No. 8,348. WOOD V. BRADLEY ET AL. In Bank. Filed November 25, 1885. FORECLOSURE OF ASSESSMENT LIEN-EXTINGUISHMENT OF PRIOR LIEN.-Judgment affirmed for the reasons given in the opinion of the department, reported in 5 West Coast Rep., 234. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendants. The facts are stated in the opinion in department, reported in 5 West Coast Rep., 234. J. M. Wood, for the appellant. Parker, Shafter & Waterman, for the respondents. MYRICK, J. This case was decided by this court in department one, January 20, 1885, 5 West Coast Rep., 234. Hearing in bank having been granted and had, we are satisfied with the reason given in department, the judgment is, therefore, affirmed. Ross, J., MCKEE, J., MORRISON, C. J., MCKINSTRY, J., and THORNTON, J., concurred. No. 9,996. SAN FRANCISCO v. Low. In Bank. Filed November 25, 1885. SUPPLEMENTAL TAX ROLL INVALID.-Judgment affirmed on authority of People v. Pittsburg R. R. Co., ante, page 27. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendant. The facts were similar to those in People v. Pittsburg R. R. Co., ante, page 27. David McClure, W. T. Baggett and J. A. Waymire, for the appellant. McAllister & Bergin, Pillsbury & Blanding, Wilson & Wilson, Jarboe & Harrison and Floyd & Wood, for the respondent. THE COURT. This case presents for decision precisely the same question as was involved in People v. Pittsburg Railroad Company, ante, page 27. Upon the authority of that case, the judgment here is affirmed. MYRICK, J., and THORNTON, J., dissented. WEST COAST REPORTER. WHOLE NO. 102. DECEMBER 10, 1885. VOL. VIII. No. 6. SUPREME COURT OF COLORADO. HALL ET AL. v. HALE. October Term, 1885. MINING CLAIM-LOCATION-ANNUAL WORK-EXTENSION OF TIME FOR DOING.-Appellee located the claim in controversy on June 7, 1878. On August 7, 1878, he ceased work on the property, and did none during 1879. On June 12, 1880, appellants relocated the premises. Thereafter, in September, 1880, appellee re-entered and performed one hundred dollars worth of work. Held, that the appellee had not abandoned the claim, that under the act of congress of January, 1880, amending section 2,324 of the United States revised statutes, the time in which he could perform the annual labor was extended to December 31, 1880. APPEAL from the district court of Ouray county. The opinion states the facts. John G. Taylor and S. P. Rose, for the appellants. H. O. Montague, for the appellee. HELM, J. The only controversy in this case relates to the performance of annual labor under act of congress of January, 1880. Appellee located the Geneva lode on the eighth day of June, 1878; on the seventh of August following, he ceased work upon the property. Nothing was done by him in 1879, and on June 12, 1880, appellants relocated the premises as abandoned ground, calling it the Empire lode. Thereafter, and in September, 1880, appellee reentered and performed one hundred dollars worth of work. The act of congress above mentioned is an amendment of section 2,324, revised statutes of the United States, and reads as follows: Provided, that the period within which the work to be done annually on all unpatented mining claims shall commence on the first day of January succeeding the date of location of such claim; and this section shall apply to all claims located since the tenth day of May, 1872. Under the law, as it stood at the date of the Geneva location, the work done by appellee held the claim only until June 8, 1879. It would have been necessary for him to perform an additional one hundred dollars' worth of work by June 8, 1880. The foregoing statute, adopted January 22, 1880, could not be retro-active, so as to divest a right appellee had already acquired under the law. Congress could not say to him: It is true that, by the law as it now stands, you have a right to perform this annual labor at any time prior to June 8, 1880, but we propose to cut off six months of that time and limit you to the calendar year ending December 31, 1879. Such a construction would not be tolerated. To so hold might result in a legislative forfeiture of a man's property without any fault on his part. The first of January, 1880, had passed before appellee could possibly know of the law, and, therefore, it would be an absolute impossibility to comply with its provisions, if he had not previously chanced to do so. If congress could take away six months of the time theretofore allowed, they could deprive him of eleven. Supposing appellee had located on the eighth day of December instead of June, he would then have had until the eighth day of December, 1880, to perform the work. But, adopting the foregoing interpretation, his year would be reduced to twenty-three days. Congress entertained no such intention. What did that body mean, then, by saying that the act should apply to claims located during the seven and one-half years prior to the date of its passage? Simply this: That, as to such locations, the calendar year should also be the period for performing the annual labor; and the statute must be construed, in cases like this, to operate as an extension and not as an abridgement of the locator's time. It must be held to have given appellee until the thirty-first day of December, 1880, to perform the labor, which, without the statute, he was required to do upon the property by the eighth day of June preceding. It follows, therefore, that on the twelfth day of June, 1880, the property was not subject to re-location; and that the attempted relocation thereof by appellant was void. The judgment is affirmed. PACKER V. PEOPLE. October Term, 1885. MURDER REPEAL OF LAW PRESCRIBING PUNISHMENT.-Where the law authorizing and prescribing the punishment for murder is repealed, without a saving clause, after a murder has been committed, a conviction therefor cannot be had under a law subsequently enacted. THE SAME CONCLUSION OF INDICTMENT -An indictment for murder, which concludes that the killing was done "against the peace and dignity of the people of the state of Colorado," will not be quashed although it is shown by the indictment that the crime was committed when Colorado was a territory. THE SAME-MANSLAUGHTER INCLUDED IN MURDER. -Manslaughter is an included offense in the crime and charge of murder, and is sufficiently charged and covered by a good indictment for murder. THE SAME VOID CONVICTION ONCE IN JEOPARDY.