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That it does so change the punishment is urged by counsel, in that it changes the place of execution, and provides for solitary confinement in the penitentiary for the period between sentence and execution; and for the further reason that it permits the court to shorten the time between sentence and execution from fifteen days to two weeks, as it is said. Other changes were enumerated in the argument, but these are the ones principally urged, the others being subsidiary; if these objections are not well taken, the others fall with them.

in the county where the court was holden; while by a subsequent enactment, in force at the time of sentence, it was provided that any person under sentence for such offenses might be committed, at the discretion of the court, "to the house of correction in any county in the commonwealth in the same manner as such person might be committed in the county where the court is so holden." It was claimed in argument that the latter law aggravated, the punishment, and was therefore ex post facto as to such offense; but the court held that such argument was fallacious, that It is to be remembered that by section 2 the rights of a person convicted were not of the act of 1883, the same being section 709 materially affected by the change, and that of the General Statutes, murder is divided the punishment was not aggravated by into two degrees, i. e., murder of the first an imprisonment in one county rather degree, and murder of the second degree. than in another. If the argument in this This section has stood from its adoption case, based upon the change in the place of unrepealed and without amendment. By execution, is sound, then, in case future legthis act, death was fixed as the punish-islation should change the location of the ment for murder of the first degree. By penitentiary to a county other than Fresection 729, Gen. St., it is provided that mont, and thereby change the place of exthis punishment shall be inflicted by hang- ecution, it would likewise follow that a ing, and this is not changed by the amend- change so made would be subject to the ment of 1889. So it will be seen that at the same objections,-a conclusion we cannot time of the perpetration of the crime, and indorse. We think the argument unsound, at the time of the trial, the punishment for and that the constitutional objection based murder in the first degree was death by thereon is not well taken. In arriving at hanging; and such is still the law. It is a this result, we have not overlooked the part of the public history of the state that case of Garvey v. People, 6 Colo. 559. It prior to the passage of this act the death seems to us, however, that counsel have penalty with us was usually inflicted in confounded certain incidents connected public, at a previously advertised hour, in with the administration of the penalty the presence of a large concourse of peo- with the punishment itself. ple, and the particulars of the execution Counsel say that the punishment in this published in the public journals. In defer-case is aggravated by reason of the change ence to the wish of many good citizens, in place of confinement from the county who were of the opinion that the tendency jail to the penitentiary. We are aware of such proceedings was detrimental to the that in many well-considered cases it has public morals, the recent statute was been held that a change in the place of conpassed, requiring executions in the future finement from an institution where crimito be conducted privately, at the peniten-nals convicted of minor offenses are incartiary, enjoining secrecy upon the few per- cerated to one established for the imprissons required or permitted to be present; onment of those convicted of more heinous and making it a misdemeanor, punishable crimes has been held as an aggravation of by fine, for such persons to disclose the the punishment, on account of the disgrace details of the execution, or for the press to and reproach attached to the confinement publish the same. To accomplish the de- with criminals of a more depraved and insired change, it became necessary to change famous character; but this reason can certain incidents connected with the pun-have no application in the case of one conishment, but no attempt was made to victed of willful, deliberate, and premedichange the punishment itself. This re- tated murder, and awaiting execution mains the same as before the passage of the act.

therefor. And, the reason for the rule failing, the rule itself must also fail. Aside To the argument based upon the change from this, the defendant is imprisoned for in the place of execution, we say that, in the purpose only that he may be produced legal contemplation, there is no difference at the time set for his execution, the conbetween an execution in one place within finement being no part of the punishment, the state and in another. The punishment but simply an incident connected thereis not aggravated by being inflicted in the with, referable to penal administration as county of Fremont, rather than in the its primary object; and such changes may county of Arapahoe, where the trial took be made applicable to past as well as place. The penalty has not been changed, future offenses. Hartung v. People, 22 N. but only the locality where it is to be in-Y. 95-105; Cooley, Const. Lim. 271, 272. flicted. The case of Carter v. Burt, 12 And, although the statute designates such Allen, 425, is directly in point upon this confinement as solitary, provision is made question. In that case the prisoner had been convicted of being a common seller of intoxicating liquors without license, and sentenced to pay a fine of $50, and to be imprisoned in the house of correction for three months. By the statute in force at the time the offense was committed, it was provided that the imprisonment in such cases should be in the house of correction

