Judge Hallett, in his opinion, finds that these complainants were in a position to adverse at the time of this publication. Notwithstanding the averments of the last bill, and affidavit of Mr. Wright, I think the general scope of the testimony sustains that finding.

But it is said by counsel that under the last clause of the statute quoted, any person may object that the applicant has failed to comply with the terms of the chapter, and why should they not have the same privileges as strangers? Have they forfeited their right by failing to adverse? It becomes necessary to see what rights this last clause gives; I think all that it covers is the right to anybody to come in and enter his protest or objection; in other words, to say to the officers of the government that the applicant has not complied with the terms of the statute, and to insist that there shall be an examination by such officers to see if the terms have in fact been complied with.

He does not appear as a party asserting his own rights, but if we may, so to speak, parallel these proceedings with those in a court, such an objector appears as an amicus curiae-a friend of the courtto suggest that there has been error and that the proceedings be stayed until further examination can be had. Such a protest does not bring the protestant into court for the assertion of his own title or rights; does not revivify rights lost by a failure to adverse.

True, if the protest or objection is sustained, the proceedings had will be set aside, new ones must be commenced and then the objector may be in a position to assert his rights, but if the protest or objection be not sustained, the objector, like an amicus curiæ, has nothing more to say in the matter. In other words, the right to protest is not the right to contest. The latter is lost by the failure to adverse. The former remains open to every one, holders of adverse claims as well as others. But the protest is only to the officers of the government, challenges only the applicant's claims and in no manner brings up for consideration any claims of the protestant.

Such a protest can be made only before the land department, and if there rejected, the protestant has no further standing to be heard anywhere. The protest cannot be made the basis of any litigation in the courts, for the courts are only open to those who have rights to assert; they sit for the determination of controversies. They do do not, at the instance of strangers, review the regularity of proceedings between parties, who are competent to determine such regularity, and who do not themselves invite any judicial determination.

These in brief are my views, and without pursuing the discussion further I sum up these propositions.

First-The government as a land owner offers its lands for sale upon certain prescribed conditions, compliance with which is a matter of settlement between the owner and purchaser alone, and with which no stranger to the title can interfere.

Second-Publication of notice is process bringing all adverse claimants into court, and if no adverse claims are presented it is

conclusively presumed that none exist and that no third parties have any rights or equities in the land.

Third-Thereafter the only right or privilege remaining to any third parties is that of protest or objection filed with the land department and cognizable only there; if sustained by the department the proceedings had by the applicant are set aside; if overruled the protestant or objector is without further right or remedy. Entertaining these views I think the petition for rehearing must be denied.

SUPREME COURT OF COLORADO.

BOARD OF COUNTY COMMISSIONERS v. W. B. OWEN ET AL.

Filed October 1, 1884.

CONSTITUTIONALITY OF A STATUTE IMPOSING A TAX.-The following amendment of chapter 88, of the general laws of Colorado, was enacted by the legislature in 1879: "The board of county commissioners, of the respective counties of the state, may levy a property tax for road purposes, which shall not exceed one dollar on each one hundred dollars, to be levied and collected in the same manner, and at the same time, as other property taxes are levied and collected, in each year; but all property included within the limits of incorporated towns or cities shall not be subject to the tax." Held, that the last clause of this statute, purporting to exempt property within incorporated towns and cities, is unconstitutional and void, being in conflict with provisions of the state constitution, which declare that "all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax," and that "all laws exempting from taxation property other than hereinbefore mentioned, shall be void." And such statute must be construed and enforced as though such final clause had never been enacted.

APPEAL from the county court of Gunnison county. The facts appear in the opinion.

Rogers & Cuthbert, and W. D. Beckett, for the appellees.

HELM, J. By the single assignment of error presented in this case, we are called upon to determine the constitutionality of section 1 of an act to amend chapter 88 of the general laws. This amended section reads as follows:

"The board of county commissioners of the respective counties of the state may levy a property tax for road purposes, which shall not exceed one dollar on each one hundred dollars, to be levied and collected in the same manner and at the same time as other property taxes are levied and collected in each year; but all property included within the limits of incorporated towns or cities shall not be subject to the tax." Sessions laws of 1879, p. 159.

