealable ordinance, should invoke the rule speci fied in section 8, art. 11, of the constitution. In such case the municipal authorities of Denver might be compelled to act as officers of the original town of Valverde, or of the original city of Denver, (as such town or city existed when such loan was contracted,) and in such official capacity might be required to levy and collect taxes from such original municipality, and apply the same to the payment of such loan. Thus section 8, art. 11, being connected with the obliga tion of the loan, would be held superior to section 3, art. 10, as well as superior to the annexation statute. Contract obligations are of paramount importance. 1 Dill. Mun. Corp. (4th Ed.) §§ 170-174 inclusive; Cooley Const. Lim. (6th Ed.) p. 351; Mount Pleasant v. Beckwith, 100 U. S. 514; North Yarmouth v. Skillings, 45 Me. 133; Blanchard v. Bissell, supra; McGurn v. Board of Ed., 133 IL 122, 24 N. E. 529; County of San Mateo v. Southern Pac. R. Co., 13 Fed. 722; People v. Mayor of Chicago, 51 Ill. 36; In re Town of Flatbush, 60 N. Y. 406; People v. Morgan, 90 Ill. 566; Meriweather v. Garrett, 102 U. S. 473.

Of article 15, § 12. The annexation act is not obnoxious to this section. A legislative act, whereby one municipal corporation be comes annexed to another, forming one consolidated town or city, the surviving municipality assuming all the corporate debts and taking all the corporate property of the annexed municipality, together with the authority to levy and collect taxes throughout the enlarged municipality, is not an act retrospective in its operation; nor does it impose on the people of either municipality a new liability in respect to transactions or consid

hay, and other inflammable vegetation to grow and accumulate upon its right of way, and did negligently set fire to the same by means of sparks and coals of fire dropping thereon from its engines while engaged in operating its railroad; (3) that it set out the fire upon its right of way, and so negligently and carelessly watched and tended it that it came to complainant's lands, and consumed the grass growing thereon; (4) that it was negligent in failing to supply its engines with proper spark arresters, and to properly handle its engines so as to prevent the emission of sparks of unusual size and in unusual quantities, by reason of which negligent failure fire was kindled upon its right of way, spread to complainant's lands, and consumed his grass, etc. The railway company's answer was simply a general denial of all matters alleged in the petition. There was a trial before a jury, and verdict for plaintiff below, and judgment thereon. Defendant below made its motion for a new trial, which was overruled, and the case is before us upon petition in

error.

In the allegations of the petition setting forth the first acts of negligence complained of as hereinbefore stated, there was an evident attempt to bring this cause within the operation of sections 1947 and 1949 of the Revised Statutes of Wyoming, as amended by chapter 34, pp. 156, 157, Sess. Laws 1890-91. Section 1947 makes it the duty of every railroad company operating a line of railway within this state to burn, between the 1st of September and the 1st day of November in each and every year, as a fire guard, all grass and vegetation growing upon its right of way for a distance not exceeding 200 feet on both sides of its roadbed, in such manner as to destroy the same, and prevent fires spreading therefrom to adjacent lands. Section 1949 provides that every such railroad company "shall be liable for all damage by fire that is set out resulting or caused by operating any such line of road or any part thereof, when such railroad company has failed to burn a fire guard as provided in section 1947." These sections were enacted January 8, 1891. Prior to that date the statute required railroad companies to plow, as a fire guard, a strip of land six feet in width upon the exterior of its right of way, the liability for want of compliance with the statute being the same as now; the effect of the amendment being to substitute one method of precaution for the other. It is not charged that the railway company failed to comply with the statute relating to plowing fire guards; and inasmuch as the period from September 1, 1891, to November 1, 1891, was the first period during which it was the statutory duty of the company to burn off its right of way, I am unable to conceive how it is possible to bring a loss

from fire occurring on October 20, 1891. within the operation of the statute. The statute makes it the duty of the company to burn off its right of way at some time between September 1st and November 1st, and imposes liability for noncompliance; and certainly the statute is fully complied with if at any time between those dates the right of way is burned off as directed, it matters not whether it be done on Oc tober 31st or at an earlier day. And, this being so, there could be no liability under this statute on the day the fire complained of occurred, viz. October 20, 1891, because the company had the unquestionable right under the statute to delay burning off its right of way until the 31st day of October, 1891; and hence it follows that this transaetion is in no way affected by the statute referred to, but is to be determined solely from a consideration of the common-law liability and duty of the railway company, and such was the view taken of the matter by the court below, correctly, as we think.

Counsel for plaintiff in error in their brief, and also at the argument, presented five errors alleged to have been committed by the trial court at the trial, four of which are based upon the alleged erroneous admission of testimony, and one upon an instruction to the jury. We will confine ourselves to a consideration of these alleged errors.

swer:

It is urged-First, that the court erred in permitting a witness for plaintiff to state, in answer to a question pertinent to the re ply, that he had examined the right of way in the vicinity of the fire, and from the appearance he did not think it had been regularly burned over; and, second, that the court erred in permitting the plaintiff, testifying in his own behalf, in reply to the question: "But as to the entire right of way for two hundred feet on each side of the track. had that been plowed over, and what do you mean by a fire guard having been plowed? State that a little more fully,"—to an"The fire guard was five furrows wide; that is, they intended to plow, and did plow, in places, and in other places the ground was so hard and dry they couldn't get a plow to go into the ground. The fire guard was plowed at the outside limit of the right of way." As to these alleged er rors it is claimed that they were calculated to mislead and confuse the jury,-the first question, upon the claim that it became the duty of the company to burn the vegetation from the right of way prior to October 20 1891, the day the fire was set out; and the second question, upon the duty of the defendant to plow a fire guard. No complaint having been made of any failure on the part of the company to comply with the law relating to plowing of fire guards, nothing in relation thereto was in issue. As to the first question, relating to the burning of the right of way, I do not think that in view of the fact that the court expressly charged the