in the same paragraph of the act in which this term is used for his "attendants, counsel, physician, a spiritual adviser of his own selection, and members of his family" to visit him in accordance with the prison regulations, the effect of which is to give the prisoner as many liberties as he would have been entitled to under the old law. So, while the imprisonment is des

ignated as solitary, it is not so in fact, as | period of seven days; particularly the pesolitary imprisonment is usually under-riod of seven days commencing with Sunstood. day." Worcest. Dict. "A period of seven

It is said in argument that under the days; usually, that reckoned from one Sabnew statute the time between the date of bath or Sunday to the next." Webst. the sentence and the execution may be Dict. "Seven days of time. The week comshortened, the former law providing mences immediately after twelve o'clock against the court's directing the execution on the night between Saturday and Sunto take place within less than 15 days from day, and ends at twelve o'clock, seven the time of sentence, while under the new days, of twenty-four hours each, thereenactment it is provided that the judge after." Bouv. Law Dict. The word was passing sentence" shall appoint and desig-judicially construed in accordance with nate in the warrant of conviction a week the foregoing definitions in the case of of time within which such sentence must Ronkendorff v. Taylor, 4 Pet. 361, where it be executed. Such week, so appointed, is said: "A week is a definite period of shall be not less than two nor more than time, commencing on Sunday and ending four weeks from the day of passing such on Saturday." It follows from this consentence;" the particular time of execution struction that while in most cases more within the week being left to be fixed by than two full calendar weeks must necesthe warden of the penitentiary. If under sarily elapse, under the statute, between this act the defendant might be hanged the time of sentence and the execution, in within less than the minimum of time from no case could such execution take place the date of passing sentence enjoined by within less than 15 days from the date of the former statute, we would unhesitat- sentence. Sunday being a non-juridical ingly say that the law could not be made day, the most favorable case possible in applicable to his case; as to hold other- support of the theory advanced by counwise would be contrary to the rule forbid- sel for the prisoner-that the time could be ding a change of punishment to the disad- shortened under the late act-would arise vantage of the defendant, after the com- if a defendant should be sentenced upon a mission of the crime, and slight changes in Saturday. For convenience, we will asthis respect have been held sufficient to sume that such Saturday is the 1st day of make the law ex post facto and void as to the month. The week of execution could past offenses. Thus in Com. v. McDon- in no event commence to run until the ough, 13 Allen, 581, it was decided that a third Sunday thereafter, the 16th day of law enacted after the commission of the the month,-which would be the earliest offense of which the defendant was charged, possible day for the sentence to be executwhich decreased the maximum of impris- ed, under the terms of the act. And the onment that might have been inflicted and same result would follow under the former also the fine, was unconstitutional as to law, requiring at least 15 days from the that offense, for the reason that it fixed the time of sentence to the execution; as it has minimum of imprisonment at three months, been decided in this state that when time whereas, before that time, there was no is to be computed, either prior or subseminimum fixed to the court's discretion. quent to a day named, the usual rule is to A careful examination of the statute of exclude either the first or last day of the 1889 discloses, however, the fact to be that designated period, and include the other. in no event will the terms of the act per- Stebbins v. Anthony, 5 Colo. 348. So, under mit an execution to take place thereunder either law in the case supposed, a sentence within less than 15 days from the time of might be executed upon the sixteenth day, sentence, as provided in the former act. In for aught that appears in either act to the arriving at this conclusion we do not rely contrary. We are not, on account of the in the least upon the distinction which some illustration given, to be understood as courts have drawn between cases where sanctioning the execution of the death pentime is to be computed from an act done alty upon the Sabbath day. Such a course and those in which it is to be reckoned from would be highly improper, if not positively a given day; holding that in the former illegal. If the latter, an additional day case the day upon which such act is per- would be gained under the new law. In formed is to be counted, and in the latter addition to the authorities herein before not. See Arnold v. U. S., 9 Cranch, 104; cited, we refer to the following in support and also cases cited in Bouvier's Law Dic- of the conclusion reached in this opinion: tionary, under the word "Time." We pre- 1 Bish. Crim. Law, § 280 et seq.; Whart. fer to rest our decision upon something Crim. Law, § 31; Wade, Retro. Laws, § different, and, as we think, more substan- 283; State v. Arlin, 39 N. H. 179; Marion tial. The command of the statute is that v. State, 20 Neb. 233, 29 N. W. Rep. 911. a week of time shall be fixed by the court It appearing that the sentence prowithin which the sentence must be execut-nounced by the district court is in accorded, such week not to be less than two ance with the views herein expressed, the weeks, nor more than four weeks, from prisoner must be remanded, and it is so the day of passing sentence. We are of the ordered. opinion that the week of time so to be fixed must be held to be a calendar week, i. e., a period of time extending from 12 midnight, Saturday, until 12 midnight, the following Saturday. By consulting lexicographers of established accuracy, this conclusion will be found to be in accordance with the primary and usual definition given to the word "week." "Week. The

