constitution, the obligation of which cannot be impaired by subsequent legislation.

5. But such contracts contain no express or implied provision authorizing corporations to transact their business in a manner detrimental to the public peace, health, or safety; and regulations adopted under the police power for the purpose of protecting the public health or safety may be valid. This power is an essential attribute of sovereignty, and a state cannot by legislation barter away the right to exercise it.

6. The police power may be abused. If a statute purporting to have been enacted to protect the public health, morals, or safety has no real or substantial relation to those objects, or is a palpable invasion of constitutional rights, the court should declare it void.

7. Private corporations occupy in respect to the police power the same attitude as private in. dividuals engaged in similar branches of business. They must submit to proper police regulation in the interest of society, even though such regula tion operate to injure the business authorized, and to diminish the value of the property employed therein.

8. Courts will not presume dishonest or improper motives on the part of legislative bodies, and they never annul statutes merely because the legislative judgment or discretion is improvidently exercised.

9. Section 3, art. 15, of the constitution, recognizes a legislative right to alter, revoke, pr annul, upon condition just to the corporation, any part or all of the corporate charter; but it does not control the exercise of the police power in regulating the transaction of corporate business.

10. The failure to perform a statutory duty specifically imposed under the police power for the protection of the public is negligence per se, and in the absence of contributory negligence a recovery may be had for an injury thereby occasioned.

(Syllabus by the Court.)

Appeal from district court, Arapahoe county.

Action by John Dowell and Mary Dowell against the Platte & Denver Canal & Milling Company to recover damages on the ground of negligence resulting in the death of their son by drowning. From a judgment for plaintiffs, defendant appeals. Affirmed.

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

The statute of 1887, considered in the following opinion, reads: "Section 1. That every corporation and company, whether created by special act or organized under the general incorporation laws of this state, and every partnership, person, or persone, who now or may at any time hereafter own or control any canal or ditch, or any part thereof, being two feet in width or over, and carrying water to the depth of twelve inches or over, which canal or ditch, or any part thereof, is within the corporate limits of any city denominated in the law as of the first class, or any city existing by special charter, of a population equal to or exceeding said cities of the first class, or any of the additions thereto, shall at their own expense, within sixty days after this act shall have taken effect, confine, flume, and cover over all or any part of such canal or ditch, whether located on or across private property, public highways, or alleys in said city, or additions thereto, in a reasonable and sufficient manner, and with such materials as will render such fluming orcovering safe, and a sure protec

tion to the lives and property of the inhabitants of said city; and any such corporation, company, partnership, person, or persons shall at all times thereafter keep and maintain any and all such structures confining, fluming, and covering of such canal or ditch in good order and repair, at their own expense. Sec. 2. Such corporation, company, partnership, person, or persons shall, at their own expense, safely and securely lattice or slat the head of such tume or covering with proper materials, so that persons or animals cannot accidentally enter such flume or covering at the head thereof, and pass or be carried down the current of said canal or ditch, and shall thereafter maintain and keep the same in good order and repair, at their own cost and expense. Sec. 3. It any such corporation, company, partnership, person, or persons shall fail or refuse to comply with any of the provisions of the two preceding sections, such corporation, company, partnership, person, or persons shall forfeit and pay to the county, for the use of the common-school fund, the sum of fifty dollars for each and every day such failure or refusal shall continue, to be recovered by a civil action in the name of the people of the state of Colorado, in any court of competent jurisdiction: provided, that nothing in this act shall be construed to bar an action for special damages by any person who shall have suffered such damages by reason of any failure to comply with any of the provisions of this act.

