was necessary to a decision of the case, and that it was construed adversely to appellant.

Error to court of appeals.

Proceeding by Nathan S. Hurd against James N. Carlile, treasurer, for a writ of mandamus to compel the payment of certain warrants. In the district court a demurrer to the petition was overruled, and judgment entered for petitioner. The court of appeals reversed the judgment, and rendered judgment for defendant, (31 Pac. Rep. 952,) and the petitioner sued out a writ of error. Affirmed.

The other facts fully appear in the following statement by GODDARD, J.:

This proceeding was instituted by Hurd in the district court of Arapahoe county, for a writ of mandamus to compel Carlile, as state treasurer, to pay certain warrants. The issuance of an alternative writ was waived, and demurrer was interposed, upon the ground that the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the writ ordered. From this judgment Carlile sued out a writ of error from the court of appeals. That court reversed the judgment of the district court. The writ of error from this court was sued out to review that judgment.

M. B. Carpenter, for plaintiff in error. J. H. Maupin and Eugene Engley, Atty. Gen., for defendant in error.

GODDARD, J., (after stating the facts.) Our jurisdiction to review the judgment of the court of appeals is challenged by motion to quash the writ of error from this court upon the ground that the judgment of the court of appeals is final, and cannot be reviewed by this court. The right of this court to review judgments of the court of appeals lies only "where the judgment exceeds $2,500, exclusive of costs, or where the controversy involves a franchise or freehold, or where the construction of a provision of the constitution of the state or the United States is necessary to a decision of the case." 991 It is conceded that this action does not come within the first two classes. Does it fall within the third? In other words, was the construction of a constitutional provision essary to a decision of the case? We think the question must be answered in the negative. The judgment of the court of appeals was based entirely upon the ground that he warrants in question were invalid, having been issued for disbursements that were unauthorized by law, because made by the deputy of insurance,

nec

'Laws 1891, p. 118, § 1, limits the jurisdiction of the supreme court on appeal to cases where the amount involved exceeds $2,500, except where the matter in controversy relates to a franchise or freehold, or where the construction of a constitutional provision is necessary to the determination of the case.

outside of the limits of the state. The constitutionality of the insurance act was not questioned, and the decision involved only an interpretation of that act. While the attorney general contended that the warrants should not be paid for the further reason that no appropriation had been made for their payment, the court of appeals did not decide that question, as clearly appears from the opinion. On this point the court said: "The case has been fully disposed of by the antecedent discussion, and a determination of this constitutional question is wholly unnecessary. * We therefore

do not determine that question in this case." This is certainly decisive of the controversy here. To entitle a party to a review of a judgment of the court of appeals upon the ground assigned it is essential that the construction of a constitutional provision is necessary to a decision of the case by that court, and such construction must be adverse to such party. In this case plaintiff in error does not predicate his right to this review because the court of appeals decided a constitutional question adversely to him, or upon the ground that the construction of any constitutional provision by this court would relieve him from the judgment, but to obtain a construction of the insurance act. We are without jurisdiction to entertain the case for that purpose. Motion to quash sustained. Writ of error dismissed, and cause remanded.

DOHERTY v. DOE.

(18 Colo. 456)

(Supreme Court of Colorado. May 15, 1893.) CONTRACT-CONSIDERATION STATUTE OF FRAUDS -MODIFYING CONTRACT.

1. Where a lessee, before the expiration of a lease, has subjected himself to damages by failure to pay the rent, and the lessor waives the conditions of the lease, and agrees to a reduction of the rent if the lessee will continue to occupy the premises, and the lessee agrees to continue to occupy them at the reduced rent, the agreement to continue the occupancy is a sufficient consideration for the agreement to reduce the rent.

2. Where a written lease has less than one year to run, a modification of same need not be in writing.

3. When the terms of a written agreement, which, by the statute of frauds, is required to be in writing, are modified by parol, and, as so modified, have been fully carried out, the obligation is discharged.

Error to district court, Arapahoe county.