EVANS V. BOWERS.

(Supreme Court of Colorado. Dec. 6, 1889.)

HABEAS CORPUS-COUNTY COURTS.

writ of habeas corpus, except in cases clearly 1. The county court has no authority to issue a within the statute; and, whenever it appears at any time that such writ has been issued without

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(Syllabus by the Court.)

Appeal from Fremont county court.

on questions of supposed error, and not within the scope of habeas corpus proceedings, have released prisoners for the most trifling causes. Fortunately, in Colorado until 1879, jurisdiction of the writ was confined to the judges of the superior courts. At that time, the state having outgrown its judicial system,-there being only four judicial districts in the state, and no constitutional authority to increase the number,-an act was passed investing county judges with jurisdiction in certain habeas Gen. St. c. 49, § 20. The county court has corpus cases, under careful limitations. no authority to issue a writ of habeas corpus except in cases clearly within the statute; and whenever it appears, at any time, that such writ has been issued without authority, it should be promptly dismissed and the prisoner remanded.

In September, 1886, James Bowers applied to the county court of Fremont county for a writ of habeas corpus, setting forth in his petition that he was illegally restrained of his liberty by one Edward L. Evans, town marshal of the town of Coal Creek, in said county. The writ was duly issued. By the agreed statement of facts upon which the cause was heard, it appears that Bowers was imprisoned by virtue of a judgment of conviction before the police magistrate of the town of Coal Creek, for the violation of an ordinance of said town prohibiting the sale of vinous, malt, and other intoxicating liquors within said town, and within one mile of the outer boundaries thereof. The judgment was to the effect that Bowers should pay a fine of $75 and costs, and stand committed until the same was paid, the commitment not to exceed 90 days. Upon the return and hearing of the writ of habeas corpus, the petitioner Bowers was discharged from imprisonment by the county court. The case is brought here by the respondent, Evans, under the act of 1885 allowing appeals from "an order or judgment of habeas corpus." A motion challenging the jurisdiction of the county court to issue the writ of habeas corpus and hear the cause was interposed by counsel for respondent in the court below, which being overruled, the same matter is assigned for error upon this appeal. The assignment is based upon section 20, c. 49, Gen. St., which provides: Any county court or county judge in this state is hereby authorized to issue the writ of habeas corpus, in all cases except when the petitioner shall be detained or imprisoned on a charge of having committed a felony, or is detained and imprisoned under a judg-30 days. So, in this case, we must of necesment or order of the district court: provided, that no county court or county judge shall issue such writ when the supreme court or district court, or any one of the judges of said courts, shall be in the county where such writ shall be issued, or when there shall be a term of the supreme or district court within such county within thirty days from the time of the application for said writ."

