nature of the institutions themselves, since all mere municipal regulations must, from the nature of things, be subject to the absolute control of the government. Such institutions are the auxiliaries of the government in the important business of municipal rule, and cannot have the least pretension to sustain their privileges or their existence upon anything like a contract between them and the legislature, because there can be no reciprocity of stipulation, and because their objects and duties are incompatible with everything of the nature of contract." See, also, McKim v. Odom, 3 Blands. Ch. 417; Berlin v. Gorham, 34 N. H. 266; Robertson v. Rockford, 21 Ill. 451; People v. Wren, 4 Scam. (Ill.) 273 ; Sloane v. The State, 8 Blackf. 361; Girard v. Philadelphia, 7 Wall. 1; Barnes v. Dist. of Columbia, 91 U. S. 540.

In People v. Hall, 8 Colo. 497, it was said: "The general assembly is omnipotent as to municipal corporations in this state, except as limited or controlled by the constitution. It calls them into being and endows them with whatever powers and privileges they possess, and may at any time absolutely end them."

The power to create municipal corporations by special charters is clearly given by the constitution in article 15, section 2, and absolute control over them, extending to the right to alter, revoke, or annul any charter, is given by article 15, section 3. What powers may be granted and what withheld, and what restrictions shall be imposed in the exercise of the powers granted, are clearly within legislative control, and the right to limit and circumscribe granted powers by repeal of former grants is unquestionably with the legis lature.

When the sale of intoxicating liquors is not prohibited by the constitution, the legislature may confer upon a municipality exclusive power to regulate and license the traffic. Huffsmith v. People, 8 Colo. 175; State v. Andrews, 11 Neb. 523; Bennett v. People, 30 Ill. 389; Coulterville v. Gillen, 72 Ill. 599. "But general laws relating to the subject are not impliedly repealed by statutory or charter provisions enabling

a municipal corporation to pass ordinances regulating the business. 2 Beach on Corp., sec. 1264; Gardner v. People, 20 Ill. 430; Loeb v. Attica, 82 Ind. 175; New Hampton v. Conroy, 56 Iowa, 498.

In article 6, section 11, of the constitution, it is declared: "The district court shall have original jurisdiction of all causes, both at law and equity, and such appellate jurisdiction as may be conferred by law."

Whether or not the legislature can delegate the constitutional power and functions by it conferred upon the district court, and provide that an inferior municipal court shall be invested with exclusive jurisdiction, to the exclusion of the district court, is a question that we are not called upon to determine, but we are satisfied that a failure or refusal of the legislature to divest that court of its general jurisdiction, and confer it exclusively upon another court, violates no constitutional provision, and that all grants to a municipal corporation are to be strictly construed, and that general laws prevail unless abrogated by specific and exclusive grants of power to the corporation.

It follows that the reservation or restriction upon exclusive jurisdiction of municipal corporations by the amendment of the charter in 1891, that "all laws of the state concerning Sunday closing shall be in force in said city," was not a violation of the constitution, but a specific reservation of the power, not delegated to the municipality.

It is urged that it violated article 6, section 28, of the constitution, which declares "that all laws relating to courts. shall be general and of uniform operation through the state." The law under which the appellant was tried and convicted was the general law of the state, the penalty the same, and the method of procedure the same throughout the entire state, unless, as claimed, in certain localities exclusive jurisdiction had been delegated to municipal authorities.

There is much force in the argument that the penalty for the same offense is not uniform, but, if as claimed, certain municipalities have made the penalty less than that of the

6 170 8 276

general law, the trouble is with the city ordinances, and the fact that they have made a lighter penalty could not affect the validity of the general law. Uniformity of penalty for the same offense seems to have been contemplated by the constitution and should prevail, but the result could only be attained by legislation. Courts are powerless, unless the result could be achieved by declaring all ordinances where the penalty was less than the laws of the state invalid and unconstitutional. Those convicted under ordinances where the penalty is lighter would hardly set up the inequality.

The only question presented being that raised by the plea, and the only contention that the act of 1891 was unconstitutional, by reason of the reservation of jurisdiction to the state courts, the judgment will be affirmed.