J. D. Markham, for appellant. W. E. White, for appellees.

HELM, J., (after stating the facts.) Appellant was and is the owner of a cana! conveying a large volume of water through a thickly-populated portion of the city of Denver for milling purposes, This canal being uncovered, George E. Dowell, a minor son of appellees, fell in and was drowned. The present action was brought by appellees under section 1509, Mills' Ann. St. to recover damages on the ground of negligence resulting in the decease of the said George E., as aforesaid. The only default or neglect averred in the complaint was the failure and refusal of appellant to confine, flume, or cover its canal, as required by an act of the legislature approved March 29, 1887. Sess. Laws 1887, p. 65. The pleadings and evidence present two questions for adjudication: First, did the failure of appellant to obey the statute of 1887 by covering its canal, and thus rendering the accident impossible, constitute such neg ligence per se as creates an actionable liability for private injuries that would not have been suffered but for the failure? and, second, does the evidence show contributory negligence on the part of deceased or on the part of appellees? These questions will be considered in inverse order.

No one saw the accident, nor is there any circumstantial evidence indicating precisely where or how it occurred, save that deceased was drowned in appellant's canal. Hence, there is no proof concerning the acts of deceased, or cir

cumstances immediately attending his death. The law does not presume contributory negligence. Unless appearing in the proofs offered by plaintiff, it is a defense to be established as are other defenses. Whart. Neg. § 423; City of Denver v. Dunsmore, 7 Colo. 329, 3 Pac. Rep. 705; Railway Co. v. Ryan, 17 Colo., 28 Pac. Rep. 79; Railroad Co. v. Gladmon, 15 Wall. 401. The defense of contributory negligence on the part of appellees is based upon the fact that they permitted deceased to be at large unattended. He was afflicted with epilepsy, but the convulsions were infrequent, occurring not oftener than from five to seven times a year. A number of the witnesses saw him at different times while having these convulsions, and his schoolmates sometimes called him "Crazy George;" but a speedy recovery always followed the paroxysms, and his mind does not appear to have been seriously affected. He was 14 years of age, and aside from the epileptic tendency in good physical condition. Much of the time, when not in school or otherwise engaged, he pursued the avocation of bootblack, occasionally earning as high as six dollars per week, which earnings he always brought home to his mother. He was industrious and trustworthy, being employed upon all kinds of errands. In general, he seems to have been amply able to protect himself. We are not prepared to say that, under these circumstances, it was negligence on the part of appellees to permit deceased to go about unattended. Besides, the questions of contributory negligence by appellees and by deceased, respectively, were submitted to the jury, under proper instructions; and certainly the record does not warrant disturbance of the verdict by us upon either of these grounds.

We turn, therefore, to the remaining question, which is the one mainly relied on by counsel for appellant. It is admitted that Denver is a city of the first class, and there is no dispute but that appellant's canal is covered by the terms of the act of 1887. The second defense, to which the general demurrer was sustained, embodies an emphatic denial of any duty on the part of appellant to comply with the plain requirements of the statute. The constitutionality of this statute is thus squarely challenged. It must be conceded at the outset that the canal belonging to appellant was lawfully constructed, and that its proper maintenance and use within the corporate limits of the city were duly authorized. City of Denver v. Mullen, 7 Colo. 345, 3 Pac. Rep. 693; Ditch Co. v. Anderson, 8 Colo. 131, 6 Pac. Rep. 515; Walley v. Ditch Co., 15 Colo. 579, 26 Pac. Rep. 129. But counsel further confidently asserts that the question now raised is, by virtue of the Mullen and Anderson Cases, supra, res adjudicata. The correctness of this assertion caunot be admitted. The Anderson Case holds that a private action against appellant could not be maintained without averring and proving special damages growing out of an improper or negligent exercise of its corporate powers in connection with the canal. When that decision was