C. D. Bradley, for appellant.

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ELLIOTT, J., (after stating the facts as above.) The writ of habeas corpus, though of inestimable value as a safeguard of human liberty when proceedings under it are judiciously administered, has, nevertheless, been so often improvidently used as a means whereby criminals, justly convicted, have escaped punishment, that its name in certain communities has become odious. This has been occasioned in some measure, perhaps, by investing inexperienced judges with jurisdiction of the writ; but the greatest evil has resulted from an improper use of the writ as a substitute for an appeal or writ of error, whereby courts without appellate jurisdiction, passing up

Application was made for the writ of habeas corpus in this case on September 11th. A term of the district court of Fremont county was then provided by law to be held on the second Monday of October following; and we take judicial notice that said second Monday occurred on October 11, in the year 1886. Hence we must determine whether or not the holding of such October term was within 30 days from the application for said writ. If the term was to be held within said period, then the county court was without jurisdiction to issue the writ, its authority being limited by the positive command of the statute. In the case of Stebbins v. Anthony, 5 Colo. 348, and also in Re Tyson, ante, 810, (decided at this term,) it is held that the rule for computing time within which an act is to be done is to include one day and exclude the other; but in neither of those cases was it necessary to determine whether the first day or the last should be excluded. In this case, however, if we include the first day, then there was no term of the district court within 30 days from the date of the application for the writ; but if we exclude the first day, then such term was within the

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In Hax v. Leis, 1 Colo. 171, it was held that sity determine which day is to be excluded. the day on which the order for an appealbond is made is to be excluded under a statute requiring the bond to be filed The Code of Civil Procedure (section 382) "within the time limited by the court." provides that the time within which an act is to be done, as provided by this act, shall be computed by excluding the first day and including the last." Thus we have a judicial decision and an act of legislation in this state tending to favor the exclusion of the first day. From an examination of the question, we find that the rule requiring the first day to be excluded is well sustained by authority, and we see no reason why it should not be applied in this case.

Cornell v. Moulton, 3 Denio, 12; Bemis v. Leonard, 118 Mass. 502; Roan v. Rohrer, 72 Ill. 582; Sheets v. Selden's Lessee, 2 Wall. 177. This disposes of the case adverse to the jurisdiction of the county court. The remaining assignments of error need not be considered. The judgment of the county court is reversed, and the cause remanded, with directions to dismiss the proceeding for want of jurisdiction.

GILBERT V. GREELEY, S. L. & P. RY. Co. (Supreme Court of Colorado. Dec. 6, 1889.)

OCCUPATION OF STREET BY RAILROAD.

1. Under article 11, § 15, Const. Colo.. private property must be taken, or private property must be damaged, before a cause of action arises. The damage must be to the property or its appurtenances; or it must affect some right or interest which the owner enjoys in connection with the property, not shared or enjoyed by the public generally. The damage must differ in kind, not merely in degree.

2. It is only when some specific private property, or some right or interest therein or incident thereto, peculiar to the owner, is taken or damaged for public or private use that the constitution guaranties compensation therefor.

3. One traveler has no more legal ground of complaint on account of an obstruction in the public highway than others, unless he be entitled to use the highway at the point of such obstruction for a different purpose than other people, or has suffered some special injury therefrom. The fact that he may be more frequently inconvenienced thereby does not give a cause of action. (Syllabus by the Court.)