This action was brought and must be determined under the statutes on the subject as they existed prior to 1883.

It is contended, and the county court held, that the last clause of the foregoing statutes is void, because it is in violation of sections 3 and 6 of article 10 of the state constitution; the former section of this instrument provides that "all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, etc.,

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"The latter declares that all laws exempting from taxation property other than herein before mentioned, shall be void."

The property relieved from the road tax by the act of 1879 is not among the exemptions above referred to.

In this state there is no township organization; neither is there any road districting within the county, such as exists in some of the other states. By statute the county commissioners are commanded to divide their respective counties into suitable road districts. But this division of the county has no bearing or effect whatever upon the assessment and collection of the property tax in question, except that the district overseers perform certain duties when the same is delinquent. The county commissioners control exclusively the assessment thereof throughout the entire county; they also apportion and disburse the revenue therefrom as in their judgment is for the best interests of all the citizens of the county; the collection thereof is made in the same manner and by the same officer as in that of other county taxes. In short, under our laws, for the purpose of assessing, collecting and disbursing the "property tax for road purposes," each county constitutes but a single road district.

The county commissioners are "the authority levying the tax;" the boundaries of the county are the "territorial limits" of the "authority levying the tax."

The tax under consideration is strictly an ad valorem charge, and must be "uniform" upon all property within the county not exempt

from taxation.

But realty and personalty within the corporate limits of a city or town are as much a part of the taxable property of the county as are farms and chattels outside such corporate limits. There seems to be no escape from the conclusion that a legislative declaration entirely exempting the former from the payment of the tax in question, is in conflict with the constitutional inhibition, and therefore void.

In Illinois this view was adopted with reference to the power of township authorities to levy a similar tax upon property located within a city located in the township: O'Kane v. Treat et al., 25 Ill., p. 557. See Fletcher v. Oliver, 25 Ark., 289; Wilson v. Supervisors of Sutter County, 47 Cal., 91,

Had the effort been made to relieve property within towns and cities from having its proportion of the cost of constructing a court house, or other county building, there would probably have been no disagreement as to the constitutionality of the statute. But it is argued that the city has to construct and keep in repair its streets, bridges and culverts; that for the expenses thus incurred, only property within corporate limits is answerable, and therefore that it is inequitable to tax this property for the maintenance of the county highways.

We may agree with counsel upon these propositions; and we may venture the opinion that the legislative intent in the provision we

are now considering, is beneficient and wise, but our answer to the argument must be, that the exemption as declared in the statute is forbidden by the constitution; and we should not, by misconstruction of the latter instrument, attempt to do away with the apparent injustice.

Had the legislature undertaken to commute this tax for an equivalent burden to be borne by the towns and cities; or had it declared that the tax thus collected from property within such corporation should be expended on the streets thereof; or that a similar and equal tax should be so collected and expended, the objection might have been obviated: See Baird et al. v. The People, 83 Ill., 387; Cooper v. Ash, 76 Ill., 17.

And it is possible that the statute prohibited the collection of this tax from property within towns and cities which "levy such taxes for the streets and alleys thereof, a different conclusion might be reached;" See Martin v. Aston, 60 Cal., 63.

Construing the law as we find it, however, we are constrained to hold the latter part of it void.

But, the unconstitutionality of one provision in a statute, does not necessarily render the entire statute or section void: Tripps v. Overnocker, vol 4, Colo. L. R., 405 and citations.

If from the amended section of 1879, before us, the objectionable sentence were stricken out, a perfect law remains; there would be left the identical statute adopted by the legislature in 1877. We do not feel justified in concluding that the legislature intended to have the whole section stand or fall with the exemption provision subsequently added. We think the valid portions thereof are not so connected with "or dependent upon " the void provision, as to fall with it. The statute may be regarded as if no such amendment or addition existed.