Action by William F. Doherty against Sylvania C. Doe for rent. Judgment was rendered for defendant, and plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by HAYT, C. J.:

By stipulation this case was referred to I. E. Barnum, Esq., as referee, to determine the facts and the law. Upon the evidence adduced before him, the referee returned the following findings of fact, and directed

judgment to be entered in favor of defendant: "First. That on the twenty-fifth day of February, 1886, the plaintiff, William F. Doherty, was the equitable owner of blocks 10 and 11, Idaho Springs, Clear Creek county, state of Colorado, except the east one-half of lot 1, in said block 11, and that the legal title of said property was in one B. B. Healy, who held the same by a deed absolute in form, but which was, in fact, a mortgage to secure an indebtedness from Doherty to Healy. Second. That, by an agreement between Doherty and Healy, Healy was to have exclusive control and charge of the property, rent it, collect the rent, and apply it on the interest on Doherty's indebtedness to him, and the surplus, if any, was to be applied on its principal. Third. That on the twentythird day of February, A. D. 1886, said Healy entered into a lease of said property, with the buildings thereon and improvements, also of the furniture in said buildings, with one Gertrude M. Stanton and Sylvania C. Doe, the defendant herein, for a period of two years from the first day of April, 1886, with the privilege of a third year if the lessees should so elect. That the rent to be paid was the sum of eighteen hundred dollars per year, payable as follows, to wit: For the first year, one hundred and twenty-five dollars per month, payable at the end of each and every month during the first year; and said lessees shall expend a sum on said buildings, on repairing and improving the same, that will be equal to twenty-five dollars per month for said first year; and for the remainder of the term the less es shall pay one hundred and fifty dollers per month at the end of each and every' month, as stated in said lease. That it was also provided in said lease as follows: 'It is also agreed that the lessor herein may build upon the vacant lots, hereby leased, as many cottages and buildings as he shall see fit; and the said lessees shall have the option of leasing the same upon such terms as shall hereinafter be agreed upon by the lessor and lessees. The ground rent of said cottages and buildings to be free to lessor.' That said cottages were finished so that the lessees took possession of them May 1, 1886, under an agreement to pay rent for the whole of them at one dollar per day. No question is raised but what the lessees made repairs during the first year to the extent of twenty-five dollars per month for the year. Fourth. That said property was hotel property, and that on the first day of April, 1886, said lessees entered into possession thereof, and began running the hotel. Fifth. That, at the time of making said lease, the defendant herein knew that Doherty had some interest in said property, but did not know what or how it was. Sixth. That on the eighth day of November, 1886, for a valuable consideration, Gertrude M. Stanton assigned all her interest in said lease to said Sylvania C. Doe. Seventh. That after the

assignment the defendant ran behind in her rent, and that she was unable to pay the same from the proceeds of the business, and that about the month of September, 1887, she and said Healy made a modification of the lease as to the rent to such an amount as she should be able to pay; and that thereafter she went on with the new business until the month of February, A. D. 1889, when Healy and the defendant met, and made a settlement in full of all of the matters involved under the lease for the sum of three thousand nine hundred and thirtysix dollars and fifty-six cents, which amount she paid to him in settlement thereof. That the amount which would have been due, according to the terms of the original lease, was the sum of five thousand nine hundred and eighty-four dollars, including the rent for the cottages. That the amount paid by defendant was paid during the term, and at time of settlement. Eighth. That the plaintiff at one time consented to a reduction of the rent, but I am unable to find the year in which it was done, and find that he did not know, at the time of giving such consent, that the defendant was then in arrears on her rent. Ninth. That after the settlement between Healy and the defendant, and after payment to him of the amount agreed on in the settlement, Healy assigned to the plaintiff all of the rent then due on the said lease; said assignment being dated February 26, 1889." The district court, after argument, approved the conclusions of law and fact, and entered judgment for the defendant.

J. F. Tourtellotte and W. F. Hughes, for plaintiff in error. M. B. Carpenter and A. D. Bullis, for defendant in error.

HAYT, C. J., (after stating the facts.) Plaintiff in error questions certain of the findings of fact made by the referee, but upon careful examination we think the evidence fully sustains such findings. The salient points upon which the decision must turn in our opinion are not contradicted. These are that Healy held the legal title to the property, with authority to control and manage the same, with power to lease, collect the rents, and apply the same in satisfaction of his claim. In pursuance of this authority he did execute a written lcase of the property to defendant in error, and afterwards, finding that she was unable to pay the stipulated rent, he agreed to a reduction of the same. It further appears that de fendant in error paid the entire rent, calculated at the reduced rate, and that she had a final settlement of the matter with Healy before the lease was assigned to Doherty. It is contended that the parol promise of a reduction is without consideration, and also that it falls within the statute of frauds. The defendant in error, by refusing to perform the written contract, subjected herself