ning back from said Front street, south or southerly, to a depth of 140 feet, to an alley, which runs throughout the whole of the block parallel to Front street, and at right angles to said Twelfth street; that at the date of the construction of said defendant's road, in 1881, the said plaintiff was the owner of lots 5 and 6, in block 42, in said town of Boulder; that said lots are situate upon the north-west corner of block No. 42, (and are) each of the width of fifty feet on Front street, with a depth of one hundred and forty feet, to an alley; and that said lots lying on a corner, the depth of the outside lot is along, and forms the boundary to, said Twelfth street for its entire depth, 140 feet, so that, while the lots are laid out and numbered and referred to as situate on Front street, yet the whole depth of one of these lots runs along, and is situate on east side of Twelfth street; that at the time the road was constructed there was, and ever since has been, thereon a two-story brick dwelling-house of 16 rooms, fronting upon said Twelfth street, and situate upon the south half of lots 5 and 6, running east and west; that, in constructing its side track or switch, as before stated, defendant placed the same at a distance of about 28 feet south of the line of said plaintiff's property, and that between said plaintiff's line and the lot of the said defendant, upon which its side track is situate, is an alley twenty feet in width, and the same heretofore referred to as running through the entire block 42, the defendant's track being, at the place where it crosses Twelfth street, and the northerly rail thereof, about eight feet south of the north boundary of the lot owned by the defendant, and twenty-eight feet south of the south line of plaintiff's lot on said alley; that, in the use of its side track and switch, the defendant uses it to switch cars across Twelfth street, which causes obstruction to the streets, and thus renders said plaintiff's property less valuable; and that he has thus suffered damages. There is no claim that defendant has been guilty of negligence in operating its side track, but the damages claimed are for the usual and ordinary operation of said side track, and not for anything special or unusual in thus operating its side track. It is further agreed that defendant has also been allowed and licensed by the said town of Boulder to run across Twelfth street, both with its main track and with said side track, but that plaintiff was never asked for and never did consent to the laying down of said track across said Twelfth street." By another stipulation, it was agreed what the damages should be, in case the court, under the law and upon the facts set forth in the agreed statement, should find that the plaintiff has a cause of action for more than nominal damages; right of appeal being reserved to either party. The finding and judgment of the court were in favor of defendant. Plaintiff appeals, under the act of 1885.

Appeal from district court, Boulder county. This action was brought by Richard Gilbert, plaintiff, against the Greeley,Salt Lake & Pacific Railway Company, defendant, to recover damages occasioned to the premises of plaintiff by the construction and operation of defendant's railroad. The cause was tried in the district court without a jury, by stipulation, upon an agreed statement of facts, as follows: "It is agreed that defendant is a railroad corporation, and incorporated for the purpose of building and operaing a railroad which should run from Greeley, Colorado, to the town of Boulder, up Penn gulch, and westward thereof; that its road was built into the town of Boulder in the year A. D. 1881, and that by an ordinance or license of the town of Boulder, said town of Boulder being then and there an incorporated town, the said defendant was authorized and permitted to run its road, and lay down its track, through and along Water street, in said city, from a distance of several hundred feet below and east of Twelfth street, in the said town of Boulder, past and across Twelfth street, westward; that the main line of said road thus running up Water street, which said Water street runs at right angles to Thirteenth and Twelfth streets, crosses Twelfth street at a distance of about 200 feet from the premises of said plaintiff, hereinafter referred to; that ator near Thirteenth street, a distance of about 400 feet east of Twelfth street, the said defendant has constructed a side track or switch which departs from the main line at an angle, and runs westerly from said main line and across Thirteenth and Twelfth streets, in said town of Boulder, and that said side track or switch is situate upon lands owned by the said defendant, from, at, or near said Thirteenth street, up to said Twelfth street, and is also extended westerly beyond Twelfth street, on the lands of said defendant; that the depot of the said defendant is situated a few hundred feet above Twelfth street; that the lots of said city at that place are laid out and numbered, in the plat of the town, so as to be of the width of ELLIOTT, J., (after stating the facts as fifty feet each on Front street, and run-above.) The matters requiring considera

R. H. Whitely, for appellant. Teller & Orahood, for appellee.

tion in this case appear somewhat compi- | age suffered by plaintiff on account of the cated at first, though they are really quite proximity of defendant's side track and simple. In general terms, they may be main line arises solely from the obstrucstated thus: A railroad company lawfully tion to Twelfth street caused by passing constructs and operates its road, without trains. No other kind of damage is specinegligence, in the immediate vicinity of pri- fied, and we are not at liberty to infer or vate real property, but without touching surmise other or different kind of damage. the same. It builds and operates the road It is clear that in the matter of such obacross a public street upon which such real struction he suffers only in common with property is situate, though not in front of the general public. His damage, therefore, the same, and thereby causes obstruction may or may not differ in degree. It certo the street by passing trains, and thus tainly does not differ in kind from that of renders such property less valuable. Un- the general public. It must not be underder such circumstances, has the owner of stood from the foregoing that physical the property a cause of action against the contact with the corpus of the property is railroad company for the damages thus oc- a necessary condition precedent to an accasioned? tion for damages.