rendered, no statute existed, imposing the duty upon appellant of fluming or covering its canal, and obviously a different rule in relation to private actions may now be applicable. The Mullen Case declares that the city cannot arbitrarily close the head gate of appellant's canal, and destroy its business; also, that the mu nicipal authorities cannot compel appellant to construct bridges at the intersections of its canal with the city streets. It is clear that the question now before us rests upon a different principle from that involved in the Mullen Case, supra, on which particular reliance is placed. Municipal highways are maintained for the convenience and benefit of the public. They are under the control of the municipal authorities, upon whom is imposed the duty of keeping them in good condition for use. Bridges constitute a feature of those improvements, which, like grading, are essential to the usefulness of the highway and the accommodation of the public. But the statute under consideration does not profess to deal in any manner with the public convenience. Apparently, its sole purpose is to secure the protection of life and property. A broad distinction is recognized between statutes indirectly imposing burdens upon individuals or corporations for the accommodation and convenience of the public, or for private aggrandizement, and statutes imposing such burdens for the purpose of promoting the public peace, health, and safety. Provisions may often be adopted, regulating the exercise of corporate powers so as to avert dangers menacing life and property, when such provisions would be held invalid if designed simply to subserve the public convenience, or to promote purely private interests. State v. Noyes, 47 Me. 187; Sedg. St. &. Const. Law, (2d Ed.) p. 608, note. The specific ground of attack upon the constitutionality of the statute under consideration is that since the duty thereby imposed upon appellant, of covering its canal, is not specified in its original charter, the act clearly impairs the obligation of the contract existing between it and the state. The doctrine that the charter of a private corporation is a contract, within the meaning of the federal constitution, has never been successfully assailed since the decision in Dartmouth College v. Woodward, 4 Wheat. 518; and that the obligation of this contract cannot be impaired by subsequent legislation follows as a matter of course. County Com'rs v. Colorado Seminary, 12 Colo. 497, 21 Pac. Rep. 490. But a long and unbroken line of decisions, including many by the supreme court of the United States, hold that regulations adopted under the police power for the purpose of protecting the public health or safety do not necessarily impair the obligation of the corporate contracts above mentioned. This power is an essential attribute of sovereignty. So jealously is it guarded that a state cannot, even by the most solemn legislation, barter away or curtail the right to exercise it. Tied. Lim. § 189, and cases cited. Private corporations occupy in respect to the police power precisely the same attitude

66

as private individuals engaged in similar branches of business. The fact that, by the articles of incorporation or charters, they obtain certain rights and privileges, and are empowered to transact certain kinds of business in certain specified places, does not exempt them from police regulation in the interest of society; and this is true even where such regulation operates to injure the business authorized, and to diminish the value of the property employed therein. In addition to other cases heretofore and hereafter cited, see Fertilizing Co. v. Hyde Park, 70 Ill. 634, 97 I. S. 659; Corporation of Brick Presbyterian Church v. Mayor, etc., of New York, 5 Cow. 538; People v. Hawley, 3 Mich. 330. Every regulation of this kind operates as a restriction of the enjoyment of the corporate franchise." Tied. Lim. § 189, supra. "The acknowledged police power of the state extends often to the destruction of property." Mr. Justice MCLEAN, in Thurlow v. Com., 5 How. 504. Contracts between the state and private corporations contain no express or implied provision authorizing the corpora- | tions to transact their business in a manner detrimental to the public peace, health, or safety. This view has been applied even where the business to carry on which the corporation was expressly organized is of such a nature as to become essentially an insufferable nuisance under circumstances brought about by collateral and independent changes in the vicinity of the place where it is carried on. Fertilizing Co. v. Hyde Park, supra; Corporation of Brick Presbyterian Church v. Mayor, etc., of New York, supra.

That the police power of the state may be made an instrument of injustice and oppression cannot be questioned, and when it is plainly invoked by the legislature merely as an excuse for the infliction of needless injury upon private corpora tions the judiciary should promptly interfere to prevent the wrong. Mr. Justice HARLAN, referring to this subject, says: "The courts are not bound by mereforms, nor are they to be misled by mere pretenses.