-If a defendant is convicted of murder, in a proceeding, wherein the court was without jurisdiction to try him for that crime, he has not been once in jeopardy, and may subsequently be tried for manslaughter. A REPEAL OF LAWS PRESCRIBING THE PUNISHMENT FOR MURDER is not a repeal of laws affecting the crime of manslaughter. ERROR to the district court of Hinsdale county. The opinion states the facts. Haines & Brown, for the plaintiff in error. 1. H. Thomas, attorney general, for the defendant in error. BECK, C. J. The plaintiff in error, Alfred Packer, was indicted, tried and convicted at the April term, 1883, of the district court of Hinsdale county for the murder of one Israel Swan. The indictment charges that said murder was committed by the prisoner in Hinsdale county, on the first day of March, 1874, said Hinsdale county then being in the territory of Colorado, but at the time of the trial in the state of Colorado. The jury returned a verdict of guilty as charged in the indictment, and that the killing was premeditated. Motions for new trial and in arrest of judgment were made, and overruled by the court below. The prisoner was then sentenced to be executed; whereupon, a writ of error was sued out of this court, and made to operate as a supersedeas so as to stay the execution of the sentence until we could review the proceedings on error. The case has been argued and submitted, and we proceed briefly to pass upon such questions as appear to demand attention. Several errors have been assigned, but counsel for prisoner say, in their brief filed in the cause, that the only errors relied upon in this court, are those which question the validity of the indictment; and that it will be unnecessary to refer to others, inasmuch as the case will have to be reversed under the rule established in the case of Garvey v. People, 6 Col., 559. We agree with counsel for the prisoner, that the judgment must be reversed. The sections of the criminal code which authorized and prescribed the punishment for murder were repealed by the legislature without a saving clause, after the crime was committed, and before the conviction now complained of. This point was raised and carefully considered in the Garvey case, and we have no reason for changing the views there expressed. The motions for new trial and in arrest of judgment should have been allowed. Going back, however, to the indictment, we think the court ruled correctly in denying the motion to quash it. That pleading appears to have been correct in form and substance. The objection made to the concluding clause of the indictment, appears to us to be wholly without merit. It was that the indictment concludes that the killing was committed against the peace and dignity of the people of the state of Colorado; whereas, say the counsel, there was no state of Colorado in existence at the time of the killing in March, 1874. True, the form of government has been changed since the latter date, from a territorial form, to that of a state. The views of attorney general Urmy, that no rights were forfeited by the transition, is an answer to this whole line of argument. The same citizens who comprised the territorial government, were the citizens. who framed and adopted the state constitution, and upon its taking effect they immediately became citizens of the new state. Instead of sweeping away, by a dash of the pen, the laws which had been made by this same citizenship, and by which the territory had been governed for many years-the whole body of laws was preserved by the constitution as the laws of the state, both in civil and in criminal matters until they should be amended or repealed by the state legislature, and other provisions made to supply their place. Section 1 of the schedule declares that all laws in force at the adoption of the constitution, not inconsistent, should remain as of the same force as before, until they expired by their own limitation, or are altered or repealed by the general assembly; also, that all prosecutions and rights of actions shall continue as if the form of government had not been changed, when not inconsistent with the constitution. Section 2 provides, among other things, that "all indictments which have been found, or hereafter may be found, and all informations which have been filed, or may hereafter be filed, for any crime or offense committed before the constitution takes effect, may be proceeded upon as if no change had taken place, except as otherwise provided in the constitution." These are necessary saving clauses, and proper to be inserted in a constitution, for while it is not the business of the framers of a constitution like ours to prepare and submit to the people a code of laws, it is their duty to preserve existing laws until the legislature, the proper law-making body, can be convened to amend or repeal such existing laws as they think proper, and to prepare such new laws as appear to them necessary for the benefit of the new state. We do not agree, however, with the attorney-general, that past transactions or crimes shall be prosecuted under the laws so preserved by the constitution, after the same have been modified or repealed. The saving clause inserted in a constitution, for the purpose stated, is of the same force as a saving clause in a statute; the whole may afterwards be repealed by the legislature without a further saving, and the ends of justice may be thus partially or wholly defeated, according to circumstances. * * * Mr. Cooley, in his Constitutional Limitations, p. 47, thus speaks of the functions of a state constitution: "It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government. It grants no rights to the people, but is the creature of their power, the instrument of their convenience Designed for their protection in the rights and powers which they possessed before the constitution was made, it is but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits and modes of thought." Referring again to sec. 2 of the schedule, we remark, that it preserved the law concerning murder as it existed before the adoption of the constitution, so as to enable the courts to punish crimes of this character, committed under the territorial organization. This effect continued until the sections of the former statute prescribing the punishment, were repealed by the state legislature. In the present case, this occurred before the trial of the accused. There was an exception in the constitutional saving clauses, but it in no way invalidate the prosecutions referred to. It simply required |