to such damages as might be sustained by the lessor. He, however, elected to waive the written lease, and she agreed to continue the hotel business under a promise of a reduction of the rent. This was a sufficient consideration for the promise. Munroe v. Perkins, 9 Pick. 798. Is the oral agreement void, by reason of the statute of frauds? The referee fixed the time at which the lease was modified by parol at the month of September, 1887. At this time more than one year of the two-year term fixed by the lease had expired, and it has been held that a modification by parol for a period less than one year is not within the statute of frauds. Smith v. Devlin, 23 N. Y. 363. We prefer, however, to rest the decision upon another principle of the law of contracts. This may be stated as follows: When the terms of an instrument required to be in writing under the statute of frauds are afterwards modified by parol, and as so modified have been fully carried out, the obligation is discharged. Bishop, in his work on Contracts, at section 135, says: "If a parol agreement rescinding a specialty is fully executed, it will be effectual." And in the well-considered case of Long v. Hartwell, 34 N. J. Law, 116, it is said: "A contract under the dominion of the statute of frauds can be no more se cure against invasion by parol than a sealed instrument." See, also, Munroe v. Perkins, supra; Lattimore v. Harsen, 14 Johns. 330; Lawrence v. Dole, 11 Vt. 549; Canal Co. v. Ray, 101 U. S. 522; Dickerson v. Commissioners, 6 Ind. 128; Phelps v. Seely, 22 Grat. 573; Dearborn v. Cross, 7 Cow. 48; 1 Greenl Ev. (14th Ed.) § 303. Healy, at the time he assigned the lease, had no cause of action upon the same against defendant in error, and his assignee, Doherty, therefore took nothing by the assignment. The judgment is affirmed.

(18 Colo. 568)

PEOPLE ex rel. CONNOR v. STAPLETON et al.

(Supreme Court of Colorado. May 15, 1893.)

CONTEMPT-NEWSPAPER PUBLICATION.

1. A newspaper article implying that the supreme court has been induced, by improper influence, to delay rendering a decision, will render the editor and manager of such paper liable to punishment for contempt.

2. The court's power to punish for contempt is not limited to the cases specifically enumerated in the Code of Civil Procedure.

Petition on the relation of Charles Connor for contempt proceedings against William Stapleton and Kemp G. Cooper.

The facts necessary to an understanding of the opinion are as follows:

A little more than three years ago, James Connor, Charles Connor, and James W. Marshall, having been convicted in the district court of Arapahoe county for conspiracy, and sentenced to a term of imprisonment in

the county jail, brought the record of such conviction to this court for review. Upon examination of the record, it appearing probable that error prejudicial to the legal and substantial rights of the accused had been committed on the trial, a supersedeas was granted, and the cause was regularly docketed. The record was very voluminous. It was four months before the abstract and brief were filed in behalf of the accused. No brief in behalf of the people was filed until more than a year and a half after the cause was docketed. Neither party ever filed any petition, or made any motion asking to have the cause advanced. The cause was regularly reached for final hearing, and was placed upon the calendar for oral argument with other causes, in March last. Counsel for the accused then appeared and argued the cause. No one appeared in behalf of the people. The legislature was then in session, and frequently requested opinions from this court. Many important causes were then under advisement, so the cause could not be immediately taken up and disposed of. Not long after the oral argument the municipal election occurred in the city of Denver, April 4, 1893. While the Connor Case was still under consideration by the court, Charles Connor, by a sworn petition presented to this court by his counsel, Mr. Carpenter, set forth, among other things, the following:

That on April 14 and 15, 1893, the Denver Republican was a newspaper published in Denver, and having a general circulation throughout the state, and that the respondents, William Stapleton and Kemp G. Cooper, were, respectively, the editor and manager of said paper. That on April 14, 1893, there was published a lengthy article in the local columns of said newspaper, in which it was asserted, among other things, that one of the recently elected aldermen had been bribed to betray his party, and that James Connor and Charles Connor, "notorious political thugs, who walk the streets of Denver as living examples of the law's del y, engineered the plot." It was further stated that from $1,000 to $5,000 had been made use of for such corrupt purpose. The article also contained the following:

"It is a disgrace to the courts that the Connors should be allowed to remain at large to prey upon the political cancers and failings of humanity. Jim Connor is under conviction for train robbery, and he is also under sentence of penal servitude for having stolen a ballot box. His brother, Charles Connor, participated in the train robbery.