The county commissioners of Gunnison county did not so interpret and apply the law, however, and therefore the judgment in this case must be affirmed.

SUPREME COURT OF NEVADA.

LAKE V. LAKE.

Filed, September 24, 1884.

DIVORCE-NEW TRIAL OF PORTION OF ISSUES.-In an action for a divorce and a division of the community property, the lower court has power to order a new trial of the issues relating to the character and disposition of the property alone, if material error occurred in the trial of and affecting that branch of the case only, without ordering a retrial of all the issues presented by the pleadings.

HUSBAND AND WIFE--SEPARATE PROPERTY-RENTS, ISSUES AND PROFITS.-All the property owned by a husband at the date of his marriage, as well as that subsequently purchased by him, and the rents, issues and profits thereof, up to March 7, 1865, the date of the first statute governing the property rights of husband and wife, belongs to him as his separate property. Under such statute the rents, issues and profits of the separate estate of the husband did not become common property.

PROPERTY ACQUIRED DURING COVERTURE-COMMUNITY PROPERTY. -Property acquired during coverture presumptively belongs to the community, and the burden is on the person asserting the contrary to overcome such presumption by proof, sufficiently clear and satisfactory to convince the court or jury of the correctness of his claim.

CONSIDERATION OF DEED-PAROL EVIDENCE OF. -Parol evidence is admissible to show that the real consideration of a deed was other property given in exchange, instead of the money stated therein.

COMMUNITY PROPERTY-PROOF OF HUSBAND AND WIFE.-It is not necessary to prove that property is, in fact, the product of the joint efforts of the husband and wife in order that it may be declared community estate. If it is acquired after marriage by the efforts of the husband alone, but not by gift, devise or descent, or by exchange of his individual property, or from the rents, issues or profits of his separate estate, it belongs to the community, although the wife rendered no assistance in its acquisition.

SEPARATE AND COMMUNITY PROPERTY-PROFITS-LABOR AND SKILL OF SPOUSES.-The profits of separate property which accrue mainly from the property rather than from the joint efforts of the husband and wife, or either of them, belong to the owner of the property, although the labor and skill of one or both of the spouses may have been given to the business. On the contrary, if profits come mainly from the efforts or skill of both, they belong to the community.

THE SAME PROFITS RESULTING FROM HOTEL. The profits resulting from the ordinary use of a hotel, the separate property of the husband, either from renting or carrying on the business himself, belong to the husband as his separate estate.

DIVORCE-DIVISION OF PROPERTY-DISCRETION OF COURT. --After a divorce has been granted the division of the property is left to the discretion of the trial court, and the exercise of such discretion will not be interfered with by the appellate court unless the same has been abused.

APPEAL from a judgment of the seventh judicial district court of Washoe county, entered in favor of the defendant, and from an order denying plaintiff's motion for a new trial, as to the property rights involved. The opinion states the facts.

C. S. Varian, for the appellant.

R. M. Clarke and T. Coffin, for the respondent.

LEONARD, J. This is an action for divorce on the ground of cruelty.

In her complaint, plaintiff alleges that there is a large amount of property belonging to the community, and prays for an equal division thereof between herself and defendant.

Defendant denies that any of the property described belongs to the community, and alleges that it is all his individual estate.

When the cause came on for trial, it was agreed by the respective parties, and ordered by the court, that the issues relating to the disposition of the property should be withdrawn from the consideration. of the jury, and reserved for future consideration and determination by the court in case a divorce should be granted.

Upon the special findings and verdict of the jury, the divorce prayed for was granted. Subsequently, the court, sitting without a jury, tried the issues relating to the character and disposition of the property, and found that it belonged to the defendant individually.

Thereupon a formal decree was entered as follows: "Upon the verdict of the jury, heretofore returned in this case, and the order of the court made thereon, and in consideration of said verdict and order, it is adjudged and decreed that the marriage relation, heretofore existing between the said Jane Lake and M. C. Lake, be, and the same is hereby set aside and annulled, and the said parties be,