They are at liberty-indeed, are under a solemn duty-to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution." Mugler v. State of Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273. But if a statute is evidently designed to promote the public health, the public morals, or the public safety, and especially if it tends to produce the effect designed, it is valid, so far as this specific objection is concerned, unless there be a palpable invasion of constitutional rights. Appellant's canal is from 8 to 15 feet wide, and from 2 to 4 feet deep. It extends a distance of several miles through a thickly-populated portion of the city of Denver. The incline is such

that the large volume of water therein necessarily flows with great rapidity. It is not inclosed by fences, nor is any other precaution taken for the protection of the public in connection therewith. No argument or illustration is needed to demon. strate the fact that this canal is, under the circumstances, a constant menace to life and property. Provisions requiring that it be covered, and that a screen be placed at the head gate, or that some other means be adopted for the protection of the public, are not unreasonable precautions. The statute does not forbid or attempt to interfere with the use of the canal in carrying on appellant's business. It does not undertake to deprive appellant of its property, or the enjoyment thereof. Appellant can, without injury to the usefulness of the canal, so maintain it as not to endanger the safety of life and property; and, as already in effect suggested, it has no constitutional right to perpetuate this danger. The fact that the perils against which the statute is aimed arise from the unexpected growth of the city since the incorporation of appellant and the construction of its canal does not affect the foregoing conclusions. Cor. poration of Brick Presbyterian Church v. Mayor, etc., of New York, supra; Fertilizing Co. v. Hyde Park, supra. The heavy expense imposed upon appellant by the statute is unfortunate. But police regulations almost always impose burdens of greater or less magnitude, and therefore result in hardship. We cannot say that the statute was intended, as asserted by counsel, to bankrupt appellant and ruin its business. The act is general, and applies to all canals of the dimensions specified, in cities of the first class, whether owned by corporations, partnerships, or individuals. There is nothing upon its face to indicate that the members of the legislature thought at the time of its enactment of this or of any other particular canal. Courts will not presume dishonest or improper motives on the part of legislative bodies. Considering the expense and magnitude of the work devolved upon appellant, 60 days seem to be a very short period for its completion. But we cannot, as a matter of judicial cognizance, declare that this time was absolutely insufficient. Courts never annul statutes merely be cause the legislative judgment or discretion is improvidently exercised; and we are not prepared to hold that the manner designated in the act before us for accomplishing the end in view, and the time therein specified, are so unreasonable as to indicate legislative malice, or to justify judicial interference.

Finally, it is contended on behalf of appellant that by virtue of section 3, art. 15, of the constitution, the legislature could not impose upon appellant the duty of covering its canal without providing for reimbursement of the expeuse incurred. Said section 3 reads: "The general assembly shall have power to alter, revoke, or annul any charter of incorporation now existing and revocable at the adoption of this constitution, or any that may hereafter be created, whenever, in their opinion, it may be injurious to the citizens

of the state, in such manner, however, that no injustice shall be done to the incorporators." This provision does not relate to the exercise of the police power in regulating the transaction of corporate business. It recognizes a legislative right to alter, revoke, or annul any part or all of the corporate charter. Under it, the legislature may take away any portion of the powers, privileges, and immunities expressly or by necessary implication granted to private corporations, provided protection against injustice be given. But the statute under consideration was not intended to alter, revoke, or annul the charter of appellant, or of any other corporation. Neither was it intended to take away any existing right, power, or privilege conferred by such charter. It was, as already indicated, simply designed to so regulate the control and management of canals like that of appellant as to insure the protection of life and property, The statute is not unconstitutional, and had appellant obeyed its command the accident would not have happened. The failure of appellant to perform its statutory duty in the premises was negligence per se; and, no contributory negligence being shown, appellees were entitled to recover. Keim v. Transit Co., 90 Mo. 314, 2 S. W. Rep. 427; Railroad v. Dunn, 78 Ill. 197; Whart. Neg. §§ 442, 804, and cases cited. In support of the various propo sitions above announced, reference is made to the following additional citations: Railway Co. v. De Busk, 12 Colo. 294, 20 Pac. Rep. 752; Cooley, Const Lim. (5th Ed.) 710 et seq.; Tied. Lim. §§ 190, 191; Sedg. St. & Const. Law, p. 605 et seq., and notes; Railway Co. v. Slater, 129 III. 91, 21 N. E. Rep. 575, and cases cited; Stone v. Mississippi, 101 U. S. 814; Beer Co. v. Massachusetts, 97 U. S. 25; Patterson v. Kentucky, Id. 501; Bank v. Billings, 4 Pet. 514; Rodemacher v. Railway Co., 41 Iowa, 297. The judgment of the court below is affirmed.