"Their Train Robbery Record. The first crime was committed four years ago. Jim Connor was then a lieutenant of police, and his brother was also in the service. With Jim Marshall of Kansas, a bird of the same feather, and a messenger, they conspired to rob the Denver & Rio Grande Express. A package, the most valuable in the train, was to be thrown out at an appointed spot, and

Connor was to be in readiness to receive it. Some of the conspirators wilted at the last moment, and the express company was informed. The plot was foiled, but the evidence against the principals was overwhelming, and they were convicted. The Connors appealed to the supreme court nearly three years ago, but the court has taken no action, and the culprits are abroad, buying aldermen, and helping Tammany to retain control of the city government. It is humiliating to the whole state that a man like Jim Connor Icould have influence enough to prevent the highest tribunal from handing down a deciIsion in his case. There must be influence of some kind at work somewhere."

In the same issue of said newspaper there was published a lengthy editorial charging the Connors with inducing said alderman elect, by despicable and dishonest means, to vote against his party in the organization of the aldermanic board. This editorial also contained the following: "In this connection it is pertinent to call the attention of the supreme court of the state to the fact that for more than three years the appeal taken by Jim Connor and Charley Connor from the decision of the court which sentenced them to prison for attempted train robbery has remained undecided on the calendar of that tribunal. It would be interesting to know what mysterious, but evidently powerful, influence has retarded the machinery of justice so strikingly in this case. It would also be interesting to know how soon the supreme court can make up its mind to render a decision upon that appeal." On the next day, April 15th, there was published another lengthy local article denouncing the Connors with the corruption of the alderman elect, and again stating the money used to be from the sum of $1,000 to $5,000. This article, among other things, contained the following: "It Seems So. Some people claim that there is no use in indicting or convicting men like Jim Connor, as they are never punished. The history of Connor's crimes would lend some semblance of truth to this argument, but the people of Denver have had enough of Connor, and others of his kind. The citizens will not tolerate longer the methods of screening blackguards who may have some political influence because of their past crimes against the ballot. The city of Denver is not big enough for Jim Connor and Charley | Connor, and other jail birds who are a menace to society every day they are allowed to be at large. The time has arrived when these corruptionists and political thugs, who have been found guilty of various crimes, shall receive their deserts. It is an opportune moment to clear the atmosphere. The present grand jury can do a great deal in that respect. Every day the supreme court allows to pass without its taking action on the appeal of the Connor brothers is an encouragement to commit crime. The city should have been rid of these men long

ago. There can be no earthly excuse for the supreme court in any manner shielding them from the punishment they so richly deserve."

The petition of relator further alleged, in effect, that the articles so published were false, defamatory, and malicious, and were designed to prejudice his cause so pending before this court; that said publications were calculated to convey the idea that the judges of this court had been improperly and corruptly influenced in his cause; and that such charges against the honesty and integrity of the court were meant to intimidate, influence, and coerce the judges, and to embarrass them in the administration of justice. Petitioner prayed that respondents might be proceeded against for contempt. Upon the presentation of said petition this court entered a rule against respondents, requiring them, and each of them, to "appear and answer, in writing, showing cause, if any they have, why they have published, or caused to be published, so much of said newspaper articles as charge this court with dishonesty or want of integrity, or with being improperly influenced in and about said cause of James Connor et al. vs. The People," etc. The rule was "expressly limited to so much of said newspaper articles as contains charges and imputations against the honesty and integrity of the members of this court in and about said Connor Case." The rule was based upon the ground "that said charges are designed and intended to interfere with, intimidate, and embarrass this court in the due and impartial administration of justice, and that said charges, if allowed to pass unnoticed, may injure the standing and usefulness of this court, by impairing public confidence in the honesty and integrity of its members." The answer of respondents is . sufficiently set forth in the opinion. The sufficiency of the answer was challenged by demurrer filed by the attorney general in behalf of the people.

Eugene Engley, Atty. Gen., and S. L. Carpenter, for petitioner. L. B. France, for respondents.