Affirmed.

SOLOMON V. SALY.

1. ATTACHMENTS-MONEY IN LIEU OF PROPERTY.

A defendant, if he does not desire his property seized and taken into custody under a writ of attachment, may turn over sufficient money to satisfy the claim and costs, and have it subjected to the writ to abide the decision upon the attachment.

2. PRESUMPTION.

In the absence of a bill of exceptions containing the evidence upon an issue it will be presumed that the order complained of was warranted by the facts.

3. EXCEPTIONS, HOW PREserved.

Exceptions can be preserved only by bill of exceptions.

Appeal from the County Court of Arapahoe County.

Mr. ALFRED MULLER, for appellant.

Mr. J. E. ROBINSON, for appellee.

THOMSON, J., delivered the opinion of the court.

Solomon commenced an action against Saly, before a justice of the peace, to recover an indebtedness of $95.00, and caused a writ of attachment to be issued, by virtue of which certain property of the defendant was seized. The return of the constable recites the levy, and the release of the attached property, upon payment to the justice of $105. The affidavit in attachment was traversed and a trial of the issue thus made was had, resulting in the dissolution of the attachment. Judgment was rendered in plaintiff's favor upon his cause of action. The plaintiff appealed the cause to the county court. The money deposited with the justice followed the appeal. In the county court the defendant moved for leave to file a forthcoming bond, and for an order releasing the money deposited upon the filing of the bond; and, by agreement of counsel for the respective parties, this motion was set for hearing. Afterwards, by agreement of parties, the hearing was postponed to a subsequent time. On the day fixed by the last order, the plaintiff filed a motion, stating that it was based on "the returns and writs in the case," to strike out the traverse of the affidavit in attachment for the reason that it was irrelevant and immaterial. No action appears to have been taken upon defendant's application for leave to file a forthcoming bond.

A trial was had of the issue made by the traverse, which resulted in an order dissolving the attachment and judgment against the plaintiff for costs. Judgment was then given in his favor for the amount of his claim. This appeal is from the judgment against the plaintiff upon the attachment.

The appellant assigns for error the denial of his motion to strike out the traverse to the affidavit in attachment, and the judgment against him upon the issue made by the traverse. There is no bill of exceptions in the record, and we do not. know upon what evidence the court sustained the traverse. We must therefore assume that it was sufficient.

The motion to strike, upon its face, is not predicated upon

These are that the

any tangible reasons. Those assigned are that the traverse is irrelevant and immaterial; but it is simply a denial of the grounds of attachment set forth in the affidavit, and is therefore both relevant and material. In counsel's argument, however, he sets forth the reasons in full why, in his opinion, the motion should have been sustained. statutory method of releasing attached property is by the giving of a forthcoming bond, that money cannot be received in lieu of a bond, and that its payment to the justice, and the resultant release of the property, was a conclusive admission of every fact necessary to the recovery of the judgment, and the sustaining of the attachment. The difficulty here is that the record seems to justify an inference that the money was not intended to take the place of a bond, or to be applied in payment of any judgment which might be rendered, but as a substitute for the property itself; and that by virtue of the arrangement under which it was deposited, the writ of attachment operated upon it instead of the property. There is no reason why a defendant, if he does not desire his property seized and taken into the custody of an officer, may not turn over sufficient money to satisfy the claim and costs, and have it subjected to the writ to abide the decision upon the attachment. The subsequent proceedings indicate that this was the purpose for which the money was deposited, and that the plaintiff acquiesced in its substitution for the property. The proceedings before the justice were conducted upon the hypothesis that it was the money which was at tached, and the first time this was questioned by the plaintiff was in the county court, after the defendant moved to release it. If the question was a proper subject of investigation upon such a motion, it could have been investigated as well in the trial of the issue made upon the affidavit for attachment; and it will be presumed that at that trial everything was inquired into affecting the attachment and the rights of the parties under it, and that the order dissolving the attachment was warranted by the facts. We would therefore not feel authorized to disturb the judgment, even