(8 Utah, 78)

HOLMAN V. PLEASANT GROVE CITY. (Supreme Court of Utah. April 1, 1892.) IRRIGATION-APPROPRIATION-MUNICIPAL REGU

LATION.

1. Where by common consent a municipality has for many years regulated the appropriation of the waters of a certain river for irrigation purposes, by allowing a pro rata distribution among the appropriators in case of deficiency, it has no right to subsequently divide the appropriators into two classes, according as their use began before or after a certain arbitrary date, and to restrict only those of the second class; but all must be served alike.

2. Under Comp. Laws, $$ 3252, 3253, providing that a variance between the allegations in the pleading and proof is not to be deemed material unless it has misled the adverse party to his prejudice, the variance is not material where the allegation is that the waters of a certain river were first used by the plaintiff's father in 1851, while the proof fixes the date as 1869, and the use by the plaintiff and his father.

Appeal from district court, Utah connty; JOHN W. BLACKBURN, Justice.

Proceeding by Artemus Holman against Pleasant Grove city to determine the title to certain water rights. Decree for plaintiff. Defendant appeals. Affirmed.

Geo. Sutherland, for appellant. J. W. N. Whitecotton, for respondent.

ZANE, C. J. The plaintiff alleged in his complaint that, in 1851, John G. Holman, the father of the plaintiff, appropriated from American Fork river sufficient water to irrigate 50 acres of land, and in 1869 enough more to irrigate 10 acres; that in 1874 plaintiff acquired the land and the water right in question from his father; and that in 1888 and 1889 the defendant's water master denied him the use of it. The defendant, in its answer, denied the appropriation of the water by John G. Holman, and the acquisition of it by the plaintiff. At the conclusion of plaintiff's evidence the defendant moved the court to nonsuit the plaintiff on the ground of a variance between the allegations and proofs. The court overruled the motion, and the defendant excepted, and he now assigns that ruling as error.

As to when the water was first used to irrigate plaintiff's land, and whether at first by him or his father, or by both, the evidence is conflicting. The court found that in 1869 the plaintiff and his father, for the use of the former, first made the appropriation; and from the evidence this appears to be the most reasonable conclusion. The irrigation of plaintiff's land from the waters of the American Fork river was the substance of the allegation, and the date of the first appropriation, as alleged, was not descriptive of the plaintiff's right. An averment that a written instrument was made on a certain day does not make the date descriptive of the instrument, but an allegation that the instrument bears a certain date makes the date descriptive of the paper; and so as to an act raising a legal right, or that amounts to a legal wrong or imposes a legal duty, or constitutes a tort or a crime, it is not necessary to prove the date alleged. Under such averments, proof of the act on another day does not constitute a variance. The substance of the plaintiff's allegation as to date was proven by evidence of the use of the water in 1869 to irrigate plaintiff's land. The right may not be as valuable as it would have been had it commenced as early as alleged in plaintiff's complaint, but nevertheless it is a right that the law recognizes, and furnishes a remedy to protect. The fact that the evidence shows that the water was first used on the land by plaintiff and his father for plaintiff's use, and not by the father alone, as alleged, is not a material difference. It does appear from the findings that the plaintiff, after the first appropriation for his use, used the water on his land until the institution of this suit, and without being limited as a second-class holder, except in the years 1888 and 1889. The use of the water upon the land from year to year constituted. in fact and in law, an appropriation of it by him; and though the water may have been used at first by the plaintiff and his father, the continued use of it by the former after 1874 gave him a legal right to maintain and defend it by the institution of this action. "No variance between the allegations in pleading and the