ELLIOTT, J. 1. This is the first proceeding of the kind originating in this court. A few cases have been brought here for review, involving contempts against other courts of record, and in such cases the law relating to contempts of the kind now presented has been carefully considered, and conservatively declared. In thus declaring the law this court has always kept in view the rights of the people, as well as the maintenance of lawful judicial authority for the protection of litigants, and the welfare of society. No attempt has been made to abridge the freedom of speech, nor the liberty of the press, though in some instances persons have been held responsible for the "abuse of that liberty," as our constitution provides they may

be. The liberty of the press is a great blessing. It is entitled to full protection. But the "abuse of that liberty" is a great evil, against which the people are entitled to be protected; and for their better protection, when necessary in the interest of litigants, resort may be had to summary proceedings. Const. Colo. art. 2. § 10; Hughes v. People, 5 Colo. 436; Cooper v. People, 13 Colo. 356-373, 22 Pac. Rep. 790, and cases there cited.

2. This court has never lost sight of that cardinal principle of free government that judicial tribunals are created and maintained, not for the benefit of those occupying judicial positions, but for the benefit of society, and the protection of the people in the enjoyment of their rights. To this end it is essential to uphold the courts in the lawful exercise of their authority and jurisdiction. The law-abiding people of the state are primarily interested in the due administration of justice, since it is only by such means that they can be made secure in their persons and property. It is a matter of congratulation that proceedings of this kind have been of rare occurrence in this state. It shows that the publishers of newspapers, for the most part, have been loyal to the courts as tribunals of justice, and have sought to uphold, rather than impair, their usefulness.

3. This proceeding was not instituted or instigated by this court of its own motion. A party whose cause was pending in this court presented his sworn petition, complaining of the articles published by respondents, and praying protection from such assaults pending the consideration and determination of his cause. We were thus bound to take cognizance of his petition, or give some reason for refusing to do so. If we refused, what reason could we give? Could we say to the petitioner, "You are a convicted criminal, and therefore you have no rights which this court is bound to respect?" The true spirit of our institutions, and the fixed policy of our government, require that courts of justice shall be no respecter of persons. The courts are bound to hear and determine causes according to settled rules of law, without regard to the bias or prejudice of interested parties, or the force of popular clamor. The law must be declared fairly and impartially, no matter who may be parties to the record. In this way, and in this way alone, can courts of justice fulfill their mission as conservators and protectors of public and private rights under a free government, which guaranties to all persons "the equal protection of the laws." These principles are as applicable to appellate tribunals as to courts of original jurisdiction. Parties must be allowed to appeal their causes to this court with the assurance that ther will be heard and determined as they appear upon the record, and that without fear or favor from any one, either of high or low degree. We cannot assent to the de mand that the settled rules of law relating

to substantial rights shall be disregarded in order to convict unpopular persons, or persons of mean reputation. Such persons, as well as the more fortunate classes, are entitled to have the law fairly and impartially adhered to, when they are put upon trial. It is true this court could have disposed of the petition in this case by quietly declining to take cognizance of it. Only petitioner, his counsel, and a few of their confidential friends, perhaps, would have known of our refusal. But we should always have been conscious that we had been wanting in courage to meet a disagreeable issue, and that we had declined to hear a suitor because he was under the ban of a public newspaper's displeasure. The only just and honorable way, therefore, was to take jurisdiction of the proceeding, and require respondents to show cause, if any they had, why they had thus deliberately and repeatedly assailed the honesty and integrity of this court in and about petitioner's cause.

4. By joining in their answer, respondents place themselves upon the same level in respect to the publications. Their counsel in his argument suggests that respondent Cooper was not aware of any of the articles until after they were published. No such fact, however, is pleaded, and the well-known skill and customary diligence of the learned counsel in matters of pleading forbid that we should regard this as an oversight. If it had been requested, leave would have been given for said respondent to amend his answer. Where an unlawful publication is shown to have been made without the previous knowledge of the proprietor of a newspaper, such fact may be shown in mitigation, though not in justification, of the publication; and it would seem that the mitigation would be slight, unless accompanied by a retraction. In this case, however, respondents do not deny previous knowledge as to the editorial article, nor do they express regret for any of these articles. On the contrary, they seek to defend them all upon various grounds.

5. The answer of respondents alleges that the first local article "was published without the direction, instigation, or knowledge of said respondents, and that they, nor neither of them, were cognizant of said article until after the publication of the same." As to the local article published next day a similar allegation is made. These allegations may be literally true; that is, the local articles may not have been expressly directed or instigated by either respondent Stapleton or respondent Cooper, and the articles may not have been seen or communicated directly to either of respondents until after they appeared in print. Nevertheless, considering the subjectmatter of the first local article, and the subject-matter of the editorial published on the same day, it is impossible to believe that the editor and reporter did not have a perfect understanding as to the position which the paper should take in reference to this court,