The constitution of Colorado, art. 2, § 15, provides" that private property shall not be taken or damaged for public or private use without just compensation." It is admitted that the use of defendant's side track for switching cars across Twelfth street causes an obstruction to the street, renders plaintiff's property less valuable, and that plaintiff has thus suffered damages. Hence it is claimed with much confidence that by this admission the plaintiff's cause of action is established. Let us examine this claim. The constitutional provision above quoted has already received the careful consideration of this court, and has been clearly construed in its application to certain facts and circumstances; but the determination of this case will require its further consideration and con

Before considering the legal aspects of this question, let us take a further survey of the premises. The main line of defendant's road runs through Water street, about 200 feet distant from the plaintiff's property. Between the main line and plaintiff's property lies the south half of block 42, which is the private property of defendant, through which defendant's side track runs. Plaintiff's property consists of a piece of land 140 feet in length by 100 feet in width, situate in the north half of block 42, being the north-west corner of said block, and is bounded on the north by Front street, on the west by Twelfth street, and on the south by the alley separating the north half of block 42 from the south half. The streets are 80 feet in width, and the alley 20 feet. Plaintiff's house is situate upon his premises adjoin-struction. ing the alley, and fronts on Twelfth street. The main line of defendant's road and also the side track cross Twelfth street; the former 200 feet south of plaintiff's premises, and the latter 28 feet south. From this it appears that the streets and the alley bordering on plaintiff's premises, and by which he gains access thereto, are entirely unobstructed. The corpus of his property is not affected by any physical contact with the railroad tracks, nor is any street or alley, so far as the same borders on his premises, in any way interfered with. Twelfth street and the alley, so far as plaintiff's property abuts upon them, are entirely unobstructed, and Front street is entirely untouched by the railroad. It is true, when plaintiff goes southward on Twelfth street, he encounters the side track at a short distance from his house, and the main line a little further on; but in this respect he is affected in the same manner only as the general public. It does not appear that his use of Twelfth street to the southward of his premises is other or different than that of the general public. He may or may not use the street more frequently in that direction than other people; but that is not the test. One traveler has no more legal ground of complaint on account of an obstruction in the public highway than others, unless he be entitled to use the highway at the point of such obstruction for a different purpose than other people, or has suffered some special in-preciation in private property is caused by jury therefrom. The fact that he may be more frequently inconvenienced thereby does not give a cause of action. From the agreed statement of facts upon which this cause was tried it appears that the dam

Private property must be taken, or private property must be damaged, before a cause of action arises. The damage must be to the property, or its appurtenances, or it must affect some right or interest which the owner enjoys in connection with the property, and which is not shared with or enjoyed by the public generally. It is insisted, however, that by the wording of the agreed statement the real property belonging to plaintiff, as described therein, is admitted to be damaged, in that it is rendered less valuable by defendant's use of Twelfth street for railroad purposes. Even this admission is not sufficient, of itself, to give a complete cause of action. The fair import of the agreed statement is that the damages which the plaintiff suffers are all referable to the obstruction in Twelfth street. While it is admitted that plaintiff's property is rendered less valuable by reason of such obstruction, yet, to bring the case within the meaning of the constitution, it must also appear that he has some special private property right or interest, as a private right of way or user, in Twelfth street, at the point of obstruction, other or different from the right or interest of the general public, and that such property right or interest of plaintiff has been damaged for public use. Notwithstanding the broad terms of our constitution, and the unqualified expressions of certain judicial opinions, we are not prepared to say that whenever a de

some public or private improvement the owner of the property thus depreciated may recover compensation against the party making such improvement. It is probable that in consequence of every im

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